Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County 15SL-CR07824-01
Honorable Stanley J. Wallach.
Greer ("Greer") appeals from the judgment and
sentence of the trial court following a jury verdict
convicting him of first-degree murder, first-degree robbery,
and armed criminal action. On appeal, Greer challenges the
trial court's denial of his proffered jury instruction
based on Missouri Approved Instructions-Criminal
("MAI-CR") 3d 310.02 (2016)regarding eyewitness
identification. We affirm.
State charged Greer with one count of the class A felony of
murder in the first degree, one count of the class A felony
of robbery in the first degree, and two related counts of
armed criminal action, stemming from the November 28, 2015,
shooting death of Sharae Bradford (Victim). The following
evidence was adduced at the November 2017 trial.
McCain ("McCain") testified to the following. He
spent time with Victim at her apartment on the afternoon of
November 28, 2015. While McCain was there, he witnessed
Victim use her black iPhone. They discussed that she had
arranged an exchange of $1, 700.00 for sex with a man she had
met on Facebook who identified himself as James Cool, and
Victim showed McCain a picture of the man posted on Facebook.
McCain overheard a telephone conversation between Victim and
a man, in which the man said he was on his way over, and then
Victim told McCain to leave because James Cool was coming
over. As McCain was leaving at around 4:45 p.m., he passed a
man he recognized as the man in the picture on James
Cool's Facebook page. McCain was concerned and both
texted and called Victim. McCain and some friends went to
Victim's apartment at approximately 5:50 p.m., and they
discovered Victim was dead.
died of a gunshot wound to the back of the head. Based on
James Cool's Facebook page, police identified Greer as a
possible suspect, and McCain later identified the man he had
seen in Victim's building as Greer, stating he was 100%
sure it was the same man. McCain identified Greer in court as
the person he had seen in Victim's building.
Additionally, surveillance video from Victim's apartment
building showed a man later identified as Greer enter the
building at 4:52 p.m. and leave at approximately 5:35 p.m.
During the subsequent police search of Victim's
apartment, police discovered Victim's black iPhone was
missing, and they discovered two used condoms. Police later
found a black iPhone later identified as Victim's during
a search of Greer's residence. Greer's DNA was found
inside the two condoms discovered at the scene of the crime.
Moreover, while marijuana was found in Victim's bedroom,
a toxicology report showed no illegal substance in
Victim's body. Greer does not challenge the sufficiency
of the evidence supporting his conviction.
the jury-instruction conference, the trial court accepted the
State's proposed eyewitness instruction with
modifications to eliminate the paragraphs for eyesight, the
weather, intoxication, or fatigue of the person making the
identification. The defense offered an eyewitness instruction
with no modifications, which the trial court rejected. After
the trial, the jury returned a verdict of guilty on all
charges. On the charge of first-degree murder, the trial
court sentenced Greer to life in the Missouri Department of
Corrections without the possibility of parole, consecutive to
twenty-year sentences for each of the remaining counts of
first-degree robbery and armed criminal action, which were
concurrent to each other. This appeal follows.
sole point on appeal, Greer argues the trial court erred in
refusing his proffered unmodified instruction patterned on
MAI-CR 3d 310.02, and in submitting instead a modified
instruction eliminating language stating the jury could
consider the witness's eyesight, weather conditions, and
intoxication, fatigue, illness, injury, or other impairment
in considering the reliability of McCain's identification
of Greer, resulting in prejudice. We disagree.
Court reviews de novo a trial court's decision whether to
give a requested jury instruction." State v.
Bruner, 541 S.W.3d 529, 534 (Mo. banc 2018) (citation
omitted). We will reverse for instructional error
only when the error is so prejudicial that it deprives the
defendant of a fair trial, viewing the evidence in the light
most favorable to the defendant. State v. Westfall,
75 S.W.3d 278, 280 (Mo. banc 2002); State v.
Edwards, 530 S.W.3d 593, 604 (Mo. App. E.D. 2017). We
presume prejudice from the trial court's failure to give
a mandatory instruction, unless the State clearly establishes
the error did not result in prejudice. State v.
Seay, 256 S.W.3d 197, 201 (Mo. App. E.D. 2008).
Prejudice exists when there is a reasonable probability that
the verdict would have been different without the error.
State v. Davis, 203 S.W.3d 796, 798 (Mo. App. W.D.
28.02(c) mandates the exclusive use of the MAI-CR whenever
there is an applicable instruction. See State v.
Davenport, 174 S.W.3d 666, 668 (Mo. App. S.D. 2005)
(trial court errs if it does not instruct jury in compliance
with MAI-CR). For cases involving eyewitness testimony,
MAI-CR 3d 310.02 instructs that the jury should evaluate
eyewitness identification with particular care, and it
provides a list of 17 factors for the jury to consider, in
addition to the overall credibility of the witness, in order
to determine whether an identification made by a witness is
reliable or mistaken. While MAI-CR 3d 310.02 lists a total of
17 factors, the Notes on Use state that "only those
factors that apply to the evidence presented at trial"
should be included in the instruction.
the defense offered an unmodified instruction
("Instruction A") patterned on MAI-CR 3d 310.02
with all 17 factors included. However, after considering the
evidence admitted at trial, the trial court submitted to the
jury a modified version of MAI-CR 3d 310.02 eliminating three
factors: namely, the witness's eyesight, the weather
conditions at the time the witness viewed the person in
question, and any intoxication, fatigue, illness, injury, or
other impairment of the witness at the time the witness
viewed the person in question. Greer argues on appeal that
because there was a marijuana cigarette discovered in
Victim's bedroom, this evidence created a reasonable
inference that McCain smoked marijuana prior to his
eyewitness identification, which would make the question of
his intoxication or impairment relevant. Greer further argues
that a witness's eyesight is always relevant to the
jury's determination of the reliability of an
identification. Greer concedes that the weather conditions at
the time of McCain's indoors eyewitness identification
were "less relevant."
review of the record shows the jury was properly instructed.
The trial court is required to follow the Notes on Use, which
here provides that only the factors "that apply to the
evidence presented at trial" should be included in the
instruction. See MAI-CR 3d 310.02, Notes on Use 1;
Davenport, 174 S.W.3d at 668. Jury instructions must
be based on substantial evidence and the reasonable
inferences therefrom, and courts cannot supply missing
evidence or grant unreasonable, speculative, or forced
inferences. Bruner, 541 S.W.3d at 538. Although
Greer speculates on appeal that McCain could have
been smoking the marijuana found in Victim's bedroom,
there was no testimony or other evidence presented at trial
actually linking McCain to the marijuana. While we view the
evidence in the light most favorable to Greer's defense,
after-the-fact speculation is not evidence, and jury
instructions cannot be based on speculative or forced
inferences not supported by the evidence introduced at trial.
See id. (self-defense instruction not appropriate
when defendant did not testify he feared for his life, and
courts may not speculate as to ...