COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67844 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JOHN SANDERS, JR. : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 18, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-305177. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard Wise Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113 For Defendant-appellant: John L. Reulbach, Jr., Esq. 14701 Detroit Avenue, #575 Lakewood, Ohio 44107 SPELLACY, LEO M., P.J. Defendant-appellant John L. Sanders appeals from his conviction for two counts of aggravated robbery in violation of R.C. 2911.01. The appellant was sentenced to a term of incarceration of ten to twenty-five years on each count, to be served concurrently. On December 4, 1993, at approximately 7:00 p.m., Maria Lanphier and Emma Rose were held up at gunpoint as they were walking towards Massimo da Milano's, a restaurant at the corner of West 25th Street and Detroit Avenue, in Cleveland, Ohio. Mrs. Lanphier testified that she pulled into a parking lot near the restaurant and that she and Mrs. Rose were walking through the lot towards the street when they were approached by the appellant. Mrs. Lanphier first saw the appellant when he was about 20 yards away. She did not see him carrying anything at that time. When the appellant drew near, he pulled a gun out from under his coat and demanded their purses. The appellant stated, "Give me your fuckin' purses, give me your purses. I am going to blow you away, I am going to fuckin' blow you away. I am going to blow your fuckin' heads off, give me your fuckin' purses." (T. 89.) Mrs. Lanphier handed her purse to the appellant. The appellant was accompanied by a juvenile wearing dark clothing. Mrs. Lanphier testified that both had on dark three- quarter length coats, both were wearing hats, and both carried weapons. She stated that the appellant was not wearing a mask; - 3 - that nothing obstructed her view of his face; and that the lighting was adequate because the parking lot was lit. The appellant stood with his face towards her and his back towards the street. On cross-examination, Mrs. Lanphier testified that the description she gave to the police was of a black male, medium skin, medium height, and medium build. The man who approached them had a scruffy beard, messy hair which showed from under his hat, and very wide nostrils on his face (T. 107-108). After the women relinquished their purses, the appellant told them to hand over the rest of their money or have their heads blown off (T. 94). Mrs. Lanphier was 18 inches away from the appellant and was looking directly into his face. As a result of the second demand, she pulled a packet of five single dollar bills from her pocket; she then handed him a second packet, a ten and a twenty dollar bill. She testified that she always folds her money a certain way, folded over twice with no bent corners, and all the bills facing the same way. When she gave her money to the appellant she touched his hand; he said "Merry Christmas" and left. Mrs. Lanphier testified that she had no difficulty at all in identifying the appellant. She requested that he exit the police car because the accusation is serious, and she wanted to double and triple check. There was no doubt in her mind that the appellant was the man who robbed her. In court, Mrs. Lanphier identified the appellant as the man who robbed her. - 4 - The testimony of Mrs. Emma Rose corroborated that of Mrs. Lanphier. Mrs. Rose testified that the lighting was good; that her vision was fine; that she looked at the appellant's face; that he was close enough to touch; that after the appellant made the demand for their purses he was joined by a youth who was holding something shiny pointed at her ribs; she handed her purse to the juvenile; that her purse contained her wallet, house and car keys, makeup and papers; that she was looking at the appellant when he demanded further money; that Maria handed the appellant folded money; and that the appellant said "Merry Christmas" and he and the juvenile ran off. The police were notified and a description was given. She and Mrs. Lanphier waited in the restaurant. Within a half hour after the robbery the police returned and informed them that two men were in custody. The two women accompanied the police in order to attempt to identify the assailants. The suspects were held only a few minutes away, and upon arrival, Mrs. Rose was asked to identify a set of keys. She stated that they were the keys in her purse at the time it was taken. Mrs. Rose also identified the appellant who was seated in the rear of a police car. She recognized the appellant immediately. Mrs. Rose also identified the appellant in court as the man who robbed her. The following day, Mrs. Rose and Mrs. Lanphier went to the police station and met with Detective Hace. Mrs. Lanphier made a police report to which Mrs. Rose agreed. Mrs. Lanphier identified - 5 - her money, which was still folded as it had been in her pocket. The money taken from Mrs. Rose, $115.00, was returned. The arrest of the appellant involved four Cleveland police officers and two CMHA police officers. The first officer to testify was Cleveland Police Officer Margaret Buttner. She and her partner, Officer Cheryl Brown, were on patrol in the area of West 25th Street and Detroit Avenue in Cleveland, Ohio, on the evening of December 4, 1993. They received a broadcast from CMHA officers that two black males had just left an apartment building wearing three-quarter length coats and carrying shotguns underneath the coats. At approximately 7:25 p.m. they received a radio assignment that an armed robbery had occurred in the restaurant parking lot of Massimo da Milano. Officers Buttner and Brown proceeded to the restaurant and interviewed the victims. They obtained a description and toured the area searching for the perpetrators. Officers Harper and Smith were in the area in zone car 211, and advised Officers Buttner and Brown that two males, who were described in the first broadcast as wearing three-quarter length coats and carrying weapons, had been located at the