State of Missouri, Plaintiff/Respondent v. Roscoe Green

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED101577
)
Plaintiff/Respondent, ) Appeal from the Circuit Court of
) the City of St. Louis
vs. )
) Honorable John Francis Garvey Jr.
ROSCOE GREEN, )
)
Defendant/Appellant. ) Filed: September 15, 2015
Introduction
Roscoe Green (Defendant) appeals his convictions for first-degree robbery and armed
criminal action. Defendant contends the trial court abused its discretion in denying his motion to
suppress the robbery victim’s pretrial and in-court identifications of Defendant because the
police’s identification procedures were “so suggestive” that they created a substantial likelihood
of misidentification. We affirm.
Factual Background
On October 24, 2011, Defendant allegedly robbed Curtis Hayes and a week later, on
Halloween, also robbed Stephen Jones. Regarding the latter incident, Jones was walking home
at night when Defendant approached him with a gun and told Jones, “Everything you got.”
Jones gave Defendant his ice-cream, headphones, cellphone, and book bag, which contained a
rare pair of Tim Hardaway Air Bakins size fifteen shoes. Both victims provided police with a
description of the robber. Several days later, in early November, officers responded to a robbery
at a bus stop and, upon entering a residence to which the suspect had fled, discovered Jones’s
shoes in Defendant’s possession. Defendant was arrested and subsequently placed in a police
lineup with three other men. Both Hayes and Jones independently identified Defendant as the
robber upon viewing the lineup. Defendant was charged with two counts of first-degree robbery
and two counts of armed criminal action, as to Hayes and Jones respectively.
Before trial, Defendant moved to suppress the victims’ pretrial identifications of
Defendant, as well as all in-court identifications, on the basis that the police failed to choose
similar looking participants and that the victims, therefore, identified Defendant because of his
“individuality.” After a hearing, the trial court denied the motion, finding that the officer who
presented the lineup to the victims acted reasonably and in “no way created an environment
which was suggestive of a positive identification [of Defendant].” Accordingly, the trial court
concluded that the lineup was not unreasonably suggestive and permitted at trial the introduction
of testimony concerning the victims’ pretrial identifications, including a photograph of the live
lineup, as well as the victims’ in-court identifications of Defendant.
Ultimately, the jury found Defendant guilty of first-degree robbery and armed criminal
action as to Jones, but acquitted Defendant of those same charges with respect to Hayes. The
trial court entered a judgment consistent with the jury’s verdict and sentenced Defendant as a
prior and persistent offender to concurrent terms of 15 years’ imprisonment for each count.
Defendant appeals.
Standard of Review
At the outset, we note that the parties dispute the applicable standard of review. The
State argues that Defendant did not properly preserve his claim because defense counsel did not
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object to Jones’s testimony regarding his pretrial identification of Defendant or to his testimony
identifying Defendant in court. The State further points out that Defendant stated, “No
objection,” when the State introduced the photograph of the lineup into evidence. Defendant
requests that if we find the issue unpreserved for appeal, we review for plain error.
The State is correct in its recitation of the record. Generally, to preserve an evidentiary
error for appellate review, a party must contemporaneously object to the admission of evidence;
and, stating “no objection” to the introduction of evidence precludes direct appellate review of
the admission. See State v. Baker, 103 S.W.3d 711, 716 (Mo. banc 2003). However, during the
State’s case-in-chief, defense counsel realized that she had “erroneously not preserved”
Defendant’s pretrial motion to suppress the identification and subsequently objected to preserve
the motion. The trial court acknowledged counsel’s failure, but noted that “now the proper
objection has been made” and overruled Defendant’s objection subject to its previous ruling on
the motion to suppress. Under these circumstances, we will review the issue on the merits. See
State v. Mondaine, 178 S.W.3d 584, 588 (Mo. App. E.D 2005) (reviewing evidentiary claim on
the merits where defense counsel failed to object to the admission of evidence, affirmatively
stated “no objection,” and the trial court “overlook[ed]” this failure and ruled on the motion).
“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. Nelson, 334 S.W.3d 189, 193
(Mo. App. W.D. 2011). “[W]e review the facts and inferences therefrom in the light most
favorable to the trial court’s ruling, and disregard all contrary inferences.” State v. Murray, 428
S.W.3d 705, 709 (Mo. App. E.D. 2014) (citation and quotation omitted). Further, we will not
disturb the trial court’s decision to admit or exclude the identification testimony unless there has
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been an abuse of discretion. Nelson, 334 S.W.3d at 193. “Error in the admission or exclusion of
evidence does not justify reversal unless the error was so prejudicial that it deprived the
defendant of a fair trial such that the verdict would have been different.” State v. Washington,
444 S.W.3d 532, 536 (Mo. App. E.D. 2014).
Discussion
In his sole point, Defendant claims that the trial court erred in denying his motion to
suppress Jones’s pretrial and in-court identification of Defendant because the lineup procedures
were “so suggestive” that there was a substantial likelihood of Defendant’s misidentification.
