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State v. Wolford

Court of Appeals of Missouri, Eastern District, First Division

August 27, 2019

DALE L. WOLFORD, Appellant.

          Appeal from the Circuit Court of the City of St. Louis Hon. Christopher E. McGraugh.

          Robert G. Dowd, Jr., Judge.

         Dale Wolford ("Defendant") appeals from the judgment and sentence entered after a jury trial on his convictions for assault in the first degree, unlawful use of a weapon and associated counts of armed criminal action. We affirm the judgment and sentence on the convictions, as modified by this opinion.

         The sufficiency of the evidence is not challenged on appeal. Defendant and his accomplices drove a stolen car into the Central West End neighborhood at approximately 4:30 a.m. on July 14, 2015 looking for someone to rob. They parked and some of them walked around for a while. Off-duty police officer Charles Lowe ("Victim") was working a secondary job that night patrolling the Maryland Plaza shopping area in the Central West End. He was sitting in his personal vehicle when he observed Defendant and another man standing on a corner, and at some point another man joined them and then they all walked away. The group got back into their car, drove up to and parked right in front of Victim's car. Defendant opened the car door, illuminating the inside of the vehicle, at which point Victim recognized the men inside as the ones he had seen standing on the corner. Defendant got out of the car with a gun in his hand and began firing at Victim. Victim shot back. Defendant ran away on foot, continuing to shoot over his shoulder as he fled. Victim shot at the car because it was blocking him in, and the accomplices drove away. Victim was wearing his bullet-proof vest and was taken to the hospital for his injuries. There, he gave a description of the incident and the suspects. The car was recovered at the home of one of the accomplices, Edward Davis, and based on information obtained from him, the police compiled a photo lineup from which Victim identified Defendant as the shooter. Victim was "a hundred percent" sure Defendant was the person who shot him.

         The evidence at Defendant's four-day jury trial included: the testimony of Victim, witnesses who spoke with or saw Defendant and his accomplices that night and multiple investigating officers; Central West End neighborhood surveillance camera footage of the incident; DNA, fingerprint and other physical evidence recovered from the car used by Defendant and his accomplices; ballistics and other physical evidence recovered from the scene and from Victim's car; the photo lineup in which Victim identified Defendant as the shooter; and a transcript of an interview with Defendant's cousin, in which she told police that Defendant had admitted his involvement in the incident and that he had shot at Victim four times but did not know he was a police officer. The jury found Defendant guilty on the assault in the first degree and unlawful use of weapon for shooting at a motor vehicle counts, as well as the accompanying armed criminal action counts.[1] This appeal follows.

         Pre-Trial Identification

         Defendant argues the trial court erred in denying his motion to suppress and in admitting Victim's pre-trial identification of Defendant from a photo lineup. He argues the lineup was impermissibly suggestive and the identification was not reliable. We disagree.

         We will reverse a trial court's ruling on a motion to suppress only if it is clearly erroneous, and we will reverse admission of testimony only if the trial court abused its discretion. State v. Morgan, 480 S.W.3d 349, 351 (Mo. App. E.D. 2015). We review both the evidence at the suppression hearing and the evidence introduced at trial on this issue, viewing it favorably to the trial court's ruling. Id. The test for the admission of identification testimony is two-pronged:

The first prong asks whether the pre-trial identification procedure was impermissibly suggestive. If so, then we assess the impact that the suggestive procedure had on the reliability of the identification. Reliability is the linchpin in determining the admissibility of identification testimony. But a defendant must clear the suggestiveness hurdle before procuring a reliability review.

Id. (internal quotation marks and citations omitted). A pre-trial identification procedure is unduly suggestive only if the identification results not from the witness's recall of firsthand observations, but from the procedures or actions employed by the police. Id. Defendant's only basis on appeal for asserting that the lineup was suggestive is that he was wearing an orange hoodie-while the others were in gray, white or black clothing-and that he had a tattoo the others did not have.[2] These arguments do not "clear the suggestiveness hurdle." Id.

         First, the officer took measures to eliminate the distinguishing feature of Defendant's tattoo. The crime matrix system generated five photographs of people similar in age, range, height, weight and complexion to Defendant. Defendant had a small tattoo under his eye, but no one else in the system who otherwise looked similar to Defendant also had a similar tattoo. The officer put a black mark over Defendant's tattoo and the same black mark in the same spot on each of the other photographs "so that the tattoo itself was not a distinguishing characteristic." Defendant cannot show that the tattoo had anything to do with Victim's identification of Defendant as the shooter. And, in any case, "dissimilarity in physical appearance alone is insufficient to establish impermissible suggestion." Id. (nothing unduly suggestive about a lineup where defendants was only one with freckles). Likewise, although Defendant's shirt was a distinctive color compared to the others, there is nothing in this record to indicate that Victim's identification of Defendant in the photo lineup was based on what clothing Defendant was wearing. "A lineup will be deemed impermissibly suggestive on the basis of the color or the characteristics of clothing only if the clothing is the sole basis for identification." Id. at 352 (emphasis in original). Defendant has failed to show that Victim's pre-trial identification was the result of something other than his recall of first-hand observations of Defendant's physical features.[3] The trial court did not clearly err in denying the motion to suppress or abuse its discretion in admitting the pre-trial identification evidence.

         Admission of Firearm

         Defendant contends the trial court abused its discretion by admitting into evidence a firearm the police recovered from the car used by Defendant and his accomplices in this crime. Though none of the ballistics evidence found at the scene matched this weapon- and therefore the State did not argue that this firearm was the one used in this shooting- the weapon did contain a mixture of Defendant's DNA and the DNA of others, and the trial court concluded the firearm was logically relevant because it connected Defendant to the car. Defendant insists that the firearm was inadmissible under the general proposition that weapons unconnected with either the accused or the offense lack probative value and are prejudicial. See generally State v. Grant, 810 S.W.2d 591, 592 (Mo. App. S.D. 1991). But Defendant conveniently ignores the salient facts connecting the firearm in this case to the crime scene and to Defendant: it was found in the car used during commission of the crime and the firearm had Defendant's DNA on it. Because this firearm was not unconnected to the Defendant and the crime, it was not an abuse of discretion to admit it into evidence. See generally State v. Hosier, 454 S.W.3d 883, 895-96 (Mo. banc 2015) (photos of 14 weapons and unspent ammunition found in car defendant used to flee murder scene, but that were not used during crime, directly connected to defendant and the charged crime); see also State v. Woods, 9 S.W.3d 634, 636-37 (Mo. App. E.D. 1999) (weapon seized at scene of crime was connected to the crime "whether or not there was evidence to support a finding it was the weapon defendant possessed and fired"). Defendant has wholly failed to demonstrate any error in this point.

         In ...

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