State v. King
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[Cite as State v. King, 2002-Ohio-2929.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 18463 T.C. CASE NO. 00CR1076 EDWARD D. KING : Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 14th day of June, 2002. . . . . . . . . . Mathias H. Heck, Jr., Pros. Attorney, Cheryl A. Ross, Asst. Pros. Attorney, P.O. Box 972, Dayton, Ohio 45422, Atty. Reg. No. 0066113 Attorney for Plaintiff-Appellee Christopher B. Epley, 1105 Wilmington Avenue, Dayton, Ohio 45419-4108, Atty. Reg. No. 0070981 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} Defendant, conviction and Edward sentence King, for appeals aggravated from his robbery and kidnapping with firearm specifications. {¶2} At approximately 10:00 p.m. on April 3, 2000, Dayton police were dispatched to the Econolodge motel on Edwin C. Moses Boulevard on report of a robbery. At about that same time, the manager of the McDonalds restaurant next to the motel called police about a suspicious vehicle in 2 their parking lot, a tan or gold Buick Riviera with license number BAF6418. The vehicle was unoccupied when police arrived, but the McDonald s manager told police he had seen two African-American males inside. Police checked the license plate number and discovered that Defendant King was the registered owner of the vehicle. {¶3} Police determined that a robbery had occurred at the Econolodge motel shortly before. the Three people were in motel lobby at the time of the robbery: Mr. Thakkar, the manager, and Mr. and Mrs. Sheth, prospective buyers of the motel. Shortly before 10:00 p.m. as the Sheths approached the lobby doors on their way out of the motel, two African-American males entered the lobby. Both men were armed with guns with laser sights. One man wearing a dark sweatshirt a announced that it was stick-up and jumped behind the check-in counter where Mr. Thakkar was working. The other man, who wore a yellow sweatshirt, pointed his gun at the Sheths and ordered them to get on the floor. He threatened to shoot them if they did not comply. {¶4} The man who went behind the counter demanded money from Mr. Thakkar, who put money from his cash drawer into a plastic bag the man held open. During the robbery the man who wore the yellow shirt fired his gun in the direction of the check-in counter. Mr. Sheth observed smoke coming from the gun, and he later discovered a hole in the wall. The two robbers fled from the motel with the stolen money and ran toward the McDonald s parking lot. They got into an 3 older tan or cream colored car with spoke wheels and drove off down Dryden Road. Mr. Sheth later identified Defendant s vehicle as the getaway car. {¶5} Dayton At approximately police located 1:00 the a.m., vehicle on the April robbers 4, 2000, had used parked in front of Defendant s home at 1320 Treischman. Police also learned that there was an outstanding warrant for Defendant s arrest. {¶6} At approximately 6:30 a.m. Dayton police knocked on the door to Defendant s apartment. Defendant s wife answered the door and allowed the officers to come inside. At their request, Mrs. King got Defendant out of bed. Officers observed a brand new laser sight, still in its unopened package, in the apartment. Defendant admitted the suspect vehicle was his and agreed to accompany the officers to the police station for further questioning. Mrs. King told police that Defendant had briefly left the apartment that night between 9:00 and 10:00 p.m. {¶7} that Police returned to Defendant s residence later morning and obtained Mrs. King s permission to search the apartment. Mrs. King gave police a yellow sweatshirt she had found in the trash. Mrs. King also gave police a black sweatshirt she had found, as well as two BB guns. Mrs. King later asked one of her neighbors to hide a gun for her. {¶8} Mr. Sheth and Mr. Thakkar described the robbers for police as two African-American males, about twenty-one 4 years of age, average height, 5'6"-5'9", medium build, clean shaven with short hair. They said that one of the men wore a dark sweatshirt and the other wore a yellow sweatshirt. Mr. Sheth identified Defendant from a photospread as the robber who wore the yellow sweatshirt. Both victims identified the yellow sweatshirt and black sweatshirt taken from Defendant s apartment as clothing worn by the robbers. {¶9} Defendant was indicted on one count of aggravated robbery, R.C. 2911.01(A)(1), and two counts of kidnapping, R.C. 2905.01(A)(2). all three charges. Firearm specifications were attached to R.C. 2941.145. Prior to trial Defendant filed a motion to suppress his identification by Mr. Sheth from a photospread, the physical evidence seized from Defendant s apartment, and the statements Defendant made to police. Following a hearing the trial court overruled Defendant s motion to suppress in its entirety. {¶10} A jury subsequently found Defendant guilty of all charges and Defendant to specifications. consecutive The terms of trial court sentenced imprisonment totaling seven years, and added one three year term for the merged firearm specifications, for a total of ten years. {¶11} Defendant timely appealed to this court from his conviction and sentence. Defendant s appellate counsel filed an Anders brief, Anders v. California (1967), 386 U.S. 738, asserting that he could not find any meritorious issues for appellate review. Upon our examination of the record we discovered four arguable, non-frivolous issues. 