apartment where they had originally been spotted. These two men matched the description given by the victims. Officers Buttner and Brown first proceeded to 1523 West 25th Street where the appellant was being held. The officers then returned to the restaurant, and brought the victims back to identify the - 6 - perpetrators. Both victims were able to positively identify both robbers. Officers Harper and Smith asked Mrs. Rose to describe her keys. Mrs. Rose described them "to a tee" (T.21). Mrs. Lanphier described her money and the way it was folded. Prior to identifying her money, Mrs. Lanphier demonstrated for the officers the manner in which her money had been folded. The money and the keys were found on the appellant. Cleveland Police Officer Staub Smith testified he and his partner received a call that males were walking around with shotguns. They toured the area attempting to locate the males. Eventually they encountered CMHA Officers McGroder and Oritz, who had further information. The four of them proceeded to the 1523 West 25th Street address. Joy Hughey answered the door and permitted them to enter and conduct a search. She informed the officers that her brother and her cousin were upstairs. The four officers began to ascend the stairs, and Officer Smith testified that he observed Sanders coming out of one room. Since he matched the previously given description, Officers Smith and Oritz detained him. Officers McGroder and Harper continued up the stairs. The appellant was informed that he matched the description of the robber and informed of his Constitutional rights. The appellant was searched, and folded money and car keys were found on his person. The keys were found in his right pants pocket, and the - 7 - money in the left pants pocket. The appellant was asked if he owned a car, and although he did not respond, Joy Hughey stated that the appellant did not own a car. Officer Harper testified that when the appellant started down the stairs, he was handed to Officers Smith and Oritz. Officers Harper and McGroder continued up the stairs. Smith observed Jovan Hughey throw money from his pocket into the bedroom, underneath the bed. McGroder secured Hughey, and Smith entered the bedroom and recovered $115.00. The appellant and the juvenile were read their rights and taken to separate police vehicles. The juvenile's mother arrived at this time. The juvenile then provided details and directed the officers to the location of the weapon. The weapon was retrieved from an alley across the street from the apartment by Officers Harper, Oritz, McGroder, and Smith. Officer Smith was present when the victims identified the appellant. Both victims were sure that the appellant was the perpetrator. After the identification, the appellant was again advised of his Constitutional rights, transported back to the Second District, and booked for the crime. CMHA Officer Oritz testified that he and Officer McGroder were approached by the Citizens on Patrol, who advised them that two males were armed with what appeared to be a sawed-off shotgun. They were wearing dark coats, and exited from 1523 West 25th Street. Oritz and McGroder proceeded to search the area near the - 8 - address. They were informed by radio that the Cleveland Police were looking for two men in the area who had committed an armed robbery. The CMHA officers met with Cleveland Officers Harper and Smith, and proceeded to the West 25th Street address. When the appellant had been secured by Officer Oritz, he was searched. Upon performing the pat-down search for safety, Oritz asked the appellant what was in his pocket. The appellant responded that it was car keys. The officer asked the appellant to remove the keys and the appellant complied. When another bulge was discovered, the appellant handed the officers five ones, a ten and a twenty. The money was folded in a particular way. The key, the money, and the appellant were all identified by the victims. Two minutes after the appellant was identified by the victim, the officers were advised that there might have been a second weapon. They proceeded to research the alley where the first weapon was found. The officers proceeded to search under the dumpster and found the victim's purses (T. 136). Joy Hughey, sister of Jovan Hughey and cousin of the appellant, was called to the stand. She testified that on December 4, 1993, Jovan and her mother had a disagreement. Jovan wanted to purchase tennis shoes, and his mother would only give him $30.00. Jovan became angry and walked out of the room saying, "I will get my own money." (T. 158.) Her brother called Sanders, and Sanders came over. Sanders spoke to them for a while, and then he and - 9 - Jovan left. As she looked out the kitchen window, she observed her cousin with a rifle. When Sanders and her brother returned, she observed Sanders counting money, and then giving some to her brother. John Sanders testified on his own behalf. He stated that he had prior convictions; that he took a bus to visit his cousin who had called him; that he did not rob the victims; and that he did not have a gun in his possession that evening. He denied that he did a robbery (T. 196). On cross examination, he testified that upon leaving his cousin's house, they walked to his mother's house. He and Jovan ate dinner at his mother's house and then returned to Jovan's house. When the police searched him he was in possession of $83.00, but he had no car keys. The appellant sets forth one assignment of error: MR. SANDERS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN TRIAL COUNSEL FAILED TO CHALLENGE AN IDENTIFICATION OF MR. SANDERS THAT WAS THE RESULT OF A SUGGESTIVE IDENTIFICATION PROCEDURE. The test for analyzing a claim for ineffective assistance of counsel was reiterated by this court in State v. Brown (1992), 84 Ohio App.3d 414, 419: The test for ineffective assistance of counsel was reiterated by this court in State v. Eberling (Apr. 9, 1992), Cuyahoga App.Nos. 58559 and 58560, unreported, 1992 WL 74227. The court held: - 10 - "The Sixth Amendment to the United States Constitution provides that the accused shall enjoy the