State v. Story, 63549

• Decision Date: 23 February 1983
• Docket Number: No. 63549,63549
• Citation: 646 S.W.2d 68
• Parties: STATE of Missouri, Respondent, v. Alfred STORY, Jr., Appellant.
• Court: Missouri Supreme Court

Page 68

646 S.W.2d 68

STATE of Missouri, Respondent, v. Alfred STORY, Jr., Appellant.

No. 63549.

Supreme Court of Missouri,

En Banc.

Feb. 23, 1983.

David Robards, Public Defender, Charles Buchanan, Asst. Public Defender, Joplin, for appellant.

John Ashcroft, Atty. Gen., Henry Herschel, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant was convicted of the felony of selling marijuana in violation of § 195.020, RSMo 1978, ¹ and was sentenced to five years in prison. The Missouri Court of Appeals, Southern District, affirmed. We ordered the case transferred, Rule 83.03, to determine whether appellant was entitled to an instruction on a lesser included offense. We review as on original appeal, Rule 83.09, and we affirm.

I

Don Richardson, an undercover officer for the Intelligence Division of the Missouri State Highway Patrol, provided the principal testimony for the state. He testified that he was working in Joplin, Missouri, on September 17, 1978, and first encountered appellant at around 1 p.m. that day. Richardson and two other men, Oatis Crayton and Herb Weston, ² were driving a 1978 Dodge Supervan when appellant passed them in a silver-gray Lincoln Continental. Richardson testified that Crayton told him to flag down appellant, and when he did so appellant stopped in front of the Joplin Boys Club. Crayton introduced Richardson to appellant, and at some point all four men got into the van, which had been provided for Richardson's undercover operation.

Crayton asked appellant whether he had anything for sale. Appellant asked Richardson what he had in mind, and Richardson said he wanted "whatever he [appellant] had for sale." Appellant responded that he had two pounds of "homegrown," slang for marijuana. He said he would sell it for one hundred dollars per pound, but Richardson told him he would not buy it unless he sampled it first. Thereupon appellant produced a small bag of marijuana that he described as the "same stuff" Richardson was going to buy. Weston rolled a cigarette, which was lit and passed among the four men. Richardson said that when the cigarette was passed to him, he would "pretend to smoke from it and pass it on." After a few minutes of conversation Richardson told appellant that the marijuana was not of high quality and was not worth one hundred dollars per pound. The two men then discussed the price and agreed that Richardson would pay one hundred dollars for both pounds. Appellant then told Richardson to go to Ewert Park in Joplin and wait for him.

Richardson testified that shortly thereafter appellant reappeared at Ewert Park. He parked his car alongside Richardson's van, and Richardson got in the front seat of appellant's car. Appellant got a black plastic trash bag from the trunk and brought it inside the car. Inside the bag was a brown paper bag that contained three smaller white plastic bags. Richardson looked inside the white plastic bags and concluded that they contained marijuana. He agreed to buy the marijuana and gave appellant five $20 bills. Appellant thanked Richardson, and Richardson returned to his van.

Richardson subsequently delivered the bags to the Highway Patrol laboratory in Jefferson City. Afton Ware, a Highway Patrol chemist, testified that the substance in the bags was indeed marijuana. The amount of marijuana in the bags totaled 694.4 grams, or 1.53 pounds.

Appellant testified on his own behalf as the only defense witness. He said that toward the end of September 1978 he was driving in Joplin when Crayton waved him into Ewert Park. Crayton introduced him to Richardson and Weston and invited him into the van for some beer. Richardson, whom appellant could not identify at trial, asked appellant whether he had any marijuana, and appellant told him he had three cigarettes. Appellant gave one cigarette to Weston, who lit it and passed it around. Richardson told appellant that the marijuana was no good and offered some of his own, which he produced in a small plastic bag. Later, Richardson asked appellant if he knew where there was any marijuana or cocaine for sale, and appellant replied that he did not. Appellant said he left the van at that point and never had any other contact with Richardson, although he said he had seen him parked in Ewert Park on several occasions. Appellant denied selling marijuana to Richardson.

