State v. Scott

• Decision Date: 19 January 2018
• Docket Number: No. 27254,27254
• Citation: 2018 Ohio 198,104 N.E.3d 143
• Parties: STATE of Ohio, Plaintiff–Appellee v. Michael D. SCOTT, Defendant–Appellant
• Court: Ohio Court of Appeals

104 N.E.3d 143

2018 Ohio 198

STATE of Ohio, Plaintiff–Appellee

v.Michael D. SCOTT, Defendant–Appellant

No. 27254

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

Rendered on January 19, 2018

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, and MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorneys, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorneys for Plaintiff–Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402, Attorney for Defendant–Appellant

OPINION

TUCKER, J.

{¶ 1} Defendant-appellant, Michael D. Scott, appeals from his convictions for two counts of murder, plus firearm specifications; two counts of felonious assault, plus firearm specifications; one count of having a weapon while under disability; and one count of possession of a firearm in liquor permit premises. Raising seven assignments of error, Scott argues that the trial court erred by: (1) overruling his motion to suppress two pretrial identifications; (2) mishandling the potential testimony of C.J. Spears; (3) overruling his motion for acquittal on the charges of murder; (4) refusing to instruct the jury on the lesser included offenses of involuntary manslaughter and reckless homicide; (5) admitting certain photographs showing him holding a handgun matching the description of the murder weapon; and (6) allowing a police officer to provide narrative testimony during the jury's viewing of a security video. Additionally, Scott argues that the jury's verdicts were against the manifest weight of the evidence. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} On Saturday, September 26, 2015, Joshua Hamilton attended his sister Bridget's birthday party at Kricket's Tavern in Huber Heights, along with his other sister, Brittany, and one of Brittany's friends. Trial Tr. vol. 3, 1099–1102. The staff that evening consisted of four persons, one of whom served as a host and took photographs to be used for promotional purposes. Id. at 1054–1055.

{¶ 3} At last call, between 2:00 a.m. and 2:30 a.m. on Sunday, September 27, 2015, customers began filing out of the tavern and into the parking lot. Trial Tr. vol. 2, 543–545; Trial Tr. vol. 3, 1064–1065. Shortly thereafter, Brittany's friend discovered that she had misplaced her cellular telephone, so she walked back inside with Brittany and Joshua to search for it. Trial Tr. vol. 4, 1182–1184. Brittany asked several exiting customers whether they might have picked up the phone, and in response, one man used vulgar language and shoved her towards the bar. Trial Tr. vol. 3, 1113–1116. A group of customers then assaulted Joshua, who fell to the floor. Trial Tr. vol. 2, 546–547 and 647–649.

{¶ 4} Tavern employees Herbert Boyd and Tyrone Moss intervened, dispersing those involved in the fight. Trial Tr. vol. 2, 546–548; Trial Tr. vol. 3, 1007–1010. As the fight broke up, Boyd saw a man near the entrance, afterward identified as Appellant, "pull up a gun." Trial Tr. vol. 2, 548–549 and 555–556; Trial Tr. vol. 3, 869–873 and 947–952. Boyd dodged or pivoted out of the way, and moments later, he heard two to three gunshots. Trial Tr. vol. 2, 553–554 and 559–560. After the shots were fired, Joshua Hamilton lay dead, having been killed by a shot in the back. Trial Tr. vol. 2, 437, 442, 450–453 and 460–461. The tavern's surveillance system captured video of the shooting. Id. at 516 and 580–581. Within minutes, another man fired several more shots in the parking lot. Trial Tr. vol. 3, 789–792 and 951.

{¶ 5} A Montgomery County grand jury issued an indictment on October 9, 2015, charging the Appellant with two counts of murder, plus firearm specifications; two counts of felonious assault, plus firearm specifications; one count of having a weapon while under disability; and one count of possession of a firearm in liquor permit premises. On November 17, 2015, Appellant moved to suppress pretrial identifications made by two witnesses; the trial court overruled the motion in its decision of April 18, 2016.

{¶ 6} Following a jury trial, Appellant was convicted on all counts.¹ He timely appealed to this court by filing his notice of appeal on September 6, 2016.

