In the Missouri Court of Appeals Eastern District DIVISION THREE
JOHN BILLINGSLEY, ) No. ED110098 ) Movant/Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) Cause No. 1722-CC11498 ) STATE OF MISSOURI, ) Honorable Christopher E. McGraugh ) Respondent. ) Filed: August 16, 2022
Introduction
John Billingsley (Movant) appeals the judgment of the Circuit Court of the City of
St. Louis denying his Rule 29.151 motion for post-conviction relief without an evidentiary
hearing. Movant argues the motion court erred in denying his request for post-conviction
relief without an evidentiary hearing because he pleaded facts not refuted by the record,
entitling him to relief on his claim that his trial counsel was ineffective for unreasonably
failing to file a motion to suppress evidence of a photographic lineup. We affirm.
Background
The State charged Movant with one count of the Class A felony of child kidnapping.
At a 2017 jury trial, the State adduced the following evidence, as relevant to the issues
raised on appeal. On January 8, 2016, A.W. was walking towards her elementary school
1 All rule references are to Missouri Rules of Criminal Procedure (2018), unless otherwise indicated. when a man approached her from behind and asked for help finding a cell phone in a vacant
house. Although A.W. ignored him, the man grabbed A.W. by the wrist and dragged her
into the vacant house. A.W. looked at the defendant and saw his face when he grabbed
her. Inside the house, A.W. escaped the man’s grip and ran to her school. When reporting
her kidnapping to the police, A.W. described her kidnapper as having light caramel skin
with black and gray facial hair, and wearing a long black overcoat, a brown winter hat, and
black shoes. Although police went to the vacant house and canvassed the area, they did
not find any suspects.
On January 14, 2016, when T.M., A.W.’s mother, was picking A.W. up from
school, A.W. saw someone whom she thought might be her kidnapper leaving the same
vacant house. T.M. drove towards the man, so that he was standing within four or five feet
of the passenger seat of the vehicle, to allow A.W. to get a good look at him. A.W.
recognized the man from the incident six days earlier, saying she had no doubt. T.M. called
the police, who arrested the man later identified as Movant. After Movant’s arrest, the
local news released a story that included both a video of A.W.’s statement to news reporters
and a picture of Movant. T.M. showed A.W. this news story when it aired, and A.W.
recognized Movant from the picture in the news story.
In February 2017, Saint Louis Metropolitan police officers went to A.W.’s house
to administer a photographic lineup. The photographic lineup included a picture of Movant
and five other computer-generated photographs of men with the same physical
characteristics as Movant. The investigating officer testified he intentionally delayed
showing A.W. the lineup for over a year because A.W. had physically identified Movant
from her mother’s car on January 14, 2016, and he wanted more time to elapse before
2 presenting her with a photographic lineup. The investigating officer further testified he
had no concerns that the delay affected A.W.’s memory, and he had no knowledge if A.W.
had seen television news reports that included photographs of Movant. A blind
administrator2 presented the lineup to A.W., instructing both that A.W. should only make
an identification if she was positive and that her kidnapper might or might not be pictured.
A.W. identified Movant in the photographic lineup from his face and facial hair. The trial
court admitted the lineup into evidence without objection.
After the trial, the jury convicted Movant of one count of child kidnapping, and the
trial court sentenced him to ten years in the Missouri Department of Corrections. This
Court affirmed Movant’s conviction and sentence on appeal. State v. Billingsley, 572
S.W.3d 164 (Mo. App. E.D. 2019).
Movant prematurely filed a pro se motion for post-conviction relief under Rule
29.15. His appointed counsel untimely filed an amended motion and request for
evidentiary hearing, arguing—as relevant to the issues raised on appeal—Movant’s trial
counsel was ineffective for unreasonably failing to move to suppress or otherwise object
to A.W.’s identification of Movant. Movant further argued that the admission of this
photographic lineup evidence, conducted one year after the incident and following
substantial exposure to media coverage displaying images of Movant, resulted in prejudice
to Movant, in that, but for its admission, there was a reasonable probability the outcome of
the trial would have been different.
Appointed counsel later filed an affidavit and motion for the motion court to
consider Movant’s amended motion as timely filed. The motion court found appointed
2 A blind administrator is an officer who is not involved in the investigation of the case and did not construct the photographic lineup, and therefore does not know which individual in the lineup is the suspect.
3 counsel abandoned Movant and accepted the untimely amended motion, noting the late
filing of the amended motion was solely attributable to appointed counsel and was not the
fault of Movant. The motion court then denied Movant’s amended motion for post-
conviction relief without an evidentiary hearing, finding Movant’s trial counsel was not
ineffective for failing to move to suppress or otherwise object to the lineup because such a
motion would have been meritless. This appeal follows.
