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State v. Naylor

Court of Appeals of Missouri, Western District, Second Division

November 22, 2016


         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Charles H. McKenzie, Judge

          Before: Lisa White Hardwick, Presiding Judge, Karen King Mitchell, Judge, Anthony Rex Gabbert, Judge

          Anthony Rex Gabbert, Judge

         Brandon J. Naylor appeals from a judgment entered upon a jury verdict convicting him of first-degree burglary and third-degree assault, for which he was sentenced as a persistent offender to a total of fourteen years' imprisonment. He contends that the circuit court abused its discretion in overruling his motion to suppress the victim's in-court and out-of-court identifications, and in excluding the testimony of an expert in eyewitness identification. We affirm.

         Factual Background

         The facts, as relevant to Naylor's points on appeal, are that on June 11, 2013, just after 8:40 p.m., the victim, J.S., had just put her two-year-old son to bed, turned off the main light in the living room, and was starting to watch a movie. A man whom J.S. had never seen before then walked into her home through the unlocked front door. J.S. initially thought it was her husband arriving home and when she realized it was not her husband, J.S. jumped up and told the man to get out. She then struggled with the man, knocking over a speaker to block the entranceway to her son's room. The man hit her in the face during the scuffle, leaving bruising that lasted for a couple of weeks. J.S. grabbed a fireplace poker and struck the man in the back with it causing his glasses to fall off. As he leaned over to get his glasses, J.S. hit him again and the man then exited J.S.'s residence. J.S. testified that she was face to face with this individual for at least a couple of minutes. A twenty dollar bill that J.S. had recently received from babysitting and that was laying on top of J.S.'s entertainment center was missing. J.S. testified that she had previously received self-defense, police, and rape prevention training, and this training contributed to the defensive manner in which she handled the situation.

         The man left through the front door, on foot. Once J.S. was sure that he had left, she ran to her son's room to calm her son down. During the fray J.S. heard him in his bedroom saying, "Mommy, it's okay. It's okay. It just fell over. Mommy, it's okay." J.S. then called 911. J.S. described the intruder to the dispatcher as a white male with "lightish" brown hair, approximately 5'11", wearing khaki shorts and a black t-shirt. When asked by the dispatcher if she could identify the assailant she stated, "Yes." Dispatch notified area police of the home invasion, describing the assailant and the location of the intrusion. Soon thereafter Officer Mark Showman and Officer Marcus Brooker of the Independence Police Department arrived at J.S.'s home to investigate the incident. A police dashboard camera shows officers responding to J.S.'s residence while there is still daylight outside.

         Officer Joseph Hand was on patrol that evening and heard dispatch's notification regarding the intrusion; he was approximately one block away from J.S.'s residence when he observed Naylor walking down the street. Hand stopped to talk to Naylor because he "exactly matched the description of the suspect." A dashboard camera from Hand's patrol car captured Hand's interaction with Naylor. Naylor was wearing khaki shorts, a black jersey-type shirt with red numbers on it, and glasses. When Hand explained that he had stopped Naylor because he matched the description of a suspect in a reported burglary, Naylor pulled the front of his shirt out and said, "I guarantee they won't say what I was wearing." Although Hand never told Naylor where the burglary occurred, Naylor commented that "It couldn't have been me, the house was too far away." Hand relayed to dispatch that he had stopped a man closely fitting the suspect's description, but that the black shirt was a "jersey" type shirt with red numbers.

         When police arrived at J.S.'s residence, J.S. repeated the description she had given the 911 dispatcher, but also told the responding officers that the intruder wore eyeglasses and that his black shirt had holes in it. Dashboard camera audio captures this exchange. Officers asked J.S. if she recalled if the shirt had any red numbers or lettering on it; J.S. did not recall any. Officers asked J.S. if she could identify the intruder and she immediately said, "Yes." In the audio police can be heard discussing between themselves that a potential suspect had been detained, and J.S. can be heard talking with her child. Police then asked J.S., "Is there someone you can call to watch the little one while we go look at him?" J.S. responded, "Do you have somebody in custody?" A police officer states, "Uh, possibly. Um, someone has, uh, some shorts and a, he has a different shirt on as well, but just in case, you know, he took off his shirt or something." A different officer states, "He's got on a black jersey, but it's got like the numbering, we just want to see if it's possible." The other officer then states, "You never know, people often change clothes real fast so …." Showman and Brooker then informed Hand that they were going to bring J.S. to Hand's location to view Naylor. Hand, two other officers, and Naylor waited in front of Hand's patrol car for J.S. to arrive.

         As officers were about to transport J.S. to where Hand had Naylor detained, the police dashboard camera shows what appears to be J.S.'s husband arriving home. Officers informed the man that a home invasion had occurred at his residence and J.S. then described the situation to him. Officers then told J.S. that they were going to put her in the back of the patrol car and drive to the location where the suspect was, stating, "that way he doesn't see you, I know he knows who you are but …." J.S.'s husband then asked, "You guys have the person then?" The officers replied, "Possibly" and followed that up with, "we don't know, we are going to see if she can identify him and …." Officers then transported J.S. a few blocks away to where Hand had Naylor detained.

         Naylor was standing without restraints in front of a police car when the patrol car containing J.S. pulled up. Officers parked the car containing J.S. approximately seventy feet from where Naylor was located; they parked on the opposite side of 23rd street which is a four-lane road with a center turn lane. Even before the patrol car stopped, J.S. stated, "That's him." She said that she was "a hundred percent sure" of her identification.

         Later that evening, J.S. recalled that the assailant had a couple of tattoos; one was a detailed cross located on one of his arms, and the other was a star located on one of his legs. J.S. testified at trial that she recalled the tattoos when she was lying in bed the night of the attack and she kept seeing the intruder over and over in her mind. The following day she notified a detective of her recollection. At trial, J.S. identified Naylor as the man who invaded her home and assaulted her. She also identified cross and star tattoos on Naylor as the tattoos she observed the night of the crime. The court allowed this testimony over Naylor's objection that the procedure leading to J.S.'s identification of Naylor was impermissibly suggestive. The court found that the pretrial identification procedure was not impermissibly suggestive nor was the identification unreliable.

         Point I

         In Naylor's first point on appeal he contends that the circuit court abused its discretion in overruling his Motion to Suppress the victim's in-court and out-of-court identification of him, and in admitting over objection the identification at trial, because the identification was the result of an unnecessarily suggestive police procedure which created a substantial risk of misidentification. He argues that he was ...

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