COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69859 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ROBERT SPAQI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 3, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-313143 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DANIEL SCHIAU, ESQ. TIMOTHY R. STERKEL, ESQ. Assistant County Prosecutor 4425 Mayfield Road 8th Floor Justice Center Cleveland, Ohio 44121 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant Robert Spaqi appeals from the trial court's decision convicting him of simple assault and sentencing him accordingly. Spaqi assigns the following two errors for our review: I. THE TRIAL COURT ERRORED (sic) IN OVERRULING APPELLANT'S PRETRIAL MOTION TO SUPPRESS EYE- WITNESS IDENTIFICATION, AS SUCH IDENTIFICATION WAS TAINTED BY UNFAIR AND IMPROPERLY SUGGESTIVE POLICE IDENTIFICATION PROCEDURES. II. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT DURING OPENING STATEMENTS. Having reviewed the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On June 13, 1994, Jesse Bryant, his wife Brenda Woods, his daughter Charlisa Woods, and his granddaughter Ronita Martin drove to Bonna Avenue in Cleveland. Brenda dropped Bryant off at his sister's house to shoot pool, then started to drive away. She encountered Robert Spaqi, defendant-appellant, standing in the middle of the street. Brenda blew her car horn in an attempt to get Spaqi to move but he angrily refused. Brenda Woods began arguing with Spaqi. A woman joined them in the street and began arguing with Brenda Woods. During the argument, Spaqi hit Brenda Woods in the face. A second woman approached Charlisa Woods and threatened to cut her with a broken beer bottle. As Brenda Woods tried to intervene to protect her -3- daughter, the second woman hit her in the face. Spaqi also began to hit and kick Brenda Woods. Bryant returned to the street. As he attempted to get to his wife, he was shot by Gjon Spaqi. The bullet passed through his leg. Gjon Spaqi shot Bryant a second time. The bullet lodged in his lower inner thigh. Bryant fell to the ground where he was hit in the face by Robert Spaqi. Brenda Woods came to Bryant's aid, jumping on Robert Spaqi to stop his attack on Bryant. Thereafter, Brenda Woods, Charlisa Woods, and Jesse Bryant got back into the car and drove away. Bryant was later treated at the hospital for two gunshot wounds to the leg. Police arrived and talked to several of the people in the neighborhood. One of them, Dreama Casboelt, named Robert and Gjon Spaqi as the men that attacked Woods and Bryant. Robert and Gjon 1 Spaqi were arrested. Robert Spaqi was charged with two counts of felonious assault. The first count included violence specifications. The second count included firearm and violence specifications. The first count was later amended to simple assault. Spaqi filed a motion in limine to suppress the eyewitness identifications as unreliable and based on suggestive circumstances. At the suppression hearing, the state presented the testimony of Charlisa Woods, Darryl Dunnican and Detective Chris Grooms. Woods testified that she identified Robert and Gjon Spaqi 1 Though Robert and Gjon Spaqi were tried together, this appeal focuses only on Robert Spaqi. -4- from a group of four pictures she viewed at the police station. She also added that she did not need the photographs. She testified she could identify Robert Spaqi independent of them. Dunnican, who lived in the area where the incident occurred, also picked Robert Spaqis from a four photo lineup. Grooms confirmed that he only used four photographs but added that there were no other available photographs at the time. He testified that he tried to match the additional photographs with the suspects in terms of race, approximate age, and other factors. Grooms testified that, about a year after the incident, Robert Spaqi's brother, Luigi, told police he shot Bryant. Grooms showed the witnesses a second photo array containing the four photos from the original array plus an additional four photos. Detective Grooms testified he again attempted to ensure the men in the photo array shared the same general physical characteristics. The witnesses again picked out Robert and Gjon Spaqi. The trial court denied the motion to suppress and the case proceeded to trial. On September 18, 1995, the jury convicted Robert Spaqi of simple assault and acquitted him of felonious assault. On October 25, 1995, he was sentenced to six months in jail. His sentence was suspended and he was placed on one year probation. He was also ordered to pay a $250 fine plus costs and perform 100 hours of community service. This appeal followed. In his first assignment