State v. Williams

755 S.W.2d 355, 1988 Mo. App. LEXIS 837, 1988 WL 59562
Missouri Court of Appeals·Decided June 14, 1988·No. No. 50993·Published·Cited by 1 cases

Opinion

KAROHL, Presiding Judge.

This is a direct appeal after a jury trial and conviction on charges of robbery second and burglary first degree. Defendant was charged and tried as a persistent offender. He was sentenced to serve concurrent sentences of twenty years for each charge. These terms were made consecutive to a previously imposed sentence entered in an unrelated case.

The trial occurred prior to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The original issue claimed error in admission of in-court identification testimony because it was based on overly and impermissibly suggestive procedures of the state and unduly suggestive out-of-court identification. The appeal was interrupted by a supplemental claim based upon the holding in Batson. We remanded for a hearing. This court now has the benefit of the Batson hearing and will consider the original issue and the Bat-son issue.

During the daylight hours of September 27, 1983, Mrs. Cecil Taryle was resting in the second-floor bedroom of her home, when she suddenly saw a black male in the doorway. He went through her purse and other items in the room. After six to eight minutes he placed her in a closet. From that location for another seven to eight minutes she saw him rummaging through other items in the bedroom. He took her husband’s ring and coins having a value of approximately $100. She was released from the closet by her husband.

Mrs. Taryle described the robber to the police as a black male, twenty eight to thirty years of age, six feet tall, 185 to 200 lbs., of medium build with a short Afro, wearing glasses, having a neat appearance, articulate, and wearing a tan V-Neck top, brown or blue pants, and a gold chain around his neck.

Mr. Taryle had previously observed a black male wearing clothing that matched the description furnished by his wife. His observation occurred outside of the home for a period of three to five minutes.

On the evening of September 30, 1983, Mr. & Mrs. Taryle attended a live line-up at a police station in the City of St. Louis. The Taryles did not identify defendant, who participated in this line-up with three other black males.

During the first trial, in April 1985, Mrs. Taryle testified and identified defendant. A mistrial was declared when the jury was unable to reach a verdict. During Mrs. Taryle’s testimony in the present trial, she again identified defendant. Her testimony was permitted after the court rejected a pretrial motion to suppress the identification and over trial objection that her identification was tainted by overly and imper-missibly suggestive procedures, including suggestive out-of-court identification.

On October 1, 1983, George Haftarczyk, an officer of the University City Police Department transported defendant from the holdover in the City of St. Louis to University City. Defendant was wanted in University City on a fugitive warrant and a number of other charges. The officer also conveyed a sealed manila envelope which he believed contained personal property belonging to defendant. At the University City Police Station he inventoried the property including defendant’s wallet in which he found a pawn ticket. Ultimately, the pawn ticket was traced to a pawn shop and connected to Mr. Taryle’s ring, the ring taken by the robber on January 27, 1983.

An employee of the pawn shop testified. He referred to a “bonded pawn book.” When a person pawned personal property at his shop the item was noted and the name, address and social security number of the individual was written on the pawn ticket. The company also photographs the customer with a Regiscope camera. The photo includes a copy of the pawn ticket. This photographic procedure complies with [357]*357the requirements of a city ordinance. The witness identified the pawn ticket taken from defendant’s wallet as one bearing his handwriting. The pawn ticket noted “a gent’s gold wedding band for $15, 1602 Page Industrial Court, 303-569-682.” The latter number is a social security number. The witness had no independent recollection of the transaction and was not asked to identify defendant. The photograph of the transaction was not admitted as an exhibit.

During trial Mr. Taryle identified the ring seized by a police officer from the pawn shop as his ring, the ring taken by the robber.

Between the line-up on September 30, 1983 and the original identification of defendant by Mrs. Taryle on April 30, 1985, a number of events occurred pertaining to the identification. Defendant’s first claim of error is that these events, together with an unduly suggestive out-of-court identification and the failure of identification at the live line-up, made the in-court identification testimony unreliable. As a result, it is argued, the court erred in failing to sustain a timely objection to the identification testimony.

Between the time of the line-up in September, 1983 and the original trial in April of 1985, the police or the prosecutor told Mrs. Taryle that: (1) Johnnie Williams pawned her husband’s ring; (2) Johnnie Williams burglarized Mrs. Taryle’s brother and sister-in-law’s home; (3) Johnnie Williams was on parole and had been staying at a half-way house; (4) Johnnie Williams had walked into her neighbor’s house; (5) the police were fairly certain that Johnnie Williams was the man who had robbed her; (6) Johnnie Williams had been involved in other incidents of “that kind” in her neighborhood; and, (7) when Johnnie Williams was locked up that kind of robbery had stopped in her neighborhood.

The determination of the admissibility of pretrial and in-court identification requires a two-step analysis. The court should first consider whether police procedures were impermissibly suggestive. If so, the second step tests the reliability of the subsequent in-court identification. State v. Robinson, 641 S.W.2d 423, 427 (Mo. banc 1982); State v. Howard, 699 S.W.2d 58, 59 (Mo.App.1985). In regard to the existence of an independent basis of identification, the level of certainty of the witness and the length of time between the crime and the identification are to be considered. State v. Cole, 662 S.W.2d 297, 302-03 (Mo.App.1983). However, in order to prevail and suppress identification testimony, defendant bears the burden of proving that the testimony is unreliable. See, State v. Toney, 680 S.W.2d 268, 276 (Mo.App.1984).

On September 27,1983, Mrs. Taryle viewed the robber in her home for no less than fifteen minutes. Three days later she did not identify defendant in a line-up conducted under the usual circumstances for that procedure. In April, 1985, while in the courthouse for the original trial on the present charges she claims she identified defendant by selecting him as one of the men in the photograph taken of the line-up. At the time of the photograph identification she was aware of all facts previously related to her by the police or the prosecuting attorney. She denied that when she first made the identification, anyone had told her the defendant was in the photograph. She explained that at that time she was “not quite so frightened” as at the time of the line-up.

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State v. Williams, 755 S.W.2d 355, 1988 Mo. App. LEXIS 837, 1988 WL 59562 (Mo. Ct. App. 1988).

755 S.W.2d 355 (State v. Williams) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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