State v. Derrick Fitzpatrick
| Decision Date | 07 March 1997 |
| Docket Number | 97-LW-0300,C.A. 16008 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. DERRICK FITZPATRICK, Defendant-Appellant C.A. Case No. 16008 |
| Court | Ohio Court of Appeals |
MATHIAS H. HECK, JR., Prosecuting Attorney, By: JULIE A. PETERS Assistant Prosecuting Attorney, Atty. Reg. #0065438 Appellate Division, Montgomery County Courts Building, P.O Box 972, 41 North Perry Street, Suite 315, Dayton, Ohio 45422, Attorneys for Plaintiff-Appellee
MICHAEL H. HOLZ, 507 Wilmington Avenue, Dayton, Ohio 45420, Atty. Reg. #0031902, Attorney for Defendant-Appellant
On January 25, 1996, the defendant, Derrick Fitzpatrick, was indicted on several charges, including aggravated robbery, felonious assault, having weapons while under disability, failure to comply with an order or signal of a police officer, and drug abuse. The five counts in the indictment also contained a firearm specification and a specification for a prior conviction for felonious assault.
Fitzpatrick's indictment arose from a carjacking at the Broaster Hut on Third Street in Dayton, Ohio, at around midnight on January 22, 1996. On that night, Ricky Moore and two friends traveled from Springfield to Dayton and went to the Broaster Hut to get something to eat. Moore, who was sitting in the back seat, waited in the car while his friends went inside to order food. While waiting, Moore saw two people outside the car. One person walked around to Moore's side of the car and fired two shots through the door, using a 45 caliber gun. Moore, who was wounded by the shots, opened his door, got out, and told the gunman he could have the car. Then, Moore went inside the Broaster Hut and called the police, who put out a broadcast for the 1983 Chevy Malibu station wagon that had been stolen.
At approximately 12:30 a.m. on the same night, Officer Barrett of the Dayton Police Department saw a car matching the description of the stolen vehicle, traveling southbound on Gettysburg Avenue. After confirming that the license plates were the same as those of the stolen car, Barrett put on his overhead lights and siren. At that time, the car accelerated and Barrett gave pursuit. Following a short chase, the car was abandoned, with the passenger and driver running away on foot. Barrett was able to get a look at the driver as he ran from the car, and began to chase him. The driver ran about ten feet from the car to the sidewalk with his hands clutched to the center of his body. Once the driver reached the sidewalk, he dropped his hand to the side and began to sprint. Barrett lost sight of the driver after the driver went over a chain link fence in front of 3725 Cornell Woods. However, upon going around the side of the building, Barrett found the driver (who was subsequently identified as Fitzpatrick) hiding underneath the steps into the entrance of the building. Also found next to Fitzpatrick was a plastic bag containing crack cocaine. By that time, other officers had arrived on the scene, so Barrett went back to the location where Fitzpatrick changed direction on the sidewalk. There, he found a 45 caliber gun.
On the day following the robbery, Detective Ritchey of the Dayton Police Department talked to Fitzpatrick, who waived his rights and gave a statement. According to Fitzpatrick, he had been home all day at his grandparent's house and was dropped off at a gas station around 10:00 p.m. by his girlfriend. While walking down Gettysburg, he was offered a ride by an individual known to him by the name of "Blue." The next thing Fitzpatrick knew, they were being chased by the police and Blue told him to be ready to run. However, upon being interviewed by the police, neither the grandmother nor the girlfriend verified Fitzpatrick's account of his whereabouts.
Based on the fact that a black suspect was in custody, Ritchey prepared a photospread of six black males, one of whom was Fitzpatrick. He also prepared a spread of six other photos, including the individual he thought might be the second suspect. Ritchey indicated his normal procedure was to make the photos as similar as he could, based on the materials that he had. After assembling the photospread, Ritchey went to the hospital where Moore was being treated for wounds received in the incident. Upon verifying that Moore was lucid and able to talk, Ritchey briefly interviewed Moore and asked him to look at the photospread. This conversation took place in the afternoon of the day after the shooting.
After looking at the photospread, Moore thought the gunman was either number four or number six. Because the gunman had on a hat at the time of the robbery, Ritchey placed a piece of paper over the top of the photos, and Moore then chose number four, which was Fitzpatrick's photo. Both Ritchey and Moore indicated that Ritchey did not tell Moore anything about Fitzpatrick before Moore picked him out. Moore also identified Fitzpatrick at the suppression hearing as the person who had shot him. Following Moore's hospital identification of Fitzpatrick, Ritchey told him that the picture was of the individual the police had in custody.
According to Moore, the lighting in the parking lot at the Broaster Hut was good at the time of the incident. The restaurant had a big sign and two lights out front, which were all working that night. Moore also testified he was able to observe Fitzpatrick as Fitzpatrick walked around the car before the shooting, and then saw Fitzpatrick's face up close when he got out of the car. Moore further said "[i]f you see somebody done something wrong, you ain't never going to forget that face."
After pleading not guilty, Fitzpatrick filed motions to suppress the statements he made to the police and any identification testimony and evidence obtained as a result of improper identification. A hearing on the motions was then held on May 21, 1996. During the hearing, defense counsel tried to examine Moore using a copy of the photospread. Although not specifically stated in the motion to suppress or in an opening statement to the court, the defense contention apparently was that the photospread was improperly suggestive because Fitzpatrick was lighter-skinned than the other people in the spread. However, since the copy in the possession of defense counsel was of poor quality and the original of the photospread was unavailable, the court continued the hearing so the original could be obtained.
When the hearing reconvened on June 14, 1996, Detective Ritchey testified that he did not have the original photospread, as it had been had been disassembled approximately a month and a half before. Although normal police procedure was that anything used for identification in ongoing investigations stayed together with the case file, Ritchey disassembled the photospread because the prosecutor told him that Fitzpatrick had pled to the crime. Ritchey also testified that if he saw a copy of the photospread, he might be able to put it back together. Despite this testimony, defense counsel did not ask for a continuance, nor did he ask the court to order that the police reconstruct the photo spread.
At the end of the hearing, the court overruled both motions to suppress. Subsequently, on June 21, 1996, Fitzpatrick pled no contest to count one of the indictment (aggravated robbery). In exchange for the plea, the prosecution dismissed the specifications to count one and the remaining four counts and specifications in the indictment. Following the plea and the imposition of an 8-25 year sentence, Fitzpatrick filed this appeal, raising the following single assignment of error:
The court erred to the prejudice of Defendant-Appellant when it overruled his Motion to Suppress pretrial identification testimony despite the fact that the Dayton Police Department violated its own established procedures when it prematurely disassembled the photo spread pertaining to his case.
I
Our analysis of this case begins with the following well-established rule:
An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.
State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of the syllabus, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156. See also, Bank One Dayton, N.A. v. Ellington (1995), 105 Ohio App.3d 13, 17.
As was noted above, Detective Ritchey testified at the suppression hearing that he might be able to reconstruct the photospread if he could see a copy of the spread. In view of the fact that a copy was available and that defense counsel failed to ask for either a continuance or an order from the court requiring a reconstruction attempt, we can only conclude that error relating to the photospread has been waived. Surely, continuing the matter for a brief time for reconstruction would have allowed for resolution of this issue at the trial level, and would also have aided later appellate review.
However, even if we were to consider defendant's assignment of error, we would conclude that no due process violation occurred. In this context, "****due process requires a court to suppress an identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances." State v. Davis (1996), 76 Ohio St.3d 107, 112. "In order to suppress identification testimony, there must be 'a very substantial likelihood of irreparable misidentification.'" State v. Jells (1990), 53 Ohio St.3d 22, 27, quoting from Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. In Jells,...
To continue reading
Request your trial