Court of Appeals of Missouri, Eastern District, Third Division
April 28, 2015
STATE OF MISSOURI, Respondent,
DARIUS MORGAN, Appellant
from the Circuit Court of the City of St. Louis. Hon. Thomas
APPELLANT: Lisa M. Stroup, St. Louis, MO.
RESPONDENT: Chris Koster, Attorney General, Richard A.
Starnes, Asst. Attorney General, Jefferson City, MO.
G. DOWD, JR., Judge.
Morgan appeals from the judgment entered on his convictions
after a jury trial on one count of robbery in the first
degree and one count of armed criminal action. We affirm.
one night in August of 2011, the victim went to a gas station
with his two-year-old niece. He was pumping gas when he was
approached by two men. They
were only a few feet from the victim, and one of the men
pointed a revolver at him and told him to give them
everything in his pocket or he would shoot him. The victim
handed the robber fifty dollars in cash and his car keys. The
robber said he was going to get in the car, and the victim
pleaded to be allowed to get his niece out of the back seat
first. Eventually, the robber allowed him to get the child,
but told the victim he " should shoot" him. The
victim turned around to shield his niece, at which point the
robber jumped into the car with the other man and drove away.
The whole event took about three minutes.
victim called the police immediately and gave a description
of the car and the robber. Within a half hour, the police
found the car and, after a chase, pulled over the car. There
were three men in the car, including Morgan. They were
arrested and taken to the police station for a lineup in
front of the victim. The first lineup included one man from
the car and jail volunteers. The victim did not identify
anyone in that lineup as being involved in the robbery. The
second lineup had the other man from the car and jail
volunteers, one of whom had been used in the first lineup as
well. Again, the victim identified no one. The third lineup
included Morgan and two jail volunteers who had been in the
previous lineups. The victim immediately identified Morgan as
the robber; he recognized his face in a " split
was charged with robbery in the first degree and armed
criminal action. The victim and the officers involved in the
arrest and lineups testified for the State, and the defense
put on no evidence. The jury found him guilty, and Morgan was
sentenced to fifteen years for the robbery and ten years for
the armed criminal action, to be served concurrently. This
first point, Morgan argues that the trial court erred in
admitting pre-trial identification evidence because the
physical lineup from which the victim identified Morgan was
impermissibly suggestive and not reliable. He also contends
that the victim's in-court identification of Morgan was
inadmissible for the same reasons. The trial court has broad
discretion to admit or exclude evidence. State v.
Kayser, 397 S.W.3d 37, 39 (Mo. App. E.D. 2013). We will
reverse a trial court's ruling on a motion to suppress
only if it is clearly erroneous, and we will reverse
admission of testimony only if the trial court abused its
discretion. Id. We review the record made at the
suppression hearing as well as the evidence introduced at
trial. State v. Thomas, 407 S.W.3d 190, 194-95 (Mo.
App. E.D. 2013). But we consider only those facts and
reasonable inferences therefrom that are favorable to the
trial court's ruling. Id. at 195.
test for the admission of identification testimony is
two-pronged. Id. The first prong asks whether the
pre-trial identification procedure was impermissibly
suggestive. Id. If so, then we assess the impact
that the suggestive procedure had on the reliability of the
identification. Id. " Reliability is the
linchpin in determining the admissibility of identification
testimony. But a defendant must clear the suggestiveness
hurdle before procuring a reliability review."
Id. Morgan has not cleared the suggestiveness
A pretrial identification procedure is unduly suggestive if
the identification results not from the witness's recall
of first-hand observations, but rather from the procedures or
actions employed by the police." State v.
Mullins, 340 S.W.3d 311, 314 (Mo. App. E.D. 2011).
Morgan argues that the lineup was unduly suggestive because
two of the people in the lineup in which he was identified
had been used in
the two previous lineups and ruled out by the victim already,
increasing Morgan's chances of being identified. But the
victim did not realize at the time of the lineups that
participants were being re-used; therefore, this procedure
could not have affected the victim's selection of Morgan.
