State v. Johnson
| Decision Date | 23 October 2018 |
| Docket Number | No. ED 105740,ED 105740 |
| Citation | 559 S.W.3d 423 |
| Parties | STATE of Missouri, Respondent, v. Joevalis L. JOHNSON, Appellant. |
| Court | Missouri Court of Appeals |
FOR APPELLANT: Gwenda R. Robinson, Missouri Public Defender’s Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.
FOR RESPONDENT: Mary H. Moore, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.
Joevalis Johnson ("Appellant") was charged in the City of St. Louis circuit court with two counts of first-degree robbery, two counts of armed criminal action ("ACA"), and one count of unlawful possession of a firearm arising out of a robbery of two men at gunpoint. Prior to trial, the court granted Appellant’s motion to sever the unlawful possession of a firearm charge. After a mistrial, a second jury found Appellant guilty of two counts of first-degree robbery and two counts of armed criminal action. In its judgment, however, the trial court also found Appellant guilty of the severed unlawful possession of a firearm count and sentenced him to a total of sixty years' imprisonment, including ten consecutive years for the unlawful possession charge. Appellant raises four points on appeal, alleging the trial court committed plain error by convicting and sentencing him for the unlawful possession of firearm charge that was severed, abused its discretion by allowing expert DNA testimony in response to a hypothetical question, and two points alleging the trial court clearly erred in denying Appellant’s motions to suppress the victims' identifications of Appellant. We reverse the conviction for unlawful possession of a firearm and remand with instructions to vacate the conviction. Otherwise we affirm.
Viewed in the light most favorable to the judgment, the facts adduced at trial are as follows. Kyle Conine ("Conine") and Kenneth Knackstedt ("Knackstedt") were at a bar in Soulard on August 17, 2014, around 1:30 a.m. They started walking to a nearby pizza restaurant after leaving the bar. After taking several steps into an alley, they turned around, and Appellant was pointing a gun at them. Appellant was wearing a white t-shirt or tank top. He ordered them to lay on the ground and give him everything they had. Conine relinquished his cellphone, forty-eight dollars, and his ID, and laid on the ground. Knackstedt threw eight dollars to the ground. Appellant pointed the gun in Knackstedt’s face and demanded he pick up the money. Knackstedt obliged, but went to one knee rather than laying on the ground. Conine saw Appellant’s face for only a few seconds. Knackstedt was face to face with Appellant for about two minutes. Conine and Knackstedt both stated the robbery lasted for, at most, five minutes. The alley was dimly lit according to Knackstedt, but there was enough light you could "read a newspaper."
Appellant fled. Conine returned to his car and drove around the block a few times before driving home. Knackstedt followed Appellant from a safe distance and called the police. He watched Appellant get on the back of a bicycle as the passenger. Appellant and the driver of the bicycle traveled a short distance on the bike before Appellant dismounted it and entered an alley. Knackstedt ceased pursuit because he knew Appellant had a gun and the alley was dark.
Knackstedt waited by the entrance of the alley until the police arrived and pointed them in the direction Appellant had went. Within fifteen minutes of the robbery, the police found Appellant hiding underneath the porch of an apartment building. They escorted Knackstedt to Appellant to conduct a show-up identification but provided no details about Appellant prior to the show-up. They asked Knackstedt if Appellant was the perpetrator. Knackstedt confirmed Appellant robbed him.
Appellant was handcuffed throughout the show-up. After the positive identification, Knackstedt saw the fifty-three dollars taken from him and Conine near the porch. He also saw Conine’s cellphone underneath the porch steps. The phone rang when Knackstedt called Conine’s phone number. The police then showed Knackstedt a black jacket with a firearm protruding from it. Knackstedt identified the firearm as the gun used in the robbery. The police found the jacket about six feet from where the police found Appellant.
A few days later, the police presented Conine a photograph lineup of six people. Conine identified Appellant as the assailant when he viewed the lineup.
The State charged Appellant with two counts of first-degree robbery, two counts of ACA, and one count of unlawful possession of a firearm. Appellant moved to have the unlawful possession of a firearm charge dismissed or severed from the other charges due to the prejudice that would result from the jury knowing Appellant was a convicted felon. The trial court granted Appellant’s motion to sever.
