State v. Russell, ED 101482

• Decision Date: 09 June 2015
• Docket Number: No. ED 101482,ED 101482
• Citation: 462 S.W.3d 878
• Parties: State of Missouri, Respondent, v. TJ Russell, Appellant.
• Court: Missouri Court of Appeals

462 S.W.3d 878

State of Missouri, Respondent

v.TJ Russell, Appellant.

No. ED 101482

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: June 9, 2015

Andrew E. Zleit, Missouri Public Defender Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101, for appellant.

Dora A. Fichter, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102, for respondent.

Philip M. Hess, Judge

Introduction

T.J. Russell (Defendant) appeals the judgment and sentence of the Circuit Court of the City of St. Louis entered after a jury convicted him of first-degree murder and armed criminal action. In two points relied on, Defendant claims that the trial court (1) clearly erred in admitting the identification testimony of three witnesses and (2) plainly erred by allowing the State's comments regarding deliberation in closing argument. We affirm.

Factual Background

On March 19, 2011, Charlene Otey and Dennis Fox visited Kenyatta Moore's apartment. Otey and Moore were drinking “Syrup” (a combination of NyQuil and painkillers) and Fox had ingested heroin. Jermaine Johnson and Antoine Rayner came to the apartment. After Moore opened the door and let them inside, Defendant came down the hallway and started shooting at Rayner. Defendant asked Rayner, “Where is my money? Where is my phone?” After the shooting, Defendant ran. Rayner died as a result of his gunshot wounds.

Defendant was charged with first-degree murder and armed criminal action. Prior to trial, defense counsel filed a pre-trial motion to suppress identification evidence. In the motion, defense counsel argued that Moore, Otey, Fox, and Johnson's identifications of Defendant as the shooter should be suppressed because (1) Moore knew and had a relationship with Defendant prior to the shooting; (2) all of the witnesses were under the influence of drugs at the time of the shooting; and (3) the apartment was not well-lit during the incident. The trial court denied the motion, finding that defense counsel's objections to the identifications went to the weight, not the admissibility, of the identifications.

At Defendant's trial, the State presented the testimony of Officer Michelle Vetter, who responded to the scene after Rayner was shot. The State also presented the testimony of Kenyatta Moore. Moore recalled that on March 19, she, Otey, and Fox were at her apartment when Johnson and Rayner arrived. Moore said that Rayner entered the apartment before Johnson, and then she “heard claps.” She testified that Defendant was standing in the doorway, holding a gun, and that she told Defendant to stay at her apartment. Moore went to tend to Rayner, and when she looked up again, Defendant was gone. Later that night, Moore spoke to homicide detectives and told them Defendant shot Rayner. Moore identified Defendant in a photo line-up. On cross-examination, Moore admitted that she had done drugs that day and she, had been drinking “Syrup” prior to the shooting.

Charlene Otey also testified on behalf of the State. She testified that she did not know Defendant prior to the shooting. That evening, she had “dozed off” on the couch, and the sound of three gunshots woke her up. She testified that she saw a man standing in the doorway, and saw Rayner and Johnson ran into the kitchen. She recalled that the man in the doorway said, “Where's my money at? Where's my phone at?” Otey testified that she went to the police department and identified the person who shot Rayner. Defense counsel objected, as follows:

[Defense Counsel]: I'm going to object at this point based on my pretrial motions to suppress the identification. When the procedures that were used were suggest[ive] and her basis for identifying him [w]as based on the information she got from other person, not her own observations.

[The State]: Your Honor, she is taken from the scene to homicide. She doesn't know the guy's name. No one told her anything. She learns his name later and then she knows the name. It certainly doesn't affect her ability to identify this piece of paper.

[The Court]: I don't think it's an issue of suppression. There may be some credibility issues you can bring out, but I don't think it's about suppression. I am going to deny the request.

[Defense Counsel]: May I have a continuing objection?

[The Court]: Yes, you may.

Otey then recalled that she identified Defendant as the shooter in a photo line-up. On cross-examination, Otey again admitted she was high at Moore's apartment the night of the shooting.

Jermaine Johnson and Dennis Fox testified similarly. On cross-examination, both Johnson and Fox admitted that they had done heroin that day. Fox testified that he was sitting on the couch next to Otey, dozing, and that the gunshots “blew [his] high.” Fox also testified that both Otey and Moore told him Defendant's name before he talked to the police.

