State v. Zimmerman, s. 18403

• Decision Date: 31 October 1994
• Docket Number: 19032,Nos. 18403,s. 18403
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert J. ZIMMERMAN, Defendant-Appellant. Robert J. ZIMMERMAN, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 684

886 S.W.2d 684

STATE of Missouri, Plaintiff-Respondent, v. Robert J. ZIMMERMAN, Defendant-Appellant.

Robert J. ZIMMERMAN, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 18403, 19032.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 31, 1994.

Judith K. Offermann, Jackson, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

GARRISON, Presiding Judge.

Following his conviction by a jury, Robert J. Zimmerman (Appellant) was sentenced to twenty years' imprisonment for the offense of robbery in the first degree, § 569.020, ¹ and three years for armed criminal action, § 571.015. His direct appeal from that conviction is Case No. 18403. After he was sentenced, he filed a pro se motion seeking to have the conviction and sentence set aside pursuant to Rule 29.15. ² Appointed counsel later filed an amended 29.15 motion. His appeal from the denial of both of those motions without a hearing is Case No. 19032. These appeals have been duly consolidated.

FACTS

At approximately 4:30 a.m. on June 5, 1991, Mary Toledo (the clerk) was in the storeroom of the Pronto convenience store in Joplin, Missouri in connection with her duties as a clerk. As she came out of the storeroom in response to a beeper indicating that someone had entered the front door of the store, she was tripped and pushed to the floor. At first she thought her son who was with her in the store had tripped her as a joke. When she turned and started to get up, however, she saw a man about three feet away from her, holding a knife. The man, whom she did not recognize, then pulled a bandanna over his face, and when she screamed he started down an aisle of the store. As he did so, he met a customer who was investigating the scream. The intruder then held a knife on the customer and demanded that the clerk give him the money from the cash register. When she did so, the intruder took the money, as well as the telephone receiver, and left the store.

The clerk identified Appellant as the man who robbed the store in a photographic lineup at the Joplin Police Department three weeks after the robbery, at the preliminary hearing, and also at trial when she was the State's only witness. Appellant did not testify in his own defense but presented his wife and former landlord who testified about his physical appearance at the general time of the robbery.

CASE NO. 18403

In the first point of his direct appeal, Appellant contends that the trial court erred in failing to strike venireperson Neely for cause. The issue arose from a question on voir dire about whether there were any impending major events in her life which might distract her attention from the trial. In response, venireperson Neely disclosed that she worked with cancer patients, that they had a new doctor about to come in, "things are extremely tight," and that "I'd be worrying about the patients." She later said, however, that she could put those things out of her mind that day for the trial. Appellant further points out that Ms. Neely also revealed that her husband had been a police officer twelve years earlier. She said, however, that she believed she could be fair and impartial in spite of that fact.

Appellant challenged Ms. Neely for cause, explaining that the primary basis was "her work situation." In overruling the challenge the trial court noted her statement that she would set aside her work duties for a day and concentrate on the evidence.

The State argues that this assignment of error is precluded by § 494.480.4 which became effective on August 28, 1993, and provides:

The qualifications of a juror on the panel from which peremptory challenges by the defense are made shall not constitute a ground for the granting of a motion for new trial or the reversal of a conviction or sentence unless such juror served upon the jury at the defendant's trial and participated in the verdict rendered against the defendant.

In the instant case, Ms. Neely was eventually stricken by Appellant's use of a peremptory strike and did not sit on his jury. Appellant argues that § 494.480.4 should not be applied because it was not in effect when this case was tried. It has been consistently held, however, that § 494.480.4 is procedural in nature and has retroactive application. State v. Lawson, 876 S.W.2d 770, 777 (Mo.App.S.D.1994); State v. Quinn, 871 S.W.2d 80, 81-82 (Mo.App.E.D.1994); State v. Boyd, 871 S.W.2d 23, 26-27 (Mo.App.E.D.1993); State v. Wings, 867 S.W.2d 607, 609 (Mo.App.E.D.1993); State v. Simmons, 865 S.W.2d 893, 894 (Mo.App.E.D.1993). This point is without merit for this reason alone.

