                                          In the
                          Missouri Court of Appeals
                                   Western District
DE'ANDRE J. COTHRAN,                          )
                                              )
                  Appellant,                  )   WD76244
                                              )
v.                                            )   OPINION FILED: July 15, 2014
                                              )
STATE OF MISSOURI,                            )
                                              )
                 Respondent.                  )

               Appeal from the Circuit Court of Jackson County, Missouri
                          The Honorable Sandra Midkiff, Judge

Before Division Four: Alok Ahuja, Chief Judge, Presiding, Cynthia L. Martin, Judge and
                        Wayne P. Strothmann, Special Judge


          De'Andre Cothran ("Cothran") appeals the motion court's denial of his Rule 29.15

motion. Cothran argues on appeal that the motion court clearly erred in denying his

motion because he established that trial counsel provided ineffective assistance of

counsel by failing to move to suppress out-of-court and in-court identifications. We

affirm.
                                Factual and Procedural Background1

         On June 28, 2007, Cothran robbed a Family Dollar store in Kansas City. He

pointed a gun at the cashier and demanded money. The cashier called for the assistant

manager to come and open the register. When Taquela Cooper ("Cooper"), the assistant

manager, came to the register, she realized that she did not have her register keys and

called for the store's manager, Johnny Harper ("Harper").

         Harper came out of the office and tossed Cooper his keys. Cooper opened the

register and put the money into a Family Dollar bag. She then began to cry. Cothran told

her to stop crying, and in doing so, briefly exposed his face by pulling down the shirt that

had been covering it. Because the store's safe had a five minute delay, Cothran just took

the money from the register and left. After waiting a few minutes, Harper went outside to

see where Cothran went. He found Cothran near the store's dumpster. Cooper joined

Harper and they both saw Cothran take off his jacket and run down the street.

         When the police officer responding to the 911 call arrived, Harper told him where

Cothran had gone and gave a description. The officer found Cothran, and with gun

drawn, commanded him to stop and get on the ground. Cothran lied, saying that he was a

juvenile, and then ran. After a short manhunt, Cothran was arrested. He lied again,

giving a false name and date of birth. When they searched Cothran, officers found over

$200, some of it in a Family Dollar bag. Police officers also secured the area and

searched for other evidence. They found some clothes and a gun.


         1
         We view the evidence presented at trial in the light most favorable to the verdict. Dickerson v. State, 269
S.W.3d 889, 890 (Mo. banc 2008).

                                                         2
      A police officer drove Cooper by Cothran and she identified him as the robber.

Cooper identified Cothran while he was handcuffed and after seeing officers take him out

of a paddy wagon. Cothran was then taken back to the store for the other witnesses to

identify. Each witness individually viewed Cothran. Like Cooper, Harper identified

Cothran as the robber. He also saw Cothran in handcuffs and saw officers take him out

of a paddy wagon. Downtown, a detective showed Harper and Cooper a single photo of

Cothran. They both, again, individually identified Cothran as the robber. Cothran was

charged with first degree robbery and armed criminal action.

      After a jury trial, Cothran was convicted on both charges. He was sentenced to

concurrent prison terms of twelve years and three years, respectively. Cothran appealed

his conviction, which we affirmed.2 Cothran then filed a timely Rule 29.15 motion. His

amended motion alleged that trial counsel provided ineffective counsel by failing to move

to suppress Harper and Cooper's identifications. The amended motion also incorporated

Cothran's pro se claims. Following an evidentiary hearing, the motion court denied

Cothran’s motion.

      Cothran appeals.

                                         Standard of Review

      In a Rule 29.15 post-conviction case, we review the motion court’s findings of fact

and conclusions of law and determine whether they are clearly erroneous. Moore v.

State, 328 S.W.3d 700, 702 (Mo. banc 2010). We will only find the findings and

conclusions clearly erroneous if, after reviewing the entire record, we are left with "a

      2
          State v. Cothran, 345 S.W.3d 899 (Mo. App. W.D. 2011).

                                                     3
definite and firm impression that a mistake has been made." Id. We presume, however,

that they are correct. Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc 2013). Further,

the movant has the burden of proving all "claims for relief by a preponderance of the

evidence." Id. (quoting Rule 29.15(f)).

                                          Analysis

       Cothran's single point on appeal is that the motion court clearly erred in denying

his Rule 29.15 motion because he established that trial counsel provided ineffective

assistance of counsel by failing to move to suppress Harper and Cooper's out-of-court and

in-court identifications. For an ineffective assistance of counsel claim to succeed, a

movant must show that: (1) counsel's performance was deficient by falling below "an

objective standard of reasonableness;" and (2) he or she was prejudiced by counsel's

deficient performance. Taylor v. State, 382 S.W.3d 78, 80-81 (Mo. banc 2012) (citing

Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). We may address the Strickland

prongs in either order and if one is dispositive, we need not consider the other. Id. at 81

(citing Strickland, 466 U.S. at 697).

       In claiming ineffective assistance of counsel, Cothran argues that trial counsel's

failure to move to suppress Harper and Cooper's identification testimony prejudiced him.

A movant has been prejudiced when a reasonable probability exists that, but for counsel's

deficient performance, the outcome of the trial would have been different. Id. (citing

Strickland, 466 U.S. at 694). A reasonable probability means a probability sufficient to

undermine confidence in the trial’s outcome. Id. Cothran contends that trial counsel's

motion to suppress the identification testimony would have likely been sustained,

                                             4
creating a reasonable probability that the result of his trial would have been different. To

determine whether Cothran's claim of prejudice has merit, we must determine whether a

motion to suppress the identification testimony, about which he complains, would have

been successful.

        When reviewing the admissibility of identification testimony, we first discern

whether the identification procedure was impermissibly suggestive. State v. Hornbuckle,

769 S.W.2d 89, 93 (Mo. banc 1989). If the procedure is suggestive, we then consider

how it impacted the identification's reliability.    Id.   Reliability is the "'linchpin' in

determining the admissibility of identification testimony."        Id. (citing Manson v.

Brathwaite, 432 U.S. 98, 114 (1977)).        However, unless we find the identification

procedure to have been impermissibly suggestive, we need not examine the

identification's reliability. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990).

        Identification testimony is only subject to exclusion when the procedures used

were so suggestive that they created “a very substantial likelihood of irreparable

misidentification."   Hornbuckle, 769 S.W.2d at 93.          In general, an identification

procedure is unduly suggestive if the identification occurs because of the procedure or by

police action and not because of the witness's recall. State v. Glover, 951 S.W.2d 359,

362 (Mo. App. W.D. 1997). Stated differently, identification procedures are not per se

unduly suggestive, but must be shown to be so under the circumstances unique to each

case.

        Cothran argues that the identification procedures used in this case were unduly

suggestive because both Harper and Cooper identified him: (1) while he was handcuffed;

                                             5
(2) after they saw officers take him out of a paddy wagon; and (3) after the police had

told them that someone was in custody and had asked them to determine if that person

was the robber. However, it is not enough that Cothran was identified under these

circumstances. Police "show-ups," like the ones used in this case, are not generally

unduly suggestive. State v. Williams, 717 S.W.2d 561, 564 (Mo. App. E.D. 1986); State

v. Moore, m, 467 (Mo. App. E.D. 1996) (holding that a show-up identification was valid

even though the suspect was handcuffed). We have upheld identifications made while

the suspect was in a paddy wagon. See State v. Robinson, 849 S.W.2d 693, 696 (Mo.

App. E.D. 1993); and State v. Smith, 465 S.W.2d 482 (Mo. 1971). Moreover, we have

concluded that identifications are not unduly suggested where the police tell a victim or

witness that they have a suspect in custody and available for identification. State v.

Clark, 809 S.W.2d 139, 142 (Mo. App. E.D. 1991).

       Cothran fails to direct us to any evidence in the record supporting the conclusion

that the procedures used in this case resulted in his identification, and were thus unduly

suggestive. In fact, the evidence suggests to the contrary. Cooper testified that the police

only told her that they had someone in custody and asked her if he was the robber. She

was not told to pick someone and was not given instructions. Cooper further testified that

the only reason she identified Cothran was because he was the robber. Likewise, Harper

testified that he was only instructed by police to take a good look. He was not told that

Cothran was the robber, but only asked if he was. Harper also testified that he identified

Cothran because he was the robber. Finally, the officer that drove Cooper by Cothran

testified that she did not tell Cooper to pick anyone out. She did not instruct or coach

                                             6
Cooper. The officer only told Cooper to look on both sides of the street and to let her

know if the suspect was the robber. Therefore, we find that neither the conduct of the

police, nor the procedures employed, were unduly suggestive.

