State v. Caldwell

785 S.W.2d 98, 1990 Mo. App. LEXIS 347, 1990 WL 20378
CourtMissouri Court of Appeals
DecidedMarch 5, 1990
DocketNo. 16400
StatusPublished
Cited by2 cases

This text of 785 S.W.2d 98 (State v. Caldwell) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Caldwell, 785 S.W.2d 98, 1990 Mo. App. LEXIS 347, 1990 WL 20378 (Mo. Ct. App. 1990).

Opinion

PARRISH, Judge.

Michael Caldwell (hereafter referred to as “defendant”) appeals from a judgment of the Circuit Court of Dunklin County convicting him of attempted burglary in the second degree. §§ 569.170 and 564.-011.1 Defendant was charged as a prior offender. The trial court found him to be a prior offender. § 558.016.2. He was sentenced to imprisonment for a term of four years. This court affirms.

Defendant raises two points by this appeal. He asserts that the trial court erred in failing to suppress an out-of-court identification of him made by the complaining witness. Defendant argues that the identification was made under circumstances which were “inherently unreliable.” Defendant also asserts that the trial court erred in permitting a defense witness to answer, over the objection of defendant, a question asking where the witness lived. Defendant claims that the witness resided at a location where he had been placed by an order of a juvenile court. Defendant asserts that § 211.271 prohibited the admission of that testimony.2

[100]*100The facts established by the evidence, viewed in the light most favorable to the verdict, are as follows.

On the morning of December 14, 1988, Deana Lynne Dronberger, age 20, was living at 105 S. Walnut in Kennett, Missouri. The building in which Deana lived was a duplex. Deana lived alone in one of the units. The other unit was occupied by Ruby Westerland, age 92.

Deana had gotten out of bed at approximately 7:30 a.m. After getting out of bed, Deana heard a clicking sound coming from outside her living quarters. The sound came from behind the building. At first, she thought it was her neighbor taking out trash and paid little attention. When the clicking sound continued, Deana investigated. Looking through a window in her kitchen door, Deana saw two figures near a door leading onto her back porch. Deana went closer to the window where she had a better view. She saw two boys attempting to break into the building.

Deana then walked back across her kitchen and proceeded to go to the living quarters occupied by her neighbor, Ruby. Deana went there intending to use Ruby’s telephone. Deana had no telephone.

Deana entered a foyer which connects the two living quarters. She knocked on Ruby’s door. However, when Ruby did not come to the door promptly, Deana returned to her living quarters and went back to the kitchen. She again looked out the window. She observed the two boys still there “prying and jerking on the door.” At that time Deana was about ten feet from the boys. Deana moved the curtain at the window. The boys stopped what they were doing briefly, then resumed jerking on the door attempting to gain entry.

Deana then went back to the foyer to Ruby’s door. Ruby was there. She permitted Deana to use her telephone to call the police.

Deana called the police at 7:37 a.m. She reported that two men were trying to break into her house and gave her address. She then returned to her kitchen. By that time the two boys were gone.

Two police officers arrived at Deana’s residence at 7:39 a.m. Deana described what had occurred and provided descriptions of the two boys. The police officers examined the back door to Deana’s living quarters. They observed scratches on the door facing. The police officers left and began searching the area for two people fitting the descriptions that Deana had given to them.

At approximately 8:20 a.m., Sergeant Tony Smith observed two people who fit the descriptions Deana had provided riding bicycles. They were at a location about eight blocks from Deana’s residence. Sergeant Smith took the two of them to the Kennett Police Station. Deana was asked to come there to look at someone. She obseryed the two people, one of whom was defendant, by looking through a one-way mirror into a room in which defendant and the other suspect were standing. She identified defendant as one of the persons she had seen trying to break into her living quarters. Deana could not identify the other suspect.

Defendant complains that the circumstances surrounding his identification were inherently unreliable. He claims that Deana was in a state of emotional disturbance at the time she identified him, and that this fact should have been given greater weight by the trial court in its assessment of reliability of his identification.

Defendant further complains that, at the police station, Deana was shown only the two suspects. He contends that this produced a substantial likelihood of irreparable misidentification. He claims that the procedure utilized was sufficiently suggestive to make his identification suspect. De[101]*101fendant calls attention to Deana’s testimony about what she expected to see at police headquarters. The following question was asked Deana, and the following answer given:

Q. When you went to the police station, did you go expecting to see the person at the police station who you believed you saw at your back door?
A. Yes.

Defendant’s complaint that Deana was in a state of emotional disturbance is without support. Deana testified that she was surprised to see someone at her porch door at 7:45 in the morning. She stated that she was not afraid, but that she was startled. Approximately one hour later Deana was at the Kennett Police Station identifying defendant. The record before this court shows no evidence of “emotional disturbance.”

The fact that Deana was shown only the two suspects does not, by itself, render her identification of defendant unreliable. One-on-one viewings are not necessarily improper. State v. Bynum, 680 S.W.2d 156, 158 (Mo. banc 1984); State v. Dodson, 491 S.W.2d 334, 338 (Mo. banc 1973); State v. Hamblin, 448 S.W.2d 603, 611 (Mo.1970); Simms v. State, 568 S.W.2d 801, 803 (Mo.App.1978).

Likewise, defendant’s complaint that Deana expected to see the person at the police station who she thought she had seen at her back door does not demonstrate unreliability. Lineups are not unduly suggestive because the victim anticipates the presence of the offender. State v. Stephens, 708 S.W.2d 345, 348 (Mo.App.1986); State v. Lorenze, 592 S.W.2d 523, 527 (Mo.App.1979). Identifications are not imper-missibly suggestive because a witness knows a lineup includes a suspect who the police believe the witness might identify. State v. Ealey, 727 S.W.2d 165, 167 (Mo.App.1987); State v. Holly, 697 S.W.2d 250, 252 (Mo.App.1985); State v. Overstreet, 694 S.W.2d 491, 495 (Mo.App.1985).

As emphasized by both the state and defendant, the “linchpin” in determining the admissibility of identification testimony is reliability. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Timmons
956 S.W.2d 277 (Missouri Court of Appeals, 1997)
State v. Simms
810 S.W.2d 577 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
785 S.W.2d 98, 1990 Mo. App. LEXIS 347, 1990 WL 20378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-caldwell-moctapp-1990.