Opinion
No. 109060
03-18-2021
STATE OF OHIO, Plaintiff-Appellee, v. JAMES M. HARRIS, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Eben McNair, Assistant Prosecuting Attorney, for appellee. Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-630619-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Eben McNair, Assistant Prosecuting Attorney, for appellee. Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant. EMANUELLA D. GROVES, J.:
{¶ 1} Defendant-appellant, James M. Harris ("Harris"), appeals his convictions following a bench trial. For the reasons set forth below, we affirm.
{¶ 2} In July 2018, a grand jury indicted Harris on two counts of attempted murder, two counts of felonious assault, two counts of improperly handling firearms in a motor vehicle, one count of discharge of firearm on or near prohibited premises, and one count of failure to comply. All counts had one-, three-, five-, and seven-year firearm specifications attached. The grand jury also indicted Harris on one count of having weapons while under disability. Harris pled not guilty at his arraignment; several pretrials were conducted, and after Harris waived his right to a jury trial, a bench trial commenced on May 9, 2019.
{¶ 3} Patrolman Ian McInnes ("Patrolman McInnes"), of the East Cleveland Police Department, testified at trial that on June 25, 2018, at approximately 3:30 a.m., he and Patrolman Donald Clayton ("Patrolman Clayton") were engaged in daily patrol. According to Patrolman McInnes, they were traveling east on Euclid Avenue, after clearing an unrelated traffic stop, when they observed a Mitsubishi Galant traveling west on Euclid Avenue with the driver's side headlight out and with a missing front license plate. As both vehicles crossed the intersection of Euclid Avenue and Taylor Road that Patrolman McInnes described as very well-lit, he made eye contact with the driver of the Mitsubishi and could see him clearly.
{¶ 4} Intending to issue a citation for the missing headlight and missing license plate, Patrolman McInnes made a U-turn, activated the emergency lights and siren to signal the driver to stop. The driver of the Mitsubishi failed to stop or yield and instead turned north onto Coit Road and continued driving north towards East 152nd Street in the city of Cleveland. As the Mitsubishi gained speed and continued to pull away, the driver opened the driver's side door and fired about four rounds, from what appeared to be a handgun, at the police cruiser. As the Mitsubishi continued north, the driver fired six more rounds at the cruiser before turning north onto Woodworth Avenue.
{¶ 5} The pursuit continued without the officers ever returning fire. The Mitsubishi turned left onto East 145th Street, up Dover Avenue and down East 146th Street, where the driver exited the vehicle and fled north through a vacant lot. The officers attempted to engage in foot pursuit, but a female passenger exited the vehicle, prompting them to direct their attention to her, in case she was armed and dangerous. The passenger was later identified as Stephanie Quinones ("Quinones"). The vehicle was searched, but no weapons were found. Other units responded and were advised that the suspect was possibly still armed.
{¶ 6} Patrolman McInnes testified that while still on scene, a sergeant from the Cleveland Police Department pulled up a series of pictures from the Bureau of Motor Vehicles ("BMV") on his mobile data terminal. No names were associated with the pictures on the data terminal. Patrolman McInnes testified he identified the suspect from the series of pictures on the terminal.
{¶ 7} Patrolman McInnes testified that although he and Patrolman Clayton were equipped with body cameras and the cruiser was equipped with a dash camera, there is no footage of the events. Patrolman McInnes elaborated that his body camera did not activate, although he had attempted to turn it on as they were coming under fire from the fleeing suspect. Regarding the dash camera, Patrolman McInnes indicated that the equipment frequently malfunctions. He added that there are days when the unit will go down within the first hour of the shift.
{¶ 8} Patrolman Clayton also testified at the trial. According to Patrolman Clayton, when he and Patrolman McInnes observed the Mitsubishi with one headlight and missing front plate, they intended to only issue a citation. Patrolman Clayton stated that when the light turned green and their vehicles were passing each other, "the driver looked over at our cruiser, and it was sort of one of those awkward stare downs, slow motion head turning. He stared at us and we stared at him." Tr. 198. Upon attempting to initiate the traffic stop, the driver of the Mitsubishi failed to stop, prompting Patrolman Clayton to radio dispatch of a possible pursuit.
{¶ 9} Once the vehicle turned off Euclid Avenue, the driver leaned his torso, along with a firearm out the driver's side door and fired multiple shots at the cruiser. Patrolman Clayton radioed dispatch that gunshots were being fired at the cruiser, informed them of the direction of travel and of the vehicle's license plate. The vehicle continued accelerating, and the driver fired several more rounds before turning onto East 145th Street and hitting a wooden pole. The driver exited the vehicle, raised the barrel of the gun towards the cruiser, then fled through a wooded field. Based on concerns for officers and citizens, the decision was made not to pursue the suspect into the wooded field.