II. Analysis

{¶ 7} For his first assignment of error, Appellant contends that:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS.

{¶ 8} Appellant objects to the trial court's ruling on his motion to suppress as it relates to the pretrial identifications made by Victor Jefferson and Christopher Nance, customers who visited Kricket's Tavern and witnessed the shooting. Trial Tr. vol. 3, 771–773, 786–787, 930–931 and 947–950. According to Appellant, the identifications made by Messrs. Jefferson and Nance should have been deemed unreliable because officers with the Huber Heights Police Division did not use a conventional "mug shot photo spread[ ]" during their interviews with the two men. See Appellant's Br. 1–3. Appellant also argues that the identifications should be deemed unreliable because Jefferson and Nance provided inaccurate—or, at least, contradictory—descriptions of the shooter in their testimony at the hearing on his motion to suppress. See id.

{¶ 9} Appellate "review of a motion to suppress presents a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court "is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witness[es]," so an "appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982) ; State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, 2015 WL 5671910, ¶ 9, citing State v. Cruz , 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, 2014 WL 4802860, ¶ 12. Accepting the trial court's findings of fact as true, "the appellate court must then independently determine, without deference to the [trial court's legal] conclusion[s]," whether the "facts satisfy the applicable * * * standard." Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583, and State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). For motions to suppress directed specifically at pretrial identifications, a trial court's ruling is reviewed under the abuse-of-discretion standard. State v. McComb , 2017-Ohio-4010, 91 N.E.3d 255, ¶ 33 (2d Dist.), citing State v. Moody , 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, 2016 WL 7496642, ¶ 14.

{¶ 10} Due process may require suppression of an eyewitness's pretrial identification of a person when the basis of the identification creates a very substantial likelihood that the eyewitness is mistaken. See Neil v. Biggers , 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ; State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208, citing Foster v. California , 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). To prevail on a motion to suppress a pretrial identification, a "defendant must * * * show that the identification procedure was unduly suggestive." State v. Harris , 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, 2004 WL 1506227, ¶ 19. If the defendant makes this showing, then the court must "consider whether the identification, [in] the totality of the circumstances, is reliable despite the suggestive[ness] [of the] procedure." Id. , citing State v. Wills , 120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997). The "factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the [subject being identified] at the [relevant] time * * *, the witness'[s] degree of attention, the accuracy of the witness'[s] prior description of the [subject], the [witness's] level of certainty * * *, and the length of time" between the witness's initial encounter with the subject and the subsequent identification. See Neil , 409 U.S. at 199–200, 93 S.Ct. 375.

{¶ 11} Detective Fosnight and Detective Colvin of the Huber Heights Police Division interviewed Victor Jefferson on October 22, 2015, and Christopher Nance on October 23, 2015. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.'s Mot. to Suppress 5–6, Feb. 16, 2016. The detectives asked Jefferson and Nance to identify the shooter and showed them three of the photographs taken on the night of the shooting by Mark Greene, the host and promotional photographer. Id. at 3 and 5–6. Both of them identified Appellant, noting his distinctive hairstyle and clothing. Id. at 5–6.

{¶ 12} This procedure did not comport with R.C. 2933.83 or usual police practices. Id. at 3 and 6. Generally, the Huber Heights Police Division requires that a photographic lineup be shown to witnesses by a blind administrator and consist of six mugshots—a recent photograph of the suspect under investigation, as well as photographs of five other persons with similar physical characteristics. Id. at 3. At the hearing on Appellant's motion to suppress, Detective Fosnight testified that between the night of the shooting and Appellant's arrest on October 2, 2015, he could not obtain a mugshot of Appellant suitable for a standard lineup;² he and Detective Colvin therefore used Greene's photographs to interview a number of witnesses before Appellant's arrest. Id. at 6. He further testified that after Appellant's arrest, he and Detective Colvin continued to use the same three photographs to "maintain[ ] * * * consistency" among interviews, although he could have obtained a mugshot of Appellant at that point. Tr. of Hr'g on Mot. to Suppress 83–84.

{¶ 13} The trial court found this procedure "unduly suggestive" but ultimately determined that neither Jefferson nor Nance was likely to have...