State v. Thomas

407 S.W.3d 190, 2013 WL 4715662, 2013 Mo. App. LEXIS 1010
Missouri Court of Appeals·Decided September 3, 2013·No. No. ED 98905·Published·Cited by 7 cases

Opinion

OPINION

MARY K. HOFF, Presiding Judge.

Maurice Anthony Thomas (Defendant) appeals from the judgment upon his conviction by a jury for one count of first-degree robbery, in violation of Section 569.020, RSMo 2000,1 and one count of armed criminal action, in violation of Section 571.015, for which he was sentenced as a prior offender to concurrent terms of twelve-years’ imprisonment. We affirm.

Factual and Procedural Background

Defendant does not contest the sufficiency of the evidence to support his conviction. Viewed in the light most favorable to the verdict, the following evidence was adduced at trial: One evening in August 2010, Victim was taking out the garbage at his home in the City of St. Louis. To get to the dumpster, Victim had to go through his backyard, which was surrounded by a high wooden privacy fence, and enter into an alley. Victim did not see anyone on his way to the dumpster.

As he was returning to his house, Victim saw Defendant and his stepbrother walk out from a neighboring property. Defendant was walking toward Victim and holding a gun. Defendant told Victim to get on his knees. Victim obeyed and, as he was getting down, Victim was looking at Defendant. Defendant then approached Victim from behind and placed the gun against his neck. Defendant asked Victim [194]*194what he had, and Victim replied, “I have my wallet.” Defendant’s stepbrother searched Victim’s pockets and pulled out his wallet. After rifling through Victim’s wallet for cash, Defendant asked Victim if he had an ATM card. Victim replied that he did.

At about that time, Victim’s roommate was coming outside to smoke a cigarette. Victim’s dog also came out and began barking. Defendant and his stepbrother took Victim’s shoes and ran down the alley. Victim waited a few seconds before getting up. As he stood up, he looked down the alleyway and saw Defendant and his companion running. Victim then told his roommate that he had been robbed. The roommate called 911. Defendant’s stepbrother was arrested after being found hiding in a garage. He was brought back to Victim’s house for a show-up lineup and Victim identified him as the man who rifled through his pockets. Defendant’s stepbrother admitted he was involved in the robbery and told police that Defendant was the other man involved in the incident. Defendant’s stepbrother later gave a taped statement to that effect.

Based on Defendant’s brother’s statement, police prepared a photo spread consisting of six photos, including Defendant’s. The photo spread was initially shown to Defendant’s stepbrother, who identified Defendant. That identification prompted police to put out a “wanted” on Defendant.

Another photo spread was created that included Defendant’s photo, and detectives went to Victim’s home so he could view the photo spread. Victim was immediately able to rule out three of the persons depicted. He testified he thought one of the persons depicted might be the gunman, but was not positive, and indicated he did not want to make an identification unless he was “completely sure.” Victim stated to police that he wanted to see the gunman in person.

Two days after the robbery, Defendant was arrested in St. Louis County. The next day, Victim viewed a physical lineup, which consisted of Defendant and three other men. Victim testified that he immediately recognized Defendant as the gunman and that he had a physical reaction to seeing him because it brought back memories of the robbery. A detective present during the line-up testified that Victim immediately began breathing heavily and immediately identified Defendant as the gunman. Victim was asked if he wanted Defendant to speak and replied, “No, there’s no need. I know that’s the gunman.”

Defendant did not testify at trial but he did present alibi testimony from his mother and sister that he had been with them at the time of the robbery. Following the close of all evidence and arguments, the jury found Defendant guilty as charged. The trial court sentenced Defendant as a prior offender to concurrent terms of twelve-years’ imprisonment on each count. This appeal follows. Additional facts are provided as needed in the discussion section below.

Out^of-Court Identifications

In his first point, Defendant argues that the trial court erred in overruling his motion to suppress Victim’s identification of Defendant because the identification procedures were impermissibly suggestive. We disagree.

Our review of the admission of evidence following a ruling on a motion to suppress is limited to determining whether the evidence is sufficient to support the trial court’s ruling. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). We consider the record made at the suppres[195]*195sion hearing as well as the evidence introduced at trial. State v. Deck, 994 S.W.2d 527, 584 (Mo. banc 1999). We consider only the facts and reasonable inferences derived therefrom that are favorable to the trial court’s ruling. State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001). The trial court’s ruling on a motion to suppress will be affirmed unless the ruling was clearly erroneous. State v. Williams, 277 S.W.3d 848, 851 (Mo.App. E.D.2009).

The test for the admission of identification testimony is two-pronged. State v. Chilton, 119 S.W.3d 176, 178 (Mo.App. E.D.2003). The first prong asks whether the pre-trial identification procedure was impermissibly suggestive. Id. If the answer to that question is yes, then the second prong assesses the impact that the suggestive procedure had upon the reliability of the identification made by the witness. Id. Reliability is the linchpin in determining the admissibility of identification testimony. Id. But a defendant must clear the suggestiveness hurdle before procuring a reliability review. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990).

Here, Defendant filed a motion to suppress testimony regarding out-of-court identifications made by Victim. The trial court held a hearing on the motion. St. Louis Police Detective Robert Skaggs (Detective Skaggs) and Detective Justin Johnson (Detective Johnson) were assigned to investigate the robbery. Detective Johnson questioned Defendant’s stepbrother after he was arrested, and he identified Defendant as his accomplice in the robbery. Detective Johnson asked Detective Skaggs to locate a photo of Defendant and place it in a photo line-up. Using a computer program that randomly generated a number of photographs, Detective Skaggs selected five to place in the line-up with Defendant’s photo. Detective Skaggs took the photo line-up to Victim’s home about three-and-a-half hours after the robbery and showed it to him. Detective Skaggs testified that his normal practice was to inform the witness that the person responsible for the crime may or may not be in the array. At this point, Victim was unable to make an identification.

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State v. Thomas, 407 S.W.3d 190, 2013 WL 4715662, 2013 Mo. App. LEXIS 1010 (Mo. Ct. App. 2013).

407 S.W.3d 190 (State v. Thomas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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