State v. Simpson

[Cite as State v. Simpson, 2013-Ohio-1072.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25069

v. : T.C. NO. 11CR1356/1

KERON SIMPSON : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :

:

..........

OPINION

Rendered on the 22nd day of March , 2013.

..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No.
0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402
Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Keron Simpson,
filed

March 5, 2012. Simpson appeals from his February 9, 2012 conviction and sentence on

twelve counts of aggravated robbery, in violation of R.C. 2911.01(A)(1), each with a firearm

specification and all felonies of the first degree, and two counts of murder, in violation of

R.C. 2903.02(B), both unclassified offenses and both with firearm specifications. Simpson

was also found guilty by the court, after a bench trial, of having weapons while under

disability (prior offense of violence), in violation R.C. 2923.13(A)(2), a felony of the third

degree. The court merged count one, aggravated robbery, into count 14, murder, and it

merged count two, aggravated robbery, into count 13, murder, for sentencing purposes, and

it noted that the State elected to proceed to sentencing on counts 13 and 14. The court

sentenced Simpson to ten years on the remaining aggravated robbery offenses (counts three

through 12), to fifteen years to life on each murder offense, and to 36 months for having

weapons while under disability. The court ordered that the murder sentences be served

consecutively to each other; that the sentences for aggravated robbery be served concurrently

to each other and concurrently to the consecutive murder sentences; and that the sentence for

having weapons while under disability be served concurrently to the above sentences. The

court merged all the firearm specifications into one three-year firearm specification and

imposed a three-year term to be served consecutively and prior to the definite term of

imprisonment, for a total term of 33 years to life. Finally, the court ordered restitution to

Marva Clemmons, Annette Dillard, and Joel Kimbrell. We hereby affirm the judgment of

the trial court.

{¶ 2} Simpson was indicted on April 29, 2011, along with Daviontae Norvell and

Earl Moon, after Michelle Carter and Earnest Sanders, who was known as Hank, were killed
 3

during the commission of an aggravated robbery at an unlicensed liquor establishment

owned by Sanders, known as Hank’s, located at 1564 Germantown Street. The incident

occurred in the early morning on November 14, 2010. On May 31, 2011, Simpson filed a

motion to suppress, which the court overruled after a hearing.

{¶ 3} At the suppression hearing, Detective Rebecca Rose, who has 24 years of law

enforcement experience, testified that she investigated the incident, and that she worked in

conjunction with Dayton Police Detectives Greg Gaier and Tim Bilinski, as well as Agent Tim

Ferguson of the F.B.I. Rose stated that Ferguson and Bilinski are assigned to the federal Safe

Streets Task Force. Rose stated that a week after the incident, Gaier received a tip from a

confidential informant that Simpson “admitted to being involved in this crime.” She stated that

Moon and Norvell were arrested in early December for an unrelated crime, and that Norvell’s cell

mate later contacted the police department and provided the names of Norvell, Moon and

Simpson in connection with the incident.

{¶ 4} Rose testified that she assembled a six person photo spread of each defendant.

She identified her department’s policy, effective July 6, 2010, based on the Ohio Revised Code,

for assembling photo spreads. Rose described the procedure, stating that by means of the Justice

Web system, she enters the suspects’ social security numbers to retrieve their photos, as well as

multiple candidates with similar identifiers, from which she selects five photos to complete the

photo spread. Rose stated she uses the “default system,” which selects candidates based on the

similar identifiers of age, height, weight and skin tone. She identified Simpson’s six-photo

spread and indicated that his photo is in position number two. She stated that the photos are in

color, and that each of the Defendants’ photos were in different positions in the photo spreads
 4

because she “did not want my witnesses to possibly go to one picture over and over. I wanted

them to look thoroughly over each photo spread.”

{¶ 5} Rose stated that on January 3, 2011, she, along with Ferguson and Detective Rick

Bergman of the Montgomery County Sheriff’s Office, who is also a member of the Safe Streets

Task Force, met with Joseph Barney, a patron on the day of the incident, to show him the photo

spreads. Rose testified that she read the photo spread instructions to Barney, with the exception

of the instruction that she is unaware of the suspects’ identities. Rose stated that she knew the

identities of all the suspects, and that she tried unsuccessfully to find an administrator who did

not know Simpson’s identity. According to Rose, “a week-and-a-half prior to showing these

photo spreads, Keron Simpson was accused of shooting a Dayton police officer’s son in the face.

All the detective section knew who he was. He had other multiple cases active * * *.” Rose

stated that at the time, she and the other officers believed that the Defendants would be federally

prosecuted, and that a blind administrator is not required to administer photo spreads in the

federal system. As to Simpson’s photo spread, Rose testified that Barney pointed to both

Simpson and the photo in position number five “and said that he could not make a positive

identification but he felt that they were like and similar to the person inside Hank’s Place when it

was robbed.” Barney did not identify Norvell, and in Moon’s photo spread, he “said the person

in Photo No. 2 and Photo No. 1 looked like the guy who had hazel eyes that was inside the bar

during the robbery * * * but he could not make a positive identification.”

{¶ 6} Rose stated that she, along with Ferguson and Bergman, on the same day, next

showed the photo spreads to Brandon Fields, another patron at the crime scene, and that she read

the instructions to him as discussed above. Fields did not identify Simpson or Norvell, but Rose
 5

stated that he identified Moon “as being in Hank’s Place at the time of the robbery.” Rose stated

that she, Ferguson and Bergman, on the same day, next showed the photo spreads to Tyrone

Green, also a patron of the crime scene, again reading the instructions as discussed. She stated

that when shown the photo spread of Simpson, Green “became very emotional. He started

crying. His voice raised. He started pointing to the photo of No. 2 saying this is the man who

killed my friend; this is the man who shot Hank. * * *.” Rose stated that Green also identified

Moon, but he was unable to identify Norvell.

{¶ 7} Rose stated that she and Detective Gaier also on the same day showed the photo

spreads to Terrence Jones, another Hank’s patron, again reading the instructions as discussed.

Jones identified Simpson and Moon, but not Norvell. Rose testified that she alone on the same

day next showed the photo spreads to Marva Clemmons, who was present the night of the

incident, again reading the instructions as discussed. Clemmons did not identify any of the

suspects. Rose stated that next she alone on the same day showed the photo spreads to Cornelius

Foster, and after reading the same instructions to him, Rose stated that Foster did not make any

identifications. Rose testified that on January 4, 2011, she alone showed the photo spreads to

Vanessa Dobbins, after providing the same instructions. Dobbins had left Hank’s prior to the

shooting, Rose testified, and Dobbins identified Simpson and also identified Norvell, but not

Moon.

{¶ 8} Rose described how she documented each witnesses’ identifications on black and

white copies of the photo spreads, and she testified that neither she nor the other officers

suggested any suspects to the witnesses, nor did the officers confirm any identifications. She

stated that she instructed the witnesses not to talk to other witnesses. Rose stated that none of
 6

the witnesses who made identifications wavered in doing so.

