State v. Glenn

2011 Ohio 3684

Opinion

[Cite as State v. Glenn, 2011-Ohio-3684.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 94425

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEVANTE GLENN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-525626

BEFORE: DeGenaro, J.,* Gallagher, A.J., and Sweeney, J.

RELEASED AND JOURNALIZED: July 28, 2011 2

-i-

ATTORNEY FOR APPELLANT

Regis E. McGann, Esq. 600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. Cuyahoga County Prosecutor By: Andrew J. Santoli, Esq. Assistant County Prosecutor 1200 Ontario Street Cleveland, Ohio 44113

MARY DEGENARO, J.:*

{¶ 1} Defendant-appellant, Devante Glenn, appeals his convictions for aggravated

robbery and theft. For the reasons set forth below, we affirm.

{¶ 2} On July 6, 2009, the Cuyahoga County Grand Jury indicted appellant on six

counts: Counts 1 and 4 alleged aggravated robbery in violation of R.C. 2911.01(A)(1);

Counts 2 and 5 alleged kidnapping in violation of R.C. 2905.01(A)(2); and Counts 3 and

6 alleged theft in violation of R.C. 2913.02(A)(1). All counts included one- and

three-year firearm specifications. Appellant pled not guilty to all charges.

{¶ 3} After appellant waived his right to a jury, the matter proceeded to a bench

trial on October 26, 2009. At trial, the state presented testimony from the following 3

individuals: Lenore Orloski, James Plezia, Detective Scott Clayton, Sergeant John

Bechtel, and Officer William Busse. Their testimony established the following facts.

{¶ 4} Orloski testified that she drove to Plezia’s house in Cleveland, Ohio on

March 8, 2009, and parked her Jeff Gordon edition 2003 Chevy Monte Carlo in the

driveway. She explained that the car has flames along the side and hood, and a license

plate that read “24 WINS.” Plezia owns a dark blue Chevy Malibu equipped with

OnStar, a mechanism used to track vehicles via a GPS system. The two then left in

Plezia’s Malibu.

{¶ 5} Around 9:30 p.m., Orloski and Plezia returned to Plezia’s house. Orloski

exited Plezia’s Malibu and entered her Monte Carlo and the parties switch the positions

of the cars so that the Malibu was the first vehicle in the driveway with Orloski’s vehicle

directly behind. As Orloski exited the Monte Carlo, she saw four individuals across from

her vehicle. One of the individuals, wearing a beige, tan sweatshirt and baggy blue

jeans, approached her, pointed a firearm in her direction and demanded her keys and

purse. The individual confiscated these items, and drove off in the Monte Carlo with

another person, and the other two individuals drove away in Plezia’s Malibu. Orloski

then phoned 911 and OnStar. Orloski identified appellant as the individual who pointed

the firearm at her.

{¶ 6} Plezia testified similarly to Orloski, and specifically that the assailant with

the firearm was an African-American male, who wore a tan-brown jacket possibly made 4

of sweatshirt material.

{¶ 7} Officer Busse testified that he and his partner responded to the call, and

learned that the Malibu and Monte Carlo were stolen at gunpoint. The victims described

the individual holding the firearm as an African-American male wearing a tan or brown

jacket and blue jeans.

{¶ 8} About two hours later, OnStar tracked the Malibu to Noble Road in East

Cleveland and informed the police. Sergeant Bechtel testified that he responded to the

call, and at Noble Road he saw the Malibu, followed by the Monte Carlo. Sgt. Bechtel

explained that the Monte Carlo had the license plate “24 WINS” and a NASCAR sticker.

Sgt. Bechtel, along with Officer O’Leary, followed the vehicles. The Malibu then made

a right turn while the Monte Carlo turned left onto Terrace Avenue, and the officers

continued to follow the Malibu. At the time, Sgt. Bechtel was unaware that the Monte

Carlo had also been stolen.

{¶ 9} The Malibu turned onto Nela Avenue and drove behind a house. The

driver, later identified as appellant, exited the vehicle and began running from the police.

Sgt. Bechtel parked his vehicle and joined Officer O’Leary in the foot pursuit of

appellant. Sgt. Bechtel yelled at appellant to stop running, which he ignored, and ran

through a wooded area. Eventually, Sgt. Bechtel apprehended appellant near Belvoir

Avenue. Orloski’s purse was found in the Malibu. And an hour following appellant’s

arrest, Sgt. Bechtel recovered the Monte Carlo, which had been abandoned. 5

{¶ 10} Officer Busse further testified that he transported appellant from the East

Cleveland police station to the Central Processing Unit. When Officer Busse arrived at

the East Cleveland station, appellant was laughing and giggling. But when appellant was

being booked and fingerprinted at Cleveland CPU, appellant became upset and cried.

