In re Robert M. , 2011 Ohio 5177 ( 2011 )

[Cite as In re Robert M., 2011-Ohio-5177.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96278
IN RE: ROBERT M.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Juvenile Division of
Cuyahoga County Court of Common Pleas
Case No. DL 10115998
BEFORE: Blackmon, J., Kilbane, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 6, 2011
2
-i-
ATTORNEY FOR APPELLANT
Timothy Young
Ohio Public Defender
Brooke M. Burns
Assistant State Public Defender
250 E. Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Milko Cecez
Assistant Prosecuting Attorney
Juvenile Division
2210 Cedar Avenue, 3rd Floor
Cleveland, Ohio 44115
PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant Robert M. appeals the juvenile court adjudicating him
1
a delinquent minor and committing him to the Department of Youth Services.
Robert M. assigns the following errors for our review:
1
The juvenile is referred to herein by his first name and the initial of his last name in
accordance with this court’s established policy regarding non-disclosure of identities in all juvenile
cases.
3
“I. Robert M. was denied his right to due process and a fair
trial when the State inexplicably lost the photo lineup that
was crafted out of the investigating officer’s cell phone
pictures and used to bolster the victim’s identification of
Robert as the perpetrator of the crime. Fifth and
Fourteenth Amendments to the United States
Constitution, Section 16, Article I of the Ohio
Constitution.”
“II. Robert M. was denied his right to due process and a
fair trial when the trial court permitted testimony
regarding an inherently suggestive and unreliable lineup
that was used against Robert even though it was never
provided to defense counsel, despite numerous discovery
requests, and was never produced at trial.”
“III. Robert M. was denied his right to the effective
assistance of counsel as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution
and Section 10, Article I of the Ohio Constitution when
counsel failed to file a motion to suppress or object to
identification evidence, which would have been supported
by the trial court.”
“IV. Robert M.’s adjudication and commitment must be
reversed and remanded for a new trial because his
adjudication was against the manifest weight of the
evidence. Fifth and Fourteenth Amendments to the
United States Constitution, Article I, Section 16 of the
Ohio Constitution.”
{¶ 2} Having reviewed the record and pertinent law, we affirm Robert
M.’s adjudication as a delinquent minor. The apposite facts follow.
{¶ 3} On October 24, 2009, Delance Tyler was shot as he stood on his
front porch. On August 16, 2010, the state filed a complaint alleging that
Robert M. was delinquent of felonious assault with one and three-year
4
firearm specifications attached; improper discharge of a firearm into a
habitation; and carrying a concealed weapon. On September 15, 2010,
Robert M. pleaded not guilty at his arraignment. Thereafter, several
pretrials were conducted and on December 1, 2010, a bench trial commenced.
Bench Trial
{¶ 4} At trial, the victim, Tyler, age 41, testified that on October 24,
2009, while on his way home from work, he stopped at a corner store a block
from his house. As he exited the store, he heard a lot of noise from across the
street. Tyler assumed the noise was coming from kids playing, but moments
later he heard footsteps to the side of him and thought it was one of the kids
who knew him from the neighborhood.
{¶ 5} Tyler testified that when he turned to look, he saw a young man,
later identified as Robert M., who asked him where he was from, and Tyler
responded that he lived down the street. Tyler stated that Robert M. said
“we about to work,” a street parlance indicating that he wanted to fight, and
then proceeded to take off his jacket.
{¶ 6} Tyler testified that he told Robert M. that he was not about to
fight him because he was old enough to be his father, at which time, eight or
nine other boys walked up, and Robert M. suggested that Tyler fight one of
the older boys. Tyler refused and continued walking towards his house,
5
Robert M. and the others followed, and someone shouted “Goonies,” the name
of a street gang that operates in the neighborhood.
{¶ 7} As Tyler reached his house and was about to open the door, he
found it locked. He turned around and saw Robert M. at the curb. Tyler
testified that Robert M. produced a gun, proceeded to fire four times, and
three bullets hit him in the legs. Tyler attempted to take cover behind the
brick wall on the porch, fully expecting that Robert M. would approach and
kill him, but he fled along with the others down the street.
{¶ 8} Tyler was taken to the hospital and provided a description of his
assailant to the police, indicating that he recognized Robert M. from the
neighborhood. Tyler subsequently identified Robert M. when he was shown a
photo array several months later.
{¶ 9} Officer William Cunningham, II testified that he interviewed
Tyler at the hospital shortly after the shooting took place. Officer
Cunningham testified that Tyler indicated that he recognized the shooter.
Officer Cunningham later learned through his investigation in the
neighborhood that the shooter’s name was “Rob,” but that individual was
then serving a six-month sentence in the Ohio Department of Youth Services.
Officer Cunningham arrested Robert M. shortly after his release, developed
a photo array, showed it to Tyler, who identified Robert M. as the shooter.
6
{¶ 10} Robert M. took the stand in his own defense and testified that he
was currently on parole for being inside a stolen vehicle. Robert M. denied
any involvement in the shooting.
{¶ 11} The trial court found Robert M. delinquent on all counts and
sentenced him to a minimum of two years at the Ohio Department of Youth
Services. Robert M. now appeals.
Photo Array
{¶ 12} We will address the first two assigned errors together because of
their common basis in fact and law. Robert M. argues he was denied a fair
trial because the state lost the photo array and because the trial court
permitted testimony about the allegedly suggestive and unreliable photo
array.
{¶ 13} In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102
L.Ed.2d 281, the United States Supreme Court addressed the issue of
whether a criminal defendant is denied due process of law by a state’s failure
to preserve evidence. The court stated the following:
“The Due Process Clause of the Fourteenth Amendment, *
* *, makes the good or bad faith of the State irrelevant
when the State fails to disclose to the defendant material
exculpatory evidence. But we think the Due Process
Clause requires a different result when we deal with the
failure of the State to preserve evidentiary material of
which no more can be said than that it could have been
subjected to tests, the result of which might have
7
exonerated the defendant. * * * We think that requiring
a defendant to show bad faith on the part of the police
both limits the extent of the police’s obligation to preserve
evidence to reasonable bounds and confines it to that class
of cases where the interests of justice most clearly require
it, i.e., those cases in which the police themselves by their
conduct indicate that the evidence could form a basis for
exonerating the defendant. We therefore hold that unless
a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does
not constitute a denial of due process of law.” (Citations
omitted.)
{¶ 14} Therefore, the United States Supreme Court established two
tests: one that applies when the evidence is “materially exculpatory” and one
that applies when the evidence is “potentially useful.” If the state fails to
preserve evidence that is materially exculpatory, the defendant’s rights have
been violated. Id. “However, evidence is material only if there is a reasonable
probability that had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” State v. Schurlock, 5th Dist. No.
05-CA-116, 2006-Ohio-4445. “To be materially exculpatory, ‘evidence must
both possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.’” State v.
Colby, 11th Dist. No. 2002-P-0061, 2004-Ohio-343, quoting California v.
Trombetta (1984), 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413.
8
{¶ 15} If, on the other hand, the state fails to preserve evidence that is
potentially useful, the defendant’s rights have been violated only upon a
showing of bad faith. Schurlock, supra. The term “bad faith” implies
something more than bad judgment or negligence; “it imports a dishonest
purpose, moral obliquity, conscious wrongdoing, breach of a known duty
through some ulterior motive or ill will partaking of the nature of fraud. It
also embraces actual intent to mislead or deceive another.” State v. Franklin,
Montgomery 2d Dist. No. 19041, 2002-Ohio-2370.
{¶ 16} In the instant case, it is appalling that the state lost the photo
array, nevertheless, we find that it was potentially useful, rather than
materially exculpatory. Officer Cunningham testified that he used his
cellular phone to photograph Robert M., created a photo array using
individuals with similar appearances, and then showed the array to Tyler.
Officer Cunningham stated that Tyler identified Robert M. without any
suggestions or prodding. Officer Cunningham subsequently forwarded the
photo array to the detective bureau.
