2005 Ohio 3733 | Ohio Ct. App. | 2005
{¶ 2} On January 19, 2004, Fred Walker was delivering a pizza to a location on Manhattan Avenue in Dayton when an unknown person robbed him at gunpoint. Walker escaped and called police. He described the robber and another person who he saw the robber meet with shortly after the crime.
{¶ 3} Officer Dan Zwiesler was dispatched to investigate. He spotted two individuals in the area who matched the description in the dispatch. Officer Zwiesler pulled his firearm and ordered the two to stop. The Defendant, who was one of the two, complied, but the other suspect, Crystal Trimble, ran off, only to be caught moments later.
{¶ 4} Officer Zwiesler put Defendant in his police cruiser and brought him to Walker, who positively identified him as the individual who had robbed him. The Defendant was arrested and charged with aggravated robbery. He moved to suppress Walker's identification testimony. The court overruled the motion after a hearing.
{¶ 5} A jury convicted the Defendant of aggravated robbery with a firearm specification. A bench trial convicted the Defendant, a minor at the time of the incident, on the carrying a firearm under a disability charge. He was sentenced to seven years imprisonment and filed a timely notice of appeal.
{¶ 7} Defendant raises three arguments in support of his first assignment of error. First, he argues that the trial court erred by applying an erroneous legal standard of review when it overruled his motion to suppress his identification by Walker on the night of the robbery, when Walker was unable to positively identify Defendant at the subsequent trial.
{¶ 8} When considering a motion to suppress, the trial court assumes the role of the trier of fact and, as such, is in the best position to resolve conflicts in the evidence and determine the credibility of the witnesses and the weight to be given to their testimony. State v.Retherford (1994),
{¶ 9} Officer Dan Zwiesler testified at the hearing on the motion to suppress that after apprehending Defendant he took Walker to the police cruiser in which Defendant was seated and illuminated the Defendant's face with a flashlight. Walker then said that Defendant was "the person that had put the gun in his face." (Tr. of Motion to Suppress Hearing, p. 13).
{¶ 10} Procedures used to identify a suspect as the individual who committed a crime, including one-man show ups, implicate the Due Process Clause of the
{¶ 11} One man "showups" do not necessarily bring about misidentification; rather, they can ensure accuracy under certain circumstances. State v. Madison (1980),
{¶ 12} As the Defendant notes in his brief, the trial court misstated the applicable legal standard during the hearing. However, the court corrected this error in handing down its decision, and it made several findings concerning reliability. These factors include the brief time, only a few minutes, between the incident and the identification, and the certainty of Walker's identification. The court found no substantial likelihood of misidentification and overruled Defendant's motion.
{¶ 13} We find that the trial court applied the proper legal standard, that the identification was reliable. The court identified the factors which led to that finding, and we defer to the weight it gave to the evidence. Retherford, supra.
{¶ 14} Next, Defendant argues that the trial court erred in failing to find that Officer Zwiesler's stop of the Defendant was illegal.
{¶ 15} A stop of an individual by a law enforcement officer is a seizure under the
{¶ 16} The propriety of an investigative stop or detention must be viewed in light of the totality of the surrounding facts and circumstances. State v. Bobo (1988),
{¶ 17} Officer Zwiesler testified that he stopped the Defendant based on the dispatch report that two African-American males wearing dark sweatshirts had robbed a pizza delivery man within a few feet of where they were found. Defendant and Trimble matched the description. Although Trimble turned out to be a woman, the information in the dispatch concerning the crime and its two perpetrators justified stopping both Defendant and Trimble.
{¶ 18} Third, Defendant argues that the trial court displayed a biased attitude through improper evidentiary rulings. In cases in the courts of common pleas, the Chief Justice of the Supreme Court of Ohio has exclusive jurisdiction to determine a claim that a trial judge is biased or prejudiced. Jones v. Billingham (1995),
{¶ 19} Defendant had an adequate legal remedy on his claim that the trial court judge was biased against him by filing an affidavit of disqualification with the clerk of the Supreme Court. State ex rel. Hachv. Summit Cty. Court of Common Pleas (2004)
{¶ 20} The first assignment of error is overruled.
{¶ 22} Defendant argues that the prosecuting attorney improperly argued during closing arguments that "every witness" had testified that the robbery occurred on January 19, 2004, when Defendant's alleged accomplice, Trimble, did not testify, concerning that date. He also asserts that the prosecutor mistakenly argued in closing that Walker had identified him as the person who robbed him.
