[Cite as State v. Moon, 2013-Ohio-395.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25061 Plaintiff-Appellee : : Trial Court Case No. 11-CR-1356/3 v. : : EARL L. MOON : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 8th day of February, 2013.
...........
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post Office Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JAMES S. ARMSTRONG, Atty. Reg. #0020638, 131 North Ludlow Street, Suite 386 Talbott Tower, Dayton, Ohio 45402-1731 Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Earl Moon appeals from his conviction and sentence on
two counts of Murder, in violation of R.C. 2903.02(B), with firearm specifications; twelve 2
counts of Aggravated Robbery, in violation of R.C. 2911.01(A), with firearm specifications;
and one count of Having a Weapon While Under a Disability, in violation of R.C.
2923.13(A)(2). Moon contends that his convictions are against the manifest weight of the
evidence, and that the trial court erred in overruling his motion to suppress eyewitness
identification evidence.
{¶ 2} We conclude that Moon’s convictions are not against the manifest weight of
the evidence. We also conclude that the trial court did not err in overruling his motion to
suppress. The procedure used by the police in conducting the photo-spread identifications
was not in compliance with R.C. 2933.83, because a blind administrator, as defined therein,
was not used, and the impracticality of using a blind administrator was not documented.
Nevertheless, the procedure followed was not unduly suggestive; therefore, it did not violate
Moon’s rights under the Due Process Clause, and the remedy of exclusion was not triggered.
Accordingly, the judgment of the trial court is Affirmed.
I. Three Men Rob a Boot Joint at Gunpoint,
and in the Process Shoot and Kill the Owner and One Patron
{¶ 3} Earnest “Hank” Sanders operated a “boot joint” in the basement of his
residence. He sold liquor and food, without a license. Many of his patrons worked in
regular bars, and came to Sanders’s place after work to relax and be waited upon. Shawn
Dentel, who lived with him, assisted in the running of the boot joint.
{¶ 4} During the early morning hours of November 14, 2010, Sanders was open for
business. Three young men, described as about twenty years old, entered the bar. All three 3
were African-American. One, later identified as Keron Simpson, had a much darker
complexion than the other two; he also had dreadlocks. Of the two lighter-skinned men, the
one later identified as Daviontae Norvell had somewhat darker skin than the other, who was
later identified as Moon. Moon had hazel-colored eyes, which at least one witness described
as distinctive.
{¶ 5} The three men sat by themselves at a table near the restroom. Sanders did not
generally cater to persons as young as the three men, but he went over to them and was seen
shaking hands with them after talking with them for about 45 minutes. Dentel took this to
mean that Sanders was O.K. with them. Over about an hour, the three each had three “Bud
Ice” beers. Their beer bottles were deposited in a trash container, which was periodically
emptied into an outside trash container, specific to the Sanders residence.
{¶ 6} Suddenly, the three men, each with gun drawn, announced their intention to
rob the boot joint and its patrons. One of the men began backing Sanders up. Sanders was
shot in the leg, although it is not clear who fired the shot. Sanders’s femoral artery was
severed; he bled to death. Another shot was fired. Michelle Carter, one of the patrons, was
shot in the head, and appeared to die instantly. From the record, it appears possible, if not
likely, that Carter was not an intended target, but had the misfortune to have been in the wrong
place at the wrong time.
II. The Course of Proceedings
{¶ 7} Moon, Simpson, and Norvell were ultimately charged by indictment with the
crimes committed at the boot joint. All three moved to suppress eyewitness identification 4
evidence. A joint hearing on their motions was held, following which the trial court rendered
a decision denying the motions.
{¶ 8} Subsequently to the denial of the motions to suppress, the police became
aware that Michael Stephens, a prisoner in the Butler County Jail, had information linking
Moon, whom he knew, to the crimes. Police officer Rebecca Rose went to the Butler County
Jail and conducted a photo-spread identification procedure with Stephens to make sure that the
person he was talking about was the same person as the Earl Moon who was the defendant in
this case. That procedure was conducted in the presence of Stephens’s attorney, and resulted
in the identification of Moon.
{¶ 9} Moon filed a new motion to suppress the Stephens identification. The trial
court heard it, and denied it. Because Stephens did not testify at Moon’s trial, the propriety of
this ruling is not an issue in this appeal.
{¶ 10} The trial court granted Moon’s motion to sever his trial from that of the other
defendants. With the exception of the Having a Weapon While Under a Disability count,
which was tried to the court, Moon was tried to a jury. He was convicted on all counts and
specifications. From his convictions and sentence, Moon appeals.
