State v. Conrick

375 S.W.3d 894, 2012 WL 3791628, 2012 Mo. App. LEXIS 1087
CourtMissouri Court of Appeals
DecidedSeptember 4, 2012
DocketNo. WD 74061
StatusPublished
Cited by5 cases

This text of 375 S.W.3d 894 (State v. Conrick) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Conrick, 375 S.W.3d 894, 2012 WL 3791628, 2012 Mo. App. LEXIS 1087 (Mo. Ct. App. 2012).

Opinion

CYNTHIA L. MARTIN, Judge.

Michael Conrick (“Conrick”) appeals from his conviction following a jury trial1 of first-degree robbery and armed criminal action. Conrick argues that the trial court erred in overruling a motion to suppress and in overruling objections at trial regarding the admission of out-of-court and in-court identifications of Conrick by the robbery victim and a witness on the grounds that the identifications were the result of unduly suggestive police procedures. We affirm.

Factual and Procedural Background2

On August 4, 2009, LeRoy Gosseen (“Gosseen”) lived in a senior housing apartment complex in Holt, Missouri. That morning, Gosseen’s housekeeper took him to the bank to cash a disability check. The housekeeper’s son, Michael Mitchell (“Mitchell”), was at Gosseen’s residence for a few moments before the housekeeper took Gosseen to the bank. The implication [896]*896from Gosseen’s testimony is that Mitchell may have known of Gosseen’s plan to go to the bank.

At around 9:30 p.m., Gosseen was speaking on his cell phone. As he finished his call, his unlocked front storm door3 opened, and a man entered Gosseen’s residence. Gosseen had never seen the man before. The man approached Gosseen and stood about three feet from him. The man put out his hand and demanded, “Give me your money.” Startled, Gosseen said, “What?” The man repeated his demand. Gosseen said, ‘You — you don’t want to do this thing.” The man pulled out a pistol and pointed it at Gosseen’s head and said, “I don’t want to hurt you, give me your money.” Gosseen complied, handing over approximately $1,500.00. The man left, taking Gosseen’s cell phone with him.

Conrick was later identified by Gosseen in a photo line-up. Conrick was also identified in a photo line-up by a neighbor, Raymond James (“James”). James had confronted two men in the area in the afternoon on the day of the robbery. James also identified Mitchell in the same photo line-up as the second man he confronted.

Prior to trial, Conrick’s counsel (“Trial Counsel”) filed a motion to suppress all out-of-court and in-court identification testimony (“Motion”).4 Trial Counsel argued that the photo lineup was tainted by unduly suggestive police procedures, and that the photo lineup had irretrievably tainted the anticipated in-court identification testimony from Gosseen and James. The trial court overruled the Motion.

The only evidence at trial implicating Conrick in the robbery was evidence relating to James’s and Gosseen’s identifications. No other physical or circumstantial evidence connected Conrick to the robbery. Trial Counsel unsuccessfully objected to the photo lineup and to in-court identification testimony throughout trial. Conrick’s post trial motion addressing the photo lineup and in-court identification testimony was denied.

The jury convicted Conrick of first-degree robbery and armed criminal action. Conrick was sentenced to ten years imprisonment on the first count, and five years imprisonment on the second count, to be served consecutively.

Conrick filed this timely appeal.

Standard of Review

“[Ajppellate courts will reverse a ruling on a motion to suppress only if it is clearly erroneous and will reverse admission of testimony only if the trial court abused its discretion.” Foster v. Missouri, 348 S.W.3d 158, 161 (Mo.App. E.D.2011) (citation omitted).

Analysis

In Conrick’s single point on appeal, Con-rick alleges that the trial court erred in overruling his Motion and his trial objections to Gosseen’s and James’s out-of-court and in-court identifications of Conrick. Conrick claims “that the State’s pretrial identification procedures were unduly suggestive and led to a substantial likelihood of irreparable pretrial misidentification, making subsequent identifications unrelia[897]*897ble as a matter of law.” Specifically, Con-rick claims that the State used “photos that bore no resemblance to Conriek, pairing him in a lineup with a suspect known to be present at Gosseen’s apartment, and suggesting that the suspect was in the lineup,” and that as a result, Gosseen and James were led “to identify the only possible suspect that matched their descriptions, and Conriek was prejudiced because the identification testimony was the sole evidence linking him to these crimes.”

Conriek has argued no basis to exclude the in-court identification testimony other than that it was irreparably tainted by the unduly suggestive nature of the photo lineup. We focus our analysis, therefore, on whether the photo lineup was unduly suggestive, and on whether the trial court erred in overruling the Motion and the trial objections seeking to exclude the photo lineup.

Pretrial Identification Procedures

In determining whether pretrial identification of a defendant is admissible, a trial court must engage in a two-step analysis. State v. Hunter, 43 S.W.3d 336, 340 (Mo.App. W.D.2001) (citing State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989) (other citations omitted)). The first step requires the court to determine whether the pretrial identification (here a photo lineup) was unduly suggestive. Id. If so, and only if so, the second step requires the court to determine the impact of the suggestive procedure on the reliability of the identification. Hornbuckle, 769 S.W.2d at 93.

With respect to the first step of the analysis, a pretrial identification procedure “ ‘is unduly suggestive if the identification results not from the witness’s recall of first-hand observations, but rather from the procedures or actions employed by the police.’ ” Hunter, 43 S.W.3d at 340 (quoting State v. Glover, 951 S.W.2d 359, 362 (Mo.App. W.D.1997)). If the pretrial identification procedure was not unduly suggestive, “ ‘then the court may admit the pretrial identification and any in-court identification,’” without consideration of the second step. Id. (quoting Glover, 951 S.W.2d at 362).

If the second step of the analysis is required, the court must determine “whether the ‘suggestive procedures [as found] have so tainted the identification as to lead to a substantial likelihood that the pretrial identification was not reliable.’ ” Id. (quoting Glover, 951 S.W.2d at 362). In assessing reliability, the court is to consider:

1) the opportunity of the witness to view the subject; 2) the witness’s 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.

Id. at 341 (citing State v. Middleton, 995 S.W.2d 443, 453 (Mo. banc 1999)). If the assessment of these factors leads to the conclusion that the pretrial identification procedure was unreliable, “then the pretrial identification will be excluded.” Id. at 340 (citing Glover, 951 S.W.2d at 362).

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Cite This Page — Counsel Stack

Bluebook (online)
375 S.W.3d 894, 2012 WL 3791628, 2012 Mo. App. LEXIS 1087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-conrick-moctapp-2012.