DocketNumber: WD 80028
Citation Numbers: 551 S.W.3d 678
Judges: Ardini
Filed Date: 7/24/2018
Status: Precedential
Modified Date: 1/21/2022
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
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 *681observed 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.
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.
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 ,
POINT I-ADMISSIBILITY OF IDENTIFICATION
In his first point on appeal, Gordon alleges the trial court erred in overruling his motion to suppress and in admitting, over objection, Tournoy's identification of Gordon. Gordon specifically argues that the photo arrays were impermissibly suggestive, rendering Tournoy's subsequent identifications unreliable.
A two-prong inquiry is used to determine "whether identification testimony is admissible."
"In reviewing the trial court's denial of a motion to suppress, we consider the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling." State v. Green ,
At the suppression hearing and trial, Detective Schmidli testified that he included persons with identifiers and features similar to Gordon in each photo lineup. The first photo array included in the fifth position a picture of Gordon. The second lineup included a more current picture of Gordon. Because this photo showed Gordon from the waist up rather than just his face, the detective selected individuals similarly photographed from the waist up for use in the second photo array and, in an effort to be fair to Gordon, his photo was moved from the fifth to the second position. Detective Schmidli instructed Tournoy prior to reviewing both lineups not to make an identification unless he recognized the suspect and made no suggestive comments to Tournoy in the period between the two lineups.
Gordon argues the police procedures used in this case were impermissibly suggestive because Gordon was the only individual who appeared in both photo lineups shown to the victims; the person who Tournoy allegedly selected as the shooter in the first lineup was not included in the second lineup; and Gordon was the only person in the second lineup who appeared to be slender and holding his pants up, both of which were descriptions given of the perpetrator.
Each of Gordon's arguments fail. Police procedures are "not impermissibly suggestive just because the defendant was the only individual to appear in both" lineups, Washington ,
Additionally, although Gordon was described as slender and there were slight variations in the stature of the individuals included in the second photo array, the physical features were sufficiently similar to not suggest Gordon as the suspect. Cf. Green ,
In sum, Gordon has failed to establish that the pre-trial identification by Tournoy was the product of unduly suggestive police procedures. Accordingly, it is unnecessary to address his claim that the pre-trial and in-court identifications were not reliable. Washington ,
POINT II-ADMISSIBILITY OF ALLEGED HEARSAY TESTIMONY
Gordon alleges in his second point on appeal that the trial court erred in overruling his objection to an officer's testimony that he secured a cap found near the crime scene based on witness statements that the suspect had been wearing a cap. Gordon specifically argues that the officer's testimony was hearsay and that he was prejudiced by its admission.
"[A]n out-of-court statement offered to prove the truth of the matter asserted in that statement" is hearsay and generally inadmissible. State v. Taylor ,
At trial, the officer testified that his attention was drawn to a cap located near the scene based on witness accounts that the suspect had been seen wearing a similar cap. Defense counsel objected, arguing that reference to the witness statements was hearsay and violated Gordon's right to confront the witnesses against him. The State responded that the reference to the statements was not offered for its truth but instead to explain the officer's conduct. The court overruled the objection. The officer then testified that he stood by the cap until it was collected by a crime scene investigator.
It is clear from the context of the examination that the testimony at issue was elicited to explain why the officer believed the cap was relevant to the investigation and his subsequent effort to secure the cap until it could be recovered as evidence. Testimony containing out-of-court statements that is presented to explain subsequent conduct is not offered for the truth of the matter asserted and is not hearsay.
Gordon's second point is denied.
CONCLUSION
The judgment of the trial court is affirmed.
All concur.
The sufficiency of the evidence is not challenged, and the evidence and reasonable inferences therefrom are recited in the light most favorable to the jury's verdict. State v. Hilliard ,
A witness visiting her father nearby described a man running from the scene as wearing all black, holding a gun, pulling up his pants, and having a "dread afro, little cornrows" hairstyle.
Tournoy testified that he selected the third person in the first photo array, an individual who was not Gordon, as the person who shot him. However, the lack of markings on that lineup such as Tournoy's signature, initials, or the date was consistent with the detective's testimony that Tournoy did not make an identification at that time.
See also Grady ,
We note that even though Tournoy's identification from the second photo array occurred eleven months after the commission of the crime, we would nevertheless find his identifications reliable given his opportunity to clearly view Gordon during the commission of the crime with a great degree of attention. Cf. State v. Story ,
Because the statement was not hearsay, Gordon's "right to confront the witnesses against him is not implicated" and we need not address whether Gordon was prejudiced by the admission of the statement. See Taylor ,