5 {¶12} Accordingly, we appointed new appellate counsel for Defendant and instructed counsel to brief those arguable issues. FIRST ASSIGNMENT OF ERROR {¶13} "THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANTAPPELLANT S MOTION TO SUPPRESS EVIDENCE THAT POLICE SEIZED DURING A WARRANTLESS SEARCH OF HIS RESIDENCE." {¶14} Defendant argues that the trial court should have suppressed the evidence police recovered from his apartment, the clothing worn by the perpetrators of this robbery, because the State failed to prove that Defendant s wife had consented to the warrantless search of that apartment. {¶15} The Fourth Amendment searches and seizures by police. prohibits warrantless However, police officers do not need a search warrant when a person who is authorized to do so voluntarily consents to a search, because consent is a decision to waive the rights which the Fourth Amendment confers. consent The State bears the burden of proving that the was freely and voluntarily product of duress or coercion. given, and not the Schneckloth v. Bustamonte (1973), 412 U.S. 218. Proof of consent must be by clear and convincing evidence. Bumper v. North Carolina (1968), 391 U.S. 543. When making that determination the trial court must examine the totality of the facts and circumstances. Id. Mere acquiescence to a claim of lawful authority is not voluntary consent. Bumper, supra. {¶16} Defendant s wife testified at 6 suppression the hearing that when Det. Myers was at the apartment the first time on April 4, 2000, he told her he would return with a search warrant. Later, when Det. Myers returned, he told Defendant s wife that her husband had been charged with armed robbery and he and the other officers were there to search. As Det. Myers said this he held up some papers. fact, no warrant was then issued. wife did not apartment, warrant voluntarily but and rather merely Defendant argues that his consent assumed acquiesced In to that to a search police that had claim of their a search of lawful authority. {¶17} The State presented testimony by several police officers, including Det. Myers. They testified that when police returned to Defendant s apartment for the second time on April 4, 2000, Defendant s wife met the officers at the door and let them inside. Defendant s wife voluntarily gave the officers a yellow sweatshirt they were seeking, saying she had found it in the trash and had saved it for them. When police asked Defendant s cooperative and they gave wife if her retrieved could search the permission. the items She police including a black sweatshirt and two BB guns. apartment, was very requested, According to the officers, they did not tell Defendant s wife that they had a search warrant, nor did they imply by their conduct that they had one. Moreover, no threats or promises were made to Defendant s wife in order to obtain her consent for 7 the search. {¶18} In a motion to suppress hearing, the credibility of the witnesses and the weight to be given to their testimony are matters for the trial court to resolve. State v. Fanning (1982), 1 Ohio St.3d 19; State v. Satterwhite (1997), 123 Ohio App.3d 322. officers in this case, if The testimony of the police believed, is sufficient to establish that Defendant s wife voluntarily consented to a search of the apartment. As a resident of that location, she was authorized to give consent. The conflict in the evidence created by the testimony of Defendant s wife that she allowed police to search only because they represented that they had a search warrant was a matter for the trial court to resolve, which it did in favor of the State and against the Defendant. There is no basis for us to disturb that determination. {¶19} The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶20} "THE TRIAL DEFENDANT-APPELLANT S KHUSH SHETH, A IDENTIFICATION OF COURT MOTION STATE S ERRED WHEN TO EXCLUDE WITNESS, ON DEFENDANT-APPELLANT IT THE OVERRULED TESTIMONY OF A CLAIM THAT HIS WAS THE PRODUCT OF UNDULY SUGGESTIVE PROCEDURES EMPLOYED BY POLICE." {¶21} Defendant argues that the trial court should have suppressed the pretrial photographic identification of him by Kush Sheth. According to Defendant, the photospread identification procedure used was impermissibly suggestive 8 because some of the photospreads Mr. Sheth viewed included photographs of caucasian males, even though the two perpetrators of this robbery were African-American males. {¶22} The critical identifications is circumstances the inquiry whether with on respect the to totality identification was pretrial of the reliable, notwithstanding that the identification procedure may have been suggestive. Neil v. Biggers (1972), 409 U.S. 188; State v. Davis (1997), 80 Ohio St.3d 311. The factors to consider include the opportunity of the witness to view the suspect at the time of the crime, the witness degree of attention, the accuracy of the witness prior description, the level of certainty demonstrated by the witness at the pretrial identification, and the length of time between the crime and the pretrial identification. Id. {¶23} The evidence introduced at the suppression hearing demonstrates that Mr. Sheth was shown between eight to ten different photospreads, each containing six photographs; a total of forty-eight to sixty photographs. Some of those photospreads contained photographs of caucasian males. vast majority of American males. Sheth identified the photographs however were The African- Moreover, the photospread from which Mr. Defendant contained a photograph of Defendant along with the photographs of five