State v. Allen

• Decision Date: 02 December 2008
• Docket Number: No. WD 69012.,WD 69012.
• Citation: 274 S.W.3d 514
• Parties: STATE of Missouri, Respondent, v. Johnny L. ALLEN, Appellant.
• Court: Missouri Court of Appeals

274 S.W.3d 514

STATE of Missouri, Respondent, v. Johnny L. ALLEN, Appellant.

No. WD 69012.

Missouri Court of Appeals, Western District.

December 2, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 27, 2009.

Melinda Kay Pendergraph, Columbia, MO, for appellant.

Shaun J. Mackelprang, Evan Buchheim, Jefferson City, MO, for respondent.

Before JOSEPH P. DANDURAND, P.J., HAROLD L. LOWENSTEIN and JAMES M. SMART, JJ.

JOSEPH P. DANDURAND, Judge.

Johnny L. Allen appeals his conviction following a jury trial for robbery in the first degree, section 569.020, RSMo 2000, and sentence of fifteen years imprisonment. Mr. Allen raises seven points on appeal. He claims the trial court erred in (1) admitting as evidence bib coveralls, which he claims were illegally seized; (2) admitting evidence of drugs and drug paraphernalia, which he claims was inadmissible evidence of other crimes; (3) admitting eyewitness identification evidence; (4) excluding expert witness testimony; (5) excluding as evidence the Department of Justice Guidelines on Eyewitness Evidence; (6) refusing his tendered jury instruction on eyewitness testimony; and (7) allowing two victim eyewitnesses to be present in the courtroom during a pre-trial hearing on motions to suppress evidence, over his objection. Point II is granted, the judgment of the trial court is reversed, and the case is remanded for a new trial.

Facts

Viewed in the light most favorable to the verdict, the evidence presented at trial established the following facts:

On December 24, 2006, Stephanie Hopkins and Adam Hayes were working at a Movie Gallery store in Sedalia, Missouri. Shortly after 7:00 p.m., a man entered the store, walked to the counter, and demanded money from the cash register drawer. Mr. Hayes hesitated at first, because he thought the man was joking. After the man repeated the demand for money, Mr. Hayes put cash totaling about $200 into a bag and placed the bag on the counter. The man grabbed the bag and left the store, after which Mr. Hayes called the police.

A Sedalia police officer arrived and spoke to Ms. Hopkins and Mr. Hayes. According to these two eyewitnesses, the robber was a white male, 6 feet tall, in his late forties, with gray and silver facial hair. The robber wore tan or brown colored long-sleeved coveralls, and a stocking cap and gloves. During the robbery, he covered his face with one hand, while the other hand remained in his right hand pocket. The robber announced that he was armed, although he never displayed a weapon. Based on this information, police officers began an investigation.

In a separate investigation four days later, on the evening of December 28, 2006, Sedalia police officers executed a search warrant at the residence of Johnny L. Allen. The warrant had been issued in connection with reported thefts of newspaper vending machines. During the search, police officer Kelley Casto observed two pairs of bib coveralls and a jacket hanging in the garage where they could plainly be seen. Officer Casto had heard of a robbery, and after talking to another officer present at the search, knew some of the details of the Movie Gallery robbery, specifically that the suspect was wearing coveralls. Based on this information, the officers seized the coveralls.

Police officers arrested Mr. Allen contemporaneously with the execution of the search warrant. When police performed a search of Mr. Allen's person incident to arrest, they discovered a crack cocaine pipe in his pocket. Later, when Mr. Allen's personal belongings were searched pursuant to jail procedure, a bag containing 0.31 grams of crack cocaine was revealed in his hat.

In connection with the Movie Gallery robbery, police officers employed several investigation procedures relating to the identification of the defendant. On the evening of the robbery, police officers accompanied Mr. Hayes to view a man standing at a nearby convenience store, but Mr. Hayes told them the man was not the person who had committed the robbery. Two days later, police showed a single photo of a suspect to Ms. Hopkins and then to Mr. Hayes, but they both gave a negative response. Four days after the robbery, a police officer asked a different man matching the robber's description to accompany the officer to Ms. Hopkins's house. When they arrived at Ms. Hopkins's house, she declared that the man was not the robber.

