State v. Hill

839 S.W.2d 605, 1992 Mo. App. LEXIS 1332, 1992 WL 188844
CourtMissouri Court of Appeals
DecidedAugust 11, 1992
DocketNos. WD 43312, WD 45125
StatusPublished
Cited by4 cases

This text of 839 S.W.2d 605 (State v. Hill) 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. Hill, 839 S.W.2d 605, 1992 Mo. App. LEXIS 1332, 1992 WL 188844 (Mo. Ct. App. 1992).

Opinion

TURNAGE, Presiding Judge.

Cecil L. Hill, Jr. was found guilty by a jury of Count I, robbery in the first degree § 569.030, RSMo 19861; Count II, armed criminal action § 571.015; Count V, sodomy § 566.060; Count VI, armed criminal action; and Count VII, attempted forcible rape §§ 564.011 & 566.030; and Count VIII, armed criminal action.2 The court sentenced Hill as a prior offender on Counts I, II, VI, VIII and as a persistent sexual offender on Counts V and VII and assessed punishment at life imprisonment on Count I, ten years on Count II, 30 years without parole on Count V, ten years on Count VI, 30 years without parole on count VII, and ten years on Count VIII. The court ordered the sentences on Counts V and VII to run consecutively to Count I, and all others to run concurrently. A motion pursuant to Rule 29.15 was filed and denied after an evidentiary hearing. On appeal Hill contends error in admitting evidence from an illegal arrest, in admitting evidence from suggestive pre-trial identification procedures, in denial of a motion to permit expert testimony concerning mis-identification, in denying his rule 29.15 motion for relief as to ineffective assistance of counsel, and in sentencing him as a persistent sexual offender under § 558.018. Judgment of conviction on all Counts and sentence on all Counts but Counts V and VII affirmed. The sentence on Count V for sodomy and Count VII for attempted forcible rape is vacated and the cause is remanded for further findings on those two counts.

On August 18, 1989, around 10:00 p.m. a masked gunman robbed the Oseo store at 39th and Main in Kansas City, Missouri. There were five employees straightening stock in the store, and the assistant manager was in his office “balancing” the safe. The gunman, wearing a dustmask, dark glasses, a baseball cap, and surgical gloves carried a small automatic pistol in his right hand. He herded the employees into the restroom and ordered them to remove their clothing. The gunman then sought out the assistant manager, placed a gun to his head, and ordered him to open the safe. The gunman’s mask slipped while the assistant manager was opening the safe, exposing his face. This gave the assistant manager time to observe the robber. The mask was later found in aisle four of the store. The gunman removed $1,500 to $2,000 from the safe and directed the assistant manager to remove his clothing and join the other employees in the bathroom. He then taped the door shut with all the employees inside the bathroom. He returned a few moments later and ordered a female employee to come with him as his hostage. He placed a gun to her head and ordered her to precede him up the stairs to the manager’s office. At the top of the stairs, he sodomized and attempted to rape her. He then ordered her to count to 200, and then to release those employees still in the bathroom. She began counting as he left the store. Police arrived at about 11:00 p.m. and interviewed the employees and the assistant manager’s wife, who had seen the gunman leave as she waited in the parking lot. On August 23 or 24, 1989, a detective received a call on the TIPS hotline implicating Hill in the incident. The police compiled a photo spread using a photo of Hill on file with the FBI, and five other individuals.

The detective showed this photo to the female sexual assault victim, who indicated that Hill looked “most like” her attacker.

[607]*607The detective then showed the same photo spread to the assistant manager, who positively identified Hill as the robber. After selecting Hill, the police informed the assistant manager that the other employee had chosen the same photo.

Thereafter, on August 26, 1989, at about 9:15 p.m., four police officers arrested Hill at his home with guns drawn and without a warrant. Hill was taken to the police station and placed in a live lineup with four other men. The sexual assault victim and another employee were unable to positively identify Hill as the perpetrator.

The next day, the police conducted a second lineup with Hill and three other individuals. The assistant manager and two employees identified Hill as the robber.

Hill first contends that the trial court erred in admitting evidence of the positive identifications in the second live lineup. He contends that his presence at the second live lineup, and the ensuing positive identifications, were the direct result of his illegal arrest and therefore the trial court should have suppressed this evidence under the exclusionary rule announced in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

In State v. Fitzgerald, 781 S.W.2d 174, 183[4] (Mo.App.1989), the court held that even an illegal arrest does not render inadmissible identification testimony arising from a subsequent lineup. “The defendant’s presence cannot be assailed as the fruit of an illegal arrest.” Id., quoting State v. Taylor, 630 S.W.2d 95, 96[4] (Mo.App.1981).

Hill also contends the second lineup was suggestive because of the difference in his appearance and that of the other persons in it. The totality of the circumstances determines the admissibility of identification evidence. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). The record shows that the police made a reasonable effort to find similar-looking individuals for the lineup. The lineup is not a casting call requiring identical suspects. State v. Little, 674 S.W.2d 541, 545[9] (Mo. banc 1984). The employees had an opportunity to view the suspect during the robbery, heard his voice, observed his build and two saw his face after the mask slipped. This supports a finding that the identification was reliable. Since reliability, and not suggestiveness, is the linchpin securing due process rights, the trial court’s determination to admit this evidence was not error. State v. Story, 646 S.W.2d 68, 71[1, 2] (Mo. banc 1983).

Hill also contends that the trial court erred in refusing to permit an expert witness to testify concerning the unreliability of eyewitness identification. In State v. Whitmill, 780 S.W.2d 45, 47[1] (Mo. banc 1989), the court held that the trial court has discretion to exclude such testimony because it may improperly invade the province of the jury in determining witness credibility. Hill cross-examined the witnesses and had adequate opportunity during cross-examination and during closing argument to apprise the jury of his arguments concerning eyewitness identification. There was no abuse of discretion in refusing this evidence.

Hill next contends that the motion court erred in denying his Rule 29.15 motion alleging ineffective assistance of counsel. Hill contends that he is left-handed, while the robber was apparently right-handed since the employees observed him holding the pistol in his right hand. Hill asserts that his trial counsel’s failure to adequately bring this difference to the attention of the jury during closing argument denied him an effective defense.

Hill’s argument fails for two reasons.

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Cite This Page — Counsel Stack

Bluebook (online)
839 S.W.2d 605, 1992 Mo. App. LEXIS 1332, 1992 WL 188844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hill-moctapp-1992.