{¶ 9} Rose stated that Simpson was arrested in the late hours of December 27, 2010,

pursuant to an unrelated robbery warrant, and that she interviewed him the following day

regarding the instant case. Rose stated that she initially introduced herself and offered Simpson

water or a restroom break. She then went over a pre-interview form with him, advising him of

his rights. She identified the form and stated that it indicates a time of 10:50 a.m., and further

indicates that Simpson was being interviewed regarding a homicide investigation. Rose stated

that Simpson advised her that he previously had been read his rights. Rose testified that

Simpson was unable to read, and that she read each individual right to him and had him place his

initials by each right to indicate his understanding thereof. Rose testified that she read the

waiver of rights to Simpson, and that she defined the word “coercion” for him. Rose testified

that Simpson told her that he had completed 11 years of school, and that he so indicated on the

rights form. Rose stated that Simpson made statements to her over a period of one hour and 22

minutes. Rose stated that the interview was recorded.

{¶ 10} On cross-examination, Rose acknowledged that Simpson has a “scar” from a

“severe injury” on his forehead, and that he is the only individual with such a scar in his photo

spread.1 On redirect examination, Rose stated that the similar characteristics among the photos

in Simpson’s photo spread included braids, similar skin tone, height, weight, age and lack of

facial hair. She stated that the men in positions one and four have asymmetrical hairlines, that

the hairline of the person in position three is not visible, and that the hairline of the man in

1
We note that at trial, multiple witnesses testified that Simpson wore a hat in the
course of the incident.
 7

position six is “obstructed.” Rose stated, “I want to make sure my witnesses are able to pick

them out. I want them to look at all the pictures. And I want to make it hard for them.” Rose

stated that she told the witnesses that each array may or may not contain a photo of the suspect.

Rose stated that federal charges were brought against Simpson before state charges, and that the

federal charges were later dismissed.

{¶ 11} Regarding her interview of Simpson, Rose stated that he remained in the

detective section overnight following his arrest the night before. She stated that she moved him

to another interview room so that the interview could be recorded. She stated that she offered

him something to eat. Rose stated that she advised him that she was investigating a homicide at

a “boot joint.”

{¶ 12} On recross-examination, given Simpson’s scar, Rose acknowledged that it would

have been simple to cover the foreheads of the subjects in Simpson’s photo spread before

administering the array to the witnesses, and the following exchange occurred:

Q. But you chose not to do it, didn’t you?

A. Yes.

Q. Because you were inflamed. He was a suspect on shooting a police

officer’s son and there was a lot of fury within the police department and you

wanted Keron Simpson; isn’t that correct? * * *

A. I wanted him on this murder.

Q. * * * As a matter of fact, on State’s Exhibit 1, the photo spread that’s

got Keron Simpson in it, we’ve been talking about. If you read that, it says

photographic show-up investigation must be read verbatim. Doesn’t it say that?
 8

A. Yes.

Q. And the police required procedure says it. It must be read, verbatim;

isn’t that correct?

A. Yes.

Q. It wasn’t done in this case was it?

A. No.

{¶ 13} Homicide Detective Gregory Gaier of the Dayton Police Department testified that

he has been in law enforcement for 20 years, a homicide detective for three years, and a member

of the Safe Streets Task Force for a year. Gaier testified that he transported Simpson to the

Safety Building following his December 27, 2010 arrest. Gaier stated that he and Detective Debra

Ritchey interviewed Simpson regarding the unrelated aggravated robbery, after Ritchey advised

him of his rights using a pre-interview form. Gaier identified the signed pre-interview form

which indicates a time of 11:37 p.m. Gaier stated that Simpson indicated his understanding of

each right read to him by placing his initials next to each right. Regarding the waiver of his

rights, Gaier stated that the word “coercion” was defined for Simpson. Gaier stated that

Simpson signed the form and agreed to speak to the officers without an attorney.

{¶ 14} Gaier stated that he and Agent Ferguson interviewed Simpson about the matter

herein 35 to 45 minutes later. Gaier stated that he “heard Special Agent Ferguson ask him if he

understood his rights from when they were previously read to him and he stated that he did.”

Gaier stated that he and Ferguson did not advise Simpson of his rights a second time. Gaier

stated that Simpson was cooperative and coherent, and that he did not ask for a break or indicate

that he was tired in either interview. Gaier stated that Simpson was offered water and restroom
 9

breaks. Gaier stated that in the interview regarding the matter herein, Simpson did not ask for a

lawyer, and that he was not threatened or promised anything in exchange for his statements.

Gaier stated that the second interview lasted for “around 20 minutes.” Gaier stated that Simpson

did not provide a written statement.

{¶ 15} Gaier stated that on January 3, 2011, he and Detective Tim Bilinski showed

photo spreads to Shawn Dentel, who was present on the night of the incident. Gaier stated that

he read the instructions to Dentel prior to showing her the pictures, and that he omitted the

instruction that he was unaware of the suspect’s identity. When shown Simpson’s photo spread,

Gaier testified that Dentel “immediately pointed to the photograph, No.2, and said he’s the one

that shot Hank.” She also identified Moon and Norvell. Gaier stated that he and Bilinski next

on the same day showed the photo spreads to Joel Kimbell after reading the instructions as

discussed above. Kimbell identified Simpson and Norvell without hesitation, but not Moon.

Gaier described how he documented the identifications, and he stated that he and Bilinski did not

suggest that the witnesses select any of the suspects.

{¶ 16} On cross-examination, Gaier stated that when Simpson was initially interviewed

by him and Ritchey, Simpson was not advised that he was being interviewed regarding the

matter herein. Gaier stated that at the conclusion of that interview, he and Ritchey left the room

to discuss the case, and Ferguson entered the room to interview Simpson. Gaier stated that he

re-entered the room to assist Ferguson, about a minute after Ferguson entered the room. Gaier

stated that Ferguson advised Simpson, after ascertaining that Simpson understood the rights

previously read to him, that he was going to interview Simpson about the instant matter. Gaier

stated that the interview was not recorded. Gaier stated that Ferguson interviewed Simpson as
 10

part of the Safe Streets Task Force federal investigation. After the interview, Gaier stated that

Simpson was booked into the Montgomery County Jail pursuant to the unrelated aggravated

robbery warrant.

{¶ 17} Detective Kevin Phillips testified that he has worked in law enforcement for 21

years and that he has been assigned to the Safe Streets Task Force since May, 2010. He stated

that Rose provided color photo spreads to him for Simpson, Norvell and Moon. Phillips stated

that on January 3, 2011, he and Special Agent Mark Buzzard of the F.B.I. showed the photo

spreads to Annette Dillard, another patron of the crime scene. Phillips stated that he read the

instructions to Dillard verbatim, including the instruction that he did not know the identities of

the suspects. Phillips stated that Dillard identified Simpson “immediately,” as well as Norvell,

without wavering, but not Moon. Phillipps stated that on the same day, he and Buzzard also

showed the photo spreads to Brian Whiteside, again reading the instructions verbatim.

Whiteside identified Simpson “immediately,” and he “specifically, added that he was the one

doing the shooting.” Whiteside also identified Moon, but he did not identify Norvell. Finally,

Phillips stated that he and Buzzard met with another victim of the robbery, Erica Peek, on

January 3, 2011, and after reading her the instructions verbatim, showed her the photo spreads.

