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State v. Gordon

Court of Appeals of Missouri, Western District, Second Division

July 24, 2018

STATE OF MISSOURI, Respondent,
v.
DEANDREY L. GORDON, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE ROBERT M. SCHIEBER, JUDGE

          Before: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

          EDWARD R. ARDINI, JR., JUDGE

         Deandrey Gordon ("Gordon") appeals his convictions following a jury trial in the Circuit Court of Jackson County for first-degree assault, attempted first-degree robbery, and two counts of armed criminal action. Gordon alleges that the trial court erred in allowing the admission of (1) the pretrial and in-court identifications of Gordon by one of his victims and (2) the alleged hearsay testimony of a law enforcement officer. The convictions and judgment of the trial court are affirmed.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         At approximately 6:00 p.m. on November 2, 2012, Mike Tournoy ("Tournoy") drove his father-in-law, James Arnold ("Arnold"), to the Smoke Shop (also known as the Stop N' Shop or Smoke Shack) to buy cigarettes. After making the purchase, they exited the shop and walked toward their car. As Arnold was crossing to the passenger side of the vehicle, a man came from behind the store, grabbed Arnold's arm, pointed a gun in his face, and said, "Give me your money. I'm not kidding." Arnold turned to flee but tripped and fell to the ground.

         Tournoy attempted to help Arnold but the man pointed the gun toward Tournoy's chest. Tournoy looked into the man's eyes, thought that the man was going to shoot him, and attempted to run away. Two gunshots sounded, and Tournoy was struck in the leg. Looking underneath the car, Arnold observed the man running north in front of the shop. Tournoy called the police, who arrived within a few minutes.

         Arnold described the perpetrator as African-American with sharp, angular features; at least six feet tall; medium build; and wearing a dark-colored baseball cap, hooded jacket, snug-fitting blue jeans, and tennis shoes with white socks. He was not able to see the individual's hair. The gun was described as a gun-metal gray semi-automatic. Tournoy described the man as African-American with a dark complexion and glazy eyes; wearing a red baseball cap; and having "kind of an afro to him[, ]" with the hair sticking out of the cap.[2]

         Gordon was later identified as a suspect through DNA extracted from a cap that was recovered near the scene. Almost a year after the crime, both victims viewed photo arrays for the purpose of identifying the perpetrator. Arnold, who was shown two different lineups at two different times, did not make an identification. Tournoy viewed a photo lineup on October 8, 2014, and did not identify anyone as the shooter but commented that the suspect had a fuller afro like the third person.[3] Tournoy viewed a different photo array on October 16, 2014, signing and dating his identification of the shooter as the second person in the lineup, who was Gordon. Although Gordon was included in both lineups, the later lineup used a more current photo.

         Gordon was charged with first-degree assault, attempted first-degree robbery, and two counts of armed criminal action. Before trial, he moved to suppress the out-of-court identification by Tournoy, claiming that the police procedures relating to the two photo lineups were unduly suggestive rendering any identifications unreliable. The trial court denied his motion.

         The matter proceeded to trial. The State's case-in-chief included the testimony of Arnold and Tournoy as well as eyewitnesses and officers who responded to the scene. The evidence included, over the defense's objection, Tournoy's out-of-court identification of Gordon and testimony from an officer that he secured a cap located near the crime scene based on information that the suspect had been seen wearing a cap. Tournoy also identified Gordon at trial. The jury found Gordon guilty of each charged offense and the trial court sentenced him to concurrent terms of twelve years' imprisonment for attempted robbery in the first degree, fifteen years' imprisonment for first-degree assault, and three years' imprisonment for each count of armed criminal action. Gordon appeals.

         Additional facts are set forth throughout the opinion.

          STANDARD OF REVIEW

         Both points raised by Gordon in this appeal involve the trial court's decision to admit certain testimony or evidence. "[A] trial court's decision to admit or exclude evidence" is reviewed for "an abuse of discretion." State v. Washington, 444 S.W.3d 532, 536 (Mo. App. E.D. 2014) (citation omitted). "A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (citation omitted). Even if the trial court's ruling admitting or excluding the evidence is error, reversal is not justified "unless the ...


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