Standard of Review
Appellate review of the trial court's action on a motion filed under Rule 29.15 is
“limited to a determination of whether the findings and conclusions of the motion court are
clearly erroneous.” Rule 29.15(k). This Court will find error only if, after review of the
entire record, we have a definite and firm belief that the motion court made a mistake.
Jackson v. State, 205 S.W.3d 282, 284 (Mo. App. E.D. 2006). A movant is entitled to an
evidentiary hearing on a Rule 29.15 motion only if: “(1) the motion alleges facts, not
conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the record;
and, (3) the facts alleged must establish prejudice.” Williams v. State, 168 S.W.3d 433,
439 (Mo. banc 2005).
Discussion
In his sole point on appeal, Movant argues the motion court erred in denying his
Rule 29.15 motion without an evidentiary hearing because he pleaded facts, not
conclusions, that were not refuted by the record and entitled him to relief. Specifically, he
contends his trial counsel was ineffective for failing to file a motion to suppress the
photographic lineup because, in the lineup, Movant was the only person A.W. had already
4 identified and A.W. had also seen pictures of Movant in the media prior to the lineup; and
that, but for this error, the result of the trial would have been different. We disagree.
To obtain post-conviction relief based on ineffective assistance of counsel, a
movant must demonstrate both deficient performance by counsel and prejudice as a result
of that deficient performance. Strickland v. Washington, 466 U.S. 668
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In the Missouri Court of Appeals Eastern District DIVISION THREE
JOHN BILLINGSLEY, ) No. ED110098 ) Movant/Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) Cause No. 1722-CC11498 ) STATE OF MISSOURI, ) Honorable Christopher E. McGraugh ) Respondent. ) Filed: August 16, 2022
Introduction
John Billingsley (Movant) appeals the judgment of the Circuit Court of the City of
St. Louis denying his Rule 29.151 motion for post-conviction relief without an evidentiary
hearing. Movant argues the motion court erred in denying his request for post-conviction
relief without an evidentiary hearing because he pleaded facts not refuted by the record,
entitling him to relief on his claim that his trial counsel was ineffective for unreasonably
failing to file a motion to suppress evidence of a photographic lineup. We affirm.
Background
The State charged Movant with one count of the Class A felony of child kidnapping.
At a 2017 jury trial, the State adduced the following evidence, as relevant to the issues
raised on appeal. On January 8, 2016, A.W. was walking towards her elementary school
1 All rule references are to Missouri Rules of Criminal Procedure (2018), unless otherwise indicated. when a man approached her from behind and asked for help finding a cell phone in a vacant
house. Although A.W. ignored him, the man grabbed A.W. by the wrist and dragged her
into the vacant house. A.W. looked at the defendant and saw his face when he grabbed
her. Inside the house, A.W. escaped the man’s grip and ran to her school. When reporting
her kidnapping to the police, A.W. described her kidnapper as having light caramel skin
with black and gray facial hair, and wearing a long black overcoat, a brown winter hat, and
black shoes. Although police went to the vacant house and canvassed the area, they did
not find any suspects.
On January 14, 2016, when T.M., A.W.’s mother, was picking A.W. up from
school, A.W. saw someone whom she thought might be her kidnapper leaving the same
vacant house. T.M. drove towards the man, so that he was standing within four or five feet
of the passenger seat of the vehicle, to allow A.W. to get a good look at him. A.W.
recognized the man from the incident six days earlier, saying she had no doubt. T.M. called
the police, who arrested the man later identified as Movant. After Movant’s arrest, the
local news released a story that included both a video of A.W.’s statement to news reporters
and a picture of Movant. T.M. showed A.W. this news story when it aired, and A.W.
recognized Movant from the picture in the news story.
In February 2017, Saint Louis Metropolitan police officers went to A.W.’s house
to administer a photographic lineup. The photographic lineup included a picture of Movant
and five other computer-generated photographs of men with the same physical
characteristics as Movant. The investigating officer testified he intentionally delayed
showing A.W. the lineup for over a year because A.W. had physically identified Movant
from her mother’s car on January 14, 2016, and he wanted more time to elapse before
2 presenting her with a photographic lineup. The investigating officer further testified he
had no concerns that the delay affected A.W.’s memory, and he had no knowledge if A.W.
had seen television news reports that included photographs of Movant. A blind
administrator2 presented the lineup to A.W., instructing both that A.W. should only make
an identification if she was positive and that her kidnapper might or might not be pictured.
A.W. identified Movant in the photographic lineup from his face and facial hair. The trial
court admitted the lineup into evidence without objection.
