State v. Williams, 49400

• Decision Date: 07 October 1986
• Docket Number: No. 49400,49400
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Johnnie Haze WILLIAMS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 561

717 S.W.2d 561

STATE of Missouri, Plaintiff-Respondent, v. Johnnie Haze WILLIAMS, Defendant-Appellant.

No. 49400.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 7, 1986.

Mary A. Dockery, Asst. Public Defender, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SATZ, Judge.

A jury convicted defendant, Johnnie Williams, of burglary, first degree, § 569.160, RSMo 1978, two counts of stealing without consent, § 570.030, RSMo Supp.1984, (stealing from a person and stealing a motor vehicle), and leaving the scene of an accident, § 577.060 RSMo Supp.1984. The trial court sentenced defendant, as a persistent offender, to fifty years imprisonment. Defendant appeals. We affirm.

At about noon on April 3, 1984, defendant entered the home of Nancy and Hyman Shukar and confronted Nancy Shukar in the kitchen. Defendant demanded Mrs. Shukar's purse, and she complied. At that moment, Hyman Shukar attempted to attack defendant with a chair, but defendant managed to shove Hyman against the refrigerator and onto the floor. Defendant then leaned over Hyman and demanded money. Hyman attempted to give the defendant credit cards, but the defendant refused them. Defendant took five dollars in cash instead.

Defendant then drove off in the Shukars' car. The Shukars telephoned the police and described the stolen car. A police officer arrived at the Shukar home approximately ten to twenty minutes after defendant left. The Shukars gave the officer a general description of defendant.

Another police officer, Shelton, heard a police broadcast describing the stolen car and its driver. Shelton then saw a car matching the description he just heard and gave chase. He temporarily lost the car, then saw it again going eastbound on another street, Olive Street Road. Shelton again chased the car until it went up a one way street, hitting another police car. He once more lost sight of the car as it sped away from the accident. Shelton then heard a police broadcast about an accident involving the Shukar car on Bartmer Road. He went to that accident location, found defendant running among the houses and arrested him.

Two firemen, Michael Toomey and Harvey Guittar, confirmed Shelton's testimony. While Shelton's chase was taking place, Toomey and Guittar heard a police broadcast describing the Shukar vehicle and its driver. They then noticed the car identified on the broadcast turn from Midland Ave. on to Olive Street and come into the lane next to them. The car was then slightly behind and to the right of Toomey and Guittar. It paced their car for about ten seconds. The firemen took note of the driver's appearance. The car then accelerated beyond the firemen and made a left turn, with a police car following it.

Witness Madeline Merritt also confirmed Officer Shelton's testimony. Merritt lived near the Bartmer accident location. Apparently, after that accident had occurred, Merritt saw a man run into her neighbor's front yard carrying a purse and attache case. Merritt then observed the man running back into her neighbor's yard without the purse. Later she found the purse and turned it over to the police.

Other police officers escorted the Shukars, the firemen and Madeline Merritt to the place of arrest. The defendant was between two uniformed police officers, handcuffed and standing by Nancy Shukar's purse. Upon arrival at the scene of arrest, the Shukars immediately told the police the defendant was their assailant. Guittar and Toomey also identified defendant immediately. The police made no overt suggestions to either the Shukars or the firemen concerning the identity of the defendant.

Prior to trial, defendant filed a motion to suppress the testimony of the identification witnesses, both their in-court and out-of-court identifications. After a hearing, the trial court denied defendant's motion. At trial, the Shukars and the firemen described their out-of-court identifications of defendant, and each made an in-court identification of him.

On appeal, defendant complains about the testimony describing the out-of-court identifications. Defendant contends this testimony was tainted by an impermissibly suggestive confrontation between the witnesses and defendant. We disagree.

