Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis
1522-CR02968-01 Honorable Rex M. Burlison
M.GAERTNER, JR., PRESIDING JUDGE.
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.
evidence at trial, in the light most favorable to the
verdict,  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.
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.
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
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
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.
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
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.
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.
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 ...