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State v. Watkins

Court of Appeals of Missouri, Eastern District, Second Division

August 29, 2017

STATE OF MISSOURI, Plaintiff/Respondent,
KURTIS WATKINS, Defendant/Appellant.

         Appeal from the Circuit Court of The City of St. Louis Honorable Elizabeth Hogan



         Kurtis Watkins ("Defendant") appeals the judgment of the Circuit Court of the City of St. Louis, following a jury trial, convicting him of unlawful possession of a firearm, unlawful use of a weapon, resisting arrest, three counts of first-degree assault, and three counts of armed criminal action. Defendant argues that the trial court abused its discretion in 1) denying his motion to suppress identification testimony from a police officer, 2) permitting the State to cross-examine him about his prior convictions after the nature of those offenses had already been established on direct examination, and 3) overruling his objection to hearsay statements by police officers that had been admitted under the "subsequent officer conduct" exception. Finding no error, we affirm.

         Factual Background

         The evidence, viewed in a light most favorable to the jury's verdict, [1] is as follows.

         Witness Testimony[2]

         In the evening of August 9, 2013, Mack Briscoe attended a house party on Louisiana Avenue, in the City of St. Louis. During the party, two attendees got into a heated argument. Mr. Briscoe involved himself in the altercation, which turned physical. Mr. Briscoe left the party, but returned later in the evening. When he returned, he became involved in a fight between Stephant Hibler and Darrell Macon. Darrell is Mr. Briscoe's brother. Mr. Hibler had a gun, and threatened to shoot Darrell in the head. As the altercation continued, two police officers drove by and broke up the fight. Darrell and Mr. Briscoe then left the party and went to their mother's apartment, which was a few houses down the street on Louisiana Avenue. Their brother, Darryl Macon, [3] was also at their mother's apartment.

         While they were on the porch at their mother's apartment, a young woman ran past them and warned that "they" were about to shoot. Gunfire then erupted from the other side of Louisiana Avenue, and the brothers saw Mr. Hibler shooting at them. The brothers also observed at least one other individual shooting across the street, but they did not recognize the individual. Darryl returned fire. During the shootout, Darrell was shot twice in the spine. He was seriously injured, but survived.

         Police Officer Testimony[4]

         Officer Steven Pinkerton was patrolling the Dutchtown neighborhood of St. Louis late in the evening on August 9, 2013. During his patrol, Officer Pinkerton observed a large group of people engaged in a heated argument on Louisiana Avenue. Members of the group were yelling and threatening each other. Officer Pinkerton and another police officer broke up the crowd after informing them they would have to arrest them if they did not disperse. Although the crowd dispersed, Officer Pinkerton sensed that that the group would reform and continue fighting once he left. Officer Pinkerton decided to discretely monitor the situation. He hid behind a dumpster in a nearby alley to observe an area around an apartment building where half the crowd had regathered. Over his police radio, Officer Pinkerton informed his colleagues of his location and plan.

         While behind the dumpster, Officer Pinkerton heard someone running on the street from his left to his right. He heard a gun rack, and then someone say, "mama get in the house, mama get in the house." He then heard an "ungodly" number of shots fired from his left on the street.

         Officer Pinkerton heard footsteps and then observed two people firing guns from the mouth of the alley he was in. As the firing continued, Officer Pinkerton radioed in a description of one individual, stating that it was a black male with a black shirt and blue jeans. Officer Pinkerton could not see either man's face.

         Officer Pinkerton lost sight of both men, although he continued hearing shots being fired. A man then came running down the alley toward Officer Pinkerton, who was still behind the dumpster. Officer Pinkerton could see a gun in the man's hand. Officer Pinkerton then emerged from behind the dumpster, and ordered the man to stop. The man looked at Officer Pinkerton and continued running in his direction. Officer Pinkerton observed the man's face for two or three seconds. As he ran by, the man appeared to raise his gun. Officer Pinkerton, afraid that the man would shoot, fired five shots at the man. At some point the man dropped his gun as he ran by. Officer Pinkerton thought at least one of his shots hit the man, as he seemed to stagger. However, the man continued running, and Officer Pinkerton was about to pursue him when a car came speeding down the alley. Officer Pinkerton went behind the dumpster again as the car went by. He then radioed a description of the man he observed in the alley, which he described as a balding, 6'2", 180 pound black male wearing jeans and a t-shirt.

         Officers Daniel Cora and Joseph Rodriguez responded to Officer Pinkerton's radio call. While responding to the call, Officer Cora observed a six-foot-tall black man wearing dark clothing running in a gangway near the alley Officer Pinkerton had been hiding in. Officer Cora chased the man through an alley but lost him, and could not observe his face. Officer Rodriguez, who was nearby, then saw a man, later identified as Defendant, come running out of the gangway. Officer Rodriguez attempted to detain Defendant, who flailed and kicked. In response to Defendant's attempts to resist arrest, Officer Rodriguez punched Defendant multiple times. Officer Cora met up with Officer Rodriguez, and stated that the person he chased in the alley matched Defendant's physical characteristics.

         Within fifteen minutes of arresting Defendant, police officers placed Defendant in a van and took him to Officer Pinkerton, who was still near the scene of the shooting. Officer Pinkerton identified Defendant as the person he shot at in the alley.


