State v. EalyState v. Ealy
Rоn O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Yavitch & Palmer Co., L.P.A., and Nicholas Siniff, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶ 1} Defendant-appellant, Andre T. Ealy, Jr. (“appellant“), appeals from his convictions in the Franklin County Court of Common Pleas on charges of aggravated robbery, felonious assault, kidnapping, and firearm specifications. Because we conclude that the trial court did not err by admitting evidence of the victim‘s pretrial identification of appellant, nor by denying appellant‘s motion for acquittal, and because we find that the verdicts were not against the manifest weight of the evidence, we affirm.
{¶ 2} On June 23, 2009, Steven Frank (“Frank“) was working as a pizza deliveryman and made a delivery to an apartment at the Hidden Bridge apartment
{¶ 3} Frank was struck in the elbow by one of the shots fired when the gun discharged. Emergency services responded to the scene and transported Frank to Mt. Carmel East hospital, where he was treated for the gunshot wound. Shortly thereafter, paramedics from the Columbus Divisiоn of Fire responded to a report of a drive-by shooting at the corner of Livingston Avenue and Lonsdale Road. The paramedics found appellant, who was suffering from a laceration wound to his thigh from a gunshot, and transported him to Mt. Carmel East hospital.
{¶ 4} While Frank and appellant were being treated at the hospital, a Columbus police detective asked Frank whether he would look at appellant and determine whether appellant was his assailant. After seeing appellant and hearing him speak, Frank indicated that appellant was the individual who robbеd him at gunpoint earlier that day. Appellant was tried before a jury on charges of aggravated robbery, felonious assault, and kidnapping, with firearm specifications attached to each charge. The jury convicted
{¶ 5} Appellant appeals from the jury verdicts, assigning four errors for this court‘s review:
Assignment of Error No. 1:
The trial court erred by permitting the introduction of Frank‘s unnecessarily suggestive and unreliable identification of Appellant when Detective Atwood only presented Appellant as a face to face suspect thereby violating Appellant‘s right to a fair trial under the Due Process [C]lause of the Fourteenth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
Assignment of Error No. 2:
Appellant‘s right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution was violated when trial counsel failed to raise the issue of the unnecessarily suggestive and unreliable identificatiоn perform[ed] by Detective Atwood.
Assignment of Error No. 3:
The trial court erred in denying Appellant‘s
Assignment of Error No. 4:
The Trial Court violated Appellant‘s right to Due Process as [g]uaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of thе Ohio Constitution by entering verdicts of [g]uilty, as the jury‘s verdict was against the manifest weight of the evidence.
{¶ 7} The pretrial identification occurred after Frank and appellant had each been transported to the hospital. Frank testified that, while he was being treated for his gunshot wound, police detectives told him that there was another individual in the hospital with а gunshot wound and asked whether Frank would attempt to identify whether that individual was Frank‘s assailant. The detectives conducted a “show-up” identification, by taking Frank to where appellant was being treated and asking whether appellant was the man who robbed him. Frank later testified that, when he saw appellant, he thought appellant was his assailant because appellant was “the same height and build and hair.” (Tr. Vol. I, 50.) However, Frank testified that, although he believed appellant was his assailant after seeing him, he “wasn‘t as sure as [the detectives] would have liked [him] to be.” (Tr. Vol. I, 49.) Frank then asked to hear appellant speak. The detectives
{¶ 8} In determining whether to admit pretrial identification evidence, a trial court must determine whether the identification procedure was unnecessarily suggestive and, if so, whether the identification was reliable despite the suggestive nature of the procedure. State v. Sharp, 10th Dist. No. 09AP-408, 2009-Ohio-6847, ¶ 14. We have previously held that a one-person “show-up” identification is inherently suggestive. State v. Gonzalez, 10th Dist. No. 10AP-628, 2011-Ohio-1193, ¶ 9; Sharp at ¶ 15. However, a show-up identification may still be admissible where the circumstances demonstrate that the identification is reliable. Id. “In determining the reliability of the identification, a court considers factors such as ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ ” Id. at ¶ 16, quoting Neil v. Biggers, 409 U.S. 188, 199-200 (1972). ” ‘Against these factors is to be weighed the corrupting еffect of the suggestive identification itself.’ ” Sharp at ¶ 16, quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
{¶ 9} Appellant argues that Frank could not positively identify him on sight and that Frank only identified appellant after hearing his voice. Appellant asserts that this voice identification was unnecessarily suggestive, arguing that the police should have used a “voice lineup,” citing State v. Waddy, 63 Ohio St.3d 424 (1992). We disagree with appellant‘s characterization of the trial testimony. Both Frank and Columbus Police Detective Kimberly Atwood (“Detective Atwood“) testified that Frank indicated that he
{¶ 10} In this case, we find that, whether the identification was based on seeing appellant or hearing his voice, the reliability factors weigh in favor of the triаl court‘s decision to admit the identification testimony. The robbery occurred in the early afternoon and Frank testified that it was a bright, sunny day. Frank testified that he noticed appellant and his accomplice approaching as he completed the pizza delivery. Appellant confronted Frank with a gun, took Frank‘s wallet and cell phone, and forced Frank to lead them to his car. Frank testified that, after he slammed the car door on appellant‘s hand and they began wrestling for control of the gun, they were “chest to chest, like looking right at each other.” (Tr. Vol. I, 35.) During thе course of the robbery, Frank heard appellant speak the equivalent of “six or seven paragraphs” of dialogue, speaking both to his accomplice and directly to Frank. (Tr. Vol. I, 50.) Frank testified that the entire incident lasted five to ten minutes. This evidence demonstrates that Frank had a good opportunity to view appellant at the time of the crime and a high degree of attention, especially when he was face-to-face with appellant as they wrestled for control of the gun.
