 

In the Missouri Court of Appeals
Eastern District

DIVISION TWO
STATE OF MISSOURI, ) ED102736
)
Appellant, ) Appeal froln the Circuit Court
) of the City of St. Louis
v. ) l322-CR04521
)
JERALD L. HARRIS, ) Honorable Robert H. Dierker, Jr.
)
Respondent. ) Filed: March 15, 2016

Introdtlction
Jerald L. Harris (Defendaiit) appeals the judgment entered upon his convictions of
three counts of first-degree robbery, one count of attempted f`n'st~degree robbery,
attempted forcible sodomy, kidnapping resisting arrest, and six associated counts of
arined criminal action. Defendant argues the trial court erred in admitting out-of~court
identification evidence and related testimony because the identification procedures used
by the police were unduly suggestive and rendered the identifications unreliable. We
affirm.
Background
The evidence at trial, in the light most favorable to the judgment, was the

following On January 6, 2013, Stephanie Durkacz (Durkacz) was visiting her friend

Julie Spychala (Spychala) at Spychala’s apartment in the Shaw neighborhood in the City
of St. Louis. A friend of theirs, Brendon Hutton (Hutton) came over to pick Durkacz up,
and Durkacz and Spychala went downstairs to meet him outside The three of them stood
in the street and talked for a few minutes

As they were tall<ing, Spychala noticed a man, later identified as Defendant,
corning toward them. She made eye contact with him and then looked back at her friends
and continued talking with them. Then Defendant came up behind them with a
handkerchief over his face, holding a gun. Defendant said, "Give me your money or l’ll
shoot you." Spychala did not have any lnoney, so she threw her gloves on the ground in
front of Defendant. Durkacz and Hutton handed Defendant lnoney. Defendant continued
to point the gun at them. Then Defendant demanded their phones, and Spychala and
Durkacz both put their phones on the ground. Defendant kept demanding more money,
and eventually Durkacz and Hutton had given him everything out of their Waliets. At one
point, the bandana covering Defendant’s face fell down, and Hutton was able to see
Defendant’s face for a few seconds.

Defendant then looked at Durkacz and said, "Well, bitch, you’re going to suck my
d[---]." Defendant went up behind her and grabbed her butt and she froze. Spychala kept
saying, "No" and "Please, sir, please." She tried to offer Defendant her jacket, which she
told him was worth $150. He started to pull off her jacket but Spycliala got nervous and
held her ground. Eventtlally Defendant stopped and said "Run to your car and don’t turn
around." Defendant ran away down an alley.

The three victims got in Hutton’s car and started drlving. Hutton still had his

phone, so he called 911. Police took them back to the scene. Their credit cards and

have been excluded because victim stated he based it solely on voice identification, but
concluding admission was not prejudicial). Moreover, Durkacz affirmatively testified
otherwise. She stated that when she listened to the audio files, she did not look at the
photographs at the same time. She said she recognized the robber’s voice immediately
when she lreard the audio recording of Defendant’s voice, and that it "brought [her] back
to that night." Spychala similarly testified that when she listened to the audio recordings,
she put her head down and closed her eyes rather than viewing the photographs at the
same time. She recognized the voice because "forever after he robbed us . . . I just knew
it."

Conside1'ing the totality of the circumstances he1'e, we find substantial evidence
supporting the trial court’s ruling that the audio lineup procedure was not tlnduly
suggestive. Detective Griffin’s procedure closely resembled their customary live lineup
procedure, in which witnesses would view and hear the lineup participants in the same
order. Defendant cites no authority holding such a procedure is unduly suggestive, and
we find no evidence in the record that the position of the participants in the lineup
influenced any of the witness’ identifications Point denied.

Conclusion

The trial court’s conclusion that the identification procedures used by police were
not unduly suggestive is supported by substantial evidence on the whole record.
Therefore, the trial court did not clearly err in denying Defendant’s motion to suppress.

Tliejudginent is affirmed

Philip M. Hess, P.J., concurs
Angela 'l`. Quigless, J., concurs.

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Spychala’s gloves were still on the ground, but the money and phones were gone. A K-9
police unit tracked Defendant’s scent but lost it beyond the alley.

