 

In the Mtssouri Court of Appeals
Eastern District

DIVISION THREE
STATE OF MISSOURI, ) ED100066
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. L0uis
v. ) ll22~CR00238-01
)
TRAVIS MOOREHEAD, ) Honorable John F. Garvey
)
Appeilant. ) FiIed: August 19, 2014

introduction
Travis Moorehead (Mooreliead) appeals the trial cour“t’s entry of judgment and sentence
upon a jury’s verdict finding him guilty of robbery in the first degree On appeai, he asserts the
trial court erred in overruling his motion to strike a venireperson and in admitting identification
evidence We affirrr;.
Background
The State of Missouri charged Moorehead as a prior offender with the class A felony of
first-degree robbery,l stemming from the following incident On the evening of Jaiiuary 13,
201], Nick Walters (Victim) was delivering pizza when he was approached by two men. One
man, whom Victim later identified as Moorehead, held a large, semiautomatic handgun, which

Victim believed to be real, and demanded Victim’s money. Priot' to trial, Moorehead filed a

‘ Tlie State also charged Mooreliead \.vitli the ciass D felony of resisting arrest; however, the State later filed a nolle
prosequi on that charge, electing not to proceed

motion to suppress Victim’s identification of Moorehead arguing the circumstances of the
identification were inherently suggestive and conducive to mistaken identity. After a pre-trial
hearing, the trial court denied the motion.

At triai, during voir dz`r'e, venireperson Mr. Peck stated he was a retired deputy sheriff for
the City of St. Louis. He had worked as a deputy for eighteen years and had been retired for
three months. He remained friends with several deputies and knew people who worked for the
St. Louis Metropolitan Police Department, although not the witnesses in this case. Peck stated he
would have an open mind regarding the testimony of police officers Defense counsel moved to
strike Peck based on his former career as a sheriff" s deputy and ciose connection with law
enforcement officers, arguing that although Peck had stated he could be fair, it was better
practice to fill the jury panel with persons who are not police officers The trial court overruled
his inotion, stating that Peck was retired, not active; he had been a sheriffs deputy, not a police
officer; and he did not know any of the endorsed witnesses

F or the State, Victixn testified that during the robbery the gunman stood about two arm’s
iengths, or approximately six feet, from Victirn. The gunman was wearing a hooded jacket, and
although the hood was up, nothing was obscuring his face. Victim stated he focused on the
gunman’s face so he would be able to describe it to police later. Approximately half an hour
after he reported the crime, the police brought three men for him to view in a “show-up” type
lineup (show-up). They brought all three men in marked police cars, had them exit the vehicie,
and then shone a light on their faces for Victim to identify. Victim viewed each suspect
separately as they arrived. Victim did not recognize the first two, telling the police he "[would
not] make a positive ID unless [he] knew for sure." He then identified the third suspect,

Moorehead, as the gunman with 90 percent certainty after recognizing his facial features. Victim

stated that during the identification, Moorehead was standing about ten feet away from him in
liandcuffs.

Officer Benjamin Lacy testified that after he arrested Moorehead and advised him of his
Miranda rights, but before Victim identified Moorehead as the gunman, Moorehead admitted to
having committed the robbery and stated he had left the gun in the residence of the other man
involved in the robbery, identified as Melvin Thomas. Officer Lacy then transported Mooreliead
to where Victim was for the show-rlp, and Victim positively identified Moorehead as the
gunman. Ofticer Lacy did not tell Victim prior to the show-up that Mooreliead had confessed,
but simply asked Victim if he recognized Mooreliead. In addition, Officer Steve Schwerb
testified that based on the information given by Mooreliead, he conducted a search of 'l`homas’s
residence, where he discovered a repiica gun. Victim identified the replica gun as the weapon
used during the robbery.

Moorehead presented an alibi defense. After the trial, the jury returned a verdict of guilty
on the charge of robbery in the first degree, and the trial court sentenced Moorehead to twenty
years in the Missouri Department of Corrections. This appeal follows.

