Opinion
No. 46535.
December 13, 1983. Motion for Rehearing and/or Transfer to Supreme Court Denied January 17, 1984. Application to Transfer Denied February 15, 1984.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, DANIEL T. TILLMAN, J.
Debra Buie Arnold, Asst. Public Defender, St. Louis, for appellant.
Kristie Lynne Green, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant David Thrasher pled not guilty to kidnapping and raping the 21-year-old victim. A jury found otherwise and the trial court sentenced him as a previous felon to consecutive prison terms of ten and twenty-five years.
On appeal defendant does not challenge the quantum of evidence. By his only point he claims error in admitting testimony of the victim's pre-trial lineup identification. This on the ground the protesting defendant was then forcibly held upright by two policemen.
For two reasons the state contends this was not error. First because the victim had previously without defense objection in an earlier lineup photo identified defendant as her assailant. Second because at the now challenged pre-trial lineup defendant violently refused to be photographed and had to be physically held upright to face the camera. The record supports both the state's contentions.
We note the victim had an ample opportunity to view defendant; he had restrained her at knife-point for over an hour before the rape. No other crime gives the victim a better basis for identification. State v. Belk, 632 S.W.2d 103 [2, 3] (Mo. App. 1982).
The challenge to the lineup identification is refuted by State v. Kirk, 636 S.W.2d 952 (Mo. 1982) holding:
"A pretrial lineup will not be deemed impermissibly suggestive where any suggestiveness was due to defendant's own contumacy and personal refusal to behave unobtrusively."
Affirmed.
KAROHL, P.J., and REINHARD and CRANDALL, JJ., concur.