State v. Berry
| Decision Date | 30 August 2005 |
| Docket Number | No. WD 63648.,WD 63648. |
| Citation | 168 S.W.3d 527 |
| Parties | STATE of Missouri, Respondent, v. Glenn BERRY, Appellant. |
| Court | Missouri Supreme Court |
Jeannie Marie Willibey, Asst. Public Defender, Kansas City, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Attorney General, Jefferson City, for respondent.
Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
Glenn Berry appeals his conviction by a jury of second-degree murder, for which he was sentenced to thirty years' imprisonment. He contends that the trial court erred in admitting identification evidence that was obtained via impermissibly suggestive procedures. He also complains that the trial court should have intervened sua sponte with regard to improper argument. Finally, he complains as to the trial court's erroneous admission of hearsay evidence. The judgment is affirmed.
Glenn Berry was convicted of second-degree murder in the death of his sixteen-year-old girlfriend, Carita Johnson. The death occurred in May 1998. The facts are recited in a light favorable to the verdict. State v. Barriner, 111 S.W.3d 396, 397 (Mo. banc 2003).
At trial, one of the witnesses was military police sergeant Richard Nero, who saw Berry assaulting a young woman in Kansas City shortly after midnight on the same night that Carita Johnson disappeared.
On that night, Sergeant Nero and his wife stopped at a stoplight at 47th and Troost in Kansas City and observed a couple fighting about thirty to forty feet away from the intersection. The man was holding the woman by her blouse and striking her in the face with his fist. Nero made a right turn onto Troost, then made a U-turn, and pulled up to the curb next to the couple. The area was well lighted. Nero got out of the car and walked up to the couple. The man who was striking the woman looked directly at Nero, made eye contact, and then ran off to the east. Nero and his wife tried to persuade the young woman to let them call the police or take her to the hospital. She said the man was her boyfriend and that he would return. Mr. and Mrs. Nero remained there for several minutes, then finally left. The Neros left Kansas City to move to North Carolina the next day.
Carita Johnson never came home. Her vehicle was found early that morning abandoned in the drive-through lane of a nearby fast-food restaurant.
About 7:00 a.m. the next morning, a patrol officer was flagged down by Berry, who seemed somewhat hysterical. Berry wished to report to the officer that he had been attacked and beaten by some men, who then drove off. Berry had some scratches on his face. He had a towel around his neck. He mentioned nothing about Carita Johnson. There was no indication that Berry needed emergency medical care. The officer took the report and left.
Shortly after Carita's disappearance, the police questioned Berry, photographs were taken, and evidence was collected, but no charges were filed. Berry had scratches on his face and his neck. Carita's family was suspicious of Berry's involvement in Carita's disappearance, but he assured them he knew nothing. Everything was fine with Carita, he said, when she left him at his house.
In September 1998, Sergeant Nero, who then knew nothing of the disappearance, saw a young woman pictured on a missing person poster and recognized her as the woman he had tried to help a few months earlier in Kansas City. The young woman on the poster was Carita. Nero contacted Kansas City police at that time, but no follow-up was done. Almost two years later, in February 2001, Nero contacted Kansas City police again about the case. Police made arrangements for him to come to Kansas City and view a photographic lineup. It was not until May 10, 2001, almost three years after the incident he had observed, that police actually showed him a lineup. At that time, he identified Berry "within two seconds" after being shown the six-person photo spread. Nero also identified a picture of Carita's car as the same purple car he had seen parked near the site of the altercation.
Initially, Berry denied any knowledge of Carita's murder. Later, however, Berry provided information to the police about her death and took police to the location where he had buried her body. The police found Carita's skeletal remains inside a trash bag at the site. Due to the decomposition of the body, investigators were unable to determine what actually caused Carita's death. The cause of death was listed as "undetermined violence."
Berry gave a videotaped statement about the death. He stated that in the early morning hours of May 31, Carita drove him in her car to his house. He indicated that the two had been arguing and that when they got out of the car, Carita threw rocks at him. He stated that her death resulted from a blow to her head when he forcefully pushed her against a rock retaining wall. The next day, Berry gave another videotaped statement after being confronted with forensic evidence that contradicted his contention that the blow to her head killed her. He again indicated that Carita's death resulted from a fight between them. This time, though, he stated that while Carita was swinging her fists at him, he grabbed her around the neck with one hand to keep her distance from him and that her body eventually went limp. He stated that after she went limp, he forcefully pushed her against the rock retaining wall. He indicated in his statements that he tried repeatedly to revive her. He said that he thought of getting help for her, but never did because he was scared. Eventually, he said, he wrapped her body in garbage bags and buried her behind a nearby apartment building.
Berry did not concede being at 47th and Troost with Carita that night. Berry said they were at his house when the physical altercation began. Berry still does not concede that he and Carita were at 47th and Troost, where Sgt. Nero believes he observed them.
The State's evidence at trial indicated that Carita and Berry had a rocky relationship. Although Berry did not testify at trial in the guilt phase, his two videotaped statements were played for the jury, and the court admitted the transcripts as exhibits.
Nero testified as to what he had observed in 1998 at 47th and Troost. His testimony and descriptions at trial differed slightly from his earlier statements. He stated at trial, for example, that the young woman appeared to be fighting back. He also elaborated that when he got out of his car, he was within eight to ten feet of the man he later identified as Berry, and that he and his wife remained with Carita for twenty minutes before leaving. There were some minor variances in Nero's physical descriptions of the couple. Nero identified Berry in court. The State also introduced evidence of his out-of-court identification over objection.
During the opening portion of the State's closing argument, the assistant prosecutor told the jury: "... all of you have to agree that it's not murder second degree before you consider voluntary manslaughter and then if voluntary manslaughter is not something you all unanimously agree on, go then and only then down to involuntary manslaughter...." Defense counsel did not object to this statement of the law. The jury was instructed as to second degree murder as well as the two lesser offenses of voluntary manslaughter and involuntary manslaughter. The jury returned a guilty verdict on the second-degree murder charge.
During the sentencing phase of Berry's trial, additional evidence was presented to the jury. The jury ultimately assessed punishment at thirty years. This appeal follows.
In Berry's first point, he contends that the trial court erred in permitting, over objection, the identification evidence to be admitted at trial. He argues that the identifications were obtained through the use of impermissibly suggestive procedures and were thus unreliable.
The trial court's decision to admit identifications at trial is discretionary, and we will not disturb that decision unless we find an abuse of discretion. State v. Chilton, 119 S.W.3d 176, 177-78 (Mo.App.2003).
Berry claims that the court clearly erred and abused its discretion in admitting the identifications at trial. "[T]he crucial test for admission of identification testimony is two-pronged: (1) was the pretrial identification procedure impermissibly suggestive, and (2) if so, what impact did the suggestive procedure have upon the reliability of the identification made by the witness." State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989). To prevail on this point, Berry must prove that the procedures employed by the police were impermissibly suggestive, and, then, that the suggestive procedures made the identifications unreliable. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990). "A pretrial identification procedure is unduly suggestive if the identification results not from the witness' recall of first-hand observations, but [] from the procedures or actions employed by the police." State v. Glover, 951 S.W.2d 359, 362 (Mo.App.1997). Although "reliability is the linch-pin in determining the admissibility of identification testimony," Berry must show that there was a problem with the degree of suggestiveness before obtaining a reliability review. See Vinson, 800 S.W.2d at 446 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). "Identification testimony will be excluded only when the procedure was so suggestive that it gave rise to a very substantial likelihood of irreparable misidentification." Hornbuckle, 769 S.W.2d at 93. Where the defendant fails to establish that the procedures were unduly suggestive, the factors considered in the reliability prong of the...
To continue reading
Request your trial
-
In re M.P.
...v. State, 933 P.2d 537, 539 n. 10 (Alaska 1997) (existence of right of confrontation at sentencing "is debatable"); State v. Berry, 168 S.W.3d 527, 539-40 (Mo. Ct.App.2005) ("There is ample doubt and confusion about the application of the Sixth Amendment in this context."); Ledbetter v. Sta......
-
State v. Salazar
...111, 116 (Mo.App.E.D.2009). “The decision to grant a mistrial is within the sound discretion of the trial court. State v. Berry, 168 S.W.3d 527, 535 (Mo.App.W.D.2005). We review the denial of a request for a mistrial only for abuse of that discretion.” State v. Davis, 201 S.W.3d 141, 144 (M......
-
State v. Barriner
...or applied the law, its ruling on an objection to in-court identification testimony becomes a matter of discretion. State v. Berry, 168 S.W.3d 527, 532 (Mo.App.2005). Hence, we will not disturb a trial court's ruling on an objection to in-court identification evidence, unless we find an abu......
-
State v. Eoff
...identification results from police procedures or actions, rather than the witness' recall of first-hand observations. State v. Berry, 168 S.W.3d 527, 532 (Mo. App.2005); State v. Glover, 951 S.W.2d 359, 362 (Mo.App.1997). "Identification testimony will be excluded only when the procedure wa......
-
§403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
...and the history and character of the defendant.'" Martin v. State, 291 S.W.3d 846, 849 (Mo. App. W.D. 2009) (quoting State v. Berry, 168 S.W.3d 527, 536 (Mo. App. W.D. 2005)); see § 557.036.3, RSMo Supp. 2019. During this phase, "[b]oth the State and the defense may introduce any evidence r......
-
Section 16.17 Dealing With an Unsympathetic Prosecutor, Judge, or Both
...hearsay evidence that does not fall within a settled exception is inadmissible in a noncapital sentencing proceeding. State v. Berry, 168 S.W.3d 527, 539–40 (Mo. App. W.D. 2005). In State v. Clark, 197 S.W.3d 598, 600 (Mo. banc 2006), the Supreme Court held that evidence of prior criminal c......
-
Section 27.3 Role of the Jury
...during the sentencing phase of a bifurcated trial: · Hearsay is not admissible unless a recognized exception applies. State v. Berry, 168 S.W.3d 527 (Mo. App. W.D. 2005). · The defendant has an absolute right to testify. State v. Edwards, 173 S.W.3d 384 (Mo. App. E.D. 2005). · The jury is n......