State v. Tyrone C. Ellington, 91-LW-1095

• Decision Date: 13 August 1991
• Docket Number: 91-LW-1095,89 C.A. 31 and 89 C.A. 186
• Parties: STATE OF OHIO, Plaintiff-Appellee v. TYRONE C. ELLINGTON, Defendant-Appellant CASE NO. 89 C.A. 31 and 89 C.A. 186
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. TYRONE C. ELLINGTON, Defendant-Appellant

No. 89 C.A. 31, 89 C.A. 186

91-LW-1095 (7th)

Court of Appeals of Ohio, Seventh District Mahoning

August 13, 1991

Civil appeal from Mahoning County Common Pleas Court CASE NO. 88 CR 497.

James A. Philomena, Prosecuting Attorney, Kathi McNabb Welsh, Asst Prosecuting Attorney, Mahoning County Courthouse, 120 Market Street, Youngstown, Ohio 44503, (for Plaintiff-Appellee).

Mary Jane Stephens, 7330 Market Street, Youngstown, Ohio 44512 and Paul J. Gains, 204 Stambaugh Bldg., Youngstown, Ohio 44503, (for Defendant-Appellant).

OPINION

Before HON. JOSEPH DONOFRIO, P.J., HON. EDWARD A. COX, J., HON JOSEPH E. O'NEILL, J.

O'NEILL J.,

The appellant came on for trial in the trial court upon indictment charging him with rape contrary to R.C. 2907.02(A)(1)(b) and Kidnapping contrary to R.C. 2905.01(A) (4). Following the trial, the jurors returned a verdict finding the appellant guilty of both charges. A timely notice of appeal was filed therefrom.

The first assignment of error contends that the trial court committed reversible error by denying defendant's motion for a mistrial.

During the direct examination of Detective Dean Phillips, of the Struthers, Ohio, Police Department, the following took place:

"Q. Did anything else happen during the interview with Mr. Ellington?

"A. Yes, sir. I asked him then if he would be willing to take a polygraph test. At that time --

"MR. GAINS: Objection, your Honor. This Court is well aware of a polygraph examination and the unreliability of those examinations.

"THE COURT: We have (sic) having a recitation as to what took place. I haven't seen any proffer of a polygraph examination, and I don't expect to see one. He's simply relating, to my understanding, what took place at this interview.

"Q. I'm sorry, Detective Phillips.

"A. When I asked Tyrone Ellington that question, his response was indicating that he wanted to talk to a lawyer. At that moment we immediately terminated the interview. He was then taken back to wherever they brought him from." (Tr. 191-192).

Counsel for the appellant moved the court for a mistrial based on the statement by Detective Phillips. The court overruled the motion for mistrial with the statement that he would instruct the jury relative to this statement by Detective Phillips.

During his instructions to the jurors, the trial judge stated:

"You are instructed to disregard any reference made to any polygraph examination and not consider it for any purpose during your deliberations." (Partial Transcript of Court's Charge).

In the case of State v. Holt (1969), 17 Ohio St. 2d 81, the following dicta appears at pages 83-84:

"Next, the defendant claims prejudicial error on the part of the trial judge in not ordering a mistrial pursuant to a motion therefor when a detective in the sheriff's office, on the witness stand, in consulting his notes and not in response to any question asked him, volunteered the information that defendant had taken a lie detector test and had failed it. Of course, such testimony was highly improper and no doubt damaging to the defendant, but the trial judge promptly instructed the jurors to disregard such remark and to' erase it from their minds. In view of the court's immediate action in this respect, we do not feel justified in holding that the judge's refusal to order a mistrial was prejudicial error."

The appellant desires us to accept the ruling of the Court of Appeals from Montgomery County in the case of State v. Hegel (1964), 9 Ohio App. 2d 12, wherein that court ruled:

"The admission of testimony pertaining to a defendant's refusal to submit to a polygraph test constitutes prejudicial error." (Syllabus)

We find the distinct difference between the Hegel case and this case. The Hegel court very specifically stated, as a part of its opinion:

"At no point was the jury admonished to disregard it." (p. 14).

We conclude that this portion of the first assignment of error is without merit.

