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State of Ohio v. Bryan W. Jackson

December 27, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
BRYAN W. JACKSON, DEFENDANT-APPELLANT.



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

Cite as State v. Jackson,

DECISION AND JUDGMENT ENTRY

{¶1} Bryan W. Jackson (hereinafter "Jackson" or "Gucci") appeals the judgment of the Pickaway County Court of Common Pleas, which convicted him of aggravated robbery with a firearm specification, petty theft, and having a weapon while under disability. Jackson raises numerous arguments on appeal. First, he argues that the trial court should have suppressed evidence related to several photo lineups. Because the photo lineups were not unnecessarily suggestive, we disagree. Next, Jackson contends that he received ineffective assistance of counsel. We disagree. Jackson's trial counsel was not deficient in most instances, and the one instance of deficiency did not result in prejudice. Furthermore, many of the complained-of actions were part of a reasonable trial strategy. Next, Jackson argues that he was the victim of prosecutorial misconduct. Because the prosecutor's actions were not improper, we disagree. Finally, Jackson contends that his convictions are against the manifest weight of the evidence. We disagree because the jury could have reasonably concluded that the various offenses had been proven beyond a reasonable doubt. Accordingly, we overrule Jackson's assignments of error and affirm the judgment of the trial court.

I.

A. The Incident

{¶2} Paulica Haddox (hereinafter "Haddox") and Melissa Fowler (hereinafter "Fowler") had been staying at a house owned by Allen Hill (hereinafter "Hill"). On December 11, 2010, Haddox parked her van in front of Hill's house. After Haddox and Fowler got out of the van, they noticed Floyd Jordan (hereinafter "Jordan" or "Spanky") and Jackson walking towards them. At trial, Fowler testified as to what happened next:

A. Spanky yelled my name and then he yelled at me and told me to come here.

Q. * * * How did you feel when you heard Spanky yelling your name?

A. Threatened. He screamed it like I knew something was wrong.

Q. And what were they doing as he screamed it?

A. Just walking.

Q. What did you do after you felt threatened by the way he yelled your name?

A. I started walking faster, trying to make it into the house.

Q. And what happened when you got up onto [the] porch?

A. I got to the front door and it was locked and I was beating on the front door, and [Hill] came and unlocked it and then we just all went in the house at once.

Q. Who was on the porch then when the door opened?

A. Me, [Haddox], Spanky and Gucci.

Q. What happens when the door swings open?

A. We just all kind of went in the door together * * *. Transcript at 214-218.

{¶3} Once inside the house, Jackson held a gun and questioned Fowler about two men named "Rocky" and "Joe." Fowler responded that she did not know what Jackson was talking about. Fowler's response prompted Jackson to say, "Check your phone bitch." Transcript at 219. Jackson then took Fowler's phone out of her hand. A short time later, Jackson put his gun to Fowler's head and said, "Give me your sh*t! Do you want to die bitch?" Transcript at 256. Jackson then took $150 from Fowler, and Jackson and Jordan left after that. (For his participation in this incident, Jordan was convicted of both complicity to aggravated robbery and complicity to petty theft. See State v. Jordan, 4th Dist. No. 11CA14, 2012-Ohio-668. Jordan's trial took place before Jackson's trial.)

{¶4} Fowler called 911 after Jackson and Jordan left. She told the operator that somebody had "held a gun to [her] and * * * took [her] phone." Fowler also said that it was "Floyd and I don't know the other one they call him Gucci." Eventually, the police responded to Fowler's call.

B. The Photo Lineup

{¶5} On December 14, 2011, Sergeant Bob Chapman (hereinafter "Sergeant Chapman") of the Circleville Police Department conducted photo lineups with Fowler and Haddox.

Sergeant Chapman testified that the "folder system" he utilized in this case consisted of basically the method set forth in R.C. 2933.83(A)(6). Chapman used one "suspect photograph" of Jackson, five "filler photographs" * * * that matched the description of the defendant, four "blank photographs" that contained no image, and ten empty folders.

