State v. Frazier

• Decision Date: 26 February 2016
• Docket Number: 26496.,Nos. 26495,s. 26495
• Parties: STATE of Ohio, Plaintiff–Appellee v. Darelle A. FRAZIER, Defendant–Appellant.
• Court: Ohio Court of Appeals

60 N.E.3d 633

STATE of Ohio, Plaintiff–Appellee

v.Darelle A. FRAZIER, Defendant–Appellant.

Nos. 26495

26496.

Court of Appeals of Ohio, Second District, Montgomery County.

Feb. 26, 2016.

Andrew T. French, Assistant Prosecuting Attorney, Dayton, OH, for Plaintiff–Appellee.

Brock A. Schoenlein, Dayton, OH, for Defendant–Appellant.

OPINION

FROELICH

, J.

{¶ 1} Darelle Frazier appeals from his conviction, after a jury trial, for robbery in Montgomery C.P. No. 2013–CR–3864 and his conviction upon his guilty plea to having weapons while under disability in Montgomery C.P. No. 2013–CR–3946.

{¶ 2} Frazier's convictions stem from two separate incidents on different dates. The cases have significantly different procedural histories and present distinct legal issues. Frazier raises nine assignments, seven of which relate to his robbery conviction and two of which relate to his conviction for having weapons while under disability. In the interest of clarity, we will address the two cases and their respective assignments of error separately.

{¶ 3} For the following reasons, the trial court's judgments will be affirmed.

I. Case No. 2013–CR–3864 (Robbery)

A. Factual and Procedural History

{¶ 4} The State's evidence at trial established the following facts:

{¶ 5} During the afternoon of November 25, 2013, Frazier boarded an RTA bus headed northbound toward Vandalia. When a seat opened in the back of the bus, Frazier sat in a seat next to Jesse Goble, a regular passenger on that route. Goble had an electronic cigarette in his hand. Frazier grabbed the e-cigarette from Goble, without permission, and asked Goble about its use. Initially, Goble answered Frazier's questions, believing that Frazier would return it. After Frazier asked how to clean the e-cigarette, Goble repeatedly asked Frazier to give him the e-cigarette. Frazier refused to return it.

{¶ 6} After several requests for Frazier to return his property, Goble moved to the row of seats across from Frazier and continued to ask Frazier to return the e-cigarette. Frazier did not return it. When Frazier was about to exit the bus, Frazier responded to Goble that Goble would need to fight him (Frazier) for the e-cigarette. Frazier lunged at Goble, who was still seated, knocking Goble on his back across the seats. Frazier punched Goble in the face several times.

{¶ 7} Individuals on the bus yelled that a fight was occurring, and the bus driver, Salvatore Leone, hit the “panic button.” Leone notified the RTA dispatcher about the fight, and the dispatcher contacted the police. The assault lasted for about a minute, during which Goble repeatedly yelled, “Give me my stuff back.” Passengers pulled Frazier off of Goble. Frazier exited the bus and left the scene. Goble remained until the police arrived. Goble provided a statement to the responding sheriff's deputy, and the deputy took photographs of Goble's face, which had cuts and red marks.

{¶ 8} Two days later (November 27), Frazier rode another RTA bus that Leone was driving southbound toward downtown Dayton. Leone recognized Frazier “right away” as the individual who had assaulted Goble. A few minutes after Frazier boarded, Leone notified his dispatcher that Frazier was on the bus. RTA arranged to have the police meet the bus at the downtown hub, where Leone's shift was ending. The police were not there when the bus arrived, and Leone pointed out Frazier to his supervisor. Leone took his bus, which was now empty, to the RTA garage. Afterward, he returned in his personal vehicle to the downtown hub and saw Frazier in the back of a police cruiser.

{¶ 9} Leone testified that Frazier had “tattoos all over his face,” which were “very distinguishing features,” that Frazier had been cursing when he boarded the bus on November 25, and Frazier “challenged” Leone when Leone told Frazier to “stop cussing and that he's going to have to get off the bus.” Leone stated that he was 100 percent certain that Frazier was the individual he saw punching Goble.

{¶ 10} On December 5, 2013, the police showed a photo array with six photographs, including one of Frazier, to Goble. Goble identified Frazier as the individual who had taken his e-cigarette and assaulted him. Goble stated that he was 75 percent certain of the identification. At trial, Goble again identified Frazier and testified that he was 85 percent certain of the identification.

