[Cite as State v. Daniels, 2016-Ohio-7299.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103663
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DIONDREY DANIELS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-591054-D
BEFORE: Blackmon, J., Kilbane, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 13, 2016 ATTORNEY FOR APPELLANT
Russell S. Bensing 1360 East 9th Street Suite 600 Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Stephanie N. Hall Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.: {¶1} Diondrey Daniels (“Daniels”) appeals his felony convictions stemming
from the armed robbery of Dennis Keaton (“the victim”) and assigns the following errors
for our review:
I. The trial court erred by entering convictions which were against the manifest weight of the evidence, in derogation of Defendant’s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.
II. The trial court erred by admitting evidence that the alleged victim was threatened by the family of a co-defendant, in derogation of Defendant’s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.
III. The trial court erred by excluding evidence which supported the
Defendant’s contention that the alleged victim had misidentified him as
being one of the perpetrators of the crimes, in derogation of Defendant’s
right to due process of law, as protected by the Fourteenth Amendment to
the United States Constitution.
{¶2} On the night of September 13, 2014, the victim was unloading groceries at
his apartment on Spruce Court in Cleveland, when he noticed four males “hanging out in
the hallway” on the second floor of the building. He “knew their faces from the
community,” but did not know their names. After unloading his groceries, the victim
moved his car, and when he came back to his apartment building, he did not see the males
that had been standing there. However, as the victim walked up the stairs to his
apartment, he “saw a guy standing off to the side as if he was [urinating]. He was
wearing an all-gray hoodie, and he was standing with his back towards me, turned away
from me.” {¶3} The victim looked at the man again,
and it clicked that, you know, the guy was about to rob me. I looked at my door and I said I’m not going to make it in time, so I stood there; and as I stood there, he brandished a gun. As he brandished it, I grabbed him and I said, no, and we started tussling with the gun and he, you know, led me up to the landing where my doorway was.
We were * * * fighting our way up as we are tussling with the gun. He was kind of in control, and I was just saying no as we [were] fighting with the gun, and we went up the stairs. As we came up the stairs, I saw * * * Daniels coming down the stairs with another gun, and he was telling me to stop tussling or he was going to shoot me.
Tr. 1730.
{¶4} Although the victim did not know the names of the offenders at the time of
the robbery, he subsequently identified Daniels from a photo lineup as the man who came
down the stairs with a gun and codefendant Michael McQueen (“McQueen”) as the man
in the gray hoodie with whom he “tussled.” According to Daniels, two other men were
also part of the robbery, and he later identified them as codefendants Tiant Padgette
(“Padgette”) and Dionta Willis (“Willis”).
{¶5} When they reached the hallway, McQueen hit the victim across the face
with the gun and put the gun in the victim’s mouth, then under his chin. The men took
the victim’s wallet, which contained $200 and his disability cards, and ordered him to
open his apartment door. The victim stated that he did not have a key. Daniels told
McQueen to shoot the victim. The victim’s girlfriend opened the door to their apartment,
and the men “fell inside the door.” According to the victim and his girlfriend, Teria Thompson (“Thompson”), Daniels fired his gun into the apartment and McQueen’s gun
misfired. After this, the men “took off running.”
{¶6} Thompson called 911. The victim got on the phone and told the dispatcher
that three men robbed him and they all had guns. The police arrived and recovered a
.22-caliber shell casing on the floor in the entrance to the victim’s apartment and a .45
caliber magazine outside of the apartment door. Additionally, there was a bullet hole in
the kitchen wall.
{¶7} The police gave the victim four photo lineups on three separate occasions
between September 19 and October 30, 2014, and the victim identified the four
codefendants in this case. On November 24, 2014, Daniels, Padgette, Willis, and
McQueen were indicted for kidnapping, aggravated robbery, felonious assault, and
improperly discharging a firearm, with gun specifications. The case went to trial, and on
June 17, 2015, the jury acquitted McQueen and Padgette on some of the counts and was
hung on the remainder of the counts against McQueen and Padgette and all of the counts
against Willis and Daniels. The court declared a mistrial on the undecided counts.
{¶8} In August 2015, McQueen, Padgette, and Willis entered guilty pleas.
Daniels went to trial for the second time, and on August 28, 2015, a jury found him guilty
of all counts. The court subsequently sentenced him to six years in prison.
Manifest Weight of the Evidence {¶9} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 25, 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 (1997), 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. {¶10} An appellate court may not merely substitute its view for that of the jury, but
must find that “in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Thompkins at 387. Accordingly, reversal on manifest weight grounds
is reserved for “the exceptional case that the evidence weighs heavily against the
conviction.” Id.
{¶11} On appeal, Daniels argues that there was no evidence linking him to the
crime other than the victim’s testimony identifying Daniels as the male who shot into his
apartment. Specifically, Daniels argues that the victim’s testimony was inconsistent as to
how many men were involved, and the victim “could not distinguish between Mr. Daniels
and his cousin Demonte [sic].”
{¶12} The victim testified that he “knew [Daniels] from his brothers in the
community,” and that he had purchased marijuana from Daniels’s and McQueen’s family
members. According to the victim, he recognized the four males’ faces, but did not
know their names. Asked why he initially reported three men, rather than four, the
victim stated he “was confused and afraid” during the 911 call. He had “the community
help with the names,” and learned some of their “government” names and some of their
“nicknames.” Ultimately, he gave the following names to the police: Little Mikey, Little
Dudi, Mr. Willis, and Teon. The victim further stated that Mr. Willis’s first name was
Dionta. The victim also told police that he believed a man named Joshua Jones set up
the robbery. {¶13} In March 2015, the victim was contacted by a private investigator (“the PI”)
who worked for Daniels’s defense attorneys. The PI met with the victim three times and
showed him a number of photographs on her cell phone. Most of the photographs were
of the defendants, and the victim identified them as such. However, on the PI’s third
visit with the victim, she showed him one picture of Daniels’s cousin Demont, who is one
year older than Daniels. The two bear a resemblance to each other. On this occasion,
the victim identified Demont as one of the men who robbed him. Asked why the PI
came back twice after the victim identified Daniels, the victim testified that “I guess she
wasn’t satisfied with me saying — she wanted me I guess to say it was somebody else.”
The victim further testified that at one point, he “changed whether [he] had the right name
of the perpetrator in this case against [Daniels],” because he was afraid of Daniels’s
family.
{¶14} The victim picked Daniels out of a photo array, and during his testimony,
made an in-court identification of Daniels as the man who fired the gun into his apartment
on the night in question. Asked the following question: “How certain are you, Mr.
Keaton, that Diondrey Daniels, the individual sitting at the table here, was the male that
robbed you and shot into your home?” — the victim answered “100 percent.”
{¶15} Thompson was living with the victim on Spruce Court when the robbery
occurred, and she observed the events in the hallway when she opened the apartment
door. Thompson’s testimony corroborates the victim’s testimony, other than she recalled
seeing two men (in addition to the victim) in the hallway and a third man running from
the scene. Thompson testified that both males with guns tried to shoot into the apartment, “[a]nd one actually succeeded, which went through the kitchen wall. * * *
The one that turned the corner physically shot. The one that was wrestling with [the
victim] couldn’t get the shot, because he dropped his clip.” The police came and talked
to her and the victim about the events that occurred that night. She never gave the police
a detailed description of the males nor did she know their names. “I didn’t know none of
the guys. I didn’t care to.”
{¶16} Ohio courts have held that “even where discrepancies exist, eyewitness
identification testimony alone is sufficient to support a conviction so long as a reasonable
juror could find the eyewitness testimony to be credible.” State v. Jordan, 10th Dist.
Franklin No. 04AP-827, 2005-Ohio-3790, ¶ 14. See also State v. Bryson, 8th Dist.
Cuyahoga No. 98298, 2013-Ohio-934. Therefore, credible eyewitness identification
testimony is enough to withstand a challenge to the weight of the evidence in favor of a
conviction. It is well-settled law that “the weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of facts” to consider. State v.
DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶17} Upon review, we cannot say that the jury lost its way in convicting Daniels based on the victim’s identification of him. Accordingly, Daniels’s first assigned error is overruled. Admissibility of Evidence
{¶18} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343
(1987). Pursuant to Evid.R. 401, relevant evidence is “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant
evidence is not admissible, however, “if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”
Evid.R. 403(A). “Where evidence has been improperly admitted in derogation of a
criminal defendant’s constitutional rights, the admission is harmless ‘beyond a reasonable
doubt’ if the remaining evidence alone comprises ‘overwhelming’ proof of defendant’s
guilt.” State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983).
Threats
{¶19} Daniels argues in his second assigned error that the victim’s testimony about
threats made by codefendants and their family members “offered no evidence of any
connection between the supposed threats and Mr. Daniels.” The victim testified about
being threatened and harassed by many people, some of whom were Daniels’s family
members. Other testimony, however, concerned threats made to the victim by
codefendant McQueen and members of his family. For example, over defense counsel’s
objection, the victim testified that he called 911 after McQueen came to the victim’s
apartment demanding the victim return the magazine clip from McQueen’s gun.
{¶20} This court has held that “[p]recedent overwhelmingly supports the
conclusion that 911 calls are admissible either as excited utterances or present sense
impressions.” State v. Rose, 8th Dist. Cuyahoga No. 89457, 2008-Ohio-1262, ¶ 42.
Statements “describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter” are admissible as present
sense impressions. Evid.R. 803(1). Furthermore, statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by
the event or condition” are admissible as excited utterances. Evid.R. 803(2).
Additionally, “evidence of threats or intimidation of witnesses reflect[s] a consciousness
of guilt and [is] admissible as admission by conduct.” State v. Soke, 105 Ohio App.3d
226, 250, 663 N.E.2d 986 (8th Dist.1995).
{¶21} Daniels first argues that the 911 call was not an excited utterance or a
present sense impression in that “there was nothing contemporaneous about [the victim’s]
testimony about the threats. They occurred, if at all, many months before the trial.” A
plain reading of Evid.R. 803(1) and (2) shows that Daniels is misinterpreting the law.
