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State v. Scott

Court of Appeals of Missouri, Eastern District, Second Division

March 13, 2018

STATE OF MISSOURI, Respondent,
v.
JAMES M. SCOTT, Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable Thomas J. Frawley

          PHILIP M. HESS, JUDGE.

         Introduction

         James Scott was found guilty by a City of St. Louis jury of three counts of first-degree robbery and armed criminal action, and one count of second-degree attempted robbery arising out of three separate criminal incidents involving five victims committed within a three-week time period. Scott appeals, asserting the trial court erred by: (1) denying his motion to sever because the offenses charged were not of the same or similar character and were not based on the same act or transaction; (2) overruling his request to impeach one of the victim's credibility with an alleged prior inconsistent statement contained in a police report; and (3) overruling his motions to suppress and objections to his identifications as the robber because the lineups were unduly suggestive. We affirm.

         Factual and Procedural Background

         On December 28, 2013, A.F. ("Victim #1") and his girlfriend, E.M. ("Victim #2"), were walking home in the Central West End neighborhood of St. Louis (the "CWE") around 11:00 or 11:30 p.m. when they passed two men on the opposite side of the street. Victims #1 and #2 continued to walk about a half a block when a man behind them told them to stop. Victim #1 turned around and a man approached him with a gun and told Victims #1 and #2 he wanted their money and whatever else they had. The man went through Victim #1's pockets and took $40 from him. Meanwhile, another broad, African-American man wearing a flannel coat and stocking cap with braided hair came up behind Victim #2 and told her not to turn around. He asked her if she had anything in her pockets. She told him she had nothing and offered him her cigarettes and debit card. The man declined, went through her pockets, and found nothing. The men told Victim #1 and #2 to start walking and to not look back. The men then ran away, and Victim #1 heard a car start but neither he nor Victim #2 saw the vehicle. Victims #1 and 2 reported the crimes to the police ("Incident #1").

         Two days later, on December 30, 2013, just before midnight, T.S. ("Victim #3") and his wife, D.W. ("Victim #4"), pulled into a hotel parking lot at the intersection of Grand Avenue and Broadway in St. Louis to get a room for the night. They parked next to a blue SUV and Victim #3 went inside to pay for the room. While inside he saw a large African-American man with braided hair, wearing a flannel coat, exit the hotel. That man then got into the blue SUV.

         After paying for a room, Victim #3 returned to the passenger seat of his car and the man from inside the hotel ran up to the front driver's seat with a gun, opened the door, and pulled Victim #4 out of the car. The man told Victim #4 to give him everything, to shut up, and that he would kill her. Meanwhile, another man with a gun ran up to the front passenger seat and told Victim #3 to get out and face the car. The man held a gun to Victim #3's head, repeatedly poked him in the head with it, and told him multiple times he would kill him. Victim #3 told him he did not have to kill him and he could have whatever he wanted. Victim #4 spoke and the man holding her at gunpoint told her to shut up or he would blow her away. The men went through Victim #3 and Victim #4's pockets and took Victim #3's jewelry, phone, and a CD case, and Victim #4's credit cards and a $500 money order. After the men took their belongings they put Victims #3 and #4 in the backseat of the car, told them to keep their hands up, closed the doors, and then got into the blue SUV and drove away. Victims #3 and #4 reported the crimes to the police and the police found and chased the SUV that night but the men got away ("Incident #2").

         Nineteen days later, on January 18, 2014, K.T. ("Victim #5") was going to a friend's apartment for a party in the CWE. Victim #5 arrived shortly before 7 p.m. and parked her car up the street from her friend's apartment. She noticed people on the sidewalk by her car. All but one man walked away from the direction she planned to walk. That man came back in the same direction she was walking, crossed the street, and followed her. As she approached her friend's apartment the man asked her what time it was. Victim #5 continued to walk but turned her head slightly and said it's about 7:00 p.m. The man then asked her if she had a light and without turning around she said no. The man then put his hand on her left shoulder and held a gun to the right side of her body. The man told her to be quiet and he walked her over to her friend's apartment building. The man faced her against the building and asked her for her money. Victim #5 gave him her cash but the man indicated he was not happy with the amount. The man then turned her around and walked her back the way they came with his hand on her shoulder and the gun at her side. As they walked, Victim #5 repeatedly asked the man to let her go and he told her to be quiet. As they approached the next cross street the man turned Victim #5 towards a blue SUV and opened the passenger door. Victim #5 thought the man would put her in the SUV so she pulled back. When she did, the man stepped back from her and told her that if she gave him her purse she could leave. Victim #5 did not have a purse but she offered him her tote bag filled with food and craft supplies she had for the party. The man refused and told her to run. Victim #5 ran to her friend's apartment and reported the crime to the police ("Incident #3").

         Within two days, the police identified a vehicle captured on video surveillance in the CWE matching the description of the vehicle given by Victims #3, #4, and #5. Further investigation revealed the vehicle's license plate number was registered to an address in O'Fallon, Missouri.