{¶ 12} There was also a relatively short time between thе robbery and the identification, which weighs in favor of reliability. Paramedics from the Columbus Division of Fire were dispatched to the apartment complex at 1:32 p.m. Based on Frank‘s testimony that the robbery lasted five to ten minutes and that it took some time after the robbery ended to get anyone to open the door and call 911 for him, it appears that the robbery occurred shortly after 1:00 p.m. Frank arrived at the hospital at 2:01 p.m., and appellant arrived at the hospital at 2:28 p.m. Although the evidence presented at trial did not provide the precise time that Frank was asked to identify appellant, Frank testified that it occurred while he was still being treated. Thus, it appears that the identification occurred within a few hours of the robbery. Finally, we cannot determine how the accuracy of any prior description affects the reliability of the show-up identification because there was no evidence presented at trial regarding any description of his assailant that Frank may have given the police prior to identifying appellant in the hospital.
{¶ 13} Appellant asserts that the identification procedure was unduly suggestive because Frank wаs only shown a single suspect and because he heard only appellant‘s voice. Further, appellant argues that the identification was unnecessarily suggestive
{¶ 14} We conclude that the trial court did not commit plain error in admitting testimony regarding Frank‘s pretrial identification of appellant as his assailant. Appellant has failed to establish that the show-up identification рrocedure was unnecessarily suggestive or unreliable under the totality of the circumstances. Accordingly, appellant‘s first assignment of error is without merit and is overruled.
{¶ 15} In appellant‘s second assignment of error, he asserts that he was denied effective assistance of counsel because his trial counsel failed to object to or move to suppress the pretrial identification.
{¶ 16} The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. State v. Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-2749, ¶ 12, citing McMann v. Richardson, 397 U.S. 759, 771 (1970). Courts use a two-part test to evaluate claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-42 (1989). “First, the defendant must show that counsel‘s performance was deficient.” Strickland at 687. “Second, the defendant must show that the deficient performance prejudiced the defense.” Id. “To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.” Bradley at paragraph three of the syllabus.
{¶ 17} Generally, a trial attorney is not required to file futile motions. State v. Hillman, 10th Dist. No. 06AP-1230, 2008-Ohio-2341, ¶ 46. Failure to file a motion to suppress constitutes ineffectivе assistance of counsel only if, based on the record, the motion would have been granted. Id. Because we conclude that the identification was not unnecessarily suggestive and was reliable under the circumstances, a motion to suppress would have been denied. Thus, appellant‘s trial counsel was not ineffective for failing to file such a motion or otherwise object to the identification evidence.
{¶ 18} Accordingly, appellant‘s second assignment of error is without merit and is overruled.
{¶ 19} In his third assignment of error, appellant argues that the trial court erred in denying his motiоn for acquittal under
{¶ 20} “Because a
{¶ 21} Although appellant purports to challenge the sufficiency of the evidence, the arguments he offers on appeal address whether the evidence was credible, which goes to the issue of the weight of the evidence, not whether it was sufficient to establish the essential elements of the charged crimes. At trial, appellant‘s counsel did not dispute that the crimes had occurred but argued that the evidence was insufficient to establish that appellant was the individual who committed the crimes.
{¶ 22} With respect to the general issue of identity, we conclude that the evidence was sufficient to establish that appellant was the assailant who confronted Frank with a gun on June 23, 2009. Frank identified appellant as his assailant after seeing appellant in the hospital and hearing his voice. Frank also identified appellant again in the courtroom during the trial. Frank testified that during the course of the robbery, he knocked off
{¶ 23} In addition to Frank‘s testimony, the state called Paul Ellis (“Ellis“) as a witness. Ellis testified that he knew appellant from the neighborhood where they both lived. Ellis stated that he spoke with appellant after appellant had been released from the hospital. Ellis testified that appellant admitted to robbing a pizza deliveryman, admitted that there was a struggle during the robbery, and also admitted that both he and the deliveryman were shot during the robbery.
{¶ 24} Other evidence presented at trial also supported the testimony from Frank and Ellis. Appellant was treated for a gunshot wound to his leg, and the paramedic who transported appellant to the hospital testified that the wound was inconsistent with a drive-by shooting, which is how appellant claimed he was injured. Further, DNA tests were performed on the baseball cap recovered from the scene of the robbery. The results identified a mixture of DNA on the cap and indicated that appellant could not be excluded as a contributor to the DNA mixture. Although neither the gunshot wound nor the baseball cap conclusively link appellant to the robbery, they constitute circumstantial evidence in support of the testimony from Frank and Ellis. Viewing this evidence in a light most favorable to the prosecution, the jury could have found that appellant was the individual who committed the crimes charged.
{¶ 25} Further, we conclude that the evidence was also sufficient to establish the essential elements of each of the crimes charged.
{¶ 26} Appellant was charged with aggravated robbery under
{¶ 27} The evidence regarding the injury to Frank‘s elbow was also sufficient to sustain appellant‘s conviction on the chаrge of felonious assault. The statute defining felonious assault provides, in relevant part, that no person shall knowingly cause serious physical harm to another or cause physical harm to another by means of a deadly weapon.
{¶ 28} Appellant was also charged with kidnapping under
{¶ 29} Finally, appellant was charged with firearm specifications for each count. Under
{¶ 30} We find that the evidence presented at trial was sufficient to establish the essential elements of each of the crimes and specifications charged against appellant. Accordingly, the third assignment of error is without merit and is overruled.
{¶ 31} In his fourth assignment of error, appellant claims that the jury verdiсts were against the manifest weight of the evidence. “While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence‘s effect of inducing belief.” Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, citing Thompkins at 386. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). ” ‘The court, rеviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” Thompkins, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). This
{¶ 32} Appellant argues that the jury verdicts were against the manifest weight of the evidence because Frank‘s identification of appellant as his assailant was not reliable. However, as explained above, we find that the identification was reliable under the totality of the circumstances presented in this case. Appellant also claims that Frank‘s testimony was not credible because he initially told the police that his rent money was included in the amount the robbers stole from him but later retracted this statement. On cross-examination, Frank testified that he initially told the police that he probably had several hundred dollars in the wallet that appellant had stolen, including his personal rent mоney. Frank further testified that he later realized that he had not withdrawn his rent money from the bank and that it was not in his wallet at the time of the robbery. Frank testified that, following this realization, he told Detective Atwood that the stolen money did not include his personal rent money. Detective Atwood similarly testified that Frank initially stated that the stolen items included his rent money and that he subsequently contacted her to notify her that his rent money had not been stolen. Although appellant suggests that this issue casts doubt on Frank‘s testimony, we note that the jury was made aware of any inconsistency in Frank‘s account of the robbery. We cannot conclude that the jury clearly lost its way in determining that Frank‘s testimony was credible.
{¶ 33} Appellant further argues that the verdicts were against the manifest weight of the evidence because Ellis‘s testimony was inconsistent and contradictory and because Ellis received a reduced sentence in exchange for testifying. We acknowledge that Ellis‘s trial testimony was convoluted, particularly with regard to the issue of when Ellis first saw
{¶ 34} Ellis also testified that he entered a guilty plea on three counts of aggravated robbery in an unrelated case and that he received a reduced sentence in that case after agreeing to testify against appellant. Thus, the jury was made aware of the details of the plea agreement that Ellis made, and Ellis testified directly that he understood he would receive a favоrable sentencing recommendation in exchange for testifying truthfully in this case. The jury members were free to determine whether Ellis‘s testimony was credible in light of the consideration he received for testifying. See State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 30; State v. Thompson, 10th Dist. No. 07AP-491, 2008-Ohio-2017, ¶ 35.
{¶ 35} Appellant also argues that the DNA evidence from the baseball cap did not prove he was at the crime scene, only that he could not be excluded as someone who wore the cap at some point in time. However, a lack of physical evidence alone does not render a conviction against the manifest weight of the evidence. State v. Berry, 10th Dist. No. 10AP-1187, 2011-Ohio-6452, ¶ 20. Moreover, even if the jury disregarded the DNA evidence, it could still convict appellant on the basis of the testimony from Frank and Ellis.
{¶ 36} Finally, appellant argues that the verdicts were against the manifest weight of the evidence because his alibi for his injury was credible. Appellant claimed that he was the victim of a drive-by shooting. However, the state presented testimony casting doubt
{¶ 37} Finally, Detective Atwood testified that she was assigned to follow-up on the drive-by shooting report. She stated that aрpellant refused to respond to her attempts to contact him and that the case was closed for lack of cooperation. The jury was in the best position to weigh the credibility of these various witnesses and determine whether to believe appellant‘s claim that his injury resulted from a drive-by shooting, rather than from the robbery. In light of the conflicting evidence, we cannot conclude that the jury clearly lost its way in concluding that appellant‘s claim was not credible.
{¶ 39} For the foregoing reasons, appellant‘s four assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BRYANT and TYACK, JJ., concur.
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