State v. Williams, No. ED 91326.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Kenneth M. Romines
• Citation: 277 S.W.3d 848
• Parties: STATE of Missouri, Respondent, v. Terrence Terrell WILLIAMS, Appellant.
• Docket Number: No. ED 91658.,No. ED 91326.
• Decision Date: 03 March 2009

277 S.W.3d 848 STATE of Missouri, Respondent,
v.
Terrence Terrell WILLIAMS, Appellant. No. ED 91326. No. ED 91658. Missouri Court of Appeals, Eastern District, Division Five. March 3, 2009.

[277 S.W.3d 850]

Kelly Jager, St. Louis, MO, for appellant.

Chris Koster, Dora A. Fichter, Jefferson City, MO, for respondent.

KENNETH M. ROMINES, J.

Introduction

Appellant, Terrence Williams, appeals the judgment of the Circuit Court of St. Louis City, the Honorable Robert H. Dierker, Jr. presiding. Williams was convicted by a jury of second degree murder and armed criminal action. The court sentenced Williams to consecutive terms of thirty and five years imprisonment. Williams now appeals his conviction, we affirm.

Factual and Procedural Background

On 15 December 2005 Daryl Davis and his cousin Gregg Gardner parked at the 5100 block of Robin Street. Gardner exited the vehicle and returned accompanied by three other men. Another car then stopped across the street and one of the men accompanying Gardner, later identified as Williams, began arguing with the driver. The driver of the car was later identified to be Dennis Rankins. Rankins exited the car and Williams punched him. Rankins fell to the ground, returned to his feet and ran towards the house at 5100 Robin Street. Before Rankins opened the door of the house Williams fired three shots at him. Davis and Gardner drove away in separate vehicles.

Responding to a 911 call, police found Rankins dead. St. Louis Metropolitan Police Detective Robert Boney investigated the homicide. Detective Boney's investigation

277 S.W.3d 851

lead him to Daryl Davis. During an interview Davis was shown a photo line-up. Davis selected two photos as possibly being the shooter, one of which was Williams. Approximately two weeks later Davis was shown a physical line-up. Davis identified Williams out of that line-up as the shooter.

At trial Williams' defense was alibi— "... he was at his mother's house when the crime occurred...." Defense counsel presented three witnesses who testified to this effect. Defense counsel attempted to elicit evidence from a defense witness that the witness had a frightening experience with Rankins earlier on the day of the shooting. The State objected to the relevance of this evidence and the court sustained the State's objection. Defense counsel moved at the close of evidence for acquittal, the motion was denied.

Additionally defense counsel objected at trial to the State's closing argument claiming it shifted the burden of proof. In its closing argument the State stated that "... [T]he defense doesn't have to do anything. Well, you know, when they choose to put witnesses on, they're held to the same standard, and if you don't believe their witnesses, if you have a doubt about what their witnesses are saying, if you think they are not telling the truth ... then you are entitled to consider that as additional evidence of the defendant's guilt, because a guilty person doesn't have to put a lie on. An innocent person can put the truth on and it should help them." The court overruled the defense counsel's objection.

The jury found Williams guilty of murder in the second degree and armed criminal action. Later the jury recommended a sentence of thirty years for the second degree murder conviction and five years for the armed criminal action conviction. The Court sentenced Williams to consecutive sentences of thirty and five years. This appeal follows.

Discussion I

Williams argues that the trial court erred in overruling his motion to suppress and admitting the physical line-up identification of him by Davis because it was tainted by suggestive police procedures and therefore unreliable. We will affirm the trial court's ruling on a motion to suppress unless the ruling was clearly erroneous. State v. Heyer, 962 S.W.2d 401, 401 (Mo.App. E.D.1998). If the ruling is plausible, in light of the record viewed in its entirety, we should not reverse, even if we would have weighed the evidence differently. Id. We review the factual findings only to determine if they are supported by substantial evidence, viewing the facts in the light most favorable to the trial court's ruling and disregarding contrary evidence and inferences. Id.

Identification testimony is admissible unless the pretrial identification procedure was unnecessarily suggestive and the suggestive procedure made the identification unreliable. State v. Middleton, 995 S.W.2d 443, 453 (Mo. banc 1999). A procedure is unnecessarily suggestive if the identification results not from the witness's recollection of firsthand observations, but rather from the procedures or actions employed by the police. State v. Lanos, 14 S.W.3d 90, 95 (Mo.App. E.D. 1999). The fact that the defendant was in both the photographic and physical line-ups does not alone render the line-up impermissibly suggestive. State v. Meeks, 770 S.W.2d 709, 710 (Mo.App. E.D.1989).

In State v. Glessner, 918 S.W.2d 270, 277 (Mo.App. S.D.1996) The witness was unable to identify the defendant in a physical lineup. Later the defendant, but no other from the physical lineup, was included in a

277 S.W.3d 852

photographic lineup. Id. From the second lineup...