State v. West
2012 Ohio 2758
Ohio Ct. App.2012Background
- Defendant Kevin West was convicted of aggravated murder with a firearm specification in Mahoning County Common Pleas Court.
- He moved to suppress identifications by three witnesses from photographic arrays; suppression motion was denied.
- Witnesses testified they identified West in photo arrays the evening of the shooting; some knew him prior.
- The shooting occurred in broad daylight; witnesses described seeing West chasing and shooting the victim.
- The court sentenced West to 30 years to life for aggravated murder plus firearm spec; court also purported to impose five years post-release control.
- On appeal, the court modified the sentence to remove post-release control as aggravated murder is an unclassified felony subject to parole; remainder of sentence stands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the pretrial identification unduly suggestive so as to require suppression? | State—identification not unduly suggestive; array had similar backgrounds and no compelling parity. | West—array was unnecessarily suggestive due to framing and appearance disparities. | No reversible error; array not unduly suggestive; identification admissible. |
| Was counsel ineffective for failing to subpoena witnesses at suppression hearing? | State—no reversible error since identification was reliable. | West—counsel failed to prove unreliability of identifications. | No reversible error; ineffective assistance not shown. |
| Is the verdict against the manifest weight of the evidence? | State—eyewitness identifications and conduct support verdict. | West—witness inconsistencies and bias imply miscarriage of justice. | Verdict not against the manifest weight; credibility issues for the jury. |
| Was post-release control improper for an aggravated-murder conviction? | State—post-release control authorized for all life-term cases. | Five-year post-release control imposed despite unclassified felony; improper. | Post-release control void; modify sentence to remove reference to post-release control; remainder remains. |
| What is the proper remedy for the improper post-release-control imposition? | State—remand for proper imposition or correction as per Fischer and Crockett. | West—remand unnecessary; simply excise post-release-control language. | Court modified judgment to eliminate post-release control and leave remaining sentence intact. |
Key Cases Cited
- State v. Waddy, 63 Ohio St.3d 424 (1992) (identification procedures—reliability under totality of circumstances)
- Neil v. Biggers, 409 U.S. 188 (1972) (factors for reliability of eyewitness identifications)
- State v. Gross, 97 Ohio St.3d 121 (2002) (photographic lineup not required to be nearly identical)
- State v. Murphy, 91 Ohio St.3d 516 (2001) (pretrial identification standards; reliability analysis)
- State v. Ishmail, 54 Ohio St.2d 402 (1978) (evidence outside the record not proper on appeal)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (unauthorized post-release control—remedy limited to void portion; rest remains)