COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 70130 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION DEMETRIUS TOLES : : Defendant-appellant : : : September 11, 1997 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-328872 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, ESQ. Assistant County Prosecutor ROBERT T. GLICKMAN, ESQ. Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 For defendant-appellant: KEVIN M. SPELLACY, ESQ. McGinty, Gibbons & Hilow 1375 East Ninth Street, #1920 Cleveland, OH 44114 PATTON, J. A jury found defendant-appellant Demetrius Toles ( defen- dant ) guilty of two counts of robbery, including a firearm specification. Defendant timely appeals, asserting three assign- ments of error: (1) his in-court identification should have been suppressed as unreliable, (2)he received ineffective assistance of counse l, and (3) the verdict was against the manifest weight of the evidence. On July 26, 1995 a store that sold pagers and clothing was robbed by three young men. Working in the store at the time were the owner's wife and brother. The wife testified that three men came into the store and one of them asked her if she could turn on his pager. Wife stated she looked down and when she looked up the man had a gun pointed at her head. He then told her the store was bein g robbed and instructed her to lie down on the floor. The othe r man pointed a gun at the brother's head and forced him to the ground. The brother's hands and feet were then bound with duct tape. The men proceeded to steal pagers, watches, and clothin g; in addition, they took the videotape from the store's secu rity system and $37.00 in cash. The men left the store and drove away. Simultaneously, an off-duty Cleveland firefighter was jogging by and saw the three men exit the store. He testified that he thought something strange was going on because some of the men were carrying shirts but those men were shirtless. The firefighter stated he saw the three men enter a Cadillac and tear 3 out of the rear window a temporary tag being held in place with tape. The next day the owner of the store contacted the firefighter and asked the firefighter if he would go on a drive to locate the Cadil lac. The two drove around and found the Cadillac parked a few blocks away. The firefighter stated he noticed tape from the temporary license still hanging in the back window. The next day the owner telephoned another store, and asked it to be on the lookou t for someone trying to sell pagers. Later that day, an employee from the other store called the owner back and said someone was trying to sell him pagers. The police apprehended defend ant outside the other store and the wife and brother were brought to the store where they identified defendant. Subsequent to the arrest, the wife and brother identified defendant from a photo array and they identified him again at trial. At trial, defendant's friend testified that defendant was at his house at the time the robbery occurred. Deborah Anthony, who owned the Cadillac used in the robbery, testified that she allowed defendant to stay in her house with her five sons. She stated she had only one set of keys to the Cadillac and did not let defendant or anyone else drive the car. Defendant testified and denied robbing the store. He stated he was at his friend's house when the robbery occurred. In his first assignment of error defendant states as follows: THE IN-COURT IDENTIFICATION OF DEMETRIUS TOLES SHOULD HAVE BEEN SUPPRESSED AS IT WAS NOT RELIABLE. 4 Defendant claims the in-court identification should have been suppressed as unreliable because the initial identification by the wife and brother was overly suggestive and the photo array was misleading. Specifically, he argues the initial identifica- tion was overly suggestive because the brother and wife did not have enough time, merely seconds, to view defendant based on the fact that they were immediately ordered to the ground. Then a short time later they identified defendant at another pager store but only after being informed someone was attempting to sell pagers at this store. Defendant claims this clouded this initial iden tification with suggestibility which permeated any further iden tification. Defendant argues further the wife's lack of attention and memory was evidenced by the flawed description she gave the police by failing to say one of the robbers was tall and thin. In contrast, the state maintains the initial identification by the wife and brother was not overly suggestive because they both had a clear, unobstructed view of defendant while he held them at gunpoint. Regarding the photo array, the state argues the six photos shown the wife and brother were not misleading because they consisted of six African-American men of similar height, weight, and coloring. The Ohio Supreme Court has held [w]here a witness has been confronted by a suspect before trial, that witness' identification of the suspect will be suppressed if the confrontation procedure 5 was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under the totality of the circum- stances. State v. Brown (1988), 38 Ohio St.3d 305, 310, citing Mans on v. Brathwaite (1977), 432 U.S. 98. The Court went on to say the rationale for excluding a tainted pretrial identification is to protect the defendant from misconduct by the state. Id. In the present case there are no allegations of misconduct by the state. The pretrial identification of defendant by the wife and brother was created not by the state but by the diligence of the store owner who called another pager store and told it to be on the lookout for someone attempting to sell them pagers. Both the wife and the brother had ample opportunity to observe defen- dant before being ordered to the ground. Importantly, defendant took no measures to conceal his identity before the robbery and both witnesses gave compelling testimony affirming their identifi- cations. This is what occurred in the present case. Based on the totality of the circumstances, we believe the wife and brother's identification of defendant was reliable and properly admitted and not, as defendant claims, overly suggestive. Defendant next complains the photo array was misleading and improperbecause the other five photographs