State v. Timmons
| Citation | 584 S.W.2d 129 |
| Decision Date | 28 June 1979 |
| Docket Number | No. 11021,11021 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Lawrence Gene TIMMONS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
David R. Fielder, Springfield, for defendant-appellant.
On December 15, 1977, after trial by jury in the Circuit Court of Greene County, defendant Lawrence Gene Timmons was found guilty of the crime of robbery in the first degree and was thereafter sentenced by the trial court to imprisonment in the custody of the Missouri Department of Corrections for a term of five years. Defendant appeals the judgment and sentence of the trial court.
The facts of this case, as testified to at time of trial, are as follows. On March 2, 1976, Allyson Wright, a college student, was in her apartment at 620 East Madison, Springfield, Missouri. A man came to the door and inquired as to the whereabouts of a girl by the name of Barbara Heinrich who lived upstairs. Ms. Wright told him that Barbara was at work and would not be home until later. The man left, but later returned, again asking for Barbara. She told him that Barbara was not home. He followed her into her apartment, hit her in the face several times, took her wallet, which contained money, credit cards and other identification, and left. The police were called. They questioned her and obtained a description of her assailant.
Nothing else of interest happened until March of 1977. During that month, Suzy Crouch, who lived at 917 East Normal, Springfield, Missouri, found Ms. Wright's wallet in the basement of her house while she was searching for a hampster that had escaped. The wallet contained the student identification card of Ms. Wright. Suzy contacted Allyson and told her that she had found the wallet. Ms. Wright did not come after it, but called the police and informed them of the incident. In June of 1977, detectives from the Springfield Police Department picked up the wallet and its contents. Ron Worsham, one of the detectives, then gave four pictures, or "mug shots", to Detective Carl Malin. Worsham had personally selected the pictures from a mug shot file at the police department as pictures of individuals who, in his opinion, approximated the description of the robber given them by the victim. These pictures were introduced into evidence as state's exhibits 1 through 4, with one picture (state's exhibit 2) being of defendant. Ms. Wright, in the presence of Malin, identified exhibit 2 as a picture of her assailant. Malin gave the pictures back to Worsham. Worsham placed the four pictures on his desk. When Ms. Wright came in the following Monday to identify her property, she again picked exhibit 2 as a picture of her assailant and told Worsham that this was the man who had robbed her. This out-of-court identification occurred approximately 15 months after the date of the robbery.
This objection was overruled by the trial court. The court had previously overruled defendant's motion to suppress evidence, which motion was based on the alleged impermissible suggestive photographic display by the Springfield Police Department. Ms. Wright then identified the exhibits as photographs that had been shown to her earlier by the police and identified exhibit 2 as a picture of the robber, as he looked on March 2, 1976.
A state's witness, Charles Ball, had lived at the 917 East Normal address at the time of the robbery. He testified that defendant, in approximately April of 1976, had come to live at the house and had lived in the basement where the wallet was found. He identified state's exhibit 2 as a picture of defendant, as he looked in April of 1976. He stated that defendant's appearance had changed at time of trial, in that his hair was darker and longer and he now had a mustache. The testimony of defense witness John Gage was similar to that given by witness Ball. Detective Brazeal, of the Springfield Police Department, also testified that exhibit 2 was a picture of defendant as he looked in May of 1976.
At the close of all of the evidence, defendant moved for a directed verdict of acquittal on the grounds that the evidence presented by the state was insufficient to sustain a conviction. The motion was overruled. In his motion for new trial, defendant charged, in addition to other alleged, but abandoned, errors, that,
a photograph of the Defendant by Allison (sic) Wright for the reason that said identification of the Defendant's photograph by Allison (sic) Wright bolstered her inability to identify the Defendant in open Court, and thus was inadmissable (sic).'
Defendant raises three points on appeal. He claims that the trial court erred 1) in overruling defendant's motion to suppress photographic evidence of identification of defendant by Allyson Wright for the reason that the photographic display of "mug shots" was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification; 2) by permitting testimony by the victim and other witnesses as to the victim's extrajudicial photographic identification of the defendant; and, 3) in overruling defendant's motion for directed verdict of acquittal because there was no in-court identification of defendant as the perpetrator of the crime.
The primary requirement in the trial of a man charged with a crime is that he must be shown to be the person who committed the offense. State v. Brown, 542 S.W.2d 789, 791 (Mo.App.1976). The issue of identification of the perpetrator of a crime is for the jury, and appellate courts do not delve into a determination of the weight of the evidence in such cases. State v. Maxwell, 502 S.W.2d 382, 390 (Mo.App.1973). However, we do have an obligation to determine if the identification evidence submitted to the jury was admissible and, if not, whether such admission was prejudicial error. We, therefore, discuss the three assignments of error.
On this assignment of error, defendant contends that the Springfield Police used impermissibly suggestive procedures in selecting the photographic display from which the victim identified defendant's photograph as a...
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State v. Mayes, 45051
...that appellate courts in Missouri do not weigh identification testimony and that issue is the function of the jury. State v. Timmons, 584 S.W.2d 129, 132 (Mo.App.1979); Eichelberger v. State, 524 S.W.2d 890, 893 (Mo.App.1975). He cites no Missouri cases to the contrary. He, however, relies ......
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State v. Walker, 40479
...testimony. The admission of the corroborative testimony was not error nor an abuse of discretion. State v. Williams; State v. Timmons, 584 S.W.2d 129 (Mo.App.1979); State v. Wright, 571 S.W.2d 734 (Mo.App.1978). Nor was there any manifest injustice to defendant by its admission. State v. Mc......
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State v. Hadley
...is for the jury, and appellate courts do not delve into a determination of the weight of the evidence in such cases." State v. Timmons, 584 S.W.2d 129, 132 (Mo.App.1979). To similar effect see Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App.1975), and State v. Maxwell, 502 S.W.2d 382, 39......
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Adail v. Wyrick, 82-2531
...of the victim to identify the defendant at trial merely goes to the weight of the testimony, not to its admissibility. State v. Timmons, 584 S.W.2d 129, 133 (Mo.App.1979). Moreover, federal courts also admit pretrial identifications made after the crime without corroborating in-court identi......