Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Honorable
Timothy J. Wilson
M. Hess, Judge
Ivy was convicted by a City of St. Louis jury of two counts
of first-degree robbery and two counts of armed criminal
action arising out of two robberies of the same 7-Eleven
convenience store at 5604 Gravois Avenue in the City of St.
Louis. The first robbery occurred around 11:30 p.m. on July
5, 2015, and the second at approximately 4 a.m. on July 13,
2015. Ivy appeals, contending the trial court abused its
discretion in making these rulings: (1) denying his objection
to the State presenting rebuttal evidence in response to
Ivy's girlfriend's testimony about she and Ivy going
to Six Flags the afternoon of July 13th; (2) denying his
motion for a mistrial and motion for a new trial because the
State failed to disclose the 7-Eleven had been robbed
approximately two hours before the 4 a.m. robbery on July
13th; (3) overruling his objection to expert testimony
matching Ivy's palm print to the print taken from
7-Eleven on July 5th because the expert testimony was based,
at least in part, on another examiner's opinion who first
analyzed the prints; and (4) overruling Ivy's objection
to the expert testimony matching Ivy's palm print to the
print lifted because a proper foundation had not been laid
for the use of Ivy's prints the police had on file. We
and Procedural Background
5, 2015, at approximately 11:30 p.m., a man wearing a hood
and sunglasses and carrying a gun robbed the 7-Eleven at 5604
Gravois Avenue. The robbery was caught on video surveillance
inside the store and the police obtained a print of the
robber's left palm placed on the counter that had just
been wiped down prior to the robbery.
week later, on July 13, 2015, at about 4 a.m., a man wearing
a hood and sunglasses and carrying a gun robbed the same
7-Eleven. This robbery was also caught on video surveillance
inside the store.
approximately 3:30 p.m. that same day, Ivy was pulled over by
police for a traffic violation. Ivy had outstanding warrants
and was arrested. The police searched his vehicle and found a
revolver under his car seat.
cashier from the July 5th robbery identified the revolver
found with Ivy as the gun used during the robbery. The police
also matched the palm print lifted from the counter on July
5th to Ivy's prints on file. The cashier from the July
13th robbery identified Ivy as the robber from a photographic
charged with two counts of first-degree robbery and two
counts of armed criminal action. Ivy filed a request for
discovery with the State, requesting, among other things, the
names of all witnesses the State intended to call at trial
and any material or information, within the possession or
control of the State, which tended to negate his guilt. Ivy
also filed a notice of alibi with the State, disclosing that
his girlfriend would testify at trial that she was with him
at her home from around 12 a.m. to 12 p.m. on July 13th.
tried by a jury. Videos of both robberies were played. The
cashier from the July 5th robbery testified and identified
the gun found with Ivy when he was arrested on July 13th as
the gun used during the July 5th robbery.
officer with the evidence technician unit testified that he
processed the crime scene at the 7-Eleven on July 5th and
obtained a palm print from the counter he lifted onto a
latent print card he sent to the latent print unit to be
examined as possible evidence.
State called an expert print examiner to testify about the
results of the palm print lifted from the counter following
the July 5th robbery. The defense objected, arguing the
witness did not perform the analysis. The State argued that
the witness performed her own analysis. The court allowed the
witness to testify and indicated it would rule on Ivy's
objection after it heard whether the witness performed her
witness explained that while another examiner who had since
left the St. Louis police department analyzed the print
before she did, she performed her own analysis and came up
with the same conclusion as the first examiner. She explained
that she conducted her own examination and verified what the
first examiner had found. The State then asked her what
conclusion she reached regarding the prints and the witness
started to explain what the first examiner had done. At this
point, the defense objected to any testimony about what the
first examiner did pursuant to the Confrontation Clause. The
State withdrew its question.
State then asked if she examined known fingerprints of Ivy.