Some have contended that case law has established two different due process tests for determining the admissibility of identification testimony--one test for out-of-court identifications and another test for in-court identifications. See Manson v. Brathwaite, 432 U.S. 98, 122, 97 S.Ct. 2243, 2257, 53 L.Ed.2d 140, 159 (1977), (Marshall, J., dissenting); and see State v. Carter, 572 S.W.2d 430, 437-440 (Mo.App.1978) (Donnelly, J., dissenting). This contention has been answered and laid to rest. We use the same, interchangeable test for determining the admissibility of out-of-court and in-court identification testimony. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; State v. Carter, 572 S.W.2d at 435-436; e.g., State v. Green, 635 S.W.2d 42, 44 (Mo.App.1982).

The Manson test is straightforward. "Reliability, not suggestiveness, is the linchpin in determining the admissibility of identification testimony", and "reliability is to be assessed under the totality of circumstances" Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). "Factors to be considered include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253; State v. Carter, 572 S.W.2d at 435. ¹

Thus, after Manson, the crucial test is two pronged: (1) was the pretrial identification procedure suggestive, and (2) if so, what impact did the suggestive procedure have upon the reliability of the identification made by the witnesses. E.g., State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979). Although Manson lists the factors to be considered in evaluating the reliability of an identification, it provides no criteria for determining the degree of suggestion present in a particular identification process, and Missouri case law has not yet filled this gap. This lack of criteria presents no problem here, for, under any reasonable criteria, the pretrial confrontation in this case was not unduly suggestive.

The Shukars and the firemen arrived at the show-up within one hour of their initial confrontations with defendant. All of these witnesses said the police did not make any overt suggestions concerning defendant's identity. Arguably, any one-on-one confrontation may suggest to the witness that the police believe the subject to be the perpetrator. We, in Missouri, however, routinely hold such show-ups are not unduly suggestive, even when the subject is in handcuffs, see, e.g., State v. Dodson, 491 S.W.2d 334, 338 (Mo. banc 1973), and particularly when the police make no overt remarks concerning the subject's identity. E.g., State v. Ralls, 583 S.W.2d 289, 291 (Mo.App.1979).

Even assuming the show-up was unduly suggestive, however, we would still find the pretrial identification reliable and, thus, admissible under the Manson test. First, the Shukars and the firemen had ample opportunity to view defendant. The Shukars observed defendant in their well-lit kitchen. Nancy Shukar saw defendant enter her house and head toward her. Defendant stood in front of Nancy for three to five minutes. He also leaned over Hyman when Hyman was on the floor. Thus, both Shukars had good opportunities to view defendant because of good lighting conditions and close contact between the parties for a relatively long time. See State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976). Moreover, while Hyman was walking his dog some two hours before the crime, he saw defendant walking in the neighborhood. This previous encounter increases the reliability of Hyman's identification. See State v. Collins, 567 S.W.2d 144, 146 (Mo.App.1978).

The firemen also had an opportunity to view defendant. Toomey, sitting in the right rear seat of the firemen's car, saw defendant for ten seconds. Guittar, sitting in the front passenger seat, observed defendant from three to five seconds.

Second, each one of the witnesses was highly attentive. Nancy Shukar carefully watched defendant open the front door and approach her. Hyman Shukar's attention was fixed on defendant when defendant pushed him to the floor and leaned over him. Although the Shukars were upset from their ordeal, there is no evidence they were shaken beyond the capacity to remember defendant. See State v. Johnson, 628 S.W.2d 904, 909 (Mo.App.1982); State v. Bivens, 558 S.W.2d 296 (Mo.App.1977). The firemen would and did concentrate on the defendant, because he was driving a car matching the police description.

Third, the Shukars gave the police a description of defendant when the police arrived at the Shukar home. The description was accurate except for Hyman's description of defendant's hat. This discrepancy is minimal and is simply something for the jury to weigh. State v. Higgins, 592 S.W.2d at 160.

Fourth, the Shukars and the firemen were certain in their identification of defendant at the time of the show-up. Each witness identified defendant almost immediately. The immediacy of these identifications enhances their reliability. See State v. Ford, 677 S.W.2d 352, 355 (Mo.App.1984).

Fifth, the time between the initial contacts between the witnesses and defendant and the subsequent show-up was relatively short. The time from the Shukars' encounter with defendant and the show-up was about one hour,...