State v. YoungState v. Young
Neil S. McElroy, for appellant.
* * * * *
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas that found appellant guilty of one count of burglary and sentenced him to four years incarceration. For the following reasons, the judgment of the trial court is affirmed.
{¶ 3} Appellant sets forth four assignments of error:
{¶ 4} “Assignment of Error no. 1:
{¶ 5} “The trial court‘s denial of Mr. Young‘s Motion to Suppress resulted in a violation of his right to due process as guaranteed by the Constitutions of the United States and the State of Ohio.
{¶ 6} “Assignment of Error no. 2:
{¶ 7} “Mr. Young was deprived of his right to a fair trial, guaranteed by the Constitutions of the United States and the State of Ohio, through prosecutorial misconduct.
{¶ 8} “Assignment of Error no. 3:
{¶ 9} “Mr. Young‘s right to confront the witnesses against him, as guaranteed by the Constitutions of the United States and the State of Ohio, was violated when the court permitted hearsay of a testimonial nature.
{¶ 11} “The cumulative effect of the errors at trial was a violation of the appellant‘s right to a fair trial as guaranteed by the Fifth Amendment to the United States Constitution and by Art. I, §10 of the Ohio Constitution.”
{¶ 12} In support of his first assignment of error, appellant argues that the victim‘s “one-on-one show up identification” of him the night of the burglary was unnecessarily suggestive and unreliable under the totality of the circumstances and therefore should have been suppressed. It is undisputed that appellant was identified by Wagner during a “one-on-one” identification, in which a witness is shown only one suspect within a relatively short period of time after an incident occurs.
{¶ 13} When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Smith, 80 Ohio St.3d 89, 105, 1997-Ohio-355; State v. Fanning (1982), 1 Ohio St.3d 19, 20. This court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Davis (1999), 133 Ohio App.3d 114. Applying those facts, we must then independently determine as a matter of law whether the facts meet the appropriate legal standard. State v. Klein (1991), 73 Ohio App.3d 486, 488.
{¶ 14} At the suppression hearing, appellant presented the testimony of Brittni Wagner, whose home was burglarized, and Officer Jeff Bodeman, who responded to the
{¶ 15} Wagner further testified that she had to go to a neighbor‘s house to call the police because the intruder had stolen her phone. When Officer Bodeman responded, she described the intruder as a tall, thin black man with a gold tooth. Wagner testified that about one hour after the burglary, Officer Bodeman told her he wanted to drive her to a location nearby to see someone who might be the intruder. As the officer drove Wagner by the location where appellant was standing handcuffed next to a police cruiser, he asked Wagner if that man was the intruder; she said that it was. Wagner also testified that the officer did not suggest to her that the man she saw was in fact the intruder.
{¶ 16} Officer Bodeman testified that when he arrived at Wagner‘s home, she described the intruder as a tall black man with a gold tooth and “Chuck” tattooed on his
{¶ 17} The legal standard to be met in this case is two-fold. First, the defendant must demonstrate that the challenged identification was unnecessarily suggestive. State v. Freeman, 8th Dist. No. 85137, 2005-Ohio-3480, ¶ 18. If that burden is met, we must then decide “whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure.” State v. Torres, supra, ¶ 80, citing State v. Willis (1997), 120 Ohio App.3d 320, 324-325.
{¶ 18} Although a one-on-one identification may be suggestive under certain circumstances, Ohio courts have held that under some circumstances, such as when the show-up occurs shortly after the time of the crime, the identification could be very accurate. State v. Madison (1980), 64 Ohio St.2d 322, 332, citing Bates v. United States (C.A.D.C. 1968), 405 F.2d 1104, 1106.
{¶ 19} In deciding whether a particular one-on-one identification was impermissibly suggestive, courts are to consider five factors: “(1) the opportunity of the
{¶ 20} In this case, it is undisputed that appellant was the only person shown to Wagner for identification. He was standing by a police cruiser and was handcuffed. The record also shows that Wagner identified appellant within approximately one hour of the burglary. Appellant matched the physical description Wagner had given Officer Bodeman immediately after the incident, as far as the intruder‘s race and size, the gold tooth and the tattoo. Wagner testified that she was only an arm‘s length away from appellant when she confronted him in her hallway, the lights were on, she was wearing her eyeglasses and she looked him “dead in the eyes.” Wagner and appellant had a brief verbal exchange. When Wagner later identified appellant, she told Officer Bodeman appellant was “identical to the person that was in my house except for he had different clothes on.” Officer Bodeman further testified that after Wagner looked at appellant, she told the officer she was “a hundred percent sure that‘s him, without a doubt.”
{¶ 21} After considering the circumstances surrounding the identification of appellant in this case, we find that the identification was not unnecessarily suggestive and that there was not a substantial likelihood of misidentification. Therefore, we find that
{¶ 22} In his second assignment of error, appellant asserts that he was prejudiced by several instances of prosecutorial misconduct. Appellant states that the prosecutor‘s misconduct included (1) repeatedly appealing to the emotions of the jurors; (2) violating a stipulation related to an interrogation of the defendant wherein the defendant invocated his right to counsel; (3) insinuating that a defense witness was lying and (4) suggesting that the jury should “take however long it takes” to reach a verdict of guilty.