{¶ 11} In February 2014, Frazier was indicted for robbery, in violation of R.C. 2911.02(A)(2)

, for the November 25, 2013 incident. Frazier subsequently moved to suppress the photographic identification by Goble on the ground that the photo line-up was impermissibly suggestive and/or the identification was unreliable.

{¶ 12} A hearing on the suppression motion was held on April 11, 2014. The State presented two witnesses regarding the pretrial identification; Frazier presented no witnesses. After a short recess to review the exhibits and the law, the trial court orally overruled the motion to suppress regarding Goble's identification. The court's written entry overruling the motion to suppress cited the reasons articulated at the hearing.

{¶ 13} The robbery case proceeded to a jury trial in September 2014, and evidence was presented regarding the events of November 25 and 27 and December 5, as described above. After deliberations, the jury found Frazier guilty of robbery, as alleged in the indictment. The trial court sentenced Frazier to eight years for the robbery and ordered him to pay restitution of $103 to Goble and court costs. The sentence was run concurrently with the sentence in Case No. 2013–CR–3946.

{¶ 14} Frazier appeals, raising seven assignments of error related to his robbery conviction.

B. Pretrial Identification

{¶ 15} Frazier's first assignment of error states: “The trial court erred in overruling Appellant's motion to suppress the pretrial identification in the robbery case.”

{¶ 16} “Due process requires suppression of pre-trial identification of a suspect only if the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188, 196–97, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)

.

{¶ 17} The defendant must first show that the identification procedure was unduly suggestive. “A lineup is unduly suggestive if it steers the witness to one suspect, independent of the witness's honest recollection.” (Citations omitted.) State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208

. If the pretrial identification procedure was not unfairly suggestive, any remaining questions as to the identification's reliability go to the weight of the identification, not its admissibility, and no further inquiry into the reliability of the identification is required. Id. at ¶ 209; State v. Williams, 2d Dist. Montgomery No. 26357, 2015-Ohio-1403, 2015 WL 1600327, ¶ 13.

{¶ 18} If, on the other hand, the defendant shows that the pretrial identification procedure was unduly suggestive, the court must then consider whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure. Id. In reviewing the likelihood that the circumstances resulted in a misidentification, courts consider the opportunity of the witness to view the perpetrator at the time of the offense, the witness's degree of attention, the accuracy of the witness's prior description of the perpetrator, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.¹ Neil at 199–200, 93 S.Ct. 375

; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ; State v. Chaffin, 2d Dist. Montgomery No. 25220, 2014-Ohio-2671, 2014 WL 2810831, ¶ 16.

{¶ 19} Reliability of the pretrial identification is the linchpin in determining its admissibility. Manson at 114, 97 S.Ct. 2243

. “So long as the identification possesses sufficient aspects of reliability, there is no violation of due process.” State v. Sherls, 2d Dist. Montgomery No. 18599, 2002 WL 254144, *3 (Feb. 22, 2002).

{¶ 20} We review a trial court's refusal to suppress a pretrial identification for an abuse of discretion. State v. Wilson, 2d Dist. Montgomery No. 22624, 2009-Ohio-1038, 2009 WL 597275, ¶ 19

.

{¶ 21} Deputy Phelps–Powers and Detective Gallagher testified at the suppression hearing. According to Deputy Phelps–Powers, on December 5, 2013, she presented a six-photo line-up prepared by Detective Gallagher to Goble. The deputy read instructions to Goble prior to showing him the photo array, and she did not know who the suspect was. After looking at all the photos, Goble had stated, “I see the person,” and Phelps–Powers asked Goble to circle the photo and put his initials inside the photo. Goble selected Frazier's photograph. Goble told the deputy that he was 75 percent certain of the identification. Phelps–Powers filled out the portion of the form indicating that she was the blind administrator of the line-up.

{¶ 22} Detective Gallagher testified that he compiled the photo line-up shown to Goble. He used a computer-generated program called Justice Web, in which he enters a suspect's information, including social security number, and the program finds the suspect's photograph. The program generates a compilation of similar photographs based on the suspect's photograph. Gallagher stated that, after entering Frazier's information, he picked five photos from those compiled by Justice Web.

{¶ 23} During his testimony, Gallagher agreed that Frazier had “distinctive facial markings,” including tattoos on his face and neck. He stated that he took that into consideration when selecting the five additional photographs and tried to select individuals with facial tattoos. One individual (other than Frazier) had a small facial tattoo, and five of the individuals had large tattoos on their necks. Gallagher testified that Goble had not mentioned facial tattoos when he described the perpetrator to the...