Officer Busse testified that while crying, appellant blurted out that the clothes he had on

were not the clothes he had on during the robbery, that he had on a tan jacket and blue

jeans.

{¶ 11} Det. Clayton testified that a couple days following the incident, he showed

Orloski three photo arrays with six photos in each array, for a total of 18 photographs, and

that each array included a picture of one of appellant’s brothers. At that time, there

wasn’t a picture of appellant to include in the array, and Det. Clayton considered the

brothers as persons of interest. Although both Orloski and Plezia identified one of

appellant’s brothers as someone who could have been involved, nevertheless, they both

stated that none of these photographs depicted the person who brandished the firearm and

took Orloski’s purse and vehicle. Then about two weeks later, Det. Clayton showed

Orloski another array of six photographs in which she affirmatively identified appellant as

the individual holding the weapon. Plezia was unable to identify anyone in this array.

{¶ 12} Appellant moved for acquittal pursuant to Crim.R. 29(A), which was

granted as to the kidnapping charges only. The trial court found appellant guilty of two

counts of aggravated robbery, two counts of theft, and of the firearm specifications 6

associated with these charges. The trial court sentenced appellant to an aggregate six

year prison term and imposed five years of post-release control.

{¶ 13} Appellant now appeals his convictions and presents two assignments of

error for our review. His first provides:

{¶ 14} “The trial court, by failing in its affirmative duty to prevent bias and

prejudice, in accordance with R.C. 2945.03, denied Mr. Glenn his constitutional right to a

fair trial. Pursuant to U.S. Constitution Amendments VI and XIV and Ohio Constitution

Article I, Sections 10 and 16.”

Bias Versus Legal Error

{¶ 15} Appellant argues that the trial court engaged in bias and prejudice by

permitting irrelevant and inadmissible evidence at trial. More specifically, appellant

complains that Orloski’s identification of him in the photo array was impermissibly

suggestive. He next contends that the trial court erred in admitting the statements

appellant made to Officer Busse at CPU. Appellant conflates a trial court’s bias with a

trial court’s erroneous legal rulings, which are distinct issues.

{¶ 16} “The term ‘bias or prejudice’ ‘implies a hostile feeling or spirit of ill-will or

undue friendship or favoritism toward one of the litigants or his attorney, with the

formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished

from an open state of mind which will be governed by the law and the facts.’ State ex rel.

Pratt v. Weygandt (1956), 164 Ohio St. 463, 469, 58 O.O. 315, 318, 132 N.E.2d 191, 195. 7

{¶ 17} “The statutory right to seek disqualification of a judge is an extraordinary

remedy. In re Disqualification of Hunter (1988), 36 Ohio St.3d 607, 522 N.E.2d 461.

Further, a judge is presumed to follow the law in all respects, In re Disqualification of

Parks (Aug. 26, 1993), No. 93-AP-060, unreported, and is presumed not to be biased:

{¶ 18} “ ‘ “Bias or prejudice on the part of a judge will not be presumed. In fact,

the law presumes that a judge is unbiased and unprejudiced in the matters over which he

presides, and bias or prejudice must be strong enough to overcome the presumption of his

integrity.” ’ 48A Corpus Juris Secundum (1981) 731, Judges, Section 108, quoted in

State v. Baker (1984), 25 Ohio Misc.2d 11, 12, 25 OBR 232, 234, 495 N.E.2d 976,

977-978.” In re Disqualification of Olivito (1994), 74 Ohio St.3d 1261, 1262-3, 657

N.E.2d 1361.

{¶ 19} Turning next to legal errors, “the law presumes that in a bench trial the

court considers only relevant, material, and competent evidence.” State v. Bays, 87 Ohio

St.3d 15, 27, 1999-Ohio-216, 716 N.E.2d 1126. Even if the trial court erroneously

admitted testimony into evidence, we must presume that it did not consider it in reaching

its verdict. State v. Teagarden, 5th Dist. No. 08-CA-39, 2008-Ohio-6986, ¶54.

