State v. Savage
2019 Ohio 4859
Ohio Ct. App.2019Background
- Eddie Savage was charged with robberies at three cell-phone stores over three weeks; he was acquitted of two MetroPCS robberies and convicted for the Boost Mobile robbery with merged robbery/aggravated-robbery convictions and a gun specification.
- Boost Mobile clerk Woods identified Savage in a photo lineup and testified about two men who displayed a gun, forced him to empty the register and display cases, unplugged cameras, and stole phones; Woods had seen only part of the gun handle.
- Pretrial photo lineups were used for three witnesses; Savage moved to suppress identifications on grounds of statutory noncompliance (R.C. 2933.83) and undue suggestiveness.
- At trial, Savage objected to joinder of offenses, claimed prosecutorial misconduct (questions implying his silence, comments about a codefendant, and alleged misstated evidence), and challenged the sufficiency of the sentence.
- The trial court denied suppression and severance (defense waived renewal of severance motion at trial), sustained a specific objection to a question about Savage’s silence and gave curative instructions, and sentenced Savage to 11 years plus a consecutive 3-year gun specification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sentence not supported by record | State: sentence within statutory range and court considered factors | Savage: trial court erred by imposing more-than-minimum sentence without record support | Held: Affirmed — record shows court considered criminal history, nature of offense, and victim impact; no clear-and-convincing lack of support shown. |
| Joinder of unrelated offenses | State: offenses were part of similar course of conduct; evidence for each admissible and distinct | Savage: joinder prejudiced him because offenses were unrelated and evidence weak | Held: Affirmed — defendant waived renewal of severance motion; no prejudice (jury acquitted on two counts). |
| Cumulative prosecutorial misconduct | State: comments were within bounds; isolated statements corrected by court; evidence supported prosecutor’s remarks | Savage: prosecutor elicited testimony about his post-arrest silence, invited inferences from accomplice’s invocation of Fifth, and misstated evidence | Held: Affirmed — isolated references were brief, objection sustained, curative instructions given; no denial of fair trial. |
| Suppression of pretrial photo identifications | State: lineups complied or noncompliance goes to weight, not admissibility; evidence admissible | Savage: lineups were unduly suggestive and violated R.C. 2933.83 statutory procedures; Woods was influenced by media footage | Held: Affirmed — statutory noncompliance affects weight and jury instruction under R.C. 2933.83, not automatic suppression; alleged suggestiveness arose from non-state action (media) so admissibility was proper. |
Key Cases Cited
- Marcum v. State, 146 Ohio St.3d 516 (clarifies appellate standard for reviewing felony sentences)
- Schaim v. Kaiser, 65 Ohio St.3d 51 (joinder prejudice when offenses are unrelated and evidence weak)
- Torres v. State, 66 Ohio St.2d 340 (joinder prejudice analysis)
- Lott v. State, 51 Ohio St.3d 160 (test for prosecutorial misconduct: improper + affecting substantial rights)
- Keenan v. State, 66 Ohio St.3d 402 (prosecutorial misconduct must deprive defendant of fair trial)
- Leach v. State, 102 Ohio St.3d 135 (admission of defendant’s postarrest silence as substantive evidence violates Fifth Amendment)
- Neil v. Biggers, 409 U.S. 188 (due-process standard for suppression: identification procedure must be impermissibly suggestive with substantial likelihood of misidentification)
- Adams v. Ohio, 144 Ohio St.3d 429 (distinguishes suggestiveness from non-state action; reliability pertains to weight)
- Burnside v. State, 100 Ohio St.3d 152 (appellate review of suppression: accept trial court’s factual findings if supported, review legal conclusions de novo)
- Dinsio v. State, 176 Ohio St. 460 (prosecutor may not continue questioning to create innuendo after witness invokes Fifth)
- Garner v. State, 74 Ohio St.3d 49 (presumption that juries follow curative instructions)