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State v. McVay

Court of Appeals of Missouri, Southern District, Second Division

October 31, 2016

STATE OF MISSOURI, Plaintiff-Respondent,
v.
LAMAR ANTHONY McVAY, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF PEMISCOT COUNTY. Honorable Fred W. Copeland

         AFFIRMED

         A jury found Lamar Anthony McVay ("Defendant") guilty of robbery in the first degree, see section 569.020, RSMo 2000, and the trial court sentenced him to thirty years' imprisonment in the Department of Corrections. Defendant appeals his conviction and argues that the trial court erred by: (1) "overruling defense counsel's objections to State's Exhibits 8 and 9, video and still picture from the Arkansas robbery, along with testimony from the Arkansas convenience store clerk and the Blytheville police officer about the robbery[;]" (2) "denying [Defendant's] motion to suppress identification and in failing to exclude the in-court identification of [Defendant] by Lisa Greathouse, because the identifications were tainted by an impermissibly suggestive procedure[;]" (3) "overruling defense counsel's objections to testimony from Officer Randy Trimm that he recognized [Defendant] on the surveillance tapes . . . in that there was no showing that Trimm had any expertise that would render him more qualified than the jurors who viewed the tape to make an identification[;]" and (4) "overruling defense counsel's motion to dismiss because the state failed to disclose the surveillance video from the First Street Apartments[.]" Finding no merit in Defendant's points, we affirm his conviction.

         Factual Background

         Defendant does not challenge the sufficiency of the evidence to support his conviction. Briefly, the facts viewed in the light most favorable to the verdict, State v. Hopper, 326 S.W.3d 143, 146 (Mo.App. 2010), are that Lisa Greathouse was working as a cashier at Flash Market, a convenience store, in Steele, Missouri, on July 1, 2013, when a black man with a scar on his face and clothed all in black came into the store, pulled out a gun, and demanded the money from the cash register. Greathouse recognized the robber as a regular customer but did not know his name. She later identified Defendant as the robber through a photo lineup.

         The jury found Defendant guilty, and the trial court sentenced him as a prior and persistent offender to thirty years' imprisonment. This appeal timely followed.

         Discussion

         Point One-Admission of Evidence of Defendant's Presence in an Arkansas Convenience Store Earlier in the Day

         Defendant's first point relied on states:

The trial court abused its discretion in overruling defense counsel's objections to State's Exhibits 8 and 9, video and still picture from the Arkansas robbery, along with testimony from the Arkansas convenience store clerk and the Blytheville police officer about the robbery, because this evidence violated [Defendant's] rights to due process, a fair trial, and to be tried only for the offense charged, guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10, 17 and 18(a) of the Missouri Constitution, in that, despite the trial court's attempt to limit the testimony and evidence to an "incident" rather than calling it a "robbery, " the evidence was clearly of another similar crime, but one which was not sufficiently unusual or distinctive to fall under the identity exception to the inadmissibility of evidence of other misconduct, prejudicing [Defendant], since such "bad acts" evidence would raise a legally spurious presumption of guilt in the minds of the jurors.

         "[A] trial court's ruling regarding the admissibility of evidence . . . is reviewed for abuse of discretion. The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration." State v. Winfrey, 337 S.W.3d 1, 5 (Mo. banc 2011) (internal citations and quotations omitted). The trial court's ruling will be upheld if it is sustainable under any theory. State v. Mort, 321 S.W.3d 471, 483 (Mo.App. 2010).

         At trial, Defendant challenged his identity as the perpetrator of the robbery of the Flash Market in Steele, Missouri. In attempting to prove his identity as the robber, the State offered video, photographic, and testimonial evidence that 22 hours before the Flash Market was robbed and 16 miles away from the Flash Market, Defendant was in the Dodge Store in Blytheville, Arkansas, wearing the same shorts and shoes as the Flash Market robber was wearing, as described by the Flash Market clerk, Lisa Greathouse, and as shown in the video of that robbery.

         Shalonda Pope was the cashier at the Dodge Store and testified that an "incident" occurred on July 1, 2013.[1] During her testimony, Exhibits 8 and 9 were admitted over Defendant's objections. Exhibit 8 contained surveillance video of the store, some portion of which was played for the jury, and Exhibit 9 was a still frame of a moment in time taken from a video on Exhibit 8 showing an individual entering the store.

