Court of Appeals of Missouri, Eastern District, Third Division
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 ...