Specifically, Defendant contends that the lineup was unduly suggestive because Defendant was
the only participant with both physical characteristics (height and hair) described by Jones and
because the police allowed the victims “to discuss the details of their cases immediately before
each would select a suspect from the lineup.”
In considering whether evidence of a pretrial identification of a defendant is admissible,
courts use a two-step test. State v. Chambers, 234 S.W.3d 501, 513 (Mo. App. E.D. 2007).
First, the court will determine if the pretrial identification procedure was unduly suggestive. Id.
If the procedure was impermissibly suggestive, the court then determines whether the suggestive
procedure led to an unreliable identification. Washington, 444 S.W.3d at 537. If the pretrial
identification procedures are not found to be unreasonably suggestive, it is not necessary nor
appropriate for a court to review the reliability of the identification. Chambers, 234 S.W.3d at
513.
A pretrial identification procedure is unreasonably suggestive if the identification results
not from the witness’s memory, but from the procedures or actions employed by the police. Id.
When selecting a lineup, police must make a reasonable effort to find physically similar
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participants. State v. Anthony, 857 S.W.2d 861, 867 (Mo. App. W.D. 1993). Lineup participants
will never be identical, and the law does not require exact conformity to ensure a fair procedure.
State v. Williams, 18 S.W.3d 425, 432 (Mo. App. S.D. 2000). Mere differences in physical
characteristics are insufficient to establish an unduly suggestive lineup. Anthony, 857 S.W.2d at
867.
At the suppression hearing and trial, Detective Angela Hawkins testified to the process
used for creating a lineup at the St. Louis Justice Center, which was used to create Defendant’s
lineup. Hawkins explained that, generally, a lineup contains three to five participants, depending
on the available population pool at the Center, and that officers choose candidates from both the
first and second floor of the Center who are “as similar as can be” to the physical description of
the suspect.1 The photograph of the lineup, introduced at trial, shows that the lineup included
four participants. Hawkins testified that all participants had similarly shaped eyes and noses and
three of the four had similarly shaped faces.
Hawkins further testified that she coordinated the victims’ viewing of the lineup.
Specifically, Hawkins explained that she spoke to both victims outside the viewing room and
explained to them that “the person who is responsible for robbing them may or may not be
present in the lineup that they were about to view, and . . . that they [had] no obligation to feel
any pressure to identify [a] person or, . . . not identify [a] person.” Hawkins testified that she
then took Jones into the viewing room alone and advised him that if he did “see somebody that
he recognized, to let [her] know . . . .” According to Hawkins, Jones’s main characteristic for
identifying Defendant was how the “suspect’s eyes looked.” Hawkins explained that when she
and Jones entered the viewing room, Defendant was looking down, but as soon as he looked up,
Jones immediately identified Defendant and said he was “a hundred percent certain” that
1
Hawkins stated that, to the best of her knowledge, the police followed this protocol in the instant case.
5
Defendant was the individual who had robbed him. When Jones exited the viewing room,
Hawkins said that she made sure Jones did not speak to the other victim.
Under these circumstances, viewing the evidence in the light most favorable to the trial
court’s ruling, we cannot conclude that these identification procedures were unreasonably
suggestive. The police followed departmental protocol and made a reasonable effort to select
members from the population pool at the Justice Center who most resembled Defendant. The
photograph of the lineup shows that the lineup participants were of the same race with similar
skin tone; of similar age; had similarly shaped mouths, noses, eyes, and face shapes; and had a
lack of abundant facial hair. Further, the photograph reflects that all the participants had
unbraided, short cropped hair of varying lengths and that all of the participants were reasonably
close in height and weight to Defendant’s build.2 While some differences do exist between the
participants, for example Defendant’s hair had more volume than the hairstyle of the other
participants, none of these physical dissimilarities were so egregious as to create an unduly
suggestive lineup. Moreover, when Hawkins presented the lineup to Jones, she did not pressure
Jones to make a selection or suggest that the culprit was in the lineup; rather, Hawkins indicated
to Jones that the robber may or may not be in the lineup. Jones then identified Defendant based
on his independent recollection of Defendant’s build and face. Indeed, at trial Jones testified that
he identified Defendant in the lineup because he had “made a mental note” of what Defendant
looked like. Specifically, Jones indicated that he had noted that Defendant had his “body type
. . . having a height[,]” was “dark skinned[,]” and had “eyes kind of like me.”