{¶ 23} Generally, a prosecutor‘s conduct at trial is not grounds for reversal unless that conduct deprives the defendant of a fair trial. State v. Murray, 6th Dist. No. L-04-1376, 2007-Ohio-4324, ¶ 36, citing State v. Loza, 71 Ohio St.3d 76, 78, 1994-Ohio-409. “The test for prosecutorial misconduct is whether the prosecutor‘s comments were improper and, if so, whether those remarks prejudicially affected the defendant‘s substantial rights.” State v. Eley, 77 Ohio St.3d 174, 187, 1996-Ohio-323.
{¶ 24} Appellant footnotes each of the four claims with a reference to trial transcript pages but does not articulate how the conduct in each instance may have prejudicially affected his right to a fair trial. Rather than consider the prosecutor‘s conduct in the context of the entire trial, appellant refers to those isolated portions of the record. Without further explanation, appellant simply states that it is “nearly impossible to imagine the harm done by such repeated misconduct.”
{¶ 26} Next, appellant asserts that the prosecutor violated a stipulated agreement “related to an interrogation of the defendant.” Again, appellant does not specify the exact nature of the violation of his right to a fair trial, but merely cites to a page of the trial transcript. Appellant seems to focus on one question on the state‘s re-direct that, according to defense counsel at that time, may have made reference to information that was or was not gleaned from appellant‘s interrogation. Because appellant fails to show any prejudicial impact, this argument is without merit.
{¶ 27} Appellant also asserts that the prosecutor “insinuated” in one instance that a witness was lying when she stated, “You‘re doing really good. Have you ever testified in court before?” Defense counsel objected and the court admonished the prosecutor not to
{¶ 28} Finally, appellant claims that the prosecutor improperly “suggested that the jury should ‘take however long it takes’ to reach a verdict of guilty.” Upon our review of the transcript, we find that appellant has not accurately represented the record in this regard. During closing argument, the prosecutor stated: “Gut feelings. If you head towards that door and you think, you know, God, I got a feeling he‘s guilty, but I just don‘t think the State made its case, please, turn back around, sit back down again for however long it takes --.” Defense counsel interrupted the prosecutor with an objection and, during a bench discussion that followed, the court admonished the prosecutor not to tell the members of the jury that they have to continue deliberating after they have reached a verdict. Closing arguments then resumed. Generally, prosecutors are entitled to considerable latitude in opening and closing arguments. State v. Ballew, 76 Ohio St.3d 244, 1996-Ohio-81. Moreover, the prosecutor‘s conduct must be viewed in the context of the entire trial. State v. Keenan (1993), 66 Ohio St.3d 402, 410. Having reviewed the state‘s closing argument in the context of all of the evidence presented at trial, we find this argument to be without merit.
{¶ 30} In his third assignment of error, appellant asserts that his right to confront witnesses against him was denied when the trial court permitted hearsay that was testimonial in nature. Specifically, appellant argues that “a variety of witnesses” were permitted to testify as to statements attributed to T.J. Northrup, who was present at the time of the burglary but did not testify. We note that appellant does not support his claim with any specific pages of transcript or point to any specific witness statements. Appellant also does not identify any witnesses whom he believes provided such hearsay testimony. Having said that, in the interest of conducting a thorough review, we have examined any testimony referring to T.J. Northrup‘s statements following the burglary and find that Northrup‘s statements to Officer Bodeman were not testimonial in nature.
{¶ 31} The Confrontation Clause of the
{¶ 32} In State v. Reardon, 168 Ohio App.3d 386, 2006-Ohio-3984, this court held that a declarant‘s statements were non-testimonial in nature where the police officer‘s interrogation was aimed at resolving a present emergency and apprehending the suspects before they escaped the area or harmed others in the process of escaping. Our focus in Reardon, which we determined was consistent with the prevailing interpretations of Crawford, was on the purpose of the police interrogation. See, State v. Quinn, 6th Dist. No. L-05-1302, 2007-Ohio-878.
{¶ 33} Following our decision in State v. Reardon, supra, the Ohio Supreme Court addressed the issue of distinguishing between testimonial and non-testimonial statements in State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, ¶ 19. In Stahl, the court adopted a broad view of the Crawford holding and held that “* * * the courts should focus on the expectation of the declarant at the time of making the statement * * *.”
{¶ 34} In the case before us, Officer Bodeman testified that he arrived at the scene in response to a dispatch reporting a burglary in progress. While at the scene, he interviewed several witnesses, including Northrup, who had been sleeping in Wagner‘s home at the time of the burglary. The record reflects that Northrup responded to Bodeman‘s questions, posed very shortly after Bodeman arrived on the scene, in an effort
{¶ 35} Accordingly, appellant‘s third assignment of error is not well-taken.
{¶ 36} In support of his fourth assignment of error, appellant asserts that the cumulative effect of each “violation” of his rights which occurred during trial requires reversal of his conviction. Because we have found that no prejudicial errors occurred in the trial of appellant‘s case, there can be no cumulative error. Accordingly, appellant‘s fourth assignment of error is not well-taken.
{¶ 37} On consideration whereof, this court finds that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is affirmed. Costs of this appeal are assessed to appellant.
JUDGMENT AFFIRMED.
Peter M. Handwork, P.J. ____________________________
JUDGE
Arlene Singer, J. ____________________________
Thomas J. Osowik, J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.