State v. Hunter

• Decision Date: 30 January 2001
• Citation: 43 S.W.3d 336
• Parties: (Mo.App. W.D. 2001) . State of Missouri, Respondent, v. Walter J. Hunter, Appellant. WD58319 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

43 S.W.3d 336 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Walter J. Hunter, Appellant.

WD58319

Missouri Court of Appeals Western District

Handdown Date: 01/30/2001

Appeal From: Circuit Court of Jackson County, Hon. William W. Ely

Counsel for Appellant: Jeannie M. Willibey and Vanessa Caleb

Counsel for Respondent: Evan J. Buchheim

Opinion Summary: Walter J. Hunter appeals the circuit court's judgment on his jury convictions and sentence as a prior offender to seven consecutive sentences of life imprisonment for seven counts of first-degree robbery and seven consecutive sentences of life imprisonment for seven counts of armed criminal action (ACA), with the sentences for robbery to be served concurrently with the sentences for ACA.

REVERSED AND REMANDED.

Division IV holds: This Court reverses and remands for the sole purpose of requiring the trial court to amend its written judgment and sentence to correctly reflect its oral pronouncement of the appellant's convictions and sentences.

1) The six-photo array challenged by the appellant was shown to two witnesses, resulting in their pretrial identifications of the appellant. The appellant's photograph was the only one that included, on the front, his name, date of birth, and another date, although several other photographs included the individuals' dates of birth. The appellant argued that these differences drew undue attention to him. However, the record reflects that the witnesses were not told of the suspect's name prior to their out-of-court identifications of the suspect. Further, the appellant did not present any evidence below that the police said or did anything to prompt the witnesses to identify him, other than using his photograph, which was different than the rest. Based on previous holdings of our appellate courts, this unintentional highlighting of the appellant's photo, although less than ideal, did not cause the photo array employed by the police to be unduly suggestive so as to violate the appellant's due process right.

Even if the photo lineup employed by the police was unduly suggestive, from a careful review of the record, it appears that both witnesses had ample opportunity to attentively view the appellant while being robbed at gunpoint. Both gave detailed descriptions of him and were very certain as to their out-of-court and in-court identifications. Further, the record indicates that only relatively short intervals of time had elapsed between the robberies and the witnesses' out-of-court identifications of the appellant. Under these circumstances, this Court cannot say that the trial court was not justified in finding that the witnesses' identifications of the appellant were reliable such that the appellant's right to due process was not violated.

2) The State agrees that the trial court's amended judgment entry was contrary to its oral pronouncements and concedes that this Court should reverse and remand for the trial court to further amend its written judgment and sentence to correctly reflect that the appellant was convicted of seven counts each of armed robbery and ACA and that he was sentenced to consecutive terms of life imprisonment on each count of robbery and ACA, with his consecutive sentences for ACA to run concurrently with his consecutive sentences for armed robbery.

Opinion Author: Edwin H. Smith, Judge

Opinion Vote: REVERSED AND REMANDED. Spinden, C.J., and Newton, J., concur.

Opinion:

Walter J. Hunter appeals the circuit court's judgment of his jury convictions for seven counts of first-degree robbery, section 569.020,¹ and seven counts of armed criminal action, section 571.015. As a result of his convictions, the appellant was sentenced as a prior offender, section 557.036, RSMo Supp. 1996 and section 558.016, to seven consecutive sentences of life imprisonment for first-degree robbery and seven consecutive sentences of life imprisonment for armed criminal action (ACA), with the sentences for robbery to be served concurrently with the sentences for ACA.

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in overruling his pretrial motion to suppress evidence concerning his out-of-court and in-court identifications because the photo array used in his pretrial identification was unduly suggestive, rendering both his out-of-court and in-court identifications unreliable and violating his right to due process. In Point II, he claims that the trial court erred in entering its written judgment and sentence because it materially deviated from its oral pronouncement.

We reverse and remand for the sole purpose of requiring the trial court to amend its written judgment and sentence to correctly reflect its oral pronouncement of the appellant's convictions and sentences.

