[Cite as State v. Lewis, 2011-Ohio-5967.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 24271 Plaintiff-Appellee : : Trial Court Case No. 2009-CR-1538 v. : : (Criminal Appeal from THERON E. LEWIS : (Common Pleas Court) : Defendant-Appellant : : ...........
OPINION
Rendered on the 18th day of November, 2011.
...........
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. #0053392, Talbott Tower, Suite 1210, 131 North Ludlow Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
KLINE, J. (sitting by assignment)
{¶ 1} Theron Everett Lewis (hereinafter “Lewis”) appeals the judgment of the
Montgomery County Court of Common Pleas, which found him guilty of various
crimes related to a shooting. On appeal, Lewis argues that the trial court should
have suppressed the identification testimony of two witnesses. Because the 2
identification process was not unnecessarily suggestive, we disagree. Accordingly,
we overrule Lewis’s assignment of error and affirm the judgment of the trial court.
I
{¶ 2} On May 11, 2009, a shooting took place at a church. After the
shooting, Detective Daryl Smith (hereinafter “Detective Smith”) interviewed Witness
One at the Safety Building. Witness One did not know who the shooter was, but he
said that the shooter “had on a kind of like a jacket with a hoodie on it.” Transcript at
37.
{¶ 3} After interviewing Witness One, Detective Smith learned that Lewis
might be involved in the shooting. Detective Smith shared this information with
Detective Gregory Gaier (hereinafter “Detective Gaier”). Coincidentally, Detective
Gaier had compiled a photo array while investigating Lewis’s involvement in an
unrelated crime. The photo array compiled by Detective Gaier includes six
photographs of young African-American males, with Lewis’s photograph in the third
position. In the photo array, Lewis appears to be wearing some type of jacket or
bulkier clothing. The other five men, however, appear to be wearing t-shirts.
Detective Gaier gave copies of this photo array to Detective Smith for use in the
shooting investigation.
{¶ 4} On May 12, 2009, Detective Smith showed the photo array to Witness
One. Within five seconds, Witness One identified Lewis as the shooter. Upon
further questioning, Witness One claimed that he did not know Lewis before the
shooting. 3
{¶ 5} On May 13, 2009, Detective Smith made his initial contact with Witness
Two. During this initial interview, Detective Smith showed Witness Two the photo
array. Within five seconds, Witness Two identified Lewis as the shooter. Upon
further questioning, Witness Two also claimed that he did not know Lewis before the
shooting.
{¶ 6} After interviewing Witnesses One and Two, Detective Smith compiled a
new photo array for use in the investigation. As before, the newer photo array
includes six photographs of young African American males. But unlike before, the
newer photo array includes (1) Lewis’s photograph in the fourth position and (2) a
more recent picture of Lewis wearing a t-shirt.
{¶ 7} On June 8, 2009, Detective Smith interviewed Witness Three at the
Montgomery County Jail. During this interview, Detective Smith showed Witness
Three the newer photo array. Within ten seconds, Witness Three identified Lewis
as the shooter.
{¶ 8} On June 15, 2009, a Montgomery County Grand Jury indicted Lewis for
numerous crimes related to the shooting.
{¶ 9} On February 16, 2010, Lewis filed a motion to suppress any
identification testimony. Lewis claimed, in part, that Detective Smith’s identification
procedures were unduly suggestive. After a suppression hearing, however, the trial
court overruled Lewis’s motion.
{¶ 10} Eventually, Lewis pled no contest to four counts of felonious assault,
one count of discharge of a firearm on or near prohibited premises, and one count of
having weapons while under disability. After accepting Lewis’s no-contest pleas, the 4
trial court found him guilty of all six crimes and sentenced him accordingly.
{¶ 11} Lewis appeals and asserts the following assignment of error:
{¶ 12} “THE IDENTIFICATION OF APPELLANT BY GOVERNMENT
WITNESSES [WITNESS ONE] AND [WITNESS TWO] AROSE FROM
PHOTOGRAPHIC LINEUPS THAT WERE UNDULY SUGGESTIVE AND VIOLATED
APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS.”