Peek identified Simpson immediately and “added that he was also a shooter.” Peek did not

identify Moon or Norvell. Phillips described the manner in which he documented all of the

identifications, and he stated that he did not tell the witnesses whom to identify or suggest any

suspects to them, and he stated that he did not confirm the identifications. On

cross-examination, Phillips stated that he was aware at the time he administered the photo

spreads of the Dayton Police Department policy requiring a blind administrator, and that he did
 11

not follow that policy when administering Simpson’s photo spread.

{¶ 18} In overruling Simpson’s Motion to Suppress, the trial court summarized the

administrations of the above photo spreads and the results thereof. The court noted that it found

the witnesses’ testimony at the suppression hearing to be credible. The court determined that the

investigating officers, “neither by word nor gesture, did nothing (sic) to suggest to the various

witnesses the identity of the Defendants. That this is so is reflected by the number of witnesses

unable to make an identification of any Defendant and also the number of witnesses who were

able to identify only one or two Defendants.” The court further found that the photographic

displays that the officers used were not unduly suggestive, and specifically that “[t]his is so even

in the face of the particular difficulties created by Mr. Simpson’s hairline.” The court found that

the “photographic line-up procedures used in this case did not, without dispute, comply with the

procedure outlined by O.R.C. 2933.83(B), in particular the line-ups were not conducted by a

blind administrator.” The court further noted that, while the State asserted that the use of a blind

administrator was impracticable, the line-up administrators did not state in writing the reason for

the impracticality, as required by R.C. 2933.83(B)(2). After noting that the “rationale for

suppressing an out of court identification is that a defendant’s due process rights are violated by

the admission of an unreliable identification,” the court concluded that the “Defendants, even

when the O.R.C. 2933.83 deviations are considered, have not established that the identification

procedures used were unduly suggestive. The Defendants, this being so, have not established

the necessary substantial likelihood of misidentification as to any of the photographic line-ups,

making a reliability determination unnecessary.”

{¶ 19} Regarding Simpson’s statements made while in custody, the court determined
 12

that he was properly advised of his Miranda rights, and that his waiver of those rights was

knowing and voluntary. The court noted that “there is nothing in the record to suggest, based

upon physical violence, threats, false promises, or any other reason,” that Simpson’s Miranda

waiver was involuntary.

{¶ 20} At trial, which commenced on July 6, 2011, Shawn Dentel testified that Earnest

Sanders was her fiancee. At the time of the incident, she and Sanders resided at 1564

Germantown Street. Dentel stated that Sanders had been operating a bar in the basement of that

residence for 28 years, and that the usual patrons were an “older crowd.” Dentel stated that the

bar typically opened at 2:30 a.m., and that to gain entrance, patrons rang a doorbell, and Tyrone

Green would answer the door. Dentel stated that she served drinks from behind the larger of two

bars in the basement.

{¶ 21} Dentel stated that on November 13, 2010, she had a beer and a shot of liquor

“between nine and eleven” p.m., before the bar opened. She stated that Vanessa Dobbins

arrived at the bar between 1:00 and 1:30 a.m., and that she had continued drinking and done

some cocaine prior to Dobbins’ arrival. Dentel stated that despite her drug and alcohol usage,

she was able to “count money and know who was at the bar and everything.” After the bar

opened, Dentel testified that “there was three guys that came down there that I didn’t know. And

I went upstairs and told Hank that they did look young and I have never seen them in the bar

before.” Dentel stated that when she returned downstairs, she passed by all three men on her

way to the larger bar, and that she was “really close” to them, and that the basement area is a

cramped space. Dentel stated that the three men sat at the smaller of the two bars in the

basement, and Simpson, whom she identified in court, “came up to the bar to get three Bud Ice.”
 13

Dentel stated that Simpson “had dreadlocks. He had a hat on, black coat.” She stated that she

and Simpson were within an arm’s length of each other when she served him the beer. Dentel

stated that of the three young men, Simpson had the darkest complexion.

{¶ 22} Dentel stated that after she alerted Sanders to the men’s presence, he came

downstairs and spoke to them “for a long time.” She stated that all four men were laughing and

talking, and that when Sanders left them, they all shook hands. Dentel stated that Sanders asked

her to count some money, and that she did so behind the bar, out of the patrons’ observation.

She stated that the amount of money was four thousand dollars, and that she told Sanders to take

it upstairs, and that he did so after putting it in his rear pocket.

{¶ 23} Dentel stated that Simpson twice more approached the bar, buying three beers

each time. Shortly before 4:00 a.m., Dentel testified that “Hank came back downstairs. And as

soon as he came to the main bar, [Simpson] ran up to him and said ‘Hank, give me your money.’

And Hank turned around and he just shot him.” Dentel stated that Sanders grabbed his groin

area and fell to the floor, and that Simpson then pointed his gun at her and said, “‘bitch, give me

the money.’” Dentel told Simpson that the money was behind the bar, and he took the cash from

a box there. She stated that Simpson took about $250.00 from behind the bar.

{¶ 24} Dentel stated that she observed the other two young men with weapons and that

they were “pointing them at everybody telling everybody to be quiet and get down.” She stated

that the three men had been in the bar for an hour and a half to two hours before they showed

their weapons. She stated that she heard a second shot, and that the men then “went upstairs and

they shot their gun while they were going upstairs and told everybody not to move.” Dentel

stated that she ran to the nearby home of Sanders’ sister and told her to call the police. When
 14

she returned to the basement, she stated that she observed Sanders “bleeding to death,” and that

he lifted his head and told her that he loved her. She also observed Carter, who had been shot in

the head and “wasn’t alive.” Dentel stated that after Sanders spoke to her, “the police grabbed

me and told me to come and sit in his cruiser.” She stated that she was cooperative with the

officers, and that she went to the police station to be interviewed.

{¶ 25} When the prosecutor asked Dentel about the photo spread identifications, counsel

for Simpson objected on the basis of the failure to comply with the blind/blinded administrator

requirement, and the court overruled the objection. Dentel’s testimony regarding her immediate

identification of Simpson in the photo spread as the man who “shot Hank” was consistent with

Gaier’s at the suppression hearing.

{¶ 26} On cross-examination, Dentel stated that she used cocaine about every two

hours on the the evening of December 13th, and that she and Sanders did so because “it mainly

made us stay up and see who was coming to the basement and socialize with people and stuff like

that. It don’t make us crazy or anything like that.” Dentel stated that her common practice was

to put the money she received bartending into her bra, until she “had too much money to put in

there and I would put it in the box” behind the bar. She stated that Simpson did not remove his

hat in the course of the incident. She stated that there were approximately 15 people in the bar

when the incident occurred. She stated that Simpson was “over by the [main] bar” when he shot

Sanders, and that the other two were “over by the small bar.” She stated that she did not know if

the other patrons gave money to the other two men with guns, and that she “wasn’t looking

around because I had a gun on myself. I was looking at the person with the gun on me.” Dentel

stated that everyone in the bar was drinking alcohol, with the exception of Sanders.
 15

{¶ 27} Officer Joseph Heyob of the Dayton Police Department testified that he was

alone on routine patrol at the time of the incident, and that he was the first responding officer to

enter the basement. He stated that Dentel was eventually placed in his cruiser, and he described

her as “very emotionally distraught. She appeared upset but she was very cooperative and

actually very helpful.” The following exchange occurred:

Q. Helpful in what way?

A. Just pointing to where people were. And she kept her - - she was obviously upset

but she kept her cool, in a way. I mean she didn’t - -wasn’t a problem or distraction and she

didn’t interfere with what we needed to do.