         On January 20, 2014, the police went to the address in O'Fallon, Missouri and learned that the vehicle belonged to Michele Scott, Scott's wife. Scott's wife told the police that her husband had been driving her vehicle the past few weeks and told the police where the vehicle might be located. The vehicle-a blue 1994 Chevy Suburban with a tan interior (the "Suburban")-was found and taken into police custody. Scott's wife gave the police consent to search the Suburban. Inside the police found a CD case. A warrant was placed for Scott's arrest and it was determined Scott was at his mother's home. The police went to Scott's mother's home and he was arrested. Scott's mother gave the police permission to search her home and inside the police found a flannel coat on the living room floor.

         The police contacted Victims #3, #4, and #5 and asked them to come to the police station to see if they could identify the Suburban as the vehicle used in the crimes perpetrated against them. Victims #3, #4, and #5 all identified the Suburban. Victim #3 also identified the CD case found in the Suburban as the CD case stolen from him on December 30, 2013. The police then asked Victims #3 and #4 to view a photographic lineup containing six men. Victims #3 and #4 both identified Scott as the man who robbed them on December 30, 2013. The police then showed Victims #3 and #4 a live lineup containing four men. Victims #3 and #4 again identified Scott as the man who robbed them on December 30, 2013.

         Victim #5 was also asked to view the live lineup. Upon her first viewing, Victim #5 identified no one but she was unsure about one person so she asked to view the lineup again. During the second viewing, she identified Scott as the man who robbed her on January 18, 2014.

         The police called Victims #1 and #2 to see if they could come to the station and view the lineup, but they were at work and unable to leave so the police emailed them a photograph lineup containing the four men from the live lineup and asked them if they recognized anyone. Victims #1 and #2 both identified Scott as the man who robbed them on December 28, 2013.

         On March 17, 2014, a grand jury indicted Scott on eighteen counts related to five criminal incidents occurring between December 17, 2013, and January 18, 2014. On September 26, 2014, an information in lieu of an indictment was filed charging Scott with the same eighteen counts filed in the indictment. On August 17, 2016, Scott filed a motion to suppress identification arguing that any out-of-court identification of him was inherently suggestive and conducive to mistaken identification, and a motion for severance of offenses, arguing that the offenses were improperly joined and that Scott would suffer prejudice if the offenses were not severed. On September 26, 2016, the State filed a memorandum of nolle prosequi as to six counts unrelated to Incidents #1, #2, and #3. That same day a seconded amended information in lieu of an indictment was filed charging Scott with twelve counts. Specifically, the State charged Scott with one count of first-degree robbery, one count of attempted first-degree robbery, and two counts of armed criminal action for the crimes that occurred against Victims #1 and #2 on December 28, 2013; two counts of first-degree robbery and two counts of armed criminal action for the crimes against Victims #3 and #4 on December 30, 2014; and one count of first-degree robbery, one count of kidnapping, and two counts of armed criminal action for the crimes against Victim #5 on January 18, 2014.

         At trial, the jury heard testimony from six police officers and the executive director of the CWE Neighborhood Security Initiative detailing the investigation that lead to Scott's arrest and the relevant charges. Scott's wife also testified Scott had driven the Suburban from December 28, 2013, to January 18, 2014, and that she gave the police permission to search the Suburban. Victims #1, #2, #3, #4, and #5 (collectively the "Victims") testified regarding their participation in the investigation. Victim #1 and #2 identified Scott as the man who robbed them on December 28, 2014. Victim #1 identified the flannel coat found at Scott's mom's house as the coat Scott was wearing when he robbed him. Victim #3 and #4 identified Scott as the man who robbed them on December 30, 2014. Victim #3 and #4 identified the Suburban as the vehicle used during the robbery. Victim #3 and #4 identified the flannel coat as the coat Scott was wearing during the robbery. Victim #3 and #4 identified the CD case as the one taken from them. Victim #5 identified the Suburban as the vehicle used in the crimes against her on January 18, 2014.

         The jury found Scott not guilty of first-degree robbery, attempted first-degree robbery, and two counts of armed criminal action for the crimes charged related to Incident #1, but found Scott guilty of the lesser-included offense of one count of an attempt to commit second-degree robbery. For the crimes charged associated with Incident #2, the jury found Scott guilty of two counts of first-degree robbery and two counts of armed criminal action. For the crimes charged corresponding to Incident #3, the jury found Scott guilty of one count of first-degree robbery and one count of armed criminal action, but not guilty of one count of kidnapping and armed criminal action. Scott filed a motion for acquittal notwithstanding the verdict, or in the alternative, a motion for a new trial. That motion was denied. The court sentenced Scott, a prior offender, to seven years' imprisonment for attempt to commit second-degree robbery and to life imprisonment on all other counts, resulting in three consecutive life sentences. This appeal follows.

         Standard of Review

         On direct appeal, we review for prejudice, not mere error, and we will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Marrow, 968 S.W.2d 100, 106 (Mo. banc 1998). We review the facts in the light most favorable to the verdict. Id. Issues not properly preserved for appeal may be ...


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