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State v. Harris

Court of Appeals of Missouri, Eastern District, Third Division

December 12, 2017

STATE OF MISSOURI, Respondent,
v.
QUINCY A. HARRIS, Appellant.

         Appeal from the Circuit Court of the City of St. Louis 1522-CR02968-01 Honorable Rex M. Burlison

          GARY M.GAERTNER, JR., PRESIDING JUDGE.

         Introduction

         Quincy A. Harris (Defendant) appeals the judgment entered upon his conviction by jury of one count of robbery in the first degree and one count of armed criminal action. He contests the trial court's admission of a pre-trial identification from a photographic lineup, the trial court's failure to grant a mistrial based on an officer's statement implying Defendant had been arrested before, the trial court's allowance of a late-endorsed State's witness' testimony, and the sufficiency of the evidence to support Defendant's convictions. We affirm.

         Background

         The evidence at trial, in the light most favorable to the verdict, [1] was the following. On July 15, 2015, Stasia Gavin (Victim) was working at the Washateria laundromat as a laundry attendant. Around 8:30 p.m., Victim was sweeping the laundromat and preparing to close the doors for the night. Defendant came in the door and walked up alongside the dryers. Victim recognized him because Defendant's wife was a former employee of the laundromat and she had introduced Defendant to Victim. Victim testified Defendant was often in the laundromat, at least five days per week, using the wireless internet, using the phone, or walking around. When Defendant walked in, he had a t-shirt wrapped around his mouth, but Victim recognized him by his eyes, ears, and complexion. Victim also recognized the clothes Defendant was wearing because they were the same clothes he was wearing when she saw him earlier that day.

         Defendant approached Victim with a gun. Victim put her hands up, but Defendant told her to put her hands down, go into the office, and get money out of the register. Victim complied, but she was shaken up and had trouble with the password. Defendant told her to "hurry up before he blast[s her] ass." Victim gave Defendant the money from the register, and Defendant told her to open the safe. Victim said she did not know the combination. Defendant ran out the laundromat door, and Victim called the police. Victim never acknowledged to Defendant that she recognized him because she did not want him to hurt her.

         Victim gave the police Defendant's first name. Victim told the police that Defendant lived about one block away from the laundromat. A police canine officer came and attempted to track Defendant's scent. The dog tracked a scent to an area near where Victim said Defendant lived, but not to any particular house.

         The manager of the laundromat gave police Defendant's last name, and Detective Scott Wilmont (Detective Wilmont) created a photographic lineup using a photo he obtained by entering Defendant's first and last name into a database. Detective Wilmont showed that lineup to Victim, and she did not identify anyone. Detective Wilmont later received a phone call from the manager of the laundromat providing additional pedigree information for Defendant from an employment application that he submitted to the laundromat. Detective Wilmont then entered Defendant's name as well as his date of birth and social security number into the database. Detective Wilmont created a photographic lineup using the results of his second database search, which included a picture of Defendant this time. He showed this lineup to Victim, and she identified Defendant as the person who robbed the laundromat.

         The State charged Defendant with one count of robbery in the first degree and one count of armed criminal action. The jury found Defendant guilty of both charges. The trial court sentenced Defendant as a prior and persistent offender to terms of 12 years' imprisonment on each count, to be served consecutively with sentences Defendant had received for convictions on other charges. This appeal follows.

         Discussion

         Defendant raises four points on appeal. First, he argues in Point I the trial court erred in allowing the State to present evidence of the photographic lineup because the police procedure was unduly suggestive and rendered the identification unreliable. In Point II, Defendant argues the trial court erred by denying Defendant's request for a mistrial when Detective Wilmont testified that the database he used to create the photographic lineups in this case was a database of people who had been previously arrested. In Point III, Defendant argues that the trial court abused its discretion in allowing the canine officer to testify because the State endorsed the witness the day before trial. Finally, Defendant contests the sufficiency of the evidence to support the jury's finding beyond a reasonable doubt that Defendant committed the robbery.

         Point I

         Defendant argues that the trial court erred in admitting as evidence Victim's pre-trial identification of Defendant from the photographic lineup because the photographic lineup contained a picture of Defendant's entire face, but Victim saw only the robber's eyes, ears, and complexion. We disagree.

         As a threshold matter, we consider whether Defendant preserved this point for appeal. "In order to attack the validity of the admission of evidence to which a motion to suppress evidence was directed, the question to which the motion was directed must be kept alive by asserting a timely objection to its admission at trial...." State v. McDaniel, 236 S.W.3d 127, 130 (Mo. App. S.D. 2007). A timely objection is one that occurs "prior to the answer if it appears that the answer will be objectionable. If for some reason the objection is untimely, then the answer should be reached by a motion to strike." State v. Evanson, 35 S.W.3d 486, 491-92 (Mo. App. S.D. 2000). Additionally, Defendant may not broaden the theory advanced by the motion to suppress or objection; any new arguments on appeal not presented to the trial court are not preserved. State v. Ragland, 494 S.W.3d 613, 627 (Mo. App. E.D. 2016).

         Here, prior to trial, Defendant filed a motion to suppress Victim's pre-trial identification of Defendant in the photographic lineup. Defendant argued that the procedures used by the police were unduly suggestive in that the other photographs in the lineup bore little resemblance to Defendant, and because police showed two photographic lineups to Victim on the same day, which pressured her to make an identification. Defendant further argued Victim's identification was unreliable because during the robbery, she looked down almost immediately out of fear after seeing the robber's face, he had a mask over his face, and he was wearing a hat. At trial, Victim testified that ...


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