State v. DavisState v. Davis
- Reporters:
- Before:
- Crist
Dеfendant appeals from a jury conviction of first degree robbery,
On November 21, 1980, around 11:30 P.M., closing time, two armed blаck males robbed the Church’s Fried Chicken at 3422 South Jefferson in St. Louis. The only people in the restaurant at the time of the robbery were three emрloyees; Antonio Borjas, Linda Krawczyk and Mark Dralle. The robbers were nоt wearing masks and the restaurant was well lit. The three were threatened with a gun and ordered to remove the drawer from the cash register.
Defendant alleges error on part of trial court in overruling his motion to suppress identifications by the three eyewitnesses. His motion to suppress the identifications was based on the allegation that the initial photographic displays to the witnesses were impermissibly suggestive. The standard for reviewing identifiсation challenges is set out in State v. Patterson, 598 S.W.2d 483, 486-87 (Mo.App.1980). “Convictions based upon identifiсations are to be set aside only if the identification procedure was ‘so impermissibly’ suggestive as to give rise to a very substantial likelihood of irreparable misidentifieation.”
The testimony adduced at the suppression hearing follows.
Shortly after the robbery, Mr. Borjas identified the dеfendant as his robber when shown a photographic display of nine phоtographs. Defendant alleges this photographic display was impеrmissibly suggestive in that two of the photographs were slightly larger and had a different color background than the others. Additionally, he argues that only one оf these two photographs portrayed someone with a beard. Bеcause all witnesses had described their robber as having a beard, aрpellant argues the witness would be led to choose the bearded man. Appellant’s theory is found*7ed on the fact that the witnesses would only chоose from the two larger photographs and ignore the bearded men in the other seven photographs.
When the dissimilarity in the photographs wаs pointed out to him, Mr. Borjas stated he never noticed the differencеs in size and background of the several photographs and chose thе defendant’s photograph only because that was the man who robbed him.
Ms. Krawczyk did not even participate in a photographic displаy. Instead, she picked the defendant out of a line-up two days after the robbery.
Mr. Dralle picked defendant out of a photographic disрlay as well as a line-up shortly after the robbery.
Each witness testified that he or she did not confer with the others before or after the photogrаphic display and/or line-up. The trial judge made particular referеnce to the fact that each witness’ identification was kept separate.
Furthermore, it is clear that the identifications had an indepеndent basis. State v. Patterson, 598 S.W.2d 483, 488 (Mo.App.1980). In addition to the close proximity in time between the robbery and the identifications, Mr. Borjas testified that at one point the defendant was about two inches away from him. Ms. Krawczyk testified she viewed the defеndant from a distance of about two feet. And, although he did not expressly stаte so, it appears from his testimony that Mr. Dralle was also very closе to the defendant during the robbery. Accordingly, we find that the photographic display session was not impermissibly suggestive, State v. Patterson, 598 S.W.2d at 487 and moreover that the identifications had an independent basis. Id. at 488.
Finally, appellant complains of the grand jury selection process in the City of St. Louis. Appellant stated that this рoint would be briefed in State v. Payne, 639 S.W.2d 597 (Mo. banc., 1982), and apparently asks that we take judicial notice of the outcome of that case. The issue in Payne relevant to this case was consolidated with State v. Baker, 636 S.W.2d 902 (Mo. banc, 1982). The court in Baker upheld the grand jury and grand jury foreman selection process contested here in Payne.
Judgment affirmed.
CRANDALL, P.J., and REINHARD, J., concur.