{¶ 10} Patrolman Clayton testified that the day after the incident, he noticed that there was a picture of Harris in the "wanted" poster on the wall of the East Cleveland Police Department. Patrolman Clayton also testified about the lack of footage from either his body camera or the dash camera. According to Patrolman Clayton, he attempted to turn on his body camera, but once the driver began firing at the cruiser, he became focused on the muzzle flash to avoid them being struck, so he did not check to see if it was activated. Regarding the dash camera, Patrolman Clayton testified that he was very new to the East Cleveland Police Department at the time of the incident and had not yet been trained on operating the dash camera that is located within the computer in the cruiser.
{¶ 11} The state presented evidence that police units from the city of Cleveland, as well as a K-9 unit from the city of Shaker Heights responded to the scene to assist the East Cleveland police officers. After a search of the surrounding area, the officers found two spent shell casings, a black Bic cigarette lighter, and a black Samsung cellular phone. A search of the vehicle revealed a variety of damage consistent with outgoing gunfire, including a shattered driver's-side-rear window and several bullet holes. A case for a Glock 22 .40-caliber handgun was found in the vehicle, along with a number of unfired Federal-brand .40 cartridge, as well as an ammunition magazine.
{¶ 12} Quinones, the passenger in the Mitsubishi, testified at trial. Quinones, who acknowledged she suffered from bipolar and schizoaffective disorders and was not compliant with her medications and that she was abusing illicit drugs at the time of the incident, testified that she was reluctant to identify Harris at the time of the incident and was reluctant to testify in court.
{¶ 13} Quinones testified that she knew Harris, but when questioned at the scene, she told the police his name was "Cal" and intentionally circled the wrong picture when she was first shown a photo array. Quinones testified that after about an hour in custody, she told the officers that she knew Harris as "Mastir" and then pointed to Harris's picture in the photo array. Quinones identified Harris at trial and testified that Harris was the person she knew as "Mastir" who was driving the car in which she was a passenger.
{¶ 14} Hristina Lekova ("Lekova"), a DNA expert from the Cuyahoga County Regional Scientific Laboratory, testified that four items of evidence were submitted to the laboratory for testing. The items consisted of blind swabs for DNA from the driver's side interior of the vehicle, from the vehicle's steering wheel, from the vehicle's gear shifter, and a buccal swab from Harris.
{¶ 15} Lekova testified that after analyzing the items, it was determined that the DNA profile obtained from the blind swab of the driver's side interior of the vehicle was from a single source that matched the buccal swab from Harris. The match to Harris was 522 million times more probable than a coincidental match to an unrelated African-American person, 389 million times more probable than a coincidental match to an unrelated Caucasian person, and 1.54 billion times more probable than a coincidental match to an unrelated Hispanic person.
{¶ 16} Lekova testified that the DNA profile obtained from the blind swab of the steering wheel of the vehicle was a mixture, and a likelihood ratio was calculated assuming the swab contained DNA from three unknown contributors. Lekova testified that there was a match between the DNA from the steering wheel and the buccal swab from Harris. The match with Harris was 29.4 million times more probable than a coincidental match to an unrelated African-American person, 1.81 septillion times more probable than a coincidental match to an unrelated Caucasian person, and 17.6 septillion times more probable than a coincidental match to an unrelated Hispanic person.
{¶ 17} Lekova testified that the DNA profile obtained from the blind swab of the gear shifter was also a mixture and a likelihood ratio was calculated assuming the swab contained DNA from three unknown contributors. Lekova testified that there was a match between the DNA from the gear shifter and the buccal swab from Harris. The match with Harris was 385 trillion times more probable than a coincidental match to an unrelated African-American person, 21.2 trillion times more probable than a coincidental match to an unrelated Caucasian person, and 150 trillion times more probable than a coincidental match to an unrelated Hispanic person.
{¶ 18} At the close of the state's case, the defense made a Crim.R. 29 motion for acquittal that the trial court denied. After closing arguments, the trial court found Harris guilty of all charges. On September 14, 2019, the trial court sentenced Harris to a total prison term of 17 years and nine months.
{¶ 19} Harris now appeals, assigning the following two errors for review:
Assignment of Error One
Mr. Harris received ineffective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution because his trial counsel failed to file and litigate a motion to suppress his identification as the perpetrator in this case.
Assignment of Error Two
Mr. Harris's convictions violate his right to due process because they are contrary to the weight of the evidence.
{¶ 20} In the first assignment of error, Harris argues he was deprived of his constitutional right to effective assistance of counsel. Harris contends his defense counsel was deficient for failing to file a motion to suppress the officers' pretrial identification of him as the person driving the vehicle. We disagree.
{¶ 21} To establish a claim of ineffective assistance of counsel, Harris must demonstrate (1) his counsel was deficient in some aspect of his representation, and (2) there is a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, "the failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel." In re S.A., 8th Dist. Cuyahoga No. 107707, 2019-Ohio-4782, at ¶ 46, quoting State v. Davenport, 8th Dist. Cuyahoga No. 106143, 2018-Ohio-2933, ¶ 25, citing Strickland at 697.
{¶ 22} Harris hargues defense counsel should have filed a motion to suppress what he deemed suggestive pretrial identification procedures. Among other things, Harris takes issue with, (1) Patrolman McInnes identifying him from an array of BMV photographs pulled up on a mobile data terminal at the scene, (2) Patrolman Clayton recognizing him from a "wanted" picture on the wall of the East Cleveland Police Department the following day, and (3) Quinones identifying him from a photo array, after first telling the officers that his name was "Cal" and identifying a different individual.
