State of Missouri v. Darion Jordan Ivy

• Court: Missouri Court of Appeals
• Decided: February 25, 2014
• Docket: ED98978
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION III

STATE OF MISSOURI, ) No. ED98978 ) Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) ) Honorable Timothy J. Wilson DARION JORDAN IVY, ) ) Appellant. ) FILED: February 25, 2014

Introduction

Appellant Darion Ivy (“Ivy”) appeals from the judgment of the trial court following his

conviction by a jury of one count of first-degree robbery, Section 569.020. 1 Ivy was sentenced

to 12 years in the Missouri Department of Corrections. On appeal, Ivy argues that the trial court

plainly erred in denying his request for a mistrial when the State failed to disclose to the defense

a statement that Ivy made to a police recruit. In his second point on appeal, Ivy asserts that the

trial court clearly erred in denying his motion to suppress identification and abused its discretion

in overruling his objections at trial to the testimony of Dean Morgan (“Morgan”) regarding his

1 All statutory references are to RSMo. 2000.

1 in-court and out-of-court identifications of Ivy. Finding no error, we affirm the judgment of the

trial court.

Factual and Procedural History

Viewed in the light most favorable to the verdict, the evidence introduced at trial is as

follows. On December 11, 2010, Morgan and Johnny Irving drove in Morgan’s Cadillac

Escalade to the 3200 block of Hebert in the City of St. Louis to pick up some tools to repair

Morgan’s leaking roof. Irving got out of the vehicle to retrieve the tools while Morgan stayed in

the driver’s seat, playing with his phone. Morgan noticed a black truck pull up behind him, and

shortly thereafter he heard a tap on his window. Morgan looked up and saw a man later

identified as Gesonia Williams pointing two guns at Morgan’s head, telling Morgan to get out of

the vehicle. Morgan got out of the Escalade and was searched by Williams while a second man

stood by Irving. The second man, later identified as Ivy, then put a gun up to Morgan and also

searched him. Ivy was not wearing a mask, allowing Morgan to see his face clearly. Ivy and

Williams then took Morgan’s Escalade, along with Morgan’s wallet, cell phone, iPod, radar

detector, and laptop.

Morgan and Irving walked to Morgan’s mother-in-law’s house, where Morgan called the

police. Morgan described Ivy to the police as a dark-skinned, stocky man who was five-feet,

seven-inches tall and had facial hair. Morgan said Ivy was wearing a black, puffy leather jacket.

An officer with the St. Louis Metropolitan Police Department broadcasted Morgan’s description

of the suspects and the stolen vehicle.

Officer Kyle Chandler heard the dispatch call for the carjacking and recalled seeing a

vehicle that matched the description of Morgan’s Escalade. Officer Chandler returned to the

location where he saw the vehicle and shortly thereafter saw the Escalade going south on Grand.

Officer Chandler pulled up behind the vehicle and activated his lights, at which point the vehicle

2 took off at a high rate of speed and hit a car, a truck, a light pole, and a fence before crashing into

a house. Williams climbed out of the passenger window and took off running. Officer Chandler

chased Williams while Officer Kevin Fodde, a recruit who had been riding with Officer

Chandler, stayed with the patrol car and observed Ivy exiting the Escalade. Ivy approached

Officer Fodde and said he was injured.

Morgan’s brother-in-law was driving Morgan home when they saw Morgan’s Escalade

wrecked on North Grand. Morgan informed a police officer on the scene that he had been

carjacked and that the wrecked car belonged to him. Morgan also saw Ivy sitting on the curb,

handcuffed, and identified Ivy to police as the man who robbed him. Three days after the

incident, Morgan was asked by the police to identify the person who robbed him via a

photographic lineup. Morgan chose Ivy with “a hundred percent” certainty.

Ivy was subsequently charged as a prior offender with one count of first-degree robbery,

Section 569.020, one count of first-degree attempted robbery, Section 564.011, two counts of

armed criminal action, Section 571.015, and one count of second-degree tampering with a motor

vehicle, Section 569.090.

