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In re S.A.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 21, 2019

IN RE S.A., III, A Minor Child

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL18107149

          Timothy Young, Ohio State Public Defender, and Timothy Hackett, Assistant State Public Defender, for appellant

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Nora Caitlin Bryan, Assistant Prosecuting Attorney, for appellee.

          JOURNAL ENTRY AND OPINION

          MICHELLE J. SHEEHAN, JUDGE

         {¶ 1} The Cuyahoga County Court of Common Pleas Juvenile Court found that appellant SA. III ("SA.") committed acts that, if committed by an adult, would constitute the offenses of robbery, in violation of R.C. 2911.02(A)(2) and 2911.02(A)(3), and possessing criminal tools, in violation of R.C. 2923.24(A). SA. appeals the court's denial of his motion to suppress and the court's adjudication of delinquency. Upon a thorough review of the record, we find (1) the juvenile court did not error in failing to determine S.A.'s motion to suppress before proceeding to a trial on the merits; (2) trial counsel was not ineffective in agreeing to defer the suppression hearing; (3) the victim's identification at the cold-stand identification procedure was reliable; and (4) the juvenile's court's finding of delinquency was supported by the evidence. We therefore affirm the juvenile court's denial of the motion to suppress and the court's adjudication of delinquency.

         I. Procedural History and Substantive Facts

         {¶ 2} On June 6, 2018, S.A. was charged in juvenile court as follows: Count 1 - robbery in violation of R.C. 2911.02(A)(2); Count 2 -robbery in violation of R.C. 2911.02(A)(3); Count 3 - possessing criminal tools in violation of R.C. 2923.24(A); and Count 4 - failure to disclose personal information. At the time the complaint was filed, S.A. was 15 years old.

         {¶ 3} The complaint stems from an incident that occurred at approximately 10:00 p.m. on June 5, 2018, involving the victim, Barbara Blue, who reported to the Lakewood police department that she had been robbed in a neighbor's driveway. After receiving Ms. Blue's 911 call, an officer was dispatched to the victim's location. Shortly thereafter, officers in the vicinity indicated that they had a suspect in custody matching the description given by the victim. The officers, after driving Ms. Blue to the suspect's location, conducted a "cold-stand" or show-up identification, where Ms. Blue positively identified S.A. as the individual who had robbed her.

         {¶ 4} On August 7, 2018, SA. filed a timely motion to suppress the victim's out-of-court identification. In support, S.A. argued that the "cold-stand" procedure of identification utilized by the Lakewood police officers was so impermissibly suggestive as to cause an unreliable identification, and the identification must therefore be suppressed. The state opposed the motion to suppress. The record demonstrates that sometime before the start of trial, the parties agreed to the court's decision to defer its consideration of the motion to suppress until testimony had been presented by the witnesses at trial. Thereafter, on August 16, 2018, a bench trial proceeded.

         {¶ 5} At the conclusion of the proceedings, the trial court heard from the parties on the alleged delinquent's motion to suppress. Thereafter, the court made findings concerning the cold-stand procedure and the victim's identification and it denied the motion to suppress. Defense counsel then moved for a Crim.R. 29 dismissal, which the trial court denied as to Counts 1 through 3 but granted as to Count 4. Following closing arguments, the trial court found all of the elements of Counts 1 through 3 had been established. The court further found that the evidence established beyond a reasonable doubt that SA. was the individual who committed the offenses. The court then adjudicated SA. delinquent of Counts 1 through 3. Proceeding directly to disposition, the court committed SA. to the department of youth services for a minimum period of 12 months and a maximum period not to exceed S.A.'s attainment of the age of 21 years.

         {¶ 6} On September 24, 2018, S.A. appealed the court's order denying his motion to suppress as well as the court's adjudication. On January 4, 2019, S.A. filed a motion to supplement the appellate record with an investigating officer's body camera video footage. According to S.A's appellate counsel, the video was not formally admitted into evidence at the hearing and consequently did not become part of the appellate record. Counsel stated, however, that the video was played during cross-examination and was therefore considered by the trial court. Counsel submits in his motion that this court should likewise consider the contents of the officer's body camera footage on appeal. The state did not oppose SA.'s motion.

