State v. Murray

428 S.W.3d 705, 2014 WL 1499511, 2014 Mo. App. LEXIS 409
CourtMissouri Court of Appeals
DecidedApril 15, 2014
DocketNo. ED 99089
StatusPublished
Cited by23 cases

This text of 428 S.W.3d 705 (State v. Murray) 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. Murray, 428 S.W.3d 705, 2014 WL 1499511, 2014 Mo. App. LEXIS 409 (Mo. Ct. App. 2014).

Opinion

LISA S. VAN AMBURG, Presiding Judge.

INTRODUCTION

Kevin Murray (“Defendant”) appeals from the trial court’s judgment entered upon a jury verdict convicting him of one count of robbery in the first degree and one count of armed criminal action. Defendant argues that the trial court erred by: (1) admitting into evidence the victim’s identification; (2) denying his Batson1 challenge to the State’s peremptory strikes of three African-American venirepersons; and (3) overruling his objections to the submission of jury instructions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 2, 2011, just before one o’clock in the morning, the victim in this case, D.J. (“Victim”), was walking on Arsenal Street in the City of St. Louis when two men, whom he later identified as Defendant and Shyrus Woods, approached him from behind and demanded his money at gunpoint. Victim later testified he came “eye-to-eye” with Woods holding a gun. When Woods threatened to shoot, Victim told the men to take his wallet. Defendant stood to Victim’s right-hand side and Victim testified he got a good look at Defendant as he approached and retrieved Victim’s wallet from his pocket. Woods then ordered Victim to face the other way, and Defendant and Woods fled.

Using his cellular phone, Victim testified he immediately called the police, who arrived at the scene in “[l]ess than a minute.” Victim provided a description of the two men and the direction they fled to the police officers. Two police cars then drove off in search of the suspects while Victim answered questions in the backseat of a third police car for approximately fifteen minutes. While searching the nearby streets, police encountered Defendant and Woods, and detained them because they matched the description of the suspects. Police transported Victim to where they were holding Defendant and Woods to conduct an identification procedure commonly known as a “show-up.” Victim arrived at the show-up and immediately identified Defendant as the man who took his wallet. Police then presented Woods, and Victim identified him as the gunman.

Police arrested Defendant and Woods, and the State charged each with one count of robbery in the first degree2 and one count of armed criminal action.3 The State tried Defendant and Woods together as co-defendants during a single jury trial. Before trial, Defendant filed a motion to [709]*709suppress his identification from the show-up, arguing that police had obtained it using impermissibly suggestive procedures. After a hearing, the trial court denied the motion as well as his later objections at trial, and admitted the identification testimony into evidence.

During jury selection, Defendant raised Batson challenges when the prosecutor moved to strike six African-Americans from the venirepanel. Ultimately, the court overruled Defendant’s challenge to four of the six African-Americans peremptorily struck by the State.

At the jury instruction conference, Defendant objected to the State’s proposed verdict directors because they failed to specify the time and location of the robbery. Defendant argued this lack of information was misleading because it did not include the “time” and “location” of the robbery, and it “gives too much leeway without modeling the indictment in this case.” The trial court denied his objection.

After deliberations, the jury convicted Defendant and Woods of robbery and armed criminal action. The trial court sentenced Defendant to concurrent terms of ten years’ imprisonment for the robbery and six years’ imprisonment for armed criminal action. The trial court denied Defendant’s timely filed a motion for judgment of acquittal, or new trial. This appeal follows.

STANDARD OF REVIEW

We review the trial court’s denial of a motion to suppress identification testimony, by considering the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists to support the trial court’s ruling. State v. Nelson, 334 S.W.3d 189, 193 (Mo.App.W.D.2011). “[W]e review the facts and inferences therefrom in the light most favorable to the trial court’s ruling, and disregard all contrary inferences.” State v. Chambers, 234 S.W.3d 501, 512 (Mo.App.E.D.2007). We will not disturb the trial court’s decision to admit or exclude such evidence unless there has been an abuse of discretion. Id.

“We review the trial court’s denial of a Batson challenge for clear error.” State v. Thomas, 407 S.W.3d 190, 196 (Mo.App.E.D.2013). We will reverse the court’s decision on a finding of clear error only if we are left with a definite and firm impression that a mistake has been made. State v. McFadden, 216 S.W.3d 673, 675 (Mo. banc 2007). We accord the trial court “great deference” on a Batson challenge “because its findings of fact largely depend on its evaluation of credibility and demean- or.” State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010).

Lastly, we review a “claim of instructional error de novo, evaluating whether the instruction was supported by the evidence and the law.” State v. Pennell, 399 S.W.3d 81, 92 (Mo.App.E.D.2013). If an error occurred in submitting the instruction, we will reverse the trial court’s decision only if the instructional error misled the jury and is so prejudicial that it deprived the defendant of a fair trial. State v. Tisius, 362 S.W.3d 398, 412 (Mo. banc 2012).

DISCUSSION

In his first point, Defendant contends the trial court erred in overruling his motion to suppress Victim’s identification during the show-up because the police procedures were impermissibly suggestive, and therefore unreliable. We disagree.

We review the trial court’s decision to admit identification testimony into evidence using a two-pronged test. State v. Secrease, 859 S.W.2d 278, 279 (Mo.App. [710]*710E.D.1993). “The first prong asks whether the pre-trial identification procedure was impermissibly suggestive.” Thomas, 407 S.W.3d at 195. Only if the answer to the first prong is “yes,” will we move to the second prong and assess the reliability of the identification. Id. (“[A] defendant must clear the suggestiveness hurdle before procuring a reliability review.”).

“A pre-trial identification procedure is unduly suggestive if the identification results not from the witness’s recollection of first-hand observations, but rather from the procedures or actions employed by the police.” Chambers, 234 S.W.3d at 513. Police procedures will be found unduly suggestive if the witness’s identification at the scene of the arrest is made in response to the suggestions or encouragement of the police, rather than due to the witness’s own “observation and visual recollection of the defendant’s appearance.” State v. Overstreet, 694 S.W.2d 491, 495 (Mo.App.E.D.1985).

Here, before conducting the show-up, police officers informed Victim that they had located two suspects who “might” fit the description of the suspects.

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Bluebook (online)
428 S.W.3d 705, 2014 WL 1499511, 2014 Mo. App. LEXIS 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-murray-moctapp-2014.