State v. ThompsonState v. Thompson
{¶1} Defendant-appellant, Christopher Thompson, appeals his convictions for felonious assault and having a weapon while under disability. We affirm.
Procedural History and Facts
{¶2} In 2010, Thompson was charged with two counts of felonious assault with one- and three-year firearm specifications and one count of having a weapon while under disability. The matter proceeded to a jury trial, at which the following pertinent evidence was presented.
{¶3} On August 3, 2010, Cleveland policе officers responded to East 135th Street and Byron Avenue for a report of a male shot. EMS transported the male, Donald Davis, to the hospital. He had been shot in the leg. Officers tried to interview Davis at the hospital, but Davis would not answer their questions.
{¶4} The next day, Detective Gerald Sowul went to the hospital to interview Davis. Davis described the man who shot him and told the detective the shooter‘s name was “Chris Thomas.” Detective Sowul, who was familiar with Thompson, believed “Chris Thomas” to be Thompson.
{¶5} Detective Sowul generated a photo array and returned to the hospital the next day. A MetroHealth Hospital police officer testified that he presented the photo array to Davis, who “immediately” identified Thompson as the shooter. The officer testified that Davis was “quite adamant that was the male that shot him.”
{¶6} Thompson was arrested in December 2010. He was placed in county jail
{¶7} Sergeant Phil Christopher of the Cuyahoga County Sheriff‘s Office testified that he and sheriff‘s office employee Maureen Anthony downloaded the recorded calls. Sergeant Christopher testified that each jail inmate is given an identification number and that number, along with the last four digits of an inmate‘s social security number, must be inputted when an inmate makes a phone call. During trial, the prosecutor played numerous recorded jailhouse phone calls made from Thompson‘s inmate number. During thеse phone calls, Thompson told various people to make sure Davis did not show up for trial. In a December 22, 2010 phone call Thompson told Lumbus,
[m]an, you all gotta put some pressure on dude. Dude gonna have to disappear. * * * He can‘t show up in court. * * * You gotta make dude understand. They gonna be looking for him. If they end up catching up with him, he need to tеll them that ain’ the guy that did it. He look like him, but that ain‘t the dude that did it.
{¶8} Sergeant Christopher testified that he also recovered phone calls Thompson made to Lumbus using another inmate‘s identification number. During these calls, Thompson told Lumbus and another man, “Black,” to tell Davis to stay “out of the way,” but if Davis was forced to testify “to stick to his story and come up with why he said that I‘m the one who did it and why he changing his statement.” During one call, Thompson had Lumbus call his attorney and the attorney advised Thompson not to try to get Davis to miss court and told him his jailhouse phone calls were being recorded. At this point in the recorded conversation, Thompson admitted he was on another inmate‘s account.
{¶10} Davis appeared for the second scheduled trial date. He testified that, on August 3, 2010, he was riding in the backseat of a car with a man named “Corday.” Corday and his cousin, “Dean,” were also sitting in the back seat. Davis and Corday began to arguе about “old stuff from back in the day.” Davis got out of the car, yelling. He began to walk away but was shot in the leg. According to Davis, “[t]here was a car full of people, I don‘t know who shot me.”
{¶11} Davis testified that he identified Thompson as the shooter because a friend had told him that Thompson shot him. He also testified that shortly before trial was to commence, he told Detеctive Sowul that he did not know who shot him. When the prosecutor asked Davis why he changed his story, he testified that he identified Thompson because his friend gave him that name and he could not be expected to remember what happened the day of the shooting “piece by piece.” Davis further denied being warned not to come to court or offered money to change his story. Davis admitted he did not want to testify against Thompson and that the prosecutor “had to do a little bit of work” to get him to appear for trial. He also admitted to identifying Thompson in the photo array, circling his picture and writing “[t]his is the guy who shot me” next to the photo, and signing and dating his identification of Thompson.
{¶12} On cross-examination, Davis testified that he was “not sure” that it was
{¶13} Lumbus testified that Thompson called her while he was in jail and they discussed the case. She also identified Thompson‘s and her voice in some of the recorded phone convеrsations.
{¶14} Thompson was convicted of all charges. The trial court sentenced him to a total of ten years in prison.
{¶15} Thompson appeals, raising the following assignments of error for our review:
I. The defendant was denied a fair trial in that the pretrial identification testimony ought to have been suppressed.
II. The trial court erred in allowing recorded telеphone conversations into evidence without the recordings being properly authenticated.
III. The defendant was denied effective assistance of counsel.
Photo Array
{¶16} In the first assignment of error, Thompson argues that the pretrial identification process was tainted.1
{¶17} The identification of a defendant derived from unnecessarily suggestive procedures, which have a likelihood of leading to a misidentification, violates a
{¶18} In determining the admissibility of challenged identification testimony, a reviewing court applies a two-prong test: (1) did the defendant demonstrate that the identification procedure was unduly suggestive; and, if so, (2) whether the identification, viewed under the totality of the circumstances, is reliable despite its suggestivе character. State v. Harris, 2d Dist. No. 19796, 2004-Ohio-3570, 2004 WL 1506227, ¶ 19; State v. Thompson, 8th Dist. No. 90606, 2009-Ohio-615, 2009 WL 344858, ¶ 32. Thus, this court must determine “whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure.” State v. Wills, 120 Ohio App.3d 320, 324-325, 696 N.E.2d 1072 (8th Dist. 1972).
{¶19} If a defendant meets the first prong, then the second part of the inquiry focuses upon five factors necessary to assess the reliability of the identification, despite an unduly suggestive procedure: (1) the witness‘s opportunity to view the defendant at the time of the crime, (2) the witness‘s degree of attention at the time of the crime, (3) the accuracy of the witness‘s description of the defendant prior to the identification, (4) the
{¶20} Thus, our first step is to determine whether Thompson has established that the identification procedure was unreasonably suggestive. Davis testified that he was familiar with Thompson “from the bar.” Detective Sowul testified that he developed Thompson as a suspect from Davis‘s description of his shooter and the name Davis gave him, “Chris Thomas.” The detective outlined the process he used to generate the photo array, which included a photo of Thompson and five other similar looking males. He then gave the photos to a MetroHealth Hospital police officer to conduct the photo identification. Detective Sowul testified that this process, known as а blind administration, is where the administrator of the photo array does not know the identity of the suspect; this is to avoid “tainting the process.” MetroHealth‘s police officer testified that he showed the photo array to Davis, who identified Thompson as his shooter. Davis circled Thompson‘s picture, and both Thompson and the officer signed the photo array.
{¶21} Bаsed on these facts, there is no evidence to suggest that the pretrial identification of Thompson was unduly suggestive. Because the first prong has been met, we need not consider the reliability of the identification.
{¶22} Thompson also argues that the trial court erred in failing to instruct the jury that they could consider noncompliance with
{¶23} Effective July 7, 2010, any law enforcement agency or criminal justice entity in this state that conducts live lineups or photo lineups must adopt specific procedures for conducting the lineups.
“[w]hen evidence of a failure to comply with any of the provisions of this section, or with any procedure for conducting lineups that has been adopted by a law enforcement agency or criminal justice agency pursuant to [the statute], is presented at trial, the jury shall be instructed that it may consider credible evidence of nonсompliance in determining the reliability of any eyewitness identification resulting from or related to the lineup.”
R.C. 2933.83(C)(3) .
{¶24} Thompson argues that the photo lineup did not comply with
{¶25} Accordingly, the first аssignment of error is overruled.
Admissibility of Evidence
{¶27} The admission or exclusion of evidence rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).
{¶28} For a recorded telephone call to be admissible, the recording must be “authentic, accurate, and trustworthy.” Tyler at ¶ 26, citing State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263. But, because “conclusive evidence as to authenticity and identification need not be presented to justify allowing evidence to reach the jury,” the evidence required to establish authenticity need only be sufficient to afford
{¶29} Thus, in this case, to establish that the audio recording was what thе state claimed it to be, namely, recordings of jailhouse conversations between Thompson, Lumbus, and “Black,” the state was not required to “prove beyond any doubt that the evidence is what it purports to be.” State v. Moshos, 12th Dist. No. CA2009-06-008, 2010-Ohio-735, 2009 WL 1395857, ¶ 12, citing State v. Aliff, 4th Dist. No. 99CA8, 2000 WL 378370 (Apr.12, 2000). Instead, the state needed only to demonstrate a “reasonable likelihood” that the recording was authentic. Bell at ¶ 30, citing
{¶30} On appeal, Thompson concedes that Lumbus testified at trial that she recognized his voice in “several” of the recordings, but maintаins that the recordings should have been deemed inadmissible because Sergeant Christopher and Anthony did not testify that the process by which they retrieved the recordings accurately reproduced and copied the original conversations.
{¶31}
{¶32} Lumbus admitted to receiving several calls from Thompson and identified his voice on many of the calls. This coupled with the phone records and thе testimony of Sergeant Christopher and Anthony were sufficient to constitute a reasonable showing of authenticity. As to whether the voice on the recordings was indeed Thompson was a question of fact for the jury to determine. Accordingly, the trial court did not abuse its discretion in allowing the recordings into evidence.
{¶33} The second assignment of error is overruled.
Ineffective Assistance of Counsel
{¶34} In the third assignment of error, Thompson claims he was dеnied the effective assistance of trial counsel. We disagree.
{¶35} “The benchmark for judging any claim of ineffectiveness must be whether
{¶36} An attorney who is licensed in Ohio is presumed competent. Vaughn v. Maxwell, 2 Ohio St.2d 299, 301, 209 N.E.2d 164 (1965). Therefore, the burden of showing ineffective assistance of counsel is on the party asserting it. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Trial counsel is entitled to a strong presumption thаt all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343, 693 N.E.2d 267.
{¶37} Thompson bases his ineffective assistance of counsel claim on counsel‘s failure to file a motion to suppress and failure to request that the weapons charge be bifurcated. Thompson blames his counsel‘s errors, in part, on the fact that he retained his аttorney a week before trial.
{¶38} Failure to file a motion to suppress may constitute ineffective assistance of
{¶39} We are more troubled by defense counsel‘s decision not to request that the weapons under disability charge be bifurcated from the other charges. As Thompson points out, this court has previously reversed a conviction based on this error. State v. Jenkins, 8th Dist. No. 91100, 2009-Ohio-235, 2009 WL 147654. But the decision in Jenkins was based on the cumulative nature of defense counsel‘s errors, not solely on the failure to move to bifurcate a disability charge.
{¶40} In this case, after reviewing the entire record, we cannot conclude that defense counsel‘s performance fell below an objective standard of reasonable representation. The failure to bifurcate the disability chargе did not taint the entirety of the proceedings to the extent that a reasonable probability exists that the outcome of trial would have been different had the charge been separated.
{¶41} Therefore, Thompson was not afforded ineffective assistance of counsel. The third assignment of error is overruled.
{¶42} Judgment affirmed.
It is ordered that appellee reсover of appellant costs herein taxed.
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 remаnded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR