STATE OF OHIO v. RUSSELL P. THOMPSON
Case No. 12CA688
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY
RELEASED 05/23/2013
2013-Ohio-2235
Hoover, J.
DECISION AND JUDGMENT ENTRY
Benjamin E. Fickel, Logan, Ohio, for Defendant-Appellant.
Trecia Kimes-Brown, Vinton County Prosecuting Attorney, McArthur, Ohio, for Plaintiff-Appellee.
Hoover, J.
{1} Appellant, Russell P. Thompson, appeals his conviction and sentence in the Vinton County Common Pleas Court for aggravated robbery with a firearm specification. Appellant contends that the trial court erred when it denied his motion to suppress a pretrial identification. The victim of the robbery identified appellant as the perpetrator when a sheriff‘s deputy showed her a photograph of him on the deputy‘s mobile telephone. No other photographs of potential suspects were shown to the victim. This out-of-court identification procedure was not so flawed as to create a very substantial likelihood of irreparable misidentification by the victim in this case. The victim identified appellant within approximately two hours of the robbery and expressed no doubt about the identification. The victim‘s pre-identification description of appellant and of the get-away vehicle indicates that she had adequate opportunity to view him
{2} Next, appellant contends that the trial court erred by not instructing the jury in accordance with
I
FACTS
{3} On March 4, 2011, a man wielding a handgun robbed the Gas and Stuff store in Hamden, Vinton County, Ohio. On that particular day, the store‘s owner, Nancy Jolly, was working the cash register.
{4} The record reveals that around noon the man entered the store and within a few seconds placed a Cadbury Easter Egg on the counter. As Ms. Jolly was ringing up the transaction, the man pulled a gun out of his jacket and threatened to shoot if he was not given money. Ms. Jolly refused to hand over any money; and Ms. Jolly and the man scuffled for the cash register. During the scuffle, the cash register opened and fell to the floor. The man picked up what money he could and proceeded to exit the store. Ms. Jolly chased the man outside where he again threatened to shoot her if she did not go back inside. Ms. Jolly then reentered the store and immediately exited out a back door, where she watched the man drive away in a green Ford
{5} An initial description of the vehicle and perpetrator was transmitted to the dispatcher at the Vinton County Sheriff‘s Department within minutes of the incident. Approximately an hour later, appellant was stopped and detained by the Wellston Police Department in Jackson County, Ohio, on the suspicion that he was the perpetrator of the robbery. The Wellston Police Department detained appellant until the Vinton County Sheriff‘s Department arrived at the scene. Upon arrival, Sheriff Shawn Justice1 took approximately six photographs with his mobile telephone. Three of the pictures depicted the vehicle; two of the pictures depicted appellant; and one picture depicted cash that was strewn across the front seat of appellant‘s vehicle.
{6} Sheriff Justice then returned to Gas and Stuff, around 2:00 p.m., to speak with Ms. Jolly. At that time he asked Ms. Jolly to describe the perpetrator and the vehicle. Sheriff Justice then presented, on his mobile telephone, one of the photographs of appellant. Ms. Jolly believed that appellant was definitely the man who had robbed the store.
II
STATEMENT OF THE CASE
{7} Appellant was indicted by the Vinton County Grand Jury for one count of Aggravated Robbery, in violation of
{9} The case proceeded to trial on March 22, 2012. The jury returned a guilty verdict on the aggravated robbery and the firearm specification charge. Due to the conviction on the felony charges, the trial court dismissed counts two and three of the indictment. Appellant was sentenced to seven years imprisonment on the aggravated robbery conviction and three years imprisonment on the firearm specification. The prison terms were ordered to be served consecutively. Appellant timely filed his appeal.
{10} Appellant raises two assignments of error for review.
First Assignment of Error:
THE TRIAL COURT ERRED BY FAILING TO SUPPRESS UNDULY SUGGESTIVE AND UNRELIABLE IDENTIFYING STATEMENTS MADE BY THE VICTIM-WITNESS AND LAW ENFORCEMENT PERSONNEL VIOLATING APPELLANTS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
Second Assignment of Error:
THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY THAT IT MAY CONSIDER CREDIBLE EVIDENCE OF NONCOMPLIANCE
WITH R.C. 2933.83 IN DETERMING THE RELIABILITY OF ANY EYEWITNESS IDENTIFICATION.
III
LAW & ANALYSIS
A. Motion to Suppress
{11} In his first assignment of error, appellant contends that the trial court should have suppressed Ms. Jolly‘s pretrial identification testimony. In essence, he asserts that when Sheriff Justice showed Ms. Jolly the photograph of appellant, any identification that Ms. Jolly made thereafter was tainted. Appellant contends that the circumstances of showing Ms. Jolly the photograph was so unduly suggestive that it created a substantial likelihood of irreparable misidentification. Appellant also contends that the photographic identification tainted Ms. Jolly‘s subsequent in-court identification of him, making it unreliable.
{12} Our review of a trial court‘s decision on a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly, we defer to the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). Accepting those facts as true, we must independently determine whether the trial court reached the correct legal conclusion in analyzing the facts of the case. Burnside at ¶ 8.
{13} “When a witness has been confronted with a suspect before trial, due process requires a court to suppress her identification of the suspect if the confrontation was unnecessarily
{14} However, if the pretrial identification procedure is deemed unnecessarily suggestive, the next question becomes whether the identification was unreliable under the totality of the circumstances, i.e., whether the suggestive procedure created a “‘very substantial likelihood of irreparable misidentification.‘” Garvin at ¶ 25, quoting Waddy at 439. The defendant also has the burden of proof on this issue. Cook at ¶ 37. The factors to consider in determining reliability include: ” * * * (1) the witness‘s opportunity to view * * * the defendant during the crime, (2) the witness‘s degree of attention, (3) the accuracy of the witness‘s prior description of the suspect, (4) the witness‘s certainty, and (5) the time elapsed between the crime and the identification.” Garvin at ¶ 25, quoting State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39,
{15} It is true that “[c]ourts have often been critical of the practice of showing suspects to persons singly,” and not as part of a line-up or photo array. In re Lower, 4th Dist. No. 06CA31, 2007-Ohio-1735, ¶ 15, citing State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 24, and State v. Broom, 40 Ohio St.3d 277, 284, 533 N.E.2d 682 (1988). However, showing a single suspect is not per se improper. Id. “There is no prohibition against a viewing of a suspect alone * * * when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy.” Id., quoting State v. Madison, 64 Ohio St.2d 322, 332, 415 N.E.2d 272 (1980), in turn quoting Bates v. United States, 405 F.2d 1104, 1106 (D.C.Cir.1968).
{16} Appellant contends that the identification procedure was unnecessarily suggestive because Sheriff Justice only showed Ms. Jolly one photograph, rather than conducting a lineup or photo array. Appellant argues that he was in custody and cooperative, and that there was nothing preventing the sheriff‘s department from conducting a more traditional lineup. However, the identification procedure did not create a very substantial likelihood of irreparable misidentification such that the identification of appellant was unreliable.
{17} Contrary to appellant‘s contention, the evidence in this case indicates that Ms. Jolly had an adequate opportunity to observe appellant during the robbery. The robbery occurred during the day and in a lighted room. Ms. Jolly and appellant were face to face for a significant portion of the incident. Indeed, Ms. Jolly and appellant had engaged in a physical struggle over the cash register; and Ms. Jolly chased appellant into the parking lot where they had another encounter.
{18} As for the actual description, some minor inconsistencies exist. For instance, Ms. Jolly stated that the perpetrator wore a camouflage jacket during the robbery. When appellant was stopped, however, he was not wearing camouflage. Ms. Jolly also described the perpetrator as having a goatee; yet, other witnesses testified that appellant‘s facial hair resembled a beard, rather than a goatee. Nonetheless, Ms. Jolly‘s description was accurate as to weight, height, facial structure, and general appearance. Moreover, Ms. Jolly described the suspect as wearing large, dark sunglasses that wrapped around and covered the side of his face. A similar pair of sunglasses was found on appellant‘s person when he was stopped by the Wellston police officer. It is not reasonable to expect, especially given the circumstances of the case, that the description be perfect. The description and appellant‘s appearance were similar enough to bolster the reliability of the identification.
{19} Ms. Jolly expressed no doubts when identifying appellant as the perpetrator. This fact shows the reliability of the identification. Ms. Jolly was confident in her identification of the appellant as the perpetrator of the robbery when she viewed the photograph. Finally, Ms. Jolly verified the identification almost exactly two hours from the actual robbery. Ms. Jolly‘s recollection was fresh at this point. This Court has previously stated that identifications
{20} Given these facts, we conclude that no substantial likelihood of irreparable misidentification existed when considering the totality of the circumstances. Because the identification was not unreliable, the trial court properly denied the motion to suppress. Accordingly, we overrule appellant‘s first assignment of error.
B. Failure to Give Jury Instruction
{21} Appellant contends, in his second assignment of error, that because the identification procedure did not comply with the requirements set forth in
{22}
{23} It does not appear that the identification followed the mandates of subdivision (B), and the trial court did not give a jury instruction on the requirements of the statute or the significance of noncompliance with those requirements. However, because appellant failed to object to the
{24} The statute mandates a jury instruction on noncompliance only when evidence of a failure to comply is presented at trial.
CONCLUSION
{25} Having overruled both of appellant‘s assignments of error for the reasons set forth above, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
{26} As the principle opinion notes in ¶ 16, law enforcement “only showed Ms. Jolly one photograph, rather than conducting a lineup or photo array.”
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Vinton County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty (60) days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty (60) day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five (45) day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty (60) days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
McFarland, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error I. Concurs in Judgment Only with Opinion as to Assignment of Error II.
For the Court
By: Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.