State v. Ivy, No. ED 98978.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKURT S. ODENWALD, Judge.
Citation455 S.W.3d 13
PartiesSTATE of Missouri, Respondent, v. Darion Jordan IVY, Appellant.
Docket NumberNo. ED 98978.
Decision Date25 February 2014

455 S.W.3d 13

STATE of Missouri, Respondent
v.
Darion Jordan IVY, Appellant.

No. ED 98978.

Missouri Court of Appeals, Eastern District, Division Three.

Feb. 25, 2014.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 14, 2014.


455 S.W.3d 15

Lisa M. Stroup, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, MO, for appellant.

455 S.W.3d 16

Chris Koster, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.

KURT S. ODENWALD, Judge.

Introduction

Appellant Darion Ivy (“Ivy”) appeals from the judgment of the trial court following his conviction by a jury of one count of first-degree robbery, Section 569.020.1 Ivy was sentenced to 12 years in the Missouri Department of Corrections. On appeal, Ivy argues that the trial court plainly erred in denying his request for a mistrial when the State failed to disclose to the defense a statement that Ivy made to a police recruit. In his second point on appeal, Ivy asserts that the trial court clearly erred in denying his motion to suppress identification and abused its discretion in overruling his objections at trial to the testimony of Dean Morgan (“Morgan”) regarding his in-court and out-of-court identifications of Ivy. Finding no error, we affirm the judgment of the trial court.

Factual and Procedural History

Viewed in the light most favorable to the verdict, the evidence introduced at trial is as follows. On December 11, 2010, Morgan and Johnny Irving drove in Morgan's Cadillac Escalade to the 3200 block of Hebert in the City of St. Louis to pick up some tools to repair Morgan's leaking roof. Irving got out of the vehicle to retrieve the tools while Morgan stayed in the driver's seat, playing with his phone. Morgan noticed a black truck pull up behind him, and shortly thereafter he heard a tap on his window. Morgan looked up and saw a man later identified as Gesonia Williams pointing two guns at Morgan's head, telling Morgan to get out of the vehicle. Morgan got out of the Escalade and was searched by Williams while a second man stood by Irving. The second man, later identified as Ivy, then put a gun up to Morgan and also searched him. Ivy was not wearing a mask, allowing Morgan to see his face clearly. Ivy and Williams then took Morgan's Escalade, along with Morgan's wallet, cell phone, iPod, radar detector, and laptop.

Morgan and Irving walked to Morgan's mother-in-law's house, where Morgan called the police. Morgan described Ivy to the police as a dark-skinned, stocky man who was five-feet, seven-inches tall and had facial hair. Morgan said Ivy was wearing a black, puffy leather jacket. An officer with the St. Louis Metropolitan Police Department broadcasted Morgan's description of the suspects and the stolen vehicle.

Officer Kyle Chandler heard the dispatch call for the carjacking and recalled seeing a vehicle that matched the description of Morgan's Escalade. Officer Chandler returned to the location where he saw the vehicle and shortly thereafter saw the Escalade going south on Grand. Officer Chandler pulled up behind the vehicle and activated his lights, at which point the vehicle took off at a high rate of speed and hit a car, a truck, a light pole, and a fence before crashing into a house. Williams climbed out of the passenger window and took off running. Officer Chandler chased Williams while Officer Kevin Fodde, a recruit who had been riding with Officer Chandler, stayed with the patrol car and observed Ivy exiting the Escalade. Ivy approached Officer Fodde and said he was injured.

Morgan's brother-in-law was driving Morgan home when they saw Morgan's Escalade wrecked on North Grand. Morgan informed a police officer on the scene

455 S.W.3d 17

that he had been carjacked and that the wrecked car belonged to him. Morgan also saw Ivy sitting on the curb, handcuffed, and identified Ivy to police as the man who robbed him. Three days after the incident, Morgan was asked by the police to identify the person who robbed him via a photographic lineup. Morgan chose Ivy with “a hundred percent” certainty.

Ivy was subsequently charged as a prior offender with one count of first-degree robbery, Section 569.020, one count of first-degree attempted robbery, Section 564.011, two counts of armed criminal action, Section 571.015, and one count of second-degree tampering with a motor vehicle, Section 569.090.

In March 2012, a jury found Ivy guilty of second-degree tampering. However, the trial court declared a mistrial as to the count of first-degree robbery because the jurors could not reach a verdict. Ivy was found not guilty as to all other counts.

In May 2012, Ivy was tried again before a jury on the count of first-degree robbery. At the close of all of the evidence, the jury found Ivy guilty. The trial court entered judgment accordingly and sentenced Ivy to 12 years in the Missouri Department of Corrections. This appeal follows.

Points on Appeal

In his first point on appeal, Ivy claims that the trial court plainly erred in denying his request for a mistrial when the State failed to disclose to the defense a statement that Ivy made to Officer Fodde. In his second point on appeal, Ivy asserts that the trial court clearly erred in denying his motion to suppress identification and abused its discretion in overruling his objection at trial to Morgan's testimony regarding his in-court and out-of-court identifications of Ivy.