After the trial, the jury convicted Movant of one count of child kidnapping, and the
trial court sentenced him to ten years in the Missouri Department of Corrections. This
Court affirmed Movant’s conviction and sentence on appeal. State v. Billingsley, 572
S.W.3d 164 (Mo. App. E.D. 2019).
Movant prematurely filed a pro se motion for post-conviction relief under Rule
29.15. His appointed counsel untimely filed an amended motion and request for
evidentiary hearing, arguing—as relevant to the issues raised on appeal—Movant’s trial
counsel was ineffective for unreasonably failing to move to suppress or otherwise object
to A.W.’s identification of Movant. Movant further argued that the admission of this
photographic lineup evidence, conducted one year after the incident and following
substantial exposure to media coverage displaying images of Movant, resulted in prejudice
to Movant, in that, but for its admission, there was a reasonable probability the outcome of
the trial would have been different.
Appointed counsel later filed an affidavit and motion for the motion court to
consider Movant’s amended motion as timely filed. The motion court found appointed
2 A blind administrator is an officer who is not involved in the investigation of the case and did not construct the photographic lineup, and therefore does not know which individual in the lineup is the suspect.
3 counsel abandoned Movant and accepted the untimely amended motion, noting the late
filing of the amended motion was solely attributable to appointed counsel and was not the
fault of Movant. The motion court then denied Movant’s amended motion for post-
conviction relief without an evidentiary hearing, finding Movant’s trial counsel was not
ineffective for failing to move to suppress or otherwise object to the lineup because such a
motion would have been meritless. This appeal follows.
Standard of Review
Appellate review of the trial court's action on a motion filed under Rule 29.15 is
“limited to a determination of whether the findings and conclusions of the motion court are
clearly erroneous.” Rule 29.15(k). This Court will find error only if, after review of the
entire record, we have a definite and firm belief that the motion court made a mistake.
Jackson v. State, 205 S.W.3d 282, 284 (Mo. App. E.D. 2006). A movant is entitled to an
evidentiary hearing on a Rule 29.15 motion only if: “(1) the motion alleges facts, not
conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the record;
and, (3) the facts alleged must establish prejudice.” Williams v. State, 168 S.W.3d 433,
439 (Mo. banc 2005).
Discussion
In his sole point on appeal, Movant argues the motion court erred in denying his
Rule 29.15 motion without an evidentiary hearing because he pleaded facts, not
conclusions, that were not refuted by the record and entitled him to relief. Specifically, he
contends his trial counsel was ineffective for failing to file a motion to suppress the
photographic lineup because, in the lineup, Movant was the only person A.W. had already
4 identified and A.W. had also seen pictures of Movant in the media prior to the lineup; and
that, but for this error, the result of the trial would have been different. We disagree.
To obtain post-conviction relief based on ineffective assistance of counsel, a
movant must demonstrate both deficient performance by counsel and prejudice as a result
of that deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984);
McFadden v. State, 619 S.W.3d 434, 445 (Mo. banc 2020). Deficient performance is
measured in terms of reasonableness under prevailing professional norms. Strickland, 466
U.S. at 688. We presume that counsel acted professionally and that any challenged action
was part of counsel’s reasonable trial strategy, and a movant must prove otherwise by a
preponderance of the evidence. Joyner v. State, 421 S.W.3d 580, 581 (Mo. App. E.D.
2014). Prejudice requires a showing there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Strickland,
466 U.S. at 694. In reviewing a claim for ineffective assistance, appellate courts are not
required to examine both prongs: if a movant fails to satisfy the prejudice prong, we need
not consider the performance prong, and vice versa. Sanders-Ford v. State, 597 S.W.3d
816, 819 (Mo. App. S.D. 2020).
“Identification testimony is admissible unless the pretrial identification procedure
was unnecessarily suggestive and the suggestive procedure made the identification
unreliable.” State v. Middleton, 995 S.W.2d 443, 453 (Mo. banc 1999). If the procedure
used to identify the defendant was a result of police action or procedure, and not from the
witness’ recollection of first-hand observations, then courts will find the procedure
impermissibly suggestive. State v. Chambers, 234 S.W.3d 501, 513 (Mo. App. E.D. 2007).
The burden is on the defendant to first establish that the police procedure was
5 impermissibly suggestive before it is necessary to determine whether the resulting
identification was reliable. State v. Floyd, 347 S.W.3d 115, 125 (Mo. App. E.D. 2011);
Chambers, 234 S.W.3d at 513. Incumbent on this analysis is that the challenged procedure
be a police procedure; challenges to the admissibility of identification evidence cannot be
based on non-police conduct. State v Butler, 642 S.W.3d 364, 372 (Mo. App. E.D. 2022)
(when impermissibly suggestive actions were taken by victim’s great-aunt and not police,
defendant was unable to show that police procedures rendered identification unreliable).
