State v. Gray, 52090

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: KELLY; KAROHL, P.J., and SMITH
• Citation: 741 S.W.2d 35
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert J. GRAY, Defendant-Appellant.
• Docket Number: No. 52090,52090
• Decision Date: 03 November 1987

Page 35

741 S.W.2d 35 STATE of Missouri, Plaintiff-Respondent,
v.
Robert J. GRAY, Defendant-Appellant. No. 52090. Missouri Court of Appeals,
Eastern District,
Division Three. Nov. 3, 1987.
Motion for Rehearing and/or Transfer Denied Dec. 10, 1987.

Page 36

Layne C. Lohr, Asst. Public Defender, St. Louis, for defendant-appellant.

Carrie D. Francke, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Judge.

Robert Eugene Gray appeals from his conviction for two counts of robbery in the first degree and one count of armed criminal action following a jury trial. The trial court found defendant to be a prior offender and sentenced him to prison for two concurrent terms of fifteen years on the two robbery convictions with a consecutive term of three years on the armed criminal action for a total of eighteen years. We affirm.

Defendant does not challenge the sufficiency of the evidence. The evidence at trial established that on the night of January 2, 1986, victims Gina Zelenovich and Rose Vitale, both students at St. Louis University in the City of St. Louis, were leaving a liquor store near the university when they were accosted by defendant and another man. Defendant held out a gun and took Rose's purse and two gold necklaces from her as she stood near the driver's side of her car. Defendant then approached Gina who was standing on the passenger's side of the car and ordered her to give him her purse and bracelet. Defendant's accomplice stood toward the front of Rose's car during the robbery. After taking their purses and jewelry, defendant told victims to "get in your car and leave." Victims complied, and immediately drove to the university's student center to contact the police. They told police they had been robbed by two big black men and described defendant as wearing dark pants and a down-type jacket with light vest and dark sleeves. They returned with police to the scene of the crime. Mr. Eddie Lee Johnson, the liquor store owner, upon discovering the police were on his parking lot, learned that the two young women had

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been robbed. Defendant, who had been in Mr. Johnson's store earlier in the evening, returned later that night. When Mr. Johnson asked defendant if he were involved in the robbery, defendant denied it.

Within two weeks after the robbery, each of the victims had, on separate occasions, an opportunity to review a photo array of four suspects, including defendant's photograph. Both victims identified defendant as the gunman.

When defendant learned that the police were looking for him, he turned himself in. During a subsequent lineup, each victim separately viewed the lineup and each picked out defendant. Despite defendant's contention of mistaken identity, the jury found defendant guilty as charged.

Defendant raises four points on appeal. He claims the trial court erred in (1) overruling his motion to suppress the two robbery victims' pretrial lineup identifications of him because the police line-up was unnecessarily suggestive; (2) ordering defendant to provide a 911 police tape in order to refresh the recollection of a prosecution witness before her recollection had been challenged or needed to be refreshed; (3) refusing to sustain defendant's motion for sanctions because certain police reports which defendant had requested earlier in his discovery motion were not received until during the course of the trial; and (4) in not declaring a mistrial after learning that the jurors had been told by a sheriff before the conclusion of the trial that the state had to compel the attendance of one of its witnesses.

Defendant's first point contends the trial court erred in not suppressing the pretrial lineup identifications of defendant by the two robbery victims. He claims the lineups were unnecessarily suggestive because he was the only participant in the lineup wearing a distinctive down-style jacket with a lighter vest part and dark sleeves. Each victim separately viewed the lineup and each positively identified defendant as the gunman.

The law governing our scrutiny of the defendant's challenge to the identification testimony is clear. Where a pretrial identification occurs, the court will first consider whether that event was impermissibly suggestive, and thereafter, consider the reliability of the in-court identification. State v. Toney, 680 S.W.2d 268, 275 (Mo.App.1984). Thus, an out-of-court identification procedure that is suggestive does not invalidate a reliable in-court identification. State v. Littleton, 649 S.W.2d 225, 227 (Mo. banc 1983). State v. Jones, 735 S.W.2d 87, 89 (Mo.App.1987). "Reliability, not suggestiveness, 'is the linchpin in determining the admissibility of identification testimony ...' " State v. Higgins, 592 S.W.2d 151, 160 (Mo. banc 1979) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977)).

In determining reliability, the court looks at the "totality of the circumstances": (1) the opportunity of the witness to view the criminal at the time of the crime: (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Robinson, 641 S.W.2d 423, 427 (Mo. banc 1982); accord State v. Jones, 735 S.W.2d at 89.

That defendant was dressed in a jacket resembling the one that victims had previously described to the...