Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis Honorable
Robert H. Dierker, Jr.
S. ODENWALD, Judge
D. Brand ("Brand") appeals from the judgment of the
trial court following a jury trial in which he was convicted
of multiple felonies. Brand raises three points on appeal.
Point One contends that the trial court erred in limiting
Brand's cross-examination of a detective regarding his
knowledge of the police-identification-lineup policies. Point
Two alleges that the trial court abused its discretion by sua
sponte providing the jury with the MAI-CR 3d 312.10
instruction (often referred to as the "hammer
instruction"). Point Three argues that the trial court
erred in entering judgment for the class C felony of stealing
instead of classifying the charge as a misdemeanor.
trial court did not err in restricting Brand's
cross-examination of the detective because Brand did not
adequately preserve the matter for appeal and, further,
because the inquiry was not legally relevant. The trial court
did not abuse its discretion by giving the hammer instruction
because the jury spent approximately six hours deliberating,
the trial court did not know how the jury was split, and the
instruction complied with the Notes on Use, Finally, because
the enhancement provisions of Section 570.030.3 do not apply to
the definition of stealing in Section 570.030.1, Brand's
felony-stealing conviction must be reversed and remanded for
resentencing as a misdemeanor. In all other respects, we
affirm the trial court's judgment.
and Procedural History
a pizza-delivery driver, delivered a pizza to a fairly lit
residential area at approximately 11:30 p.m. Victim parked,
walked between two vehicles, opened a gate, heard a man say
"That's mine[, ]" and turned around to see and
feel a gun in his face. The man then demanded Victim's
money and keys. Victim was able to see the man within his
arm's length. The man's face was not concealed.
Victim described the man as African-American, wearing all
black clothes and a black baseball cap, about 5-foot,
10-inches tall, and a little stocky. The man then drove away
in Victim's truck.
days later, Victim spotted his stolen truck and contacted the
police. The detectives instructed victim to leave the truck
at its current location. The detectives set up surveillance
to watch the truck, and pursued the truck when someone began
driving away. During the pursuit, the detectives laid down
spike-strips. The truck drove over the spike-strips, lost
control and smashed into a light post. The detectives took
Brand and a female passenger into custody after they ran from
crashed truck. The detectives found multiple computer tablets
in the passenger compartment of the truck with "Office
Max" stickers on them. The detectives investigated the
local Office Max store and discovered that a theft had just
occurred. The next day, police called Victim into the station
to view a lineup, where Victim identified Brand as his
State charged Brand with (Count I) a class A felony of
robbery in the first degree, (Count II) an unclassified
felony of armed criminal action, (Count III) a class C felony
of stealing over $500, (Count IV) a class C felony of
tampering with a motor vehicle, and (Count V) a class D
felony of resisting arrest. Brand moved to suppress
Victim's identification, alleging that the identification
was inherently suggestive. The trial court held a pre-trial
hearing, and denied Brand's motion. The case proceeded to
a jury trial.
following testimony relating to the identification was
elicited during trial. Detective Timothy Banks ("Det.
Banks") oversaw the lineup and chose the lineup
participants. Det. Banks selected the participants from
persons in custody at the Justice Center. Brand was wearing
an all-red outfit during the lineup, obtained from the
Justice Center; he was participant number two. Participants
number one, three, and four were wearing a red shirt over
their regular tops, but not red pants. Det. Banks was not
involved in the actual administration of the lineup. On cross
examination, Brand inquired whether Det. Banks was
"familiar with the policy and protocol about how lineups
are to be conducted according to the St. Louis Metropolitan
Police Department[.]" The State objected to this
question on relevancy grounds. The following conversation
occurred at the bench:
COURT: [Defense], we went into this at great length
yesterday, if I remember correctly, and [the State] has now
finally objected. In my opinion the procedures of the police
department are not relevant for what the jury has to decide.
They're only relevant, if at all, for what the Court has
to decide in terms of pretrial issues. So I just want you to
understand why I'm going to sustain the objection. Okay?
DEFENSE: Thank you, Your Honor.
If I may, just for purposes of the record, I would request to
be permitted to question on this. I think especially in light
of the new instruction, all of the factors are to be
considered in the reliability of the officers. Isn't that
the question? And their credibility is the question.
If they don't even know their own procedures and know
what they're doing, I think that's something that the
jury needs to know about. I think it's fair game for
COURT: I understand your position. I'll adhere to my
Phillip Harden ("Det. Harden") acted as a blind
administrator during the lineup. Det. Harden met Victim in
front of the Justice Center, and advised Victim of general
lineup processes. Det. Harden encouraged Victim to wait until
he saw all of the lineup participants before making any
cross-examined Det. Harden extensively regarding the lineup
procedure. Regarding the general procedures for a lineup,
Det. Harden testified that, typically, participants are
chosen from the Justice Center prisoners; the goal of the
lineup is to find persons who are similar in age, race, skin
tone, height, weight, and similarly dressed; the witness or
victim typically fills out a lineup-viewing form after the
lineup; and protocol requires at least five participants.
Regarding the particular lineup here, Det. Harden did not
select the participants; a total of four men participated;
and Det. Harden did not write a report. Det. Harden also
observed the photos of the lineup participants and determined
that Brand was the only participant wearing all red clothing.
Brand also was the only participant wearing two bracelets,
one of which was gold.
to and while viewing the lineup, the detectives did not give
Victim information about any particular suspect. Victim
observed four persons, sequentially, and Victim requested
that each lineup participant say "That's mine."
When the detectives brought in participant number two, Victim
recognized him immediately. Victim was, without a doubt,
certain that participant number two was the man who robbed
him. However, Victim viewed all four subjects before
identifying participant number two as his assailant. After
the lineup was complete, Victim testified that Det. Banks
informed him that he had picked one of the persons arrested
from his truck. Subsequently, Victim made an in-court
identification of Brand as his assailant. The case was
submitted to the jury.
jury began its deliberations at 12:48 p.m. At 3:50 p.m., the
jury had reached verdicts on Counts III, IV, and V, but had
not yet reached verdicts on Counts I and II. The trial court
ordered the jury to deliberate further. At 5:25 p.m., the
jury sent a note, stating that "[a]fter continued
discussion, the jury remains split with no resolve in sight.
What should we do next?" The trial court pondered
whether to bring the jury back the next day and give them the
hammer instruction. The trial court asked both parties for
their input. The State suggested that the trial court either
inquire of the jury whether further deliberations would do
any good before issuing the hammer instruction, or release
the jury for the night and resume deliberations in the
morning. Brand requested a response to the jury encouraging
further deliberation. The trial court terminated the
jury's deliberations for the night, and scheduled
deliberations to resume the next morning:
COURT: At that time, however, it is my intention to give the
so-called hammer instruction because I think the jury has
signified a deadlock and they've been out for four and a
half plus hours--almost four and a half.
DEFENSE: Your Honor, for purposes of the record, I would just
make an objection to reading them the hammer unless--well,
under any circumstances, but certainly not unless they write