Facts

The appellant was charged in the Circuit Court of Jackson County with eight counts of first-degree robbery and eight counts of armed criminal action. The charges arose out of a string of fast-food restaurant robberies in the Kansas City area between July 12, 1998, and September 5, 1998. In each of these robberies, the appellant, posing as a customer and wearing a baseball cap, would reveal a silver-colored gun from under a towel or notebook and demand money from the cash register.

Several restaurant employees and one customer identified the appellant pretrial as the robber from a photo array the police showed them. These witnesses also identified the appellant as the robber at trial. The appellant filed a pretrial motion to suppress the identification testimony of two witnesses, J'rome Hoskins and Marlon Berry, alleging that the photo array used by the police was unduly suggestive in that the appellant's photo was the only photo of the six that included his name and birth date. On the day of trial, the court heard testimony and arguments on appellant's pretrial motion to suppress. The detective who prepared the photo array testified that it consisted of six photos of persons of similar appearance, including the appellant's, which was the only one that included the person's name and birth date. Several of the other photos did include birth dates of the individuals depicted. The detective further testified that the police did not at any time inform Hoskins or Berry of the name of the suspect and that the witnesses indicated that they did not know the name of the person who robbed them. The court overruled the appellant's motion to suppress.

At trial and over the appellant's objections, Hoskins and Berry testified as to their out-of-court identifications of the appellant. Hoskins, an employee of one of the Kentucky Fried Chicken restaurants that was robbed, testified that the appellant robbed him at gunpoint. He further testified that he told the police that although he was not "absolutely sure" the appellant was the robber, his identification of the appellant was a "9," with a "10" being 100% certain of his identification. Berry, a cook at the Pancake House which was robbed, testified that he had a similar experience to Hoskins, except that he was called from the kitchen to help open the register. Both witnesses identified the appellant in court as the robber.

On February 18, 1999, the appellant was found guilty by a jury on seven of the eight counts of first-degree robbery and on seven of the eight counts of ACA, including the charges relating to the robberies of Kentucky Fried Chicken and the Pancake House. After the appellant's post-trial motions were heard and ruled upon, the appellant was orally sentenced by the trial court to seven consecutive life sentences for armed robbery and seven consecutive life sentences for ACA, to be served concurrently with his sentences for armed robbery. The trial court's original written judgment and sentence reflected that the appellant had been found guilty and sentenced on all sixteen counts, even though the jury had found him "not guilty" as to two of those counts, Counts V and VI. It further reflected that his ACA sentences were to be served concurrently with each other and consecutively with his sentences for armed robbery. The trial court later amended this judgment to reflect that the appellant had not been convicted of Counts V and VI.This appeal follows.

I.

In Point I, the appellant claims that the trial court erred in overruling his pretrial motion to suppress evidence concerning his out-of-court and in-court identifications because the photo array used in his pretrial identification was unduly suggestive, rendering both his out-of-court and in-court identifications unreliable and violating his right to due process. Specifically, he claims that the photo array was unduly suggestive in that, unlike the other photos used in the array, his name and two dates, 092597 and 042458, appeared below his photo, causing it to stand out and indicating that he was the obvious suspect. We disagree.

Review of the trial court's ruling on a motion to suppress evidence is limited to a determination of whether there is substantial evidence to support its decision. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). "The trial court's ruling on a motion to suppress is reversed only if it is clearly erroneous. The trial court's ruling is clearly erroneous if we are left with a definite and firm belief a mistake has been made." State v. Leavitt, 993 S.W.2d 557, 560 (Mo. App. 1999) (citations omitted). "In reviewing the trial court's ruling on a motion to suppress, the facts and any reasonable inferences arising therefrom are to be viewed in a light most favorable to the ruling of the trial court." State v. Carter, 955 S.W.2d 548, 560 (Mo. banc 1997) (citing State v. Blankenship, 830 S.W.2d 1, 14 (Mo. banc 1992)). "Deference is given to the trial court's superior opportunity to determine the credibility of witnesses. As in all matters, a reviewing court gives...