depicted men who were shorter and heavier and had different haircuts. This court has addressed this very issue in State v. Wills (June 5, 1997), Cuyahoga App. No. 70988, unreported, and stated: When defendant is identified at trial following a pretrial identification by photograph, the defendant's conviction will be set aside if the photographs are so impe rmissibly suggestive as to give rise to a very 6 substantial likelihood of irreparable misidentifica- tion. Simmons v. United States (1968), 390 U.S. 377, 384. Suggestiveness depends on several factors, includ- ing the size of the array, its manner of presentation, and its contents. Reese v. Fulcomer (C.A.3, 1991), 946 F.2d 247, 260. Stated otherwise, the test is whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the photographs as to suggest to an identifying witness that [that person] was more likely to be the culprit. Jarrett v. Headley (C.A.2, 1986), 802 F.2d 34, 41 (brackets in original). The photos in the present case showed men from the neck up thereby obviating defendant's argument that the other photos depicted men who were shorter and heavier. Likewise, the haircuts of the men in the other photos were all short and close cropped and therefore not distinguishable from defendant's photo. As a result, the photos did not give rise to a substantial likelihood of irreparable misidentification. Defendant's first assignment of error is overruled. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO ADDRESS THE FACT THAT THE IDENTIFICATION TESTIMONY SHOULD HAVE BEEN SUPPRESSED AS WELL AS FAILING TO OBJECT AT THE TIME OF TRIAL. Defe ndant argues he received ineffective assistance of counse l because his trial attorney did not move to suppress the eyewitness identification testimony and failed to object to the admission of such evidence. The state counters by maintaining the photographic array and identification evidence was reliable, as discussed in the first assignment of error, and there is no evidence a motion to suppress woul d have been granted. Also, the state asserts defendant's trial counsel did not err by not objecting to the identification 7 testimony because it was obvious the witnesses had ample time to view defendant and there was nothing suggestive about the photo array. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that deficient performance prejudiced the defense. Stri ckland v. Washington (1984), 466 U.S. 688. A properly licensedattorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. The burden of proving ineffectiveness is on the defendant. State v. Smith (1981), 3 Ohio App.3d 115. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To esta blish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. Claims that counsel was ineffective for failing to file a moti on to suppress have been rejected where the appellant can allege no facts which support the motion. City of Euclid v. Brackis (January 23, 1997), Cuyahoga App. No. 69928, unreported. As mentioned above, the eyewitness identification testimony was reliable and clearly admissible. Defendant's trial counsel was not deficient in not making a motion to suppress when such evid ence was obviously admissible. Since there were no facts which would support a motion to suppress, there is no need to 8 discuss whether defendant was prejudiced by trial counsel's performance. Defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant argues the verdict was against the manifest weight of the evidence based on a lack of evidence. He claims the identification testimony was unreliable and absent this evidence ther e remains only circumstantial evidence. Specifically, defendant asserts he had the misfortune of being in two places at the wrong time. The first was outside the other pager store and the second was where the Cadillac was parked. Moreover, defendant maintains his alibi was supported by the testimony of his friend and the woman at whose house he resides. Lastly, defendant argues the reason he was mistakenly identified was that the wife knew him from around the neighborhood. The state counter-argues stating the jury had the opportu- nity to judge the character and candor of the witnesses who testified and as a result, they are in the best position to evaluate the evidence. Therefore, this court should not substi- tute its opinion for the original trier of fact when it has only a sterile record to review. It is well settled law that a reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. State v. 9 Seiber (1990), 56 Ohio St.3d 4, 13. Moreover, in reviewing a claim that a conviction is against the manifest weight of the evidence, the conviction cannot be reversed unless it is obvious that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be revers ed and a new trial ordered. State v. Garrow (1995), 103 Ohio App.3d 368, 370-371. This is a difficult standard to meet and we are not persuaded that it was met in the present case. The record reveals both the wife and brother positively identified defendantas the person who pointed a gun at the wife's head and robbed the store. Although the two witnesses may have only seen defendant for very short period of time, the distance between defendant and the witnesses was a few feet, defendant did not wear a mask or disguise, and the pointing of a gun at one's head can leave a lasting impression. The two witnesses identified defendant on three occasions: at the other pager store the next day, from a photo array, and during the trial. Also, a witness saw the Cadillac, which was used to flee the scene, at the house where defendant resides. Lastly, defendant attempted to sell pagers to another pager store. After reviewing the record, we believe the trier of fact did not lose its way and create a manifest miscarriage of justice. There is substantial evidence upon which this court could reason- ably conclude the elements the crimes defendant was charged with were proven beyond a reasonable doubt. Defendant's third assign- ment of error is overruled. 10 Judgment affirmed. 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 11 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. KARPINSKI, P.J. ROCCO, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera- tion 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 .