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State v. Morgan

Court of Appeals of Missouri, Eastern District, Third Division

April 28, 2015

STATE OF MISSOURI, Respondent,
v.
DARIUS MORGAN, Appellant

          Appeal from the Circuit Court of the City of St. Louis. Hon. Thomas J. Frawley.

         FOR APPELLANT: Lisa M. Stroup, St. Louis, MO.

         FOR RESPONDENT: Chris Koster, Attorney General, Richard A. Starnes, Asst. Attorney General, Jefferson City, MO.

          OPINION

Page 350

          ROBERT G. DOWD, JR., Judge.

          Darius 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.

         Late 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

Page 351

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.

         The 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 second."

         Morgan 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 appeal follows.

         In his 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.

          The 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 hurdle.

          " 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 ...


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