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663 S.W.2d 776

State v. Thrasher

Missouri Court of Appeals

Decided December 13, 1983

Missouri Court of Appeals · decided 1983-12-13

Cited by 3 later decisions — most recently September 1988

2 federal appellate · 1 state decisions

Relies on State v. Kirk · State v. Belk

Good law ✅— No negative treatment on recordhow we know

Decided 1983-12-13

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CLEMENS, Senior Judge.

¶1Defendant 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.

¶2On 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.

¶3For 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.

¶4We 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).

¶5The challenge to the lineup identification is refuted by State v. Kirk, 636 S.W.2d 952 [7] (Mo.1982) holding:

“A pretrial lineup will not be deemed impermissibly suggestive where any suggestiveness was due to defendant’s own *777contumacy and personal refusal to behave unobtrusively.”

¶6Affirmed.

KAROHL, P.J., and REINHARD and CRANDALL, JJ., concur.
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