other men with similar facial features. This photospread was not suggestive on its face, and police did not indicate to Mr. Sheth who the suspect might be or even if that photospread 9 included any suspect. {¶24} Additionally, the evidence demonstrates that Mr. Sheth had a good opportunity to view Defendant during the robbery in the well-lighted lobby of the motel. Upon viewing the photospread containing Defendant s picture, Mr. Sheth made an immediate and positive identification of Defendant. {¶25} This identification after the robbery. occurred just a few hours Mr. Sheth s previous description of Defendant was in many respects accurate. {¶26} In examining the totality evident that circumstances, it is identification of Defendant admissible. was of Mr. the facts Sheth s reliable and and pretrial therefore The trial court correctly refused to suppress this evidence. {¶27} The second assignment of error is overruled. THIRD ASSIGNMENT OF ERROR {¶28} "DEFENDANT-APPELLANT S TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO OBJECT TO THE TESTIMONY OF A POLICE WITNESS SUGGESTING THAT DEFENDANTAPPELLANT HAD BEEN ARRESTED FOR OTHER CRIMES (T. 371), OR FOR CONCEDING DURING HIS CLOSING ARGUMENT THAT EVIDENCE PRESENTED BY THE STATE WAS SUFFICIENT TO CONVICT DEFENDANT (T. 609), OR FOR ANY OTHER APPLICABLE CAUSE." {¶29} A defendant must meet a two prong demonstrate ineffective assistance of counsel. test to Strickland v. Washington (1984), 466 U.S. 688. He must show 10 that counsel s performance fell below an objective standard of reasonable representation; in other words, that there was a substantial violation of counsel s essential duties to his client. Strickland, supra; State v. Lytle (1976), 48 Ohio St.2d 291. showing a A defendant must also demonstrate prejudice by reasonable probability that but for counsel s violation of his duties, the outcome of the trial would have been different. Strickland, supra; State v. Bradley (1989), 42 Ohio St.3d 136. {¶30} Judicial scrutiny of counsel s performance must be highly deferential. A court must indulge a strong presumption that counsel s conduct falls within the wide range of reasonable Notwithstanding threshold professional the inquiry particular is assistance. failure whether alleged, prejudice Id. the resulted. Strickland, supra. {¶31} Defendant argues that his trial counsel performed deficiently police by officer failing which to object suggested to that previously arrested for other crimes. while Det. Bilinski was explaining the testimony Defendant had of a been The remark was made to the jury how photospreads are put together using a computer: {¶32} "For the past four or five years, every perpetrator that s arrested has a picture that is taken, put into a photo computer of which about a month ago we had 10,000 pictures in that photo computer. We then make a 11 photo spread from the computer pictures." (T. 371). {¶33} First, we note that Det. Bilinski did not testify that police used a photograph of Defendant taken following a previous arrest in preparing the photospread shown to Mr. Sheth. While the jury might reasonably infer that, another equally reasonable inference the jury could make is that police used a photograph of Defendant taken after his arrest for this offense. Defense counsel s decision not to object and bring this matter to the jury s attention, which might have done more harm than good, may have been a matter of reasonable deficient trial strategy, performance. which State v. does Shaw not constitute (1999), 134 Ohio App.3d 316, 320; State v. Clayton (1980), 62 Ohio St.2d 45. Moreover, given the overwhelming evidence of Defendant s guilt, we cannot say that had defense counsel objected to Det. Bilinski s statement, there is a reasonable probability that Defendant would have been acquitted. No prejudice from counsel s failure to object has been demonstrated. {¶34} Defendant further performed deficiently argument conceding by that argues making the sufficient to convict Defendant. that remarks evidence his during counsel closing presented was Taken in their proper context, defense counsel s remarks are as follows: {¶35} "The issue in this case is not he probably did it. He may have did it. it. case. He could have did it. It s possible he did it. I think he did That s not the issue in this 12 {¶36} "Ladies and gentlemen, the issue in this case is beyond a reasonable doubt. That s the highest level of proof that we have in our system of law in this country. That s a high level, and it s difficult. It s a high level because it is and it s written down for you and the judge has told you it is evidence of such character that you would rely on it and act upon it in the most important of your dealings with your personal affairs. to the bank. That means you take it You rely on it. {¶37} "And the prosecution has a heavy burden. The defense in a case like this has no burden to prove anything. You have to consider all the evidence in this case, and you have to make that decision." (T. 601-602). {¶38} "You re the judge of those witnesses. You can follow the evidence that Mr. Miley put down and you can come back with a guilty verdict against Edward King. You can. There was no question that was evidence there that would convict him but you ve got to look at the total evidence. All of it, not just some if it. If you just look at some of the evidence, yes, you can, but if you look at the totality of it, and look at it, you have the duty to follow the law. And the law says, as the judge has told