Morgan also argues the lineup was suggestive because he stood
out from the other participants in that he was the only one
in a dark shirt, the only one without a jail-processing
armband and the only one with freckles. A lineup will be
deemed impermissibly suggestive on the basis of the color or
characteristics of clothing only if the clothing is the
sole basis for identification. State v.
Weaver, 912 S.W.2d 499, 520 (Mo. banc 1995). Likewise,
dissimilarity in physical appearance alone is insufficient to
establish impermissible suggestion. State v.
Chambers, 234 S.W.3d 501, (Mo. App. E.D. 2007). The
victim testified he identified Morgan because he recognized
his face--not his clothing--and did not even notice the
armbands or Morgan's freckles during the lineup. Thus,
neither his physical appearance nor his clothing affected the
victim's identification of Morgan. Rather, the victim
identified Morgan based on his first-hand observations: he
identified Morgan in a " split second" as the guy
who pointed the gun at him because he " knew his
not address the reliability prong, but we point out that all
of the factors we would consider if that analysis were
appropriate show that the lineup and in-court identifications
were reliable. Viewed favorably to the trial court's
rulings, the evidence showed that the victim had adequate
opportunity to view Morgan's face during the robbery; he
was very focused on Morgan's face during the crime; the
inaccuracies in the victim's description of Morgan
involved his clothing, which could have been discarded or
changed before the arrest; the victim was 100% certain that
Morgan was the robber; and only a few hours passed between
the crime and the lineup. See State v. Dizer, 119
S.W.3d 156, 163 (Mo. App. E.D. 2003).
trial court did not clearly err in denying the motion to
suppress or abuse its discretion in admitting the
identification evidence. Point I is denied.
second point, Morgan contends the trial court plainly erred
by sustaining the State's objection when he asked an
officer--who was not involved in conducting the lineup, but
only there to observe--about his opinion as to the quality of
the lineup. Morgan contends the officer would have said the
lineup was so bad that he went to his supervisors and told
them it was " garbage." Morgan wholly failed to
demonstrate at trial or on appeal that the officer was
qualified to offer this opinion or otherwise how his opinion
was relevant. The officer was still in a probationary period
having only been on the police force for two weeks; he had no
formal training in lineups and little, if any, informal
training; he had never conducted a lineup at the time of
Morgan's arrest; and he was not prepared to conduct a
lineup at that time. Moreover, Morgan elicited no information
as to what training or experience in lineups the officer may
have gained since the time of Morgan's arrest. Thus, the
officer was not shown to be an expert at the time of the
lineup or at the time of trial. See State v.
Williams, 427 S.W.3d 259, 266 (Mo. App. E.D. 2014) (
" An expert is qualified if he or she has knowledge from
education or experience which will aid the trier of
trial court did not abuse its discretion in excluding this
officer's opinion, much less did it commit plain error by
doing so. Morgan has suffered no manifest injustice or
miscarriage of justice on this ground. Point II is denied.
third point, Morgan contends the trial court plainly erred in
classifying him as a prior offender because the indictment
did not set forth the essential facts as to that status.
Morgan seeks a complete reversal of the judgment and sentence
on this ground, and remand for a new trial. The State
concedes that the indictment did not contain any assertions
regarding Morgan's prior offender status, as required by
Section 558.021.1. The State's failure to plead the facts
necessary to establish Morgan's prior offender status is
error. Thus, the only question is whether it rises to level
of plain error in that it caused Morgan to suffer a manifest
injustice or miscarriage of justice.
length of sentence would be no different if Morgan had not
been classified as a prior offender. Rather, the only direct
legal consequence is loss of the statutory right to have the
jury advise the court on sentencing. Sections 557.036.7;
State v. Drudge, 296 S.W.3d 37, 41 (Mo. App. E.D.
2009). But that statutory right can be waived when the
defendant fails to assert it. Drudge, 296 S.W.3d at 41. Here,
during the trial and before submission of the case to the
jury, the trial court asked counsel if he had discussed with
Morgan an exhibit showing that Morgan had a prior conviction.
Counsel stated that he had and that they admitted Morgan had
a prior conviction in federal court. The court received the
exhibit into evidence, made a finding that Morgan was a prior
offender and explained that, as a result of that finding,
Morgan would be sentenced by the court instead of the jury.
Counsel stated he had nothing further on that issue. By
failing to assert the right when directly asked about the
prior conviction and told that it would mean sentencing by
the court instead of the jury, Morgan has waived that right.
also contends that his prior offender classification caused a
manifest injustice because it subjects him to negative parole
consequences. We are aware that our court has stated that
being improperly classified as a prior offender has the
possibility of affecting future parole eligibility. See id.;
State v. Jolley, 45 S.W.3d 549, 552 (Mo. App. E.D.
2001); State v. Jones, 296 S.W.3d 506, 514 (Mo. App.
E.D. 2009); see also State v. Halk, 955 S.W.2d 216,
217 (Mo. App. E.D.1997) (persistent offender); State v.
McGee, 284 S.W.3d 690, 713 (Mo. App. E.D. 2009)
(persistent offender). In those cases, we cited to the
statute addressing minimum prison terms and to department of
corrections regulations for parole eligibility and parole
guidelines. See Halk, 955 S.W.2d at 217; Drudge, 296 S.W.3d
at 41; Jones, 296 S.W.3d at 514. But none of those opinions
actually analyze the language in any of those statues or
turns out, none of those provisions actually speak in terms
of the offender's classification by a trial court as a
prior, persistent or dangerous offender under section
558.021. Section 558.019.2 dictates that an offender's
minimum prison term generally depends on the offender's
number of " previous prison commitments." See
Section 558.019.2(1)-(3). As the Southern District recently
found, that statute does not require a separate finding by
the trial court that the offender is a prior,
persistent or dangerous offender. State v. Currie,
454 S.W.3d 903, 2014 WL 2818989 *2 (M. App. S.D. 2014).
Similarly, the department of corrections regulations cited in
previous cases as containing potential parole consequences
for prior or persistent offenders refer only to the
offender's prior criminal history, not to classifications
by the trial court. See 14 CSR 80-2.010 and 14 CSR 80- 2.020.
Thus, it is not the finding by the trial court that
one is a prior offender that affects parole eligibility under
these statutes and regulations, but the fact of
one's prior criminal history or previous prison
in this case, Morgan was convicted of robbery in the first
degree, which is a dangerous felony, and his parole
eligibility is therefore governed separately by Section
558.019.3. That section requires dangerous felons to serve
85% of their prison term. Like other minimum prison terms,
the 85% rule is " not based on a prior, persistent, or
dangerous offender designation." Currie, 2014 WL 2818989
at *3. Thus, again, it is the not the finding by the
trial court that Morgan is a prior offender that affects his
parole eligibility in this case, but the fact that
he committed a dangerous felony.
has failed to identify any actual or even potential source of
negative consequence resulting from his classification as a
" prior offender," and thus has failed to
demonstrate manifest injustice. Point III is denied.
judgment is affirmed.
Odenwald, P.J. and Gary M. Gaertner, Jr., J., concur.
In those cases, the courts removed the
erroneous classification in the judgments to prevent
perceived possible negative parole consequence, but did not
remand for resentencing on that ground.
In prior versions of this statute, the
minimum prison terms in subsection 2 were dependent on
whether the offender was a " prior offender,"
" persistent offender" or " class X
offender." That was changed in 1993 to " has one
prior felony conviction," " has two prior felony
convictions" and " has three or more prior felony
convictions." Then in 1994, those phrases were amended
again to the current version in which the minimum term is
based on the number of " previous prison
See section 556.061(8).