State v. Glover, WD

• Decision Date: 16 September 1997
• Docket Number: No. WD,WD
• Citation: 951 S.W.2d 359
• Parties: STATE of Missouri, Respondent, v. Galen GLOVER, Appellant. 52947.
• Court: Missouri Court of Appeals

Page 359

951 S.W.2d 359

STATE of Missouri, Respondent, v. Galen GLOVER, Appellant.

No. WD 52947.

Missouri Court of Appeals Western District.

Sept. 16, 1997.

James C. Cox, Assistant Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Daniel G. Cierpiot, Assistant Attorney General, Jefferson City, for respondent.

Before SMART, P.J., and LOWENSTEIN, JJ.

LAURA DENVIR STITH, Judge.

Appellant, Galen Glover, appeals his convictions for robbery in the first degree and armed criminal action. Mr. Glover claims that the trial court erred in failing to suppress a pretrial identification of him made by Brad Williams, which Mr. Glover argues resulted from unduly suggestive procedures, and in failing to suppress the admission of a subsequent in-court identification by Brad Williams, which Mr. Glover claims was made unreliable as a result of the suggestive pretrial procedures. Because we find that the pretrial identifications were not unduly suggestive, we reject both contentions. We also reject Mr. Glover's further assertion that the trial court abused its discretion in failing to modify MAI-CR3d 302.01 to include a more detailed discussion of how to evaluate the reliability of eyewitness testimony. Missouri courts have repeatedly rejected arguments that such an additional cautionary instruction is required.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 23, 1995, Cheryl and Brad Williams were walking in their neighborhood in Gladstone, Missouri. Hearing someone approaching them from behind, Mrs. Williams stepped out of the way to let the person pass and asked her husband to do the same. A young man, later identified as Galen Horton, passed them and then stopped in front of them and demanded money. At the same time, a dark-colored car driven by Mr. Glover pulled up behind them with its headlights off. Mr. Glover then turned on the headlights and shined them into the Williams' eyes. At that point Mr. Horton again demanded the Williams' money, showed Mr. Williams a gun in his coat pocket and explained that he was not "messing around."

Mr. Williams told Mr. Horton that he did not have any money on him. Mrs. Williams unzipped her coat pockets to convince Mr. Horton that she did not have any money either. Mr. Horton then demanded Mr. Williams' wallet. Mr. Glover got out of the car and walked toward the group holding a gun in his right hand. He moved behind Mr. Williams and demanded that Mr. Williams turn over his wallet. Mr. Williams did so. Mr. Glover then walked to the car while Mr. Horton told Mr. Williams to give him his keys. When Mr. Williams did not comply Mr. Horton instead told the couple to turn around and run. Before doing so, Mr. Williams attempted to read the car's license plate number. When he arrived home he called the police and later aided them in putting together composite pictures of the suspects.

On May 24, 1995, the day following the robbery, Mr. Glover, accompanied by another man, Mr. Horton, attempted to use Mr. Williams' credit card to buy a VCR, a receiver, and a car stereo at Montgomery Ward & Co. in Overland Park, Kansas. He signed the receipt for this merchandise with the name "Brad Williams." A manager of the store, Rickey Glenn, thought Mr. Glover and his companion were behaving suspiciously and contacted the store's loss prevention manager, John Tennison. Mr. Tennison determined that the credit card did not belong to Mr. Glover and detained him until the Overland Park police arrived. Upon searching Mr. Glover, the police discovered a number of other items which had been taken from Mr. Williams' wallet.

Subsequently, Detective Brent Whittlesey of the Gladstone Public Safety Department separately showed Mr. Williams and Mrs. Williams photo lineups which included photographs of Mr. Glover and Mr. Horton. Because the police only had a color photo of Mr. Glover and a black-and-white photograph of Mr. Horton, Detective Whittlesey arranged two separate photo lineups. The first included a color photo of Mr. Glover and five other color photos of other men of similar appearance. The second included a black-and-white photo of Mr. Horton and black-and-white photos of five other men of similar appearance. Mrs. Williams identified Mr. Glover in the color photo lineup, but was unable to identify Mr. Horton or anyone else from the black-and-white photo lineup. Conversely, Mr. Williams identified Mr. Horton from the latter lineup, but identified a "filler" photo rather than Mr. Glover's photo from the color photo lineup.

