State v. Lewis, WD

• Decision Date: 15 February 1994
• Docket Number: No. WD,WD
• Citation: 874 S.W.2d 420
• Parties: STATE of Missouri, Respondent, v. Rickman LEWIS, Appellant, and Rickman LEWIS, Appellant, v. STATE of Missouri, Respondent. 46010.
• Court: Missouri Court of Appeals

Page 420

874 S.W.2d 420

STATE of Missouri, Respondent, v. Rickman LEWIS, Appellant, and Rickman LEWIS, Appellant, v. STATE of Missouri, Respondent.

No. WD 46010.

Missouri Court of Appeals,

Western District.

Feb. 15, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 29, 1994.

Application to Transfer Denied May 26, 1994.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before BERREY, C.J., P.J., and KENNEDY and ELLIS, JJ.

ELLIS, Judge.

On December 4, 1991, Rickman Lewis was convicted by a Cole County jury of one count of first degree robbery, § 569.020, RSMo 1986, and one count of armed criminal action, § 571.015, RSMo 1986. He was sentenced by the trial court as a prior and persistent offender to consecutive terms of fifteen years imprisonment on the robbery count and five years imprisonment on the armed criminal action count, and timely filed both a notice of direct appeal and a motion for post-conviction relief under Rule 29.15. After an evidentiary hearing, the trial judge denied Lewis' Rule 29.15 motion, and he appealed that ruling. This consolidated appeal under Rule 29.15(l ) followed. We affirm his convictions and the trial court's denial of his Rule 29.15 motion.

Viewed in the light most favorable to the verdicts, the evidence at trial established that on August 25, 1991, the day of the crime, Lewis lived in the basement of a house at 617 Linn Street in Jefferson City. That evening, Lewis asked John Ward, who also lived at 617 Linn Street, if Ward wanted to make some money, and Ward said yes. Around 9:00 p.m., Lewis told Ward he was going to commit a robbery, and promised to give Ward some of the loot if Ward would drive him to the site of the crime. Ward agreed to do so, and about 9:30 p.m., Ward drove Lewis to the Break Time Convenience Store on the corner of Clark and Dunklin in Jefferson City. Ward parked the car nearby, and Lewis entered the store.

Adeline Pruitt was working in the store that night. While she was in the back room getting a cleaning towel, she heard the beeper on the front door go off and looked at a video monitor to see who had come in. She quickly locked herself in the bathroom located in the rear of the store because it appeared from the monitor that the person who had just entered was wearing a nylon mask or pantyhose over his head like the individual who had robbed the store on her shift two weeks earlier. About fifteen seconds later, Pruitt heard the beeper sound again, indicating that the person she saw on the monitor had left the store. Feeling vulnerable, Pruitt called home and asked her adult child, Steven Pruitt, to come to the store and stay with her until closing time. He joined his mother after walking the four or five blocks from the Pruitt's home to the store.

Meanwhile, Lewis, who had been gone for twenty minutes, returned to the parked car occupied by Ward. Lewis told Ward that nobody was in the store, and asked Ward to return to the store after driving around the block. Ward did so, then parked the car in the same place he had parked it earlier. Lewis got out and headed back into the store. When he got there, Adeline and Steven Pruitt were both behind the counter. When Adeline Pruitt saw Lewis enter the store, she told her son: "He is here. Here he comes again." Lewis, who had pulled a black nylon mask or pantyhose over his head and was wearing glasses underneath, walked up to the counter, pointed an old, rusty, beat-up revolver at her, and demanded: "Give me all the money. Open the register and give me all the money. Do it now." She opened the register and attempted to hand the money inside to Lewis, but Lewis told her he wanted the money put in a sack. At this point, Lewis ordered Steven Pruitt, who was seated in a chair behind the counter and had been observing Lewis carefully, to lay down on the floor. He complied with Lewis' demand. Adeline Pruitt grabbed a sack, stuffed the money in it, and attempted to give it to Lewis, but Lewis said "No. I want cigarettes." When she had filled the bag with cigarettes, Lewis said "That's enough. Give it to me." After Adeline Pruitt handed Lewis the bag, he fled. She then called the police.

When Lewis returned to the parked car, he had a paper sack with him. Ward and Lewis then returned to the house at 617 Linn Street. When they got there, Ward went upstairs and Lewis went down to the basement. Shortly thereafter, Lewis came up from the basement and gave Ward $10 and a pack of cigarettes.