Appellant’s first trial resulted in a mistrial when the jury failed to reach a unanimous verdict. At the retrial, defense counsel moved to suppress both Knackstedt and Conine’s identifications of Appellant on the grounds the show-up identification was impermissibly suggestive. The trial court denied the motions.
At trial, the prosecutor asked the DNA section supervisor of the St. Louis Metropolitan Police Department Crime Laboratory (the "DNA Supervisor") during cross-examination whether her test results detected Appellant’s DNA on the black jacket found next to where Appellant was hiding. She stated the DNA test results did not match Appellant. The DNA matched a Travis Kirkwood ("Kirkwood"). The prosecutor then asked the DNA Supervisor whether Kirkwood’s DNA would be on the jacket if Kirkwood had lent the jacket to Appellant. Defense counsel objected, arguing there had been no evidence introduced by the State that Kirkwood had lent his jacket to Appellant. The trial court overruled the objection. The DNA Supervisor testified that if she knew the circumstances of the scenario, then she would not be surprised to find Kirkwood’s DNA on the jacket.
The jury found Appellant guilty on all four counts. The trial court sentenced Appellant to twenty-five years for each first-degree robbery count and fifteen years for each ACA count. The trial court ran the ACA sentences concurrent with each corresponding robbery count but the robbery sentences consecutive with each other for a total of fifty years. The trial court also sentenced Appellant to a consecutive ten year term on the severed count of unlawful possession of a firearm.1 This appeal follows.
The standard of review for an unpreserved issue is plain error. See State v. Wright , 551 S.W.3d 608, 622 (Mo. App. E.D. 2018). The court has discretion to review plain errors affecting substantial rights when "manifest injustice or miscarriage of justice" would result otherwise. Rule 30.20.2 The plain error rule should be used sparingly. See State v. White , 247 S.W.3d 557, 561 (Mo. App. E.D. 2007) (citing State v. Barnaby , 91 S.W.3d 221, 224 (Mo. App. W.D. 2002) ). The court looks to determine whether on the face of the appellant's claim substantial grounds exist for believing the trial court committed a "plain" error. Barnaby , 91 S.W.3d at 224–25. Plain error under Rule 30.20 is error that is evident, obvious, and clear. Id. at 225.
We review a trial court’s decision to admit or exclude evidence for "abuse of discretion." State v. Washington , 512 S.W.3d 118, 122 (Mo. App. E.D. 2017). A trial court abuses its discretion when its "ruling is clearly against the logic of the circumstances or is so arbitrary and unreasonable as to shock the sense of justice and suggest a lack of careful consideration." Id.
In reviewing the denial of a motion to suppress, we are limited to determining whether the motion is supported by substantial evidence. 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." State v. Hunter, 43 S.W.3d 336, 340 (Mo. App. W.D. 2001) (internal quotation and citation omitted). "The trial court's ruling is clearly erroneous if we are left with a definite and firm belief a mistake has been made." Id. "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).
Appellant asserts four points on appeal. In point I, Appellant argues the trial court committed plain error in convicting and sentencing Appellant of the unlawful possession of a firearm count because the trial court severed the count. Appellant requests this conviction be vacated. Appellant argues in point II the trial court abused its discretion in overruling defense counsel’s objection to the prosecutor asking whether she would expect to find Kirkwood’s DNA on the jacket because it assumed a fact not in evidence and called for speculation. In points III and IV, Appellant argues the trial court clearly erred in overruling Appellant’s motions to suppress identification because the show-up identification was so impermissibly suggestive as to create a substantial likelihood of misidentification and render the identifications unreliable.
The State concedes the trial court committed plain error in convicting Appellant of unlawful possession of a firearm. The State asks us to remand and allow the trial judge to resentence Appellant in light of the severed charge. In response to point II, the State contends the question posed to the expert witness was permissible because expert witnesses may answer hypothetical questions in circumstances in which a juror would otherwise be incapable of drawing a conclusion. In the alternative, the State argues if it was error to allow the expert to respond there is no prejudice to the Appellant. The State addresses points III and IV as...
To continue reading
Request your trial