Court No. 2016 CR 0349
J. Baxter, Erie County Prosecuting Attorney, and Anthony A.
Battista III, for appellee.
L. Wingate, for appellant.
DECISION AND JUDGMENT
1} Appellant, Dwayne Williams, appeals the August 3,
2017 judgment of the Erie County Court of Common Pleas
denying his motion to suppress the identification of
appellant by the victim, D.C. We affirm because the
identification of appellant was not impermissibly suggestive
and was otherwise reliable.
2} Appellant brings one assignment of error:
The trial court erred to the prejudice of Mr. Williams when
it denied his motion to suppress, and renewed motion to
suppress, the pretrial identification of Mr. Williams by D.C.
3} On June 1, 2016, at about 2:00 a.m., two men
entered the home of D.C. and held him and four others at
gunpoint for approximately 20 minutes while the home was
burglarized. The men had masks on that covered the lower half
of their faces. The two men obtained cash and a cellular
phone from the victims. When the suspects demanded more
money, D.C. indicated there was additional money in another
apartment. When the men and D.C. got onto the back porch,
D.C. was able to jump back into the house and quickly close
the door, leaving the men outside. D.C. then contacted the
4} When the police arrived, D.C. was deeply upset
after the robbery and was unable to make a statement to the
police. The other victims, including D.C.'s wife, were
able to make statements to the police about what they
witnessed and gave a description of the suspects. Two days
later, Sandusky Police Detective Ken Nixon returned to the
home and interviewed D.C. and his wife. D.C. then gave a
detailed description of the night, the suspects, and the
weapons used in the crime.
5} At that time, D.C. indicated that he believed
appellant was one of the men who held him at gunpoint during
the robbery. D.C. stated that he knew appellant from a party
on the Fourth of July. He stated that he knew appellant's
voice from this party as well. D.C. also told the detective
that he was told by a third party that appellant may have
been involved with the crime. D.C. then showed the detective
a photograph from Facebook and stated he believed the
photograph showed both men who burglarized his home.
6} Detective Nixon did not indicate to D.C. that the
man in the photograph was appellant or that the detective
suspected appellant in a separate robbery. Nixon then had a
photo lineup created and administered to D.C. by a blind
administrator. The photo used in the lineup was not the same
photo that was shown by the detective on Facebook. The photo
lineup was created by a computer program called the Ohio Law
Enforcement Gateway and placed five photos of men of similar
characteristics of appellant into the photo array. After
viewing the photo lineup, D.C. indicated that he was positive
appellant was one of the men in the photo lineup. D.C.'s
wife identified the other suspect in a separate lineup.
7} Appellant was then charged with five counts of
aggravated burglary in violation of R.C. 2911.11(A)(2), five
counts of aggravated robbery in violation of R.C.
2911.01(A)(1), five counts of felonious assault in violation
of R.C. 2903.11(A)(2), and three counts of complicity to
commit theft in violation of R.C. 2923.03(A)(2). The fifteen
counts of aggravated burglary, aggravated robbery, and
felonious assault had firearm specifications under R.C.
2941.145 attached to each count.
8} Appellant filed a motion to suppress seeking to
suppress the identification of appellant. Appellant also
sought to suppress evidence gained from a warrant issued for
his cell phone. Appellant did not appeal that portion of the
decision. At the suppression hearing, Detective Nixon
testified about the creation of the lineup and the process
that occurred prior to the identification of appellant. He