right to 'have the Assistance of Counsel' in all criminal prosecutions. See, also, Section 10, Article I, Ohio Constitution. The Supreme Court of the United States has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial in that it assures the fairness, and thus, the legitimacy of our adversary process. Powell v. Alabama (1932), 287 U.S. 45 [66, 53 S.Ct.55, 63, 77 L.Ed. 158, 169]; Johnson v. Zerbst (1938), 304 U.S. 458 [462-463, 58 S.Ct. 1019, 1022-1023, 82 L.Ed. 1461, 1465-1466]; Gideon v. Wainwright (1963), 372 U.S. 335 [342-443, 83 S.Ct. 792, 794-796, 9 L.Ed.2d 799, 804-805]; Kimmelman v. Morrison (1986), 477 U.S. [365, 377-378, 106 S.Ct. 2574, 2584-2585, 91 L.Ed.2d 305, 320-321]. The constitutional right to counsel is the right to effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759, 771 [90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773-774]. "In Strickland v. Washington (1984), 466 U.S. 668, 687 [104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693], the Supreme Court of the United States set forth the following two-pronged analysis for determining whether counsel's assistance was so defective as to require reversal[:] "[']First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction * * * resulted from a breakdown in the adversary process that renders the result unreliable.['] - 11 - "In other words, counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136 [538 N.E.2d 373], at paragraph two of the syllabus. * * *" In the case sub judice, the appellant argues that he was rendered ineffective assistance of counsel when his trial attorney failed to file a motion to suppress or otherwise challenge the identification evidence. The appellant contends that the identification procedure was suggestive, and that no imaginable trial tactic beneficial to the appellant excuses trial counsel's failure to raise the issue. In determining if an identification should be suppressed as impermissibly suggestive, reliability is the linchpin. Zanesville v. Osborne (1992), 73 Ohio App.3d 580, citing to Manson v. Brathwaite (1977), 432 U.S. 98. This court has previously held that a one-on-one identification of a defendant is not necessarily prejudicial. In both State v. Hines (November 23, 1994), Cuyahoga App. No. 66458, unreported and in State v. Pratt (June 16, 1994), Cuyahoga App. No. 65677, unreported, this court cited to State v. Parker (1990), 53 Ohio St.3d 82 where the Supreme Court set forth the standard for reviewing identification evidence. As in the case sub judice, Parker failed to object to the identification evidence, and the court proceeded to reach a determination under a plain error analysis. The court held: - 12 - It is the likelihood of misidentification which violates a defendant's right to due process. Suggestive confrontations are disapproved because they increase the likelihood of misidentification. Neil v. Biggers (1972), 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontation is to deter law enforcement officers from using a less reliable identification procedure where a more reliable one may be available. The rule is not based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Id. at 199. Reliability is the linchpin in determining the admissibility of such evidence. Manson v. Brathwaite (1976), 432 U.S. 98, 114, 53 L.Ed.2d 140, 97 S.Ct. 2243. An unnecessarily suggestive identification process does not violate due process if such identification possess sufficient indicia of reliability. Id. at 106. The central question is whether under the totality of the circumstances the identification is reliable even though the confrontation procedure was suggestive. Neil, supra, at 199. And in State v. Jones (1990), 67 Ohio App.3d the court outlined the five factors as given in Neil v. Biggers (1972), 409 U.S. 188, 199, that a trial court should consider in determining whether or not, under the totality of the circumstances, an identification is reliable: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness' degree of attention; 3) the accuracy of the witness' prior description of the criminal; 4) the level of certainty demonstrated by the witness at the confrontation; - 13 - 5) the length of time between the crime and the confrontation. Applying these factors to the case herein, the identification was not so impermissibly suggestive to bar its admission at trial. The reliability of the identification is demonstrated by the victims' testimony at trial. Both victims had ample opportunity to view the appellant at the time of the crime; he was wearing no mask, and the lighting was adequate. It is clear from their recitation of the appellant's demands and of the actions which occurred that night, that both of the victims were paying close attention to the appellant. Both victims provided a description to the police which led to an immediate arrest, and both unhesitatingly identified the appellant as the perpetrator. The length of time between the robbery and the identification was approximately one-half hour. Appellant was not rendered ineffective assistance of counsel by the failure to raise the issue at trial. Nor was the appellant rendered ineffective assistance of counsel by the failure to raise the issue in a motion to suppress. It is axiomatic that trial counsel cannot be deemed ineffective merely for failure to perform a vain act. State v. Gilbert (September 22, 1994), Cuyahoga App. No. 66269, unreported, citing to Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. A defendant is not rendered ineffective assistance of counsel by counsel's failure to file and pursue an improper motion to suppress. State v. Roberson (January 19, 1994), Cuyahoga App. No. 64956, unreported. - 14 - Here, it would not have been error for the trial court to overrule a motion to suppress the identification evidence, therefore, counsel's failure to file such a motion cannot be considered ineffective assistance. The appellant's assignment of error is overruled. Judgment affirmed. - 15 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DONALD C. NUGENT, J., and JOSEPH J. NAHRA, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .