Court of Appeals of Missouri, Western District, Second Division
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
R. ARDINI, JR., JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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. 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.
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
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.
facts are set forth throughout the opinion.
STANDARD OF REVIEW
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 ...