II
{¶ 13} In his sole assignment of error, Lewis contends that the trial court
should have suppressed the identification testimony of Witness One and Witness
Two.
{¶ 14} As the Supreme Court of Ohio has held, “Appellate review of a motion
to suppress presents a mixed question of law and fact. 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. * * *
Consequently, an appellate court must accept the trial court’s findings of fact if they
are supported by competent, credible evidence. * * * Accepting these facts as true,
the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8 (citations omitted).
See, also, State v. D’Allesandris, Greene App. No. 23889, 2011-Ohio-1126, at ¶13.
{¶ 15} We “apply a two-prong test in determining the admissibility of
challenged identification testimony. First, the defendant bears the burden of
demonstrating that the identification procedure was unnecessarily suggestive. If this 5
burden is met, the court must then consider whether the procedure was so unduly
suggestive as to give rise to irreparable mistaken identification.” State v. Robinson,
Cuyahoga App. No. 94293, 2010-Ohio-5776, at ¶14, citing State v. Page, Cuyahoga
App. No. 84341, 2005-Ohio-1493, at ¶12; Manson v. Brathwaite (1977), 432 U.S. 98,
114, 97 S.Ct. 2243, 53 L.Ed.2d 140.
{¶ 16} “When an eyewitness to a crime is shown a series of photographs in an
effort to identify a perpetrator, and the manner or mode of the presentation suggests
that one individual is more likely than the others to be the perpetrator -- such as when
the photograph of one individual is in some way emphasized -- undue suggestion
may occur, increasing the likelihood of misidentification and violating the due process
rights of a defendant so identified. * * * Identification testimony tainted by an unduly
suggestive out-of-court identification procedure may be suppressed. However, even
if an identification procedure is unduly suggestive, the identification testimony derived
therefrom is not per se inadmissible solely for that reason. Reliability of the
identification is the linchpin in determining its admissibility. * * * As long as the
identification itself is reliable, it is admissible despite the suggestive nature of the
identification procedure. * * * Reliability is determined from the ‘totality of the
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Lewis, 2011-Ohio-5967.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 24271 Plaintiff-Appellee : : Trial Court Case No. 2009-CR-1538 v. : : (Criminal Appeal from THERON E. LEWIS : (Common Pleas Court) : Defendant-Appellant : : ...........
OPINION
Rendered on the 18th day of November, 2011.
...........
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. #0053392, Talbott Tower, Suite 1210, 131 North Ludlow Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
KLINE, J. (sitting by assignment)
{¶ 1} Theron Everett Lewis (hereinafter “Lewis”) appeals the judgment of the
Montgomery County Court of Common Pleas, which found him guilty of various
crimes related to a shooting. On appeal, Lewis argues that the trial court should
have suppressed the identification testimony of two witnesses. Because the 2
identification process was not unnecessarily suggestive, we disagree. Accordingly,
we overrule Lewis’s assignment of error and affirm the judgment of the trial court.
I
{¶ 2} On May 11, 2009, a shooting took place at a church. After the
shooting, Detective Daryl Smith (hereinafter “Detective Smith”) interviewed Witness
One at the Safety Building. Witness One did not know who the shooter was, but he
said that the shooter “had on a kind of like a jacket with a hoodie on it.” Transcript at
37.
{¶ 3} After interviewing Witness One, Detective Smith learned that Lewis
might be involved in the shooting. Detective Smith shared this information with
Detective Gregory Gaier (hereinafter “Detective Gaier”). Coincidentally, Detective
Gaier had compiled a photo array while investigating Lewis’s involvement in an
unrelated crime. The photo array compiled by Detective Gaier includes six
photographs of young African-American males, with Lewis’s photograph in the third
position. In the photo array, Lewis appears to be wearing some type of jacket or
bulkier clothing. The other five men, however, appear to be wearing t-shirts.
Detective Gaier gave copies of this photo array to Detective Smith for use in the
shooting investigation.
