Foster v. State
2011 Mo. App. LEXIS 1227
| Mo. Ct. App. | 2011Background
- On Aug. 29, 2009, Mimbs was followed, robbed at gunpoint, shot in the arm, and identified Foster as the shooter at hospital and in a subsequent lineup.
- Foster, previously on the no-trespass list for Nico Terrace Apartments, had his photo disseminated to police; a mugshot was shown to Mimbs shortly after the incident.
- Mimbs identifications were made at the hospital from the mugshot and later in a six-photo lineup that included the same mugshot.
- Foster moved to suppress the identifications; the trial court denied the motion; the defense did not timely object to Mimbs' trial testimony about identifications.
- At trial, prosecutorial remarks referenced Foster’s violence and police knowledge of the suspect; Foster was convicted of first-degree assault, armed criminal action, and attempted first-degree robbery and sentenced to consecutive terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of identifications | Foster claims pre-trial procedures were unduly suggestive. | State contends procedures were not unduly suggestive and identification reliable. | Not plain error; procedures not unduly suggestive; identifications admissible. |
| Mistrial denial after suggestive testimony | Stricken testimony about other incidents prejudiced Foster; mistrial warranted. | Objection sustained, testimony struck, jury instructed to disregard; no mistrial needed. | Not plain error; no warrant for mistrial. |
Key Cases Cited
- State v. Williams, 277 S.W.3d 848 (Mo. App. E.D. 2009) (standard for preserving/ reviewing suppression rulings)
- State v. Chambers, 234 S.W.3d 501 (Mo. App. E.D. 2007) (two-step test for identifications)
- State v. McElvain, 228 S.W.3d 592 (Mo. App. W.D. 2007) (single-photo identification not per se unduly suggestive)
- State v. Allen, 274 S.W.3d 514 (Mo. App. W.D. 2008) (repeat use of mugshot in lineup not per se unduly suggestive)
- State v. Rhodes, 829 S.W.2d 41 (Mo. App. E.D. 1992) (curative measures can remove prejudice from stricken testimony)
- State v. Stewart, 296 S.W.3d 5 (Mo. App. S.D. 2009) (prejudice must be shown by specific record-based references)