Six months later, Defendant was arrested while atteniptilig to commit another
robbery and sexual assault. Detective Kevin Griffin (Detective Grifiin) believed
Defendant might have been the man who had robbed Spychala, Dllrkacz, and Htltton,
because Defendant lived in close proximity to the robbery and when he was arrested, he
had two bandanas with him and had discarded a gun that matched the description given
by the three victims. Detective Griffin had Defendant placed in a iineup. Because
Detective Griffin was not able to reach any of the victims to come view the live lineup,
he took photographs of the lineup. Detective Griffin also conducted an audio lineup,
during which he recorded each of the four men in the lineup reading phrases that the
robber had said during the incidents Detective Griftin was investigating.

Detective Griffiii contacted Spychala, Durkacz, and Hutton. He met with
Spychala and Hutton separately, and he showed them the photographs and played the
audio recordings for them. Both Spychala and Hutton identified Defendant as the man
who robbed them. Because Durl<acz lived in Texas, Detective Griffin emailed her the
pictures and audio files. Durkacz also identified Defendant.

For the incident on january 6, 2013, involving Spychala, Durkacz, and Hutton,
the State charged Defendant as a prior offender with four counts of first-degree robbery,
one count of attempted first-degree robbery, one count of attempted forcible sodomy, one
count of sexual abuse, three counts of kidnapping, one count of resisting arrest, and 11
counts of arined criminal action, accompanying all counts except resisting arrest.

Before trial, Defendant moved to suppress the identifications made by each victim,

arguing the identification procedures were unduly suggestive and rendered the
identifications unreliable. The trial court conducted a liearitig, after which it denied
Defendaiit’s motion to suppress.

The jury convicted Defendant of three counts of first-degree robbery (Counts I, V,
and VII), one count of attempted first-degree robbery (Count XIX), one count of
attempted forcible sodomy (Count IlI), one count of kidnapping (Count XXI), six
associated counts of armed criminal action (Counts II, IV, VI, VIII, XX, and XXII), and
resisting arrest (Count XXIII). The trial court sentenced Def`endant to life in prison on
every count except Count XXIII, for which the court sentenced Def`endant to seven years’
imprisonment Some of the sentences were to run concurrently and some consecutively,
amounting to six consecutive lif`e sentences. This appeal follows.

Discussion

Defendant raises four points on appeal. In each of Points i, II, and III, Defendant
argues that the trial cotu't erred in denying his motion to suppress the victims’
identifications because the photographic lineup procedures used with each victim were
unduly suggestive and rendered the identifications tlnreliable. Because Detective Griffiii
used the same lineup procedures to obtain each victi1n’s identification, we combine our
discussion of Defendant’s first three points on appeal. In Point IV, Defendant similarly
argues that the trial court erred in denying his motion to suppress because the audio
lineup procedure was unduly suggestive and rendered the identifications unreliable

Standard of Review
We will reverse a trial court’s ruling on a motion to suppress only if it is cleariy

erroneous State v. Sund, 215 S.W.$d 719, 7`23 (Mo. banc 2007). We defer to the trial

cou1't’s factual findings and credibility deterniinations, and we consider all evidence and
reasonable inferences in the light most favorable to the trial court’s ruling. l;d. We
consider evidence presented at both the suppression liearing and at trial to determine

whether sufficient evidence exists in the record to support the trial court’s ruling State v.

L, 162 S.W.3d 464, 472 (Mo. banc 2005).
Pliotograpliic Lineup

In Points I, II, and III, Defendant argues the trial court should have suppressed the
identifications by Spychala, Durkacz, and Hutton, respectively, based on the
photographic lineup Detective Grit`fiii prepared, because the lineup was unduly
suggestive and rendered the identifications tlnreliable. We disagree

In determining whether to admit identification evidence, courts employ a two-
prong test. Foster v. State, 348 S.W.3d 158, 161. First, the court considers whether the
identification procedure was unduly suggestive in that the identification was the result of
the procedure rather than the witness’ recollection § at 161-62. If the procedure was
not tlnciuly suggestive, the identification is admissible i"d_. at 162.

if the court finds the procedure was tlnduiy suggestive, then it considers the
second prong: "whetliet' the suggestive procedures have so tainted the identification as to
lead to a substantial likelihood that the pre-trial identification was not reiiable." L
(quoting State v. Cliambers, 234 S.W.Bd 501, 513 (l\'fo. App. E.D. 2007)). "Reliability,
not suggestiveness, determines the admissibility of identification testimony." §_tategyg
BLh, 372 S.W.3d 65, 68 (Mo. App. W.D. 2012) (quoting State v. Nelson, 334 S.W.3d

139, 193 (M@. App. W.D. 2011)).

