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State v. Scott

Court of Appeals of Ohio, Second District, Montgomery

January 19, 2018

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL D. SCOTT Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-3057

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, and MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorneys Attorneys for Plaintiff-Appellee

          BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, Michael D. Scott, appeals from his convictions for two counts of murder, plus firearm specifications; two counts of felonious assault, plus firearm specifications; one count of having a weapon while under disability; and one count of possession of a firearm in liquor permit premises. Raising seven assignments of error, Scott argues that the trial court erred by: (1) overruling his motion to suppress two pretrial identifications; (2) mishandling the potential testimony of C.J. Spears; (3) overruling his motion for acquittal on the charges of murder; (4) refusing to instruct the jury on the lesser included offenses of involuntary manslaughter and reckless homicide; (5) admitting certain photographs showing him holding a handgun matching the description of the murder weapon; and (6) allowing a police officer to provide narrative testimony during the jury's viewing of a security video. Additionally, Scott argues that the jury's verdicts were against the manifest weight of the evidence. For the following reasons, we affirm.

         I. Facts and Procedural History

         {¶ 2} On Saturday, September 26, 2015, Joshua Hamilton attended his sister Bridget's birthday party at Kricket's Tavern in Huber Heights, along with his other sister, Brittany, and one of Brittany's friends. Trial Tr. vol. 3, 1099-1102. The staff that evening consisted of four persons, one of whom served as a host and took photographs to be used for promotional purposes. Id. at 1054-1055.

         {¶ 3} At last call, between 2:00 a.m. and 2:30 a.m. on Sunday, September 27, 2015, customers began filing out of the tavern and into the parking lot. Trial Tr. vol. 2, 543-545; Trial Tr. vol. 3, 1064-1065. Shortly thereafter, Brittany's friend discovered that she had misplaced her cellular telephone, so she walked back inside with Brittany and Joshua to search for it. Trial Tr. vol. 4, 1182-1184. Brittany asked several exiting customers whether they might have picked up the phone, and in response, one man used vulgar language and shoved her towards the bar. Trial Tr. vol. 3, 1113-1116. A group of customers then assaulted Joshua, who fell to the floor. Trial Tr. vol. 2, 546-547 and 647-649.

         {¶ 4} Tavern employees Herbert Boyd and Tyrone Moss intervened, dispersing those involved in the fight. Trial Tr. vol. 2, 546-548; Trial Tr. vol. 3, 1007-1010. As the fight broke up, Boyd saw a man near the entrance, afterward identified as Appellant, "pull up a gun." Trial Tr. vol. 2, 548-549 and 555-556; Trial Tr. vol. 3, 869-873 and 947-952. Boyd dodged or pivoted out of the way, and moments later, he heard two to three gunshots. Trial Tr. vol. 2, 553-554 and 559-560. After the shots were fired, Joshua Hamilton lay dead, having been killed by a shot in the back. Trial Tr. vol. 2, 437, 442, 450-453 and 460-461. The tavern's surveillance system captured video of the shooting. Id. at 516 and 580-581. Within minutes, another man fired several more shots in the parking lot. Trial Tr. vol. 3, 789-792 and 951.

         {¶ 5} A Montgomery County grand jury issued an indictment on October 9, 2015, charging the Appellant with two counts of murder, plus firearm specifications; two counts of felonious assault, plus firearm specifications; one count of having a weapon while under disability; and one count of possession of a firearm in liquor permit premises. On November 17, 2015, Appellant moved to suppress pretrial identifications made by two witnesses; the trial court overruled the motion in its decision of April 18, 2016.

         {¶ 6} Following a jury trial, Appellant was convicted on all counts.[1] He timely appealed to this court by filing his notice of appeal on September 6, 2016.

         II. Analysis

         {¶ 7} For his first assignment of error, Appellant contends that:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT MOTION TO SUPPRESS.

         {¶ 8} Appellant objects to the trial court's ruling on his motion to suppress as it relates to the pretrial identifications made by Victor Jefferson and Christopher Nance, customers who visited Kricket's Tavern and witnessed the shooting. Trial Tr. vol. 3, 771-773, 786-787, 930-931 and 947-950. According to Appellant, the identifications made by Messrs. Jefferson and Nance should have been deemed unreliable because officers with the Huber Heights Police Division did not use a conventional "mug shot photo spread[]" during their interviews with the two men. See Appellant's Br. 1-3. Appellant also argues that the identifications should be deemed unreliable because Jefferson and Nance provided inaccurate-or, at least, contradictory-descriptions of the shooter in their testimony at the hearing on his motion to suppress. See id.