{¶ 4} On May 12, 2009, Detective Smith showed the photo array to Witness
One. Within five seconds, Witness One identified Lewis as the shooter. Upon
further questioning, Witness One claimed that he did not know Lewis before the
shooting. 3
{¶ 5} On May 13, 2009, Detective Smith made his initial contact with Witness
Two. During this initial interview, Detective Smith showed Witness Two the photo
array. Within five seconds, Witness Two identified Lewis as the shooter. Upon
further questioning, Witness Two also claimed that he did not know Lewis before the
shooting.
{¶ 6} After interviewing Witnesses One and Two, Detective Smith compiled a
new photo array for use in the investigation. As before, the newer photo array
includes six photographs of young African American males. But unlike before, the
newer photo array includes (1) Lewis’s photograph in the fourth position and (2) a
more recent picture of Lewis wearing a t-shirt.
{¶ 7} On June 8, 2009, Detective Smith interviewed Witness Three at the
Montgomery County Jail. During this interview, Detective Smith showed Witness
Three the newer photo array. Within ten seconds, Witness Three identified Lewis
as the shooter.
{¶ 8} On June 15, 2009, a Montgomery County Grand Jury indicted Lewis for
numerous crimes related to the shooting.
{¶ 9} On February 16, 2010, Lewis filed a motion to suppress any
identification testimony. Lewis claimed, in part, that Detective Smith’s identification
procedures were unduly suggestive. After a suppression hearing, however, the trial
court overruled Lewis’s motion.
{¶ 10} Eventually, Lewis pled no contest to four counts of felonious assault,
one count of discharge of a firearm on or near prohibited premises, and one count of
having weapons while under disability. After accepting Lewis’s no-contest pleas, the 4
trial court found him guilty of all six crimes and sentenced him accordingly.
{¶ 11} Lewis appeals and asserts the following assignment of error:
{¶ 12} “THE IDENTIFICATION OF APPELLANT BY GOVERNMENT
WITNESSES [WITNESS ONE] AND [WITNESS TWO] AROSE FROM
PHOTOGRAPHIC LINEUPS THAT WERE UNDULY SUGGESTIVE AND VIOLATED
APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS.”
II
{¶ 13} In his sole assignment of error, Lewis contends that the trial court
should have suppressed the identification testimony of Witness One and Witness
Two.
{¶ 14} As the Supreme Court of Ohio has held, “Appellate review of a motion
to suppress presents a mixed question of law and fact. 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. * * *
Consequently, an appellate court must accept the trial court’s findings of fact if they
are supported by competent, credible evidence. * * * Accepting these facts as true,
the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8 (citations omitted).
See, also, State v. D’Allesandris, Greene App. No. 23889, 2011-Ohio-1126, at ¶13.
{¶ 15} We “apply a two-prong test in determining the admissibility of
challenged identification testimony. First, the defendant bears the burden of
demonstrating that the identification procedure was unnecessarily suggestive. If this 5
burden is met, the court must then consider whether the procedure was so unduly
suggestive as to give rise to irreparable mistaken identification.” State v. Robinson,
Cuyahoga App. No. 94293, 2010-Ohio-5776, at ¶14, citing State v. Page, Cuyahoga
App. No. 84341, 2005-Ohio-1493, at ¶12; Manson v. Brathwaite (1977), 432 U.S. 98,
114, 97 S.Ct. 2243, 53 L.Ed.2d 140.
{¶ 16} “When an eyewitness to a crime is shown a series of photographs in an
effort to identify a perpetrator, and the manner or mode of the presentation suggests
that one individual is more likely than the others to be the perpetrator -- such as when
the photograph of one individual is in some way emphasized -- undue suggestion
may occur, increasing the likelihood of misidentification and violating the due process
rights of a defendant so identified. * * * Identification testimony tainted by an unduly
suggestive out-of-court identification procedure may be suppressed. However, even
if an identification procedure is unduly suggestive, the identification testimony derived
therefrom is not per se inadmissible solely for that reason. Reliability of the
identification is the linchpin in determining its admissibility. * * * As long as the
identification itself is reliable, it is admissible despite the suggestive nature of the
identification procedure. * * * Reliability is determined from the ‘totality of the
circumstances,’ which includes the witness’ opportunity to view the criminal at the
time of the crime, the witness’ degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated, and the time between
the crime and the identification procedure.” State v. Robinson (Jan. 26, 2001),
Montgomery App. No. 17393 (internal citations omitted). See, also, Neil v. Biggers
(1972), 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401; State v. Gales, 6
Montgomery App. No. 24059, 2011-Ohio-2682, at ¶60.
III
{¶ 17} Initially, Lewis advances an argument based on the photo array
compiled by Detective Gaier. At the crime scene, witnesses said that the shooter
wore a hoodie. And in the photo array compiled by Detective Gaier, Lewis claims
that he is the only person wearing a hoodie. For these reasons, Lewis argues that
the hoodie in the photo array caused Witness One and Witness Two to identify Lewis
as the shooter. In other words, Lewis argues that the photo array was unduly
suggestive. For the following reasons, we disagree.
{¶ 18} Even though witnesses said that the shooter wore a hoodie, we find
that the photo array was not unduly suggestive. First, all of the men in the photo
array share several important characteristics -- that is, they all appear to be young
African Americans with short hair and some facial hair. Furthermore, after
examining the photo array, we agree with the state that, “[a]lthough Lewis appears to
be wearing a jacket of some sort in Exhibits 1 and 2, no hood is visible in the photo.
Thus, while Lewis appears to be wearing layers or bulkier clothing than the other five
men depicted in the array, it is not obvious that he is wearing a hoodie.” Brief of The
State of Ohio, Appellee at 4-5. Because there is no hood visible in the photograph,
there was no suggestion that Lewis was more likely to be the perpetrator.
IV
{¶ 19} Next, Lewis advances an argument based solely on Witness One.
According to Lewis, Witness One had reason to believe that the suspect’s picture 7
was included in the photo array. For that reason, Lewis argues that the identification
process related to Witness One was unduly suggestive. We, however, find no merit
in this argument.
{¶ 20} At the suppression hearing, Detective Smith was cross-examined about
his interactions with Witness One. Lewis claims that the following testimony
demonstrates undue suggestion:
{¶ 21} “Q. And how long did you interview [Witness One] at the Safety Building
the day before?
{¶ 22} “A. Maybe 20 minutes.
{¶ 23} “Q. Okay. And after you let [Witness One] go on that particular day or
he went home, did you tell him you’d be coming the next day with a photo spread for
him to look at?
{¶ 24} “A. No, but I told him I would try to find out who this was and get back
with him with a photo spread.
{¶ 25} “Q. Okay. In other words, you told [Witness One] that you were
looking for a suspect and after you [were] able to locate one, you would be back with
him. So, based on that, he could really assume that if you showed him a photo
spread that most likely somebody in that photo spread was who you had decided
may be responsible for this crime; would that be a fair assumption?
{¶ 26} “A. No. I mean, that’s up to him.
{¶ 27} “Q. I understand, but would that be a fair assumption?
{¶ 28} “A. Yeah, maybe. Yeah.” Transcript at 44-45.
{¶ 29} Even if Witness One could have assumed that the photo array included 8
a picture of the suspect, we find that the identification process was not unduly
suggestive. We base this finding on the mitigating instructions that Detective Smith
gave to Witness One. Before showing Witness One the photo array, Detective
Smith said, “I am going to show you a group of photographs. This group of
photographs may or may not contain a picture of the person who committed the
crime now being investigated.” Photographic Show-Up Instructions (Emphasis
added.) In our view, this statement mitigated any assumptions that Witness One
might have had before he saw the photo array.
V
{¶ 30} For the foregoing reasons, we find that the identification process was
not unnecessarily suggestive. As a result, we need not address the second prong of
the identification-testimony test (the reliability prong). Accordingly, we overrule
Lewis’s assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
GRADY, P.J., and FAIN, J., concur.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck R. Lynn Nothstine Jeffrey T. Gramza Hon. Frances E. McGee 9