The HONORABLE CHARLES A. SHAW, United States D istrict Judge for the 1 Eastern District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3305

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Johntae R. King, * * Defendant - Appellant. *

___________ Submitted: February 10, 1998 Filed: July 2, 1998

___________ Before McMILLIAN, WOLLMAN, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge. Johntae King appeals his convictions for motor vehicle theft and use of a firearm during a crime of violence in violation of 18 U.S.C. §§ 2219 and 924(c). He argues the di strict court erred by admitting into evidence the victim’s identification of Kin g

1 approxim ately one hour after her car was stolen. Concluding the identificatio n procedures were not impermissibly suggestive, we affirm.-2-

O n the morning of May 12, 1996, Shirley Ann Taylor drove her son’s car from her St. Louis home at 1400 Walton to a restaurant several blocks away. En route, a brown Cadillac with tinted windows passed her car, and its occupants turned and looked at Taylor, making her nervous. She stayed behind the Cadillac, which went straigh t when she turned into the restaurant. As Taylor drove home, she noticed a young man sitting by himself on the steps of the residence at 1314 Walton.
When Taylor arrived at the front of her home, the Cadillac pulled alongside , blocking t he driver side door, and the driver asked, “Where’s Charlie? Does he liv e over there?” Taylor refused to say where Charlie lived but agreed to call him. Th e Cadillac pulled in front of Taylor’s car, and she got out. As she reached back for her purse, she saw the man who had been sitting on the steps down the street runnin g towards her. He came up to her from behind -- so close that Taylor “could have kissed him” - - put a gun in her side, and demanded her car keys. He fired the gun toward s Tayl or’s foot, shoved her to the ground, grabbed the keys, and drove away in her car, followed by the Cadillac. Tay lor called 911, and the police responded. She described her assailant as a young, medium built, dark-skinned African-American wearing a blue-hooded sweatshirt and carrying a nine millimeter ha ndgun. Detective Thomas Rund showed Taylor thirty to sixty photos. She could not ma ke a positive identification. Meanwhile, other police officers responded to a call that a car was being stripped at 231 3-A Indiana in St. Louis. Whe n they drove up, three persons near the car fled into a nearby apartment. Afte r calling for backup, the officer s went into the apartment, where they found four persons pretending to be asleep. The of ficers identified three of them as the same persons who had been near the car when the police arrived. As he was leaving Taylor’s home to search the area , Officer Rund heard over his scanner that a vehicle simil ar to Taylor’s had been found at 2313-A Indiana. Advising Taylor her car may have been recovered, Rund drove her to the scene. Rund and-3-

Tay lor arrived at 2313-A Indiana about forty minutes after the car theft. Taylo r immediately identified the Cadillac and her son’s car. She stayed in the police car while Rundtalked to the other officers. Rund returned and told Taylor the police would be bringing down some persons caught with the car to see if she could identify them

. Taylor st ayed in Rund’s car, hidden by its tinted windows, while uniformed polic e officers lined up four handcuffed suspects t hirty-five to forty-five feet from the car. No suspect stepped forward, said anything, or turne d to present a profile. Taylor identified King as th e gunman and two of the others as the driver and front seat passenger in the Cadillac. One year later, Taylor agai n unequivocally identified King at trial. As Taylor explained, “the key to me identifying him directly [was] because I saw him before he approach ed me on Walton, [at] 1314. He was the one they left behind to come u p behind me” King argues that Taylor’ s identification testimony was inadmissible because her identificat ionof King at 2313-A Indiana shortly after the car theft was tainted by a n uncons titutionally suggestive line-up and identification procedure. A crime victim’ s iden tificationof the defendant is admissible unless it is based upon a pretria l
co nfrontationbetween the witness and the suspect that is both “impermissibl y suggestive” and

unreliable. See Graham v. Solem , 728 F.2d 1533, 1541 (8th Cir. 1984) (en b anc), applying Manson v. Brathwaite , 432 U.S. 98, 110-16 (1977). A n identification is unreliable if its circumstances create “a very substantial likelihood of irr eparable misidentification.” Brodnicki v. City of Omaha , 75 F.3d 1261, 1265 (8t h Cir.), cert. denied , 117 S. Ct. 179 (1996). King argues it was impermissibly suggestive to bring Ms. Taylor to the scen e where her son’s car was found being stripped, and to ask if she c ould identify any of the people who ran from that scene as the persons who robbed her of the car one hou r earlier. We disagree. Police officers need not limit themselves to station house line-ups when an opportunity for a quick, on-the-scene identification arises. Such identifications are essential to free innocent suspects and to inform the police if further-4-

investigation is necessary. See United States v. Watson , 76 F.3d 4, 6-7 (1st Cir.), cert. denied , 517 U.S. 1239 (1996). “[A]bsent special elements of unfairness, pro mpt on-thescene confrontations do not entail due process violations.” Russell v. United States , 408 F.2d 1280, 1284 (D.C. Cir. 1969), cert. denied , 395 U.S. 928 (1969), followed in United S tates v. Washington , 447 F.2d 308, 311-12 (D.C. Cir. 1970). Necessar y incidents of on-the-scene identifications, such as the suspects being handcuffed and in police custody, do not render the identification procedure impermissibly suggestive

. See United States v. Bautista , 23 F.3d 726, 730 (2nd Cir.), cert. denied , 513 U.S. 862 (1994). Whether such factors cast doubt on the accuracy of a positive identification is an issue for the jury. See United States v. Johnson , 540 F.2d 954, 960 (8th Cir.), cert. denied , 4 29 U.S. 1025 (1976). We conclude that Taylor’s on-the-scene identification of three of the four suspects was not the product of an impermissibly suggestiv e id entification procedure. Therefore, the district court properly admitted he r identification testimony at trial. King also raised a sufficiency of the evidence issue but conceded at oral argument that there was sufficient evidence to convict him if Ms. Taylor’s i dentification testimony was properly admitted. Accordingly, the judgment of the district court is affirmed. A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.