III. The Photo-Spread Identification Procedure in this Case, While Not in Compliance
with R.C. 2933.83, Was Not Unduly Suggestive
{¶ 11} Moon’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO
SUPPRESS THE PHOTO SPREAD IDENTIFICATIONS AS POLICE FAILED TO 5
COMPLY WITH R.C. §2933.83 AND SAID IDENTIFICATIONS WERE UNDULY
SUGGESTIVE AND UNRELIABLE.
{¶ 12} When Moon, Simpson, and Norvell were identified as possible suspects in the
crimes, Dayton Police Detective Rebecca Rose assembled three photo-spreads to show to the
eyewitnesses, one for each suspect. By this time, R.C. 2933.83 was in effect, governing the
procedure for photo-spread identifications. The Dayton Police Department had incorporated
the statutory requirements into its own written policy for eyewitness identification.
{¶ 13} Rose used JusticeWeb, a regional computer data base of photographs and
identifiers, to assemble the photo-spreads. Each spread had six photos, one of which was one
of the three suspects, with the other five being “fillers.” Rose used the program’s default
parameters for the permitted variance in the height, weight and age of the fillers. The statute
does not require the use of JusticeWeb to compile a photo-spread.
{¶ 14} Although the statute does not require it, Rose used color photographs. A
color photo-spread was shown to each eyewitness, and if an identification was made, the
appropriate selection was marked on a black-and-white copy of the photo-spread.
{¶ 15} Fillers with similar skin-color were chosen. Rose was concerned about
Simpson’s distinctive hairstyle, and Moon’s distinctive, hazel colored eyes. She made efforts
to choose fillers that were as similar as possible, but only was able to find one filler with hazel
colored eyes. She did find another filler, for Moon’s photo-spread, with “different” colored
eyes. The other three fillers had brown eyes.
{¶ 16} Rose let the computer randomly select the position that the suspect would
occupy in the photo-spread. She testified that if one suspect’s position had been the same as 6
another’s (e.g., Simpson is in position number three in his spread, and Moon is also in position
number three in Moon’s spread), she would have re-shuffled, so that each suspect would
occupy a different position in that suspect’s spread. She testified that she would have done
this to avoid the possibility that a witness, having identified one suspect, would conclude that
the suspect in a subsequent photo-spread would be found in the same position. As it
happened, each suspect occupied a different position in that suspect’s photo-spread generated
by the computer. Moon was in position number one in his photo-spread.
{¶ 17} Rose also wanted to conduct the photo-spread identifications by the various
witnesses at the same time, to the extent possible, to minimize the risk that the witnesses
would discuss the identifications with each other, even though they were instructed not to do
so. For this reason, three teams of officers conducted photo-spread identifications, using the
photo-spreads Rose had generated, on January 3, 2011, with all but one of the witnesses. The
remaining witness, Vanessa Dubbins, was shown the photo-spread the next day. She could
not identify Moon, and she did not testify at Moon’s trial.
{¶ 18} Rose administered the photo-spread identification to seven witnesses. Three
of these could not identify any of the suspects. Three, including Terrance Jones, who testified
at trial, identified Moon. Another witness, Joe Barnes, said that Moon and one filler looked
like the perpetrator with the hazel eyes, but could not positively identify Moon. Rose testified
that she read the instructions to the witnesses verbatim, with the exception of the statement
that she did not know who the suspect was. Of course, she did know who each suspect was.
The instructions included the statement that the perpetrator might, or might not, be included in
the photo-spread. Rose testified that she did not pressure any witness to make an 7
identification, accepted the witness’s failure to make an identification immediately, without
any further discussion or comment, and did not inform any of the witnesses that they had
correctly identified the suspect.
{¶ 19} Dayton Police Detective Gregory Gaier administered the photo-spread
identification to two witnesses. Shawn Dentel identified Moon, and testified at trial. Joel
Kimbell did not identify Moon. Gaier followed the same procedure that Rose followed.
{¶ 20} Dayton Police Detective Kevin Phillips administered the photo-spread
identification to three witnesses. Annette Dillard did not identify Moon. She did testify at
his trial, but was not able to identify him. Brian Whiteside and Erica Peek both identified
Moon, but neither testified at trial. Phillips followed the same procedure that Rose followed,
except that he did read that part of the instructions that said that he did not know who the
suspect was, even though he did, in fact, know who each suspect was.
{¶ 21} In arguing that the photo-spread identification procedure was unduly
suggestive, Moon principally relies upon the fact that blind administrators were not used.
R.C. 2933.83(B)(1) requires that a blind or blinded administrator shall conduct a photo lineup,
“unless impracticable.” R.C. 2933.83(B)(2) requires that when it is impracticable for a blind
administrator to conduct the lineup, “the administrator shall state in writing the reason for that
impracticability.”
