State v. Ricks

• Decision Date: 30 September 2011
• Docket Number: No. E–10–022.,E–10–022.
• Citation: 965 N.E.2d 1018
• Parties: The STATE of Ohio, Appellee, v. RICKS, Appellant.
• Court: Ohio Court of Appeals

965 N.E.2d 1018

The STATE of Ohio, Appellee,

v.RICKS, Appellant.

No. E–10–022.

Court of Appeals of Ohio, Sixth District, Erie County.

Decided Sept. 30, 2011.

Kevin J. Baxer, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Kristopher A. Haines, Assistant Public Defender, for appellant.

PIETRYKOWSKI, Judge.

{¶ 1} Defendant-appellant, Thomas Ricks, appeals the May 4, 2010 judgment entry of the Erie County Court of Common Pleas that, following a jury trial convicting him of aggravated murder, aggravated robbery, complicity to trafficking in marijuana, and complicity to trafficking in cocaine, sentenced appellant to life imprisonment without the possibility of parole plus 26 years. For the reasons that follow, we affirm in part, reverse in part, and remand for resentencing.

{¶ 2} The relevant facts of this case are as follows. On May 9, 2008, appellant was indicted on two counts of aggravated murder, R.C. 2903.01(A) and 2903.01(B), with gun specifications, one count of aggravated robbery, R.C. 2911.01(A)(1), one count of trafficking in marijuana, R.C. 2925.03(A)(1) and 2925.03(C)(3)(c), and one count of trafficking in cocaine, R.C. 2925.03(A)(1) and 2925.03(C)(4)(e). The aggravated-murder charge included a death-penalty specification. R.C. 2929.04(A)(7). The charges stemmed from the March 11, 2008 murder and robbery of Calvin Harper Jr. in Sandusky, Erie County, Ohio. Appellant entered not-guilty pleas to the counts.

{¶ 3} On January 12, 2009, appellant filed a motion to suppress the identification of appellant, by three witnesses, by use of a photo array that he claimed was unduly suggestive. Specifically, appellant argued that the lighting and the angle of his photograph "overtly or subliminally" pointed to him as the suspect. During the April 23, 2009 suppression hearing, it was also discovered that the eyewitnesses knew several of the other individuals placed in the array.

{¶ 4} On June 3, 2009, the trial court denied appellant's motion to suppress. Appellant requested findings of fact and conclusions of law, and on September 30, 2009, the court issued a detailed, 13–page judgment entry that analyzed the identification procedure under the test set forth in Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. In its entry, the trial court found that the identification procedure was not unduly suggestive and also rejected the argument that the differences in the photo itself made the array unduly suggestive. However, the court found that considering the subtle differences in the photo and because the witnesses knew the other individuals in the array, the array was unduly suggestive. The court ultimately concluded that the reliability of the identifications outweighed any likelihood of misidentification.

{¶ 5} In the interim, on June 25, 2009, appellant filed a motion for court funds to appoint an identification expert. Appellant argued that because identification was a key component in the case, appointment of an expert was necessary to explain the difficulties inherent in the identification-array procedure. On February 1, 2010, the motion was denied. On April 5, 2010, appellant orally renewed the motion, stating that he had contacted an expert in Ohio who would cost less. On April 12, 2010, the court summarily denied the motion, noting that no new arguments were presented.

{¶ 6} On October 15, 2009, the court granted the state's motion to dismiss the death-penalty specification and to join the two defendants for trial. Appellant opposed the joinder and, on February 1, 2010, separate trials were ordered.

{¶ 7} On April 20, 2010, appellant's jury trial commenced. According to the state's testimony, on March 10, 2008, appellant and his co-defendant, Aaron Gipson, drove down from the Canton, Michigan, area; the two played cards at witness Crystal Harris's apartment with the victim's sister, Chanel Harper. Co-defendant Aaron Gipson was a reputed drug dealer and known to the victim's family and friends.

{¶ 8} Witnesses testified that the victim had a large sum of money in his apartment and planned to purchase drugs from Gipson, a supplier, and then sell the drugs. The victim's neighbor and confidant, Rhonda Farris, testified that between 4:00 and 5:00 p.m., a man she later identified as appellant mistakenly knocked on her door. Farris immediately called Harper to tell him that someone was looking for him. According to Farris, the victim indicated that he was expecting the man. Farris never spoke to the victim again and, the next day, discovered his body.

{¶ 9} Three eyewitnesses identified appellant from a photo array. Farris, as stated above, Crystal Pool, and Chanel Harper each identified appellant as the man with Aaron Gipson on March 10, 2008. All three women knew either a few or all of the other individuals in the photo array.

{¶ 10} The state focused, in depth, on the cellular telephone records of Gipson from March 10 through March 11, 2008. Depending on how rural or urban the area, the records were able to show, within a ten-mile to two-block radius, which cell tower the cell phone was transmitting from. The evidence showed that on March 10, 2008, returning to Canton, Michigan, from Sandusky, Gipson drove north, past the Canton area to the area where appellant had been living, and then proceeded back south to home. On March 11, 2008, prior to proceeding to Sandusky, Gipson again drove north from his home to the area where appellant lived. Further, after the time of Harper's murder, Gipson again went north, then turned back south and went to a casino in Detroit. Appellant did not have a cellular telephone, but there were calls made from Gipson's number to Deotis Sears's cell phone. Sears was appellant's uncle, and he had been living with him.

{¶ 11} There was also testimony that appellant denied knowing Gipson. Further, appellant stated to police that he was living in Atlanta, Georgia (where he was ultimately arrested), and that he had returned to Atlanta on February 19, 2008. However, police found a bus ticket from Michigan to Atlanta dated March 28, 2008. There were also incriminating, though cryptic, statements recorded in jail telephone conversations from appellant to his girlfriend.

{¶ 12} Police testified, over objection, that appellant's co-defendant, Gipson, pointed him out to police while they drove him by where he was residing. Further, appellant's former brother-in-law, Dewon Smith, testified that Aaron Gipson is a friend of the Hicks family and that appellant knew him. Smith testified that on March 10, 2008, Gipson picked up appellant at his home; he returned later that night.

{¶ 13} Following the presentation of evidence, the jury found appellant guilty of aggravated murder, aggravated robbery, and the drug charges. This appeal followed.

{¶ 14} Appellant now raises the following seven assignments of error for our review:

{¶ 15} "Assignment of Error I: The trial court committed reversible error when it allowed into evidence at Mr. Ricks' trial unreliable eyewitness identification evidence, in violation of Mr. Ricks' Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

{¶ 16} "Assignment of Error II: The trial court abused its discretion and denied Mr. Ricks the ability to present a complete defense to the State's charges when it denied his motions for a court-appointed expert regarding eyewitness identification, in violation of Mr. Ricks' rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

{¶ 17} "Assignment of Error III: Mr. Ricks was denied his right to confront the evidence against him at trial, in violation of his Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.

{¶ 18} "Assignment of Error IV: The cumulative nature of the trial court's errors during Mr. Ricks' trial, as presented within Assignments of Error I, II, and III, denied Mr. Ricks' rights to a fair trial and due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

{¶ 19} "Assignment of Error V: The trial court violated Mr. Ricks' rights to due process and a fair trial when, in the absence of sufficient evidence, the trial court convicted Mr. Ricks of complicity to trafficking in marijuana and complicity to trafficking in cocaine, in violation of Mr. Ricks' Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

{¶ 20} "Assignment of Error VI: The trial court committed plain error when it failed to merge the firearm specifications regarding Mr. Ricks' convictions for aggravated murder and aggravated robbery, in violation of R.C. 2929.14(D)(1)(b), and in violation of Mr. Ricks' rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

{¶ 21} "Assignment of Error VII: Defense counsel rendered ineffective assistance of counsel in violation of Mr. Ricks' rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution."

{¶ 22} In appellant's first assignment of error, he asserts that the trial court erred in denying his motion to suppress the photo-array identifications where the size and lighting of appellant's photo, combined with the fact that the witnesses knew many of the individuals in the lineup, were so unduly suggestive that the reliability of the identifications could not outweigh the prejudicial effect.

{¶ 23} Initially we note that review of a trial court's grant or denial of a ...