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State v. Croom

Court of Appeals of Ohio, Second District

August 2, 2013

STATE OF OHIO Plaintiff-Appellee
v.
ANTHONY L. CROOM Defendant-Appellant

Criminal Appeal from Common Pleas Court, Trial Court Case No. 2010-CR-2215

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. #0076791, Attorney for Defendant-Appellant

OPINION

FAIN, P.J.

{¶ 1} Anthony Croom appeals from his conviction and sentence for Aggravated Murder, two counts of Murder, and two counts of Felonious Assault. Croom advances ten assignments of error on appeal. Croom contends the trial court erred in overruling his motion to suppress a photographic identification as unreliable, and that the trial court erred in overruling his motion to suppress statements made during the course of plea negotiations. Croom next challenges the legal sufficiency and manifest weight of the evidence to support his convictions. Croom complains that he was denied the effective assistance of counsel. Croom also contends that the trial court erred by permitting hearsay testimony in regard to a conspiracy to commit murder. He further claims that the prosecutor acted improperly during closing arguments. Croom raises an argument of cumulative error. Finally, Croom argues that the trial court erred with regard to an order requiring him to make restitution to the family of the victim, and with regard to an order to repay the expenses of extradition.

{¶ 2} We conclude that the trial court did not err in denying Croom's motion to suppress either the identification or statements made to law enforcement personnel. The photographic array was not suggestive, and the record does not support a finding that the identification was unreliable. The statement made to police was not made with a reasonable belief that plea negotiations were ongoing. We also conclude that the record contains evidence upon which the jury could rely in convicting Croom of the charged offenses. We further find no support for Croom's claims that trial counsel was ineffective and that the prosecutor made improper comments during closing argument. We conclude that the trial court did not err in permitting testimony regarding statements made by the persons involved in the conspiracy to commit murder, because independent evidence of the conspiracy was admitted during trial. We conclude that the trial court did err in ordering Croom to make restitution and to pay the expenses of extradition. Because we only find error with regard to the payment of restitution and extradition expenses, we conclude that the claim of cumulative error lacks merit.

{¶ 3} Accordingly, that part of the judgment of the trial court ordering Croom to pay restitution and the expenses of his extradition is Reversed; the judgment of the trial court is Affirmed in all other respects, and this cause is remanded for consideration of Croom's ability to pay restitution.

I. A Clerk's Mistake Leads to Murder

{¶ 4} This case involves the murder of Anthony Hurd, who was a cooperating informant for the United States Drug Enforcement Agency (DEA). In 2006, Hurd aided the DEA in making a controlled drug purchase. Thereafter, three individuals, Rollie Mitchell, Billy Hicks and Tyree Smith, were charged in Wayne County, Indiana, with distribution of crack cocaine. Due to a clerical mistake, the court clerk failed to file the case under seal, and Hurd's involvement became known to one of the three charged individuals. Hurd began receiving death threats. On August 2, 2007, at approximately 2:20 a.m., Anthony Hurd and Tiffany Brewer were together in a vehicle at an Englewood gas station when they were shot. Hurd died as a result of his injuries.

{¶ 5} During trial, the State produced evidence that Rollie Mitchell and Billy Hicks recruited Croom, whose cousin "Q" [Quentin Cheshier] was an acquaintance of Mitchell's, to kill Hurd in exchange for a red Cadillac and cash. The State presented an eyewitness who identified Croom as the individual who shot Hurd. The State further presented the testimony of two men who were in prison with Croom, both of whom testified that Croom admitted to committing the offense.

II. The Course of Proceedings

{¶ 6} Following an investigation, Croom was charged with one count of Aggravated Murder in violation of R.C. 2903.01(A), one count of Murder in violation of R.C. 2903.02(A), one count of Murder in violation of R.C. 2903.01(B), one count of Felonious Assault in violation of R.C. 2903.11(A)(1), and one count of Felonious Assault in violation of R.C. 2903.11(A)(2). Each count carried a firearm specification.

{¶ 7} Croom was convicted on all counts and firearm specifications. The trial court merged all the firearm specifications into a single specification. The trial court also merged all the counts with the Aggravated Murder count, and sentenced Croom to life imprisonment with no possibility of parole. The trial court sentenced Croom to three years on the firearm specification, to run consecutively to the life sentence. From his conviction and sentence, Croom appeals.

III. Lindsay Hoover's Identification of Croom's Photograph Was Not Made as a Result of an Unduly Suggestive Procedure

{¶ 8} Croom's First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS AN OUT-OF-COURT IDENTIFICATION OF THE APPELLANT.

