State v. Kayser

397 S.W.3d 37, 2013 WL 1614376, 2013 Mo. App. LEXIS 469
CourtMissouri Court of Appeals
DecidedApril 16, 2013
DocketNo. ED 97679
StatusPublished
Cited by4 cases

This text of 397 S.W.3d 37 (State v. Kayser) 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. Kayser, 397 S.W.3d 37, 2013 WL 1614376, 2013 Mo. App. LEXIS 469 (Mo. Ct. App. 2013).

Opinion

GARY M. GAERTNER, JR., Chief Judge.

Introduction

Michael Kayser (Defendant) appeals the trial court’s judgment of conviction for sexual misconduct in the second degree. Defendant argues that the trial court abused its discretion in overruling his motion to suppress an out-of-court identification of Defendant and in admitting the identification at trial. We affirm.

Background

On June 5, 2010, Trida Staley (Mother) was riding in the front passenger seat of a Chevy Tahoe driven by her mother, Gail Sykes (Grandmother). Mother’s • two daughters, P.S. and M.S., were also passengers in the car. They were stopped at a stoplight on Mexico Road when Mother heard P.S., who was nine years old, ask what a man in a car next to them was doing. Mother looked behind her to the left and saw a man masturbating in the car next to P.S.’s passenger door. Though Mother did not see the man’s genitals, his arm movements indicated to her that he was masturbating. When the light turned green, Grandmother moved into the lane behind the man’s vehicle and memorized his license plate number. She immediate[39]*39ly drove to the police department to report the incident.

At the police station, Grandmother provided the license plate number she had memorized to Officer Jacob Bass (Officer Bass). Officer Bass discovered the car was registered to an Amanda Mottert (Mottert). Through his investigation, Officer Bass learned that Mottert was married to Defendant, who regularly drove Mot-tert’s car.

Officer Bass later interviewed Defendant. Defendant stated that he worked at Hardee’s located near North Third Street and 370, and that he would regularly travel on Mexico Road past the stoplight where the incident had occurred. Defendant also lived about two miles from the intersection where the incident had occurred.

Officer Bass compiled three photographic lineups using six photographs in each. Only one of the three lineups contained a photograph of Defendant; that lineup also contained five photographs of other men who resembled him. Officer Bass testified that Defendant told him he wore glasses, but the photograph of Defendant used in the lineup did not show Defendant wearing glasses. The other two lineups contained pictures of two white males in their mid- to late twenties who each had the last name of Mottert, and Officer Bass created those two lineups because of the possibility that either of the men was related to Mottert and had borrowed her car. There were a total of 18 different individuals’ photographs used in the three photographic lineups.

On June 9, 2010, Detective Nicole Maynard (Detective Maynard) met with P.S. and Mother at the police department in order to show P.S. the photographic lineups. Detective Maynard asked Mother to sit with P.S. while P.S. viewed the photographs, because P.S. seemed nervous and scared. As she was looking at the photographs, P.S. expressed concern to her mother because the man she had seen in the car had been wearing glasses, but none of the men in the photographs were wearing glasses. Mother told P.S. to “do her best and imagine the person without glasses on.” P.S. then identified Defendant’s photograph. Detective Maynard had P.S. circle the picture she had chosen and put her initials next to it. After P.S. had done so, Mother stated that she would have chosen the same photograph. While Mother did not make an independent identification, she did initial the photograph P.S. had initialed because P.S. was a minor.

Defense counsel filed a motion to suppress any in-court identification of Defendant as well as any testimony regarding all out-of-court identifications of Defendant, which the trial court denied. After a two-day trial, the jury found Defendant guilty of sexual misconduct in the second degree. The trial court sentenced Defendant to six months in jail.

This appeal follows. Defendant’s sole claim of error is the trial court’s admission of P.S.’s photographic lineup identification.

Standard of Review

The trial court has broad discretion to admit or exclude evidence. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). We will reverse a trial court’s ruling on a motion to suppress only if it is clearly erroneous, and we will reverse admission of testimony only if the trial court abused its discretion. Foster v. State, 348 S.W.3d 158, 161 (Mo.App. E.D.2011).

Discussion

In Defendant’s sole point on appeal, he argues that the trial court abused its discretion in overruling his motion to suppress P.S.’s out-of-court identification of [40]*40him at trial, because the identification was the result of an impermissibly suggestive police procedure which rendered P.S.’s identification unreliable. We disagree.

The test for admission of identification testimony is two-pronged: (1) whether the pre-trial identification procedure was impermissibly suggestive, and (2) if so, the impact the suggestive procedure had upon the reliability of the identification made by the witness. State v. Horn-buckle, 769 S.W.2d 89, 93 (Mo. banc 1989). “A pretrial identification is unduly suggestive when the identification results from police procedures or actions, instead of the witness’ recall of first-hand observations.” State v. Hoff, 193 S.W.3d 366, 375 (Mo.App. S.D.2006); see also State v. Glover, 951 S.W.2d 359, 362 (Mo.App. W.D.1997). If Defendant is unable to show the procedure was impermissibly suggestive under the first prong, we need not reach the second prong. See State v. Hoopingarner, 845 S.W.2d 89, 94 (Mo.App. E.D.1993); State v. Morant, 758 S.W.2d 110, 118 (Mo.App. E.D.1988) (when procedure found not im-permissibly suggestive, evidence of suggestiveness goes to weight, not admissibility).

Regarding the first prong, Defendant contends that the lineup procedure leading to P.S.’s identification of Defendant was impermissibly suggestive because Detective Maynard allowed Mother to be with P.S. while P.S. viewed the photographic lineup, Detective Maynard permitted Mother to tell P.S. to envision the man she saw in the car without glasses, and because Mother told P.S. after P.S. had identified Defendant that Mother also would have chosen his photograph. Defendant argues that these circumstances created a very substantial likelihood of misidentifieation.

First, Defendant’s assertion that the identification procedure was impermissibly suggestive because Mother was present with P.S. when P.S. viewed the photographs is without merit. Defendant cites no authority for this proposition, and we find none. In fact, general practice1 and common sense dictate otherwise. See Johnson v. State, 265 Ind. 689, 359 N.E.2d 525, 531 (1977) (noting detectives showed photographic lineup to child victims in victims’ home with parents present).

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397 S.W.3d 37, 2013 WL 1614376, 2013 Mo. App. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kayser-moctapp-2013.