of error, Spaqi challenges the first photographic array shown to witnesses by police. He argues the -5- photo array was unduly suggestive because it contained only four pictures, two of which were Spaqi and his brother Gjon. Convictions based on eyewitness identification at trial after a pretrial photographic identification will not be overturned unless the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 384. The existence of notable flaws in the identification procedure does not, per se, preclude the admissibility of the identification testimony as long as the challenged identification itself is reliable. State v. Merrill (1984), 22 Ohio App.3d 119, 121. Relevant factors in assessing the reliability of eyewitness identification testimony include the witness' opportunity to view the criminal at the time of the crime, the witness' degree of attentions, 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. Id. at 121-122. At the suppression hearing, Detective Grooms testified Woods and Dunnican viewed the pictures two days after the incident. He testified that he used four photographs because they were the only ones he had available. The photographs were all the same size and were of the same type. Grooms denied saying or doing anything suggestive while the witnesses were viewing the photo array. He -6- also added that neither of the witnesses had any trouble identifying Spaqi. Charlisa Woods testified she was absolutely certain the people she identified were the ones involved in the assault of her parents. The assault occurred in the daytime and the sun was shining. Spaqi was facing her and she had an unobstructed view of him for at least ten seconds. Her attention was focused on Spaqi because he was exchanging angry words with her mother. Darryl Dunnican, who lived on the street where the incident took place, was drawn to the scene by the sounds of a loud argument. He saw Spaqi arguing with Brenda Woods. Dunnican stated he got a good look at Spaqi and was certain that Spaqi was the man he saw arguing with Brenda Woods in the street at the time of the incident. We conclude the evidence presented at the suppression hearing sufficiently demonstrated the reliability of the witnesses' identification of Spaqi. Though we are inclined to agree with the trial court that the photo array was "a little skimpy," we find that the testimony of the witnesses established independent bases for their identification of Spaqi. Accordingly, we overrule Spaqi's first assignment of error. In his second assignment of error, Spaqi argues prosecutorial misconduct denied him a fair trial. Specifically, he takes exception to the following statement by the prosecutor about the grand jury: -7- They review and decide what criminal charges should be filed, and then typically, the case is forwarded to the County Grand Jury and the reason we have a Grand Jury, ladies and gentlemen, is to make sure that the police or whatever agency, whether it's the City of Cleveland Police, City of Parma Police *** (Tr. 199-200) Alleged prosecutorial misconduct does not require the reversal of a conviction unless the prosecutor's comments were improper and they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13. Important considerations are whether the misconduct was an isolated incident or a protracted series of improper arguments, whether the defendant objected, whether curative instructions were given, and whether the evidence of guilt was overwhelming. State v. Keenan (1993), 66 Ohio St.3d 402, 410. In this case, Spaqi's defense counsel objected to the comments. The trial court sustained the objection and gave the following curative instruction to the jury: Ladies and gentlemen, the indictment and the fact that it was filed may not be considered as evidence for any purpose. The Defendants have plead[ed] not guilty, and by their plea of not guilty, they deny they committed the crimes. (Tr. 200) A judge's curative instructions are presumed to have been followed. Pang v. Minch (1990), 53 Ohio St.3d 186; State v. Loza (1994), 71 Ohio St.3d 61, 75. In addition, the trial court instructed the jury that the opening statements of trial counsel were not evidence and should -8- not be considered as such. (Tr. 194, 764) In this case, the trial court's prompt curative instruction along with its admonition that the opening statement was not evidence was sufficient to cure any prejudice that may have resulted from the improper comments. Spaqi's second assignment of error is overruled. Judgment affirmed. -9- 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. PORTER, J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON 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 .