{¶ 28} Erika Peek testified that Carter was her cousin, and that on the morning of the

incident, the two of them went to Hank’s after they went to two other bars. She stated that at

one of the bars, they saw “Esko,” a deejay there, and Brandon Fields. She stated that she and

Carter followed the men to Hank’s, and that they each had two drinks prior to their arrival there.

Upon arrival, Peek stated that Carter went to the bathroom, and then the women sat down at a

table in the middle of the room, next to Annette Dillard, a friend of Peek’s, and across from Esko

and Fields. While the group talked around the table, Peek stated that “the next thing you know,

somebody stands up and says ‘this is a fucking robbery, give us your fucking money.’ * * * And

then he shot Hank for no reason.” Peek stated that “some guy” asked her for her money, and that

she did not have any money but she gave him her purse. She stated that Carter “just fell out of

her seat.” Peek stated that Simpson shot Sanders.

{¶ 29} On cross-examination, Peek estimated that she and Carter arrived at Hank’s at

2:30 a.m. At that time, she stated that Simpson was sitting at the small bar with another man,
 16

and another young man was sitting at the main bar. Peek testified that she was unaware that the

three men were together until the robbery occurred. She stated that she noted their presence

because they were younger than everyone else. Peek described the bar area as small, and she

stated that she “could view everyone. It’s kind of tight.” She stated that the maximum time that

passed between her and Carter’s arrival and the robbery was 20 minutes. She stated that the man

at the main bar wore khaki pants and was fair skinned, and that he approached her and demanded

her money in the course of the robbery. She stated that she did not observe a weapon in his

possession. When asked if the person at the main bar who took her purse was at that bar the

entire time, Peek replied, he “could have moved when I was looking at the pictures on the wall.”

When asked if the two men sitting at the small bar remained in the that area until the robbery

occurred, Peek again stated, “I can’t be for sure if they got up when I was looking at pictures.”

Peek, identifying Simpson in the courtroom, stated that on the date of the incident, “he had

something on his head,” that he had “braids,” or “dreads,” and that he wore dark clothing. Peek

referred to Simpson as the “killer,” and she stated that she observed a “black gun” in his

possession. Peek stated that she observed Simpson shoot Hank. Finally, on redirect, Peek

acknowledged that she was emotional and distraught after the shooting, and that her description

of the incident to police may not have been entirely accurate, but she stated that she was “a

hundred percent sure” that she saw Simpson fire a weapon.

{¶ 30} Gregory Gaier described the police department’s policy and procedures for

compiling photo spreads in a manner consistent with Rose’s description at the suppression

hearing. Gaier stated that the requirement for a blind/blinded administrator does not apply to

federal prosecutions. Gaier stated that at the time the photo spreads herein were being
 17

administered, he believed that Simpson would be federally prosecuted. Gaier stated that the

investigators attempted to administer the photo spreads “as quick as possible to all the witnesses

just, by chance, they would not have contact with each other and * * * let each other know that

they had made identifications in the case.” He stated that the investigators were divided into

three separate teams to efficiently administer the photo spreads. Gaier’s description of the

administration of the photo spread to Dentel, including his omission of the instruction that he did

not know the suspect’s identity, and her immediate and unwavering selection of Simpson in

photo number 2 as the “the one that shot Hank,” was consistent with his testimony at the

suppression hearing, as was his testimony that she identified Moon and Norvell. Gaier stated

that he obtained a DNA standard from Simpson on December 28, 2010, by means of an oral

swab.

{¶ 31} On cross-examination, Gaier stated that the purpose of the blind/blinded

administrator requirement is to “to avoid any possibility of contamination of the showing of a

photo spread.” He stated that he omitted the instruction that he did not know Simpson’s identity

“because I knew who the suspect is.” Gaier stated that the photo spreads were compiled by

means of JusticeWeb, the photos were in color “to show a good, true, accurate complexion,” they

were placed in random positions by the computer, the individual defendants were in positions

distinct from each other among the photo spreads, and the photo spreads were administered

almost simultaneously to avoid any possible conversation among the witnesses.

{¶ 32} Annette Davis testified that she is a forensic scientist with the Miami Valley

Regional Crime Laboratory with 22 years of experience. She identified State’s Exhibits 53A

and 53B, bottles of Bud Ice retrieved from the crime scene, and she stated that Simpson’s DNA
 18

was found on both bottles.

{¶ 33} Rose testified that the day after the incident, she received a Crime Stopper tip that

David Cokes and Sammie Phillips were potential suspects in the robbery, and she compiled photo

spreads for each of them. She stated that the physical descriptions of the men did not match

those provided by the witnesses to the shooting. Rose stated that she administered the photo

spreads to Dentel, and that they did not contain photos of Simpson, Moon or Norvell. Rose

testified that Dentel did not identify any one in the photo spreads. Rose’s testimony regarding

her compilation of the defendants’ photo spreads was consistent with her testimony at the

suppression hearing, and she emphasized, “I want my fillers to look like my suspect. I want to

make it hard for my victims and witnesses to pick out the suspect.”

{¶ 34} On cross-examination, Rose stated that she learned that the defendants would

not be federally prosecuted in April, 2011. She stated that she and Detective Mike August

interviewed Simpson on December 28, 2010 at the Safety Building after advising him of his

rights. She stated that the interview began at 10:50 a.m. and ended at 12:12 p.m.

{¶ 35} Kevin Phillips provided testimony consistent with his testimony at the

suppression hearing regarding his and Agent’s Buzzard’s administration of the photo spreads to

Peek and Dillard, as well as those witnesses’ unwavering identification of Simpson, and Dillard’s

identification of Norvell, in the absence of suggestion or confirmation by the officers. On

cross-examination, Phillips stated that he read the instruction to the witnesses that he did not

know the identity of the suspects, although he knew the identities of the defendants.

{¶ 36} Annette Dillard testified that she manages the kitchen at a local club in Dayton

from 9:00 p.m. until at 2:00 a.m., and that she left the club around 3:30 a.m. on November 14,
 19

2010. She stated that when her shift ended, she remained at the club to have a drink. She stated

that Marva Clemmons is a bartender at the club, and that the two of them went to Hank’s

together. Dillard stated that Hank’s “is like home. I mean I felt comfortable. I’ve been going

there on and off for years and it’s an older crowd, very comfortable, everybody works. We go

there after work.” Dillard stated that she and Clemmons arrived at about 3:45 a.m. on the night

of the incident. Dillard stated that upon arrival, she observed Dentel, whom she knows as

“Twiggy,” behind the bar, as well as Peek, with Carter. She stated that she also observed Joel

Kimball by the bar near Dentel, and Terrence Jones, whom she recognized as a deejay named

Esko from another bar. She stated that Jones and another man were sitting with Peek and Carter.

Dillard stated that she also observed three men whom she did not know, who appeared to be in

their twenties.

{¶ 37} Dillard stated that she started to speak to the three young men, but Dentel called

her name, and she approached the bar where Dentel was working. She stated that she observed

Simpson when she came down the steps into the bar sitting at the small bar, and that she looked

at his face as she passed him. She stated that he was wearing a cap and that his hair was braided.

