522 S.W.2d 656 | Mo. Ct. App. | 1975
Defendant appeals from his conviction and sentence of five years, after jury verdict, for exhibiting a dangerous and deadly weapon in a threatening manner. Sec. 564.610 RSMo 1969, V.A.M.S.
Defendant also attacks the trial court’s refusal to suppress a pre-trial identification of defendant by the policeman. The motion makes it unclear whether it sought to suppress any identification or only an identification in the Charleston jail the day after the crime. Following an evi-dentiary hearing and denial of the motion to suppress, no objection was made to identification at trial or to references to the policeman having seen defendant in the Charleston jail. Such objections are required to preserve the alleged error for review and this case demonstrates the soundness of that rule. See State v. Caffey, 457 S.W.2d 657 (Mo.1970); State v. Triplett, 520 S.W.2d 166 (Mo.App.1975). In the absence of specific objections at trial, we are left in doubt which testimony defendant claims is inadmissible.
To the extent the claim of error is based upon the in-court identification, we find sufficient independent grounds for identification under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The in-court identification was based upon a three to five minute observance of the defendant at the scene by a trained observer. This was followed by a detailed, corroborated description of defendant sufficient to permit a police officer in another county to immediately recognize the man described when he received the information by telephone.
To the extent the attack is leveled at the admission of evidence of the jailhouse confrontation, it is unsupported by the record. The only evidence elicited by the prosecution of the policeman at trial was that he saw defendant in the Charleston jail the next day, that he was wearing the same clothes as on the night before, and that there was nothing “about his physical appearance on the 28th of July as opposed to the 27th of July.” At no time before the jury did the policeman indicate that he identified defendant on the 28th as his assailant, that he was requested to identify him or that he picked him out of a line-up. To the jury the policeman simply testified that he and another policeman went to Charleston after receiving a call that defendant had been picked up and was in jail at the Sikeston police request. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) deals with the vice of bolstering an in-court identification by reference to a line-up identification conducted illegally. The testimony here was not for that purpose and could not reasonably be concluded to have had that effect. We find no merit in defendant’s identification points.
Defendant complains that he was not afforded a speedy trial. Defendant was arrested July 28, 1972 and tried June 29, 1973. In the interim he had seven appointed counsel, six of whom he successfully requested be dismissed. Defendant was sent, at his request, to Fulton State Hospital for psychiatric examination and was there for two and one-half months. He requested and received a disqualification of the magistrate prior to preliminary hearing, a change of venue from Scott
Four of defendant’s points raise the same basic problem, whether it was sufficient to submit only that the defendant’s action was done in a threatening manner, but not submitting that the action was done in a rude and angry manner. Defendant contends all three elements must be shown and submitted to the jury. We think not. The statute provides “rude, angry or threatening manner.” We see no reason why the disjunctive “or” should be construed to mean the conjunctive “and” here.
We have reviewed carefully defendant’s remaining points and find them without merit. Discussion of those points would have no precedential value and as to them we affirm in accord with Rule 84.16(b), V.A.M.R.
Judgment affirmed.