On April 12, 1996, nearly eleven months after the robbery occurred, Mr. Williams again reviewed the photo lineup which included Mr. Glover's photo. The lineup included the same pictures as he had viewed the first time, including the photo which Mr. Williams had been previously told was a misidentification by him. This time he identified Mr. Glover.

Mr. Glover moved to suppress Mr. and Mrs. Williams' pretrial identifications of Mr. Glover from the photo line-ups and the ensuing in-court identifications of him. The motion was denied. At trial, both Mrs. and Mr. Williams made a positive in-court identification of Mr. Glover over his objection. Over defense counsel's objection, the prosecutor also introduced evidence about pretrial identifications of the defendant by the Williams. Rickey Glenn, the manager from Montgomery Ward, also identified Mr. Glover as the man who had attempted to use Mr. Williams' credit card and had signed the name Brad Williams to the receipt.

Defendant testified at trial that the reason he had the credit card and the rest of the contents of Mr. Williams' wallet was that he had purchased them for twenty-five dollars the day after the robbery. He admitted he knew that they were stolen, and he further admitted that he had attempted to use them to purchase merchandise. He claimed, however, that he had no involvement in the robbery itself.

Prior to submission, defense counsel requested a modification of MAI-CR3d 302.01 to include a more detailed instruction on how to evaluate the reliability of eyewitness testimony. The request was denied. The jury found Mr. Glover guilty of robbery in the first degree and of armed criminal action. The trial court sentenced him, as a prior and persistent offender, to twenty-five years on the robbery count, and fifty years on the armed criminal action count, to be served concurrently. This appeal followed.

II. DENIAL OF MOTION TO SUPPRESS IDENTIFICATIONS DID NOT VIOLATE MR. GLOVER'S DUE PROCESS RIGHTS

In his first point, Mr. Glover argues that the pretrial identification procedures were unduly suggestive, that this led to a substantial likelihood of irreparable pretrial misidentification and that this further made the subsequent in-court identification unreliable.

Our review of a trial court's order on a motion to suppress is limited to a determination of whether the order is supported by sufficient evidence. State v. Rodriguez, 877 S.W.2d 106, 110 (Mo. banc 1994); State v. Blankenship, 830 S.W.2d 1, 14 (Mo. banc 1992); State v. Glessner, 918 S.W.2d 270, 278 (Mo.App.1996). We will consider "the facts and the reasonable inferences of those facts in [the] light most favorable to the trial court's ruling." Rodriguez, 877 S.W.2d at 110(citations omitted). Accord, Blankenship, 830 S.W.2d at 14.

In determining whether evidence of pretrial or in-court identification of defendant is admissible, the courts undertake a two-part analysis. They first determine whether the lineup was "unnecessarily suggestive and conducive to irreparable mistaken identification ..." Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc.1979); State v. Sublett, 887 S.W.2d 618, 620 (Mo.App.1994); State v. Sanders, 621 S.W.2d 386, 389 (Mo.App.1981). 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. State v. Nguyen, 880 S.W.2d 627, 634 (Mo.App.1994); Sublett, 887 S.W.2d at 621 (Mo.App.1994). A determination of the suggestiveness of the pretrial procedures can require an examination of the process, including a comparison of the similarities of the subjects in the photographs and an evaluation of the conditions under which the identification occurred which are attributable to the police, including police commentary. Sanders, 621 S.W.2d at 388. ¹

If the court determines that the procedure is not unduly suggestive, then the court may admit the pretrial identification and any in-court identification. If, however, the court finds that the pretrial identification procedures were unduly suggestive, the court must proceed to the second step and determine whether the suggestive procedures have so tainted the identification as to lead to a substantial likelihood that the pretrial identification was not reliable. If so, then the pretrial identification will be excluded. Similarly, 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. Sublett, 887 S.W.2d at 620; State v. Williams, 717 S.W.2d 561, 562-63 (Mo.App.1986); Sanders, 621 S.W.2d at 389.

A. Pretrial Identification Procedures Were Not Unduly Suggestive

Mr. Glover argues that, considered as a whole, the pretrial identification procedures surrounding the lineups were unduly suggestive. In support of this argument, Mr. Glover notes that his photograph was the fifth of six photographs shown to Mrs. Williams in the first lineup. She correctly identified Mr. Glover as the robber. Mr. Williams was separately shown the same photo lineup; all photographs were in the same order in this lineup as they were in the lineup shown to Mrs. Williams. Unlike his wife,...