II

Two of appellant's claims are related. He contends first that the trial court erred in overruling his motion to suppress Richardson's in-court identification of appellant as the person from whom he purchased the marijuana. He argues second that the trial court erred in submitting the case to the jury because the state failed to introduce evidence sufficient to support the jury's finding that appellant was the person who sold the marijuana to Richardson.

These two arguments are predicated upon what appellant contends is the tainted and uncertain nature of Richardson's identification of appellant. Richardson had never met appellant before September 17, 1978, the day the marijuana sale allegedly was made. Thereafter, twenty months and two days passed until the day of the trial, May 19, 1980, when Richardson again saw appellant in person. Richardson made a photographic identification of appellant for the first time on February 13, 1980, when he viewed a single photograph of appellant that had appellant's name and date and place of birth inscribed on the back. He again viewed the photograph on May 18, 1980, the day before trial. Richardson's report, filed three days after the incident, contained only a generalized description of the suspect as a "Negro male, date of birth 1-2-55, six foot tall, 160 pounds, black hair, brown eyes, small turquoise earring in left ear." Richardson was unable to give the defense attorney a more detailed description when the defense attorney questioned him six days before the trial, but the record reflects that at their meeting the defense attorney would not allow Richardson to review his report in order to refresh his memory. The report recites appellant's full name, but Richardson conceded that appellant had been introduced to him only as "Alfred" and that he had learned appellant's full name only when Crayton told him. At trial the defense attorney had Richardson view a lineup of five photographs, one of which was a photograph of appellant, but Richardson was unable to narrow the choice to fewer than two. It is in view of these facts that appellant claims the in-court identification was tainted and uncertain.

A

We first address appellant's contention that the trial court should have sustained his motion to suppress the in-court identification. The principles that guide our inquiry are well settled. Reliability, rather than suggestiveness, "is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Charles, 612 S.W.2d 778, 780 (Mo. banc), cert. denied, 454 U.S. 972, 102 S.Ct. 522, 70 L.Ed.2d 392 (1981); State v. Higgins, 592 S.W.2d 151, 160 (Mo. banc 1979), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980). In determining whether an identification is reliable, the court must consider the "totality of the circumstances," including "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Brathwaite, 432 U.S. at 113, 114, 97 S.Ct. at 2252-53. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); Charles, 612 S.W.2d at 780; Higgins, 592 S.W.2d at 160. Finally, "[a]gainst these factors is to be weighed the corrupting effect of the suggestive identification itself." Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253.

The length of time between the crime and the confrontation was indeed substantial. After the crime some seventeen months passed until Richardson first identified a photograph of appellant and some twenty months passed until the trial. That length of time, however, is of itself an insufficient reason to exclude Richardson's identification testimony. The remaining factors necessary to determine the question demonstrate that the testimony was sufficiently reliable to justify its admission.

First, there is no question that Richardson had ample opportunity to view the man who sold him the marijuana. That man was in the van with Richardson and the other two men long enough for the four to smoke a cigarette and discuss the price at which the marijuana would be sold, and thereafter Richardson and the man were in the man's car long enough for Richardson to inspect the goods and make the payment. Second, it cannot be said that Richardson was inattentive. He had been a member of the Highway Patrol for thirteen years and an undercover officer for two and one-half years. He therefore "was not a casual or passing observer" but, rather, "was a trained police officer on ... specialized and dangerous duty." Id. at 115, 97 S.Ct. at 2253.

[A]s a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.

Id. Third, there is no contention that Richardson's description of appellant was inaccurate. Appellant claims only that the description was generalized. This argument, which concerns the weight of the testimony more than its admissibility, has little force because Richardson testified on cross-examination by the defense that he "probably could have added things ... as far as ... his [appellant's] build was concerned or the width of his nose or the length of his hair"...