State v. Lloyd
| Decision Date | 12 April 1988 |
| Docket Number | No. 53196,53196 |
| Citation | 750 S.W.2d 589 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gregory Dean LLOYD, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Jared R. Cone, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.
Defendant, Gregory Dean Lloyd, was convicted by a jury in the Circuit Court of the City of St. Louis of unlawful possession of a concealable firearm, § 571.070 RSMo (1986), and sentenced to ten years in prison. On appeal, defendant contends that the trial court erred in: (1) allowing a third-party, a police officer, to testify about the victim's out of court identification of defendant because said testimony constituted hearsay bolstering of an unimpeached witness; and, (2) refusing to grant a mistrial when the prosecutor referred to defendant's prior convictions in closing arguments, which went beyond the proper use of prior convictions to affect defendant's credibility. We affirm.
Since defendant does not challenge the sufficiency of the evidence, which is supportive of the guilty verdict, a brief statement of the facts follow. On March 19, 1986, at about 3:30 p.m., Layla Abdallah was at the cash register of Andy's Market, a grocery store located at 1393 Hodiamont, in the City of St. Louis. Andy Abdallah, the owner, was in the back of the store doing paperwork. Two youths began to harass Mrs. Abdallah and Mr. Abdallah asked them to leave. A third man approached, produced a gun and demanded that Mrs. Abdallah open the cash register. The man began shooting as Mr. Abdallah approached and Mr. Abdallah was shot in the stomach. A fight ensued with Mr. Abdallah knocking the gun from the man's hand, then seizing the gun and firing some shots. A second gun was produced, but there was disputed evidence about whether Mr. Abdallah or the defendant had produced it. The fighting continued on the street with Mr. Abdallah blacking out and the gunman running off with the guns. Present during the incident was a customer, Alma Jean Nelson, who testified for the defendant at trial. Both Mr. and Mrs. Abdallah identified defendant in court as the gunman.
Officers responding to the call on the shooting found Mr. Abdallah toward the back of the store on the floor. No guns were recovered on the premises.
At the same time other officers answered a dispatch "for a person that had been shot" in the 5800 block of Page. Arriving at 5870 Page, they found blood on the sidewalk, stairs, and porch. A young woman, later identified as defendant's cousin, answered the door and reluctantly allowed the officers to enter after they informed her that they were looking for an injured individual who was possibly involved in the commission of a crime. The officers were directed to the rear bedroom, where they found the defendant under the bed. The officers arrested him and took him to St. Louis Regional Hospital.
Shortly afterwards, Mrs. Abdallah was brought to Regional Hospital, where she positively identified the defendant as the gunman. At a later police lineup, Mrs. Abdallah again identified defendant as the gunman who shot her husband. Mr. Abdallah and Alma Jean Nelson were also present at the lineup according to the testimony of Mrs. Nelson, Mrs. Abdallah, and Officer Abraham Reddick. In court, Mr. Abdallah was unable to clearly respond to questions regarding his presence at the lineup. Officer Reddick testified that both Mr. and Mrs. Abdallah identified the defendant as the gunman at the lineup.
For the defense, defendant testified on his own behalf, with his cousin and Alma Jean Nelson also testifying.
In his first point, defendant argues that the testimony of Officer Reddick concerning Mr. Abdallah's pretrial identification was hearsay bolstering of an unimpeached witness, and constituted a denial of his rights to confront the witness, in that Mr. Abdallah did not recall seeing a lineup and therefore could not be cross-examined on his out of court statement.
At trial Mr. Abdallah testified on direct examination as follows:
Q. [PROSECUTOR] How long were you in the hospital?
A. Eleven, twelve days.
Q. Twelve days. After that did you ever go to the police station for any reason?
A. Police station?
Q. Yes, did you go down [sic] the police station on some date and time after you got out of the hospital?
A. They called me here, yes, I came after I--I came to the jury.
Q. Okay.
A. That's the first time I--they called me here.
Q. After you went to the--you talking about the--well, okay. Did you ever go down to the police station to see a lineup?
A. No.
A. My wife did go to the police but not me.
It is obvious from the record that Mr. Abdallah has a language difficulty. Earlier, the trial court judge recognizing the problem, stated for the record:
THE COURT: I understand. The objection will be overruled. I'll make a record with regard to this. The gentleman has a difficult time explaining and speaking English and as a result of that I'm going to permit some leading questions and that will be for the record at this time.
Later, on direct examination officer Reddick testified that Mr. Abdallah was present at the lineup and identified the defendant. Defendant's objection to the testimony was overruled in the following exchange:
Officer Reddick's testimony neither corroborates not contradicts Mr. Abdallah's testimony, because of the absence of a clear answer to questions about his presence at the lineup. At most, Officer Reddick's testimony is merely a clarification and explanation of Mr. Abdallah's testimony. Further, the record indicates that both Mrs. Abdallah and defense witness Alma Jean Nelson testified that Mr. Abdallah was present at the police line up.
The admission of third-party testimony concerning a witness's pretrial identification was addressed in State v. Harris, 711 S.W.2d 881 (Mo. banc 1986). In that case a robbery victim viewed a lineup the evening of the crime and identified the defendant as the assailant. In court the victim testified to the identification, as did the officer present at the lineup.
Our Supreme Court in Harris overruled the prohibition previously made in State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972) against third party testimony and held that otherwise competent evidence is no longer presumptively inadmissible where the declarant and the corroborating witness both testify and are subject to cross-examination. Id. at 884. Here, Mr. Abdallah and Officer Reddick both testified and were subject to cross-examination and re-cross-examination. Thus, the defendant had a full and fair opportunity to cross-examine the witnesses. See U.S. v. Owens, 484 U.S. 554, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988).
In determining the competency of Officer Reddick's testimony, we are guided by Harris, wherein our Supreme Court stated:
If the fact of lineup or photographic identification in itself is relevant and material, then the prosecutor, or the defense should be able to prove or disprove the identification by any competent testimony.
In so holding we adopt the view of a substantial number of state and federal courts as to the competence of third party testimony regarding pretrial identification. Instructive is Federal Rule of Evidence 801(d)(1)(C), defining as "not hearsay" a declarant's statement "of identification of a person made after perceiving him" where the declarant both "testifies" and is "subject to cross-examination concerning the statement."
Harris, at 885. See D. Louisell & C, Mueller, Federal Evidence § 421, p. 204-215 (1980). See also McCormick on Evidence § 251, p. 747-48 (3rd Ed.1984).
We conclude that the trial...
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