COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69851 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION GJON SPAQI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 27, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-313143 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES CATHERINE KISIL HAYES, ESQ. Cuyahoga County Prosecutor P.O. Box 1 DANIEL SCHIAU, Assistant North Olmsted, Ohio 44070 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Gjon Spaqi appeals from his conviction following a jury trial for felonious assault (R.C. 2903.11) with a gun specification by shooting Jesse Bryant during a street brawl. Defendant contends the State's evidence was insufficient to sustain his conviction; in-court identification of defendant was based on a previous suggestive and unreliable identification of defendant; and prosecutorial misconduct deprived him of a fair trial. We find no error and affirm. The charges arose out of an altercation that occurred on Bonna Avenue in Cleveland around 5:00 p.m. on June 13, 1994. At that time, the shooting victim, Jesse Bryant, was dropped off by his wife Brenda Woods, at her sister's home to shoot pool. His eighteen year old daughter, Charlisa Woods, and his granddaughter, Ronia, were in the car. As Mr. Bryant proceeded up the driveway, his attention was drawn back to his wife's car in the street where an argument was taking place. Bryant observed a woman approaching his wife with a broken beer bottle. He interceded and attempted to get his wife to her car. Bryant's wife and the other woman then began to fight and several other persons gathered around. Bryant testified that he saw his daughter, Charlisa, holding a club anti-theft device. At some point she dropped it and he picked it up, but dropped the club while trying to separate his wife from her assailant. At that moment, Bryant heard a gunshot and realized that he had been shot - 3 - in his left posterior. Bryant turned and saw defendant, Gjon Spaqi, standing approximately ten feet away from him with a gun in his hand. Defendant then fired a second shot at Bryant. While lying on the ground, Bryant was physically assaulted by another male identified as Robert Spaqi, who is the nephew and co- defendant of the defendant Gjon Spaqi. Bryant was eventually aided by his wife and brother who picked him up, put him in a car and drove him to the hospital where he was treated for a gunshot wound to his left thigh. While in the hospital, Bryant made a statement to a Cleveland policeman. He was also shown a photo spread from which he picked out the defendant as the individual who shot him, as well as the nephew who assaulted him while he was down. Bryant further testified that he looked at a second photo spread and again picked out the same two individual defendants. He stated that his in- court identification of his two assailants was not based on any of the photographs that he saw, but rather because these were the two individuals who assaulted him on the day of the events. Cleveland policeman Dwayne Smith investigated the shooting and testified as follows: On June 13, 1994, he responded to a shooting reported on Bonna Avenue. He found a large group of people yelling back and forth across the street at each other. He determined that the person who had been shot had already been taken to the hospital. He observed blood on the street, located three spent .25 caliber shell casings, one live shell and one spent .32 caliber - 4 - casing in the area near 6526 Bonna Avenue. Officer Smith recovered a .22 caliber handgun from the defendant's pickup truck. Officer Smith interviewed a witness by the name of Dreama Casboelt who had pointed out the two males involved in the shooting. The officer advised them of their Miranda rights and placed them in the rear of the zone car. Other officers tried to maintain order between two groups of people from the neighborhood engaged in a loud, verbal and physical confrontation involving racial slurs. Once the ruckus had subsided, Officer Smith returned to the zone car and questioned the males about the shooting. The defendant claimed he shot Bryant in self defense because Bryant had struck his nephew, Luigi Spaqi, who had been taken to St. Vincent Charity Hospital. Officer Smith further questioned the males with regard to the spent .25 caliber shell casings that he had found. The defendant responded that he did not know where the .25 caliber gun was and his co-defendant, Robert Spaqi, told Officer Smith that he had thrown it away. Gjon Spaqi became concerned that the police were not confiscating the other peoples' weapons. He told Officer Smith that they had weapons and that, "We only did what we had to do." Officer Smith stated that it was an extremely hot afternoon when the incident took place and he was sweating