State v. Breedlove
| Decision Date | 23 June 1971 |
| Docket Number | No. 70-248,70-248 |
| Citation | 55 O.O.2d 441,26 Ohio St.2d 178,271 N.E.2d 238 |
| Parties | , 55 O.O.2d 441 The STATE of Ohio, Appellee, v. BREEDLOVE, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Under R.C. 2945.55, where identification of the defendant is in issue, a witness who on a previous occasion has selected, or observed another select, defendant's photograph from a number of photographs, may testify to such previous photographic identification if the photographs, or the photographs coupled with other testimony given on direct examination, do not provide the finder of facts with the reasonable inference that defendant has had prior criminal involvement, and if the procedure of identification does not violate defendant's constitutional rights.
2. On direct examination, evidence of the identification of the defendant from a selection of photographs, using photographs from police files with police identification numerals thereon which provide the finder of facts with the reasonable inference that defendant has had prior criminal involvement, may not be used for the purpose of proving defendant's identify.
Appellant was tried twice for the November 25, 1968, armed robbery of the Rendevous Bar in Akron, Ohio. The first trial resulted in the jury not being able to reach a verdict. The second trial, ending May 28, 1969, resulted in appellant's conviction. The judgment of conviction was appealed to, and was affirmed by, the Court of Appeals. Pursuant to the allowance of a motion for leave to appeal and an appeal as of right, the cause is now before this court.
Both Ida Thompson, the barmaid who was the victim of the robbery, and Doris Jackson, a patron at the bar, testified on behalf of the state. On direct examination in court, Ida Thompson pointed to Breedlove, identifying him as the man who robbed her using a gun. On direct examination, Miss Jackson stated:
'Q. Would you tell us in your own words, please, what happened?
'A. After I had been there awhile and I was playing some records and Miss Thompson called me and I didn't answer at first. Then when I turned around she was standing near the cash register and this man was backing out the door with a gun.
'Q. When you say 'this man,' to whom are you referring?
This witness did not indicate which person in court was Breedlove.
On direct examination, Miss Thompson testified that Sergeant Brown of the Akron Police Department came to the scene of the robbery 15 to 20 minutes after the crime occurred. Over objection, the court allowed this witness to relate that at that time she selected defendant's picture from a group of photographs shown to her by Brown. She stated further:
'Mrs. Bergman: Objection, Your Honor, and I call for a mistrial.'
The objection was overruled.
On direct examination, Doris Jackson testified, over objection, that Robert Lane of the Akron Police Department showed her five or six police photographs, from which she selected the photograph of Sylvester Breedlove as the person who robbed the bar.
Further describing the out-of-court identification of the appellant, Sergeant Brown stated that he had shown Miss Thompson a group of 25 photographs which had been issued by the identification bureau of the police department of 'possible suspects in armed robberies and burglaries,' from which she selected a photograph of Breedlove. Upon defense counsel's objection, the trial judge ordered the statement 'possible suspects of armed robbery and burglaries' stricken from the record, and instructed the jury to disregard it.
Detective Lane, on direct examination, also described Doris Jackson's identification of appellant's photograph. He said the photographs were 'acquired through perhaps warrants that went out for wanted invidividuals and we would stop in the I. D. unit with the warrant and check the file, and if we had a record on them we would get a picture and take it along to identify them.'
The groups of photographs, about which these witnesses testified, were admitted in evidence, over objection. There are identifying numerals on the lower portion of each picture.
Appellant presented the testimony of two witnesses in support of his alibi defense that he was in another bar at the time of the robbery. Thomas Sistrunk, also testifying for appellant, stated that appellant was in his barber shop sometime on November 25, 1968.
Breedlove himself testified that on the afternoon of November 25, 1968, from approximately 1:00 to 2:00 p. m., he was in another bar, the 'Room'; that immediately after leaving there he drove to Sistrunk's barber shop; and that he was not in the Rendevous at all that afternoon.
Prior to trial, appellant's counsel moved to suppress 'the in-court identification of the defendant by the prosecuting witness and other witnesses on the grounds that such identification was previously suggested by members of the police department, City of Akron.' After testimony was taken, and after the arguments of counsel, the motion was overruled.
Robert E. Mohler, Pros. Atty., and Charles E. Lowrey, Akron, for appellee.
Dorothy D. Bergmann, Cuyahoga Falls, for appellant.
Appellant's alibi defense made the identity of the person who robbed the Rendevous Bar of crucial importance. Obviously in an effort to bolster the in-court identification by the state's witnesses of Breedlove as the perpetrator of the crime, the prosecutor presented, on direct examination, evidence of an out-of-court selection by the witnesses of appellant's photograph from a group of mug shots obtained from police files. Appellant contends that allowing this testimony and the pictures into evidence amounts to reversible error. We agree.
Under proper circumstances, an out-of-court identification is admissible when defendant's identity is an issue. R.C. 2945.55 provides:
The first question for resolution is whether, under R.C. 2945.55, testimony concerning an out-of-court identification of the accused from a selection of photographs is admissible in evidence. Secondly if such identification is admissible, may mug shots from police files, with police file numbers thereon, be so used and later admitted in evidence?
New York has a statute 1 essentially analogous to R.C. 2945.55. In interpreting that statute the New York courts have construed it to permit only 'in the flesh' out-of-court identification of a defendant and not an identification from a selection of photographs. People v. Caserta (1966), 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82. See, also, People v. Richardson (1970), 34 A.D.2d 559, 309 N.Y.S.2d 669; People v. Christman (1969), 23 N.Y.2d 429, 297 N.Y.S.2d 134, 244 N.E.2d 703; People v. Cioffi (1956), 1 N.Y.2d 70, 150 N.Y.S.2d 192, 133 N.E.2d 703.
This court, in State v. Lancaster (1971), 25 Ohio St.2d 83, 267 N.E.2d 291 has decided otherwise. In Lancaster we decided that '* * * a 'mug shot' of the accused taken after arrest, and the testimony of police officers as to statements describing the accused made to them by a prosecuting witness are admissible solely to indicate the process by which the accused was identified,' where that process is under attack, and to corroborate that identification. Unlike the case at bar, the use of the mug shot in Lancaster could not give rise to suspicion in the minds of the jurors that the accused had prior criminal involvement, since it was there specified that the photograph was taken after the arrest for the crime for which he was being tried. R.C. 2945.55 does not limit evidence of a previous identification of such person to an in-the-flesh identification. We believe the General Assembly to have been aware that the identification process is quite often accomplished...
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