{¶ 22} A “blind administrator” is an administrator who does not know the identity of
the suspect. R.C. 2933.83(A)(2). A “blinded administrator” is an administrator who knows
the identify of the suspect, but does not know which lineup member is being viewed by the
eyewitness. R.C. 2933.83(A)(3). [Cite as State v. Moon, 2013-Ohio-395.] {¶ 23} There is no question that the police officers who administered the
photo-spread identifications to the twelve eyewitnesses on January 3 and 4, 2011, were neither
blind nor blinded administrators, as defined by the statute. There is also no question that
none of them stated in writing the reason why it was impracticable to have a blind or blinded
administrator conduct the procedure. Thus, R.C. 2933.83 was not complied with, and the
trial court so found.
{¶ 24} Rose, who knew about the new statutory requirements, did testify why she did
not use blind administrators. She testified that the department was short-handed, and that one
of the suspects, Simpson, was notorious within the department because he had recently been
accused of having shot a Dayton police officer’s son in the face. And she testified that they
wanted to conduct all twelve photo-spread identifications in as brief a time as possible, so as
to avoid the likelihood of the witnesses discussing the identifications with one another. To
the extent that these circumstances may have constituted an impracticality, in Moon’s case, of
using blind or blinded administrators, they were not documented in writing.
{¶ 25} Rose and the other officers also testified that when these photo-spreads were
shown to the eyewitnesses, this matter was proceeding as a federal investigation, and it was
understood that it would be a federal prosecution, which is not subject to blind administrator
requirements. While this may have been a reason for the officers’ failure to have complied
with Ohio statutory requirements, it would not constitute impracticality.
{¶ 26} The Ohio statute also provides for some consequences for failure to comply.
Failure to comply “shall be considered by trial courts in adjudicating motions to suppress
eyewitness identification resulting from or related to the lineup.” R.C. 2933.83(C)(1). And
when evidence of failure to comply is presented at trial, “the jury shall be instructed that it 9
may consider credible evidence of noncompliance in determining the reliability of any
eyewitness identification resulting from or related to the lineup.” R.C. 2933.83(C)(3).
{¶ 27} The trial court issued an eleven-page decision overruling the motion to
suppress, in which it gave consideration to the fact that the police officers administering the
photo-spread identifications failed to comply with the blind-administrator requirements of the
statute. At trial, Moon’s counsel touched upon the failure of the police to comply with legal
requirements, generally, in voir dire, discussed the failure to comply with the
blind-administrator requirements of the statute in opening statement, cross-examined the
appropriate witnesses on that subject, and argued non-compliance with the blind-administrator
requirements during closing argument. And the trial court appropriately instructed the jury
concerning the non-compliance with the statute.
{¶ 28} Significantly, although R.C. 2933.83(C)(1) provides that the trial court must
consider non-compliance with the provisions of the statute in adjudicating a motion to
suppress eyewitness identification testimony, it does not provide that non-compliance, by
itself, requires suppression of the testimony. In dictum, we have said that the “penalty” for
failure to comply with the statute is not suppression, but the other remedies provided for in the
statute. State v. Stevenson, 2d Dist. Montgomery No. 24821, 2012-Ohio-3396, ¶ 16, citing
State v. Ruff, 1st Dist. Hamilton No. C-110250, 2012-Ohio-1910, which, at ¶ 7, holds that the
statute “does not provide an independent ground for suppression[.]”
{¶ 29} We conclude that the failure of the police officers in this case to use blind
administrators, as required by the statute, does not, by itself, require suppression of the
evidence. 10
{¶ 30} The issue, then, is whether the identification procedure used was so
impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.
State v. Taylor, 2d Dist. Montgomery No. 22232, 2008-Ohio-6048, ¶ 12, citing Neil v.
Biggers, 409 U.S. 188, 93 S.Ct. 374, 34 L.Ed.2d 401 (1972). Suppression also requires a
finding that the identification was, in fact, unreliable under the totality of circumstances. Id.
The trial court in the case before us concluded that Moon failed to clear the first of these
hurdles by establishing that the identification procedure used in his case was so impermissibly
suggestive as to give rise to a very substantial likelihood of misidentification. We agree.
{¶ 31} To begin with, the trial court found the testimony of the police officers at the
suppression hearing to be “credible and believable.” The trial court concluded that they did
nothing, “by word or gesture,” to suggest to the witnesses who the suspects were in the
photo-spreads. In reaching this conclusion, the trial court was impressed, as we are, with the
number of witnesses who were unable to identify any of the defendants, and the number who
identified one, but not all, of the defendants. The trial court further noted that Rose dealt with
the difficulty of Moon’s hazel colored eyes “in an appropriate manner.”
{¶ 32} Although the procedure used did not follow the statutory requirement of a
blind administrator, it exceeded the requirements in other ways: the use of color photographs,
the use of JusticeWeb, the conducting of all of the photo-spread identifications within the
shortest time possible to avoid witnesses discussing their identifications with one another, and
the officers’ not telling the witnesses who made an identification that they had, in fact,
identified the suspect. (The statute permits confirmation after the photo lineup is concluded.)
{¶ 33} The officers testified that once a witness failed to identify a suspect, that 11
failure was immediately accepted and documented in the officer’s report. No pressure was
put on the witness to continue to try to identify a suspect.
{¶ 34} Finally, the color photo-spread used to identify Moon is in our record. We
have examined it. The filler photographs are quite similar to Moon in appearance. Moon’s
eye color does not stand out.
{¶ 35} We agree with the trial court. The procedure used in administering the
photo-spread identifications in this case, while not in compliance with the statutory
blind-administrator requirement, was not so impermissibly suggestive as to give rise to a
substantial likelihood of misidentification. Like the trial court, we find it unnecessary to
proceed to the second step of the analysis – whether the identifications were unreliable under
the totality of the circumstances.
{¶ 36} Moon’s First Assignment of Error is overruled.
IV. Moon’s Convictions Are Not Against the Manifest Weight of the Evidence
{¶ 37} Moon’s Second Assignment of Error is as follows:
APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 38} Moon cites State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983), for the proposition that an appellate 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.” 12
We have reviewed the entire trial transcript, and we conclude that this is not “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.
{¶ 39} Moon notes that the evidence linking him to the crimes consisted of the
identification testimony of Dentel and Jones, and the forensic evidence linking Moon’s DNA
to a beer bottle recovered from a trash can outside Sanders’s residence. Moon notes also that
Dentel admitted to having consumed three beers, one shot of liquor, and eight lines of powder
cocaine that night. Jones had consumed three or four beers before entering the boot joint, and
continued drinking there.
{¶ 40} In disparaging Dentel’s and Jones’s testimony, Moon contends that their
testimony is not worthy of belief because they were in conflict as to which perpetrator was
backing up Sanders at gunpoint during the robbery. Dentel said that Simpson, the
darkest-skinned of the three, shot Sanders; Jones said Moon backed Sanders up at gunpoint,
although he could not see who shot Sanders. In our view, this difference in their testimony
did not require the jury to disbelieve the testimony of both of them that Moon was one of the
three participants in the robbery.
{¶ 41} Dentel testified that she had observed the three men for about an hour and a
half before the robbery and shooting. She did not hesitate or waver in her identification.
Although she testified that Simpson was the one who shot Sanders, it is not clear from the
record that she saw Simpson backing Sanders up at gunpoint. Jones, who did testify that he
saw Moon backing Sanders up at gunpoint, did not know who actually shot Sanders. And
Annette Dillard testified that she saw Sanders backing up after he had been shot in the leg.
{¶ 42} Jones did not hesitate or waver in his identification of Moon as one of the 13
three men who participated in the robbery. He had met Michelle Carter, one of the murder
victims, earlier that evening, and was attracted to her. When the two of them arrived at the
boot joint, Jones escorted Carter, who had not been there previously, to the restroom. At that
time, he had what he described as a good opportunity to see Moon’s face, who was sitting with
Simpson and Norvell near the restroom.
{¶ 43} Annette Dillard, who also testified, could not identify Moon as one of the
three perpetrators. But she, like Dentel, testified that when the robbery began, all three of the
young men who had been sitting together were actively participating, with guns drawn.
{¶ 44} Finally, there is the DNA evidence. Moon contends that it should be given
little weight, since the beer bottle with his DNA was found in a trash can outside the Sanders
residence, where anyone could have dumped it. But Dentel testified that the trash can was
specific to the residence – it was not a group trash can into which trash from more than one
residence was collected. And she also testified that the beer bottles from which the three
perpetrators had been drinking were put in the trash container in the basement, which she
described as small, “so it fills up real quick,” and that the trash in that container was taken
upstairs to be deposited in the outside trash can. The beer bottle with Moon’s DNA was
recovered from the outside trash can by the evidence technician, Ronald A. Christoffers, who
responded to the crime scene that night. Under these circumstances, the jury could
reasonably have found it unlikely that a bottle with Moon’s DNA on it would have wound up
in the trash can outside the residence, unless Moon was one of the perpetrators who had been
drinking beer in the residence.
{¶ 45} Based upon our review of all of the evidence in the record, we conclude that 14
this is not the exceptional case in which the evidence weighs heavily against conviction, or
that the jury lost its way. Moon’s Second Assignment of Error is overruled.
V. Conclusion
{¶ 46} Both of Moon’s assignments of error having been overruled, the judgment of
the trial court is Affirmed.
FROELICH and HALL, JJ., concur.
Copies mailed to:
Mathias H. Heck R. Lynn Nothstine James S. Armstrong Hon. Michael Tucker