Standards of Review

In order to preserve an issue for appeal in a jury-tried case, the allegation of trial court error must be included in a motion for new trial. State v. Johnson, 943 S.W.2d 285, 289 (Mo.App.E.D.1997). An allegation of error not included in a motion for new trial is reviewable by this Court only for plain error. Id. Because Ivy did not include in his motion for new trial his claim that the trial court erred in not granting his request for a mistrial, we review his first point on appeal only for plain error.

Under plain error review, the movant must demonstrate that the trial court committed an error which is “evident, obvious, and clear” and that such error resulted in a “manifest injustice or miscarriage of justice.” Rule 30.202 ; State v. Roper, 136 S.W.3d 891, 900 (Mo.App.W.D.2004). If the movant has carried the burden of producing an error that facially produced manifest injustice or a miscarriage of justice, we will consider whether the claimed error did in fact cause manifest injustice or a miscarriage of justice. State v. Baumruk, 280 S.W.3d 600, 607–08 (Mo. banc 2009).

This Court will reverse a ruling on a motion to suppress only if the ruling is clearly erroneous. Foster v. State, 348 S.W.3d 158, 161 (Mo.App.E.D.2011). If the ruling is plausible, in light of the record viewed in its entirety, we will not reverse even if we would have weighed the evidence differently. State v. Ashby, 339 S.W.3d 600, 603 (Mo.App.E.D.2011). We review the factual findings only to determine whether they are supported by substantial evidence and give deference to the

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trial court's ability to weigh the credibility of the witnesses. Id. We view the facts in the light most favorable to the judgment and disregard all contrary evidence and inferences. Id.

We will reverse the trial court's admission of identification...

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6 practice notes
  • State v. Joseph, No. ED 103554
    • United States
    • Court of Appeal of Missouri (US)
    • December 6, 2016
    ...court will not reverse a trial court's ruling on a motion to suppress unless the court's decision was clearly erroneous. State v. Ivy , 455 S.W.3d 13, 17 (Mo. App. E.D. 2014). On appeal, this Court is limited to determining whether there was sufficient evidence to support the trial court's ......
  • State v. Smith, No. ED 102585
    • United States
    • Court of Appeal of Missouri (US)
    • April 5, 2016
    ...“is to grant the defendant a decent opportunity to prepare his case in advance of trial and avoid surprise.” 491 S.W.3d 298 State v. Ivy, 455 S.W.3d 13, 18 (Mo.App.E.D.2014) (quotations omitted). The State's duty to disclose evidence to the defense includes information that is actually know......
  • State v. Snider, No. ED 104507
    • United States
    • Court of Appeal of Missouri (US)
    • December 12, 2017
    ...in light of the record viewed in its entirety, we will not reverse even if we would have weighed the evidence differently." State v. Ivy, 455 S.W.3d 13, 17 (Mo. App. E.D. 2014). On appeal, "[w]e defer to the credibility findings of the trial court and view the facts in a light most favorabl......
  • State v. Davis, No. ED 104046
    • United States
    • Court of Appeal of Missouri (US)
    • December 6, 2016
    ...court will not reverse a trial court's ruling on a motion to suppress unless the court's decision was clearly erroneous. State v. Ivy , 455 S.W.3d 13, 17 (Mo. App. E.D. 2014). We consider the facts and evidence in the light most favorable to the trial court's ruling and disregard any contra......
  • Request a trial to view additional results
6 cases
  • State v. Joseph, No. ED 103554
    • United States
    • Court of Appeal of Missouri (US)
    • December 6, 2016
    ...court will not reverse a trial court's ruling on a motion to suppress unless the court's decision was clearly erroneous. State v. Ivy , 455 S.W.3d 13, 17 (Mo. App. E.D. 2014). On appeal, this Court is limited to determining whether there was sufficient evidence to support the trial court's ......
  • State v. Smith, No. ED 102585
    • United States
    • Court of Appeal of Missouri (US)
    • April 5, 2016
    ...“is to grant the defendant a decent opportunity to prepare his case in advance of trial and avoid surprise.” 491 S.W.3d 298 State v. Ivy, 455 S.W.3d 13, 18 (Mo.App.E.D.2014) (quotations omitted). The State's duty to disclose evidence to the defense includes information that is actually know......
  • State v. Snider, No. ED 104507
    • United States
    • Court of Appeal of Missouri (US)
    • December 12, 2017
    ...in light of the record viewed in its entirety, we will not reverse even if we would have weighed the evidence differently." State v. Ivy, 455 S.W.3d 13, 17 (Mo. App. E.D. 2014). On appeal, "[w]e defer to the credibility findings of the trial court and view the facts in a light most favorabl......
  • State v. Davis, No. ED 104046
    • United States
    • Court of Appeal of Missouri (US)
    • December 6, 2016
    ...court will not reverse a trial court's ruling on a motion to suppress unless the court's decision was clearly erroneous. State v. Ivy , 455 S.W.3d 13, 17 (Mo. App. E.D. 2014). We consider the facts and evidence in the light most favorable to the trial court's ruling and disregard any contra......
  • Request a trial to view additional results

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