Discussion
m

in his first point on appeal, Mooreliead argues the trial court erred in overruling his
motion to strike venireperson Peck for cause because, due to Peck’s former career as a slieriff’s
deputy, he was unable to fairly and impartially deliberate on Moorehead’s defense involving the
issue of police credibility. We disagree.

The trial court has wide discretion in determining the qualifications of a prospective juror

and we will not disturb the court’s ruling on a challenge for cause absent an abuse of that

discretion. State v. Garvey, 328 S.W.?>d 408, 414 (Mo. App. E.D. 2010). We will find an abuse
of discretion only when the voir dire permitted does not allow for the discovery of bias,
prejudice, or partiality State v. Mathis, 204 S.W.3d 247, 256 (lVIo. App. E.D. 2006). Reversible
error occurs only where both the record reflects an abuse of discretion and the defendant can
demonstrate a real probability that he or she was prejudiced by the abuse. l;d.

"The purpose of voir dire is to discover bias or prejudice in order to select a fair and
impartial jury." State v. Gilbert, 103 S.W.Bd 743, 746 (l\/Io. banc 2003). Thus, the essential
question before the trial court on a challenge for cause is whether the venireperson unequivocally
indicated an ability to evaluate the evidence fairly and impartially State v. Groiidman, 190
S.W._°>d 496, 498 (Mo. App. W.D. 2006). A venireperson’s qualifications are not determined by
a single response, but rather from the entire voir dire examination.. State v. Deck, 303 S.W.3d
527, 535 (Mo. banc 2010). lf the voir dire responses indicate a possible bias but upon further
examination that venireperson gives unequivocal assurances of impartiality, the mere possibility
of prejudice will not disqualify the rehabilitated venireperson. Grondman, 190 S.W.?)d at 498.

Here, the record shows that Peck stated he was a retired sheriff’ s deputy; however,
"[s]tanding alone, former affiliation with law enforcement is not ground[s] for challenge for
cause." State v. Williams, 650 S.W.Zd 642, 643 (l\/Io. App. E.D. 1983); State v. Petty, 610
S.W.Zd 126, 127 (Mo. App. E.D. 1980) ("[t]he ultimate question is what evidence is there to
show more than a former affiliation with law enforcement"). To strike a venireperson for cause,
there must be evidence of bias. § Grondman, 190 S.W.?>d at 498. Peck did not indicate that
his former career would impede his ability to evaluate the evidence fairly and impaitially; rather,
when asked if he would give more weight to the testimony of police officers, he responded that

he would have an open 1nind. Further, although Peck stated he knew many deputies and police

officers, nierely knowing police officers is not grounds to strike for cause when the venireperson
does not know the State’s witness testifying in the particular case and has not indicated bias in
favor of law enforcement office1's. § Willianis, 650 S.W.?.d at 643; c_f @y, 610 S.W.2d at
127 (reversible error occurred when two jurors were former police officers and both personally
knew State’s witness). Here, Peck did not know the testifying officers, and his responses showed
he could be fair and impartial. The trial court did not abuse its discretion in denying
Moorehead’s motion to strike Peck for cause.

Moreover, Moorehead failed to demonstrate prejudice from any alleged error in Peck’s
inclusion on the jury. S_ee_ _M_a_tl_i_i_s_, 204 S.W.3d at 256. Even if Peck were biased in favor of the
testimony of police officers, conviction here did not depend on the testimony of police officers.
ln addition to Officer Lacy’s testimony of Moorehead’s confession, Victim testified that
Moorehead was the gun1nan. Victitn’s testimony alone would have been sufficient for a jury to
convict Mooreliead. State v. Byrd, 423 S.W.3d 882, 885 (Mo. App. E.D. 2014) (testimony of
single witness is sufficient to establish identity of defendant); State v. Taylor, 373 S.W.3d 513,
518 (Mo. App. E.D. 2012) (it is within jury’s province to decide credibility and weight of
witness’s testimony in resolving conflicts in evidence).