The State also presented the testimony of Douglas Eatherton, an evidence technician; Detective Thomas Walsh, who investigated the shooting; Steven Taubenheim, a former computer forensics investigator; Officer David Menendez, a firearms examiner; and Dr. Jane Turner, a medical examiner. Defendant did not present any evidence.

During closing argument, the State discussed the elements of first-degree murder with the jury. Regarding deliberation, the State argued the following:

What's deliberation? Cool reflection for any amount of time no matter how brief, okay? Let's talk about what cool reflection is. Under the law cool reflection is not, I got to sit down, I got to write out a plan. I gotta tell somebody about it. Maybe I need to get some help. That's not cool reflection, ladies and gentlemen. Cool reflection under the law, deliberation under the law is that reflection for any length of time no matter how brief, okay?

So for argument sake, pulling a gun out of a waistband is deliberation on its own. So pulling a gun, aiming it, pulling the trigger, not one, not two, not three, but at least four times is without a doubt deliberation. That is a conscious decision made by the shooter, and that, ladies and gentlemen, is deliberation.

The jury found defendant guilty of first-degree murder and armed criminal action. Defendant was sentenced to life in prison without parole for first-degree murder, to run consecutively with his 30 year sentence for armed criminal action.

Defendant filed a motion for new trial, arguing that the trial court abused its discretion in allowing the witnesses' identification of Defendant as the shooter because “the circumstances of the out-of-court identification were inherently suggestive and conducive to mistaken identification, in that the witnesses had discussed the identity of the shooter prior to being asked by the police to make an identification and the witnesses were under the influence of drugs at the time of the shooting.” The trial court denied the motion. This appeal follows.

Point I: Identification Evidence

In his first point on appeal, Defendant argues that the trial court erred in admitting Otey, Fox and Johnson's out-of-court and in-court identifications of Defendant as the shooter. Specifically, Defendant contends that the admission of the identifications violated his right to due process because they were inherently unreliable and that the identification evidence was more prejudicial than probative. The State argues that the identifications were reliable and admissible.

Standard of Review

This Court has discerned that Defendant raises two arguments for why the identification testimony should have been excluded. Defendant first argues that the identification evidence violates his right to due process of law. In Defendant's motion to suppress, Defendant argued that the in-court and out-of-court identifications should not be admitted because the out-of-court identifications “were inherently suggestive and conducive to mistaken identification” and that any in-court identification would be subject to the same problems. Defendant renewed this objection to the evidence when Charlene Otey testified at trial, and again in his motion for new trial. Accordingly, this issue is properly preserved for appeal. Our review of the trial court's denial of a motion to suppress is limited to whether the ruling was clearly erroneous. State v. Ivy, 455 S.W.3d 13, 17 (Mo.App.E.D.2014). We review findings of fact and conclusions of law only to determine whether they are supported by substantial evidence. Id. at 17–18. We defer to the credibility findings of the trial court and view the facts in a light most favorable to the judgment. Id.

Defendant also contends that the trial court erred in admitting the identifications because prejudice to the Defendant outweighed the identifications' probative value. Generally, we review the trial court's admission of identification testimony for an abuse of discretion. Id. at 17. However, because this argument was never raised at the trial court, it is not preserved for review. Therefore, we review only for plain error under Rule 30.20, and we will affirm unless we find that the trial court committed an error which caused manifest injustice or a miscarriage of justice. State v. Floyd, 347 S.W.3d 115, 123 (Mo.App.E.D.2011). Under the plain error standard, the defendant must show that the trial court committed an error which is “evident, obvious, and clear” and that such error resulted in a manifest injustice or a miscarriage of justice. Id. at 123–24.

Discussion

A. Due Process & the Reliability of the Witnesses' Identifications

“Identification testimony is admissible unless the pretrial identification procedure is impermissibly suggestive, and this suggestive procedure made the identification unreliable.” Floyd, 347 S.W.3d at 125 (internal citations omitted). A pre-trial identification is unduly suggestive if the identification is not based on the witness's first-hand recollection, but rather the result of suggestive police procedures. Id. The issue is whether the witness had an adequate, independent basis for the...