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State v. McKay

Court of Appeals of Missouri, Eastern District, Second Division

December 23, 2014

CORNELL MCKAY, Defendant/Appellant

Page 451

Appeal from the Circuit Court of the City of St. Louis. 1122-CR04627-01. Honorable Robin R. Vannoy.

FOR APPELLANT: Thomas James Sanfilippo, St. Louis, MO, Robert Brooks Ramsey, Co-Counsel, St. Louis, MO; EXRA & ASSOCIATES, James R. Dowd, Co-Counsel, Law Office of James R. Dowd, Clayton, MO; Joseph Fredric Yeckel, Co-Counsel, Clayton, MO; Law Office of Joseph F. Yeckel, LLC.

FOR RESPONDENT: Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO.

Mary K. Hoff, Presiding Judge. Glenn A. Norton, Judge, and Philip M. Hess, Judge, concur.


Mary K. Hoff, Presiding Judge

Page 452

Cornell McKay (Defendant) appeals from the judgment upon his conviction by a jury for one count of first-degree robbery, in violation of Section 569.020, RSMo 2000,[1] and one count of armed criminal action, in violation of Section 571.015. The trial court sentenced Defendant to a term of twelve-years' imprisonment on each count, with the sentences to run concurrently. We reverse and remand for a new trial.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial: On August 10, 2012, Leigh Deusinger (Victim) left work around 5:00 or 5:30 p.m. and drove to Tower Grove Park, where she met some friends for a " Food Truck Friday" event. At about 8:25 p.m., while on her way home, Victim called her husband but was unable to reach him.

When she arrived home, she parked on the street in front of her condo. She exited her car and went to the trunk to retrieve a larger purse she had put in it. At this moment, she noticed a young man walk past her. As she opened the trunk and leaned in to retrieve her purse, she saw the same young man walking back towards her. She closed the trunk, and the young man circled around the driver's side of her car and made eye contact with her. He said, " Give me your money," and pointed a gun at Victim's stomach. Victim put up her hands and said, " I don't have anything." The man repeated his demand and then asked if she had a cell phone. Victim told him it was in the front seat, and the man said, " Well, give it to me. Give it to me."

Victim walked back to the driver's door and sat down inside the car and the man put his arm on the door and leaned in. Victim told the man that her phone was in her purse, and she gestured toward it. She then put the purse on her lap, unzipped it, and handed her phone to the man. The phone was an " Evo 3." There was also some cash in the purse that Victim gave to the man. The man asked what else she had, and he " rifled" through the contents of Victim's purse. Victim told him that she did not have anything else and the man turned and ran away toward West Pine.

Immediately following the robbery, Victim retrieved her larger purse from the trunk, and went inside her condo. She was unable to call the police because she did not have a land line. Her husband was not at home. Victim then became " really scared" and turned off the lights, thinking that the man who had robbed her might be able to identify the condo where she lived.

When the robbery occurred, Victim's husband had been out walking their dog. Victim's husband testified that during his walk, he encountered a young man on the street. They nodded to each other but passed without speaking. As Victim's husband was returning to their condo, he saw the same young man on the corner of Boyle and West Pine, about a block from their condo. The man looked at Victim's husband and then ran across Boyle Street. Victim's husband " checked to make sure

Page 453

everything was squared away with the cars," and then he went inside.

When he entered the condo, he found Victim standing in the dark. He asked Victim what was wrong, and she told him she had been robbed at gunpoint. She started shaking and crying, and they called 911 on her husband's cell phone. The 911 call was made at about 8:40 p.m.

When the police arrived, Victim described the robbery and provided a physical description of the suspect. Victim described the suspect as a young African-American male, tall, thin, and very clean cut. She testified that his skin was more light colored, that he was wearing a light-colored, white or powder blue t-shirt, light-colored khaki shorts, and tennis shoes.

After talking to police, Victim decided to leave her phone service on, in an attempt to track the stolen phone. Thereafter, on two occasions, Victim accessed her cell phone account on-line and obtained a list of telephone numbers and calls. She testified that she prepared these lists by " copy[ing] and past[ing] them from the website into an Excel spreadsheet." She then copied the list and e-mailed the information to police. The first list included calls from August 10 to August 13, 2012; the second included calls from August 10 to August 18, 2012.

About eight days after the robbery, Victim canceled her phone service when a friend informed her that she had received a " pocket" call and a strange message from Victim's stolen phone. Aside from a call Victim had made to her husband shortly before the phone was stolen and from the strange " pocket" call to her friend, Victim did not recognize any of the telephone numbers that appeared on the lists she provided to the police.

On August 20, 2012, using telephone numbers provided by Victim, Detective Anthony Boettigheimer (Detective Boettigheimer) obtained the name of Lamont Carter (Carter) from the CrimeMatrix database and in turn obtained the names of several people connected with Carter. Detective Boettigheimer then compared those people to the description of the robber and only Defendant matched the description provided by Victim.

That same day, police compiled a photo line-up that included Defendant and showed Victim the photographs. Victim recognized the man who had robbed her and identified Defendant. Victim's ...

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