State v. Twitty, s. 55086

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: KAROHL; PUDLOWSKI, P.J., and CRANDALL
• Citation: 793 S.W.2d 561
• Parties: STATE of Missouri, Respondent-Respondent, v. Anthony TWITTY, Defendant-Appellant.
• Docket Number: 56487,Nos. 55086,s. 55086
• Decision Date: 26 June 1990

Page 561

793 S.W.2d 561 STATE of Missouri, Respondent-Respondent,
v.
Anthony TWITTY, Defendant-Appellant. Nos. 55086, 56487. Missouri Court of Appeals,
Eastern District,
Division Two. June 26, 1990.
Motion For Rehearing and/or Transfer to Supreme Court
Denied Aug. 7, 1990.
Application to Transfer Denied Sept. 11, 1990.

Page 562

Cheryl Rafert, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for respondent-respondent.

KAROHL, Judge.

Defendant appeals concurrent sentences for robbery in the first degree and armed criminal action. He also appeals denial of post conviction relief under Rule 29.15.

At approximately 5:15 p.m. on October 27, 1987 John Barrale inserted the keys in the ignition of his pick-up truck when a man opened the driver's door and pointed a gun at him. The man ordered Barrale out of the truck, told him to leave the keys in the ignition, and asked if he had any money. When Barrale responded affirmatively, the robber demanded his money and fled in the truck.

At approximately 10:30 p.m., the same night, two police officers spotted a truck parked partially in the street at the Cotton Club. The officers ran a license plate check; learned the truck had been stolen in an armed robbery earlier in the day, and established surveillance of the truck. When defendant left the Cotton Club he opened the passenger side of the truck with a key and leaned into the truck. The officers placed him under arrest. The police searched the passenger compartment of the truck and found a loaded .38 caliber revolver.

Police conducted an inventory search of defendant at the police station. During the search defendant removed a .38 caliber cartridge from his right front pocket. A lineup was conducted at approximately 2:30 a.m. the next morning, and Barrale identified

Page 563

defendant as the man who took his money and his truck at gunpoint. The victim had previously described his assailant as wearing a white jacket and white trousers. Defendant was the only person in the lineup dressed all in white.

At trial defendant offered the testimony of three alibi witnesses but did not testify in his own defense. The jury found defendant guilty as charged. On June 24, 1988 he was sentenced as a persistent offender to life imprisonment for robbery in the first degree and ten years imprisonment for armed criminal action. The sentences are to run concurrently.

Defendant asserts in his first point on appeal that the trial court erred when it denied his motion to suppress the identification. Defendant claims the identification should have been suppressed for two reasons: (1) the lineup was impermissibly suggestive and therefore unreliable, and (2) appellant was denied right to counsel at the lineup.

A two-step analysis is required to determine the admissibility of an out-of-court identification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980). Using this test we must determine whether the investigatory procedures employed by the police were impermissibly suggestive. If we find they were we must ask further, "were they so impermissibly suggestive as to create a very substantial likelihood of an irreparable misidentification at trial." State v. Higgins, 592 S.W.2d at 159. In the present case defendant alleges the lineup was impermissibly suggestive because he was the only person in the lineup dressed in white and the victim described his assailant to the police as having worn a white jacket and white trousers. There have been several similar cases in Missouri. In State v. Howard, 699 S.W.2d 58, 59 (Mo.App.1985) the defendant was the only one in a lineup wearing a shower cap such as the assailant was described as wearing and was also the only person in the lineup required to show his teeth to the victims. The identification of this defendant was ruled not to be impermissibly suggestive. Another Missouri case presents a situation remarkably similar to that in the instant case. In State v. Gray, 741 S.W.2d 35 (Mo.App.1987) defendant appeared in a line-up dressed in a jacket resembling the one victims had previously described to the officers on the night of a robbery. The court held this was not impermissibly suggestive. Defendant agreed to appear in the lineup. Also, when he surrendered to police, he was wearing the jacket and nothing in the record reflects the police forced him to wear the jacket when victims viewed him in the lineup. "Further, dissimilarity and physical appearance alone are insufficient to establish impermissible suggestiveness." State v. Gray, 741 S.W.2d at 37.

Reliability rather than suggestiveness is the lynchpin in determining the admissibility of identification testimony and "reliability is to be assessed under the totality of circumstances." State v. Williams, 717 S.W.2d 561, 564 (Mo.App.1986) quoting Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). "The reliability of the identification dispels any cloud cast by defendant's assertion of suggestiveness." State v. Gray, 741 S.W.2d at 37-38.

Although a show-up presents a suspect in a suggestive light, that does not automatically transform a reliable identification into an unreliable one. The factors to consider in determining the reliability of a witness's identification are the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated at the confrontation, and the amount of time between the crime and the confrontation.

State v. Conway, 740 S.W.2d 320, 324 (Mo.App.1987) citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).

In the present case the victim was robbed at gunpoint by a man whose face

Page 564

was not hidden from view. The armed robber took the time to ask the victim a question and waited for a response. The victim then handed his wallet to him. The victim had abundant opportunity to view the defendant's face. Also, less than ten hours passed between the time of the crime and the lineup, and the victim was adamant that defendant was the man who robbed him. Further, the arrest was made within that period when defendant used the victim's keys to enter the stolen truck. This fact reinforces the identification. We find the lineup was suggestive, but not impermissibly so.

Defendant's second reason for suppressing the identification is also without merit. Defendant claims he was denied the right to counsel at the time of the lineup. This argument was not advanced before the trial court and "[a] trial court will not be held to have committed error for a reason not presented to it." State v. Jones, 594 S.W.2d 932, 938 (Mo.1980). This issue was not raised in the original motion to suppress identification, and we review only for plain error.

The right to counsel arises at the time of initiation of adverse proceedings against the defendant. State v. Beck, 687 S.W.2d 155, 160 (Mo. banc 1985). At the time of lineup in the present case adverse proceedings had not been initiated against the defendant. Therefore, the trial court did not err when it denied defendant's motion to suppress the identification.

Defendant, who was black, next argues he was denied a fair trial because the prosecutor used three peremptory challenges to exclude blacks from the jury in violation of the equal protection and due process clauses of...