ORIGINAL IN THE SUPREME COURT OF OHIO STATE OF OHIO, Case No. 10-1413 V. Plaintiff-Appellee, On Appeal from the Stark County Court of Appeals Fifth Appellate District BRANDON PATTERSON, Defendant-Appellant. Court of Appeals Case No. 2009CA00142 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, BRANDON PATTERSON OFFICE OF THE OHIO PUBLIC DEFENDER CRAIG M. JAQUITH 0052997 Assistant State Public Defender 250 East Broad Street - Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (614) 752-5167 - fax crai.uith(c^,opd.ohio.sov COUNSEL FOR APPELLANT JOHN D. FERRERO 0018590 Stark County Prosecutor 110 Central Plaza South - Suite 510 Canton, Ohio 44702 (330) 451-7897 (330) 451-7965 - fax COUNSEL FOR APPELLEE 1;.t,+t" k '' Z0'iE,i CLERK OF CQUR SuPREME COUnl_OF OHIa
TABLE OF CONTENTS Page No. EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION...1 STATEMENT OF THE CASE AND FACTS...1 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW...:...3 Proposition of Law: When the performance of trial counsel is deficient and the defendant is prejudiced thereby, the defendant is denied the right to effective assistance of counsel. 6th & 14th Amendments, U.S. Const....3 CONCLUSION...5 CERTIFICATE OF SERVICE......:...:...5 APPENDIX: Judgment Entry and Opinion, Stark App. No. 2009CA00142 (June 28, 2010)... A-1 i
EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION Trial counsel for Brandon Patterson failed to object to, and to move for a mistrial in response to, highly prejudicial testimony conceming Mr. Patterson's electing not to speak to an investigating officer, and conceming his intention to secure retained defense counsel. Competent trial counsel would not have failed to challenge such prejudicial testimony. Further, because the State's case was based on eyewitness testimony, with no corroborating physical evidence, Mr. Patterson suffered sufficient prejudice that confidence in the correctness of the verdicts is seriously undermined. Mr. Patterson's right to the effective assistance of counsel was violated at the trial level, and not remedied on appeal. This Court should grant jurisdiction in order to reestablish the vital constitutional principles that were recognized in Strickland v. Washington (1984), 466 U.S. 668, and State v. Bradley (1989), 42 Ohio St. 3d 136, and which are implicated by this case. STATEMENT OF THE CASE AND FACTS On the night of November 15, 2008, Dominic Maddox and Arthur Alston were shot at a party in Canton. Maddox suffered a superficial wound, but Alston's injuries resulted in paralysis from the chest down. State's witness Benjamin Blackwell, who smoked marijuana and played beer pong at the party, testified that before the shootings that produced these injuries, he observed an individual with a dark complexion shoot a gun at the ceiling. Then, shortly, thereafter, according to Blackwell's testimony, Alston and Patterson got into an argument in the kitchen, which culminated in Patterson-not the dark-complected individual-firing two shots at Alston with a.22 caliber revolver. Adam Miller, a friend of Blackwell's, testified that he saw a dark-complected man with a gun to Patterson's head. Then Alston either started pushing Miller to get out of the kitchen, or
was trying to start a fight with him. Immediately thereafter, Miller heard shots and saw Alston fall to the floor. Miller knew Patterson from previous encounters, but did not see who fired the shots. Alston testified that very shortly before he was shot, he was asked by Miller why he was at the party, and then Miller started a fistfight with him. Alston described Miller as being very drunk, and testified that the fight only lasted about one minute. Alston did not see who shot him, and the day after the incident he could not identify Patterson in a photo array Maddox testified that he tried to get into the kitchen where the fighting was occurring, but he could not see who the main participants were. He did, however, see the fight between Alston and Miller. At the time the gunshots were fired, Maddox testified that he saw that they came from a revolver, and that it was not until he was outside that he realized a bullet had grazed him across the chest. Maddox made an identification of Patterson as the shooter during the police investigation, but by the time of trial he was unable to recall making that identification. Approximately two months into that investigation, Patterson was located in Corpus Christi, Texas, and he was transported back to Ohio in the custody of Victor George, the lead detective on the case. In connection with Alston's shooting, Patterson was indicted for attempted murder and felonious assault, and in connection with Maddox's shooting, he was indicted for felonious assault. The indictment also contained a count alleging that he had a weapon while under disability, and there were firearm specifications attached to the assault and attempted murder charges. Before trial, a suppression hearing was held regarding the out-of-court identification procedure, and a separate pretrial was held on Patterson's motion in limine concerning out-ofcourt statements made by Patterson. 2
