State v. FriersonState v. Frierson
{¶1} Defendant-appellant, Ersa Frierson, appeals his conviction. He raises six assignments of error on appeal:
- Trial counsel was ineffective when he failed tо challenge the single photo identification of the appellant as the alleged offender.
- Trial counsel was ineffective when he failed to object to critical hearsay evidence that was used to connect him to the crime alleged.
- Counsel was ineffective when he failed to request closing arguments.
- The appellant was not provided the effective assistance of counsel where his lawyer failed to obtain the assistance of any eyewitnesses identification expert.
- Apрellant‘s conviction for drug trafficking is against the manifest weight of the evidence where his identification as the suspect was made under highly questionable and [sic] circumstances and in violation of Ohio
R.C. 2933.83 . - The trial court‘s verdict of guilty on once [sic] count of drug trafficking should be set aside as the trial court‘s verdict is inconsistent with its verdict on the other two counts.
{¶2} Finding no merit to his appeal, we affirm.
I. Procedural History and Factual Background
{¶3} The Cuyahoga County Grand Jury indicted Frierson with one count of trafficking in violation of
{¶4} On April 15, 2016, Detective Mаtos of the Cleveland Police Department‘s Vice Unit organized a drug sale between a confidential informant and a suspect known as “D.” The sale was set to take place around 7:00 p.m. near West 116th Street and Lorain Avenue in Cleveland. After searching him for contraband, Detective Matos dropped off the informant, who was wearing a wire and was provided with “buy money” to purchase the drugs, near that location and then took a covered position nearby. Other officers from the Cleveland Police Dеpartment, including Detectives Duller and Pitts, were also nearby the sale location to effectuate a “take down” and arrest the suspect once the sale was complete.
{¶5} Detective Matos testified that the informant entered a gray minivan to complete the sale and then returned to her vehicle with a rock of crack cocaine. On cross-examination, Detective Matos explained that because the suspect fled the scene, officers were not able to acсount for the “buy money” used to purchase the crack cocaine. She testified that she never saw the driver of the minivan, but was able to record the van‘s license plate number.
{¶6} Detective Duller testified that after Detective Pitts and he, who were in the same vehicle, received confirmation that the sale was complete, they proceeded to the suspect‘s location. As the detectives came to an intersection on West 117th Street,
{¶7} Detective Pitts testified that as he approached the intersection on West 117th Street, the minivan made a left-hand turn going between 35 to 45 m.p.h. and that he got a “real good look” at the driver, even though it happened quickly. Detective Pitts stated that he recognized the driver, but could not remember his name at the time. He testified that officers terminated the pursuit a short time later for safety purposes.
{¶8} Detective Matos testified that after the car chase, she searched through the Ohio Law Enforcement Gateway (“OHLEG“), the Cleveland Police Department‘s record-management system, with the minivan‘s licеnse plate information. She testified that the minivan was registered to a woman and, after searching that woman‘s personal information, discovered that she and Frierson were acquaintances. Detective Matos testified that she also searched Lexus Nexus for information connected to the phone number that the confidential informant used to contact the suspect. She testified that the phone number was registered to a different woman who listed the same address that was listed for Frierson.
{¶9} Detective Mаtos testified that she then searched Frierson through OHLEG,
{¶10} The state then rested its case, and Frierson moved for directed verdict under
{¶11} The court found Frierson not guilty of drug trafficking in violation of
{¶12} It is from this judgment that Frierson now appeals.
II. Law and Analysis
A. Ineffective Assistance of Counsel
{¶13} The defendant carries the burden of establishing a claim of ineffective assistance of counsel on appeal. State v. Corrothers, 8th Dist. Cuyahoga No. 72064, 1998 Ohio App. LEXIS 491, *19 (Feb. 12, 1998), citing State v. Smith, 3 Ohio App.3d 115, 444 N.E.2d 85 (8th Dist.1981). To gain reversal on a claim of ineffective assistance of counsel, a defendant must show that (1) his “counsel‘s performance was
{¶14} When deciding claims of ineffective assistance of counsel, courts may analyze the two prongs out of order. Id. at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, * * * that course should be followed.” Strickland at 697.
