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State v. Ivy

Court of Appeals of Missouri, Eastern District, Second Division

October 24, 2017

STATE OF MISSOURI, Respondent,
v.
MICHAEL IVY, Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable Timothy J. Wilson

          Philip M. Hess, Judge

         Introduction

         Michael 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 affirm.

         Factual and Procedural Background

         On July 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.

         About a 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.

         At 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.

         The 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 lineup.

         Ivy was 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.

         Ivy was 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.

         An 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.

         The 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 own analysis.

         The 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.

         The 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.

         On 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 department.

         The 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.

         Another 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.

         Following 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.

          The 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.

         Ivy's 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.

         On 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.

         The 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.

         Ivy was 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 witness.

         The 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.

         The 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.

         The 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 appeal follows.

         Standard of Review

         On 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 ...


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