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State of Ohio v. Theron E. Lewis

November 18, 2011

STATE OF OHIO : PLAINTIFF-APPELLEE :
v.
THERON E. LEWIS :
DEFENDANT-APPELLANT



Trial Court Case No. 2009-CR-1538 (Criminal Appeal from Common Pleas Court)

Cite as State v. Lewis,

OPINION

KLINE, J. (sitting by assignment)

{¶1} Theron Everett Lewis (hereinafter "Lewis") appeals the judgment of the Montgomery County Court of Common Pleas, which found him guilty of various crimes related to a shooting. On appeal, Lewis argues that the trial court should have suppressed the identification testimony of two witnesses. Because the identification process was not unnecessarily suggestive, we disagree. Accordingly, we overrule Lewis's assignment of error and affirm the judgment of the trial court.

I

{¶2} On May 11, 2009, a shooting took place at a church. After the shooting, Detective Daryl Smith (hereinafter "Detective Smith") interviewed Witness One at the Safety Building. Witness One did not know who the shooter was, but he said that the shooter "had on a kind of like a jacket with a hoodie on it." Transcript at 37.

{¶3} After interviewing Witness One, Detective Smith learned that Lewis might be involved in the shooting. Detective Smith shared this information with Detective Gregory Gaier (hereinafter "Detective Gaier"). Coincidentally, Detective Gaier had compiled a photo array while investigating Lewis's involvement in an unrelated crime. The photo array compiled by Detective Gaier includes six photographs of young African-American males, with Lewis's photograph in the third position. In the photo array, Lewis appears to be wearing some type of jacket or bulkier clothing. The other five men, however, appear to be wearing t-shirts. Detective Gaier gave copies of this photo array to Detective Smith for use in the shooting investigation.

{¶4} On May 12, 2009, Detective Smith showed the photo array to Witness One. Within five seconds, Witness One identified Lewis as the shooter. Upon further questioning, Witness One claimed that he did not know Lewis before the shooting.

{¶5} On May 13, 2009, Detective Smith made his initial contact with Witness Two. During this initial interview, Detective Smith showed Witness Two the photo array. Within five seconds, Witness Two identified Lewis as the shooter. Upon further questioning, Witness Two also claimed that he did not know Lewis before the shooting.

{¶6} After interviewing Witnesses One and Two, Detective Smith compiled a new photo array for use in the investigation. As before, the newer photo array includes six photographs of young African American males. But unlike before, the newer photo array includes (1) Lewis's photograph in the fourth position and (2) a more recent picture of Lewis wearing a t-shirt.

{¶7} On June 8, 2009, Detective Smith interviewed Witness Three at the Montgomery County Jail. During this interview, Detective Smith showed Witness Three the newer photo array. Within ten seconds, Witness Three identified Lewis as the shooter.

{¶8} On June 15, 2009, a Montgomery County Grand Jury indicted Lewis for numerous crimes related to the shooting.

{¶9} On February 16, 2010, Lewis filed a motion to suppress any identification testimony. Lewis claimed, in part, that Detective Smith's identification procedures were unduly suggestive. After a suppression hearing, however, the trial court overruled Lewis's motion.

{ΒΆ10} Eventually, Lewis pled no contest to four counts of felonious assault, one count of discharge of a firearm on or near prohibited premises, and one count of having weapons while under disability. After accepting Lewis's no-contest pleas, the trial ...


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