State v. Conrick

• Decision Date: 04 September 2012
• Docket Number: No. WD 74061.,WD 74061.
• Citation: 375 S.W.3d 894
• Parties: STATE of Missouri, Respondent, v. Michael Thomas CONRICK, Appellant.
• Court: Missouri Court of Appeals

375 S.W.3d 894

STATE of Missouri, Respondent,

v.Michael Thomas CONRICK, Appellant.

No. WD 74061.

Missouri Court of Appeals, Western District.

Sept. 4, 2012.

John W. Grantham, Jefferson City, MO, for respondent.

Amy M. Bartholow, Columbia, MO, for appellant.

Before Division Three: VICTOR C. HOWARD, Presiding Judge, KAREN KING MITCHELL, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

Michael Conrick (“Conrick”) appeals from his conviction following a jury trial ¹ of first-degree robbery and armed criminal action. Conrick argues that the trial court erred in overruling a motion to suppress and in overruling objections at trial regarding the admission of out-of-court and in-court identifications of Conrick by the robbery victim and a witness on the grounds that the identifications were the result of unduly suggestive police procedures. We affirm.

Factual and Procedural Background²

On August 4, 2009, LeRoy Gosseen (“Gosseen”) lived in a senior housing apartment complex in Holt, Missouri. That morning, Gosseen's housekeeper took him to the bank to cash a disability check. The housekeeper's son, Michael Mitchell (“Mitchell”), was at Gosseen's residence for a few moments before the housekeeper took Gosseen to the bank. The implication from Gosseen's testimony is that Mitchell may have known of Gosseen's plan to go to the bank.

At around 9:30 p.m., Gosseen was speaking on his cell phone. As he finished his call, his unlocked front storm door ³ opened, and a man entered Gosseen's residence. Gosseen had never seen the man before. The man approached Gosseen and stood about three feet from him. The man put out his hand and demanded, “Give me your money.” Startled, Gosseen said, “What?” The man repeated his demand. Gosseen said, “You—you don't want to do this thing.” The man pulled out a pistol and pointed it at Gosseen's head and said, “I don't want to hurt you, give me your money.” Gosseen complied, handing over approximately $1,500.00. The man left, taking Gosseen's cell phone with him.

Conrick was later identified by Gosseen in a photo line-up. Conrick was also identified in a photo line-up by a neighbor, Raymond James (“James”). James had confronted two men in the area in the afternoon on the day of the robbery. James also identified Mitchell in the same photo line-up as the second man he confronted.

Prior to trial, Conrick's counsel (“Trial Counsel”) filed a motion to suppress all out-of-court and in-court identification testimony (“Motion”).⁴ Trial Counsel argued that the photo lineup was tainted by unduly suggestive police procedures, and that the photo lineup had irretrievably tainted the anticipated in-court identification testimony from Gosseen and James. The trial court overruled the Motion.

The only evidence at trial implicating Conrick in the robbery was evidence relating to James's and Gosseen's identifications. No other physical or circumstantial evidence connected Conrick to the robbery. Trial Counsel unsuccessfully objected to the photo lineup and to in-court identification testimony throughout trial. Conrick's post trial motion addressing the photo lineup and in-court identification testimony was denied.

The jury convicted Conrick of first-degree robbery and armed criminal action. Conrick was sentenced to ten years imprisonment on the first count, and five years imprisonment on the second count, to be served consecutively.

Conrick filed this timely appeal.

Standard of Review

“[A]ppellate courts will reverse a ruling on a motion to suppress only if it is clearly erroneous and will reverse admission of testimony only if the trial court abused its discretion.” Foster v. Missouri, 348 S.W.3d 158, 161 (Mo.App. E.D.2011) (citation omitted).

Analysis

In Conrick's single point on appeal, Conrick alleges that the trial court erred in overruling his Motion and his trial objections to Gosseen's and James's out-of-court and in-court identifications of Conrick. Conrick claims “that the State's pretrial identification procedures were unduly suggestive and led to a substantial likelihood of irreparable pretrial misidentification, making subsequent identifications unreliableas a matter of law.” Specifically, Conrick claims that the State used “photos that bore no resemblance to Conrick, pairing him in a lineup with a suspect known to be present at Gosseen's apartment, and suggesting that the suspect was in the lineup,” and that as a result, Gosseen and James were led “to identify the only possible suspect that matched their descriptions, and Conrick was prejudiced because the identification testimony was the sole evidence linking him to these crimes.”