Under this assignment of error, the appellant also takes issue with Detective Phillips' testimony that when he asked the appellant about taking a polygraph test, the appellant responded that he wanted to talk to a lawyer. (Tr. 192). In support of this portion of this assignment of error, the appellant has cited us to three cases outside of the Ohio jurisdiction. In two of the cases, Zemina v. Solem (1978), 8th Cir., 573 F. 2d 1027 and U.S., ex rel. v. Macon v. Yeager (1972), 3rd Cir., 476 F. 2d 613, prosecutors commented to the jury that contact with counsel was indicative of guilt. We do not have such facts in this case. In the third case, U.S. v. Liddy (1974), D.C. Cir.), 509 F. 2d 428, the court found the mistrial appropriate because the evidence and circumstances were such that the admission of evidence of a request for counsel could have provoked the possibility that the request could be taken as self-incriminatory. We have no such set of circumstances in this case.

Accordingly, this first assignment of error is found to be without merit.

The second assignment of error contends that the conviction of the appellant was against the manifest weight of the evidence in that the eyewitness identification by the 10-year old victim was unreliable.

The victim of this crime was a 10-year old boy named Freddie DeAngelis. The crime took place on July 9, 1988. Shortly thereafter, the victim was interviewed by Detective Dean Phillips of the Struthers Police Department. Detective Phillips testified that the victim described his assailant as follows:

"* * * He stated that the man was a black male; that he guessed the man's age at about 40 years old; that the man was about anywhere from 5' 10" to 6' tall; stocky to heavy build with a pot belly; that the man had a short braided ponytail, and wore brown plastic or I'll call them horn-rimmed glasses; that he, Freddie, had noticed that the man's breathing was very heavy. He stated that the man was wearing a blue baseball type cap, blue shirt, like a work shirt, and blue work trousers, similar to what a gas station attendant would wear. He also stated that the man was carrying a bag similar to a gym bag. This also was blue with a red or orangish red stripe on it." (Tr. 185).

The appellant admits, by way of brief, that he met this physical description but contends that there are several significant factors tending to make the identification suspect. The victim testified that, at the time of the attack, his assailant "* * * had a braid in the back of his hair. It was a short one" (Tr. 126). Appellant makes the statement that he had short hair.

The appellant called Rev. Roy Myers, director of a resident program at the New Castle, Pennsylvania Rescue Mission. Rev. Myers testified that the appellant stayed at the rescue mission from June 5 until July 10, 1988. The following dialogue took place between Rev. Myers and appellant's counsel:

"Q. Could you describe to the jury how long Tyrone Ellington's hair was on June 5th through July 10th?

"A. Pretty much the way it is now; a little short but not too short; not too long.

"Q. You never observed a ponytail or braids?

"A. No." (Tr. 345).

The appellant further presented Jason Rankin, who is employed with the Allied Human Services in New Castle, Pennsylvania. Mr. Rankin testified that he saw the appellant on the 8th day of June, 1988, and on the day before the crime. Mr. Rankin was asked:

"Q. Did you see a ponytail on him on July 8th?

"A. No.

"Q. How long was his hair on July 8th?

"A. About the same as mine is right now.

"Q. Did you ever see braids going around Tyrone Ellington's head?

"A. No." (Tr. 374).

Obviously, the preceding testimony would indicate an inconsistency in the victim's description of his assailant.

The State called Margaret Peter as a witness. She testified that she had seen the appellant in June 1988 and, at that time, he had a "little ponytail with braids" (Tr. 303).

The reliability of an identification must be determined from all the circumstances of the case. Ordinarily, the sufficiency of evidence to prove the main fact of guilt, or any evidentiary fact looking thereto, is a matter within the province of the jury. When all the evidence is in, they are to weigh it and determine whether or not the guilt of the accused has been established beyond a reasonable doubt. All of the evidence, relative to the identification of the appellant, was competent and was admissible. The conflicts therein were within the office of the triers of the fact to resolve. If the evidence in a case is susceptible of more than one construction, a reviewing court is to give the evidence that interpretation which is consistent with the verdict and judgment.

Upon our review of all of the testimony, relative to the in-court identification, it is our conclusion that the victim was fairly positive in his identification.

"Q. Do you remember the lineup picture?

"A. Yes, I think so.

"Q. Tell me why you picked number five?

"A. Because he looked familiar to the composite that I drew, and he looked like the guy that I'd seen. " (Tr. 165).

"Q. Did you select Mr. Wellington in that lineup because he resembled your composite, Freddie?

"A. No, I picked him because he looked like the man that I had seen." (Tr. 171).

"Q. Freddie, when you identified this man over here before today, were you certain at that time that's the man you saw in Yellow Creek park?

"A. Not at the time.

"Q. When I asked you today if that was him, are you sure that was him?

"A. Yes." (Tr. 175).

"Q. Freddie, is the reason that you were so positive is because number five in that lineup fit your description that you had given the police?

"A. No, because I think it is him because it was

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