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State v. Robinson

Court of Appeals of Missouri, Eastern District, First Division

February 27, 2018

STATE OF MISSOURI, Respondent,
v.
DEVON M. ROBINSON, Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable Rex M. Burlison

          KURT S. ODENWALD, Judge.

         Introduction

         Devon 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 court's judgment.

         Factual and Procedural History

         Late 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.

         Detective 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, [1]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.

         Victim 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.

         The 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."

         The 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.

         During 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, ...

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