At trial, the State presented eight witnesses, and Patterson was convicted on each count of the indictment, and all specifications. The trial court merged the felonious assault concerning Alston with the attempted murder conviction, and also merged the firearm specifications attached to those two offenses. The trial court did not merge the firearm specifications attached to the shootings of Alston and Maddox. The trial court imposed all terms of imprisonment consecutively, and Patterson's aggregate sentence is 20 years. On appeal, counsel for Patterson assigned as error the weight and sufficiency of the evidence, the propriety of the out-of-court identification procedure, ineffectiveness of trial counsel, and the failure of the trial court to declare a mistrial when improperly prejudicial testimony was presented by the State. All four assignments of error were found to lack merit, and Patterson's convictions and sentence were affirmed. State v. Patterson, Stark App. No. 2009CA00142, 2010-Ohio-2988. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Proposition of Law: When the performance of trial counsel is deficient and the defendant is prejudiced thereby, defendant is denied the right to effective assistance of counsel. 6th & 14th Amendments, U.S. Const. All criminal defendants are entitled to the effective representation of counsel. Strickland v. Washington (1984), 466 U.S. 668. When counsel's performance falls below an objective standard of reasonableness, and undermines confidence in the outcome of the trial, reversal of convictions is required. Id. at 694. Even if Mr. Patterson's trial counsel was not incompetent in every respect, inexcusable errors cannot be rationalized as reasonable strategic decisions. Kimmelman v. Morrison (1986), 477 U.S. 365. 3
Specifically, the record reflects the trial court ruled after the hearing on Mr. Patterson's motion in limine that the State could not adduce evidence regarding 1) his declining to talk about the case with Detective George, and 2) Mr. Patterson's statement that he was in Texas trying to earn money to hire an attorney, so that he would not have to rely on a public defender. Despite these explicit prohibitions by the trial court, patently designed to prevent prejudice against Mr. Patterson for his having invoked his constitutional rights to remain silent and have effective counsel on his behalf, Detective George nonetheless testified that 1) Mr. Patterson declined to talk to him, and 2) Mr. Patterson told Detective George that he was in Texas to earn money to hire an attorney. Trial counsel for Mr. Patterson, rather than moving for a mistrial at each juncture, or at least objecting and requesting a curative instruction, did nothing. Competent counsel would have realized-given the uncertain and conflicting testimony regarding the events of the night in question and regarding identification issues that improperly placing such matters before the jury would be highly damaging, and would have objected. Further, not only would objections have been appropriate, but in light of the trial court's explicit pretrial ruling concerrning those matters, a mistrial should have been requested. These failures adversely impacted Mr. Patterson to such a degree that confidence in the correctness of the jury verdicts is severely undermined. Had a jury been forced to view the testimony of the eyewitnesses without the gloss added by Detective George's improper testimony, there is a reasonable probability that the outcome would have been different. The foregoing demonstrates that both prongs of the familiar Strickland test for ineffective assistance of counsel are met here. Thus, Mr. Patterson's constitutional right to the effective assistance of counsel was violated at trial, and reversal of his convictions is required. 4
CONCLUSION This case involves a substantial constitutional question, as well as a question of public or great general interest. For all the above reasons, Mr. Patterson respectfully requests the Court to accept jurisdiction and reverse the decision of the court of appeals. Respectfully submitted, OFFICE OF THE OHIO PUBLIC DEFENDER IG M. JAQUI 00 ^^7 Assistant State P lic Defender 250 East Broad Street - Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (614) 752-5167 - fax cr.aig.iacjuith(iu,opd.ohio.gov COUNSEL FOR APPELLANT, BRANDON PATTERSON CERTIFICATE OF SERVICE I certify that a copy of the foregoing Memorandum in Support of Jurisdiction of Appellant Brandon Patterson was sent by regular U.S. mail, postage prepaid to the office of John Ferrero, Stark County Prosecutor, 110 Central Plaza South, Suite 510, Canton, Ohio 44702, on this 12`h day of August, 2010. C-1 CRAIG M. JAQWFI/0052997 Assistant State p'ublic Defender COUNSEL FOR APPELLANT 5
IN THE SUPREME COURT OF OHIO STATE OF OHIO,. Case No. V. Plaintiff-Appellee, On Appeal from the Stark County Court of Appeals Fifth Appellate District BRANDON PATTERSON, Defendant-Appellant. Court of Appeals Case No. 2009CA00142 APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, BRANDON PATTERSON
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vs- JUDGMENT ENTRY BRANDON PATTERSON Defendant-Appellant CASE NO. 2009CA00142 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to appellant. JUDGES
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vs- BRANDON PATTERSON Defendant-Appellant JUDGES: Hon. Julie A. Edwards, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. Case No. 2009CA00142 OPINION CHARACTER OF PROCEEDING: JUDGMENT: Appeal from the Court of Common Pleas, f:aca Nn 7nnar.Rn1 Affirmed OT^ DATE OF JUDGMENT ENTRY: APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO Stark County Prosecutor By: RENEE M. WATSON Assistant Prosecuting Attorney 110 Central Plaza South Suite 510 Canton, OH 44702-1418 For Defendant-Appellant GEORGE URBAN 111 Second Street, NW Suite 302 Canton, OH 44702 /ATRUE COPY TE CLERK NANCY S. RE NB0LD, B ^^ ^"^,... DePutY Date.k.