{¶22} The victim testified that he called 911 on September 15, 2014, after
McQueen “came back with the gun and was asking for the clip back to the other gun.” In
other words, the victim made the 911 call immediately after a man threatened him with a
gun. In considering the lapse of time between the event and the declaration, we find that
the victim’s statements to the 911 dispatcher are admissible as excited utterances or
present sense impressions. “There is no per se amount of time after which a statement
can no longer be considered to be an excited utterance. The central requirements are that
the statement must be made while the declarant is still under the stress of the event and
the statement may not be a result of reflective thought.” (Emphasis deleted.) State v.
Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316 (1993). The date that a witness testifies
at trial is irrelevant to the admissibility of excited utterances and present sense
impressions. Indeed, all out-of-court statements, properly or improperly admitted at a
trial, will necessarily be made prior to the trial itself. {¶23} Daniels next argues about the relevancy to his trial of threats made by a
codefendant and his family. In overruling Daniels’s objection to this evidence, the court
stated as follows:
I’m going to permit [this line of questioning] on the basis that, as I understand it, [the victim’s] testimony all along has been that these were individuals who were known to him by sight and that they were people who were out and about in that section of the projects.
***
To the extent that the issue here is identification and who were these people, I think this evidence tends to support that he would have seen them and would have known them. On that basis, I’m going to allow this line of questioning. There may be particular things that might be objectionable within that line of questioning; but as an overall matter, I’m going to permit it.
Now, I’m not letting it in specifically for the purpose of buttressing [the victim’s] credibility, but it does provide a context for how he made these identifications when reporting the matter to the police.
{¶24} Thompson testified that, on the night of the robbery, she and her young son
were leaving the apartment when they were confronted in the hallway by members of
Daniels’s and McQueen’s families. They were “waiting outside the apartment * * *
trying to make [the victim and Thompson] not say who robbed” the victim. The victim
called 911 again. The defendants’ family members stayed in the hallway until the police
arrived. The next morning, on September 14, 2014, McQueen came back to the victim’s
apartment. According to the victim, he called the police several times because of
“constant threats, harassment” by the defendants.
{¶25} After the victim identified Daniels, he was contacted “several times” in
person and on the phone by Daniels’s brothers Rodney and Darren, and Daniels’s sister Tara. Additionally, Thompson testified that she called the police “numerous times” after
this incident, because “[p]eople were waiting outside.” On more than one occasion,
Thompson got a police escort to her vehicle so she and her son could leave for the night.
Several 911 audio tapes were played for the jury. In one of them, for example,
Thompson told the dispatcher that “one of the guys that was involved in the robbery is
swarming outside of my building.” In October 2014, the victim and his girlfriend moved
from Spruce Court because they were “constantly being harassed and threatened by the
assailants’ families,” and “it wasn’t safe to stay” there.
{¶26} Upon review, we find that the court did not abuse its discretion in admitting
evidence of threats by Daniels and his codefendants. Daniels’s second assigned error is
overruled.
Misidentification
{¶27} In Daniels’s third and final assigned error, he argues that the court abused its
discretion when it excluded the admission of two photographs – one of Daniels and one
of his cousin Demont — during Daniels’s sister Tara’s testimony. Specifically, Daniels
argues that the pictures’ “exclusion prevented [him] from fully presenting his case of
misidentification.”
{¶28} Tara testified that, between January and March 2015, she texted back and
forth with the victim, including sending a picture of her brother, Daniels, and a picture of
her nephew, Demont. On cross-examination, Tara testified that she got the pictures from
Facebook or Instagram using her phone, although she did not know who took them or
when they were taken. Tara further testified that she did not provide these pictures, or any other pictures, to the police. Tara identified these photographs during her testimony,
although the court did not allow these exhibits to be admitted into evidence. It is unclear
from the record whether the jury saw these photographs.
{¶29} The United States Supreme Court has held that “due process protects the
accused against the introduction of evidence of, or tainted by, unreliable pretrial
identifications obtained through unnecessarily suggestive procedures.” Moore v. Illinois,
434 U.S. 220, 227, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). This constitutional protection
applies to pretrial confrontations for the purpose of identification, and includes photo
arrays or lineups and one-on-one presentations of the accused conducted by law
enforcement. Id. at 229. We could find no case factually on point with the situation at
hand — where the defendant’s family member shows the victim a picture of the
defendant and a picture of the defendant’s cousin and suggests that the two men look
alike. Additionally, we are aware that the defendant is the party who is requesting that
this evidence be admitted. Nonetheless, upon review, we find this to be an
“unnecessarily suggestive procedure,” which may “give rise to a very substantial
likelihood of irreparable misidentification.” Simmons v. U.S., 390 U.S. 377, 384, 88
S.Ct. 967, 19 L.Ed.2d 1247 (1968). The jury heard testimony regarding these
photographs and Daniels’s theory of misidentification, but ultimately the court
determined these photographs were “unnecessarily suggestive.” Accordingly, the court’s
excluding these photographs from jury deliberations was not an abuse of its discretion,
and Daniels’s final assigned error is overruled.
{¶30} Judgment affirmed. It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. The defendant’s conviction 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, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR