518 S.W.3d 288
Mo. Ct. App.2017Background
- On Dec. 14, 2014, two witnesses (Hoffman and Lent) were threatened by a masked man with a gun who took a few dollars and fled in a burgundy Mercury Sable.
- Lent observed the assailant’s unmasked face and the Sable’s license plate during a brief pursuit and reported both to police.
- Detective Cork traced the plate to Davone White, observed White leaving his house toward a Sable wearing similar clothing, and prepared a six-photo photographic lineup using photos similar to White’s.
- Both witnesses independently identified White in the photo lineup; White was arrested, tried, and convicted of first‑degree robbery, attempted first‑degree robbery, and two counts of armed criminal action.
- The trial court sentenced White to 25 years after he rejected a 20‑year plea offer; at sentencing the court stated it generally imposes a higher sentence after trial so defendants "understand the consequences" of going to trial.
- Appeal: White argued (1) pretrial identification was impermissibly suggestive and (2) the sentence punished him for exercising his right to a jury trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of pretrial photographic identification | Police procedure produced reliable, non‑suggestive lineup based on license plate and description | Lineup was impermissibly suggestive (police had only age and hair), tainting out‑of‑court and in‑court IDs | Court held lineup was not impermissibly suggestive; identification admitted and Point I denied |
| Sentence enhancement for going to trial | Sentencing court may consider all proper factors (criminal history, harm to victims, report) | Court explicitly punished defendant for going to trial by imposing a greater sentence than plea offer | Court found comments showed impermissible reliance on trial choice; granted relief and remanded for resentencing |
Key Cases Cited
- Conrick v. State, 375 S.W.3d 894 (Mo. App. W.D. 2012) (standard for suppression review)
- Barriner v. State, 210 S.W.3d 285 (Mo. App. W.D. 2006) (consider suppression and trial records on review)
- Russell v. State, 462 S.W.3d 878 (Mo. App. E.D. 2015) (two‑step test for identifying suggestiveness and reliability)
- Humphrey v. State, 789 S.W.2d 186 (Mo. App. E.D. 1990) (lineup not suggestive where witnesses observed getaway car and plate traced to defendant)
- U.S. v. Boston, 494 F.3d 660 (8th Cir. 2007) (photographic lineup with similar photos and random order not impermissibly suggestive)
- Lindsey v. State, 996 S.W.2d 577 (Mo. App. W.D. 1999) (sentencing requires individualized assessment)
- Greer v. State, 406 S.W.3d 100 (Mo. App. E.D. 2013) (court prohibited from using sentencing to punish trial exercise)
- Sales v. United States, 725 F.2d 458 (8th Cir. 1984) (a judge may not base sentence on defendant’s exercise of right to trial)
- Barton v. State, 240 S.W.3d 693 (Mo. banc 2007) (enhancement for exercising trial right is improper)