In March 2012, a jury found Ivy guilty of second-degree tampering. However, the trial

court declared a mistrial as to the count of first-degree robbery because the jurors could not reach

a verdict. Ivy was found not guilty as to all other counts.

In May 2012, Ivy was tried again before a jury on the count of first-degree robbery. At

the close of all of the evidence, the jury found Ivy guilty. The trial court entered judgment

accordingly and sentenced Ivy to 12 years in the Missouri Department of Corrections. This

appeal follows.

3 Points on Appeal

In his first point on appeal, Ivy claims that the trial court plainly erred in denying his

request for a mistrial when the State failed to disclose to the defense a statement that Ivy made to

Officer Fodde. In his second point on appeal, Ivy asserts that the trial court clearly erred in

denying his motion to suppress identification and abused its discretion in overruling his objection

at trial to Morgan’s testimony regarding his in-court and out-of-court identifications of Ivy.

Standards of Review

In order to preserve an issue for appeal in a jury-tried case, the allegation of trial court

error must be included in a motion for new trial. State v. Johnson, 943 S.W.2d 285, 289 (Mo.

App. E.D. 1997). An allegation of error not included in a motion for new trial is reviewable by

this Court only for plain error. Id. Because Ivy did not include in his motion for new trial his

claim that the trial court erred in not granting his request for a mistrial, we review his first point

on appeal only for plain error.

Under plain error review, the movant must demonstrate that the trial court committed an

error which is “evident, obvious, and clear” and that such error resulted in a “manifest injustice

or miscarriage of justice.” Rule 30.20 2 ; State v. Roper, 136 S.W.3d 891, 900 (Mo. App. W.D.

2004). If the movant has carried the burden of producing an error that facially produced manifest

injustice or a miscarriage of justice, we will consider whether the claimed error did in fact cause

manifest injustice or a miscarriage of justice. State v. Baumruk, 280 S.W.3d 600, 607-08 (Mo.

banc 2009).

This Court will reverse a ruling on a motion to suppress only if the ruling is clearly

erroneous. Foster v. State, 348 S.W.3d 158, 161 (Mo. App. E.D. 2011). If the ruling is

2 All rule references are to Mo. R. Crim. P. (2010).

4 plausible, in light of the record viewed in its entirety, we will not reverse even if we would have

weighed the evidence differently. State v. Ashby, 339 S.W.3d 600, 603 (Mo. App. E.D. 2011).

We review the factual findings only to determine whether they are supported by substantial

evidence and give deference to the trial court’s ability to weigh the credibility of the witnesses.

Id. We view the facts in the light most favorable to the judgment and disregard all contrary

evidence and inferences. Id.

We will reverse the trial court’s admission of identification testimony only if the trial

court abused its discretion. Foster, 348 S.W.3d at 161.

Discussion

I. The trial court did not plainly err in denying Ivy’s request for a mistrial.

In his first point on appeal, Ivy argues that the trial court plainly erred in denying his

request for a mistrial when the State failed to disclose to the defense a statement that Ivy

allegedly made to Officer Fodde. Ivy claims that the State’s failure to disclose that Ivy allegedly

told Officer Fodde that he had been “hit by the car” resulted in a manifest injustice or miscarriage

of justice because he was unable to prepare a strategy, prior to trial, to address the statement.

Rule 25.03(A)(2) requires the State to provide to the defendant, upon written request, the

substance of any oral statements made by the defendant. Rule 25.03(A)(2). The purpose behind

this rule is to “grant the defendant a decent opportunity to prepare his case in advance of trial and

avoid surprise.” State v. Jamison, 163 S.W.3d 552, 557 (Mo. App. E.D. 2005). Compliance with

this rule is mandatory; however, appellate courts “will intervene only where a defendant shows

that the failure to make a timely disclosure resulted in fundamental unfairness.” Id.