Dillard stated that of the three young men, Simpson had the darkest complexion. Dillard stated

that she ordered a drink from Dentel and then sat down at a table. Dillard stated that Hank came

downstairs, and Joseph Barney, Brian Whiteside and Cornelius Foster entered the bar. Shortly

thereafter, she stated, Simpson “was coming towards the bar area shooting at Hank at the same

time.” Dillard stated that she then observed Simpson point his gun at and demand money from

Dentel, and also approach Barney for money. She stated that she heard a second shot and

Simpson ordered everyone to the floor and demanded their money. Dillard stated that while she
 20

was on the floor, one of the young men “snatched” her money from her hand, and he also took

money from Clemmons. She stated that she observed weapons in the hands of the other two

young men. She stated that the defendants fled after firing one more shot. Dillard stated that

she determined that Carter was dead and approached Hank, and she then called 911 on her cell

phone. Dillard’s testimony regarding the administration of the photo spreads and her

identification of Simpson and Norvell was consistent with that of Phillips.

{¶ 38} At the conclusion of the trial, the court provided the jury with several

definitions, pursuant to R.C. 2933.83, relative to the administration of a photographic lineup.

The court advised the jury that R.C. 2933.83 requires law enforcement agencies to adopt specific

procedures for administering photographic lineups, and the court enumerated those procedures.

The court then advised the jury in part as follows:

The court has concluded – and you are so informed – that the failure to

conduct the photo lineups with a blind or blinded administrator violated Section

2933.83. In determining the reliability of the eyewitnesses in this case, you the

jury, may consider the noncompliance with the requirements of Section 2933.83 in

conducting the photo lineups.

You may also consider that this Court has previously ruled that both the

procedure Detective Rose used to create the photo lineup and the procedure used

by police officials to show that photo lineup to the witnesses complied with the

requirements of the United States Constitution and the Constitution of the State of

Ohio.

Additional things you may consider in weighing the testimony of an
 21

identifying witness are [the] capacity of the witness and the opportunity of the

witness to observe; the witness’ degree of attention at the time he observed the

offender; the accuracy of the witness’ prior description or identification, if any; *

* * whether the witness had an occasion to observe the defendant in the past; the

interval of time between the event and the identification and all surrounding

circumstances under which the witness had identified the defendant including

deficiencies, if any, in the photo lineup.

If after examining the testimony of the witnesses, you are not convinced *

* * beyond a reasonable doubt the defendant is the offender, you must find the

defendant not guilty.

{¶ 39} Simpson asserts three assignments of error herein. His first assigned error is as

follows:

“TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS HIS

IDENTIFICATION BECAUSE THE IDENTIFICATION WAS UNRELIABLE.”

Simpson asserts that Rose failed to comply with R.C. 2933.83, and that her “extreme

noncompliance warrants suppression of [his] identification.” Simpson notes that Rose failed to

use a blind or blinded administrator, that she and Gaier only read partial instructions to each

witness, omitting the sentence that they did not know the suspect’s identities, and that Phillips

“read the instruction that he did not know the suspect, despite that being untrue.”

Simpson further asserts that the factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct.

375, 34 L.Ed.2d 401 (1972), justify suppression. In addition to failing to comply with R.C.

2933.83, Simpson asserts that Rose “admitted that she wanted Appellant to be convicted for his
 22

offense.” Simpson asserts that Rose should have covered Simpson’s unique scar when she

assembled the photo spreads, and that in failing to do so, she singled out his photo.

{¶ 40} Finally, Simpson asserts that “the jury should have been given a more explicit

instruction as to the inherent unreliability of the identification by the witnesses due to the number

of procedural and statutory errors present in the identification.” Simpson asserts that the court

“mislead the jury that the procedures, while not followed, were appropriate and dissuaded the

jury from considering the failures of law enforcement when judging the credibility of the

witnesses.” Simpson asserts that the jury should have been instructed as follows:

[T]his court has found that law enforcement failed to comply with R.C.

2933.83. Specifically, law enforcement failed to use a blind administrator, or a

blinded administrator. Their failure to do so is not based upon impracticality, and

they failed to put into writing the impracticalities of using a blind/blinded

administrator. You may consider each of the provisions of R.C. 2933.83 for

which the law enforcement failed to comply in assessing the reliability of the

lineup procedure, and the credibility of the eyewitnesses who identified Appellant

pursuant to the faulty procedures. If you believe the lineup was suggestive, or

otherwise so flawed as to deem it unreliable, you may consider this when

analyzing the credibility of the eyewitness identification.

{¶ 41} As this Court has previously noted:

“Appellate courts give great deference to the factual findings of the trier of

facts. (Internal citations omitted) . At a suppression hearing, the trial court serves

as the trier of fact, and must judge the credibility of witnesses and the weight of
 23

the evidence. (Internal citations omitted). The trial court is in the best position to

resolve questions of fact and evaluate witness credibility. (Internal citations

omitted). In reviewing a trial court’s decision on a motion to suppress, an

appellate court accepts the trial court’s factual findings, relies on the trial court’s

ability to assess the credibility of witnesses, and independently determines

whether the trial court applied the proper legal standard to the facts as found.

(Internal citations omitted). An appellate court is bound to accept the trial court’s

factual findings as long as they are supported by competent, credible evidence.”

State v. Hurt, Montgomery App. No. 21009, 2006-Ohio-990.

State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.

{¶ 42} R.C. 2933.83, which became effective on July 6, 2010, provides in relevant part

as follows:

(A) As used in this section:

(1) “Administrator” means the person conducting a photo lineup or live lineup.

(2) “Blind administrator” means the administrator does not know the identity of

the suspect. “Blind administrator” includes an administrator who conducts a photo

lineup through the use of a folder system or a substantially similar system.

(3) “Blinded administrator” means the administrator may know who the suspect

is, but does not know which lineup member is being viewed by the eyewitness.

“Blinded administrator” includes an administrator who conducts a photo lineup

through the use of a folder system or a substantially similar system.

***
 24

(B) Prior to conducting any live lineup or photo lineup on or after the

effective date of this section, any law enforcement agency or criminal justice

entity in this state that conducts live lineups or photo lineups shall adopt specific

procedures for conducting the lineups. The procedures, at a minimum, shall

impose the following requirements:

(1) Unless impracticable, a blind or blinded administrator shall conduct the live

lineup or photo lineup.

(2) When it is impracticable for a blind administrator to conduct the live lineup or

photo lineup, the administrator shall state in writing the reason for that

impracticability.

(3) When it is impracticable for either a blind or blinded administrator to conduct

the live lineup or photo lineup, the administrator shall state in writing the reason

for that impracticability.

(4) The administrator conducting the lineup shall make a written record that

includes all of the following information:

(a) All identification and nonidentification results obtained during the lineup,

signed by the eyewitnesses, including the eyewitnesses’ confidence statements

made immediately at the time of the identification;

(b) The names of all persons present at the lineup;

(c) The date and time of the lineup;

(d) Any eyewitness identification of one or more fillers in the lineup;

(e) The names of the lineup members and other relevant identifying information,
 25

and the sources of all photographs or persons used in the lineup.

(5) If a blind administrator is conducting the live lineup or the photo lineup, the

administrator shall inform the eyewitness that the suspect may or may not be in

the lineup and that the administrator does not know who the suspect is.