Point denied.

l

111 his second point on appeal, Moorehead argues the trial court erred in admitting the
evidence of Victirn’s out-of-court and in-court identifications of Moorehead, because the out-of-
court identification procedure was so unduly suggestive as to create a substantial likelihood of

misidentification and to render the identification unreliable. We disagree

 

The trial court has broad discretion in determining the admissibility of evidence. Staétev_;
 , 207 S.W.3d 24, 42 (lvlo. banc 2006). We review the trial court’s admission of evidence
following a ruling on a motion to suppress to determine whether there is substantial evidence
supporting its decision, and we will affirm unless the ruling was clearly erroneous. l
lh_c)_ma§, 407 S.W.3d l90, 194-95 (Mo. App. E.D. 2013).

“Tlie test for the admission of identification testimony is two-pronged." Ld. 'l`he first
prong considers whether the pre-trial identification procedure was impermissively suggestive.
Only if the answer is yes do we consider the second prong, which is to measure the impact the
suggestive procedure had upon the reliability of the identification made by the witness M:; _s*e§
_al_sg)_ State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990) ("[w]hile reliability is the lynch-pin
in determining the admissibility of identification testimony,  [appellant] must clear the
suggestiveness hurdle before procuring a reliability review") (internal quotation marks and
citations omitted). An out-of-court identification can be unduly suggestive if the identification
proceeds not from the witness’s recollection of first-hand observations, but from the procedures
or actions of the police conducting the identification. State v. Floyd, 347 S.W.3d 115, 125 (l\/Io.
App. E.D. 2011). if the procedure is not unduly suggestive, the out-of-court and iii-court
identifications are admissible.

Moorehead argues that the identification procedure here was unduly suggestive because
the show-up gave Victim the impression that Moorehead was present at the area of the crime, the
police transported l\/loorehead to the show-up in a ntarked police vehicle, Moorehead was
handcuffed during the identification, and Victim identified Moorehead after failing to identify

the first two subjects.

Missotlri courts have routinely held that show-ups are acceptable if properly
administered. §§ State v. Blanchard, 920 S.W.2d 147, 150 (Mo. App. E.D. 1996). A show-up
is not impermissively suggestive as long as the police do not unduly pressure the witness to make
a positive identification. l_d. lt is not impermissively suggestive for police to present a single
suspect for identification shortly after the crime occurred, in or near a police vehicle, even when
the suspect is in handcuffs, particularly when the police make no overt remarks concerning the
subject’s identify. State v. Murray, 428 S.W.3d 705, 710 (Mo. App. E.D. 2014); 1
Williams, 7l7 S.W.2d 561, 563 (l\/lo. App. E.D. 1986); State v. Johnson, 628 S.W.2d 904, 907
(Mo. App. E.D. 1982).

Our review of the record shows that the identification procedure was not unduly
suggestive; rather, Victim positively identified Moorehead from his recollection of first-hand
observations, and not from any actions of the police conducting the identification §§ §l_o_ygl_,
347 S.W.3d at 125. The police brought several suspects to Victim. They did not tell Victim
whom to select, but merely asked him if he recognized any suspect. Victim stated he “[would
not] make a positive lD unless [he] knew for sure" and then identified Moorehead as the
gunman, based on his recognition of Moorehead’s facial features During the crime, Mooreliead
was standing at approximately two arm’s lengths from Victim, and although Moorehead was
wearing a hoodie, it did not obscure his face.

Without a record of suggestive identification procedures, there is no need to question the
reliability of Victim’s out-of-court and in-court identification S_ee_ _Y_i_i;_i§_c_;)_p_, 800 S.W.2d at 446.
The trial court did not err in overruling the motion to suppress and in admitting the identification
evidence.

Point denied.

