[Cite as State v. Mitchell, 2013-Ohio-3761.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25349
v. : T.C. NO. 11CR3458
CHRISTOPHER D. MITCHELL : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 30th day of August , 2013.
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DANIEL E. BRINKMAN, Atty. Reg. No. 0025365, Suite 2000 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
YARBROUGH, J. (by assignment)
I. Introduction [Cite as State v. Mitchell, 2013-Ohio-3761.] {¶ 1} Appellant, Christopher Mitchell, appeals the judgment of the Montgomery
County Court of Common Pleas, finding him guilty of multiple offenses including failure to
comply with an order or signal of a police officer, receiving stolen property, and aggravated
robbery with a firearm specification. For the following reasons, we affirm.
A. Facts and Procedural Background
{¶ 2} On the morning of October 5, 2011, Mitchell entered the Shiloh Quick
Clean Laundromat on North Main Street in Harrison Township and robbed William Tipton
at gunpoint. While wearing a red t-shirt over his face in order to conceal his identity,
Mitchell ordered Tipton to “give me your keys and all your money or I’m going to kill you.”
After Tipton complied, Mitchell proceeded to drive off in Tipton’s red Dodge Avenger.
{¶ 3} The next day, Dayton Police spotted Mitchell driving Tipton’s vehicle and
a chase ensued. Mitchell was ultimately apprehended by the police, but only after he
crashed the Avenger and attempted to flee on foot. Mitchell was wearing a red t-shirt at the
time of his arrest.
{¶ 4} In an effort to determine whether Mitchell was the man who robbed Tipton,
detective Kent Saunders created a photographic lineup using the Montgomery County
Criminal Justice Information System (CJIS). The CJIS automatically generated a group of
photos that matched Mitchell’s physical characteristics. From that group of photos,
Saunders selected five photos of individuals that most closely matched Mitchell’s physical
appearance. Saunders’ goal in selecting the photos was to prevent one photo from standing
out from the rest of the photos.
{¶ 5} Tipton was subsequently contacted and asked to view the lineup. Saunders
asked detective Melony Phelps-Powers to administer the lineup as a “blind” administrator as 3
required under R.C. 2933.83, since Phelps-Powers had no prior knowledge of the case and
was unaware of Mitchell’s identity. After viewing the lineup, Tipton was able to identify
Mitchell as the man who robbed him on October 5.
{¶ 6} Two weeks after Tipton identified him as the robber, Mitchell was indicted
by the Montgomery County Grand Jury on one count of failure to comply with an order or
signal of a police officer in violation of R.C. 2921.331(B) and (C)(5), and one count of
receiving stolen property in violation of R.C. 2913.51(A). One month later, Mitchell was
indicted by the grand jury on one count of aggravated robbery in violation of R.C.
2911.01(A)(1), along with an attendant firearm specification. Mitchell initially pled not
guilty to all of the charges.
{¶ 7} On December 14, 2011, Mitchell moved to suppress his identification
stemming from the photographic lineup. A hearing was held, and, on April 9, 2012, the
trial court issued its decision overruling Mitchell’s motion.
{¶ 8} On August 9, 2012, Mitchell changed his initial plea as to the counts
contained in the first indictment. Consequently, he pled guilty to failure to comply with an
order or signal of a police officer, and no contest to receiving stolen property. A jury trial
was held on the aggravated robbery charge. Ultimately, Mitchell was found guilty of
aggravated robbery along with the firearm specification. At sentencing, Mitchell was
ordered to serve a total prison term of 12 years. Mitchell has since filed this timely appeal.
B. Assignment of Error
{¶ 9} On appeal, Mitchell assigns the following error for our review:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S 4
MOTION TO SUPPRESS THE PRETRIAL IDENTIFICATION OF
APPELLANT AS THE CONFRONTATION WAS UNDULY
SUGGESTIVE OF THE APPELLANT’S GUILT TO THE EXTENT THAT
THE IDENTIFICATION WAS UNRELIABLE AS A MATTER OF LAW
UNDER THE TOTALITY OF THE CIRCUMSTANCES.
II. Standard of Review
{¶ 10} The trial court assumes the role of the trier of facts when deciding a motion
to suppress and is in the best position to resolve conflicts in the evidence and determine the
credibility of the witnesses and the weight to be given to their testimony. State v.
Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Upon appellate review of
a decision on a motion to suppress, the court of appeals must accept the trial court's findings
of fact if they are supported by competent, credible evidence in the record. Id. The
appellate court must then independently determine, as a matter of law, without deference to
the trial court’s legal conclusion, whether the applicable legal standard is satisfied. Id.
III. Analysis
{¶ 11} In his sole assignment of error, Mitchell argues that the trial court erred in
overruling his motion to suppress. Specifically, Mitchell argues that the trial court should
have granted his motion because the lineup from which Tipton identified him as the robber
was unduly suggestive and unreliable.