The witness responded affirmatively and explained the process
she performed to compare Ivy's known fingerprints to the
fingerprint lifted from the 7-Eleven. When the witness was
asked about her conclusion on whose prints were lifted from
the 7-Eleven, the defense objected, contending that a
sufficient foundation had not been laid for Ivy's prints
the police had on file. The court overruled Ivy's
objection, and the witness testified the palm print lifted
was the left palm print of Ivy.
cross-examination, the defense established that the witness
had not taken Ivy's standard prints and that the prints
came from a database of prints. On re-direct, the State
established that the known prints of Ivy were kept in the
ordinary course of business with the St. Louis police
cashier from the July 13th robbery also testified and
affirmatively identified Ivy as the robber and the gun found
as the one used during the robbery. He also testified that he
was robbed twice that day.
cashier working July 13th also testified. He testified that
they were robbed twice that night, and that he was outside on
a break when they were robbed at 4 a.m.
this testimony and outside the presence of the jury, the
defense informed the court it had never been informed there
was an earlier robbery on July 13th and requested a copy of
the police report from that incident. The State claimed it
was unaware there were two robberies. The court instructed
the State to locate the police report and give it to the
defense. A brief recess was taken and the State located the
police report and turned it over to the defense. That report
revealed that the 7-Eleven had been robbed approximately two
hours before the 4 a.m. robbery and that a witness had
identified the robber as someone she knew as
"Brian" and the getaway driver as a former neighbor
she knew. Ivy moved for a mistrial, arguing that an
investigation might produce exculpatory evidence he may
present. The court denied the motion but indicated it may
reconsider its ruling in light of further evidence.
officer who arrested Ivy testified that he arrested Ivy
around 3:30 p.m. on July 13th and found a gun underneath the
seat in the vehicle Ivy was driving. A detective testified
that Ivy told him he had not been to the 7-Eleven at issue in
the last eight months. The State rested.
sole witness was his girlfriend. She testified about text
messages on her phone around 2:30 a.m. on July 13th. She
explained that she and Ivy were at her home in south St.
Louis but were in different parts of the house and were
texting each other. She testified that she and Ivy had sex,
then they fell asleep around 3:00 a.m., and did not wake
until 2 p.m. on July 13th.
cross-examination, she testified that after she and Ivy got
up they went to Six Flags. The State asked if she used her
season pass to get in and she confirmed that she did. The
defense rested and the State indicated that it had rebuttal
evidence that would not be available until the next day. The
court asked the State what evidence it intended to present
and the State asked to tell the court in camera so it did not
have to reveal its "tactic" to the defense.
next day the State called a representative from Six Flags.
The defense objected to the witness testifying because the
State did not disclose the witness in response to its
discovery request or notice of alibi. The State argued that
disclosure was not required because the evidence was used for
impeachment. The court overruled the objection and the Six
Flags representative testified that Ivy's
girlfriend's Six Flags season pass was used on July 11th,
not July 13th.
found guilty of all four charges. Ivy filed a motion for a
new trial and the court held an evidentiary hearing on the
motion. At the hearing the police report and the surveillance
video from the earlier 2 a.m. robbery on July 13th were
admitted into evidence. The police report noted that a named
witness told the police that she was 100% certain that she
knew the robber and the getaway driver. Defense counsel
testified that she tried to locate the witness but her
current whereabouts were unknown. She testified that if Ivy
was given a new trial they would attempt to subpoena her as a
detective testified that he was the main investigating
officer for the two robberies Ivy was charged with and that
he wrote supplemental police reports for both robberies. He
testified that he was unaware of the 2 a.m. robbery on July
13th when he wrote his report, that different officers
responded to the 2 a.m. and 4 a.m. robberies, and that the
first time he learned about the 2 a.m. robbery was during
Ivy's trial. He testified that he interviewed the cashier
who identified Ivy as the robber at trial multiple times and
administered the lineup to him but the cashier never
mentioned the 2 a.m. robbery until trial.
cashier from the July 13th robbery who identified Ivy as the
robber at trial testified that the 2 a.m. robber and the 4
a.m. robber were different people and that Ivy was the 4 a.m.
robber. He testified that the first robber was wearing a
baseball cap and that the difference between the 4 a.m. and 2
a.m. robbers was that one wore a mask. He testified that
after the robbery a witness came in and told him the name of
the getaway driver and where she lived. The parties
stipulated to the court that no one had been arrested or
charged for the 2 a.m. robbery.
court denied the motion for a new trial, finding that the
robber in the 2 a.m. video did not look like Ivy, that the
information regarding the 2 a.m. robbery did not tend to
negate Ivy's guilt, and that the evidence presented at
the hearing did not support a finding of a discovery
violation by the State. Ivy was sentenced to concurrent terms
of seventeen years' imprisonment on all counts. This
direct appeal, 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.
Marrow, 968 S.W.2d 100, 106 (Mo. banc 1998). We ...