“Fundamental unfairness turns on whether there was a reasonable likelihood that an earlier

disclosure of the requested evidence would have affected the result of the trial.” Id.

5 During Ivy’s first trial, Officer Fodde testified that after the Escalade crashed, Ivy

stumbled out of the vehicle, came up to Officer Fodde, and said that his leg was injured.

However, at Ivy’s re-trial, Officer Fodde testified that Ivy said he was injured and that he got hit

by the vehicle. Ivy claims that the State’s failure to disclose Ivy’s statement that he got hit by the

vehicle surprised the defense and prevented the defense from preparing a strategy to address the

evidence. Ivy also suggests that the evidence was incriminating because it connected him with

the stolen Escalade and made it seem like Ivy had a guilty conscience and was therefore trying to

distance himself from the vehicle. As a result, the defense should have had the opportunity to

address the statement.

The State should have disclosed Ivy’s statement prior to trial, and the failure to do so

violated the requirements of Rule 25.03(A)(2). However, upon reviewing the totality of the

record before us, we are not persuaded that the State’s failure to disclose Ivy’s statement prior to

trial resulted in fundamental unfairness given the overwhelming evidence of Ivy’s guilt. See

Jamison, 163 S.W.3d at 557. At trial, Morgan testified that Ivy, along with Williams, stole the

Escalade from him at gunpoint. The State also produced evidence that Morgan identified Ivy

shortly after the incident and again in a photographic lineup with one hundred percent certainty.

Additionally, Officer Fodde testified that he witnessed Ivy get out of Morgan’s Escalade after the

vehicle crashed.

Ivy argues that the State’s failure to disclose the statement hindered his ability to develop

a defense because the statement contradicted the defense’s theory. Ivy further contends that had

a mistrial been granted, he would have had time to decide whether to testify in order to deny

making the statement to Officer Fodde. While sympathetic to Ivy’s argument that the failure to

disclose the statement before trial adversely impacted his ability to develop a defense, the lack of

disclosure was a minor impediment to Ivy’s defense in light of the overwhelming evidence of his

6 guilt. We are unwilling to characterize the State’s failure to disclose Ivy’s statement as outcome

determinative. Moreover, the record shows that the trial court took a recess to allow Ivy

additional time to consider whether to testify. The trial court warned Ivy that were he to testify,

the State could bring up his prior robbery conviction. After consulting with his attorney, Ivy

decided not to testify. Given these facts, we reject Ivy’s argument that the granting of a mistrial

would have affected his decision not to testify.

Because Ivy has failed to prove that an earlier disclosure of the statement would have

affected the outcome of the trial, the State’s failure to disclose the statement did not result in

fundamental unfairness. Likewise, any failure by the State to disclose the statement did not

cause manifest injustice or a miscarriage of justice, and the trial court did not plainly err in

denying Ivy’s request for a mistrial. See Baumruk, 280 S.W.3d at 607-08.

Point One is denied.

II. The trial court did not err in denying Ivy’s motion to suppress identification or abuse its discretion in allowing Morgan to testify regarding his identifications of Ivy.

In his second point on appeal, Ivy claims the trial court clearly erred in denying his

motion to suppress identification and abused its discretion in allowing Morgan to testify

regarding his in-court and out-of-court identifications of Ivy.

Prior to trial, Ivy filed a motion to suppress any in-court or out-of-court statements made

by Morgan identifying Ivy as one of the people that robbed him. The motion to suppress argued

that the photographic line-up performed three days after the robbery was inherently suggestive

because Morgan had seen Ivy handcuffed next to the wrecked Escalade. As a result, any out-of-

court identification of Ivy was tainted and should be suppressed. Ivy further asserted that any in-

court identification of Ivy also would be tainted by the suggestive identification procedures and

would give rise to a substantial likelihood of misidentification. The trial court denied Ivy’s

7 motion. Ivy also objected at trial to Morgan’s in-court identifications of Ivy as well as Morgan’s

testimony regarding the photographic line-up. The trial court overruled Ivy’s objections.

