Criminal appeal from the Stark County Court of Common Pleas, Case No. 2012- CR-1277
For Plaintiff-Appellee JOHN D. FERRERO Stark County Prosecutor BY: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney.
For Defendant-Appellant JACOB WILL.
Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
(¶1} Appellant Marlon Mitchell ["Mitchell"] appeals from the January 14, 2013 entry of the Stark County Court of Common Pleas convicting and sentencing him after a jury trial of one count of aggravated robbery, a felony of the first degree, and one count of aggravated burglary a felony of the first degree.
Facts and Procedural History
(¶2} The charges in the case at bar stem from a home invasion robbery and burglary by Mitchell and another unidentified person at the apartment of Dawn Turpin in the early morning hours of June 24, 2012.
(¶3} On June 24, 2012 about 1:00 a.m., Turpin was returning to her apartment from her daughter's house. Aware of the lateness of the hour, she looked around as she pulled into the driveway of the apartment building heading to the parking ramp. She saw two young men cross Market Avenue and head to the front stairs, which marked the apartment entryway. She parked her car without incident, placed the two baskets of newly washed clothes she had in a shopping cart, got on the elevator and pressed seven for her floor.
(¶4} The elevator stopped on the first floor and the two young men she had seen crossing the street got on. One stood beside her and the other one was closer to the elevator door. The taller one was darker skinned wearing a dark ball cap and dark clothes. The shorter one wore a white scarf around his neck and tan boots. Turpin tried to make some small talk, asking them how they were doing and what floor did they want. The one beside her pushed the button for floor five. They got off on five and when Turpin told them to "take it easy, " they nodded. In all, Turpin spent about three minutes with the two males on the elevator.
(¶5} Turpin continued her ride to floor seven, got off with her shopping cart filled with laundered clothes, unlocked her door and threw down her keys, purse and cell phone; she had to use the bathroom. While in the bathroom, she heard a loud noise; then she heard a second one. She opened the bathroom door and encountered the same two young men; one now wearing the white scarf around his face holding a gun with a silencer on it and the other one in her bedroom. She threw up her hands saying "oh no." The one holding the gun told her to get down. Turpin asked him, "[W]hat do you want? The young man said, "you're with the African kid...where are the Africans."
(¶6} At first, she did not know what they were talking about, but then it hit her -two Africans lived at the end of the hall, opposite side, in Apartment 704. Turpin told them, "there's some Africans down the hall." The man in the bedroom came out, telling his partner, "let her live" and they exited the apartment.
(¶7} Several items of jewelry and her cell phone having been stolen by the intruders, Turpin grabbed her purse and keys and ran down seven flights of stairs to her car. She went to her friend's house and called 9-1-1. Meanwhile, her neighbor, Rodney Bryant, heard the loud banging and Turpin screaming and called 9-1-1. About three days after the robbery and burglary, Bryant was talking with Tarvia Smith, aka "Chicago" who lived with the two African men who occupied Unit 704. She mentioned that she might know the name of one of the men involved in the crimes, Marlon Mitchell. She used Bryant's laptop computer and showed him a picture of Mitchell on his Facebook page, Bryant showed the Facebook page with the picture of Mitchell to Turpin. Turpin looked at the Facebook photo for a few minutes and said she was 100 percent sure that Mitchell was one of the young men who broke into her apartment. Bryant told her his name - Marlon Mitchell.
(¶8} Turpin told Detective Pileggi of the Canton Police Department about the Facebook picture and that a possible suspect was Marlon Mitchell. Pileggi, however, never saw the Facebook picture. Pileggi put the name "Marlon Mitchell" into his computer system and verified that it was Mitchell. He then put together a photo line-up using a software system called OLEG [Ohio Law Enforcement Guide]. OLEG pulled up a picture of Mitchell's driver's license. From that, he was able to assemble five other photos that closely matched Mitchell in skin color, eye color, height, weight and other characteristics. He assembled six photos including Mitchell.
(¶9} On July 6, 2012, Turpin viewed the photo lineup of the six photos prepared by Pileggi. Pileggi followed the line up procedure mandated by R.C. 2933.83, including the use of ten shuffled, identical unmarked manila folders, four of which were blank. A "blind administrator, " Detective Richard Harbarger, administered the lineup at her apartment. Harbarger did not know who the suspect was and told Turpin the suspect may or may not be in the photos. Turpin looked at the photos two times and assigned Mitchell, whose photo was in folder 3, a rating of 5 both times. On a scale of 1 to 5, one being certain it is not the perpetrator and five being that it is the perpetrator, Turpin rated Mitchell a five. Harbarger reported the findings to Detective Pileggi and also reported that there was some confusion as Turpin thought both suspects were in the lineup and assigned a number 3 to another photo for the suspect with the gun. On cross-examination, Pileggi agreed that the other five individuals in the photo lineup were not involved in the incident at Turpin's residence.
(¶10} Mitchell was arrested and interviewed by Pileggi. Mitchell denied any involvement in the crime. Pileggi, however, found it strange that when he asked Mitchell why the victim would identify him, Mitchell replied by saying, "she has the wrong person." When asked how he knew the victim was a woman, Mitchell responded that she contacted him on his Facebook page asking him why he did that to her. Turpin denied ever using Facebook or even owning a computer.
(¶11} While in the Stark County Jail awaiting trial, Mitchell made a telephone call to seventeen-year-old Brittany Ann Slovick. Slovick had been a friend of Mitchell's for about a year and a half and had a romantic relationship with him. She knew him by the monikers "King" or "Peter Pan." On August 14, 2012, Mitchell called Slovick on her mother's cell phone and thirty seconds of the call was played for the jury. During the conversation, Slovick asked Mitchell why he was in jail. Mitchell responded saying "DJ and I...DJ and somebody kicked in some doors." On cross-examination, Slovick testified that in all of the conversations she had with Mitchell, he denied being involved in the incident at Turpin's apartment.
(¶12} Mitchell called Hattie Howard to the stand. Howard, Mitchell's girlfriend testified that Mitchell was living with her in Cuyahoga Falls in the summer of 2012. Howard testified that on the night of June 24, 2012, Mitchell was with her in Cuyahoga Falls. Howard stated that she made breakfast on June 24, 2012, then went ...