State v. Winston, 70646

• Decision Date: 02 December 1997
• Docket Number: No. 70646,70646
• Citation: 959 S.W.2d 874
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kevin L. WINSTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 874

959 S.W.2d 874

STATE of Missouri, Plaintiff-Respondent, v. Kevin L. WINSTON, Defendant-Appellant.

No. 70646.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 2, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 15, 1998.

Application for Transfer Denied Feb. 24, 1998.

Kent Denzel, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Meghan J. Stephens, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Presiding Judge.

Defendant, Kevin L. Winston, appeals from the trial court's judgment entered on his convictions of three counts of burglary in the second degree and three counts of stealing in excess of $150. Sections 569.170; 570.030 RSMo (1994). ¹ The trial court sentenced defendant to six terms of fifteen years of imprisonment to run concurrently. We affirm.

Defendant does not dispute the sufficiency of the evidence to support the jury's verdicts. Viewed in the light most favorable to the verdicts, the evidence adduced at trial established the following facts. The three burglaries in question took place between July and October of 1994. The first burglary took place on July 23, 1994 at Ronsick's Auto Care Station. The manager of Ronsick's called the police around 6:00 A.M. and reported that someone had thrown a brick through a window and stolen lottery tickets valued at $453 and 46 packs of cigarettes. He also notified the Missouri Lottery of the stolen lottery tickets. At the crime scene, the police found defendant's fingerprints on some packs of cigarettes and blood that matched the blood type of defendant.

The second burglary also occurred at Ronsick's Auto Care Station on October 7, 1994. As with the prior burglary, the manager reported to the police that someone had entered the building by breaking one of its windows. Also similar to the July burglary, the burglar had stolen lottery tickets and packs of cigarettes. The manager of Ronsick's also notified the Missouri Lottery of the stolen tickets.

Later on the morning of October 7, defendant cashed the stolen lottery tickets at a local Schnucks store. The Missouri lottery immediately notified the Ferguson Police Department of the cashing of the stolen tickets. A Detective Mudd responded to the lottery's notification by proceeding to the Schnucks store. At the Schnucks store, Detective Mudd seized a surveillance video tape showing that defendant was the individual who cashed the stolen tickets. Detective Mudd also showed a picture of defendant to two clerks at the Schnucks store and both identified defendant as the person who cashed the stolen tickets.

On October 23, 1994, the Florissant Quick Shop was burglarized early in the morning. As with the prior two burglaries, the burglar gained entry into the building by breaking one of the windows with a brick. Also, the burglar stole lottery tickets worth $1,799 and an undisclosed amount of cigarettes. Later that afternoon, a police officer observed defendant carrying a black trash bag containing a large amount of lottery tickets. When the officer inquired into the defendant's name, the defendant falsely identified himself as "Benny" Winston. Defendant also provided the officer with three different social security numbers, none of which were valid numbers. Based on his inconsistent statements and suspicious behavior, the officer then placed defendant under arrest.

Defendant had in his possession 1,100 lottery tickets and six packs of cigarettes at the time of his arrest. The police determined that the lottery tickets in defendant's possession were stolen during the robbery of the Florissant Quick Trip. The State charged defendant with three counts of second degree burglary and three counts of stealing $150 or more. Sections 569.170; 570.030. After a four day trial, the jury returned guilty verdicts on all six counts. The trial court entered judgment against defendant on the jury's verdicts and imposed six fifteen year sentences on defendant to run concurrently. Defendant then filed a motion for a new trial which the trial court denied. This appeal follows.

In his first point, defendant alleges the trial court erred in allowing his girlfriend's sister, Leudovie Jemison, to identify him in a print generated from a video tape of the surveillance camera taken during the July 23, 1994 burglary at Ronsick's Auto Care Station. Defendant asserts that the trial court was required to exclude Ms. Jemison's identification since it "invaded the province of the jury". Defendant bases this argument on his assertion that since the jury had the opportunity to view both the print of the surveillance camera video tape and the defendant, the jury was in as good a position to determine if defendant was the person in the print as was Ms. Jemison. We disagree.

The trial court has wide discretion in admitting the testimony of a lay witness into evidence. State v. Matthews, 793 S.W.2d 481, 486 (Mo.App.1990). We will not reverse the trial court's ruling unless it constitutes an abuse of discretion. Id.

As defendant points out, a lay witness, generally, may not testify as to an opinion on a matter in dispute. Mohr v. Mobley, 938 S.W.2d 319, 321 (Mo.App.1997). The rationale underlying this "opinion rule" is that since the lay witness does not possess specialized knowledge on the matter, the lay witness and the jury are in equal positions to form an accurate opinion. Id. Courts have created an exception to the opinion rule by allowing lay witnesses to testify as to their opinion if the lay witness is in possession of knowledge that the jury does not also possess since it would be helpful to the jury in determining an issue in dispute. State v. White, 790 S.W.2d 467, 473 (Mo.App.1990); See also Fed.Rules of Evid. 701. Thus, in the identification context, a lay witness' opinion testimony is admissible if there a basis for concluding that the witness is more likely to correctly identify the defendant than is the jury. State v. Linzia, 412 S.W.2d 116, 120 (Mo.1967); United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir.1984).

Here Ms. Jemison had spent time with defendant in the time immediately surrounding the burglaries and was familiar with his features. Also, the record indicates that the person in the printout of the video tape was moving quickly and is somewhat difficult to see. Based on this record, we find that there was a basis for concluding that Ms. Jemison was more likely to correctly identify the defendant than was the jury. Thus, the trial court did not abuse its discretion in allowing Ms. Jemison to identify defendant as the person in the print taken from the surveillance camera during the July 23, 1994 burglary of Ronsick's Auto Care Station. Defendant's first point is denied.

In his second point, defendant claims the trial court erred in denying his request for a mistrial after Officer Mudd testified that a photograph of defendant was a "mug shot". A trial court is required to grant a mistrial only if there is a grievous error that cannot be remedied. State v. Leisure, 810 S.W.2d 560, 571 (Mo.App.1991). Since the trial court is in a much better position to determine the prejudicial effects from the alleged error, we will affirm its decision not to grant a mistrial unless that decision constitutes an abuse of discretion. Id.

The trial court does not abuse its discretion in denying a defendant's motion for a mistrial if the alleged improper remarks are a vague and indefinite reference to an unspecified crime. State v. Rhodes, 829 S.W.2d 41, 44 (Mo.App.1992). Here, Officer Mudd never referred to a specific crime that defendant may have committed. Also, the prosecutor admonished Detective Mudd not to refer to the photograph as a "mug shot" after the first comment. On this record, we find that Detective Mudd's comment was, at most, a vague and indefinite reference to an unspecified crime. The trial court, therefore, did not abuse its discretion in denying defendant's motion for a mistrial. Defendant's second point is denied.

Defendant next asserts that the trial court erred in denying his motion to suppress the two Schnucks' clerks', Mary Tracy and Wayne Barnes, in court identification of defendant as the person who cashed in the stolen lottery tickets. We will affirm the trial court's ruling denying defendant's motion to suppress the in court identification unless defendant can demonstrate that (1) the police procedures employed in the out of court identification procedure was impermissibly suggestive; and (2) the suggestive procedures made the in court identification unreliable. State v. Davis, 860 S.W.2d 369, 374 (Mo.App.1993). Since the trial court has the opportunity to judge the credibility of the witnesses, we will not disturb its ruling unless it is clearly erroneous. State v. Hoopingarner, 845 S.W.2d 89, 92 (Mo.App.1993). Also, we view the facts in the light most favorable to the ruling of the trial court and disregard any contrary evidence and inferences. Id.

Here, the only photograph that Officer Mudd showed the witnesses was that of the defendant. As the state points out, the showing of only one photograph is not impermissibly suggestive if there is no accompanying comment or activity on the part of the police. State v. Humphrey, 789 S.W.2d 186, 190 (Mo.App.1990). However, in the present case, Detective Mudd stated to the witnesses that the photograph was the picture of a suspect in another burglary. Arguably, this statement was impermissibly suggestive in that it may have implicitly suggested to the witnesses that defendant was also a suspect in this burglary as well.

Although Detective Mudd's statement may have rendered the out of court identification procedure unduly suggestive, the reliability of the in court identification is the key in determining whether the trial court should have allowed the identification into evidence. State v. Hornbuckle, 769 S.W.2d 89, 94 (Mo. banc 1989); cert. denied 493...