Here, Defendant argues the photographic lineup procedure was unduly suggestive
for two reasons: (l) the victims’ description of the robber was that he wore dark clothing,
and Defendaiit was the only person in the lineup wearing dark clothing; and (2) the
victims’ description of the robber was that he was tall, and Defendant was taller than two
of the other men standing immediately next to him in the iineup.

Detective Griffili gave the following testimony at the suppression liearing. He
stated that in putting lineups together, they attempt to find as many people being held at
the justice center who are available and who look similar to the suspect. They look for
someone with similar age, hairstyle, complexion, and size.

In this particular case, Detective Griffin found three men he believed to be similar
to Defendant. He gave Defendant the choice of position in which to stand, and
Defendarit chose position number one. All four men came in with the clothes they had
been wearing when they were arrested. Defendant was wearing a black t-shirt with a
picture of a skull on it. Detective Griftin testified that they do not ask anyone to change
clothes and there are no clothes available at the justice center for that purpose.
Detective Griffin took six photographs: two of the group of men to show relative size,
and then a close-up photograph of each man individually.

The first victim from this case Detective Griffiii contacted was Spychala. He
showed her a form containing the following statement:

The individuals you are viewing may or may not be the actual
suspect in the case. Please look carefully at all of the physical
attributes of each person. After ali have been viewed, tell the
law enforcement officer who is with you whether or not you

recognize any of the individuals in the iineup, and if so, where
you have seen this person before.

He then showed Spychala tl1e photographs, and she immediately identified Defendant.
Detective Griffiii next met with Hutton, and he followed the same procedure in showing
Hutton the form, and then the photographs Hutton also identified Defendant as the
person from the robbery. After each victim made an identification, Detective Griff`ni
instructed them not to discuss the lineup with each other.

Finally, Detective Grift`:n called Durkacz, who lived in Texas, and asked her
whether she had talked to either of the other victims about the lineups. She said she had
not, and Detective Griffm emailed the photographs and audio files to her. The email
contained the following instructions:

Photos l and 2 depict a physical lineup containing four

suspects. The suspect from your incident may or may not be

present in the lineup. Please do not feel compelled to make an

identification. However, if you recognize the subject

responsible for robbing you, please indicate such. Photos 3

through 6 are close-up photos of each individual subject.
Dtirkacz sent a reply by ernail, indicating that she was identifying Defendant as the
person responsible

The trial court concluded that the lineup procedure here was not unduly
suggestive under the circumstances We find sufficient evidence in the record to support
the trial court’s denial of Defendant’s motion to suppress on this basis.

Our ultimate question regarding whether the procedures used were unduly
suggestive is whether the identifications caine from the victim’s own recollection or from
some procedure or action employed by the police. State v. Barriner, 2l0 S.W.3d 285,
297 (Mo. App. W.D. 2006). "Dissiinilarity in physical appearance, alone, is insufficient

to establish impermissible suggestion. . , . as long as 110 one individual clecrrly stewards out

in the Iinezlp, the law does not require exact conformity [of physical characteristics]."

State v. Conrick, 375 S.W.Sd 894, 900 (Mo. App. W.D. 2012) (quoting State v. Floyd,
437 S.W.3d ll5, 125-26(1\/10. App. E.D. 2011)).

Here, Defendant first argues that because he was the only person wearing dark
clothing, and the victims had described the robber as wearing dark clothing, the lineup
procedure was unduly suggestive. Ho\,vever, Detective Griffin testified that the victims
described Defendant as wearing a coat and hoodie during the robbery. During the lineup,
Defendant was wearing a dark t-shirt with a picture of a skull on it. None of the men in
the lineup were wearing a coat, and two of the other men were wearing a hoodie.
Additioiially, the police did not take any action regarding the men’s clothing; they simply
wore in the lineup what they were wearing already.