         Following his arrest, Defendant was charged with nine counts: Count I first-degree assault (class A felony), Count II armed criminal action, Count III first-degree assault (class B felony); Count IV armed criminal action, Count V first-degree assault (class B), Count VI armed criminal action; Count VII unlawful possession of a firearm; Count VIII unlawful use of a weapon; and Count IX resisting arrest. Defendant was charged as a prior felony offender.

         Prior to trial, Defendant filed a motion in limine to suppress Officer Pinkerton's in-court identification of Defendant. A hearing was held on Defendant's motion, during which Officer Pinkerton testified that the alley he had been in had "good light" from lamps in the alley and a nearby street light. He identified the man who he saw run down the alley as Defendant. He testified that when Defendant came running down the alley at him, he "couldn't really tell at that point" whether he was the same person who had been firing shots from the mouth of the alley. Officer Pinkerton testified that he observed Defendant's face for "three or five" seconds as he ran by. Officer Pinkerton testified that he thought he shot four times at the Defendant but that investigators told him he actually fired five times. Officer Pinkerton testified that he thought at least one of his shots hit Defendant because it looked like Defendant stumbled and began "losing his power" after Officer Pinkerton shot at him. Officer Pinkerton testified that he radioed in a description of the man he encountered in the alley as a black male, about 6'2", 180 pounds, wearing jeans, a tee shirt, and "bald or balding short hair." Officer Pinkerton testified that within ten to fifteen minutes, he observed Defendant in a police van and identified him as the man he fired shots at. Officer Pinkerton testified he was 100% sure that it was the same individual.

         On cross-examination, Officer Pinkerton testified that he could not be certain whether Defendant was the person he observed firing a gun from the mouth of the alley, but that Defendant had the same height, weight and clothing as the person shooting. He testified that he had his gun drawn and aimed at Defendant while he was running by him in the alley. Officer Pinkerton testified that his training would have taught him to aim at Defendant's center mass. He testified that he "probably" had only two or three seconds to see Defendant's face while he was in the alley. He testified that although he fired five times, investigators only recovered four bullets. When asked what his emotional state was while he was firing at Defendant, he testified that he "wasn't shocked" but that being in a gunfight was "slightly" stressful. When asked whether he could remember any distinctive facial features of the suspect in the alley, Officer Pinkerton responded, "Just that he was balding." He could not remember if the suspect had facial hair. Officer Pinkerton further testified that when police officers brought Defendant to him in order to identify him, he was handcuffed in the back of a police van. He testified that he observed no bruises or signs of injury on defendant. The trial court denied Defendant's motion to suppress.

         Defendant's first trial resulted in a hung jury. Defendant's second trial was held in April 2016. This time, the jury found Movant guilty on all counts, and he was sentenced to a total of twenty-five years' imprisonment. This appeal follows.

         Standard of Review

         Defendant's three points on appeal are directed at the trial court's rulings on evidentiary matters. The trial court has broad discretion when making evidentiary rulings, which will not be disturbed on appeal absent an abuse of discretion. State v. Williams, 277 S.W.3d 848, 852 (Mo. App. E.D. 2009). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration. Id. In matters involving the admission of evidence, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Morton, 238 S.W.3d 732, 736 (Mo. App. E.D. 2007).


         I. Officer Pinkerton's Identification

         In Defendant's first point, he argues the trial court erred in denying his motion to suppress Officer Pinkerton's identification of Defendant as one of the shooters. Defendant argues that Officer Pinkerton's initial identification of Defendant in the back of the police van was impermissibly suggestive because, among other things, he was the only individual presented as a potential suspect for identification. Defendant asserts the identification procedure used by the police, commonly called a "show-up, " so tainted Officer Pinkerton's pre-trial and in-court identifications that the identifications were unreliable and should not have been allowed. The State contends that the show-up procedure used was permitted by Missouri case law. The State further argues that Officer Pinkerton's identification had high reliability.

         We review the trial court's decision to admit identification testimony into evidence using a two-pronged test. State v. Murray, 428 S.W.3d 705, 709 (Mo. App. E.D. 2014). The first prong requires that we determine whether the identification procedure used by the police was impermissibly suggestive. Id. at 710. Police procedures are impermissibly suggestive when a witness's identification of the defendant is made in response to the suggestions or encouragement of police, instead of the witness's own observation and recollection. Id. If we determine the procedure was impermissibly suggestive, we then move to the second prong and assess the reliability of the witness's identification. Id. We do not review for reliability unless the defendant proves the first prong. Id.

         "Missouri courts have routinely held that show-ups are acceptable if properly administered." State v. Morehead, 438 S.W.3d 515, 520 (Mo. App. E.D. 2014). A show-up is impermissibly suggestive only if the police unduly pressure the witness to make a positive identification. Id. "It is not impermissibly suggestive for police to present a single suspect for identification shortly after the crime occurred, in or near a police vehicle, even when the suspect is in handcuffs, particularly when the police make no overt remarks concerning the subject's identity." Id. Missouri courts have held that show-ups are "justified by the exigencies of the situation; such action may immediately indicate to the officers whether the suspect should be released or held, or whether they should ...

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