{¶ 23} Counsel for both the defense and the prosecution have great leeway with respect to the inferences that may be drawn from the evidence adduced at trial. State v. Benge (1996),
{¶ 24} Even though the prosecutor is the actor who commits it, permitting prosecutorial misconduct is a matter of judicial error, but reversal is required only if the party who later objects on appeal has preserved the error by a timely objection. Absent an objection, such misconduct is grounds for reversal only upon a finding of plain error. Civ.R. 52(B). Plain error does not exist unless it can be said that but for the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978),
{¶ 25} Defendant failed to object at trial to the prosecutor's representations about which he now complains. Defendant attempts to avoid his own failure by arguing that he was prejudiced by prosecutorial misconduct. However, to constitute misconduct, the prosecutor's acts must be improper. Where that element is lacking, defense counsel ought not impugn the professional integrity of his colleagues who are prosecutors through misplaced claims of prosecutorial misconduct. State v. McGonegal (Nov. 2, 2001), Montgomery App. No. 18639.
{¶ 26} Neither of the two representations cited by the Defendant rise to the level of prosecutorial misconduct, much less any plain error on the court's part in permitting them. There is a significant amount of evidence that shows the incident did occur on the date alleged. Further, the prosecutor didn't say that Walker had identified Defendant as the robber, but said that Trimble testified that Defendant was the man who robbed Walker, which is correct. Regardless, Defendant merely notes the discrepancies but fails to show any prejudice. Having failed to meet that burden, his assignment of error fails. Benge, supra.
{¶ 27} The second assignment of error is overruled.
{¶ 29} Defendant argues that he was prejudiced by ineffective assistance of counsel when his defense counsel failed to object to portions of the prosecuting attorney's closing argument discussed supra. Because there was no misconduct on the part of the prosecuting attorney, there was nothing for the defense counsel to object to, and Defendant's assertion is without merit.
{¶ 30} Defendant also argues that his defense attorney failed to object to two lines of questioning by the State. First, Officer Zwiesler testified that as he drove closer to the two suspects it became obvious to him that they recognized he was driving a police cruiser. Second, the following line of questions was put to Walker, the robbery victim:
{¶ 31} "Q (Prosecuting Attorney): Okay. Uh . . . and did you see anyone else during that time?
{¶ 32} "A (Walker): Uh . . . a short, small-framed individual with a jersey come sneaking up between the two houses.
{¶ 33} "Q: Okay. And if you — if you know was that the same person who had just, uh . . . been involved in the robbery?
{¶ 34} "A: Chances are very good it was." [sic] (Tr. of Trial, p. 37).
{¶ 35} Defendant argues that these responses were speculative and subject to objections his attorney failed to make. Because of that failure, Defendant argues, he was denied his
{¶ 36} To determine whether assistance of counsel was so inadequate as to deprive a defendant of a fair trial, we look to see if: 1)the defense counsel was incompetent when judged by a reasonable attorney standard; and 2) if so, was the defendant prejudiced by this incompetence. SeeStrickland v. Washington (1984),
{¶ 37} Courts have long held that failure to object to minor evidentiary matters do not fall outside the conduct of a reasonable attorney. See e.g. State v. Richey (1992),
{¶ 38} The third assignment of error is overruled.
{¶ 40} A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences is the more believable or persuasive. See State v. Thompkins (1997),
{¶ 41} Defendant points to several inconsistences and weaknesses in the State's evidence in an attempt to show error on the trial court's behalf. However, the credibility of the witnesses and the weight to be given to their testimony is a matter for the trier-of-fact to resolve.State v. DeHass (1967),
{¶ 42} Here, the jury and the trial court found the State's witnesses to be more credible. Because there is some substantial evidence upon which the jury could find beyond a reasonable doubt that all elements of the offense had been committed, we overrule the assignment of error.
{¶ 43} The fourth assignment of error is overruled.
{¶ 45} Defendant argues that even if the errors identified in the previous four assignments of error do not rise to the level of prejudicial error individually, the cumulative effect of those errors was to deprive him of a fair trial.
{¶ 46} Having overruled each of the individual assignments of error, we find that there is no error to accumulate.
{¶ 47} The fifth assignment of error is overruled.
{¶ 48} The judgment of the trial court will be affirmed.
Wolff, J. and Fain, J., concur.