Two days later, police officers went to 617 Linn Street and spoke to Lewis and Ward, who both agreed to go to the police station for questioning. Ward, who was questioned first, admitted his involvement in the robbery. ¹ After waiving his Miranda rights, Lewis denied committing the robbery. However, after an officer described the gun used in the robbery, Lewis said he had one just like it. When the officer asked where the gun was located, Lewis replied that it was in the basement of the residence at 617 Linn Street and told the officer exactly where to find it. Police found the weapon in the same place described by Lewis. When they brought it back to the station, Lewis said it was not his gun and continued to deny he had committed the robbery.

On the afternoon of the next day, the police held a lineup at the police station in Jefferson City. The Pruitts viewed the lineup separately, and there was no information or prompting whatsoever from the police. Adeline and Steven Pruitt both positively identified Lewis as the robber. In addition, they both positively identified the old, beat-up, rusty gun found in the basement of the home at 617 Linn Street as the one used in the August 25, 1991 robbery. Adeline Pruitt was particularly sure her identification was correct because she recognized Lewis as the same man who robbed the store two weeks before. She recalled that while the first robber did not have glasses and was wearing beige rather than black pantyhose over his head, his voice, body build, and skin tone were the same as Lewis' and he used the same beat-up gun.

On November 25, 1991, Lewis' attorney, Jan King, filed a motion to suppress the lineup identifications made by Adeline and Steven Pruitt. On the morning of trial, the court took up and overruled the motion, citing Nineteenth Judicial Circuit Local Rule 33.1, which states, in relevant part: "All pretrial motions must be heard no later than five (5) days before trial. All motions not so heard shall be deemed overruled or denied." However, the court reminded King he was free to raise "the appropriate objection when the matter is tendered" at trial.

During trial, when Adeline Pruitt began to testify about the lineup, King objected "pursuant to the motion" he had filed before trial. The State told the trial court that it had "no objection to it [King's objection] running with the testimony," and the court overruled the objection. When Adeline Pruitt was first shown State's Exhibit # 4 (a photograph of the lineup), King renewed his objection, which was overruled after the trial court viewed the photograph. Referring to that picture, Adeline Pruitt identified Lewis as the man she recognized during the lineup. Shortly thereafter, State's Exhibit # 4 was admitted into evidence over King's continuing objection. Later, when Steven Pruitt began to testify about the lineup, King once again unsuccessfully objected.

Lewis chose not to testify in his own defense. He attempted to establish an alibi on the basis of Thomas and Joy Walker's testimony that Lewis was at their home located at 812 Capital Avenue in Jefferson City throughout the evening of August 25, 1991.

Lewis' Direct Appeal

In his sole point on direct appeal, Lewis argues the trial court erred in permitting the jury to hear testimony concerning the lineup identifications and in admitting State's Exhibit # 4 into evidence because the lineup and the photograph thereof were so inherently suggestive and conducive to mistaken identification that his constitutional rights to due process and a fair trial were violated.

"[T]he crucial test for the admission of identification testimony is two-pronged: (1) was the pre-trial identification procedure impermissibly suggestive, and (2) if so, what impact did the suggestive procedure have upon the reliability of the identification made by the witness." State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989). In this case, we need go no further than the first prong since the record shows that the lineup viewed by Adeline and Steven Pruitt was in no way suggestive. State's Exhibit # 4 depicts four physically similar, handcuffed, identically-clothed, dark-skinned, black-haired men wearing glasses standing against a wall. Each man has a mustache, and each is wearing a black nylon stocking pulled over his head. The man on the far left (Lewis) has a white clip-on badge with the number "1" on it, and the man on the far right has a similar badge with the number "4" on it. ² Lewis was neither the tallest nor the shortest man in the lineup and had neither the lightest nor darkest skin. Indeed, there is nothing about the lineup itself which would have directed Adeline or Steven Pruitt's attention to Lewis. Because he failed to show that their lineup identifications were the product of "anything other than a freely independent selection" process, State v. Young, 597 S.W.2d 223, 225 (Mo.App.1980), the trial court properly permitted the jury to hear testimony concerning the lineup.

Without citing any authority, Lewis nevertheless argues that the photograph of the lineup is impermissibly suggestive and should not have been admitted because "the flash from the camera ³ lightened the actual view and intensified features that could not have been seen in the line-up room" when Adeline Pruitt identified him. ⁴ Lewis' contention is devoid of merit. The only...