{¶ 9} Croom contends that the trial court should have suppressed the identification testimony of Lindsay Hoover, who was an eyewitness to the shooting. In support, he argues that her identification of him from a photographic array was not reliable, because: 1) it was made three years after the crime was committed; 2) the photograph of Croom shows him with his eyes wider than any of the other individuals in the array; 3) Croom's photograph has a blue background not found in any of the other photographs; 4) Croom's photograph is "noticeably larger" than the others; 5) Hoover took 30 to 45 seconds to make the identification as being photograph number one or three (Croom's picture was in the number three position), and did not make a positive identification until the officer questioning her created a "paper hat" to place on the head of each individual; and 5) Hoover's testimony regarding the offense demonstrated that her identification was suspect.

{¶ 10} Due process requires suppression of an identification, whether made in or out of court, if the confrontation procedure was "unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances." (Citation omitted.) State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 19. "In the context of eyewitness identification testimony, an impermissibly suggestive identification procedure will be suppressed due to the substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Marbury, 10th Dist. Franklin No. 03AP-233, 2004-Ohio-3373, ¶ 56.

{¶ 11} Admissibility hinges upon the reliability of the identification and is determined from the totality of the circumstances, "which includes the witness' opportunity to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated, and the time between the crime and the identification procedure." (Citations omitted.) State v. Robinson, 2d Dist. Montgomery No. 17393, 2001 WL 62569, *6 (Jan. 26, 2001).

{¶ 12} At the suppression hearing, Englewood Detective Alan Meade testified that he created the photographic array using the Ohio Bureau of Motor Vehicles drivers licensing database as well as the OLEG system maintained by the Ohio Attorney General's office. Meade testified that he used the system to "generate a photo spread using people that are like and similar in age, height and weight to Mr. Croom. And that system randomly pulls photos up of individuals that have likeness and similarities. And then I printed out those photos." Because Croom did not have a photo license in Ohio, Meade obtained a photograph from the Indiana Bureau of Motor Vehicles, which he then added to the array. Meade placed Croom's picture in the third position out of six pictures.

{¶ 13} Meade then arranged to meet with eyewitness Lindsay Hoover in order to show her the photographic array. Hoover lived in Columbus, so Meade met her in Columbus in a church parking lot. Hoover was alone when she met with Meade. Meade read the following instructions to Hoover prior to showing her the array:

I am going to show you a group of photographs. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that hair styles, beards and moustaches may be easily changed. Also, photographs may not always depict the true complexion of a person: it may be lighter or darker than shown in the photo. Pay no attention to any markings or numbers that may appear on the photos or any other differences in the type or style of the photographs. When you have looked at all the photos, tell me whether or not you see the person who committed the crime. Do not tell other witnesses that you have or have not identified anyone.

{¶ 14} Within approximately thirty seconds, Hoover stated that the shooter was either the individual in photograph number one or number three. She informed Meade that the shooter had been wearing a baseball cap at the time of the offense, and that she "knew it was either one or three and that she wanted to make sure that she picked the right person." Meade then took a plain sheet of paper and placed it across the tops of the heads of the three individuals pictured in the top row of the array (photographs number one, two and three). Within "ten to twenty" seconds, Hoover identified photograph number three as the shooter, stating that she would "never forget what his eyes looked like." Hoover and Meade both signed the instruction page on the back of the array.

{¶ 15} Croom contends that the array was unduly suggestive. After examining the array, we reject Croom's contentions that his photograph is larger than the other photographs in the array and that his eyes appear wider than the eyes of the individuals in the five other photographs. Croom also argues that his photograph has a blue background not found in the other pictures. We conclude that this does not render the array unduly suggestive - all of the photographs have backgrounds varying in shades of blue to lavender. Although Croom complains that Meade manipulated the photos in the array by placing a piece of paper over them, the record reveals that he did so uniformly with respect to the top three photographs that included the two remaining after Hoover had eliminated the other four as possibilities. And Meade's purpose was to simulate the effect of the baseball cap that Hoover said the perpetrator was wearing. There is nothing in the record to suggest that this was done in a suggestive manner. We find nothing suggestive about the array, and we do not find Meade's placement of the paper across the top three photographs to have been unduly suggestive.

{¶ 16} Croom also contends that Hoover's identification of him was stale, having occurred three years after the offense. We agree that in this context, three years is a long time, but Hoover was able to identify Croom as the shooter in about a minute. Furthermore, Hoover was able to observe Croom during the shooting, and as he crossed in front of the vehicle in which she was seated, Hoover and Croom stared at each other. Hoover had an unobstructed view of the crime and of Croom, and due to the shocking nature of the crime, she was able to recall the details of the shooting. We conclude that the trial court did not err in finding that the lapse of time did not render Hoover's identification so unreliable as to violate due process and warrant suppression under Neil v. Biggers, supra.