{¶ 17} Here, we find no evidence of bad faith, dishonest purpose, moral
obliquity, or conscious wrongdoing. More importantly, we find that the loss
of the photo array was not prejudicial.
9
{¶ 18} Tyler recognized Robert M. from seeing him in the neighborhood
and also had ample opportunity to observe him at the time of the attack.
At trial, the following exchange took place:
“Q. Okay. Just to make sure, a couple more things. You
stated that you were positive. How do you know that this is
the young man that shot you that day?
“A. Because he was standing right next to me.
“Q. Did you see the guys - -
“A. Before - - when he first came, he was standing right next
to me, like right here. Our first initial conversation was right
here.” Tr. 23-24.
“* * *
“Q. Okay. And did you give a description of the person who
shot you to Officer Cunningham?
“A. Yes.
{¶ 19} “Q. And what was that description?
“A. Brown skinned and short haircut.
“Q. Okay.
“A. And I let the officer know that I knew his face, I knew who
he was.” Tr. 26.
{¶ 20} The above excerpt, and elsewhere in the record, establishes that
Tyler had no problem identifying Robert M. as the person who shot him that
day. In State v. King (Dec.19,1995), 10 Dist. 95APA04-421, a case involving
10
a similar fact pattern, a police detective investigating the robbery of a gas
station showed the cashier a photographic array the day after the robbery.
The cashier chose the pictures of the two defendants and indicated that she
was absolutely certain they were the robbers.
{¶ 21} However, eight years later, the cashier could not identify the
defendant in court. In addition, the photographic array was lost during one
of the defendant’s appeals and could not be used at the trial. The defendant
filed a motion to suppress the cashier’s pretrial identification, which the trial
court denied.
{¶ 22} On appeal, the court reiterated that reliability is the “linchpin” in
determining the admissibility of identification testimony. The court stated:
“In this case, Higgins testified that she saw two robbers when
they asked for cigarettes and pop. She could clearly see their
faces because they were not wearing masks. She stated that the
station was well-lit. She testified that the two men were
probably in the station for ten to fifteen minutes. The next day
she was asked to look at the photos and she was absolutely
positive that the two pictures she chose were the robbers.
Under these circumstances, the prior identification was
reliable.” Id.{¶ 23} Likewise, Tyler had ample opportunity to observe him as they
walked from the corner store to Tyler’s house. Given Tyler’s unequivocal
identification of Robert M., we conclude he was not prejudiced by the loss of
11
the photo array constructed by Officer Cunningham. Accordingly, we
overrule the first and second assigned errors.
Ineffective Assistance of Counsel
{¶ 24} In the third assigned error, Robert M. argues defense counsel was
ineffective for failing to file a motion to suppress the identification evidence.
{¶ 25} In order to prevail on a claim for ineffective assistance of counsel,
the defendant must show (1) that counsel’s performance was deficient, and (2)
that the deficient performance prejudiced the defense so as to deprive the
defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136,
538 N.E.2d 373.
{¶ 26} Counsel’s performance may be found to be deficient if counsel
“made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland at 687. To
establish prejudice, “the defendant must prove that there exists a reasonable
probability that, were it not for counsel’s errors, the result of the trial would
have been different.” Bradley at 143.
{¶ 27} In determining whether counsel’s performance fell below an
objective standard of reasonableness, “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Strickland at 689. Because of the
12
difficulties inherent in determining whether counsel rendered effective
assistance in any given case, a strong presumption exists that counsel’s
conduct fell within the wide range of reasonable, professional assistance. Id.{¶ 28} Failure to file a motion to suppress may constitute ineffective
assistance of counsel if there is a solid possibility that the court would have
suppressed the evidence. State v. Pimental, Cuyahoga App. No. 84034,
2005-Ohio-384. Courts apply a two-prong test to determine the admissibility
of challenged identification testimony. First, the defendant bears the burden
of demonstrating that the identification procedure was unduly suggestive. To
meet this burden, the defendant must show that the procedure was unduly
suggestive and resulted in an unreliable identification. Unreliable means that
the suggestive procedure is capable of resulting in an irreparable mistaken
identity. Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 19
L.Ed.2d 1247; State v. Page, Cuyahoga App. No. 84341, 2005-Ohio-1493.