Sergeant Chapman followed the same procedure with respect to co-defendant [sic] Floyd "Spanky" Jordan. Chapman told Melissa Fowler that he would be allowing her to view a photo array that consisted of ten numbered folders that contained either a photo of someone or a blank piece of paper. Fowler was instructed to look inside each folder as Chapman handed them to her and not to say anything until she viewed all of them.

Sergeant Chapman told Fowler that the photo arrays may or may not contain a photo of the alleged perpetrator. Fowler was also advised that she was not obligated to identify anyone and that she should not identify anyone unless she was certain of her choice.

Per the testimony of Sergeant Chapman, Melissa Fowler identified Floyd "Spanky" Jordan in folder #3 of his array. Ms. Fowler signed Jordan's photo sheet. Ms. Fowler identified defendant Bryan Jackson (aka: "Gucci") in folder #6 of his array. Ms. Fowler signed Jackson's photo sheet as well.

Sergeant Chapman testified that the same folder system was used with respect to Paulica Haddox. Ms. Haddox identified Floyd "Spanky" Jordan in folder #3 of his array. Ms. Haddox signed Jordan's photo sheet. Furthermore, Ms. Haddox identified defendant Bryan Jackson in folder #3 of his array and signed the photo sheet. This concluded the two photo arrays. April 15, 2011 Decision and Entry.

{¶6} Sergeant Chapman conducted the photo lineups even though he knew Jordan's and Jackson's identities. And as Sergeant Chapman later testified, the Circleville Police Department had not yet adopted specific procedures for photo lineups.

C. Pretrial Issues

{¶7} On January 7, 2011, a Pickaway County Grand Jury indicted Jackson for (1) aggravated burglary with a firearm specification, (2) aggravated robbery with a firearm specification, (3) kidnapping with a firearm specification, (4) petty theft, and (5) having a weapon while under disability. Prior to Jackson's trial, the state dismissed the charges for aggravated burglary and kidnapping.

{¶8} On March 11, 2011, Jackson filed a motion to suppress the results of the photo lineups. Jackson argued that the photo lineups did not conform with R.C. 2933.83. The trial court, however, denied Jackson's motion to suppress. As the trial court found,

The only marked deviation from R.C. 2933.83 was Sergeant Chapman's failure to state in writing why it was impracticable for a "blind administrator" to conduct the photo lineup as directed in R.C. 2933.83(B)(2). Likewise, as brought out on cross-examination, Sergeant Chapman did not instruct the witnesses to comment immediately upon opening each folder as to whether or not the photograph was of the person responsible for the crime. R.C. 2933.83(A)(6)(f). Rather, Sergeant Chapman instructed the witnesses to view all ten folders before indicating which numbered folder, if any, was the perpetrator. There was nothing improper about using this method as opposed to R.C. 2933.83(A)(6)(f). Lastly, as testified to by Sergeant Chapman, the Circleville Police Department has yet to formally adopt specific procedures for conducting lineups as directed by R.C. 2933.83(B). This failure, along with the other deviations, does not automatically render the photo lineup[s] in this case inadmissible. Any such deviations may be argued to a jury at trial. April 15, 2011 Decision and Entry.

{¶9} Jackson also filed several motions in limine. In one of these motions, Jackson "request[ed] the court to exclude any and all evidence of the Defendant's prior conviction for carrying a concealed weapon." April 13, 2011 Motion in Limine. The trial court, however, denied this particular motion by saying: "[T]his is a motion in limine and for this purpose I show that it will be denied, subject to the court granting a limiting instruction to the jury in the event the defendant even testifies. I mean we don't even know if that's going to happen so it's clearly just a preliminary matter at this point." Transcript at 105-106.

D. The Trial

{¶10} During the state's opening argument, the prosecutor made several references to drugs, addiction, and the drug problem in the community. The prosecutor introduced the topic of drugs by saying: "[T]he Defendant will present evidence as well. Very likely a lot of you simply shouldn't believe these witnesses, that there was no gun. The defendant can make that argument because Melissa Fowler and Paulica HaddoX aren't saints. They've both struggled with drug addiction. The state is not trying to hide that from you today." Transcript at 200.

{¶11} Defense counsel also referenced drugs during his opening argument. For example, in assessing witness credibility, Jackson's trial counsel asked the jury to "[t]ake into consideration the testimony, the behavior, the mentality of the drug addict * * *." Transcript at 205.

{¶12} Fowler, Haddox, and Hill all testified on behalf of the state. Their testimony was not consistent as to every detail, but each of them testified that Jackson pointed a gun at Fowler. Furthermore, both Fowler and Haddox testified that Jackson took Fowler's money and cell phone.

{¶13} Fowler and Haddox also testified about their involvement with drugs. And on cross-examination, Jackson's trial counsel asked both Fowler and Haddox about apparent inconsistencies between their testimony during Jordan's trial and their testimony in the present case.

{¶14} Jordan testified on behalf of the defense. According to Jordan, Jackson did indeed confront Fowler because she was "bad mouthing Gucci." Transcript at 282. But Jordan testified that Jackson did not (1) pull out a gun or (2) take Fowler's money or cell phone. Instead, Jordan testified that Jackson simply took Fowler's "drugs off the table and walked out of the house." Transcript at 285. (Jackson's trial counsel attributed Fowler's 911 call to her "freaking out because she [did] not have her drugs." Transcript at 203-204.)

{¶15} Jackson also testified in his defense, and he admitted to confronting Fowler at Hill's house. But Jackson denied (1) that he had a gun or (2) that he took Fowler's money. Instead, Jackson testified that he simply took Fowler's drugs and her cell phone.

{¶16} During Jackson's direct testimony, Jackson's trial counsel asked Jackson about some of his prior convictions, including the conviction for carrying a concealed weapon.

{¶17} Eventually, the jury found Jackson guilty of (1) aggravated robbery with a firearm specification, (2) petty theft, and (3) having a weapon while under disability.

E. The Sentence

{¶18} The state recommended the following sentence: "[N]ine years total[.] * * * [S]ix years on the aggravated robbery, plus the three on the specification. The three years on the weapons, ask that to be run concurrent, the same with the petty theft * * *." Transcript at 347. Jackson's trial counsel agreed with the state's recommendation. But in explaining why he agreed, Jackson's trial counsel said that Jackson would be eligible for judicial release "after * * * five years." Transcript at 348. This statement was not accurate because a sentence for a firearm specification is mandatory. R.C. 2929.14(B)(1)(a)(ii). Therefore, under the state's recommended sentence, Jackson would have been eligible for judicial release after eight years, not five. See R.C. 2929.20(A)(1)(a) and 2929.20(C)(4). Regardless, the trial court did not follow the jointly recommended sentence and, instead, sentenced Jackson to a total combined prison term of twelve years.

{¶19} Jackson appeals and asserts the following assignments of error: I. "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS IDENTIFICATIONS MADE DURING PHOTO LINEUPS. SAID ERROR DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW." II. "STATEMENTS MADE BY THE PROSECUTOR CONSTITUTED PROSECUTORIAL MISCONDUCT THEREBY DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF APPELLANT'S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION." III. "TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION[S] 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION." And IV. "THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION WHEN THAT JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION."

II.

{¶20} In his first assignment of error, Jackson contends that the trial court should have granted his motion to suppress evidence related to the photo lineups.

{¶21} Our "'review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.'" State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Therefore, we "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8. "Accepting these facts as true, [we] must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. Accord Roberts at ¶ 100; State v. Stepp, 4th Dist. No. 09CA3328, 2010-Ohio-3540, ¶ 14.

{¶22} We "apply a two-prong test in determining the admissibility of challenged identification testimony. First, the defendant bears the burden of demonstrating that the identification procedure was unnecessarily suggestive. If this burden is met, the court must then consider whether the procedure was so unduly suggestive as to give rise to irreparable mistaken identification." State v. Robinson, 8th Dist. No. 94293, 2010-Ohio- 5776, ¶ 14, citing State v. Page, 8th Dist. No. 84341, 2005-Ohio-1493, ¶ 12; Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Under the second prong, "the issue is whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure." State v. Wills, 120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997).

A.

{ΒΆ23} Initially, Jackson argues that results of the photo lineups should have been suppressed because law enforcement ...


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