{¶ 20} Appellant offers no evidence of judicial “bias or prejudice” and instead

argues that the trial court considered “improper” evidence. “Dissatisfaction or

disagreement with a judge's rulings of law are legal issues subject to appeal. A trial

judge's opinions of law, even if erroneous, are not by themselves evidence of bias or 8

prejudice and thus are not grounds for disqualification.” In re Disqualification of

Murphy, (1988) 36 Ohio St.3d 605, 606, 522 N.E.2d 459. Therefore, we must presume

the trial court did not consider the inadmissible evidence. Nevertheless, even without

this presumption, we find no error in the admission of Orloski’s identification of

appellant from the photo array or appellant’s statements to Officer Busse at CPU.

Victim Identification

{¶ 21} Appellant argues that Orloski’s identification of him as the assailant from a

photo array was impermissibly suggestive. He concedes that Orloski identified him in

the fourth photo array, but maintains that the three prior photo arrays each contained a

photograph of one of his brothers. As such, by the time Orloski viewed the fourth array,

she was tainted and the array was impermissibly suggestive.

{¶ 22} “When a witness has been confronted with a suspect before trial, due

process requires a court to suppress the identification of the suspect if the confrontation

was unnecessarily suggestive of the suspect’s guilt and the identification was unreliable

under all the circumstances.” State v. Waddy (1992), 63 Ohio St.3d 424, 438, 588

N.E.2d 819.

{¶ 23} The defendant bears the initial burden of establishing that the photographic

identification procedure was unnecessarily suggestive. If this burden is met, the court

must next consider whether the procedure was “so impermissibly suggestive as to give

rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United 9

States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247. No due process

violation will be found where an identification does not arise from an impermissibly

suggestive confrontation, but rather, from observations at the time of the crime.

Coleman v. Alabama (1970), 399 U.S. 1, 5-6, 90 S.Ct. 1999, 26 L.Ed.2d 387.

{¶ 24} A court must consider, under the totality of the circumstances, the following

factors with regard to potential misidentification: “the opportunity of the witness to view

the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the

witness’ prior description of the criminal, the level of certainty demonstrated by the

witness at the confrontation, and the length of time between the crime and the

confrontation * * *.” Neil v. Biggers (1972), 409 U.S. 188, 196-198, 93 S.Ct. 375, 34

L.Ed.2d 401. Even if the identification procedure may have contained notable defects,

this factor does not, per se, prevent the admissibility of the identification. State v.

Merrill (1984), 22 Ohio App.3d 119, 121, 489 N.E.2d 1057; State v. Moody (1978), 55

Ohio St.2d 64, 67, 377 N.E.2d 1008.

{¶ 25} Here, the photo identification of appellant was not impermissibly

suggestive. Orloski had ample opportunity to view appellant and provided the police

with an accurate description of him prior to the photo array. Additionally, Orloski was

shown 24 photographs before positively and affirmatively identifying appellant less than

two weeks after the incident. The photo arrays were admitted to show Orloski did not

simply identify the first familiar African-American male, and in fact, was shown a 10

plethora of photographs in the course of the investigation before picking him. Therefore,

we find no error in the trial court denying suppression of the photographic identification.

Defendant’s Statement to Police

{¶ 26} Regarding the admission of appellant’s statement to Officer Busse at CPU,

trial courts are granted broad discretion with respect to the admission or exclusion of

evidence at trial. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. Thus,

an appellate court will not reverse a trial court’s ruling absent an abuse of discretion.

State v. Myers, 97 Ohio St.3d 335, 348, 2002-Ohio-6658, 780 N.E.2d 186, ¶75. “The

term discretion itself involves the idea of choice, of an exercise of the will, of a

determination made between competing considerations. In order to have an abuse of that

choice, the result must be so palpably and grossly violative of fact or logic that it

evidences not the exercise of will but the perversity of will, not the exercise of judgment

but the defiance of judgment, not the exercise of reason but instead passion or bias.”

Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256-257, 1996-Ohio-159, 662 N.E.2d

1 (Internal citations and quotations omitted.)

{¶ 27} A suspect who volunteers information and is not asked any questions, is not

subject to a custodial interrogation and is not entitled to warnings pursuant to Miranda v.

Arizona (1966), 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694. State v. McGuire

(1997), 80 Ohio St.3d 390, 401, 1997-Ohio-335, 686 N.E.2d 1112, citing State v. Roe

(1989), 41 Ohio St.3d 18, 22, 535 N.E.2d 1351. In other words, “Miranda does not 11

affect the admissibility of ‘[v]olunteered statements of any kind.’” Id., citing Miranda,

supra at 478. Appellant’s spontaneous and voluntary statements need not have been

suppressed. The trial court did not err in denying suppression of appellant’s statements

because they were not made in response to any questions from the officers, they were

made spontaneously.

