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State v. Russell

Court of Appeals of Missouri, Eastern District, Second Division

June 9, 2015

STATE OF MISSOURI, Respondent,
v.
TJ RUSSELL, Appellant

Page 879

Appeal from the City of St. Louis Circuit Court. Honorable Michael F. Stelzer.

FOR APPELLANT: Andrew E. Zleit, Missouri Public Defender Office, St. Louis, Missouri.

FOR RESPONDENT: Dora A. Fichter, Assistant Attorney General, Jefferson City, Missouri.

Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.

OPINION

Page 880

Philip M. Hess, Judge.

Introduction

T.J. Russell (Defendant) appeals the judgment and sentence of the Circuit Court of the City of St. Louis entered after a jury convicted him of first-degree murder and armed criminal action. In two points relied on, Defendant claims that the trial court (1) clearly erred in admitting the identification testimony of three witnesses and (2) plainly erred by allowing the State's comments regarding deliberation in closing argument. We affirm.

Factual Background

On March 19, 2011, Charlene Otey and Dennis Fox visited Kenyatta Moore's apartment. Otey and Moore were drinking " Syrup" (a combination of NyQuil and painkillers) and Fox had ingested heroin. Jermaine Johnson and Antoine Rayner came to the apartment. After Moore opened the door and let them inside, Defendant came down the hallway and started shooting at Rayner. Defendant asked Rayner, " Where is my money? Where is my phone?" After the shooting, Defendant ran. Rayner died as a result of his gunshot wounds.

Defendant was charged with first-degree murder and armed criminal action. Prior to trial, defense counsel filed a pre-trial motion to suppress identification evidence. In the motion, defense counsel argued that Moore, Otey, Fox, and Johnson's identifications of Defendant as the shooter should be suppressed because (1) Moore knew and had a relationship with Defendant prior to the shooting; (2) all of the witnesses were under the influence of drugs at the time of the shooting; and (3) the apartment was not well-lit during the incident. The trial court denied the motion, finding that defense counsel's objections to the identifications went to the weight, not the admissibility, of the identifications.

At Defendant's trial, the State presented the testimony of Officer Michelle Vetter, who responded to the scene after Rayner was shot. The State also presented the

Page 881

testimony of Kenyatta Moore. Moore recalled that on March 19, she, Otey, and Fox were at her apartment when Johnson and Rayner arrived. Moore said that Rayner entered the apartment before Johnson, and then she " heard claps." She testified that Defendant was standing in the doorway, holding a gun, and that she told Defendant to stay at her apartment. Moore went to tend to Rayner, and when she looked up again, Defendant was gone. Later that night, Moore spoke to homicide detectives and told them Defendant shot Rayner. Moore identified Defendant in a photo line-up. On cross-examination, Moore admitted that she had done drugs that day and she, had been drinking " Syrup" prior to the shooting.

Charlene Otey also testified on behalf of the State. She testified that she did not know Defendant prior to the shooting. That evening, she had " dozed off" on the couch, and the sound of three gunshots woke her up. She testified that she saw a man standing in the doorway, and saw Rayner and Johnson run into the kitchen. She recalled that the man in the doorway said, " Where's my money at? Where's my phone at?" Otey testified that she went to the police department and identified the person who shot Rayner. Defense counsel objected, as follows:

[Defense Counsel]: I'm going to object at this point based on my pretrial motions to suppress the identification. When the procedures that were used were suggest[ive] and her basis for identifying him [w]as based on the information she got from other person, not her own observations.
[The State]: Your Honor, she is taken from the scene to homicide. She doesn't know the guy's name. No one told her anything. She learns his name later and then she knows the name. It certainly doesn't affect her ability to identify this piece of paper.
[The Court]: I don't think it's an issue of suppression. There may be some credibility issues you can bring out, but I don't think it's about suppression. I am going to deny the request.
[Defense Counsel]: May I have a ...

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