         Detective Vanessa Stewart of the Blytheville Police Department testified that she spoke with Defendant about the incident, and he told her that he was the individual in the video on Exhibit 8.[2] Following Detective Stewart's testimony, the trial court advised the jury that

the testimony from Ms. Pope and Ms. Stewart is only to be considered by the jury for purposes of the identification of the defendant concerning the charge that he's on trial for today. And that's the sole purpose it is to be used in the jury's deliberation, since I.D. is an issue in this case.

         The State mentioned the Dodge Store video twice during closing argument. First, the State noted that "you also heard about, it was later discovered that the defendant was spotted in Blytheville, Arkansas, at the Dodge Store. Same shoes, same shorts." The State later argued:

And not only do we have those witnesses, we have the same shoes, we have the same shorts as you see right here that he wore at Blytheville, which I remind you, was twenty hours, just twenty hours prior to the Steele robbery. Wearing the same shoes, the same shorts, earlier in the day, same shoes, same shorts. Right here, same shoes, same shorts.

         Defendant's point contends that the trial court abused its discretion in admitting Exhibits 8 and 9, the testimony of Pope, and the testimony of Detective Stewart because "the evidence was clearly of another similar crime, " and "such 'bad acts' evidence would raise a legally spurious presumption of guilt in the minds of the jurors."

         The testimony of Pope and Detective Stewart does not, however, attribute any crime or bad act to Defendant. Similarly, Exhibit 9 is a still photo that shows Defendant entering the Dodge Store. It does not depict Defendant engaging in a crime or a bad act. Exhibit 8 contains the only challenged evidence that shows Defendant engaging in a crime or bad act; however, Defendant does not contend that the portion of the Exhibit 8 video depicting the bad act was ever shown to the jury.

         In order for evidence to be inadmissible as a prior bad act, it must in fact show a prior bad act. See e.g., State v. Franklin, 307 S.W.3d 205, 208 (Mo.App. 2010) (a victim's single reference to a "prior incident" - the nature of which was never revealed - did not constitute evidence of a crime); State v. Rodgers, 3 S.W.3d 818, 823 (Mo.App. 1999) (testimony concerning defendant's mug shot did not connect the defendant with a specific crime); State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989) ("In the present case, the witness[es]' vague references cannot be characterized as clear evidence associating appellant with other crimes.").

         Defendant's counsel on appeal argued at oral argument that "the evidence [of a prior crime] is . . . the implication that a robbery occurred on the same date."[3] We cannot credit this speculation when nothing in the record suggests that the jury understood the evidence to implicate the defendant in a robbery. State v. Depriest, 822 S.W.2d 488, 492 (Mo.App. 1991), overruled on other grounds by State v. Carson, 941 S.W.2d 518 (Mo. banc 1997) (testimony and still photograph concerning the defendant being monitored on Sears surveillance video was not evidence of other crimes because nothing in the record "would cause a jury to infer that only people guilty of crimes are monitored by a Sears surveillance camera.").

         Because the jury was not shown a prior bad act, Defendant's first point alleging that the jury was shown a prior bad act by implication is denied.

         Point Two-Defendant's Identification by Greathouse

         Defendant's second point relied on states:

The trial court erred in denying [Defendant's] motion to suppress identification and in failing to exclude the in-court identification of [Defendant] by Lisa Greathouse, because the identifications were tainted by an impermissibly suggestive procedure, which violated [Defendant's] right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution, in that a very substantial likelihood of irreparable misidentification existed, since in the lineup photos, [Defendant] was the only person in an orange jumpsuit, the only person with a scar on his face, the only person in hair braids and the only person whose name did not begin with the letter "A." Furthermore, the officer asked Greathouse if she "could possibly identify the person that committed the robbery in the lineup" and sometime after the lineup, an officer told Greathouse that they "got the guy who robbed her, " which would have confirmed any misidentification, causing her to continue her error at trial.

         Before trial, Defendant moved to suppress the out-of-court and future in-court identifications of Defendant by Greathouse, alleging that the pretrial photo lineup procedure was impermissibly suggestive.

         "A trial court's ruling on a motion to suppress will be reversed on appeal only if it is clearly erroneous. This Court defers to the trial court's factual findings and credibility determinations, and considers all evidence and reasonable inferences in the light most favorable to the trial court's ruling." State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007) (citations omitted). We review the whole record, consider the totality of the circumstances, and affirm if the trial court's ruling is supported by substantial evidence. State v. Trimble, 654 S.W.2d 245, 254 (Mo.App. 1983). The whole record includes the evidence presented at both the suppression ...


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