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State of Ohio v. Thomas J. Ricks

September 30, 2011

STATE OF OHIO APPELLEE
v.
THOMAS J. RICKS APPELLANT



Trial Court No. 2008-CR-282

The opinion of the court was delivered by: Pietrykowski, J.

DECISION AND JUDGMENT

{¶1} Defendant-appellant, Thomas Ricks, appeals the May 4, 2010 judgment entry of the Erie County Court of Common Pleas which, 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 twenty-six 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 R.C. 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 R.C. 2925.03(C)(3)(c), and one count of trafficking in cocaine, R.C. 2925.03(A)(1) and R.C. 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 which analyzed the identification procedure under the test set forth in Neil v. Biggers (1972), 409 U.S. 188. 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, it 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 that 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 co-defendant, Aaron Gipson, drove down from the Canton, Michigan area; the two played cards at witness Crystal Harris'

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' 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 Stated 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, was 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 motion to suppress presents mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. An appellate court defers to a trial court's factual findings made with respect to its ruling on a motion to suppress where the findings are supported by competent, credible evidence. Id.; State v. Brooks (1996), 75 Ohio St.3d 148, 154. "[T]he appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard."

Burnside at ¶ 8, citing State v. McNamara (1997), 124 Ohio App.3d 706, 707.

{¶24} In Neil v. Biggers, the United States Supreme Court considered due process limitations on the use of evidence derived through suggestive identification procedures. The court utilized a two-prong analysis stating that "[w]hen 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." State v. Waddy (1992), 63 Ohio St.3d 424, 438, superseded by constitutional amendment on other grounds, citing Neil v. Biggers (1972), 409 U.S. 188; Manson v. Brathwaite (1977), 432 U.S. 98. The first question is whether the identification procedure was unnecessarily suggestive of the defendant's guilt. Id. The second, "is whether, under all the circumstances, the identification was reliable, i.e., whether suggestive procedures created 'a very substantial likelihood of irreparable misidentification.'" Id. at 439, quoting Simmons v. United States (1968), 390 U.S. 377, 384.

{¶25} On April 23, 2009, a suppression hearing was held. Sandusky Police

Detective Gary Wichman testified that after interviewing appellant's co-defendant, Aaron Gipson, in Canton, Michigan, appellant was identified as a suspect in the death of Calvin Harper. A photograph was obtained from Cobb County, Georgia, and was emailed to Sandusky County. Using the photograph, a photo array was developed. Appellant's photograph was placed in slot six (out of eight.)

{¶26} Detective Wichman testified that he was present when the array was shown to two of the three witnesses. Rhonda Farris, the victim's neighbor, was told that the police had a suspect and that he was in the array. Farris identified appellant as the individual who mistakenly knocked on her door just prior to the murder. According to Wichman, Harper, the victim's sister, identified appellant after she played cards for a few hours with him and Gipson. That was the first occasion she met appellant.

{¶27} During cross-examination, Wichman was questioned regarding the reflection on appellant's face in the photograph. Wichman indicated that he had not noticed it until defense counsel pointed it out.

{¶28} Detective Eric Graybill testified that he compiled the photo array. Graybill stated that in compiling the array, he looked for photographs with similar backgrounds and individuals with similar physical characteristics. Detective Graybill stated that the photographs were selected from those already in the department's system. Graybill indicated that he did not know where the other individuals in the array lived.

{¶29} The three witnesses that identified appellant testified. Crystal Pool testified that on March 10, 2008, she spent a few hours with appellant at her friend's house. That was the first time she met appellant. Regarding the photo array, Pool admitted that she knew "just about everybody in the picture," but that she recognized appellant, too. Pool testified that she would never forget his eyes.

{¶30} Chanel Harper testified that the victim was her brother. Harper stated that Gipson and appellant were at her home on March 10, 2008. Regarding the photo array, Harper testified that she knew "mainly all of" the individuals in the array and went to school with some of them. Harper stated that she was "very sure" of her identification.

