State v. Johnson

559 S.W.3d 423
Missouri Court of Appeals·Decided October 23, 2018·No. No. ED 105740·Published·Cited by 1 cases

Opinion

Philip M. Hess, Presiding Judge *426Introduction

Joevalis Johnson ("Appellant") was charged in the City of St. Louis circuit court with two counts of first-degree robbery, two counts of armed criminal action ("ACA"), and one count of unlawful possession of a firearm arising out of a robbery of two men at gunpoint. Prior to trial, the court granted Appellant's motion to sever the unlawful possession of a firearm charge. After a mistrial, a second jury found Appellant guilty of two counts of first-degree robbery and two counts of armed criminal action. In its judgment, however, the trial court also found Appellant guilty of the severed unlawful possession of a firearm count and sentenced him to a total of sixty years' imprisonment, including ten consecutive years for the unlawful possession charge. Appellant raises four points on appeal, alleging the trial court committed plain error by convicting and sentencing him for the unlawful possession of firearm charge that was severed, abused its discretion by allowing expert DNA testimony in response to a hypothetical question, and two points alleging the trial court clearly erred in denying Appellant's motions to suppress the victims' identifications of Appellant. We reverse the conviction for unlawful possession of a firearm and remand with instructions to vacate the conviction. Otherwise we affirm.

Factual and Procedural Background

Viewed in the light most favorable to the judgment, the facts adduced at trial are as follows. Kyle Conine ("Conine") and Kenneth Knackstedt ("Knackstedt") were at a bar in Soulard on August 17, 2014, around 1:30 a.m. They started walking to a nearby pizza restaurant after leaving the bar. After taking several steps into an alley, they turned around, and Appellant was pointing a gun at them. Appellant was wearing a white t-shirt or tank top. He ordered them to lay on the ground and give him everything they had. Conine relinquished his cellphone, forty-eight dollars, and his ID, and laid on the ground. Knackstedt threw eight dollars to the ground. Appellant pointed the gun in Knackstedt's face and demanded he pick up the money. Knackstedt obliged, but went to one knee rather than laying on the ground. Conine saw Appellant's face for only a few seconds. Knackstedt was face to face with Appellant for about two minutes. Conine and Knackstedt both stated the robbery lasted for, at most, five minutes. The alley was dimly lit according to Knackstedt, but there was enough light you could "read a newspaper."

Appellant fled. Conine returned to his car and drove around the block a few times before driving home. Knackstedt followed Appellant from a safe distance and called the police. He watched Appellant get on the back of a bicycle as the passenger. Appellant and the driver of the bicycle traveled a short distance on the bike before Appellant dismounted it and entered an alley. Knackstedt ceased pursuit because he knew Appellant had a gun and the alley was dark.

Knackstedt waited by the entrance of the alley until the police arrived and pointed them in the direction Appellant had went. Within fifteen minutes of the robbery, the police found Appellant hiding underneath the porch of an apartment building. They escorted Knackstedt to Appellant to conduct a show-up identification but provided no details about Appellant prior to the show-up. They asked Knackstedt if Appellant was the perpetrator. Knackstedt confirmed Appellant robbed him.

Appellant was handcuffed throughout the show-up. After the positive identification, *427Knackstedt saw the fifty-three dollars taken from him and Conine near the porch. He also saw Conine's cellphone underneath the porch steps. The phone rang when Knackstedt called Conine's phone number. The police then showed Knackstedt a black jacket with a firearm protruding from it. Knackstedt identified the firearm as the gun used in the robbery. The police found the jacket about six feet from where the police found Appellant.

A few days later, the police presented Conine a photograph lineup of six people. Conine identified Appellant as the assailant when he viewed the lineup.

The State charged Appellant with two counts of first-degree robbery, two counts of ACA, and one count of unlawful possession of a firearm. Appellant moved to have the unlawful possession of a firearm charge dismissed or severed from the other charges due to the prejudice that would result from the jury knowing Appellant was a convicted felon. The trial court granted Appellant's motion to sever.

Appellant's first trial resulted in a mistrial when the jury failed to reach a unanimous verdict. At the retrial, defense counsel moved to suppress both Knackstedt and Conine's identifications of Appellant on the grounds the show-up identification was impermissibly suggestive. The trial court denied the motions.

At trial, the prosecutor asked the DNA section supervisor of the St. Louis Metropolitan Police Department Crime Laboratory (the "DNA Supervisor") during cross-examination whether her test results detected Appellant's DNA on the black jacket found next to where Appellant was hiding. She stated the DNA test results did not match Appellant. The DNA matched a Travis Kirkwood ("Kirkwood"). The prosecutor then asked the DNA Supervisor whether Kirkwood's DNA would be on the jacket if Kirkwood had lent the jacket to Appellant. Defense counsel objected, arguing there had been no evidence introduced by the State that Kirkwood had lent his jacket to Appellant. The trial court overruled the objection. The DNA Supervisor testified that if she knew the circumstances of the scenario, then she would not be surprised to find Kirkwood's DNA on the jacket.

The jury found Appellant guilty on all four counts. The trial court sentenced Appellant to twenty-five years for each first-degree robbery count and fifteen years for each ACA count. The trial court ran the ACA sentences concurrent with each corresponding robbery count but the robbery sentences consecutive with each other for a total of fifty years. The trial court also sentenced Appellant to a consecutive ten year term on the severed count of unlawful possession of a firearm.1 This appeal follows.

Standards of Review

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State v. Johnson, 559 S.W.3d 423 (Mo. Ct. App. 2018).

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