         {¶ 7} The record indicates that just prior to trial counsel's recross-examination of the victim, counsel requested to play the video, stating, "Your Honor, I'd like at this point just to play a brief video clip. It's gonna be just a couple of minutes. I want to just play the whole thing. It's some body cam footage. And I'll ask a question." At that point, counsel asked the victim to clarify her identification. The state did not object to the playing of the body camera video footage during the proceedings.

         {¶ 8} This court granted SA.'s motion to supplement the record but deferred to the panel the issue whether the video footage would be considered in resolving the appeal. Because the video was played in open court during recross-examination, without objection, we presume the trial court considered the video prior to reaching its decision on the motion to suppress and its adjudication. We therefore consider the officer's body camera video footage on appeal.

         A. Evidence at Trial

         {¶ 9} The state presented the testimony of the victim, Barbara Blue, and Lakewood police officers, Ryan Summerville and Frederick Mance. The state also submitted as evidence the audiotaped 911 call placed by the victim.

         {¶ 10} Ms. Blue testified that she had been at a nursing care facility caring for her elderly father on the evening of June 5, 2018. She left the nursing facility at approximately 9:30 p.m., arriving near her home in Lakewood at approximately 10:00 p.m. She parked her car on Roycroft Avenue, looked at the back end of the car and then the front end, to evaluate her parking. She then noticed a bicycle on the sidewalk, thinking perhaps it belonged to a neighbor. Carrying her purse and two grocery bags, she proceeded to walk to her home when "a young man passed on [her] left very quickly and very close." She stated that the young man startled her, she exclaimed "ooh," and then she apologized to the individual. Ms. Blue stated that the young man did not say anything to her and he proceeded north on Roycroft Avenue. She observed him "moving on," and she turned to walk up the driveway to proceed home.

         {¶ 11} Ms. Blue testified that she was halfway up the driveway when she noticed someone standing to the left side of her. She testified that she turned to face him and he said, "I'm going to hurt you, give me your purse." The individual was thin, a "very light build, not really filled out with muscle," young, and "about 5 foot 6, 5 foot 7," and wearing blue jeans and a gray top. He had his hand under his shirt, pointing. Assuming he was pointing with his hand, Ms. Blue decided that she did not want to give the young man her purse and she told him to go away. Rather than leaving, the individual grabbed the victim's purse, turned, and ran down the driveway. Ms. Blue ran after him, yelling for him to stop. When she noticed the bicycle was gone, she realized that "it was futile" to try and chase him. She then called 911 with her cell phone. In her 911 call, Ms. Blue reported that the suspect was a "black guy" on a bike, a teenager, thin, "about as tall as [she is]," which she stated was 5 foot 10". Ms. Blue also reported that the alleged robber was traveling north on Larchmont Avenue.

         {¶ 12} When the police officer arrived, Ms. Blue reported what had happened. She testified that the officer indicated that he "think[s]" the police "have the person who did this," and the officer asked her to get into the back seat of his patrol car and he would take her to identify the suspect. Upon arriving at the suspect's location, the officers brought the suspect out of a patrol car. Ms. Blue testified that while she could not "perfectly pick out his face because there was a reflection * * * from the streetlight," she identified him by his "total physique," his clothing - blue jeans and a gray top, his hair style, his "slimness," "his skin color, being somewhat dark," and "the way he carried himself." The victim also identified the bicycle the suspect was riding. Ms. Blue identified S.A. in the courtroom as the young man who robbed her on the evening of June 5, 2018.