{¶31} Rhonda Farris testified that she lived next door to the victim and that, just before the murder, a man mistakenly knocked on her door. Farris testified that they were approximately six inches apart. Farris testified that she was "very sure" that the individual was appellant and she picked him out of the photo array. Farris stated that her cousin was in the array and that she knew all the others. Farris stated that she "picked him out first" before she even looked at the other photos.

{¶32} Detective Helen Prosowski testified that she presented the photo array with Detective Wichman, separately, to Chanel Harper and Rhonda Farris. It was presented approximately ten days after the murder. Prosowski testified that both women immediately identified appellant.

{¶33} As set forth above, the trial court found that the subtle differences in the photograph combined with the fact that the witnesses knew some or all of the individuals in the array, made the array unduly suggestive. However, the court ultimately concluded that their certainty in identifying appellant combined with the relatively short length of time between the crime and the array negated any likelihood of misidentification.

{¶34} Appellant's chief argument is that because the witnesses knew the other individuals in the array, they would, by process of elimination, be more likely to identify appellant as the alleged perpetrator. Ohio courts have not squarely addressed this issue; however, it has been dealt with in other jurisdictions.

{¶35} In State v. Battle (2008), 312 Wis.2d 481, the victim was shot multiple times by a group of four men, including the appellant. The victim identified appellant from a photo array. Defense counsel moved to suppress the identification. The motion was denied.

{¶36} At some point it was revealed that the victim knew all of the people in the six-person photo array. The court concluded that the appellant failed to demonstrate that the array was unduly suggestive. The court noted that the detective did not suggest to the victim who to pick and that the victim immediately recognized and identified the appellant. The court noted that "the fact that [the victim] recognized all of the people depicted in the array from the neighborhood" did not affect the reliability of the identification.

{¶37} Similarly, in State v. Stokes (Kan.App.2004), 87 P.3d 375, an unknown passenger in a vehicle shot another passenger and stole his money. The victim identified the appellant from a six-person photo array. Though he quickly identified the appellant, he admitted that he knew four of the individuals in the array.

{¶38} In its analysis, the court noted that prior to the identification, the detective did not know that the victim knew the other individuals. Further, there was no evidence that the detective suggested the appellant's photo to the victim. The court concluded that even if the array was suggestive, the identification was reliable.

{¶39} Finally, in People v. James (1963), 218 Cal.App.2d 166, and Younger v. Delaware (Del.1985), 496 A.2d 546, ununiformed police officers were placed in the lineups. Some of the witnesses knew one or more of the individuals. The courts allowed the identifications focusing on the certainty of the identification.

{¶40} Appellant also argued that Detective Wichman's statement that a suspect was included in the photo array was unduly suggestive. In State v. Starks, 6th Dist. Nos. L-05-1417, L-05-1419, 2007-Ohio-4897, this court noted that a police officer's statement that a suspect was included among those in the array, without more, was not impermissibly suggestive. We noted that "[i]t seems not unreasonable to assume that any time police show a photo array, one of the pictures there is of an individual of police interest." Id. at ¶ 33.

{¶41} In the present case, we cannot say that the trial court erred when it, despite finding the array unduly suggestive, denied appellant's motion to suppress the identifications. First, Chanel Harper and Crystal Pool spent an extended period of time with the suspect and were very certain that appellant was the individual with Gipson. Farris, although she only saw appellant for a brief period of time was also very certain in her identification. The suspect was approximately six inches from her face and it was still light outside. Next, the identification was made within a short period of time. Further, the officers testified that they did not intend to put known individuals in the array and, in fact, only learned of this fact at the hearing. In its September 30, 2009 judgment entry, the court thoroughly addressed all the relevant factors in assessing the reliability of the identification. Thus, under the totality of the circumstances we find that the identifications were reliable and there was no likelihood of misidentification. Appellant's first assignment of error is not well-taken.

{ΒΆ42} In appellant's second assignment of error, he contends that the trial court erred when it denied his request for a court-appointed identification expert. Specifically, appellant argues that an expert was necessary because the eyewitness identifications were critical in his case due to the lack of physical evidence linking him to the crime. Conversely, the state argues that the case law relied upon by appellant is distinguishable in that multiple witnesses identified appellant and there was ...


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