       Even were we to conclude that the identification procedures were unduly

suggestive, Harper and Cooper's identification testimony was reliable. Reliability is

determined by looking at the totality of the circumstances. Hornbuckle, 769 S.W.2d at

93. In doing so, we consider the following factors:

       (1) the opportunity of the witness to view the criminal at the time of the
       crime; (2) the witness'[s] degree of attention; (3) the accuracy of the
       witness'[s] prior description of the criminal; (4) the level of certainty
       demonstrated by the witness at the confrontation; and (5) the length of time
       between the crime and the confrontation.

Id. (citing Manson, 432 U.S. at 114). We weigh these factors against a suggestive

procedure's impact. Id.

       Here, both Harper and Cooper were able to observe Cothran in the store during the

robbery for two or three minutes. Although his face was covered, except for when he

exposed it while speaking to Cooper, both Harper and Cooper were able to see what

Cothran was wearing. Immediately after the robbery, and just outside the store, both

Harper and Cooper saw Cothran take his jacket off and leave the scene. They were only

about twenty feet away from Cothran when they saw him outside in the daylight. While

both Harper and Cooper testified that they looked at the gun because they were afraid,

they also testified that they watched Cothran.

       Additionally, when they saw him leave the scene, both Harper and Cooper saw

Cothran in a white shirt and his hair was loosely or raggedly braided. When he was

                                             7
spotted by the responding officer, Cothran had on a white shirt. Although the officer

testified that Cothran had pigtails when he was arrested, Harper's description still allowed

the officer to find and arrest Cothran. Harper and Cooper were also certain when they

identified Cothran. Finally, Harper and Cooper identified Cothran the same day as the

robbery. We conclude that Harper and Cooper's identification testimony was reliable.

         Under the circumstances in this case, the identification procedures employed were

not suggestive and in any event the identification testimony was reliable. It is thus

implausible that a motion to suppress the identifications would have been sustained. 3

Cothran has not, therefore, established that he was prejudiced by trial counsel's failure to

file a motion to suppress his out-of-court and in-court identifications by Cooper and

Harper.

         Moreover, regardless of the admission of the identification testimony, the

remaining evidence establishing Cothran's guilt is overwhelming. He was found near the

scene of the crime, he fled from police officers, and he lied to police, by initially telling

them he was a juvenile and by giving them a false name and date of birth. State v.

Robertson, 262 S.W.3d 285, 288 (Mo. App. W.D. 2008) ("'[P]resence of the defendant at

the scene of the crime and his flight may be considered as indicia of guilt and will

         3
           On this point we also note that trial counsel testified that he knew the case law on suppressing
identification testimony was not promising for his client. He testified that he was unable to discover any facts to
distinguish Cothran's case from prior cases. When reviewing the reasonableness of counsel's conduct, we are
required to be deferential. Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987) (citing Strickland, 466 U.S. at
689). A strong presumption exists that counsel's performance was reasonable and effective. Johnson, 406 S.W.3d
at 899. To defeat this presumption, a movant must point to "specific acts or omissions of counsel that, in light of all
the circumstances, fell outside the wide range of professional competent assistance." Id. Because Cothran cannot
establish that a motion to suppress would have been granted, Cothran has not established that trial counsel's conduct
fell outside the wide range of professional competent assistance, and thus the performance prong of the Strickland
standard. State v. Maddix, 935 S.W.2d 666, 672 (Mo. App. W.D. 1996) ("[C]ounsel will not be deemed ineffective
for failing to file a meritless motion to suppress.").

                                                           8
support conviction when coupled with other circumstantial evidence showing active

participation in the offense.'"); State v. Smith, 11 S.W.3d 733, 737 (Mo. App. E.D. 1999)

("False statements to police can give rise to an inference of guilty behavior."). When

Cothran was arrested and searched, he was carrying over $200 in cash, some of it in a

Family Dollar bag. Robertson, 262 S.W.3d at 288 ("[E]vidence such as defendant’s

possession of recently stolen property from a burglarized place supports an inference of

guilt as to burglary and stealing offenses."). The police also found clothes in the area

matching those worn by the robber. Some of these clothes were matched to Cothran

through DNA evidence. Finally, a gun was found nearby, which both Harper and Cooper

identified as the gun that was used during the robbery. The DNA found on the gun's

trigger was a conclusive match to Cothran. There is no reasonable probability that the

result of Cothran's trial would have been different had trial counsel successfully moved to

suppress the identification testimony.

       Cothran has not sustained his burden to establish that he was prejudiced by

counsel's failure to file a motion to suppress his out-of-court and in-court identifications.

Cothran's point relied on is denied.

                                         Conclusion

       The motion court's judgment is affirmed.



                                           __________________________________
                                           Cynthia L. Martin, Judge


All concur

                                             9