Stark County, Case No. 2009CA00142 2 Farmer, J. { 1} On March 11, 2009, the Stark County Grand Jury indicted appellant, Brandon Patterson, on one count of attempted murder in violation of R.C. 2923.02(A) and 2903.02(B) with a firearm specification, two counts of felonious assault in violation of R.C. 2903.11 with a firearm specification, and one count of having aweapon while under a disability in violation of R.C. 2923.13. Said charges arose from an altercation at a party wherein Dominic Maddox was grazed by a bullet and Arthur Alston was shot. {72} On April 3, 2009, appellant filed a motion to suppress his identification via a photo array. A hearing was held on April 15, 2009. The trial court denied the motion. {73} A jury trial commenced on April 29, 2009. The jury found appellant guilty as charged. By judgment entry filed May 19, 2009, the trial court sentenced appellant to an aggregate term of twenty years in prison. { 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: 1 { 5} "THE TRIAL COURT'S FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE." II { 6} "APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE."
Stark County, Case No. 2009CA00142 3 III { 7} "THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE UNECESSARILY (SIC) SUGGESTIVE PHOTOGRAPH IDENTIFICATION LINE UP." IV {y(8} "THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL SUA SPONTE WHEN TESTIMONY WAS PRESENTED IN VIOLATION OF THE APPELLANT'S FIFTH AMENDMENT RIGHTS." I { 9} Appellant claims his convictions were against the sufficiency and manifest weight of the evidence. We disagree. { 10} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would suppqrt a conviction. State v. Jenks ( 1991), 61 Ohio St.3d 259. "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia ( 1979), 443 U.S. 307. On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin ( 1983), 20 Ohio App.3d 172, 175. See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be
Stark County, Case No. 2009CA00142 4 exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. { 11} Appellant was convicted of attempted murder in violation of R.C. 2923.02(A) and R.C. 2903.02(B) which state the following: {112} "[R.C. 2923.02(A)] No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense. {113} "[R.C. 2903.02(B)] No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code." { 14} Appellant was also convicted of felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2) and having weapons under a disability in violation of R.C. 2923.13(A)(3) which state the following, respectively: { 15} "(A) No person shall knowingly do either of the following: {516} "(1) Cause serious physical harm to another or to another's unborn; { 17} "(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance. { 18} "(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: {^19} "(3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or
Stark County, Case No. 2009CA00142 5 trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse." {ff20} Appellant argues there was insufficient evidence to establish that he shot at Mr. Alston and Mr. Maddox, and the discrepancies in the testimony of the witnesses were of such a nature that the jury erred in finding him guilty. { 21} It is uncontested that during the party, Mr. Alston was shot in the back and was seriously injured resulting in paralysis, and Mr. Maddox was grazed by a bullet resulting in wounds and scars. T. at 138, 140, 188-189, 197. Both men were shot at the same time by the same person. {122} Canton Police Detective Victor George interviewed the witnesses and determined a partygoer, Benjamin Blackwell, was not intoxicated, but the party host, Zachary Graham, was. T. at 325-326. { 23} The incident began at a party at Mr. Graham's residence where Mr. Maddox and Mr. Alston, along with another individual, Justin Flinger, arrived after midnight. T. at 133-134,. 179. All three individuals were African-Americans, and the party was predominately young, Caucasian adults. T. at 134, 210, 212. Everyone became aware of a commotion in the kitchen and all went to the kitchen to see what was happening. T. at 136, 184, 212, 243. Mr. Blackwell testified the kitchen was "full to its capacity of people," and he observed Mr. Alston involved in a disturbance with appellant. T. at 244, 246-247. An attempt was made to break up the disturbance. T. at 137, 186, 213. Thereafter, shots rang out and Mr. Alston was shot in the back and fell