{¶ 12} On a motion to suppress identification testimony, the accused “bears the
burden of showing that the identification procedure was ‘so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification’ and that the 5
identification itself was unreliable under the totality of the circumstances.” State v. Sherls,
2d Dist. Montgomery No. 18599, 2002 WL 254144, *2 (Feb. 22, 2002), quoting Neil v.
Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
{¶ 13} Mitchell contends that the photographic lineup was impermissibly
suggestive and resulted in his misidentification. He supports his argument by referencing
the fact that he was the only individual pictured in the lineup wearing a red t-shirt. Because
he was also wearing a red t-shirt on the day he was arrested, Mitchell contends that the
lineup was highly suggestive.
{¶ 14} In its order overruling Mitchell’s motion to suppress, the trial court stated:
There is no evidence of wrong-doing or improper conduct on the part
of Detective Saunders. Saunders stated in open court that the police exert no
control of what a defendant wears when being photographed for line-ups.
Therefore, Defendant was free to wear anything he wished, and it suggests no
misconduct on Saunders’ part for photographing Defendant in Defendant’s
choice of clothes.
In the photo line-up, Defendant’s shirt is least visible compared to the
other men in the line-up. One can only see about a quarter to a half inch of
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[Cite as State v. Mitchell, 2013-Ohio-3761.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25349
v. : T.C. NO. 11CR3458
CHRISTOPHER D. MITCHELL : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 30th day of August , 2013.
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DANIEL E. BRINKMAN, Atty. Reg. No. 0025365, Suite 2000 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
YARBROUGH, J. (by assignment)
I. Introduction [Cite as State v. Mitchell, 2013-Ohio-3761.] {¶ 1} Appellant, Christopher Mitchell, appeals the judgment of the Montgomery
County Court of Common Pleas, finding him guilty of multiple offenses including failure to
comply with an order or signal of a police officer, receiving stolen property, and aggravated
robbery with a firearm specification. For the following reasons, we affirm.
A. Facts and Procedural Background
{¶ 2} On the morning of October 5, 2011, Mitchell entered the Shiloh Quick
Clean Laundromat on North Main Street in Harrison Township and robbed William Tipton
at gunpoint. While wearing a red t-shirt over his face in order to conceal his identity,
Mitchell ordered Tipton to “give me your keys and all your money or I’m going to kill you.”
After Tipton complied, Mitchell proceeded to drive off in Tipton’s red Dodge Avenger.
{¶ 3} The next day, Dayton Police spotted Mitchell driving Tipton’s vehicle and
a chase ensued. Mitchell was ultimately apprehended by the police, but only after he
crashed the Avenger and attempted to flee on foot. Mitchell was wearing a red t-shirt at the
time of his arrest.
{¶ 4} In an effort to determine whether Mitchell was the man who robbed Tipton,
detective Kent Saunders created a photographic lineup using the Montgomery County
Criminal Justice Information System (CJIS). The CJIS automatically generated a group of
photos that matched Mitchell’s physical characteristics. From that group of photos,
Saunders selected five photos of individuals that most closely matched Mitchell’s physical
appearance. Saunders’ goal in selecting the photos was to prevent one photo from standing
out from the rest of the photos.
{¶ 5} Tipton was subsequently contacted and asked to view the lineup. Saunders
asked detective Melony Phelps-Powers to administer the lineup as a “blind” administrator as 3
required under R.C. 2933.83, since Phelps-Powers had no prior knowledge of the case and
was unaware of Mitchell’s identity. After viewing the lineup, Tipton was able to identify
Mitchell as the man who robbed him on October 5.
{¶ 6} Two weeks after Tipton identified him as the robber, Mitchell was indicted
by the Montgomery County Grand Jury on one count of failure to comply with an order or
signal of a police officer in violation of R.C. 2921.331(B) and (C)(5), and one count of
receiving stolen property in violation of R.C. 2913.51(A). One month later, Mitchell was
indicted by the grand jury on one count of aggravated robbery in violation of R.C.
2911.01(A)(1), along with an attendant firearm specification. Mitchell initially pled not
guilty to all of the charges.
{¶ 7} On December 14, 2011, Mitchell moved to suppress his identification
stemming from the photographic lineup. A hearing was held, and, on April 9, 2012, the
trial court issued its decision overruling Mitchell’s motion.
{¶ 8} On August 9, 2012, Mitchell changed his initial plea as to the counts
contained in the first indictment. Consequently, he pled guilty to failure to comply with an
order or signal of a police officer, and no contest to receiving stolen property. A jury trial
was held on the aggravated robbery charge. Ultimately, Mitchell was found guilty of
aggravated robbery along with the firearm specification. At sentencing, Mitchell was
ordered to serve a total prison term of 12 years. Mitchell has since filed this timely appeal.
B. Assignment of Error
{¶ 9} On appeal, Mitchell assigns the following error for our review:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S 4
MOTION TO SUPPRESS THE PRETRIAL IDENTIFICATION OF
APPELLANT AS THE CONFRONTATION WAS UNDULY
SUGGESTIVE OF THE APPELLANT’S GUILT TO THE EXTENT THAT
THE IDENTIFICATION WAS UNRELIABLE AS A MATTER OF LAW
UNDER THE TOTALITY OF THE CIRCUMSTANCES.
II. Standard of Review
{¶ 10} The trial court assumes the role of the trier of facts when deciding a motion
to suppress and is in the best position to resolve conflicts in the evidence and determine the
credibility of the witnesses and the weight to be given to their testimony. State v.
Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Upon appellate review of
a decision on a motion to suppress, the court of appeals must accept the trial court's findings
of fact if they are supported by competent, credible evidence in the record. Id. The
appellate court must then independently determine, as a matter of law, without deference to
the trial court’s legal conclusion, whether the applicable legal standard is satisfied. Id.
III. Analysis
{¶ 11} In his sole assignment of error, Mitchell argues that the trial court erred in
overruling his motion to suppress. Specifically, Mitchell argues that the trial court should
have granted his motion because the lineup from which Tipton identified him as the robber
was unduly suggestive and unreliable.
{¶ 12} On a motion to suppress identification testimony, the accused “bears the
burden of showing that the identification procedure was ‘so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification’ and that the 5
identification itself was unreliable under the totality of the circumstances.” State v. Sherls,
2d Dist. Montgomery No. 18599, 2002 WL 254144, *2 (Feb. 22, 2002), quoting Neil v.
Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
{¶ 13} Mitchell contends that the photographic lineup was impermissibly
suggestive and resulted in his misidentification. He supports his argument by referencing
the fact that he was the only individual pictured in the lineup wearing a red t-shirt. Because
he was also wearing a red t-shirt on the day he was arrested, Mitchell contends that the
lineup was highly suggestive.
{¶ 14} In its order overruling Mitchell’s motion to suppress, the trial court stated:
There is no evidence of wrong-doing or improper conduct on the part
of Detective Saunders. Saunders stated in open court that the police exert no
control of what a defendant wears when being photographed for line-ups.
Therefore, Defendant was free to wear anything he wished, and it suggests no
misconduct on Saunders’ part for photographing Defendant in Defendant’s
choice of clothes.
In the photo line-up, Defendant’s shirt is least visible compared to the
other men in the line-up. One can only see about a quarter to a half inch of
his red collar whereas in the other photos one can see as far down as the
suspects’ collar bones. This factor is in Defendant’s favor because the focus
on his clothes is least of all.
{¶ 15} Upon review of the record before us, we agree with the trial court that the
photographic lineup was not impermissibly suggestive. At the outset, we note that use of a 6
computerized method of creating lineups, such as the one used in this case, “avoids most
potential unfairness and almost any claim that the lineup was suggestive.” State v. Carter,
2d Dist. Montgomery No. 21145, 2006-Ohio-2823, ¶ 34, citing State v. Beckham, 2d Dist.
Montgomery No. 19544, 2003-Ohio-3837; State v. Beddow, 2d Dist. Montgomery Nos.
16197 and 16198, 1998 WL 126876 (Mar. 20, 1998). Moreover, we see no reason to
conclude that the manner in which this particular photographic lineup was presented to
Tipton was suggestive. The testimony offered at the suppression hearing reveals that
Saunders attempted to keep the amount of clothing shown in the photographs to a minimum.
Further, the lineup was administered by a “blind” administrator with no knowledge of the
case or the identity of the suspect, as required under R.C. 2933.83.
{¶ 16} Notwithstanding these facts, Mitchell argues that the lineup was suggestive
based on Tipton’s exposure to television news coverage of Mitchell’s arrest in which
Mitchell was shown wearing a red t-shirt. Mitchell argues that the lineup was suggestive
because he was the only individual wearing a red t-shirt. Notably, the fact that Tipton saw
Mitchell’s arrest on the television was not known to the trial court at the time it was ruling
on the motion to suppress. Instead, Mitchell’s argument is based on evidence that was
introduced at trial. In any event, Mitchell’s argument fails because Tipton testified that he
was able to identify Mitchell by his eyes, not his t-shirt. Finally, we have viewed the color
photospread exhibit. The red shirt is barely visible and not distinctive. The photospread is
not suggestive.
{¶ 17} Having concluded that the photographic lineup and the manner in which it
was presented to Tipton was not impermissibly suggestive, we hold that the trial court did 7
not err in denying Mitchell’s motion to suppress. Because the lineup was not impermissibly
suggestive, we need not consider its reliability. Beckham, supra.
{¶ 18} Accordingly, Mitchell’s sole assignment of error is overruled.
IV. Conclusion
{¶ 19} Mitchell’s sole assignment having been overruled, the judgment of the
Montgomery County Court of Common Pleas is affirmed.
HALL, J. and WELBAUM, J., concur.
(Hon. Stephen A. Yarbrough, Sixth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Kirsten A. Brandt Daniel E. Brinkman Hon. Barbara P. Gorman