Court of Appeals of Missouri, Eastern District, Second Division
[Copyrighted Material Omitted]
Appeal from the City of St. Louis Circuit Court. Honorable Mark H. Neill.
FOR APPELLANT: Amy E. Lowe, Public Defender's Office, St. Louis, Missouri.
FOR RESPONDENT: Adam S. Rowley, Assistant Attorney General, Jefferson City, Missouri.
Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.
Philip M. Hess, Judge
Tim Washington (Defendant) appeals his convictions of first-degree robbery and armed criminal action. On appeal, Defendant claims that the trial court abused its discretion by allowing into evidence the pretrial and in-court identifications of Defendant. Defendant also claims that the trial court abused its discretion by failing to provide a limiting instruction when the State, in its closing argument, argued facts not in evidence and improperly shifted the burden of proof to Defendant. We affirm.
On June 2, 2011, Defendant walked into a Circle K gas station around 10 p.m. At the time, Shindell Dinkins was working as a cashier and saw, from where she stood at her cash register, Defendant enter the store carrying a large woman's bag. Dinkins kept her " eye" on Defendant because she suspected that Defendant " was probably coming in to try and stuff product in
his bag."  Dinkins also noticed that Defendant was " oddly tall" and " so thin." As Dinkins waited on other customers, she continued to watch Defendant as he walked all the way around the store and then toward her cash register. As he approached, Dinkins saw Defendant pull a gun from the bag. When Defendant reached the register, which was open, he pushed a customer out of the way, reached across Dinkins, and took about $50 from the register while pointing the gun at Dinkins. Defendant then exited the store and walked toward a Metrolink station.
No DNA or other physical evidence linked Defendant to the scene, but the store's surveillance video showed the robbery occurring. Consistent with police department practice, an email containing a still-photo of Defendant from the surveillance video was circulated to the department. Another police officer recognized Defendant and, subsequently, a photo lineup containing Defendant's photo was prepared. Dinkins and another witness who was a customer at the scene, Rhonda Shannon, identified Defendant. Defendant was arrested and, thereafter, Dinkins identified Defendant at an in-person lineup.
Defendant was charged with first-degree robbery and armed criminal action. Before trial, Defendant moved to suppress the out-of-court identification of Defendant, claiming that the photo lineup and in-person lineup were unduly suggestive. After a hearing on the motion, the trial court denied the motion without explanation.
The matter then proceeded to a jury trial, where the State presented the testimony of Dinkins and Shannon, who identified Defendant as the individual who committed the robbery. Dinkins' and Shannon's out-of-court identifications of Defendant, as well as the surveillance video, were also admitted into evidence. At the close of the State's evidence, Defendant presented evidence in support of its defense theory that Defendant's identity had been mistaken. Defendant also presented the alibi testimony of his sister, Louisa Lyes, who testified that Defendant was at her home when the robbery occurred. Ultimately, the jury convicted Defendant as charged and the trial court sentenced Defendant as a prior offender to concurrent terms of 25 years' imprisonment for each conviction. This appeal followed.
Standard of Review
Defendant's first point on appeal relates to the trial court's decision to admit certain identification evidence. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. State v. Norman, 145 S.W.3d 912, 919 (Mo. App. S.D. 2004). " A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. White, 329 S.W.3d 710, 712 (Mo. App. S.D. 2010). Error in the admission or exclusion of evidence does not justify reversal unless the error was so prejudicial that it deprived the defendant of a fair trial such that the verdict would have been different. State v. Kreidler, 122 S.W.3d 646, 649 (Mo. App. S.D. 2003).
Defendant's remaining two points relate to the State's comments during closing argument. " The trial court has broad discretion in controlling closing argument, with wide latitude accorded counsel in their summation." State v. Dudley, 51 S.W.3d 44, 57 (Mo. App. W.D. 2001) (citation and quotations omitted). " Although courts are to be careful to refrain from unduly restricting closing arguments, they have the power to confine the arguments to issues raised by the pleadings and the evidence." State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006) (quotations omitted). A trial court's decision concerning the scope of closing argument is cause for reversal only upon a showing of an abuse of discretion that resulted in prejudice to the defendant. State v. Deck, 136 S.W.3d 481, 488 (Mo. banc 2004). In reviewing a trial court's decision, we are to examine the closing argument at issue in the context of the entire record. State v. Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003). To the extent that Defendant did not raise specific objections to the State's comments during closing argument, we may review Defendant's allegations for plain error. See State v. Hopson, 168 S.W.3d 557, 565 (Mo. App. E.D. 2005).
Point I: Identification Evidence
In his first point relied on, Defendant claims that the trial court abused its discretion by allowing the pre-trial and in-court identifications of Defendant because the identification was the result of " impermissibly suggestive police procedures that damaged the reliability of the identification." Specifically, Defendant maintains that the photo array was unduly suggestive because Defendant was the only individual who fit the description of the robber, which rendered the identifications unreliable and tainted subsequent identifications in violation of his due process rights. The State responds that Defendant has not established that the identifications procedures were ...