Moreover, none of the victims stated that they based their identification on the
clothing Defendant was wearing at the lineup, and two of them affirmatively denied
doing so. Spychala testified that when she viewed the lineup, she viewed the close-up
photographs i`n'st. She used a piece of paper to partially cover each man’s face because
the robber had worn a bandana, and she identified Defendant from his individual
photograph based on his eyes. Hutton, when asked whether Defendant’s dark clothing in
the lineup influenced his identification, responded "No. No, the hoodie was-it was
based off of that iiiglit." Hutton explained that he had the hoodie Defendant was wearing
during the robbery in his mind when he viewed the photographs, and considered
Defendant’s build in identifying ltiln.l Given the totality of the circumstances here,
Detective Griffin’s decision to allow the lineup participants to reinain in the clothes they
were wearing when they were arrested did not render the procedure unduly suggestive

1 Froin this it is reasonable to infer that Hutton was not influenced by the clothing of the lineup participants,
as tivo of them were \vearing hoodies while Defendant was not, and Hutton did not choose either of them.

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§ State v. Grady, 649 S.W.Zd 240, 244 (Mo. App. E.D. 1983) (where identification did
not turn on clothing worn by defendant, lineup in which defendant appeared wearing
same clothes victim described was not unduly suggestive); State v. Arnold, 528 S.W.2d
l64, l66 (Mo. App. 1975) (fact tl1at defendant was wearing brown trousers and jacket,
inatching victim’s description of perpetrator’s clothes, did not render indentification
procedure unduly suggestive).

Next, Defendant argues that the height difference in the lineup participants
rendered the procedure unduly suggestive Defendant was in position number one in the
lineup. 'l`he participant in position iiumber' four was about the same height as Defendant,
but the participants in positions t\vo and three were a couple of inches shorter than
Defendant. Defendant argues that because the victims described him as tall, the fact that
the two participants standing closest to him in the lineup were significantly shorter than
him unduly influenced the vietims’ identifications

However, the four men were within a couple of inches in relative height. One of
the other men was the same height as Defendant, thus the victims could not have chosen
Def`endant based solely on lieight. Under the circumstances, the difference in height
between Def`endant and two of the three other participants did not rise to the level of
undue suggestion here. § State v. Willis, 577 S.W.Zci 655, 657 (Mo. App. S.D. 1979)
(fact that two of the four lineup participants were taller than defendant did not render
identification procedure unduly suggestive) (citing United States v. Lewis, 547 F.Zd
1030, 1035 (Sth Cir. l976) ("[w]hile appellant was the shortest of six men, he was not
significantly so; none of the men was unusually tall and all were within a range of about

four inclies")).

Because substantial evidence supports the trial court’s conclusion that the
photographic lineup procedure was not unduly suggestive, we will not disturb the trial
court’s ruling. § Foster v. State, 348 S.W.3d at 162 (wliere lineup procedure is not
unduly suggestive, identification is admissible). Points I, II, and III denied.

Audio Lineup

in Point IV, Defendant argues that the trial court erred in denying his motion to
suppress because the audio lineup procedure used by Detective Grif`fin was tmduly
suggestive, rendering the victims’ identifications unreliable. We disagree.

In addition to shovvilig the victims photographs of the live lineup, Detective
Griffiii presented the audio recordings of each suspect repeating phrases used in the
robbery. 'l`he position of each participant’s recording corresponded to his same position
in the lineup. Detective Griffin testified that he did it that way because in a live lineup,
each participant steps forward and repeats the phrases, and therefore the person viewing
the lineup sees and hears each participant in the same order. Each of the three victims
identified Defendant’s voice from the audio lineup. Defendant argues that the fact that
the participants were in the same position for both lineups rendered the audio lineup
procedure unduly suggestive

identifications made solely on the basis of a suspect’s voice are admissible. §
State v. Bolanos, 743 S.W.Zd 442, 445 (Mo. App. W.D. ]987) (ideiitification admissible
where victim viewed live lineup but identified defendant based on his voice). None of
the victims stated that they identified Defendant’s voice because it corresponded to the
photograph of Defendant they had already identified. Coinpare State v. Hornbuekle, 769

S.W.2d 89, 94-95 (Mo. banc 1989) (noting victim’s photographic identification should

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