372 S.W.3d 65
Mo. Ct. App.2012Background
- Powers was robbed of her purse in the early morning hours of June 16, 2010; Bush was detained in connection with the theft and identified by Powers.
- Officers detained Bush and used lighting to facilitate Powers’ identification, and Powers identified Bush as the thief.
- Bush moved to suppress Powers’ out-of-court identification and any in-court identification; the court denied the motion.
- A search incident to arrest recovered a pink Motorola Razr phone matching Powers’ property in Bush’s pocket.
- Bush proffered a non-MAI Telfaire eyewitness-instruction, which the court declined to give, relying on MAI-CR3d 302.01.
- Bush was convicted of felony stealing as a prior and persistent offender and sentenced to eight years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of out-of-court and in-court identification | Bush argues the identification was impermissibly suggestive. | Powers identified from her own recollection under proper procedures. | No reversible error; identification not impermissibly suggestive; Point I denied. |
| Whether the trial court erred in refusing the Telfaire eyewitness-instruction | Telfaire instruction needed to address reliability of identification. | MAI-CR3d 302.01 adequately covers reliability; Telfaire unnecessary. | No abuse; Point II denied. |
Key Cases Cited
- State v. Higgins, 592 S.W.2d 151 (Mo. banc 1979) (two-step analysis for pretrial identifications; reliability governs admissibility)
- State v. Nelson, 334 S.W.3d 189 (Mo. App. W.D. 2011) (standard of review for suppression rulings; deference to trial court credibility)
- State v. Haley, 73 S.W.3d 746 (Mo. App. W.D. 2002) (rejects non-MAI Telfaire instruction when MAI suffices)
- State v. Gilmore, 797 S.W.2d 802 (Mo. App. W.D. 1990) (cautionary eyewitness instructions modeled on Telfaire are disfavored)
- Perry v. New Hampshire, 132 S. Ct. 716 (2012) (high court notes safeguards against eyewitness misidentification; not a mandate for Telfaire)
- United States v. Tel-faire, 469 F.2d 552 (D.C. Cir. 1972) (origin of the Telfaire instruction on eyewitness reliability)