State v. Goff

516 S.W.2d 818, 1974 Mo. App. LEXIS 1651
CourtMissouri Court of Appeals
DecidedDecember 2, 1974
DocketNo. KCD 26751
StatusPublished
Cited by8 cases

This text of 516 S.W.2d 818 (State v. Goff) 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. Goff, 516 S.W.2d 818, 1974 Mo. App. LEXIS 1651 (Mo. Ct. App. 1974).

Opinion

DIXON, Chief Judge.

Kenneth E. Goff was convicted by a jury of second degree burglary and stealing. The jury being unable to agree on a sentence, the court sentenced the defendant to two consecutive four-year terms. The defendant appeals, urging error in the trial court’s overruling a motion to suppress identification testimony alleged to be suggestive by reason of the demonstration of photographs, error in overruling the judgment for acquittal because the evidence was insufficient, and error in the State’s argument. We affirm.

On the afternoon of August 6, 1972, Marina Kauffman (age 15), was in her front yard across the street from the Rea-gon home. She saw the same 1961 or 1962 light blue Ford Galaxie drive slowly by her home five to six times. She took special note of the car because 1) it was traveling very slowly (less than five miles per hour), 2) it was old and noisy, and 3) one of her friends had a similar vehicle. The Ford’s visibility and repetitive passage was enhanced by the very light traffic (fewer than twenty cars), on the street during the period. In addition to being loud and light blue, she described the old Ford as having: a great deal of rust on the front fender; a white license plate; and an “infant seat” in the back seat. The car had four occupants, a man and a woman in the front seat and two small children in the back seat. The younger of the children was sitting in the “infant seat.” At trial, Miss Kauffman described the “male” who was driving as having brown or black hair and a beard. During several of the passes, Marina noted the man was wearing a small brown straw hat. When he was not wearing the hat, it was seen on the dashboard of the car.

That evening between 10:00 and 10:30, Miss Kauffman was standing in her driveway talking with some children when she saw a man she recognized as the driver of the car in John Reagon’s yard directly across the street. He was not wearing the hat.

At about the same time, another of Rea-gon’s neighbors, Michael Gerant, saw an unidentified individual running from the back of the victim’s lot. Apparently he was carrying something. Gerant watched the person make at least three similar trips over “quite some time.” On one of these trips, the man was carrying something that looked like a television set. Gerant then asked a third neighbor to call the police. While watching the person carrying “items” to the ditch, Gerant saw a light blue 1961 Ford four-door sedan park near the ditch. Two men then began to load items into the car. Mr. Gerant then drove his own car along the road past the parked Ford, proceeded to a store nearby, turned around and drove past the car again. As he drove by, he noticed that the license [820]*820plate had a Johnson County, Kansas, designation. He noted the full license number which he had a neighbor write down immediately and which the neighbor later gave the police. The Ford then drove away.

Within minutes, the police arrived. Their investigation, both at that time and after Mr. Reagon’s return, revealed that: 1) Reagon’s home had been burglarized; 2) someone had apparently left a small brown straw hat in the Reagon garage; 3) the license number given them by Gerant was that of a plate registered to the grandmother of defendant’s wife; 4) the defendant and his wife were in possession of the car and license plate for a period of two weeks prior to the burglary; and 5) the defendant had purchased the car sometime near the night of the burglary. During the investigation, Miss Kauffman told the police that she could identify the man she saw driving the car and in Reagon’s front yard. After telling them she could recognize the man, the police, over a period of several days, showed her small groups of photographs. On the third such showing, she examined two photographs. One was the photo of a man whom she identified as the driver of the car and the other was of a woman whom she recognized to be the adult passenger. During her testimony at the hearing on the motion to suppress, Marina indicated that the police officer displaying the pictures to her made no comment beyond asking if “these were the people I had seen.”

On the first ground urged, error in overruling the motion to suppress the witness Kauffman’s identifying testimony, the parties are in agreement with respect to the applicable law'. Defendant concedes that State v. Mentor, 433 S.W.2d 816 (Mo.1968) and State v. Parker, 458 S.W.2d 241 (Mo.1970) are the controlling authority in Missouri, citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The defendant points to language in that opinion relating to the dangers of misidentification through the use of photographs. The holding of Simmons, following United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and the companion case, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), is that a determination of the tainting of a witness’ testimony so that it must be excluded requires a consideration of all of the facts giving due regard to the totality of the surrounding circumstances. Parker identifies three factors for consideration in such a review: (1) the presence of an independent basis of identification; (2) a positive courtroom identification; and (3) the absence of any suggestive influence by others. The defendant argues only the issue of suggestion, pitching that argument on the alleged suggestibility of the teenage witness and the suggestive manner of photographic identification because only a single photograph was displayed at the time of the actual photographic identification of the defendant by the teenage witness. Some attempt is also made to argue that the teenage witness, Kauffman, did not have an independent basis of identification because she did not notice the license number of the vehicle and because, as defendant argues, the man she saw in the car had his head turned away from her.

Dealing first with the issue of the independent basis for identification of the teenage witness, it seems apparent that her testimony, that she observed the individual she identified on five or six occasions during a six-hour period on a residential street with less than twenty cars passing during that period, constitutes an independent basis for identification. That there was reason for her to take note of the vehicle and its two occupants is manifest from the fact that the car was unusually loud in its operation and was driven at a very slow rate of speed. Piquing the teenager’s curiosity with respect to the vehicle was the fact that it was a vehicle similar to one of her friends from which it could certainly be inferred that she would have looked at the vehicle for the purpose of as[821]*821certaining the identity of the driver. There thus seems to be no basis for the attenuated argument of the defendant that the teenage witness had no independent basis for identification. No argument is made that the teenage witness did not make a positive and unequivocal courtroom identification in support of her testimony.

On the issue of the suggestibility of the witness and the suggestive nature of the photographic identification, certain facts are overlooked in the defendant’s argument.

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Bluebook (online)
516 S.W.2d 818, 1974 Mo. App. LEXIS 1651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-goff-moctapp-1974.