Even without the application of § 494.480.4, the record does not disclose reversible error concerning venireperson Neely. "In ruling on a challenge for cause, the trial court has wide discretion in evaluating the qualifications of venirepersons and its ruling will not be disturbed in the absence of a clear abuse of discretion." State v. Murphy, 739 S.W.2d 565, 569 (Mo.App.E.D.1987). The record in the instant case does not reveal an abuse of discretion which would require reversal. This point is denied.

In his second point, Appellant contends that the trial court erred in overruling his motion to suppress the clerk's pretrial identification of him. He argues that the identification procedures employed were impermissibly suggestive and created a substantial likelihood of irreparable misidentification.

A defendant has a due process right to exclude identification testimony which results from procedures that are unduly suggestive and conducive to an irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967); State v. Hoopingarner, 845 S.W.2d 89, 93 (Mo.App.E.D.1993). In determining the admissibility of identification testimony which is alleged to have resulted from unduly suggestive pretrial identification procedures, courts apply a two-prong test: (1) whether the pretrial identification procedure was in fact unduly suggestive; and if so, (2) what impact the suggestive procedures had on the reliability of the witness' identification. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990); State v. Hoopingarner, 845 S.W.2d at 93. Reliability, rather than suggestiveness, is the linchpin in determining the admissibility of identification testimony. State v. Higgins, 592 S.W.2d 151, 160 (Mo. banc 1979). In challenging the admissibility of identification testimony, the identification must have been suggestive, however, before there is a review for reliability. State v. Vinson, 800 S.W.2d at 446.

Appellant argues that the clerk's pretrial identification of him was the result of procedures which were unduly suggestive. His argument in this regard is directed at the clerk's two pretrial identifications of him. First, he attacks the clerk's selection of his picture from a photographic lineup three weeks after the robbery. At that time, an officer handed her a book of photographs and, rather than having her review it from the beginning, asked that she begin reviewing it at a point in the book selected by him. After she looked at four or five pages containing six photographs each, she identified Appellant's picture as the person who committed the robbery, saying "this was the guy." The officer then told her that Appellant was in custody, that he had been picked up for pulling a knife on a woman at a Dillon's store, and that he had been convicted for a convenience store robbery in Arizona. Appellant contends that this procedure was so unduly suggestive as to taint the clerk's later in-court identifications of him.

Similar contentions, however, have been unavailing. In State v. Higgins, 592 S.W.2d at 159, an identification of the defendant from a set of five pictures with a later statement from the officer that he was the suspect they had in mind was held not to be impermissibly suggestive so as to create a substantial likelihood of an irreparable misidentification at trial. In State v. Hornbuckle, 769 S.W.2d 89, 91-92 (Mo. banc 1989), the victim of a robbery selected the defendant's picture from a photographic lineup consisting of thirty pictures after being told that the officers believed they had a suspect in the case. The court held that the identification was not impermissibly suggestive as a matter of law. Id. at 94. In State v. Garrett, 825 S.W.2d 954, 958 (Mo.App.E.D.1992), the court denied a similar claim where the victim of a robbery selected the defendant's picture from a group of six after being told that the police wanted to see if she could identify a suspect they had arrested. A photographic lineup of six pictures with the request to the witnesses to "see if they could identify the robbers" was insufficient to exclude the identification in State v. Morant, 758 S.W.2d 110, 117 (Mo.App.E.D.1988).

Appellant also contends that the clerk's identification of him at the preliminary hearing was the result of suggestive procedures. He points not only to the effect of the photographic lineup but also to the procedures which occurred at the preliminary where the clerk was asked if she saw the offender in the courtroom. There were apparently a number of people present and Appellant was seated on the back row. The clerk was permitted to walk around the room because she couldn't see everyone. After doing so, she said, "it's the guy in the back," and the judge said, "are you saying that it's the gentleman in the white shirt," to which she answered in the affirmative. Certainly the identification procedure at the preliminary was not unduly suggestive because of the judge's single statement which was obviously made to provide a clear record.

Because the pretrial identification procedures in the instant case were not unduly suggestive so as to require exclusion of the identification testimony, any contention that the reliability of the identification was affected goes...