Stark County, Case No. 2009CA00142 6 to the floor and Mr. Maddox was grazed by a bullet. T. at 138, 188. Of all the witnesses that testified, no one but Mr. Blackwell saw who the shooter was, and he identified appellant as the shooter. T. at 248, 256; State's Exhibit 1. Mr. Blackwell testified he observed appellant with a revolver, saw him pull it out, and shoot Mr. Alston. T. at 246-250. Mr. Blackwell stated he was within two feet of appellant, "I could have reached out and touched the gun." T at 250. Mr. Alston and Mr. Maddox identified appellant via a photo array as the person who had the firearm in the kitchen. T. at 142, 154-155, 199-200. {124} The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260. { 25} There was some testimony that was confusing regarding two firearms, one pointing at the ceiling, and the direction of the shots. T. at 213, 215, 217-218, 224, However, Mr. Blackwell's testimony was not inconsistent with this testimony, and his testimony had greater weight because he witnessed the entire incident and he was not intoxicated. { 26} Upon review, we find the testimony given by Mr. Blackwell, if believed, was sufficient to convict appellant. We find no manifest miscarriage of justice. {127} Assignment of Error I is denied.
Stark County, Case No. 2009CA00142 7 II, IV {128} Appellant claims he was denied effective assistance of trial counsel for counsel's failure to file a motion to suppress his custodial statements made without the benefit of adequate Miranda warnings, and failure to move for a mistrial after Detective George commented on appellant's assertion of his right to remain silent. Appellant also claims the trial court erred in not sua sponte ordering a mistrial over the issue. { 29} The standard this issue must be measured against is set out in State v. Bradley ( 1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari denied ( 1990), 497 U.S. 1011. Appellant must establish the following: { 30} "2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 0.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.) {131} "3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." { 32} Appellant argues on cross-examination, Detective George erroneously commented on appellant's assertion of his right to remain silent as follows: { 33} "Q. Basically, Officer, was your investigation over about a week after this incident?
Stark County, Case No. 2009CA00142 8 {qj34} "A. At that time when I issued the warrants, we had enough probable cause to believe that Mr. Patterson was the person who caused this incident, so we had enough at that time to issue warrants. {735} "Now, I gave Mr. Patterson an opportunity to talk to me down in Texas and he declined." T. at 353-354. { 36} Appellant argues his trial counsel should have moved for a mistrial, and the trial court erred in not sua sponte declaring one. Defense counsel had filed a motion in limine on the issue which the trial court granted. Clearly defense counsel was correct in requesting the motion in limine and was successful in his request. Detective George's non-responsive answer cannot be attributed to defense counsel. However, defense counsel did not move for a mistrial or request a cautionary instruction. We acknowledge at times it's good trial strategy to not emphasize an error with objections and cautionary instructions. { 37} Under the second prong of Bradley, we fail to find the outcome of the trial would have been any different had the comment not been made. As we indicated in Assignment of Error I, there was sufficient credible evidence to support appellant's conviction via Mr. Blackwell's testimony. { 38} Appellant further argues his trial counsel should have filed a motion to suppress his statements made in route from Texas to Ohio while in police custody. Specifically, appellant complains of the following testimony elicited from Detective George:
Stark County, Case No. 2009CA00142 9 {539} "Q. Finally, when you went down to Corpus Christy (sic), Texas, did you learn any information which led you to believe that this Defendant knew that there was an outstanding warrant for his arrest? {140} "A. In speaking with him in general conversation on the way back, I had asked him why he chose to go to Texas, and he said he wanted to go down there and get a job to make enough money so he didn't have to have a Public Defender defend him." T. at 358. { 41} As stated by this court in State v. Cline, Licking App. No. 09CA52, 2009- Ohio-6208, at 19: {142} "The failure to file a suppression motion does not constitute per se ineffective assistance of counsel. Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305. Failure to file a motion to suppress constitutes ineffective assistance of counsel only if, based on the record, the motion would have been granted. State v. Butcher, Holmes App.No. 03 CA 4, 2004-Ohio-5572, 26, citing State v. Robinson (1996), 108 Ohio App.3d 428, 433, 670 N.E.2d 1077." { 43} Appellant argues the statements "were made without benefit of an adequate waiver of Miranda warning." Appellant's Brief at 19. Appellant acknowledges the "record is devoid of testimony regarding this issue." Id. Based upon the record, there is no indication that the motion would have been granted. { 44} Assignment of Error II is denied. Assignment of Error IV is denied as there is sufficient evidence to substantiate the verdict and no indication of any under prejudice to appellant.
