Court of Appeals of Missouri, Western District, Second Division
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
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.
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
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
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.
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.
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.
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.
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.
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 ...