State v. Moorehead, ED 100066.
| Decision Date | 19 August 2014 |
| Docket Number | No. ED 100066.,ED 100066. |
| Citation | 438 S.W.3d 515 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Respondent, v. Travis MOOREHEAD, Appellant. |
OPINION TEXT STARTS HERE
Timothy Forneris, St. Louis, MO, for appellant.
Chris Koster, Dora A. Fichter, Jefferson City, MO, for respondent.
Travis Moorehead (Moorehead) appeals the trial court's entry of judgment and sentence upon a jury's verdict finding him guilty of robbery in the first degree. On appeal, he asserts the trial court erred in overruling his motion to strike a venireperson and in admitting identification evidence. We affirm.
The State of Missouri charged Moorehead as a prior offender with the class A felony of first-degree robbery,1 stemming from the following incident. On the evening of January 13, 2011, Nick Walters (Victim) was delivering pizza when he was approached by two men. One man, whom Victim later identified as Moorehead, held a large, semiautomatic handgun, which Victim believed to be real, and demanded Victim's money. Prior to trial, Moorehead filed a motion to suppress Victim's identification of Moorehead arguing the circumstances of the identification were inherently suggestive and conducive to mistaken identity. After a pre-trial hearing, the trial court denied the motion.
At trial, during voir dire, venireperson Mr. Peck stated he was a retired deputy sheriff for the City of St. Louis. He had worked as a deputy for eighteen years and had been retired for three months. He remained friends with several deputies and knew people who worked for the St. Louis Metropolitan Police Department, although not the witnesses in this case. Peck stated he would have an open mind regarding the testimony of police officers. Defense counsel moved to strike Peck based on his former career as a sheriff's deputy and close connection with law enforcement officers, arguing that although Peck had stated he could be fair, it was better practice to fill the jury panel with persons who are not police officers. The trial court overruled his motion, stating that Peck was retired, not active; he had been a sheriff's deputy, not a police officer; and he did not know any of the endorsed witnesses.
For the State, Victim testified that during the robbery the gunman stood about two arm's lengths, or approximately six feet, from Victim. The gunman was wearinga hooded jacket, and although the hood was up, nothing was obscuring his face. Victim stated he focused on the gunman's face so he would be able to describe it to police later. Approximately half an hour after he reported the crime, the police brought three men for him to view in a “show-up” type lineup (show-up). They brought all three men in marked police cars, had them exit the vehicle, and then shone a light on their faces for Victim to identify. Victim viewed each suspect separately as they arrived. Victim did not recognize the first two, telling the police he “[would not] make a positive ID unless [he] knew for sure.” He then identified the third suspect, Moorehead, as the gunman with 90 percent certainty after recognizing his facial features. Victim stated that during the identification, Moorehead was standing about ten feet away from him in handcuffs.
Officer Benjamin Lacy testified that after he arrested Moorehead and advised him of his Miranda rights, but before Victim identified Moorehead as the gunman, Moorehead admitted to having committed the robbery and stated he had left the gun in the residence of the other man involved in the robbery, identified as Melvin Thomas. Officer Lacy then transported Moorehead to where Victim was for the show-up, and Victim positively identified Moorehead as the gunman. Officer Lacy did not tell Victim prior to the show-up that Moorehead had confessed, but simply asked Victim if he recognized Moorehead. In addition, Officer Steve Schwerb testified that based on the information given by Moorehead, he conducted a search of Thomas's residence, where he discovered a replica gun. Victim identified the replica gun as the weapon used during the robbery.
Moorehead presented an alibi defense. After the trial, the jury returned a verdict of guilty on the charge of robbery in the first degree, and the trial court sentenced Moorehead to twenty years in the Missouri Department of Corrections. This appeal follows.
In his first point on appeal, Moorehead argues the trial court erred in overruling his motion to strike venireperson Peck for cause because, due to Peck's former career as a sheriff's deputy, he was unable to fairly and impartially deliberate on Moorehead's defense involving the issue of police credibility. We disagree.
The trial court has wide discretion in determining the qualifications of a prospective juror and we will not disturb the court's ruling on a challenge for cause absent an abuse of that discretion. State v. Garvey, 328 S.W.3d 408, 414 (Mo.App. E.D.2010). We will find an abuse of discretion only when the voir dire permitted does not allow for the discovery of bias, prejudice, or partiality. State v. Mathis, 204 S.W.3d 247, 256 (Mo.App. E.D.2006). Reversible error occurs only where both the record reflects an abuse of discretion and the defendant can demonstrate a real probability that he or she was prejudiced by the abuse. Id.
“The purpose of voir dire is to discover bias or prejudice in order to select a fair and impartial jury.” State v. Gilbert, 103 S.W.3d 743, 746 (Mo. banc 2003). Thus, the essential question before the trial court on a challenge for cause is whether the venireperson unequivocally indicated an ability to evaluate the evidence fairly and impartially. State v. Grondman, 190 S.W.3d 496, 498 (Mo.App. W.D.2006). A venireperson's qualifications are not determined by a single response, but rather from the entire voir dire examination.State v. Deck, 303 S.W.3d 527, 535 (Mo. banc 2010). If the voir dire responses indicate a possible bias but upon further examination that venireperson gives unequivocal assurances of impartiality, the mere possibility of prejudice will not disqualify the rehabilitated venireperson. Grondman, 190 S.W.3d at 498.
Here, the record shows that Peck stated he was a retired sheriff's deputy; however, “[s]tanding alone, former affiliation with law enforcement is not ground[s] for challenge for cause.” State v. Williams, 650 S.W.2d 642, 643 (Mo.App. E.D.1983); State v. Petty, 610 S.W.2d 126, 127 (Mo.App. E.D.1980) (). To strike a venireperson for cause, there must be evidence of bias. See Grondman, 190 S.W.3d at 498. Peck did not indicate that his former career would impede his ability to evaluate the evidence fairly and impartially; rather, when asked if he would give more weight to the testimony of police officers, he responded that he would have an open mind. Further, although Peck stated he knew many deputies and police officers, merely knowing police officers is not grounds to strike for cause when the venireperson does not know the State's witness testifying in the particular case and has not indicated bias in favor of law enforcement officers. See Williams, 650 S.W.2d at 643; cf. Petty, 610 S.W.2d at 127 (). Here, Peck did not know the testifying officers, and his responses showed he could be fair and impartial. The trial court did not abuse its discretion in denying Moorehead's motion to strike Peck for cause.
Moreover, Moorehead failed to demonstrate prejudice from any alleged error in Peck's inclusion on the jury. See Mathis, 204 S.W.3d at 256. Even if Peck were biased in favor of the testimony of police officers, conviction here did not depend on the testimony of police officers. In addition to Officer Lacy's testimony of Moorehead's confession, Victim testified that Moorehead was the gunman. Victim's testimony alone would have been sufficient for a jury to convict Moorehead. State v. Byrd, 423 S.W.3d 882, 885 (Mo.App. E.D.2014) (); State v. Taylor, 373 S.W.3d 513, 518 (Mo.App. E.D.2012) ().
Point denied.
In his second point on appeal, Moorehead argues the trial court erred in admitting the evidence of Victim's out-of-court and in-court...
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