(C) For any photo lineup or live lineup that is administered on or after the

effective date of this section, all of the following apply:

(1) Evidence of a failure to comply with any of the provisions of this section or

with any procedure for conducting lineups that has been adopted by a law

enforcement agency or criminal justice agency pursuant to division (B) of this

section and that conforms to any provision of divisions (B)(1) to (5) of this section

shall be considered by trial courts in adjudicating motions to suppress eyewitness

identification resulting from or related to the lineup.

(2) Evidence of a failure to comply with any of the

provisions of this section or with any

procedure for conducting lineups that

has been adopted by a law

enforcement agency or criminal

justice agency pursuant to division

(B) of this section and that conforms

to any provision of divisions (B)(1)

to (5) of this section shall be

admissible in support of any claim of
 26

eyewitness misidentification

resulting from or related to the lineup

as long as that evidence otherwise

is admissible.

(3) When evidence of a failure to comply with any of the provisions of this

section, or with any procedure for conducting lineups that has been adopted by a

law enforcement agency or criminal justice agency pursuant to division (B) of this

section and that conforms to any provision of divisions (B)(1) to (5) of this

section, is presented at trial, the jury shall be instructed that it may consider

credible evidence of noncompliance in determining the reliability of any

eyewitness identification resulting from or related to the lineup.

{¶ 43} As this Court noted in State v. Taylor, 2d Dist. Montgomery No. 22232,

2008-Ohio-6048, ¶ 12:

“In order to justify suppressing a pretrial identification, a defendant must

demonstrate (1) that the identification procedure used was so impermissibly

suggestive as to give rise to a very substantial likelihood of misidentification, and

(2) that the identification in fact was unreliable under the totality of the

circumstances. State v. Gooden, Montgomery App. No. 19231, 2003-Ohio-905;

Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. In other

words, even if an identification procedure was overly suggestive, the identification

remains admissible if sufficient evidence of reliability exists. A determination of

reliability is unnecessary, however, where an identification procedure was not
 27

unduly suggestive. State v. Glass (March 9, 2001), Greene App. No.2000 CA 74.”

State v. Green, Montgomery App. No. 19224, 2003-Ohio-5744, ¶ 5.

If the pretrial confrontation procedure was not unduly suggestive, any remaining questions as to

reliability go to the weight of the identification, not its admissibility * * * . State v. Parrish, 2d

Dist. Montgomery No. 21091, 2006-Ohio-2677, ¶ 35.

{¶ 44} We note that Biggers involved a station house show-up identification, and the

Biggers Court determined:

the factors to be considered in evaluating the likelihood of misidentification

include the opportunity of the witness to view the criminal at the time of the

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. Id., 199.

{¶ 45} We note that on February 8, 2013, this Court affirmed the judgment of the trial

court relating to Earl Moon who, like Simpson, asserted on appeal that the trial court erred in

overruling his motion to suppress eyewitness identification evidence. State v. Moon, 2d Dist.

Montgomery No. 25061, 2013-Ohio-395. Therein we noted as follows:

Significantly, although R.C. 2933.83(C)(1) provides that the trial court

must consider non-compliance with the provisions of the statute in adjudicating a

motion to suppress eyewitness identification testimony, it does not provide that

non-compliance, by itself, requires suppression of the testimony. In dictum, we

have said that the “penalty” for failure to comply with the statute is not
 28

suppression, but the other remedies provided for in the statute. State v.

Stevenson, 2d Dist. Montgomery No. 24821, 2012-Ohio-3396, ¶ 16, citing State v.

Ruff, 1st. Dist. Hamilton No. C-110250, 2012-Ohio-1910, which, at ¶ 7, holds that

the statute “does not provide an independent ground for suppression[.]” Moon, ¶

28.

{¶ 46} As we did in Moon, we find that the failures of the officers to comply with R.C.

2933.83, does not, by itself, require suppression of the evidence and, as in Moon, the issue is then

“whether the identification procedure used was so impermissibly suggestive as to give rise to a

very substantial likelihood of misidentification.” Moon, ¶ 30, citing Taylor and Biggers.

{¶ 47} We initially note that the trial court found the testimony of the witnesses at the

suppression hearing to be credible, and we defer to the trial court’s assessment of credibility and

conclusion that the officers did not in any way suggest Simpson’s identity to any of the witnesses.

Rose stated that she used the JusticeWeb system to randomly select photos of men with similar

identifiers, and that she selected five photos “who I feel are like and similar to Simpson.” Of the

12 witnesses who viewed Simpson’s photo spread, three witnesses could not identify Simpson,

and one identified Simpson and another individual and could not make a definitive identification

between them, supporting Rose’s assertion that she chose photos with identifiers similar to those

of Simpson. Rose put each suspect’s photo in a different position in the arrays to discourage the

focus on one position. The identifications were conducted primarily in one day, and the

witnesses were instructed not to discuss their identifications with other witnesses. The

administrators did not confirm any of the identifications, although the statue permits confirmation

after the photo lineup is completed.
 29

{¶ 48} Finally, the color photo-spread used to identify Simpson is before us, and we

have examined it. The filler photographs are similar to Simpson’s. While Simpson’s photo

reveals an uneven hairline, the hairlines in the other photographs are as Rose described at the

suppression hearing, and we conclude that the trial court correctly concluded that the photo

spread was not unduly suggestive, despite “the particular difficulties created by Mr. Simpson’s

hairline.”

{¶ 49} As did the trial court, and as did this Court in Moon, we conclude that the

procedure used in administering the photo-spreads in this case, while not in compliance with

R.C. 2933.83, was “not so impermissibly suggestive as to give rise to a substantial likelihood of

misidentification” and that, accordingly, we need not proceed to the second step of the analysis,

namely “whether the identifications were unreliable under the totality of the circumstances.”

Moon, ¶ 35.

{¶ 50} As to Simpson’s argument regarding the jury instructions, we note that counsel

for Simpson did not propose an alternative instruction at trial. The court instructed the jury, in

accordance with the mandate in R.C. 2933.83(C)(3), that it may consider the administrators’

noncompliance with the statute. Pursuant to Ohio Jury Instructions, section 409.05(5), since

the identification procedure used by the administrators was not unduly suggestive such that due

process concerns are implicated, the court correctly instructed the jury that any remaining

questions of reliability go to the weight to be given to the identification. There being no merit

to Simpson’s first assigned error, it is overruled.

{¶ 51} Simpson’s second assigned error is as follows:

“THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
 30

SUPPRESS HIS STATEMENTS AS HIS MIRANDA WARNINGS WERE IMPROPERLY

ADMINISTERED, RENDERING HIS STATEMENTS INADMISSIBLE.”

{¶ 52} Simpson asserts that the “manner of the interrogation renders any waiver

involuntary, unintelligent and coerced,” and that his Miranda warnings “were stale.” He directs

our attention to State v. Waldo, 2d Dist. Montgomery No. 99CA24, 2001-Ohio-1349, (2001 WL

1103330). Therein we noted as follows:

A suspect's decision to waive his Fifth Amendment privilege against

self-incrimination is made voluntarily absent evidence that his will was overborne

and his capacity for self-determination was critically impaired because of coercive

police conduct. State v. Otte (1996), 74 Ohio St.3d 555; State v. Petitjean (2000),

140 Ohio App.3d 517. Coercive police activity is a necessary predicate to finding

a confession involuntary within the meaning of the Due Process Clause of the

Fourteenth Amendment. State v. Wiles (1991), 59 Ohio St.3d 71.