Stark County, Case No. 2009CA00142 10 III {145} Appellant claims the trial court erred in denying his motion to suppress the photo array because it was unnecessarily suggestive. We disagree. { 46} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings,of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993), 86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. State v. Williams (1993), 86 Ohio App.3d 37. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger. As the United States Supreme Court held in Orne/as v. U.S. (1996), 116 S.Ct. 1657, 1663, "...as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." { 47} Appellant argues the photo identification process was unduly suggestive because Detective George, in conducting the photo array, advised the witnesses that
Stark County, Case No. 2009CA00142 11 the suspect was in the array. April 15, 2009 T. at 16-17; 27. This is Detective George's standard protocol. Mr. Alston, Mr. Maddox, and Mr. Blackwell all identified appellant and did not know him prior to the incident. Id. at 18-21, 25, 39, 41. Right after surgery, Mr. Alston was shown the photo array and he was unable to identify anyone. Id. at 23. However, approximately five months later, Mr. Alston reviewed the same array and identified appellant. Id. at 24-25. { 48} "When a witness has been confronted with a suspect before trial, due process requires a court to suppress her identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances. { 49} "*** { 50} "Since the identification procedure used with Jackson was unnecessarily suggestive, we must apply the second part of the Neil [v. Biggers (1972), 409 U.S. 188] test. The question is whether, under all the circumstances, the identification was reliable, i.e., whether suggestive procedures created 'a very substantial likelihood of irreparable misidentification.'*"'key factors are the witness's opportunity to view (in the case of a voice identification, to hear) the defendant during the crime, the witness's degree of aftention, the accuracy of the witness's prior description of the suspect, the witness's certainty, and the time elapsed between the crime and the identification." State v. Waddy(1992), 63 Ohio St.3d 424, 438-439. { 51 } The trial court engaged in the following with Detective George: { 52} "THE COURT: All right. Now, as to the protocol. I think I have heard it a couple different ways, and I just want to make sure that the record is accurate.
Stark County, Case No. 2009CA-00142 12 { 53} "Because I made a note of it in response to a question earlier, there was some I thought indication made by you that when the lineup was shown to these individuals, at least in the case of Ben Blackwell, that there was a statement that the suspect was in the lineup and could he pick him out. { 54} "WITNESS GEORGE: if i made that statement, that's not what I meant. { 55} "Whenever I show a photo lineup, usually the statement comes out of my mouth is see if you can see the person that you saw that night at the party that had the firearm. { 56} "THE COURT: All right. So you are saying that at least as a matter of protocol you do not affirmatively state that the individual is in fact in the photo lineup? { 57} "WITNESS GEORGE: No, I do not; but I have never showed a photo lineup that did not have a suspect in it. I don't see the purpose of that." April 15, 2009 T. at 41-42. { 58} At the conclusion of the hearing, the trial court denied the motion to suppress, stating the following: {159} "This individual indicates that he normally indicates to them can you pick out the photograph of the suspect, but being an indication that the suspect would be there. {f60} "So the question is, is that in and of itself sufficient to taint the entire identification process? { 61} "This Court finds that, while it is preferable to do it as indicated, it is not something that violates his rights.
Stark County, Case No. 2009CA00142 13 {^62} "It is not so unnecessarily suggestive as to taint the process to exclude the identifications but goes to the weight of the identification which can be argued at the trial, that it is not an absolute requirement but something that certainly would be preferable." Id. at 49-50. { 63} Neither the trial court nor appellant can {oint to any definite case in point. It goes without saying that a photo array is always made up of potential suspects. It is not simply drawn out of. the air, but is generally based on identification of a specific person or on a specific physical description; othernise there would be no purpose. { 64} Upon review, we find the trial court did not err in denying appellant's motion to suppress. { 65} Assignment of Error I I I is denied. { 66} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed. By Farmer, J. Edwards, P.J. and Delaney, J. concur. SGF/sg 0518 JUDGES