Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis Honorable Rex
S. ODENWALD, Judge.
M. Robinson ("Robinson") appeals from the trial
court's judgment after a jury found him guilty on one
count of first-degree robbery and one count of armed criminal
action. Robinson raises two points on appeal. In Point One,
Robinson argues that the trial court erred in overruling his
motion to suppress Victim's pre-trial and in-court
identifications because the identification procedures were
impermissibly suggestive. Because the trial court did not
clearly err in permitting Victim's identifications, we
deny Point One. In Point Two, Robinson alleges that the trial
court plainly erred by not intervening sua sponte to prevent
testimony regarding Robinson's prior arrest. Because
Robinson did not suffer a manifest injustice or miscarriage
of justice, we deny Point Two. We affirm the trial
and Procedural History
one night, Victim drove his vehicle to a gas station ATM to
withdraw cash. Victim parked his vehicle near the gas-station
entrance. The area was well-lit. Victim entered the gas
station, used the ATM for a withdrawal, obtained cash, and
then left the gas station. As Victim walked out the
gas-station door, an unmasked man approached him while
holding a gun. The man demanded that Victim empty his F*ing
pockets, repeated this phrase, and wanted Victim to turn out
his pockets. Victim complied. The man took Victim's money
and left, threatening to shoot Victim if he ever saw him
again. Victim returned to his vehicle, but instead of driving
away, called the police while still watching the man. The man
remained near the gas station, but left when noise from the
approaching emergency vehicles became apparent. Victim
described the robber to the police. According to Victim, the
man was an African-American male, approximately twenty- to
twenty-five-years old and between five-eight and five-ten in
height. Additionally, the man had a medium build, a medium
complexion, a short Afro hairstyle, and a short goatee. Two
cameras, erected near the gas station, recorded the robbery.
Philip Harden ("Det. Harden") devised a
photographic lineup for Victim's viewing. Det. Harden
compiled the photographs, using an old photograph of Robinson
and five other photographs generated by a computer. In the
photograph, Robinson had braided hair, and facial hair around
his chin and the side of his face. Det. Harden labeled
Robinson's photograph as photograph number two. Detective
Timothy Banks ("Det. Banks"), a blind
administrator, showed the photographic display to Victim
sequentially, approximately seven days after the robbery.
Det. Harden was present but did not interact with Victim
during the photographic display.
was unable to make a positive identification, allegedly
because the photographs only clearly displayed a portion of
some of the participants' faces. But, Victim narrowed the
photographs to two potential persons who "looked very
similar" to his assailant. Victim admitted that during
the robbery, he was focused more on the gun than what his
assailant was wearing or what he looked like. However, Victim
told police that, if he saw the participants in person and
was able to see their entire body at once, he would be able
to determine if they were his assailant.
next day, the detectives showed Victim a physical lineup.
Robinson was the only participant in common between the
six-person-photographic display and the four-person-physical
lineup. The detectives emphasized before the lineup that
Victim was not required to identify his assailant. Victim
viewed the participants sequentially. Robinson was the first
participant in the physical lineup. As soon as Robinson
appeared, Victim immediately and confidently recognized him
as his assailant. Further, Victim requested that Robinson say
"empty your F*ing pockets." Victim testified that
Robinson's statement in the lineup sounded exactly the
same as the night Victim was robbed. Victim explained that
"yeah, that's the guy. I feel like he's robbing
me right now."
State charged Robinson with one count of first-degree robbery
and one count of armed criminal action. The trial court
denied Robinson's pre-trial motion to suppress
Victim's identification. The case proceeded to a jury
trial, the State questioned Detective Derrick Frye
("Det. Frye") regarding Robinson's arrest:
Q: And actually did you take him into custody twice in
connection with this case?
A: I took him into custody prior to this case, I took him
into custody after this also.
Q: Now, in connection with this case, can you describe for
the jury when and where, do you remember what day it was you
took him into custody?
A: Actually let me correct that. I took him into custody
twice, like you said. Both happened after the robbery, but
one of mine was before the other. So the robbery happened, I
arrested him, and then I arrested him again.
Q: And was the first time you arrested him on April 20th,
2016, or the 19th or 20th, ...