Despite the neutrality of the police action, Defendant relying on State v. Kirk, 636
S.W.2d 952 (Mo. banc 1982), and State v. Word, 527 S.W.2d 708 (Mo. App. W.D. 1975), argues
2
The least similar participant, who stood at position three, appears to be less than a head shorter than Defendant and
to have a slightly stockier build, compared to the other slimmer participants. Of the other two participants, one was
Defendant’s height and the other was only slightly shorter.
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that the police’s lineup procedure was impermissibly suggestive because Defendant was the only
person of his height and who had voluminous hair. In State v. Kirk, the Missouri Supreme Court
held that a lineup procedure was not unduly suggestive where each of the participants’ heights
more closely matched the victim’s description of the perpetrator than the height of the actual
defendant. 636 S.W.2d at 954-55. Defendant, comparing Kirk to this case, asserts that, here,
“none of the other participants reasonably approximated” Jones’s description of the robber and
that, therefore, under Kirk the lineup was unduly suggestive.3 Kirk, however, does not stand for
the proposition that a lineup is necessarily unduly suggestive where the actual perpetrator’s
physical attributes more closely matches the victim’s description than that of the other
participants. Police are only required to use reasonable efforts to find physically similar
participants, and “differences in age, weight, height, hairstyle, and other physical characteristics
do not compel a finding of impermissible suggestiveness.” Chambers, 234 S.W.3d at 514. Here,
the other participants did reasonably approximate Jones’s description of the robber—all but one
of the participants were close in height to Defendant and all had close-cut hair of varying
volume. Defendant’s reliance on Kirk is misplaced.
Defendant’s reliance on Word is similarly unhelpful. In Word, the Western District
found that a lineup was not impermissibly suggestive when the lineup “[did] not in and of [itself]
produce any suggestion of the identity of the defendant as the culprit.” 527 S.W.2d at 710. The
participants had similar heights and builds and lacked “distinguishing characteristics,” such as
“facial scarring,” that were so distinct as to eliminate any participant as a possible suspect. Id.
Compared to Word, Defendant asserts that the lineup did in itself produce a suggestion of
Defendant as the culprit because his unique distinguishing characteristics—his height and hair.
3
Jones, who is 6’6”, described the culprit to police as being “a little bit shorter” than him, possibly 6’2”, and as
having thick or voluminous hair.
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Word’s reference to “distinguishing characteristics,” however, is not reference to common-place
attributes, like hair or height, but to characteristics of a different ilk, such as physical
abnormalities. Id. Indeed, Word recognizes that “[t]he issue of differences in weight or
complexion, or even height, as well as differences in hair styling, do not, in and of themselves,
make a lineup unduly suggestive.” Id. Here, just as in Word, the participants were sufficiently
physically similar. Indeed, at least one other participant was the same height as Defendant and
Defendant’s stature and hairstyle was not so distinctive as to suggest him as the culprit. See
State v. Gates, 637 S.W.2d 280, 285 (Mo. App. W.D. 1982) (that one participant has a physical
feature more prominent than the other participants, such as an unusual height, does not
necessarily invalidate an otherwise fair identification procedure).
Finally, Defendant argues that the identification procedure was unduly suggestive
because the police allowed the victims “to discuss details and circumstances of their robberies
immediately before” each individually viewed the lineup. Jones and Hayes did briefly share a
waiting room, and each told the other that he had been robbed. However, they did not discuss
specific details of the robberies, nor did they describe their assailants. After Jones identified
Defendant in the lineup, Hawkins led Jones from the room and escorted Hayes in. They did not
speak. Nothing in the record suggests that the victims consulted one another about the physical
characteristics of the assailant.4
Having reviewed the record in a light most favorable to the trial court’s decision, we
conclude that sufficient evidence supports the court’s finding that the lineup procedures were not
impermissibly suggestive. On appeal, Defendant has failed to demonstrate otherwise.
4
Defendant also argues that the police could have made a better effort to produce a more physically similar panel.
However, the participants were sufficiently similar and, therefore, the police acted consistently with the law. See
Chambers, 234 S.W.3d at 513-14 (police are only required to use reasonable efforts to find physically similar
participants).
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Accordingly, we need not review the reliability of the identification. See Chambers, 234 S.W.3d
at 513. The trial court’s decision to deny Defendant’s motion to suppress Jones’s pretrial and in-
court identification of Defendant was not erroneous. Likewise, the trial court also did not abuse
its discretion by permitting into evidence testimony and evidence related to Jones’s pretrial and
in-court identification of Defendant. Point denied.
Conclusion
The trial court’s judgment is affirmed.
_______________________________
Philip M. Hess, Presiding Judge
Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.
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