COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71324 STATE OF OHIO Plaintiff-appellee JOURNAL ENTRY vs. AND HENRY WILDER OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1998 CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court, Case No. CR-328276 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender MARK J. MAHONEY DARIN THOMPSON, ESQ. Assistant County Prosecutor Assistant Public Defender The Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 -2- KARPINSKI, J.: Defendant-appellant, Henry Wilder, appeals from the judgment of the trial court which found him guilty of robbery. On appeal he raises only one assignment of error, which argues he was denied effective assistance of counsel because his trial counsel did not file a motion to suppress the identification of defendant from a photographic lineup. We find no merit to this argument, because the photo identification was not impermissibly suggestive and unreliable. Defendant's trial counsel, therefore, did not err by failing to file a motion to suppress. We thus affirm the judgment of the court below. The relevant facts follow. The charges in this case arise from the theft of some lottery tickets from a liquor store. After an investigation, the state charged Henry Wilder with one count of aggravated robbery, as well as specifications for violence and a prior felony conviction. Defendant having elected to waive a jury trial, this case was tried to the bench. Testifying first for the state, Vicki Weisent stated that she was employed as a clerk at the Vineyard Wine Shoppe in Cleveland. On July 7th, 1995, at approximately 7:00 p.m., she was working in the store when a friend named Rick Moran came in to buy beer. While Moran was in the store, three other persons came in; one black man stood by the counter and two black women went to the back of the store near the home brewing supplies. The man went ahead and purchased a lottery ticket but continued to stand around the counter. After Moran left, the two women standing in the back of -3- the store continued to ask questions about the home brewery supplies. To answer their questions, Weisent came out from behind the counter but tried to keep an eye on the register. Turning as she talked to them, she saw a man crouching down behind the register and observed him grab the lottery money from its separate drawer. At this point, Weisent yelled to stop and ran to the counter. Pushing her in the shoulder and face, the man caused Weisent to fall to the ground. The man and the two women then ran out of the store. Following the three outside, Weisent saw them enter a large white car and drive away. She remembered the license plate number and gave it to the police. One to two weeks after the event, Weisent talked to Detective Hamilton of the Cleveland Police Department. The Detective showed her a collection of six photographs of African-American men with some facial hair. She picked out number three, the photograph of defendant, as the person who took the lottery money and shoved her. At trial, Weisent again identified the defendant as the person who robbed her. Richard Moran also testified for the state. Moran lived in the area of the Vineyard Wine Shoppe and was friends with Weisent. He said he was in the store purchasing beer and talking with Weisent when an African-American man and two women entered the store and started browsing. While Moran was at the counter buying beer, the man approached to purchase a lottery ticket. Moran let the man purchase his lottery ticket first because Moran's purchase was more extensive. After his purchase, the man stood around the -4- lottery counter while Weisent took care of Moran's purchase. Moran then left the store. When he returned about a half hour later to take Weisent out to dinner, she was crying and her face and arm were scratched. After this incident, Moran met with Detective Hamilton, who showed him a photo array. From six photographs of African-American men with facial hair, Moran picked out defendant as the man who robbed the store. Moran felt confident in his identification because he engaged in a face-to-face conversation with defendant when he told him to go ahead of him in line at the counter. At trial, Moran again identified defendant as the person in the store. Detective Hamilton was the third and final witness for the state. He testified that, as part of his investigation, he interviewed Weisent and obtained the license plate number of the car she had observed. After running the plates, Hamilton learned that the car was listed under defendant's name. From a background check on defendant, he learned of defendant's past record and obtained his photograph. When Moran and Weisent separately came to the police station, Hamilton showed them a photo array of six photographs of similarly featured African-American men. Both Moran and Weisent identified defendant's photo from this group. The defense did not call any witnesses. Found guilty of robbery, defendant timely appealed, raising the following sole assignment of error: HENRY WILDER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS HIS IDENTIFICATION FOLLOWING A PHOTOGRAPHIC LINE-UP DEPRIVED HIM OF A FAIR TRIAL. -5- Defendant argues that the failure to file a motion to suppress the results of the photographic line-up constitutes ineffective assistance of counsel. A defendant who claims ineffective assistance must show deficient performance by counsel and resulting prejudice. Strickland v.Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. State v. Campbell (1994), 69 Ohio St.3d 38, 43. Due process requires a court to suppress the identification of a suspect if the photo array was unnecessarily and impermissibly suggestive of the suspect's guilt and the identification was not reliable. Neil v. Biggers (1972), 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed. 2d 401, 411; State v. Waddy (1992), 63 Ohio St.3d 424. Under this two-pronged test, the court must first consider whether the photograph suggests the defendant's guilt. In the case at bar, defendant argues that the photo array was impermissiblysuggestive. He argues he was improperly singled out by the information plate because it was hung around his neck and contained lettering larger than that on the plates of the others. The other five pictures had the men standing behind the information plate, which was hung from a pole. Generally, minor differences between photographs will not necessarily make them impermissibly suggestive. In State v. Green (1990), 67 Ohio App.3d 72, this court held as follows: It is not a requirement for the use of photo arrays that all pictures shown must be of the same type. Neither is it required that they bear no differing marks or blemishes. Neither is it required that but one photo of an accused be used. The only inquiry is whether the photo or procedure used was so impermissibly suggestive -6- as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253. While appellant was distinguished from other persons shown in the array by the quality and number of pictures of him used, we find that those points of distinction do not rise to the level of mistake and prejudice contemplated by Simmons. In State v. Butler (1994), 97 Ohio App.3d 322, the court found that a photo array of six photographs in which the defendant was not wearing a slate card, but four others were, was not unnecessarily suggestive. In the case at bar, the photo array was not impermissibly suggestive. Each picture was of an African-American man with similar complexion and facial hair, age, and size. Like defendant, the five other men had moustaches quite similarly trimmed and were between the ages of 22 and 36, and thus close to defendant's age of 36. Additionally, they were close to defendant's weight of 165, their weight ranging from 150 to 190 pounds. Also similar was his height of five feet seven inches, in comparison to their height ranging from five feet six inches to five feet ten inches. It is true that defendant is the only one photographed with an information plate hanging from his neck, but there were other differences in the photographs. Four of the photographs have four lines of information on their plates, which are unframed. On two, however, including defendant's, the plates show only three lines and have a frame on the three sides. One of the information plates has a brown tint; all the others, including defendant's, are black. Viewed together, the differences tend to minimize each other. It is preferable that the format of all photographs be uniform. -7- However, because the differences are minor and tend to cancel out each other, they are not impermissibly suggestive of defendant's guilt. Notwithstanding the fact that the identification procedure was not unnecessarily and impermissibly suggestive, defendant's argument also fails on the second prong of the Neil test, that is, whether under all circumstances, the identification was reliable. State v. Waddy, supra. Here, the question becomes whether procedures are so suggestive they created a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct 967, 971, 19 L.Ed.2d at 410. In making this determination the court must examine the following key factors:(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, and (5) the length of elapsed time between the crime and the confrontation. Neil v. Biggers, supra; State v. Battee (1991), 72 Ohio App.3d 660. The Ohio Supreme Court has held that this analysis weighs the totality of the circumstances. State v. Parker (1990), 53 Ohio St.3d 82, 87. In the case at bar, the identification itself was reliable. Defendant was identified separately by two witnesses, Moran and Weisent. Both had an opportunity to observe him; Moran when he told defendant to go ahead of him in line and Weisent when she sold -8- him the ticket and subsequently scuffled with him. The attention level of both witnesses was not low. Moran and Weisent did more than observe, they conversed with defendant. Weisent's scuffle with defendant, moreover, heightened her degree of attention. Regarding the accuracy of her description, Weisent told the police the robber was a black man, in his early thirties, dark complexion, medium length hair, dark brown in color, brown eyes, 150 Lbs. (Weisent's police report). Moran described the robber as roughly five-eight, five foot eight, five foot ten, black male, short hair, some facial hair, I believe he had a mustache at the time and in the neighborhood of about 160, 170 pounds. (Tr. 108, 109.) These two descriptions are quite close to defendant's actual size (5'7"), weight (165 lbs.), age (36 years), and facial characteristic (mustache). Both witnesses were quite certain of their identification. Finally, approximately only a week elapsed between the incident and the identification by the two witnesses. Accordingly, under the totality of the circumstances, the identification of defendant was reliable. Therefore, we must reject defendant's claim of ineffective assistance of counsel, because he cannot show prejudice. Defendant's sole 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. BLACKMON, A.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .