State v. Saunders, 22621 (3-13-2009)State v. Saunders, 22621 (3-13-2009)
- Reporters:
- ,
- Before:
- Brogan, Grady
{¶ 1} This matter is before the Court on the Notice of Appeal of Kenneth E. Saunders, filed February 8, 2008. On June 22, 2007, Saunders was indicted on one count of possession of
{¶ 2} Saunders’ appellate counsel filed a brief pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 19 L.Ed.2d 493, stating that he could find no meritorious issues for appellate review. We notified Saunders of his counsel‘s representations and afforded him ample time to file a pro se brief. Saunders filed his brief on October 2, 2008. The State filed a response on December 29, 2008. This case is now before us for our independent review of the recоrd. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
{¶ 3} The events giving rise to this matter began on March 15, 2007, at approximately 12:45 a.m., when Deputy Douglas Phillips of the Montgomery County Sheriff s Department was patrolling at the intersection of Castlewood Avenue and Wilton Avenue, an area known for drug and prostitution activity. Phillips observed a white Pontiac proceeding down Wilton Avenue alongside a female pedestrian. It appeared to Phillips that the driver of the Pontiac was speaking to the female pedestrian. Phillips decided to approach the pedestrian, and when he turned onto Wilton, the Pontiac turned right into a parking lot at the corner of Wilton and Nottingham,
{¶ 4} Phillips proceeded down Wilton, and he observed the Pontiac parked in the parking lot, unoccupied. Deputy Thomas Feehan arrived on the scene, and the two deputies attempted to verify that the Pontiac was not stolen. While the Pontiac did not exhibit “a peeled column or the door locks busted out,” the officers were unable to run the Indiana license plate on their computer, and thеy were unable to determine the registered owner of the vehicle. The deputies next retreated to the end of Wilton to observe the Pontiac for the return of the driver. According to Phillips at the hearing on the motion to suppress, he “wanted to sit at the end of the road and see if this person came back. I thought they were trying to avoid me.”
{¶ 5} In approximately 30 minutes, the deputies observed a gray vаn turn onto Wilton and turn out its headlights. The van pulled in front of the parking lot where the Pontiac was parked, and it stopped. Saunders emerged from the passenger side of the van and approached the Pontiac. According to Phillips at the suppression hearing, “Once we saw the person walk over to the car, we started driving down in that direction. When I got behind the van, I activated my lights.” Phillips testified that the van was stopped “still in front of the lot.” Phillips stated that Feehan was behind him in his cruiser. Phillips testified, at the suppression hearing, he felt “the person‘s behavior up to that point was kind of suspicious and [Phillips] wanted to talk to the person and see what was going on.”
{¶ 6} Once Phillips activated his lights, he observed Saunders exit the Pontiac. The gray van “pulled on into the lot.” Phillips observed Saunders run to the driver‘s side of the van.
{¶ 7} In overruling Saunders’ motion to suppress, the trial court determined that Saunders was not “seized” until he made the throwing motion in the parking lot. The trial court also noted that Phillips has been with the Montgomery County Sheriffs Department for approximately 10 years. “He has made numerous crack cocaine and powder cocaine arrests. Deputy Phillips served as a detective in the organized crime unit for approximately one and a half years. Approximately one year ago he attended schooling in Mississippi relating to the field testing of and detection of narcotics. He has seen crack cocaine more than one hundred times.”
{¶ 8} At trial, Feehan testified that he also observed Saunders “make a kind of an underhand tossing motion towards a neighboring yard,” before Phillips seсured Saunders. Feehan testified that he observed an object leave Saunders’ hand, but he was unable to identify it. When Phillips asked Feehan to retrieve the object, Feehan found the baggie of drugs about five feet away on the other side of a chain link fence. Feehan testified that there was no other
{¶ 9} At trial, Phillips identified State‘s Exhibit 1A and 1B as the baggie and crack cocaine Feehan retrieved, alоng with the tracking card Phillips filled out. The tracking card listed Saunders’ name and address, the suspected identity of the substance (crack cocaine), Phillips’ name, and then the chain of custody.
{¶ 10} Also at trial, Julie A. Bowling, a forensic chemist and document examiner at the Dayton crime laboratory testified. According to Julie, she identified the suspected substance submitted to the laboratory by Phillips, noting that it weighed 11.18 grams to a reasonable degree of scientific certainty. Bowling then performed a field test on the substance, obtaining a positive result for the presence of cocaine. Julie then performed a test called infrared spectrophotometry, and a test called gas chromotography mass spectroscopy. She testified that test results revealed the entire submission contained сrack cocaine. When Julie completed her testing, the items “were packaged and placed back into the envelope and then it was sealed up and returned to the property room awaiting to go back to the department.”
{¶ 11} Saunders asserts two assignments of error. His first assignment of error is as follows:
{¶ 12} “THE DEFENDANT‘S
{¶ 13} Saunders argues that the statement of the female pedestrian, as recited by Phillips at the hearing on the motion to suppress, gave Phillips probable cause to approach the parking lot and the gray van, and that he was denied his right to confront her. The State responds that
{¶ 14} We initially note, as the State asserts, “`[a]t a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial.‘” City of Maumee v. Weisner, 87 Ohio St.3d 295, 298, 720 N.E.2d 507, 1999-Ohio-68. Further, “The Supreme Court has repeatedly distinguished between the scope of defendant‘s right to confrontation in trial and pretrial proceedings. (Internal citations omitted). The Supreme Court has recognized that the right to confrontation, which includes the right to physically face and cross-examine witnesses, is not a constitutionally compelled rule of pretrial discovery. (Internal citation omitted). State v. Williams (Jan. 27, 1994), 97 Ohio App.3d 289, 291, 646 N.E.2d 836.
{¶ 15} The female pedestrian‘s statement was admissible hearsay at the suppression hearing, and Saunders did not have a
{¶ 16} As the State correctly argues, “`Contact between police officers and the public
{¶ 17} “As soon as a reasonable person would not feel free tо leave, the encounter belongs in one of the following categories in which the guarantees of the
{¶ 18} “* * * where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that persons who with he is dealing may be armed and presently dangerous, where in the course of
{¶ 19} “Such a search is a reasonable search under the
{¶ 20} “* * * The Court went on to nebulously define reasonable suspicion as `something more than an inchoate or unparticulаrized suspicion or `hunch,\’ but less that the level of suspicion required for probable cause. * * *
{¶ 21} “The final category of police-citizen contact is the arrest. * * * An arrest is only valid under the
{¶ 22} The record reveals that the officers approached Saunders to make inquiry regarding his activities, and not because the female pedestrian gave them probable cause to do so. Phillips testified that he was “kind of suspicious,” and he wanted to talk to Saunders. As the trial court determined, Saunders was not seized “at any time until after he had made a throwing motion.” Phillips did not do anything to initiate the stop of the van. The van was stopped as the officers approached it, and Saunders, the passenger, had exited the van. The officers did not draw their guns or make any other show of force, other than the activation of Phillips’ lights.
{¶ 23} Phillips made no command to Saunders nor restrained his liberty until Saunders, while running, threw the baggie in plain view of the officers and accordingly, no seizure took place implicating the
{¶ 24} Saunders’ second assignment of error is as follows:
{¶ 25} “INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL DID NOT OBJECT TO HEARSAY TESTIMONY OF STATE WITNESS AS TO WHETHER SUBSTANCE WAS COCAINE, AND THE CHAIN OF CUSTODY EVIDENCE.”
{¶ 26} Saunders argues that his counsel was ineffective for failing to object to Phillips’ testimony regarding the identity of the substance in the baggie and to the State‘s evidence rеgarding chain of custody of the drugs. Saunders argues, “Due to the error‘s [sic] stated the Defendant‘s counsel should be ordered to file a (supplemental brief) on the issue‘s [sic] stated.”
{¶ 27} “We review the alleged instances of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide rangе of reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel‘s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. Hindsight is not permitted to distоrt the assessment of what was reasonable in light of counsel‘s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal citation omitted). State v. Mitchell, Montgomery App. No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 28} According to Saunders, his counsel should have objected to Phillips’ testimony about the identity of the crack cocaine. Upon review, we find no ineffеctive assistance of counsel. The record reflects that Phillips has extensive drug enforcement and arrest experience, having seen crack cocaine over 100 times. Phillips has considerable training, as well, regarding the identification of narcotics. In light of his experience, Saunders’ counsel may have
{¶ 29} Saunders also argues that his counsel was ineffective when he did not object to the admission of the crack cocaine because the State failed to establish the proper chain of custody. “`The state has the burden in establishing the chain of custody of a specific piece of evidence. (Internal citations omitted). `The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.\’
{¶ 30} As the State asserts, Phillips and Bowling established the chain of custody of the crack coсaine at trial. Phillips testified that he personally submitted the drugs to the crime laboratory. He identified the tracking card, as well as the baggie and the crack cocaine. Bowling testified that she retrieved the items from the crime laboratory, opened the package and verified the contents, and tested the drugs. When the testing was completed, Bowling packaged and resealed the exhibit, plaсing it into the property room until it was released again to Phillips for trial. In other words, the State proved that it was reasonably certain that substitutions,
{¶ 31} Finally, we note, in the body of Saunders’ second assignment of error regarding ineffective assistance of counsel, Saunders argues that the State failed to establish his possession of the crack cocaine at trial.
{¶ 32}
{¶ 33} Phillips observed Saunders make a throwing motion, and Feehan observed Saunders toss an object that Feehan witnessed leave Saunder‘s hand. Saunders clearly had
{¶ 34} Saunders’ second assignment of error is overruled.
{¶ 35} In addition to the review of Saunders’ assigned errors, we have conducted a thorough and independent review of the trial court‘s proceedings and have found no error having arguable merit. The judgment of the trial court is affirmed.
BROGAN, J. and GRADY, J., concur.