{¶ 29} To determine if the procedure was impermissibly suggestive, the
courts look at the totality of the circumstances, including the victim’s
opportunity to view the defendant during the offense, her degree of attention,
the accuracy of descriptions given to the police, her level of certainty, and
lapse of time from the event to the time of identification. State v. Goza,
Cuyahoga App. No. 89032, 2007-Ohio-6837, citing State v. Caldwell (Sept. 27,
13
1984), Cuyahoga App. No. 45112. Then, even if the court finds the procedure
suggestive, the identification would still be admissible if the identification
itself was adequately reliable. Id., citing State v. Moody (1978), 55 Ohio St.2d
64, 67, 377 N.E.2d 1008.
{¶ 30} Here, as discussed in the previous assigned errors, Tyler was
positive that Robert M. was the shooter, having recognized him from seeing
him around the neighborhood. In addition, Tyler had ample opportunity to
observe Robert M., who walked beside Tyler for some distance prior to the
shooting. Further, when Tyler reached his house and found the front door
locked, he turned around and was face to face with Robert M. before he was
shot.
{¶ 31} We conclude, Tyler’s unequivocal identification of Robert M.
would have made filing a motion to suppress the identification evidence futile.
As such, defense counsel was not ineffective for failing to file such a motion.
Accordingly, we overrule the third assigned error.
Manifest Weight of the Evidence
{¶ 32} In the fourth assigned error, Robert M. argues his convictions
were against the manifest weight of the evidence.
14
{¶ 33} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a
criminal manifest weight challenge, as follows:
“The criminal manifest-weight-of-the-evidence standard
was explained in State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541. In Thompkins, the court
distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these
concepts differ both qualitatively and quantitatively. Id.
at 386, 678 N.E.2d 541. The court held that sufficiency of
the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a
matter of law, but weight of the evidence addresses the
evidence’s effect of inducing belief. Id. at 386-387, 678
N.E.2d 541. In other words, a reviewing court asks whose
evidence is more persuasive—the state’s or the
defendant’s? We went on to hold that although there may
be sufficient evidence to support a judgment, it could
nevertheless be against the manifest weight of the
evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of
appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the
appellate court sits as a “thirteenth juror” and disagrees
with the factfinder’s resolution of the conflicting
testimony.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v.
Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d
652.”
{¶ 34} As previously discussed, Tyler unequivocally identified Robert M.
as his assailant. After listening to all the evidence, the trial court stated:
“Robert, I got to decide whether the evidence is sufficient
to prove beyond a reasonable doubt. I didn’t believe your
testimony when you came up here. I have no reason to
doubt the victim’s testimony. So I find you guilty of all
the charges.” Tr. 63-64.
15
{¶ 35} The determination of weight and credibility of the evidence is for
the trier of fact. State v. Chandler, 10th Dist. No. 05AP-415, 2006-Ohio-2070,
citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. The
rationale is that the trier of fact is in the best position to take into account
inconsistencies, along with the witnesses’ manner and demeanor, and
determine whether the witnesses’ testimonies are credible. State v. Williams,
10th Dist. No. 02AP-35, 2002-Ohio-4503.
{¶ 36} Accordingly, an appellate court may not substitute its view for
that of the jury, but our role “in resolving conflicts in the evidence” is to
determine whether the jury lost its way thereby creating a manifest
miscarriage of justice that requires a new trial. Thompkins at 387, 678
N.E.2d 541.
{¶ 37} Here, we are not disposed to reach such a conclusion. After
reviewing the entire record, we cannot conclude that any of the evidence
weighs heavily against the trial court’s finding of guilt. Accordingly, we
overrule the fourth assigned error.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
16
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. The defendant’s finding of delinquency having
been affirmed, any bail pending appeal is terminated. Case remanded 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.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR