State v. Brand

• Decision Date: 20 February 2018
• Docket Number: No. ED 104624,ED 104624
• Citation: 544 S.W.3d 284
• Parties: STATE of Missouri, Respondent, v. Anthony D. BRAND, Appellant.
• Court: Missouri Court of Appeals

544 S.W.3d 284

STATE of Missouri, Respondent,

v.Anthony D. BRAND, Appellant.

No. ED 104624

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: February 20, 2018

Rehearing and/or Transfer to Supreme Court Denied April 10, 2018

Andrew E. Zleit, 1010 Market St., Ste 1100, St. Louis, MO 63101, for appellant.

Joshua Hawley, Cristine Lesicko, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Anthony D. Brand ("Brand") appeals from the judgment of the trial court following a jury trial in which he was convicted of multiple felonies. Brand raises three points on appeal. Point One contends that the trial court erred in limiting Brand's cross-examination of a detective regarding his knowledge of the police-identification-lineup policies. Point Two alleges that the trial court abused its discretion by sua sponte providing the jury with the MAI–CR 3d 312.10 instruction (often referred to as the "hammer instruction"). Point Three argues that the trial court erred in entering judgment for the class C felony of stealing instead of classifying the charge as a misdemeanor,

The trial court did not err in restricting Brand's cross-examination of the detective because Brand did not adequately preserve the matter for appeal and, further, because the inquiry was not legally relevant. The trial court did not abuse its discretion by giving the hammer instruction because the jury spent approximately six hours deliberating, the trial court did not know how the jury was split, and the instruction complied with the Notes on Use. Finally, because the enhancement provisions of Section 570.030.3¹ do not apply to the definition of stealing in Section 570.030.1, Brand's felony-stealing conviction must be reversed and remanded for resentencing as a misdemeanor. In all other respects, we affirm the trial court's judgment.

Factual and Procedural History

Victim, a pizza-delivery driver, delivered a pizza to a fairly lit residential area at approximately 11:30 p.m. Victim parked, walked between two vehicles, opened a gate, heard a man say "That's mine[,]" and turned around to see and feel a gun in his face. The man then demanded Victim's money and keys. Victim was able to see the man within his arm's length. The man's face was not concealed. Victim described the man as African–American, wearing all black clothes and a black baseball cap, about 5–foot, 10–inches tall, and a little stocky. The man then drove away in Victim's truck.

Three days later, Victim spotted his stolen truck and contacted the police. The detectives instructed victim to leave the truck at its current location. The detectives set up surveillance to watch the truck, and pursued the truck when someone began driving away. During the pursuit, the detectives laid down spike-strips. The truck drove over the spike-strips, lost control and smashed into a light post. The detectives took Brand and a female passenger into custody after they ran from crashed truck. The detectives found multiple computer tablets in the passenger compartment of the truck with "Office Max" stickers on them. The detectives investigated the local Office Max store and discovered that a theft had just occurred. The next day, police called Victim into the station to view a lineup, where Victim identified Brand as his assailant.

The State charged Brand with (Count I) a class A felony of robbery in the first degree, (Count II) an unclassified felony of armed criminal action, (Count III) a class C felony of stealing over $500, (Count IV) a class C felony of tampering with a motor vehicle, and (Count V) a class D felony of resisting arrest. Brand moved to suppress Victim's identification, alleging that the identification was inherently suggestive. The trial court held a pre-trial hearing, and denied Brand's motion. The case proceeded to a jury trial.

The following testimony relating to the identification was elicited during trial. Detective Timothy Banks ("Det. Banks") oversaw the lineup and chose the lineup participants. Det. Banks selected the participants from persons in custody at the Justice Center. Brand was wearing an all-red outfit during the lineup, obtained from the Justice Center; he was participant number two. Participants number one, three, and four were wearing a red shirt over their regular tops, but not red pants. Det. Banks was not involved in the actual administration of the lineup. On cross examination, Brand inquired whether Det. Banks was "familiar with the policy and protocol about how lineups are to be conducted according to the St. Louis Metropolitan Police Department[.]" The State objected to this question on relevancy grounds. The following conversation occurred at the bench:

COURT: [Defense], we went into this at great length yesterday, if I remember correctly, and [the State] has now finally objected.

In my opinion the procedures of the police department are not relevant for what the jury has to decide. They're only relevant, if at all, for what the Court has to decide in terms of pretrial issues.

So I just want you to understand why I'm going to sustain the objection. Okay?

DEFENSE: Thank you, Your Honor.

If I may, just for purposes of the record, I would request to be permitted to question on this. I think especially in light of the new instruction, all of the factors are to be considered in the reliability of the officers. Isn't that the question? And their credibility is the question.

If they don't even know their own procedures and know what they're doing, I think that's something that the jury needs to know about. I think it's fair game for cross-examination.

COURT: I understand your position. I'll adhere to my ruling.

Detective Phillip Harden ("Det. Harden") acted as a blind administrator during the lineup, Det. Harden met Victim in front of the Justice Center, and advised Victim of general lineup processes. Det. Harden encouraged Victim to wait until he saw all of the lineup participants before making any identification.

Brand cross-examined Det. Harden extensively regarding the lineup procedure. Regarding the general procedures for a lineup, Det. Harden testified that, typically, participants are chosen from the Justice Center prisoners; the goal of the lineup is to find persons who are similar in age, race, skin tone, height, weight, and similarly dressed; the witness or victim typically fills out a lineup-viewing form after the lineup; and protocol requires at least five participants. Regarding the particular lineup here, Det. Harden did not select the participants; a total of four men participated; and Det. Harden did not write a report. Det. Harden also observed the photos of the lineup participants and determined that Brand was the only participant wearing all red clothing. Brand also was the only participant wearing two bracelets, one of which was gold.

Prior to and while viewing the lineup, the detectives did not give Victim information about any particular suspect. Victim observed four persons, sequentially, and Victim requested that each lineup participant say "That's mine." When the detectives brought in participant number two, Victim recognized him immediately, Victim was, without a doubt, certain that participant number two was the man who robbed him. However, Victim viewed all four subjects before identifying participant number two as his assailant. After the lineup was complete, Victim testified that Det. Banks informed him that he had picked one of the persons arrested from his truck. Subsequently, Victim made an in-court identification of Brand as his assailant. The case was submitted to the jury.

The jury began its deliberations at 12:48 p.m. At 3:50 p.m., the jury had reached verdicts on Counts III, IV, and V, but had not yet reached verdicts on Counts I and II. The trial court ordered the jury to deliberate further. At 5:25 p.m., the jury sent a note, stating that "[a]fter continued discussion, the jury remains split with no resolve in sight. What should we do next?" The trial court pondered whether to bring the jury back the next day and give them the hammer instruction. The trial court asked both parties for their input. The State suggested that the trial court either inquire of the jury whether further deliberations would do any good before issuing the hammer instruction, or release the jury for the night and resume deliberations in the morning. Brand requested a response to the jury encouraging further deliberation. The trial court terminated the jury's deliberations for the night, and scheduled deliberations to resume the next morning:

COURT: At that time, however, it is my intention to give the so-called hammer instruction because I think the jury has signified a deadlock and they've been out for four and a half plus hours—almost four and a half.

DEFENSE: Your Honor, for purposes of the record, I would just make an objection to reading them the hammer unless—well, under any circumstances, but certainly not unless they write us another letter saying that they're still deadlocked.

The next morning over Brand's objection, the trial court gave the hammer instruction to the jury prior to any continued deliberations. The jury then deliberated from 9:32 a.m. until 11:05 a.m. The jury convicted Brand on all five counts. The trial court denied Brand's post-trial motions and sentenced him to a total of twenty-five years in prison. Brand now appeals.

Points on Appeal

Brand raises three points on appeal, In Point One, Brand claims that the trial court erred in precluding his inquiry of Det. Banks's knowledge of the police lineup policies. Brand maintains that Det. Banks's knowledge of the policies was relevant in determining whether Victim made a mistaken identification. In Point Two, Brand alleges that the trial court abused its discretion by sua sponte providing the jury with the hammer instruction. In Point Three, Brand contends that the trial court erred in entering judgment for the class C felony of stealing. Specifically, because...