{¶15} While “[t]he right to counsel is the right to the effective assistance of counsel,” “trial strategy or tactical decisions cannot form the basis for a claim of ineffective counsel.” Id. at 686, citing McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Sanchez, 8th Dist. Cuyahoga No. 103078, 2016-Ohio-3167, ¶ 26, citing Strickland and quoting State v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186. “Judicial scrutiny of defense counsel‘s performance must be highly deferential.” Sanchez at ¶ 8, citing Strickland.
{¶16} Frierson argues that his counsel was ineffective for (1) failing to challengе the identification evidence, (2) failing to object to the state‘s hearsay evidence concerning
1. Failure to Challenge Identification
{¶17} “[S]ince the decision falls within matters of trial strategy, counsel is not required to file a motion to suppress evidence in every case.” State v. Price, 8th Dist. Cuyahoga No. 90308, 2008-Ohio-3454, ¶ 19. As a result, trial counsel is not per se ineffective when it fails to file a motion to suppress. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Counsel‘s failure to file a motion to suppress constitutes ineffective assistance only when the defendant can show that the motion “would have ‘had a reasonable probability of success’ and affected the outcome of the case.” State v. Patterson, 8th Dist. Cuyahoga No. 105265, 2017-Ohio-8318, ¶ 35, quoting Sanchez.
{¶18} An out-of-court identification must be suppressed if “the confrontation was unnecessarily suggestive of the suspect‘s guilt and the identification was unreliable under all the circumstances.” State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992), citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
{¶19} In light of some of our prior decisions, we agreе with Frierson that Detective Matos‘s showing of a single photograph to the two eyewitnesses, Detectives Pitts and Duller, was unduly suggestive. See State v. Price, 8th Dist. Cuyahoga No. 90308, 2008-Ohio-3454, ¶ 22; State v. Morrison, 8th Dist. Cuyahoga No. 86967, 2006-Ohio-3352, ¶ 23; State v. Nur, 8th Dist. Cuyahoga No. 57132, 1990 Ohio App. LEXIS 2552, *10 (June 21, 1990).
{¶20} Nevertheless, the detectives’ out-of-court identification of Frierson may still be admissible if the identification is reliable. Biggers at 199-200. When examining whether a prior identification is reliable, the trial court must consider “the opportunity of the witness to view the criminal at the time of the crime, the witness‘s degree of attention, the accuracy of the witness‘s 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.” State v. McGee, 8th Dist. Cuyahoga No. 92019, 2010-Ohio-2081, ¶ 38, citing Biggers.
{¶21} In State v. Price, the appellant challenged his conviction arguing that his counsel was ineffective for failing to file a motion to suppress an out-of-court identification. We disagreed, finding that while the officer‘s showing of a single photograph to the victim was unduly suggestive, the victim‘s identification of the appellant was reliable because she saw him from a short distance, recognized the appellant but could not remember his name, and remained confident at trial that the appellant was the suspect. Id. at ¶ 22-24. As a result, we found that the motion to suppress would not likely have been successful and, therefore, the appellant‘s counsel was not ineffective. Id. at ¶ 25.
{¶22} In State v. Keck, 8th Dist. Cuyahoga No. 89637, 2008-Ohio-3794, the
{¶23} Based on our review of the evidence, we find that a number of Biggers factors support a finding that the motion to suppress would not have had a reasonable probability of success. Like Keck, the detectives testified that while brief, they had a good opportunity to observe the suspect when he turned within 15 to 20 feet of their vehicle during the early evening. Specifically, Detective Pitts testified that, even though he only saw him for two to three seconds, he “got a real good look” at the suspect. Further, “[a] strong showing of reliability can arise from the fact that a [witness] knew the perpetrator of a crime before the crime was committed.” State v. Huff, 145 Ohio App.3d 555, 564, 763 N.E.2d 695 (8th Dist.2001). Like the victim in Price, Detective Pitts testified that he was familiar with the suspect, having multiple run-ins with him over his
{¶24} In sum, a majority of the Biggers factors show that the identification was reliable and, therefore, that a motion to suppress the out-of-court identification would not have had a reasonable probability of success. Accordingly, we find that Frierson‘s trial counsel was not ineffective and overrule Frierson‘s first assignment of error.
2. Failure to Object to Hearsay
{¶25} Like the decision of whether to file a motion to suppress, “[o]bjecting is a tactical decision.” State v. Johnson, 7th Dist. Jefferson No. 16 JE 0002, 2016-Ohio-7937, ¶ 46, citing State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144. Accordingly, “the failure to make objections is not alone enough to sustain a claim of ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103.
Experienced trial counsel learn that objections to each potentially objectionable event could actually act to their party‘s detriment. * * * In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object
essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel‘s failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.
Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 114, at ¶ 140.
{¶26} Here, the record shows that Frierson‘s trial counsel consciously chose not to object to the alleged hearsay evidence. In fact, while arguing his
{¶27} Further, as acknowledged in Frierson‘s counsel‘s statement above, “in a bench trial, the trial judge acts as the trier-of-fact, and, unless it affirmatively appears to the contrary, a reviewing court will presume that the trial court acted impartially and considered only properly admitted evidence.” State v. Neal, 8th Dist. Cuyahoga No. 89574, 2008-Ohio-1077, ¶ 11, citing Columbus v. Guthmann, 175 Ohio St. 282, 194 N.E.2d 143 (1963).
{¶28} In light of the above discussion, we cannot say that Frierson‘s counsel was ineffective. Accordingly, we overrule Frierson‘s second assignmеnt of error.
3. Failure to Request Closing Argument
{¶29} “[T]he overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is
{¶30} In Askia, the appellant argued that the trial court erred when it prohibited her counsel from making a closing argument. The Fifth District disagreed, finding that the appellant‘s counsel failed to renew its request for, and object to the omission of, closing argument after the court denied the appellant‘s
{¶31} While the “better practice would have been for the trial judge to ask counsel if he wanted to make a closing argument[,]” Frierson‘s counsel failed to request an opportunity to make a closing argument, both before and after he orally argued his
4. Failure to Obtain Eyewitness-Identification Expert
{¶32} As already stated, to prevail on a claim of ineffective assistanсe of counsel, Frierson must show that his trial counsel‘s performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, at 687. The record suggests that Frierson‘s counsel strategically decided not to obtain an eyewitness expert, choosing instead to cross-examine and impeach the state‘s eyewitnesses. See Madrigal, 87 Ohio St.3d at 390, 721 N.E.2d 52 (finding that counsel‘s decision to impeach the state‘s eyewitnesses on cross-examination instead of calling an eyewitness expert did not constitute ineffective assistance of counsel). Further, while Frierson aptly identifies the
{¶33} As а result, we find that Frierson‘s trial counsel was not ineffective for failing to call an eyewitness expert. Accordingly, we overrule his fourth assignment of error.
B. Manifest Weight of the Evidence
{¶34} In his fifth assignment of error, Frierson argues that his conviction for trafficking in violation of
{¶35} Unlike sufficiency of the evidence, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but neverthelеss conclude that the judgment is against the weight of the evidence. Id., citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
{¶36} Analyzing a claim under the manifest weight standard requires us to
review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 58, citing Thompkins. We are required to give “due deference” to the factfinder‘s conclusions becаuse “‘the demeanor of witnesses, the manner of their responses, and many other factors observable by [the factfinder] * * * simply are not available to an appellate court on review.‘” Id., citing Thompkins; State v. Bailey, 8th Dist. Cuyahoga No. 97754, 2012-Ohio-3955, ¶ 11, quoting State v. Bierbaum, 3d Dist. Seneca No. 13-88-18, 1990 Ohio App. LEXIS 1204 (Mar. 4, 1990). As a result, “[d]eterminations of witness credibility are primarily left to the trier of facts.” State v. Jackson, 8th Dist. Cuyahoga No. 93079, 2010-Ohio-3500, ¶ 27, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Accordingly, reversing a previous conviction and ordering a new trial under a manifest weight of the evidence claim should be saved for the “exceptional case in which the evidence weighs heavily agаinst the conviction.” State v. Bridges, 8th Dist. Cuyahoga No. 100805, 2014-Ohio-4570, ¶ 67, citing Thompkins.
{¶37}
{¶38} Frierson challenges the evidence supporting his conviction, claiming that the method by which officers identified him as the suspect was “fatally flawed” and “untrustworthy” and that the officers’ testimony was not crediblе. Frierson‘s arguments
{¶39} Further, because Frierson does not argue that the trial court‘s findings as to the elements of his conviction under
{¶40} Accordingly, we overrule Frierson‘s fifth assignment of error.
C. Inconsistent Verdicts
{¶41} In his sixth assignment of error, Frierson argues that the trial court‘s verdict is inconsistent because it found him guilty of drug trafficking in violation of
{¶42} To be convicted of trafficking under
{¶43} Turning to the facts relevant to Frierson‘s assignment of error, the state presentеd testimony from three officers who testified that they searched the confidential informant prior to the buy and confirmed that he did not possess any controlled substances; that the confidential informant entered the suspect‘s minivan with “buy money“; and that upon returning to the officer‘s vehicle, the confidential informant had a rock of crack cocaine. The officers also testified that they did not search the confidential informant for the “buy money” after the exchange took place and were not able tо discover if the suspect had the “buy money” because he fled. Based on that evidence, the court acquitted Frierson of trafficking in violation of
{¶44} After examining the evidence as well as the elements for the charges against Frierson, the trial court‘s verdicts certainly raise a number of questions. See State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-Ohio-2781, ¶ 23 (finding that the state produced sufficient evidence of the defendant‘s guilt for both
{¶45} But “[a]n appellate court is not permitted to speculate about the reason for the inconsistency when it determines the validity of a verdict.” State v. Wingfield, 2014-Ohio-2053, 11 N.E.3d 732, ¶ 31 (8th Dist.). Further, “[c]onsistency between verdicts on several counts of a criminal indictment is unnecessary[.]” State v. Eason, 8th Dist. Cuyahoga No. 103575, 2016-Ohio-5516, ¶ 68. “[A]n inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count.” State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), citing State v. Hicks, 43 Ohio St.3d 72, 538 N.E.2d 1030 (1989). “This is so because the several counts of an indictment are independent, and a verdict responding to a designated count will be construed in the light of the count designated, and no other.” State v. Brown, 8th Dist. Cuyahoga No. 89754, 2008-Ohio-1722, ¶ 29. “Inconsistent verdicts often reflect a factfinder‘s attempt to avoid redundancy or to grаnt leniency” and “may work against the government as well as the defendant[.]” Id., citing
{¶46} To counter those cases, Frierson interestingly points out that “[t]he Ohio Supreme Court has yet to consider whether the verdict handed down subsequent to a bench trial is entitlеd to the same deference given to a jury‘s inconsistent verdicts across multiple counts in a criminal trial.” Coinciding with his observation, Frierson argues that inconsistent verdicts handed down by a judge should not be accorded the same deference and cites to a number of federal and out-of-state cases that have enhanced review of a judge‘s inconsistent verdicts.
{¶47} In spite of his points, however, we find Frierson‘s argument and nonjurisdictional cases to be unconvincing under the facts presented in this case. First, we rejectеd a similar argument in State v. Burke, 8th Dist. Cuyahoga No. 54047, 1988 Ohio App. LEXIS 2442 (June 16, 1988), where we rejected the defendant‘s argument that inconsistent verdicts from a bench trial should be distinguished from those resulting from a jury trial. Id. at *5-6. Further, we have declined arguments to overturn Burke in a number of cases. See State v. Williams, 8th Dist. Cuyahoga No. 87218, 2006-Ohio-5325, ¶ 20-21 (upholding the trial court‘s “inconsistent” verdicts as to the defendant‘s counts
{¶48} Accordingly, we cannot say that the trial court‘s verdict acquitting Frierson of counts for
{¶49} Judgment affirmed. This case is remanded for correction of clerical errors in the journal entry of conviction and sentencing journal entry, which both indicate that there was a trial by jury, to reflect that the case was tried before the bench.
It is ordered that appellee recover from appellant the costs herein taxed.
Thе court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for correction and execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR