State v. Lloyd

750 S.W.2d 589, 1988 Mo. App. LEXIS 530, 1988 WL 31992
CourtMissouri Court of Appeals
DecidedApril 12, 1988
DocketNo. 53196
StatusPublished
Cited by5 cases

This text of 750 S.W.2d 589 (State v. Lloyd) 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. Lloyd, 750 S.W.2d 589, 1988 Mo. App. LEXIS 530, 1988 WL 31992 (Mo. Ct. App. 1988).

Opinion

SIMON, Presiding Judge.

Defendant, Gregory Dean Lloyd, was convicted by a jury in the Circuit Court of the City of St. Louis of unlawful possession of a concealable firearm, § 571.070 RSMo (1986), and sentenced to ten years in prison. On appeal, defendant contends that the trial court erred in: (1) allowing a third-party, a police officer, to testify about the victim’s out of court identification of defendant because said testimony constituted hearsay bolstering of an unimpeached witness; and, (2) refusing to grant a mistrial when the prosecutor referred to defendant’s prior convictions in closing arguments, which went beyond the proper use of prior convictions to affect defendant’s credibility. We affirm.

Since defendant does not challenge the sufficiency of the evidence, which is supportive of the guilty verdict, a brief statement of the facts follow. On March 19, 1986, at about 3:30 p.m., Layla Abdallah was at the cash register of Andy’s Market, a grocery store located at 1393 Hodiamont, in the City of St. Louis. Andy Abdallah, the owner, was in the back of the store doing paperwork. Two youths began to harass Mrs. Abdallah and Mr. Abdallah asked them to leave. A third man approached, produced a gun and demanded that Mrs. Abdallah open the cash register. The man began shooting as Mr. Abdallah approached and Mr. Abdallah was shot in the stomach. A fight ensued with Mr. Abdallah knocking the gun from the man’s hand, then seizing the gun and firing some shots. A second gun was produced, but there was disputed evidence about whether Mr. Abdallah or the defendant had produced it. The fighting continued on the street with Mr. Abdallah blacking out and the gunman running off with the guns. Present during the incident was a customer, Alma Jean Nelson, who testified for the defendant at trial. Both Mr. and Mrs. Ab-dallah identified defendant in court as the gunman.

Officers responding to the call on the shooting found Mr. Abdallah toward the back of the store on the floor. No guns were recovered on the premises.

At the same time other officers answered a dispatch “for a person that had been shot” in the 5800 block of Page. Arriving at 5870 Page, they found blood on the sidewalk, stairs, and porch. A young woman, later identified as defendant’s cousin, answered the door and reluctantly allowed the officers to enter after they informed her that they were looking for an injured individual who was possibly involved in the commission of a crime. The officers were directed to the rear bedroom, where they found the defendant under the bed. The officers arrested him and took him to St. Louis Regional Hospital.

Shortly afterwards, Mrs. Abdallah was brought to Regional Hospital, where she positively identified the defendant as the gunman. At a later police lineup, Mrs. Abdallah again identified defendant as the gunman who shot her husband. Mr. Ab-dallah and Alma Jean Nelson were also present at the lineup according to the testimony of Mrs. Nelson, Mrs. Abdallah, and [591]*591Officer Abraham Reddick. In court, Mr. Abdallah was unable to clearly respond to questions regarding his presence at the lineup. Officer Reddick testified that both Mr. and Mrs. Abdallah identified the defendant as the gunman at the lineup.

For the defense, defendant testified on his own behalf, with his cousin and Alma Jean Nelson also testifying.

In his first point, defendant argues that the testimony of Officer Reddick concerning Mr. Abdallah’s pretrial identification was hearsay bolstering of an unim-peached witness, and constituted a denial of his rights to confront the witness, in that Mr. Abdallah did not recall seeing a lineup and therefore could not be cross-examined on his out of court statement.

At trial Mr. Abdallah testified on direct examination as follows:

Q. [PROSECUTOR] How long were you in the hospital?
A. Eleven, twelve days.
Q. Twelve days. After that did you ever go to the police station for any reason?
A. Police station?
Q. Yes, did you go down [sic] the police station on some date and time after you got out of the hospital?
A. They called me here, yes, I came after I — I came to the jury.
Q. Okay.
A. That’s the first time I — they called me here.
Q. After you went to the — you talking about the — well, okay. Did you ever go down to the police station to see a lineup?
[DEFENSE ATTORNEY]: Objection, leading.
A. See a lineup—
THE COURT: Overruled.
A. I seen it here in this—
[DEFENSE ATTORNEY]: Objection, Your Honor.
Q. [PROSECUTOR]: Yes or no?
A. No.
[DEFENSE ATTORNEY]: In response to—
THE COURT: Sustain the objection.
[DEFENSE ATTORNEY]: In response to that question—
THE COURT: Sustain the objection to the last question.
A. My wife did go to the police but not me.

It is obvious from the record that Mr. Abdallah has a language difficulty. Earlier, the trial court judge recognizing the problem, stated for the record:

THE COURT: I understand. The objection will be overruled. I’ll make a record with regard to this. The gentleman has a difficult time explaining and speaking English and as a result of that I’m going to permit some leading questions and that will be for the record at this time.

Later, on direct examination officer Red-dick testified that Mr. Abdallah was present at the lineup and identified the defendant. Defendant’s objection to the testimony was overruled in the following exchange:

[DEFENSE ATTORNEY]: Mr. Abdallah already testified that he didn’t view a lineup or didn’t remember viewing a lineup. I think it’s improper for this officer to be allowed to say that Mr. Abdallah made an identification when he himself said he didn’t.
THE COURT: Well, I don’t know under the circumstances of this case with the manner in which Mr. Abdallah testified and the difficulty that he was having with the questions and responding to the questions. I cannot say for sure that his testimony was in some aspects of it, and I just don’t know because of those circumstances — as I said before that’s why I was permitting leading questions. This officer can testify as to whether or not the person viewed the lineup and whether he made an identification. Whether or not the person says he didn’t, that goes to the credibility and I don’t know whether — any way to handle it. If this officer viewed the action there and saw what took place.
[DEFENSE ATTORNEY]: And you will note my objection?
[592]*592THE COURT: Sure. Objection is overruled.

Officer Reddick’s testimony neither corroborates not contradicts Mr. Abdallah’s testimony, because of the absence of a clear answer to questions about his presence at the lineup. At most, Officer Reddick’s testimony is merely a clarification and explanation of Mr.

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Bluebook (online)
750 S.W.2d 589, 1988 Mo. App. LEXIS 530, 1988 WL 31992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lloyd-moctapp-1988.