A police officer compiled a photographic lineup of five or six photos, including a suspect he thought matched the description of the robber. Neither Ms. Hopkins nor Mr. Hayes identified any of the photos in that lineup as the robber. Later, the day after the search warrant was executed at Mr. Allen's residence, the investigating detective showed a single photo of Mr. Allen first to Mr. Hayes and separately to Ms. Hopkins. Both identified the photo as the person who had robbed the store. Mr. Hayes testified that viewing the photo was a "flashback" of the exact person who had robbed the store. Ms. Hopkins testified that her reaction to the photo was like she was transported back to the evening of the robbery. A few days later, the investigating detective compiled a photographic lineup of twelve people, including Mr. Allen. This time, when the detective separately asked Mr. Hayes and Ms. Hopkins whether any of the photos included the robber, both witnesses selected Mr. Allen's photo without hesitation.

In January 2007, Mr. Allen was indicted by a Pettis County grand jury on one count of robbery in the first degree, in violation of section 569.020, RSMo 2000. The case was subsequently scheduled for trial to be held August 2, 2007.

Prior to trial, Mr. Allen filed several motions to exclude evidence. His motion to suppress the identification testimony of Ms. Hopkins and Mr. Hayes alleged that the police procedures used were unduly suggestive, rendering the identifications of Mr. Allen unreliable and violating his due process rights. Mr. Allen's motion to suppress the coveralls as evidence alleged that the evidence was inadmissible because it was the product of an illegal search and seizure. His motion in limine to exclude the drug evidence alleged it was inadmissible evidence of "other crimes."

During the hearing on the motion to suppress the identification testimony, Mr. Allen presented the testimony of Dr. Roy Malpass, an expert on eyewitness identification. The State objected that the expert testimony was inadmissible, but the trial court allowed the expert to testify for purposes of the hearing. Dr. Malpass testified about some of the problems associated with eyewitness identifications. Next, the State called a detective who testified about his preparation and presentation to the witnesses of the photo lineup. Finally, the two eyewitnesses who were also the robbery victims, Ms. Hopkins and Mr. Hayes each testified about their recollection of the robbery and their identification of Mr. Allen as the robber.

At the hearing on Mr. Allen's motion to suppress the coveralls as evidence, police officer Kelley Casto testified that when they searched Mr. Allen's residence, police observed the coveralls hanging in plain view and seized them based upon probable cause to believe the clothing was evidence related to the Movie Gallery robbery.

No testimony was offered during the hearing on Mr. Allen's motion in limine to exclude the drug evidence, but the parties presented arguments.

The trial court denied Mr. Allen's motions to suppress. The court also denied his motion in limine to exclude the drug evidence, based on the State's assertion that the evidence was admissible to show motive.

The State filed a motion in limine seeking to exclude the expert testimony of Dr. Malpass. The trial court initially denied the motion, indicating that the witnesses' identification was an issue for the jurors, who could properly consider the expert's testimony. Later, the trial court reversed itself and granted the motion.

At trial, Ms. Hopkins testified that she observed Mr. Allen's face unobstructed for a short time before he covered it with his hand. She was able to identify Mr. Allen in court as the person who robbed her. Mr. Hayes also had an independent basis for his identification of Mr. Allen. Mr. Hayes testified that he had a view of the store entrance from his counter, and he looked directly at Mr. Allen as Mr. Allen entered the store.

The jury found Mr. Allen guilty of the charged offense, and he was sentenced to fifteen years imprisonment as a prior and persistent offender. This appeal followed.

Standard of Review

On appeal, Mr. Allen alleges error in the trial court's denials of his motions to suppress evidence; the court's rulings on the admissibility of various items of evidence; the court's refusal to give one of his tendered jury instructions; and the court's ruling allowing the victim-witnesses to be present in the courtroom during pre-trial hearings.

Review of the trial court's denial of a motion to suppress evidence is limited to a determination of whether the ruling was supported by substantial evidence. State v. Sanchez, 178 S.W.3d 549, 553 (Mo.App. W.D.2005). The reviewing court views the evidence along with any reasonable inferences from the evidence in the light most favorable to the trial court's ruling and defers to the trial court's determination as to the credibility of witnesses. Id. "`The trial court's ruling will be reversed only if clearly erroneous.'" Id. (quoting State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004)).

The trial court's decision on whether to admit evidence is reviewed for abuse of discretion. State v. Smith, 136 S.W.3d 546, 550 (Mo.App. W.D.2004). "A trial court's decision to admit evidence is an abuse of discretion when it is clearly against the logic of the circumstances then before the court, and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Id.

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