State v. Gray, 52090

Decision Date03 November 1987
Docket NumberNo. 52090,52090
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Robert J. GRAY, Defendant-Appellant.
CourtMissouri Court of Appeals

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 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 officers on the night of the robbery is not impermissibly suggestive. Defendant agreed to appear in the lineup. When he had turned himself into the police, he was wearing the jacket and nothing in the record reflects that the police forced him to wear the jacket when victims viewed him in the lineup. Further, dissimilarity and physical appearance alone are insufficient to establish impermissible suggestiveness. State v. Reasonover, 700 S.W.2d 178, 183[4, 5] (Mo.App.1985). The state also has noted that the victims positively identified defendant from the photo arrays previously shown in which defendant's clothing was not visible.

The reliability of the identification dispels any cloud cast by defendant's assertion of suggestiveness. The out-of-court identifications took place within one month of the robbery. Both women had sufficient opportunity to view defendant at the time of the crime. Although the robbery occurred in the evening, there were street lights in the vicinity. Further, each victim testified that defendant stood within an arm's length of each of them as he took their jewelry. Their lineup identifications reflected certitude and accuracy, as did their in-court identifications. Defendant's first point is denied.

Defendant's second point complains of the trial court's action in ordering the defense, despite objection, to provide the prosecution with a "911" call to the police at the university's student center after the robbery. In her call she stated she had been robbed by two big black men. The defense availed itself of the opportunity to have a copy of the tape made for the purpose of possibly impeaching Gina. Defendant argues that the possibility of his attacking her credibility during cross-examination by impeachment was thwarted by letting her review the tape's contents before her recollection had been challenged or shown need of refreshing.

The stumbling block impeding defendant's position is that the tape was a public record. Further, the tape was equally available to both parties and not, as work product might be, the exclusive domain of defendant. We discern little difference between this situation and the common practice where a party suggests to its witness to review the witness's deposition before trial. We find no merit to defendant's second point.

In his third point defendant raises the issue whether sanctions are required when a defendant learns during trial that certain police reports have not been furnished despite defendant's timely request for discovery. Certain police arrest reports contained statements made to police by defendant after he had turned himself into police custody, where he was then advised of his Miranda rights. In these statements defendant reportedly denied any involvement in the crime, expressed his desire to be in a lineup and his intention to sue anybody who picked him out. He also declared he did not have a toy or teargas gun and that when he carried a gun, he carried a real gun.

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4 cases
  • State ex rel. Cincinnati Enquirer v. Hamilton Cty., s. 95-675
    • United States
    • Ohio Supreme Court
    • March 6, 1996
    ...regarding preservation and disposition of such records promulgated by the public records administrator * * *."); State v. Gray (Mo.App.1987), 741 S.W.2d 35, 38 (911 tape was a public record); cf. Payne v. Grand Rapids Police Chief (1989), 178 Mich.App. 193, 443 N.W.2d 481 (court, although n......
  • State v. Simms, 55727
    • United States
    • Missouri Court of Appeals
    • April 23, 1991
    ...when a juror engages in an unpermitted communication with a third person which is related to the cause being heard. State v. Gray, 741 S.W.2d 35, 39-40 (Mo.App.1987). The trial court, however, is the court which hears the evidence concerning the allegedly improper contact and it is in the b......
  • State v. Twitty
    • United States
    • Missouri Court of Appeals
    • June 26, 1990
    ...be impermissibly suggestive. Another Missouri case presents a situation remarkably similar to that in the instant case. In State v. Gray, 741 S.W.2d 35 (Mo.App.1987) defendant appeared in a line-up dressed in a jacket resembling the one victims had previously described to the officers on th......
  • State v. Tringl, 61283
    • United States
    • Missouri Court of Appeals
    • January 12, 1993
    ...worn. However, "dissimilarity and physical appearance alone are insufficient to establish impermissible suggestiveness." State v. Gray, 741 S.W.2d 35, 37 (Mo.App.1987). Also in State v. Wilson, 651 S.W.2d 512, 516 (Mo.App.1983) the fact that defendant was the only one in the line-up wearing......

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