Conrick has argued no basis to exclude the in-court identification testimony other than that it was irreparably tainted by the unduly suggestive nature of the photo lineup. We focus our analysis, therefore, on whether the photo lineup was unduly suggestive, and on whether the trial court erred in overruling the Motion and the trial objections seeking to exclude the photo lineup.

Pretrial Identification Procedures

In determining whether pretrial identification of a defendant is admissible, a trial court must engage in a two-step analysis. State v. Hunter, 43 S.W.3d 336, 340 (Mo.App. W.D.2001) (citing State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989) (other citations omitted)). The first step requires the court to determine whether the pretrial identification (here a photo lineup) was unduly suggestive. Id. If so, and only if so, the second step requires the court to determine the impact of the suggestive procedure on the reliability of the identification. Hornbuckle, 769 S.W.2d at 93.

With respect to the first step of the analysis, a pretrial identification procedure “ ‘is unduly suggestive if the identification results not from the witness's recall of first-hand observations, but rather from the procedures or actions employed by the police.’ ” Hunter, 43 S.W.3d at 340 (quoting State v. Glover, 951 S.W.2d 359, 362 (Mo.App. W.D.1997)). If the pretrial identification procedure was not unduly suggestive, “ ‘then the court may admit the pretrial identification and any in-court identification,’ ” without consideration of the second step. Id. (quoting Glover, 951 S.W.2d at 362).

If the second step of the analysis is required, the court must determine “whether the ‘suggestive procedures [as found] have so tainted the identification as to lead to a substantial likelihood that the pretrial identification was not reliable.’ ” Id. (quoting Glover, 951 S.W.2d at 362). In assessing reliability, the court is to consider:

1) the opportunity of the witness to view the subject; 2) the witness's degree of attention; 3) the accuracy of any prior description given by the witness; 4) the level of certainty demonstrated by the witness in making the identification; and 5) the interval between the event and the identification procedure.

Id. at 341 (citing State v. Middleton, 995 S.W.2d 443, 453 (Mo. banc 1999)). If the assessment of these factors leads to the conclusion that the pretrial identification procedure was unreliable, “then the pretrial identification will be excluded.” Id. at 340 (citing Glover, 951 S.W.2d at 362). “Further, ‘if the court finds that the suggestive procedures have so affected the witness as to lead to a substantial likelihood that an in-court identification would not be reliable, then no in-court identification will be permitted.’ ” Id. (quoting Glover, 951 S.W.2d at 362).

Motion to Suppress

We first apply this systematic framework for evaluating claims of error in admitting pretrial identification evidence to Conrick's Motion.

In his Motion, Conrick complained that the photo lineup contained photographs that did not resemble Conrick “in any significant way.” The Motion alleged that “[a]ll of the men in the photographic line-up were blonde or heavier than the defendant.” ⁵ The Motion then generally alleged that “the inherent suggestiveness of the photographic lineup, and other circumstances were such” that Gosseen and James were given the “distinct impression” that Conrick was the suspect in the robbery, tainting any ability of either witness to independently identify Conrick as the perpetrator via an in-court identification.

The trial court conducted an evidentiary hearing on the Motion on September 27, 2010. The only witness to testify at the hearing was Detective Tracy Strahm (“Strahm”), a detective with the Clinton County Sheriff's Department. On direct examination by the State, Strahm testified that she provided both Gosseen and James with a photo line-up that included Conrick's picture. She testified that both gentlemen had face-to-face contact with Conrick on August 4, 2009.

Strahm reported that on the night of the robbery, Gosseen told her that the man who robbed him stood within two to three feet of him. She reported that Gosseen identified the man as having dark hair with a pencil-like mustache, and wearing blue jeans and a t-shirt. Strahm referred to her report and added that Gosseen told her the man was about five feet six inches tall. Strahm found no reference in her report to the man's weight or build.

Strahm then identified the photo lineup used during her investigation. She reported that Gosseen identified photograph number 4 (Conrick) as the man who robbed him. Strahm said that she presented the photo lineup to Gosseen seven days after the robbery. She testified that she did not point Conrick out to Gosseen, and that she did not give him any hints.

In addressing the six photographs in the lineup, Strahm testified that three of the individuals had dark brown hair, and three of the individuals were blonde. All of the photographs were of men. Strahm testified that none of the individuals were wearing Department of Corrections' jumpsuits, and that all were in every day street clothes.

Strahm testified that sometime after Gosseen's identification of Conrick from the photo lineup, Gosseen asked to see a “more recent picture”...