         {¶ 13} Officer Summerville testified that he was on patrol on the evening of June 5, 2018, when he responded to a call from dispatch at approximately 10:04 p.m. for a report of a robbery on Roycroft Avenue, adjacent to Larchmont Avenue. Officer Summerville testified that he proceeded to the victim's location and took the victim's statement. He received from the victim a description of the suspect as a slender black male in a gray shirt and jeans riding a bike. Approximately four to five minutes after receiving the call from dispatch, Officer Summerville received a call from another officer that a suspect had been located one block away from the victim. At this point, Officer Summerville drove the victim to that location to identify the suspect, arriving at approximately 10:20 p.m. The officer testified that he used his vehicle's spotlight to light the area to conduct a cold-stand identification. Officer Summerville testified that the victim positively identified SA. as the individual who robbed her that evening. The officer stated that the victim specifically identified the suspect's blue jeans and gray sweatshirt with the same height and build and noted that he was on a bike.

         {¶ 14} Officer Mance testified that he was on patrol the evening of June 5, 2018, when he heard on the police radio at 10:04 p.m. that a woman had been robbed on Roycroft Avenue and the suspect was a young black male wearing blue jeans and a gray jacket and was riding a bicycle. The officer arrived at the last known location of the suspect within minutes of hearing the report. He then drove one street east of the reported location and located a suspect matching the description. Officer Mance estimated the distance between the scene of the crime and the location of the suspect to be approximately one-half mile. The officer testified that he had the suspect in custody at approximately 10:08 p.m. He stated that another officer brought the victim to the scene where she made a positive identification of the suspect as the individual who robbed her. Officer Mance identified S.A. in the courtroom as the individual who was identified by the victim at the scene and the individual he arrested.

         B. Body Camera Video

         {¶ 15} When Officer Summerville arrived at the victim's location, his body camera began recording. The victim explained to the officer what happened, and the officer told Ms. Blue that "I believe we have him in custody already." He then asked the victim, "Would you be able to positively identify him if you saw him?" Ms. Blue responded, "Yes. I heard his voice, too." Officer Summerville then advised the victim, "All I need is if you can positively identify him." The officer then placed the victim in his patrol car and explained to her, "I'm going to drive you up to where they're at. Okay, like I said, the windows are tinted, and it's dark, so he won't be able to see you, okay? All's I need from you is to positively identify him, and I will bring you right back, okay?" Officer Summerville then drove Ms. Blue to the suspect's location.

         {¶ 16} Upon arriving at the suspect's location, the following exchange occurred:

Officer: He's going to be right over here, okay, over by these officers. * * * He's going to have him step out now, okay? Is that him?
Victim: That's the build. I can't see his face.
Officer: Hold on one second. [And the officer moved his patrol car presumably closer to the suspect.] Is that better?
Victim: No. I cannot see his face to know. His clothes - [The officer's radio interrupted with another officer explaining that the suspect was being uncooperative.]
Officer: I'm sorry. What did you say, Ma'am?
Victim: The clothes. It's his clothes, but I just can't see the face perfectly.

         {¶ 17} At this point, the officer asked the other officers to "have [the suspect] step a little closer." The victim explained that she still could not see the features of his face, but "it's everything else." The officers attempted once again to move the suspect closer. The victim stated "I still don't know if I could see him" and then repeated that it is "exactly the clothes." The officer asked, "That's exactly the clothes he was wearing?" and the victim replied, "Mhm [and] exactly his build." The victim then recalled that the young man who robbed her had a bicycle, "a trick bike" on the ground. Officer Summerville radioed the officers regarding the bike, advising the officers that the victim "saw that also," and those officers rolled a bike into the victim's view. The victim identified the bike as the one the alleged robber was riding. Officer Summerville then advised the other officers that the victim had positively identified the suspect.

         II. Assignments of Error[1]

I. The juvenile court erred as a matter of law and violated S.A.'s right to a fair trial when it failed to determine SA.'s suppression motion prior to trial.
II. SA. was denied his constitutional right to the effective assistance of counsel when defense counsel unreasonably acquiesced in the juvenile court's decision to defer the suppression hearing and ruling until after the contested evidence had already been introduced at trial.
III. The juvenile court erred as a matter of law and violated SA.'s constitutional rights when it denied his motion to suppress, even though the cold-stand procedure was unduly suggestive and the resulting ...

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