Only if the defendant meets the burden of proving that police procedures were
unduly suggestive will the courts consider the reliability of an eyewitness identification.
See State v. Body, 366 S.W.3d 625, 630-31 (Mo. App. E.D. 2012). To make this
determination, we consider: “(1) the opportunity of the witness to view the subject; (2) the
witness’[] degree of attention; (3) the accuracy of any prior description given by the
witness; (4) the level of certainty demonstrated by the witness in making the identification;
and (5) the interval between the event and the identification procedure.” Floyd, 347
S.W.3d at 125.
Here, Movant argues a reasonably competent attorney under the same or similar
circumstances would have moved to suppress the photographic lineup as impermissibly
suggestive, and that this failure prejudiced Movant. Movant contends he was a “repeat
player” in the identification process, because he was the only person in the photographic
lineup both whom A.W. previously identified in person and whom A.W. had seen in a news
story that included his photograph. Based on these facts, Movant alleges that A.W.’s
identification was unreliable, because it was not from her recollection of first-hand
observations.
6 However, Movant’s argument does not place at issue police conduct and therefore
cannot form the basis of a challenge to the admission of the photographic lineup
identification evidence. See Butler, 642 S.W.3d at 372 (challenges to admissibility of
identification evidence cannot be based on non-police conduct); see also State v. Allen,
274 S.W.3d 514, 526 (Mo. App. W.D. 2008) (defendant must establish that police
procedure was impermissibly suggestive before review of reliability of identification is
necessary or appropriate).
The record shows that T.M., not the police, showed A.W. the news story that
displayed Movant’s photograph.3 Actions not taken by the police are not police
procedures. See Butler, 642 S.W.3d at 372 (no error in admitting identification evidence
when defendant did “not point to any actions or procedures conducted by the police that
were impermissibly suggestive”).
There is no evidence here that police engaged in impermissibly suggestive
procedures. The photographic lineup included a picture of Movant and five computer-
generated photos with the same physical characteristics as Movant. Before administering
the photographic lineup, the blind administrator told A.W. that Movant might or might not
be in the photographic lineup and that she must be positive before selecting a picture. This
Court has held previously that a photo identification procedure is not unduly suggestive
when the photo lineup depicted individuals that looked similar to the suspect and the
3 Although Movant argues on appeal that A.W. “view[ed] countless images of [Movant] in the media” before she identified him in the photographic lineup, the record does not support this assertion. Rather, A.W. testified she saw the news segment after Movant’s arrest in 2016 and T.M. likewise testified she showed the news segment to A.W. at the time of Movant’s arrest. There is no evidence in the record that A.W. viewed the news segment more than once or that she viewed images of Movant around the same time as the February 2017 lineup.
7 detective informed the victim that the suspect may or may not be pictured. See Body, 366
S.W.3d at 631; State v Polk, 415 S.W.3d 692, 697 (Mo. App. E.D. 2013).
Instead, A.W.’s identification here was a result of her first-hand recollection of
events, notably recognizing Movant from his face and facial hair. See Allen, 274 S.W.3d
at 525 (initial identification by photo based solely on memory followed by a lineup
identification is not impermissibly suggestive). Because Movant has not established that
the police procedures were impermissibly suggestive, this Court will not determine the
reliability of the witness’ identification. See Sanders-Ford, 597 S.W.3d at 819.
Merely appearing in both a physical identification and a photographic lineup—or,
to use Movant’s phrase, being a repeat player—without more does not establish
impermissibly suggestive procedures. See Body, 366 S.W.3d at 631 (when lineups are
neutral in creation and presentation, combination of both physical identification and
photographic identification is not impermissibly suggestive “merely because the defendant
is the only individual who appears in both lineups”); Chambers, 234 S.W.3d at 514.
Because A.W.’s identification did not stem from impermissibly suggestive police
procedures, a motion to suppress the identification from the photographic lineup would not
have been meritorious. Trial counsel is not ineffective for failing to file a non-meritorious
motion to suppress. Royer v. State, 421 S.W.3d 486, 490 (Mo. App. S.D. 2013). On these
facts, the record refuted Movant’s claim of ineffective assistance, and thus the motion court
did not err in denying his claim without an evidentiary hearing. See Booker v. State, 552
S.W.3d 522, 526 (Mo. banc 2018). The motion court did not clearly err in denying
Movant’s amended motion for post-conviction relief. See Rule 29.15(h).
Point denied.
8 Conclusion
The judgment of the motion court denying Movant’s amended motion without an
evidentiary hearing is affirmed.
Gary M. Gaertner, Jr., P.J.
Robert M. Clayton III, J., and John P. Torbitzky, J., concur.