The voluntary nature of a defendant's statement is determined from the

totality of the circumstances. State v. Slagle (1992), 65 Ohio St.3d 597; State v.

Treesh (2001), 90 Ohio St.3d 460. A confession is involuntary if, on the totality of

the circumstances, the defendant's will was overborne by the circumstances

surrounding his giving of the confession. Dickerson v. United States (2000), 530

U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405; Petitjean, supra.

The totality of the circumstances test takes into consideration both the

characteristics of the accused and the details of the interrogation. Petitjean, supra.

Factors to be considered include the age, mentality and prior criminal experience
 31

of the accused; the length, intensity and frequency of interrogation; the existence

of physical deprivation or mistreatment; and the existence of threat or inducement.

State v. Edwards (1976), 49 Ohio St.2d 31. Use of deceit by the interrogating

police officers and misrepresentations made to the suspect about the evidence

police possess do not per se render a confession involuntary, per se. Rather, it is

but one factor bearing on voluntariness. State v. Cooey (1989), 46 Ohio St.3d 20.

***

Whether an accused's confession was voluntary for purposes of the Fifth

Amendment presents a question of law. An appellate court reviews that issue de

novo, not being bound by the trial court's judgment on the same legal issue. The

appellate court must give strong deference to the trial court's findings of the facts

which underlie a claim of involuntariness. Waldo, * 3, *4.

{¶ 53} This Court further noted in Waldo as follows:

Miranda warnings do not foreclose a further inquiry whether a defendant’s

will was overborne by the circumstances surrounding the giving of a confession. *

* *. The focus of that inquiry is whether police overreaching during the

interrogation process was such as to overbear the defendant’s will to resist and

bring about a confession which is involuntary because it was not freely

self-determined. * * * . Waldo, *4.

{¶ 54} Waldo appealed from his conviction on two counts of attempted rape, and this

Court determined that his “incriminating statements were rendered involuntary by conduct

which constitutes police overreaching.” Id. Waldo’s interrogation began at 4:30 a.m., and he
 32

was questioned for an hour. At the time, he was intoxicated, tired and disoriented. The police

refused his request to use the bathroom for eight to ten minutes, after he stated that he “had a

strong need to urinate, having been drinking the night before.” Id. An officer lied to Waldo,

stating that a “‘hand test’” could “be used to prove that he had contact with the victim.” This

Court concluded that, given Waldo’s “persistent denial of any recollection of what had happened,

the particular deceit police used in this instance had the capacity to persuade him that maybe their

accusations were true, even if he did not know whether they were.” Id., * 5. Finally, Waldo

was 20 years old and “had no prior contact with the criminal justice system.” Id. This Court

concluded, under the totality of the circumstances, that Waldo’s statements were involuntary, that

“their use by the State to convict him was a violation of his rights of due process guaranteed by

the Fourteenth Amendment,” and that the trial court accordingly erred in denying Waldo’s

motion to suppress.

{¶ 55} Regarding the alleged staleness of the Miranda warnings, this Court previously

noted:

“Because custodial interrogation is inherently coercive, incriminating

statements which are the product of such questioning are not admissible unless

[Miranda] warnings precede that questioning. Miranda v. Arizona (1966), 384

U.S. 436. Those warnings are indispensable in overcoming the pressures of

custodial interrogation and insuring that the individual knows he is free to exercise

his right to remain silent at that time. Id. This suggests that the warnings should be

sufficiently proximate in time and place to any interrogation so as to preserve the

relief from custodial pressures that the warnings are intended to create. State v.
 33

Butler (September 18, 1998), Montgomery App. No. 16852, unreported. When an

individual to whom prior [Miranda] warnings were properly given is subsequently

interrogated without being re-advised of his [Miranda] rights, the critical issue is

whether that individual nevertheless remained aware of his rights at the time of the

subsequent interrogation. [Butler, supra.] In making that determination, courts

must consider the totality of the circumstances, including:

“(1) [T]he length of time between the giving of the first warnings and

subsequent interrogation, * * * (2) whether the warnings and the subsequent

interrogation were given in the same or different places, * * * (3) whether the

warnings were given and the subsequent interrogation conducted by the same or

different officers, * * * (4) the extent to which the subsequent statement differed

from any previous statements; * * * [and] (5) the apparent intellectual and

emotional state of the suspect. State v. Roberts (1987), 32 Ohio St.3d 225, 232.”

State v. Parrish, 2d Dist. Montgomery No. 21091, 2006-Ohio-2677, ¶ 26-27.

{¶ 56} Gaier interviewed Simpson regarding the unrelated robbery after advising him of

his rights at 11:37 p.m. on December 27, 2010, following his arrest, and he defined the word

“coercion” for him. Simpson initialed each right to indicate his understanding thereof, and Gaier

stated that Simpson agreed to speak to him and Ritchey. The interview lasted over half an hour.

Just 25-45 minutes thereafter, Gaier assisted Ferguson in interviewing Simpson, and he testified

that Ferguson ascertained from Simpson that he understood his rights as previously read to him at

the start of the interview, and that Ferguson advised him that the interview pertained to the

instant matter. Gaier stated that the second interview lasted “around 20 minutes,” and that
 34

Simpson was offered water and restroom breaks, and that he was cooperative and coherent.

Gaier stated that Simpson did not ask for a break or indicate fatigue in either interview, and that

he did not ask for an attorney. Gaier stated that neither threats nor promises were made to

Simpson in exchange for his statements.

{¶ 57} Rose made clear that in her interview of Simpson on December 28, 2010, which

occurred at 10:50 a.m., that Simpson was offered water and an opportunity to use the bathroom.

Simpson indicated to her that he had previously been read his rights. Rose read each right to

Simpson, which he individually initialed to indicate his understanding thereof. She read the

waiver of rights, and she defined the term “coercion” for him. The interview lasted for an hour

and twenty-two minutes. Having thoroughly reviewed the record, we conclude that there is

nothing herein to suggest police overreaching, or that Simpson’s will was overborne, as in

Waldo.

{¶ 58} Finally, regarding Simpson’s Miranda warnings, it is clear that he was initially

advised of his rights by Gaier, Ferguson ascertained Simpson’s understanding thereof before

proceeding with the second interview shortly thereafter, and Rose thoroughly advised Simpson of

his rights again the following day. In other words, Simpson’s Miranda warnings were

sufficiently proximate in time and place to his interrogations. There being no merit to

Simpson’s second assigned error, it is overruled.

{¶ 59} Simpson’s third assigned error is as follows:

“APPELLANT’S CONVICTIONS WERE NOT SUPPORTED BY THE EVIDENCE.”

{¶ 60} Simpson asserts that the trial court erred in overruling his Crim.R. 29 motion for

acquittal “as there was insufficient evidence to support a conviction of murder and aggravated
 35

robbery,” and that his convictions “were against the manifest weight of the evidence.”

Specifically, Simpson asserts that inconsistencies in the testimony of Dentel, Peek and Dillard

“affected the sufficiency of the evidence.”

{¶ 61} As this Court has previously determined:

A Crim.R. 29 motion for judgment of acquittal challenges the legal

sufficiency of the evidence. State v. Carter, Montgomery App. No. 21145,

2006-Ohio-2823, ¶ 40. When considering such a motion, a trial court must

construe the evidence in a light most favorable to the State and determine whether

reasonable minds could reach different conclusions about whether the evidence

proves each element of the offense charged beyond a reasonable doubt. If a

rational trier of fact could find the essential elements of the crime to be proven

beyond a reasonable doubt, a defendant is not entitled to acquittal under Crim.R.

29. Carter, supra, at ¶ 41. State v. Turic, 2d Dist. Montgomery Nos. 21453,

21454, 2006-Ohio-6664, ¶ 13.

{¶ 62} As this Court has further previously noted:

When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether,

in resolving conflicts in the evidence, the trier of fact “clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.” * * * A judgment should be reversed as being against the

manifest weight of the evidence “only in the exceptional case in which the
 36

evidence weighs heavily against the conviction.” * * * State v. Hammock, 2d Dist.

Montgomery No. 24664, 2012-Ohio-419, ¶ 12.

{¶ 63} R.C. 2911.01 provides:

(A) No person, in attempting or committing a theft offense, as defined in

section 2913.01 of the Revised Code, or in fleeing immediately after the attempt

or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the

offender's control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it; . . . .

{¶ 64} R.C. 2903.02(B) provides: “No person shall cause the death of another as a

proximate result of the offender's committing or attempting to commit an offense of violence that

is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04

of the Revised Code.”

{¶ 65} While we agree that there were inconsistencies in the testimony of the above

witnesses regarding for instance the locations of the three young men within the bar, the time of

the shooting, and the language used by the men, these differences did not require the jury to

discredit the witnesses’ testimony that Simpson participated in the robberies and murders of

Sanders and Carter at Hank’s. Dentel, although acknowledging her drug and alcohol usage,

recollected many facts consistent with other witnesses, and she was within arm’s length of

Simpson when she served him bottles of Bud Ice three separate times. Annette Davis testified

that Simpson’s DNA was found on two bottles of Bud Ice retrieved from the crime scene. Dentel

stated that Simpson shot Sanders, pointed a gun at her, and took money from behind the bar. She
 37

stated that she was focused on Simpson when he pointed the gun at her. Officer Heyob

described Dentel as “very helpful” after the shooting, and he stated that she “kept her cool.”

Gaier stated that Dentel’s pretrial identification of Simpson in the photo spread as “the one who

shot Hank” was immediate and unwavering. Gaier testified to the manner in which the photo

spreads were assembled, randomly, by means of JusticeWeb, with color photos, as well as their

almost simultaneous administration, so as to prevent eyewitnesses from consulting with one

another. Rose stated that she chose photos that resembled the suspects for the photo spreads in

an attempt to make identification difficult, and as noted above, Simpson’s photo spread supports

Rose’s testimony.

{¶ 66} Peek also stated that she observed Simpson shoot Sanders. When asked about

the location of the three young men within the bar in the course of the incident, Peek

acknowledged that she was looking at pictures on the wall and that, while her version of the

details of the incident may not have been entirely consistent with other witnesses, she was “a

hundred percent sure” that she saw Simpson fire a weapon. We note that State’s Exhibits 30, 33

and 36, which are photos of the bar area, reveal a cramped space and walls covered in

photographs. Peek’s testimony was consistent with Dentel’s regarding Simpson’s dark clothing,

hairstyle and hat. Phillips stated that Peek’s pretrial identification of Simpson in the photo spread

was unwavering.

{¶ 67} Dillard testified that she passed Simpson on her way to the main bar, and that she

looked at his face as she did so. Her testimony regarding his complexion, hat and hairstyle was

consistent with Dentel’s and Peek’s. She also stated that she observed Simpson shoot Sanders

and demand money from Dentel, as well as Barney, and that Simpson ordered everyone to the
 38

floor and demanded their money. Phillips stated that Dillard’s pretrial identification of Simpson

was unwavering.

{¶ 68} Having reviewed the entire record, we conclude that the evidence herein does

not weigh heavily against conviction, and that Simpson’s conviction is supported by sufficient

evidence. Simpson’s third assigned error is overruled, and the judgment of the trial court is

affirmed.

..........

HALL, J., concurs.

FROELICH, J., concurring:

{¶ 69} The trial court gave the general credibility instruction and Ohio Jury Instruction

409.05(5) regarding eyewitness testimony. The court also used the language of R.C.

2933.83(C)(3) to inform the jury that the failure to use a blind or blinded administrator violated

that section and that the jury could consider the noncompliance in determining the reliability of

the eyewitnesses.2 However, the court further instructed the jury that the “procedure used by

police officials to show that photo line-up to the witnesses complied with the requirements of the

United States Constitution and the Constitution of the State of Ohio.”

{¶ 70} The intent of R.C. 2933.83 is to help ensure that the accused is convicted based

on eyewitness identification only if the eyewitness testimony should be believed beyond any

reasonable doubt. See, e.g., United States v. Smithers, 212 F.3d 306 (6th Cir.2000) for a

discussion of the “dangers” of eyewitness identification. However, the mere incantation that the

2
Consistent with R.C. 2933.83, 2 Ohio Jury Instructions, Section 409.05(6) (2012) states that the jury may consider
noncompliance with live or photo lineup procedures, but those instructions had not been adopted when Simpson was tried.
 39

jury may consider noncompliance is illusory; without additional information as to why that

noncompliance is relevant, such an instruction has questionable force. Moreover, the court’s

subsequent statement that the court has determined that the procedures complied with the

Constitution could render even that instruction meaningless in the mind of the average jury.

{¶ 71} The jury was not told why the legislature mandates the use of a blind or blinded

administrator or how non-compliance could affect the reliability of the eyewitness identification,

only that this non-use was somehow in violation of some statute. And then it was told, in

essence, that it is all okay because the judge found it complied with the Constitution.

{¶ 72} At the same time, it is not required in our adversary system that the court,

especially absent a supportable, requested instruction, educate the jury on the science underlying

R.C. 2933.83. Ideally, if warranted, the accused would call an expert on eyewitness reliability or

otherwise bring the rationale for R.C. 2933.83 to the jury’s attention. The State of Maryland’s

highest court noted that “expert testimony is not the only means to educate juries about the

vagaries of eyewitness testimonies and safeguard against wrongful convictions based on

misidentification.” Bomas v. State, 412 Md. 392, 987 A.2d 98 (2010). The Bomas court even

suggested that Marylard evaluate its current pattern jury instructions involving eyewitness

testimony “in light of the studies about eyewitness testimony, and the separate advances in the

area,” as other states have done. Id. at 418. See, e.g., N.J. Crim. Model Charges, Identification

(effective Sept. 4, 2012).

{¶ 73} But it takes a leap of faith that our legal argot – e.g., the difference, if any, among

trustworthiness, reliability, credibility, and believability, or the difference between a statutory and

constitutional requirement – is truly appreciated by a jury.
 40

{¶ 74} Nonetheless, the court complied with the law, and I concur in the affirmance.

..........

Copies mailed to:

Kirsten A. Brandt
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Michael L. Tucker