         {¶ 9} Appellate "review of a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court "is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witnesses], " so an "appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v. Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting the trial court's findings of fact as true, "the appellate court must then independently determine, without deference to the [trial court's legal] conclusion[s], " whether the "facts satisfy the applicable * * * standard." Burnside, 2003-Ohio-5372, ¶ 8, citing Fanning, 1 Ohio St.3d 19, and State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (3d Dist.1997). For motions to suppress directed specifically at pretrial identifications, a trial court's ruling is reviewed under the abuse-of-discretion standard. State v. McComb, 2017-Ohio-4010, ___ N.E.3d___, ¶ 33 (2d Dist.), citing State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, ¶ 14.

         {¶ 10} Due process may require suppression of an eyewitness's pretrial identification of a person when the basis of the identification creates a very substantial likelihood that the eyewitness is mistaken. See Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208, citing Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). To prevail on a motion to suppress a pretrial identification, a "defendant must * * * show that the identification procedure was unduly suggestive." State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 19. If the defendant makes this showing, then the court must "consider whether the identification, [in] the totality of the circumstances, is reliable despite the suggestive[ness] [of the] procedure." Id., citing State v. Wills, 120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997). The "factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the [subject being identified] at the [relevant] time * * *, the witness'[s] degree of attention, the accuracy of the witness'[s] prior description of the [subject], the [witness's] level of certainty * * *, and the length of time" between the witness's initial encounter with the subject and the subsequent identification. See Neil, 409 U.S. at 199-200.

         {¶ 11} Detective Fosnight and Detective Colvin of the Huber Heights Police Division interviewed Victor Jefferson on October 22, 2015, and Christopher Nance on October 23, 2015. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.'s Mot. to Suppress 5-6, Feb. 16, 2016. The detectives asked Jefferson and Nance to identify the shooter and showed them three of the photographs taken on the night of the shooting by Mark Greene, the host and promotional photographer. Id. at 3 and 5-6. Both of them identified Appellant, noting his distinctive hairstyle and clothing. Id. at 5-6.

         {¶ 12} This procedure did not comport with R.C. 2933.83 or usual police practices. Id. at 3 and 6. Generally, the Huber Heights Police Division requires that a photographic lineup be shown to witnesses by a blind administrator and consist of six mugshots-a recent photograph of the suspect under investigation, as well as photographs of five other persons with similar physical characteristics. Id. at 3. At the hearing on Appellant's motion to suppress, Detective Fosnight testified that between the night of the shooting and Appellant's arrest on October 2, 2015, he could not obtain a mugshot of Appellant suitable for a standard lineup; [2] he and Detective Colvin therefore used Greene's photographs to interview a number of witnesses before Appellant's arrest. Id. at 6. He further testified that after Appellant's arrest, he and Detective Colvin continued to use the same three photographs to "maintain[] * * * consistency" among interviews, although he could have obtained a mugshot of Appellant at that point. Tr. of Hr'g on Mot. to Suppress 83-84.

         {¶ 13} The trial court found this procedure "unduly suggestive" but ultimately determined that neither Jefferson nor Nance was likely to have misidentified Appellant as the shooter. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.'s Mot. to Suppress 11; Decision, Order & Entry Overruling Def.'s Mot. to Suppress 6-8, Apr. 18, 2016. We concur with the trial court's determination.[3]

         A. Identification of Appellant by Victor Jefferson

         {¶ 14} In the minutes preceding the shooting, Victor Jefferson took note of Appellant's hairstyle, clothing and boisterous behavior, and when interviewed at the scene, he provided a description of Appellant that proved consistent with Appellant's actual appearance. Tr. of Hr'g on Mot. to Suppress 126-130; Trial Tr. vol. 3, 776-778 and 797-804. He identified Appellant in Greene's photographs roughly three weeks later with "one hundred percent" confidence, voicing the same degree of confidence during his testimony at Appellant's trial. Tr. of Hr'g on Mot. to Suppress 143-145; Trial Tr. vol. 3, 805-807.

          {¶ 15} Appellant argues that Jefferson's identification should not be deemed reliable and refers to "three concerning problems that were pointed out at the trial level" in support of his argument: (1) Jefferson "testified that he was outside the bar when" Joshua Hamilton was initially assaulted; (2) Jefferson "was 'fifty feet away from the fight' (and on the other side of a wall)" at the time; and (3) Jefferson "was positive that the shooter was not wearing a shirt at the time of the fight/shooting [sic], " though other witnesses were equally "positive that the shooter was * * * wearing a white '[A]ffliction' T-shirt" at that moment.[4] (Emphasis omitted.) Appellant's Br. 5. This characterization of Jefferson's testimony is misleading.

         {¶ 16} At the hearing on Appellant's motion to suppress, Jefferson did testify on direct examination that he was "on the sidewalk * * * [out]side" and "probably, * * *, 50 feet away" when Joshua was assaulted, but on cross-examination, he testified that he was inside when the altercation started, that he exited in response, and that he was only "10 feet" away, rather than 50. Tr. of Hr'g on Mot. to Suppress 126-127, 132, 151 and 154-159. He also testified that as other customers "rushed out" of Kricket's Tavern in the midst of the altercation, he "look[ed] inside of the door" and "remember[ed] seeing a guy [ly]ing down on the ground, [whom] people [were] helping * * * up." (Emphasis added.) Id. at 126-127 and 132. Hence, regardless of the fact that Jefferson was outside of the building when Joshua was shot, his testimony establishes that he had a direct view of Joshua and the shooter at the relevant time.

         {¶ 17} Moreover, Jefferson did not testify that the shooter was not wearing a shirt when shots were fired inside Kricket's Tavern. Id. at 160-161 and 175-179. Instead, Jefferson testified that the shooter was not wearing a shirt during the fistfight, and that "after the fight, " the shooter "r[an] outside [and] c[ame] back [wearing a] long-sleeve" sweater or jacket.[5] Id. at 135-136 and 160-162. For that matter, Jefferson never wavered in his belief that Appellant fired the shots. Id. at 127-128, 130, 150-152, 160-162 and 178-180; see also Trial Tr. vol. 3, 837-838. At the hearing on Appellant's motion to suppress, Jefferson testified as follows:

THE STATE: * * *. And what was going on as you were at the doorway [in Kricket's Tavern]?
JEFFERSON: Um, I noticed one guy that had his shirt taken off [and] was in the process of getting kicked out because he was bouncing off the walls while inside the bar, and they [were] trying to calm him down. He kept coming in; they kept kicking him out * * *. And, the last time he was kicked out, it was a fight that was started.
** *
THE STATE: Okay. Can you describe what he looked like?

JEFFERSON: A black male, close to six-foot [tall], dreadlocks.

THE STATE: Okay. Do you remember what he was wearing---

** *
JEFFERSON: Well, when I first [saw] him, he was wearing a white "Affliction" shirt.
THE STATE: * * *. [C]an you describe the shirt for us?
JEFFERSON: Black and white with a lot of lettering on it, with designs.
THE STATE: And you indicated he had dread[locks]?
JEFFERSON: Yes, sir. Tr. of Hr'g on Mot. to Suppress 127-128. Next, Jefferson described what he saw in the parking lot, minutes after Joshua Hamilton had been shot:
THE STATE: * * *. And you say you heard about two to three [shots]?
JEFFERSON: Mm-hmm.
** *
THE STATE: Okay. What happened next?
JEFFERSON: Um, after I heard the shots, I proceeded to look for my fiancée * * *. She was hiding [in the parking lot] on the side of a truck. [Then] I heard more shots. I looked down. I [saw] someone shooting a gun. * * *.
THE STATE: And so how far away [were] you from the shooter at [that] point?
JEFFERSON: Inches away.
** *
THE STATE: Was this [person the] only [person] you saw with a gun that night?
JEFFERSON: Yes, sir.
** *
THE STATE: And how did you recognize him[] * * *?
JEFFERSON: Uh, I recognize[d] him [as] the guy that they kept kicking out-in ...

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