{¶ 17} Croom contends that Hoover's trial testimony regarding her identification and her observation of the offense demonstrate that her identification was unreliable. Specifically, Croom cites the fact that Hoover testified that the victim got into the driver's side of his vehicle; that the shooter was wearing a red baseball cap; that shots were fired from both the driver's side and the passenger's side of the vehicle; and that the shooter walked right in front of Hoover's vehicle, where she was able to look him in the eye. Croom argues that the video of the shooting and "other testimony elicited at trial" refute all of Hoover's testimony.

{¶ 18} The trial court did not have Hoover's trial testimony before it when it decided the motion to suppress. The only evidence before the trial court was her testimony at the suppression hearing. A trial court does not err by deciding a motion to suppress based upon the evidence presented at the suppression hearing. The record does not indicate that Croom renewed his motion to suppress following Hoover's trial testimony. Thus, the trial court was not given the opportunity to reconsider the suppression issue in the light of the evidence presented at trial.

{¶ 19} Even if the trial court had reconsidered the suppression issue in the light of the evidence presented at trial, we would find no error. Discrepancies between Hoover's suppression hearing testimony and the evidence admitted at trial were for the jury to consider in evaluating her credibility and the weight to be given to her testimony, but would not inherently render her identification so unreliable as to warrant suppression.

{¶ 20} The video of the shooting does not refute Hoover's claim that the shooter was wearing a baseball cap; the video is dark and does not clearly establish that the shooter had nothing on his head. Although the other eyewitness to the shooting did testify that the person with a gun did not have on a hat, she admitted that she was in the back of the store when the shooting occurred, and she merely glimpsed a man with a gun outside the store for a matter of a few seconds. The jury could reasonably find that Hoover had the better view of the shooter, since the shooter walked right in front of her car.

{¶ 21} Hoover did not, as Croom claims, testify that Hurd got into the passenger side of his vehicle. Her testimony indicated that the victim's vehicle was traveling through the parking lot during the entire time she observed the shooting. We find nothing in the record to rebut Hoover's claim that the shooter walked in front of her car after the shooting.

{¶ 22} At the suppression hearing, Hoover did testify that the shooter was shooting into the driver's side of the victims' vehicle, but at trial she testified that Croom was actually shooting into the passenger's side of the vehicle. Hoover admitted that she had made a misstatement with regard to her suppression hearing testimony, and said that she realized her misstatement as soon as she left the suppression hearing. She testified that she immediately made note of the error to her father. While this discrepancy between Hoover's trial and suppression hearing testimony, which she acknowledged and explained as being the result of a misstatement at the suppression hearing, is a legitimate matter for the jury to have considered in evaluating her credibility and the weight to be given her testimony, it did not render her identification testimony so unreliable as to warrant suppression.

{¶ 23} Croom's First Assignment of Error is overruled.

IV. Croom's Statements to Police Officers Were Not Made in the Course of Plea Negotiations

{¶ 24} Croom's Second Assignment of Error states:

THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS STATEMENTS TO LAW ENFORCEMENT MADE DURING THE COURSE OF PLEA NEGOTIATIONS.

{¶ 25} Croom contends that the trial court should have suppressed statements made to law enforcement officials on December 16, 2008, because they were made in the course of negotiating a plea agreement. He argues that the statements are barred by Evid.R. 410. The State counters with the argument that Croom did not raise any argument related to Evid.R. 410 in his motion to suppress, and that the statements were properly introduced for the purposes of impeaching Croom's testimony at trial.

{¶ 26} On December 16, 2008, DEA Agent Noel Gaertner, Englewood Detectives Alan Meade and Richard Ring, Hurd's case agent Detective Gary Maxy, and Richmond, Indiana, Detective Andy Jury met with Croom at the DEA offices in Indianapolis. At that time, Croom was in federal prison on unrelated charges.

{¶ 27} According to Gaertner, Croom was asked if he knew why he had been brought in for the meeting, to which he replied that he thought it was related to law enforcement talking to his girlfriend. Gaertner then informed Croom that he was there because it was believed that he had information regarding the murder of Hurd. Croom said he was willing to cooperate, following which there was a discussion of Croom's family and his prior criminal history. Croom then stated that he "wanted assurances" from the prosecutor and indicated that "hypothetically" he could tell them who killed Hurd, who was present at the crime scene, and where the weapon could be located. According to Gaertner, Croom was repeatedly informed that "no promises" were being made regarding the prosecution of the crime, because the officials at the meeting did not have the authority to make any promises or assurances and that doing so was up to the prosecutor's office.

{¶ 28} While the State is correct that Croom did not raise Evid.R. 410 in his written motion to suppress, the matter was raised during trial when the State attempted to impeach Croom's testimony with the statements. Thus, we ...


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