Courts apply a two-prong test to determine whether identification testimony is

admissible. Foster, 348 S.W.3d at 161. First, the court must determine whether the pre-trial

identification procedure was unduly suggestive. Id. at 162. A pre-trial identification procedure

is unduly suggestive only if the identification is the result of the procedures used by the police

rather than a result of the witness’s recollection. Id. “The key issue in determining whether

unduly suggestive pre-trial procedures tainted the identification is whether the witness has an

adequate basis for the identification independent of the suggestive procedure.” State v. Floyd,

347 S.W.3d 115, 125 (Mo. App. E.D. 2011) (quoting State v. Chambers, 234 S.W.3d 501, 513

(Mo. App. E.D. 2007)). If the procedure is not unduly suggestive, any pre-trial and in-court

identification is admissible. Foster, 348 S.W.3d at 162.

If the procedure is unduly suggestive, the court must proceed to the second prong and

determine “whether the suggestive procedures have so tainted the identification as to lead to a

substantial likelihood that the pre-trial identification was not reliable.” Id. (quoting Chambers,

234 S.W.3d at 513). If the procedure is unduly suggestive, the pre-trial identification will be

excluded. Chambers, 234 S.W.3d at 513. “Similarly, if the court finds that the suggestive

procedures have so affected the witness as to lead to a substantial likelihood that an in-court

identification would not be reliable, then no in-court identification will be permitted.” Id.

Ivy argues that the pre-trial identification procedure used in this case was unduly

suggestive because Morgan saw Ivy handcuffed by the Escalade before he viewed the

photographic line-up and identified him in court. However, a pre-trial identification will be

deemed unduly suggestive only if it is the result of police procedures rather than the witness’s

recollection. Foster, 348 S.W.3d at 161. Here, no police procedure took place that could have

8 tainted Morgan’s identification of Ivy. The police did not arrange for Morgan to identify Ivy

while he was handcuffed next to the wrecked Escalade. Rather, Morgan unexpectedly came

across his vehicle while his brother-in-law was driving him home. We find Ivy’s assertion that

these facts somehow constitute a police show-up to be unpersuasive. 3

Even if the police had arranged for a show-up, Missouri courts “routinely hold such

show-ups are not unduly suggestive, even when the suspect is in handcuffs, and particularly

when the police make no overt remarks concerning the subject’s identity.” State v. Williams,

717 S.W.2d 561, 563 (Mo. App. E.D. 1986). In Williams, the defendant broke into the victims’

home, stole a purse, and drove off in the victims’ car. Id. at 561-62. The victims called the

police and gave a general description of the defendant. Id. at 162. A police officer heard the

broadcasted description of the stolen vehicle and began chasing a vehicle that matched the

description. Id. The defendant wrecked the stolen car, and the officer arrested him. Id. The

victims then were escorted by police to the accident scene, where the defendant was handcuffed

between two uniformed police officers and was standing next to the stolen purse. Id. Upon

arriving at the accident scene, the victims immediately told the police that the defendant was the

person that robbed them. Id. Because the victims identified the defendant within one hour of the

robbery and the police made no overt suggestions concerning the defendant’s identity, this Court

determined that the show-up was not unduly suggestive. Id. at 563. See also State v. Dodson,

491 S.W.2d 334, 338 (Mo. banc 1973) (show-up that occurred while defendant was handcuffed

in backseat of police car was not unduly suggestive when identification occurred 30 minutes after

crime was committed and police made no suggestion that defendant was the robber); State v.

Tunstall, 848 S.W.2d 530, 532 (Mo. App. E.D. 1993) (show-up was not unduly suggestive even

3 A show-up occurs when police arrange for a one-on-one confrontation between the suspect and a witness to a crime shortly after the time of the crime. See State v. Blanchard, 920 S.W.2d 147, 150 (Mo. App. E.D. 1996).