profusely. He further stated that only the front part of the zone car was air conditioned and that both males were seated in the rear for - 5 - approximately 45 minutes to an hour and that by the time they were brought downtown they were sweating profusely. Brenda Woods, Bryant's common-law wife, testified that she was dropping off her husband on Bonna Avenue on her way to do grocery shopping. She did not know Gjon or Robert Spaqi or any member of the Spaqi family prior to the altercation. While pulling away from the curb, she had to stop her car because a man was standing in the street. She blew her horn in an attempt to get the man out of the way, however, he did not move but rather responded to Ms. Woods with profanity. At this time, an unknown female brandishing a broken beer bottle began to argue with Ms. Woods and her daughter, Charlisa Woods. This developed into a physical confrontation where Ms. Woods was physically assaulted by the female. Her glasses were knocked off, she heard two gunshots. She did not see the defendant shoot her husband. She did pick out Robert Spaqi as the male who precipitated the altercation and Gjon Spaqi as also being present. Ms. Wood's daughter, Charlisa Woods, also testified to her presence at the scene in her mother's car. She saw Robert Spaqi prevent the car from passing, and saw the fight between her mother and Robert Spaqi, along with an unknown female. She saw her father come down the driveway and intercede in the altercation to rescue her mother. During the fight, she remained on the sidewalk as she was pregnant and wanted to avoid injury. She heard a gunshot and saw defendant, Gjon Spaqi, standing near her father pointing a gun - 6 - at him. She then saw Gjon Spaqi fire the second gunshot into her father's body and saw him fall to the ground. Charlisa Woods testified that she was able to pick out Robert Spaqi as the individual who instigated the altercation and Gjon Spaqi as the male who shot her father in two separate photo spreads conducted by members of the Cleveland Police Department. Lastly, Charlisa Woods testified that she did not base her in-court identification on the photos she saw, but rather on the events as she perceived them on June 13, 1994. (Tr. 477). Superintendent Victor Kovacik of the Cleveland Police Special Investigation Technical Section testified that on June 13, 1994 both a gunshot residue test as well as a trace metal detection test were performed on both Gjon and Robert Spaqi. The results were negative. He went on to testify that the length of time between the incident and the administration of the tests, combined with the fact that both individuals were sweating profusely, could very easily produce a negative result on an individual who did in fact fire a weapon. Darryl Dunnican was a 28 year old neighbor who lived on Bonna Avenue. He witnessed the events leading to the shooting, saw Bryant interceding in the altercation on behalf of a woman the witness assumed was his wife. Dunnican identified Robert Spaqi as the male involved in the initial altercation with Brenda Woods. The witness further identified Gjon Spaqi as the individual who - 7 - fired a warning shot into the ground and then fired "a few" more shots into the victim, Jesse Bryant. Mr. Dunnican was not related to either the defendant, his co- defendant, or any of the victims in this case, nor did he know any of them socially. He testified that on two separate occasions at a photo array he picked out Gjon Spaqi as the shooter and his co- defendant, Robert Spaqi, as the person who instigated the altercation. His identification at trial was based on what he observed on June 13, 1994, not based on the photos he was shown. Detective Chris Grooms of the Cleveland Police Department testified that along with Detective Cross he was assigned the investigation on June 15, 1994. He took statements from witnesses and performed both photo spreads. Detective Grooms testified that the second photo spread was necessary because the defendant's nephew, Luigi Spaqi, had come forward and made a confession to the shooting approximately ten months after the incident. Detective Grooms stated that in the second photo spread he added a photograph of Luigi Spaqi to show to Jesse Bryant, Brenda Woods, Charlisa Woods and Darryl Dunnican. Only Brenda Woods identified the photograph of Luigi Spaqi, along with the photos of Gjon and Robert Spaqi. She indicated that this male was present at the scene but that she did not observe him do anything. When the State rested, the defendant's motion for acquittal was granted on count one and overruled on count two. The defense rested without putting on any testimony and its renewed motion for - 8 - acquittal was overruled. The jury returned a guilty verdict on the second count. A timely notice of appeal ensued. I. THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S MOTION FOR ACQUITTAL IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHT TO BE CONVICTED BEYOND A REASONABLE DOUBT. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) - 9 - Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. Defendant contends that there was no direct or credible evidence, physical or otherwise, presented which was irreconcilable with any theory of Gjon Spaqi's innocence and the motion to acquit should have been granted, citing State v. Krulig (1974), 37 Ohio St.2d 157. That principle was overruled in State v. Jenks (1991), 61 Ohio St.3d 259, which held in paragraph one of the syllabus: "*** When the State relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any - 10 - reasonable theory of innocence to support a conviction *** State v. Kulig *** overruled." Defendant argues other grounds for acquittal: no gunshot residue on Gjon's clothes; the gun removed from his truck was shown ballistically not to be the one with which Bryant was shot; Luigi Spaqi, nephew of Gjon, signed a confession that he was the shooter; that the State's witnesses from the neighborhood had an interest or bias in the outcome of the case; that the police bungled the case by failing to follow other leads or conduct a full investigation, slanted the photo array line-up and otherwise deprived defendant Gjon Spaqi of a fair trial. (Aplnt's Brf. at 23-30). The State presented adequate evidence to support the charges of the indictment. The eyewitness testimony of the victim, Jesse Bryant, his wife and daughter, plus the disinterested neighbor, Dunnican, placed the gun in Gjon's hands and directly testified that he shot Bryant. The events leading up to the shooting were vividly and consistently described from the differing viewpoints of these eyewitnesses. That no gun was recovered or gunshot residue found on Gjon or Robert was not conclusive since they were sweating profusely for several hours before the tests were taken. The nephew's belated confession was obviously suspect but the jury could judge that for itself. In the overall, we find there was sufficient evidence on which to submit the case to the jury and overrule the Crim.R. 29(A) motion to acquit. For the same reasons, we find that the guilty verdict was not against the manifest weight of the evidence. - 11 - Assignment of Error I is overruled. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED IN COURT IDENTIFICATION WHICH WAS BASED ON A PREVIOUS OUT-OF-COURT IDENTIFICATION OBTAINED IN A SUGGESTIVE MANNER IN VIOLATION OF RIGHTS AS PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. In the instant case, a hearing on defendant's motion to suppress the eyewitness identifications was held prior to trial. The trial judge heard testimony from two of the State's witnesses, Darryl Dunnican and Charlisa Woods. The court determined that the witnesses' in-court identification of defendant was not based solely on the two prior photo spreads viewed by the witnesses in which they positively picked out Gjon Spaqi as the person who shot Jesse Bryant. Rather, the identifications were based on their opportunity to observe, perceive and remember the incident which took place on June 13, 1994. (Tr. 477, 562-66). We find no error. Reliability is the basis for determining whether identification evidence is admissible. Manson v. Braethwaite (1977), 432 U.S. 98, 114. The United States Supreme Court has set forth five factors to be considered in evaluating reliability as follows: *** [T]he opportunity of the witness to view the criminal at the time of crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. *** - 12 - Neil v. Biggers (1972), 409 U.S. 188, 199-200; see, also, State v. Jells (1990), 53 Ohio St.3d 22, 27, cert. denied (1991), 112 S.Ct. 1020. Before determining reliability pursuant to Neil v. Biggers, supra, the court must first determine if the identification procedures used were impermissibly suggestive. State v. Merrill (1984), 22 Ohio App.3d 119, 122. The defendant has the burden to show the court that the identification procedures were unnecessarily suggestive. State v. Sims (1984), 13 Ohio App.3d 287, 288. Moreover, even suggestive identification procedures do not preclude admission where the identification itself is determined to be reliable. State v. Moody (1978), 55 Ohio St.2d 64, 67; State v. Bogan (April 25, 1991), Cuyahoga App. No. 58271, unreported. The focus, under the "totality of the circumstances" approach, is upon the reliability of the identification, not the identification procedures. State v. Lott (1990), 51 Ohio St.3d 160, 175, 555 N.E.2d 293, 308: Manson v. Braithwaite (1977), 432 U.S. 98, 114. ("*** reliability is the linchpin in determining the admissibility of identification testimony ***.") *** State v. Jells, supra at 27. (Emphasis in original) In the case sub judice, defendant can demonstrate neither suggestive identification procedures nor unreliable identification. State v. Nelson (July 3, 1991), Cuyahoga App. No. 58813, unreported; State v. Jones (July 2, 1992), Cuyahoga App. No. 60106, unreported. - 13 - Notwithstanding the use of an earlier suggestive identification procedure, in-court identification is admissible where the State shows, by clear and convincing evidence, that the in-court identification has its origin in observation independent from pretrial identification. State v. Merrill, supra at 122. The opportunity of the witnesses to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation were favorable considerations in favor of the identification in this case. At trial, in the presence of the jury, three of the State's witnesses testified as to the events surrounding the shooting of Jesse Bryant. The victim, Jesse Bryant, turned after being shot the first time and saw the defendant pointing a gun at him and then firing a second shot into his body. (Tr. 234-39). The daughter of the victim, Charlisa Woods, testified that at the time of the shooting she was not involved in the altercation taking place in the street, but rather was standing on the sidewalk when she observed Gjon Spaqi shoot her father. (Tr. 469-72). Darryl Dunnican, the neighbor who witnessed the whole episode, and who was not related or associated with the victim or his family in any way but was simply returning home from work to his home on - 14 - Bonna Avenue testified how he was able to see the defendant shoot the victim. (Tr. 550-55). The record is replete with sufficient testimony from the witnesses as to what they perceived on June 13, 1994, deeming their in-court identifications as reliable and not based solely on their viewing of photos prior to trial. Assignment of Error II is overruled. III. DEFENDANT WAS DENIED A FAIR TRIAL GUARANTEED BY THE SIXTH AMENDMENT WHICH WAS PREJUDICIAL AND RESULTED IN CONVICTION. Prosecutorial misconduct cannot be made a ground of error unless the conduct deprives the defendant of a fair trial. State v. Apanovich (1987), 33 Ohio St.3d 19. The focus thus becomes whether or not the statements made by the prosecutor "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo (1974), 416 U.S. 637; State v. Hill (1996), 75 Ohio St.3d 195, 204; State v. Hart (1994), 94 Ohio App.3d 665, 674. Defendant argues that there are discrepancies given by seven different witnesses contrasted against opening and closing statements made by the prosecutor. Some of these are minor in detail, others are misstated, and some of them appear to be mere editorializing by defense counsel. Opening and closing statements made by a prosecutor or defense counsel are not offered as evidence and are not to be considered by - 15 - the jury as evidence. That is why the trial judge in the instant case specifically instructed the jury as follows: You must remember throughout the trial that neither the opening statements nor the closing arguments of counsel, nor their comments during the course of the trial are evidence. They are not evidence and they must not be considered by you as evidence in your deliberations. (Tr. 194). The trial court reiterated the same instruction at the close of all the evidence. (Tr. 764). Simply because discrepancies may arise over the course of trial between the testimony of a particular witness and the general overview of the State's case as presented by the prosecutor on opening statement, does not mean that prosecutorial misconduct has occurred. In State v. Keenan (1993), 66 Ohio St.3d 402, the Ohio Supreme Court found the prosecutor's behavior improper where there was a pattern of misconduct which continued throughout the entire trial including the closing argument. In order to have reversible error, the conduct must have been so extreme so as to deprive the defendant of a fair trial. Keenan, supra. Furthermore, in Keenan, the court weighed the improper conduct against the evidence offered in support of convicting the defendant. In the instant case, there was overwhelming evidence, including eyewitness testimony, to support the finding that the defendant was guilty of felonious assault in shooting Bryant. There is nothing in the record or in defendant's argument to indicate that any statement made by the prosecutor so infected the - 16 - trial with unfairness as to make the resulting conviction a denial of due process. Donnelly, supra. Assignment of Error III is overruled. Judgment affirmed. - 17 - 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 Court of Common Pleas 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. BLACKMON, P.J., and PATTON, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .