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State v. Belcher

Court of Appeals of Ohio, Eighth District

July 18, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KAMERON BELCHER DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-563147

ATTORNEY FOR APPELLANT John T. Castele.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Maxwell M. Martin Assistant County Prosecutor Justice Center.

BEFORE: Rocco, P.J., Blackmon, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, PRESIDING JUDGE.

{¶1} Defendant-appellant Kameron Belcher ("Belcher") appeals from his convictions for aggravated robbery (with firearm specifications and a notice of prior conviction specification), theft, and petty theft. Belcher's appeal is based on allegations of ineffective assistance of counsel, improperly admitted evidence, and prosecutorial misconduct. We conclude that Belcher received a fair trial, and we affirm the trial court's final judgment.

{¶2} The evidence at trial revealed that on May 3, 2011, Willie Williams ("Williams"), an off-duty Cleveland police officer, was robbed at gunpoint in the driveway of his home. Williams reported that the suspect pointed a gun at him, threatening to shoot him in the face if he did not turn over his money. The suspect took Williams's money as well as his wallet, which contained Williams's police identification and badge.

{¶3} Williams testified that he was looking at the suspect during the entire interaction. Williams reported that he was approximately 10-to-12 feet from the suspect, that it was daylight, and that he has no trouble seeing at a distance from 5-to-15 feet. Although the suspect wore the hood of his hooded sweatshirt up around his head, Williams stated that the hood did not obscure the suspect's face and that he got a good look at his face. Williams testified, "I would remember [the suspect] for the rest of my life, any day that I would see him. I'm looking up into his face. I'm looking into his eyes. I'm looking at his nose and I'm looking at his mouth. And I'm staring at him so much he kept telling me, quit looking at me." Tr. 161.

{¶4} After robbing Williams, the suspect ran off. About one year later, Williams received a phone call from a law enforcement officer informing him that they had found Williams's police identification and badge on a patient at a hospital. That patient was Belcher.

{¶5} Williams went to the police station to look at a photo lineup compiled by Det. Torres. Det. Torres was not originally assigned to Williams's case, but became involved after Belcher was found in possession of Williams's badge and identification. Det. Torres compiled a photo array for Williams using the Ohio Law Enforcement Gateway ("OLEG"). Because Det. Torres used OLEG, she was able to see whether other law enforcement had ever accessed Belcher's photo, and she determined that Belcher's photo had not been accessed by other law enforcement. Det. Torres inputted Belcher's identifying characteristics into OLEG, and the system generated BMV photographs of persons with similar characteristics. The six photos chosen for the photo array were all of the same race, approximate age, weight, height, and complexion.

{¶6} Because Det. Torres had not originally worked on Williams's case, she was unaware of the fact that Williams had originally described his assailant as wearing a gray hooded sweatshirt. In the photo array compiled by Det. Torres, Belcher is wearing a gray hooded sweatshirt, because that was what he was wearing in his BMV photograph. Det. Torres acknowledged that, had she known that Williams had described his assailant as wearing a gray hooded sweatshirt, she would have put more than one person in the photo array wearing that article of clothing.

{¶7} Using a procedure known as blind administration, Det. Torres created the photo array, but Det. Legg was the person who administered the photo array to Williams. Det. Legg testified that blind administration is used to remove any signs of bias when the photo lineup is presented to the victim or witness. Det. Legg did not know which of the photographs in the array, if any, depicted Belcher. Det. Torres was not present when Det. Legg administered the photo array.

{¶8} After being shown the photo array, Williams identified the photo of Belcher as his assailant, circled Belcher's photo, signed his name, and indicated that he was 100 percent certain that Belcher was the man who robbed him. Williams also made an in-court identification of Belcher.

{¶9} At trial, Det. Legg testified about a supplementary form that had been filled out after the photo array administration. Det. Legg stated that he was not the person who filled out the form. The form indicated that the blind administrator had not informed the witness that the suspect may or may not be in the lineup. But Det. Legg testified that the form was incorrect, that he always reads a specific set of instructions to a witness when conducting a blind administration, that those instructions indicate that the suspect may or may not be depicted in the photo array, and that he had, in fact, read those instructions to Williams. Williams also testified that when Det. Legg showed Williams the photo array, he had read instructions to Williams indicating that the suspect may or may not appear in the photo array.

{¶10} The jury convicted Belcher on all charges and specifications. Belcher now appeals, setting forth four assignments of error for our review.

I. Belcher was denied effective assistance of counsel depriving him of his right to a fair trial.
II. The trial court erred in admitting into evidence a black and white copy of ...

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