{¶ 28} The trial court determine that the unsolicited statements, appellant blurted

out were admissible under the hearsay exception of an excited utterance, which is defined

as: “A statement relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.” Evid.R. 803(2). “For

an alleged excited utterance to be admissible, four prerequisites must be satisfied: (1) a

startling event produced a nervous excitement in the declarant, (2) the statement was

made while still under the stress of excitement caused by the event, (3) the statement

related to the startling event, and (4) the declarant personally observed the startling event.

See State v. Brown (1996), 112 Ohio App.3d 583, 601, 679 N.E.2d 361.” State v. Ray,

189 Ohio App.3d 292, 2010-Ohio-2348, 938 N.E.2d 378, at ¶48. The circumstances

under which appellant made his statements do not meet this test or the plain language of

the rule. Significantly, appellant’s statements were not hearsay, but an admission by a

party-opponent.

{¶ 29} Evid.R. 801(D)(2) provides that a statement is not hearsay if it “is offered

against a party and is (a) the party's own statement[.]” Id. This has been applied to prior 12

statements made by a defendant to a third person and testified to by that witness during

trial. In State v. Thrasher, 2d Dist. No. 2004–CA–113, 2006-Ohio-1260, the court held

that a witness’ statement about what the defendant admitted to that witness was

admissible as a statement of a party-opponent because the statement was the defendant's

statement and was offered against him by the State. Id. at ¶55. See, also, State v.

Wilson, 5th Dist. No. 2005CA00102, 2005-Ohio-5959, at ¶33 (Defendant's statement

advising the police of his ownership of the vehicle from which cocaine was seized was

not hearsay); State v. Georgeoff, 9th Dist. No. 3195-M, 2002-Ohio-216 at *2 (Prior

statements by a defendant are admissible in a criminal trial without violating his right

against self-incrimination if they were voluntarily made and are relevant). Thus,

appellant’s voluntary statements made during booking to Officer Busse were admissible

at trial because it was proffered by the State against appellant as a statement of a party

opponent; it was not hearsay. Evid.R. 801(D)(2).

{¶ 30} Having determined that the trial court did not engage in any bias or

prejudice, and correctly admitted Orloski’s identification of appellant and appellant’s

statement while at CPU, appellant’s first assignment of error is without merit.

{¶ 31} His second assignment of error states:

{¶ 32} “The verdict was against the manifest weight of the evidence.”

Weight of the Evidence

{¶ 33} In State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 13

541, the Ohio Supreme Court illuminated its test for manifest weight of the evidence as

follows:

{¶ 34} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

It indicates clearly to the jury that the party having the burden of proof will be entitled to

their verdict if, on weighing the evidence in their minds, they shall find the greater

amount of credible evidence sustains the issue which is to be established before them.

Weight is not a question of mathematics, but depends on its effect in inducing belief.’

(Emphasis added.) Black’s [Law Dictionary (6 Ed.1990),] at 1594.”

{¶ 35} The court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses, and determines whether, 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. See State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The

discretionary power to grant a new trial should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction. Id. And in the context of

a bench trial, the above discussed presumption regarding the trial court’s consideration of

only relevant, material, and competent evidence controls. Bay, supra.

{¶ 36} Appellant argues that the admission of his statement and the array testimony

caused a miscarriage of justice, and that while the trial court was not convinced by the 14

witness identification alone, the admission of the additional tainted evidence to

supplement the identification was error. We find appellant’s argument without merit.

Even if we disregard the evidence appellant challenges on appeal, his conviction is not

against the manifest weight of the evidence.

{¶ 37} The police apprehended appellant fleeing from the stolen Malibu which

contained Orloski’s purse. Sgt. Bechtel testified that he responded to Noble Road, where

OnStar had tracked the Malibu, and saw the Malibu being following by a Monte Carlo

with the license plate “24 WINS.” Sgt. Bechtel followed the Malibu, and when it

stopped and appellant fled the vehicle, Sgt. Bechtel and Officer O’Leary continued the

foot chase of appellant and apprehended him, and the officers never lost sight of appellant

during the entire pursuit. Thus, we find no miscarriage of justice and appellant’s final

assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant 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 common

pleas court 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. – 15

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

*MARY DEGENARO, JUDGE

SEAN C. GALLAGHER, A.J., and JAMES J. SWEENEY, J., CONCUR

*(Sitting By Assignment: Judge Mary DeGenaro, of the Seventh District Court of Appeals).