you and put it in writing for you, that if the evidence is beyond a reasonable doubt to each and every element of the crime and this concludes that Edward King was the person who did it, you have a duty to convict him. {¶39} "But you also have a duty, just like the police 13 have a double duty, that if the evidence is not there and you re not convicted beyond a reasonable doubt, you have a duty, yeah, to follow the law and find him not guilty. That s why your job is tough. It s difficult. It could have been made a lot easier, but it wasn t it wasn t? why? And You ve heard the evidence, you ve heard the police officers. You can judge why people would lie and why I m not going to say anybody is lying. I don t like to call anybody a liar. People have different perceptions, they perceive different things ways. Supreme different interests." (T. 609-610). {¶40} These context, are remarks not a Defendant is guilty. by defense concession counsel, by defense viewed counsel in that To the contrary, the remarks indicate that if the jury focuses only upon selected parts of the evidence presented by the State, that evidence is sufficient for the jury to find Defendant guilty. However, if the jury considers all of the evidence presented and the credibility of the witnesses who testified, including the police officers, the weight of that evidence is not sufficient to meet the State s heavy burden of proving Defendant s guilt beyond a reasonable doubt. high degree of proof is Whether the State has met that the real issue for the jury s determination. {¶41} We see no violation of counsel s essential duties in making the challenged remarks because reliance upon the 14 State s burden to prove guilt beyond a reasonable doubt is a legitimate trial strategy. Even debatable trial tactics do not constitute ineffective assistance of counsel. supra. Clayton, No deficit performance has been demonstrated. {¶42} The third assignment of error is overruled. FOURTH ASSIGNMENT OF ERROR {¶43} "THE JURY S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶44} A weight of the evidence argument challenges the believability competing of the evidence, inferences believable or and suggested persuasive. by State asks the v. which evidence Hufnagle 1996), Montgomery App. No. 15563, unreported. of is the more (Sept. 6, The proper test to apply to that inquiry is the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175: {¶45} weighs "The the considers court, evidence the and credibility reviewing all of the entire reasonable witnesses record, inferences, and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. {¶46} This court will not substitute its judgment for that of the credibility factfinder trier unless lost its of facts it is way. on the issue of witness patently apparent State Bradley (October v. that the 2, 15 1997), Champaign App. No. 97-CA-03, unreported. {¶47} Mr. Sheth, the witness who identified Defendant as the robber who wore the yellow sweatshirt, testified that the robber was clean shaven with no facial hair, had short hair with nothing unusual about it, and had no gold teeth. Photographs of Defendant taken shortly after the robbery depict Defendant with some facial hair, a goatee, his hair in braids ( cornrows ), and a gold front tooth. On the basis of this conflict in the evidence, Defendant argues that the jury lost its way in finding him guilty. We are not persuaded. {¶48} Mr. Sheth s description of Defendant s appearance at the time of the robbery varies in some respects from Defendant s actual appearance at that time. While those discrepancies go to the weight and credibility of Sheth s identification, they are not significant. For instance, Defendant s gold tooth is not visible unless Defendant is smiling. Thus, the mere fact that Mr. Sheth did not see Defendant s gold tooth during this robbery does not compel a conclusion that Sheth misidentified Defendant as one of the robbers. Additionally, Mr. Sheth s failure to notice a relatively small amount of facial hair, such as a goatee, during this stressful incident is likewise not particularly significant. description Defendant s in several appearance respects: matched Mr. African-American Sheth s male, about twenty one years old, average height, medium build. {¶49} More importantly, the other evidence presented by 16 the State which demonstrates Defendant s participation in this robbery is very strong, if not overwhelming. Defendant was not at home at the time this robbery occurred, yet his alibi claim that he was elsewhere was never verified. Defendant s car was used as the getaway vehicle in this robbery. Clothing similar to that worn by not one but both robbers was found at Defendant s apartment. Witnesses to the robbery indicated that the guns used were equipped with laser sights, and a Defendant s apartment. laser sight was discovered inside After police questioned Defendant s wife and then left, Ms. King took a gun over to a neighbor and asked that she hide it. {¶50} Reviewing this trial record as a whole, we cannot say that the evidence weighs heavily against a conviction, that the jury lost its way, or that a manifest miscarriage of justice occurred. Defendant s conviction is not against the manifest weight of the evidence. {¶51} The fourth assignment of error is overruled. judgment of the trial court will be affirmed. WOLFF, P.J. and BROGAN, J., concur. Copies mailed to: Cheryl A. Ross, Esq. Christopher B. Epley, Esq. Hon. Dennis J. Langer The
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