State v. West, No. 57012

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: 484 S.W.2d 191
• Parties: STATE of Missouri, Respondent, v. Ronald Udell WEST, Appellant
• Decision Date: 11 September 1972
• Docket Number: No. 57012,No. 2

Page 191

484 S.W.2d 191 STATE of Missouri, Respondent,
v.
Ronald Udell WEST, Appellant. No. 57012. Supreme Court of Missouri, Division No. 2. Sept. 11, 1972.

Page 192

John C. Danforth, Atty. Gen., Richard S. Paden, Asst. Atty. Gen., Jefferson City, for respondent.

Jack N. Bohm, Kansas City, for appellant.

HOUSER, Commissioner.

Ronald Udell West, convicted by a jury of stealing $65 and a billfold from the person, acting with another with common intent, and sentenced to 3 years' imprisonment, has appealed. ¹

I. Questions of Identification.

Taking exception to the method in which the lineup in this case was conducted, accused filed a motion to suppress the identification resulting therefrom. The motion was overruled. At the trial the victim was permitted to make an in-court identification of appellant as one of the thieves. Error is assigned in the action of the court in overruling the motion to suppress and permitting the in-court identification, first, because the lineup was conducted without affording appellant the benefit of counsel; second, because appellant's name as one of his assailants had been given to the victim by a witness prior to the lineup, and at the lineup the participants were required to step forward one by one and disclose their names; 'and one other circumstances were so unduly prejudicial and conducive to irreparable harm of misidentification as to fatally taint the identification.'

The lineup was conducted on May 13, 1970; the information was filed June 29, 1970. The lineup having been conducted prior to the filing of the information the per se exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, has no application. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (United States Supreme Court, June 7, 1972); State v. Chavez, Mo.Sup., 483 S.W.2d 68 (July 10, 1972).

The forcing of appellant to step forward and give his name at the lineup in the presence of the victim, who had previously been supplied with West's name by one who identified West as one of the men seen fleeing from the scene, was irregular and improper but the admission of the in-court identification testimony is approved for the reason that there was sufficient evidence

Page 193

that this testimony was of independent origin. According to John Ebel, delivery man for a dairy in Kansas City, he was approached at 38th and Forest by a negro male (later identified by Ebel as Ronald Udell West) who purchased a quart of chocolate milk from him. About an hour later West and another male approached Ebel at 4330 Highland, in front of a Mrs. Robertson's house, and West said, 'I see you every place, don't I?,' to which Ebel answered, 'You sure do because I deliver to different homes in this territory.' West said, 'My buddy wants to buy a quart of chocolate milk.' Ebel turned around to open the doors of the refrigerator truck to get the milk, and as he did so he felt a quick jerk on his trousers. He grabbed back and discovered that his billfold was gone. He looked and saw the two men running across the street between the houses. Mrs. Robertson, who had been sitting on her porch when Ebel drove up, saw the two men running away from the milk truck. She recognized them as Ronald Udell West and Ronnie White, both of whom she knew personally. West had been in her home with White on a previous occasion. White was the father of a child born to Mrs. Robertson's unmarried daughter. Mrs. Robertson bore ill feelings against White. Mrs. Robertson gave Ebel the names of West and White as the two she had seen running from the scene. Two weeks later Ebel was called to the police department to identify people in a lineup. Ebel knew ahead of time that one of the men who was supposed to have taken his billfold was named West. The police advised Ebel that West would be in the lineup. The lineup consisted of West and two other black men to similar 'slim' build, two of whom were slightly lighter but similar in color and about 2 inches shorter than West. Each of the three men, including West, stepped forward and gave his real name.

On the day of theft Ebel saw West twice within an hour. Concerning his opportunity to observe West at the scene of the theft he testified that the time exposure was less than five minutes, but nothing less than three minutes; that following...