{¶ 23} Courts determine the admissibility of challenged identification testimony using a two-step process. First, the defendant must demonstrate that the identification procedure was unnecessarily suggestive. If the defendant meets this burden, the court must consider whether the procedure was so unduly suggestive as to give rise to irreparable mistaken identification. State v. Bailey, 8th Dist. Cuyahoga No. 100993, 2014-Ohio-4684, ¶ 49, citing State v. Page, 8th Dist. Cuyahoga No. 84341, 2005-Ohio-1493, ¶ 12. The issue is whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure. Bailey at id., citing State v. Wills, 120 Ohio App.3d 320, 324-325, 697 N.E.2d 1072 (8th Dist.1997), citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
{¶ 24} In assessing the potential for misidentification, courts consider:
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.Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The court must review these factors under the totality of the circumstances. Id.
{¶ 25} Here, both patrolmen testified that they had an opportunity to view Harris when their cruiser was passing opposite the Mitsubishi. Patrolman McInnes testified that as both vehicles crossed the intersection of Euclid Avenue and Taylor Road, he made eye contact with Harris and that he could see Harris clearly. Patrolman McInnes also pointed out that the intersection of Euclid Avenue and Taylor Road was well-lit. For his part, Patrolman Clayton testified that as the vehicles were passing each other, "the driver looked over at our cruiser, and it was sort of one of those awkward staredowns, slow motion head turning. He stared at us and we stared at him." The above testimonies demonstrate that both patrolmen had the opportunity to view Harris at the time of the crime to be able to later identify Harris with the requisite level of certainty.
{¶ 26} As previously noted, Harris also takes issue with Quinones's identification, because she initially identified a different individual. At trial, Quinones provided the reason behind her actions, as follows:
Q: And do you remember being shown a set of photographs of possible suspects?
A: Yes.
Q: And when they showed you a set of photographs, did you circle the person you knew as Mastir?
A: Not the first time.
Q: Why didn't you do it the first time?
A: Well, I just felt like I — wasn't trying to tell. I didn't want to tell, so I pointed at somebody that was not him.
Q: Were you confused at all about who was in the car with you or about what had happened?Tr. 75-76.
A: Not really, no.
Q: You said you didn't want to tell on him?
A: He's a decent person in my eyes. I wasn't pointing him out[.]
{¶ 27} The above excerpt, in addition to providing some insight into Quinones's motivation for intentionally not initially identifying Harris, illustrates that she was not at all confused as to Harris's identity.
{¶ 28} The foregoing evidence, when viewed under the totality of the circumstances, does not indicate that the identification procedure was unduly suggestive or unreliable and a motion to suppress the identification would have been denied. The failure to file a motion to suppress constitutes ineffective assistance of counsel only when the record demonstrates that the motion would have been successful if made. See State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28, citing State v. Finch, 5th Dist. Licking No. 11-CA-114, 2012-Ohio-4727, ¶ 28 ("Failure to file a motion to suppress constitutes ineffective assistance of counsel only if, based on the record, the motion would have been granted."); State v. Giffin, 10th Dist. Franklin No. 12AP-798, 2013-Ohio-5389, ¶18 ("In order to establish ineffective assistance of counsel based upon failure to file a motion to suppress, a defendant 'must prove that there was a basis to suppress the evidence in question.'"), quoting State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35; State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980) ("Where the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file motion.").
{¶ 29} Consequently, the failure to do a futile act cannot be the basis for a claim of ineffective assistance of counsel, nor could such a failure be prejudicial. State v. Nelson, 8th Dist. Cuyahoga No. 104336, 2017-Ohio-5568, ¶ 79, citing State v. Knox 8th Dist. Cuyahoga Nos. 98713 and 98805, 2013-Ohio-1662, ¶ 20, citing State v. Ford, 8th Dist. Cuyahoga Nos. 88946, and 88946, 2007-Ohio-5722, ¶ 9.
{¶ 30} Accordingly, we overrule the first assignment of error.
{¶ 31} In the second assignment of error, Harris argues his convictions were against the manifest weight of the evidence. We disagree.
{¶ 32} "[W]eight of the evidence involves the inclination of the greater amount of credible evidence." State v. Thompkins, 78 Ohio St.3d 380, 768 N.E.2d 541 (1997). Weight of the evidence concerns "the evidence's effect of inducing belief." State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses to determine "'whether in resolving conflicts in the evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."' Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶ 33} Furthermore, "the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. When examining witness credibility, "the choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact." State v. Maldonado, 8th Dist. Cuyahoga No. 108907, 2020-Ohio-5616, ¶ 40, citing State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). The factfinder "is free to believe all, some, or none of the testimony of each witness appearing before it." Maldonado at id., citing State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18.
{¶ 34} Harris's challenge to his convictions is limited to the element of identity. He does not dispute that the state presented substantial competent, credible evidence to prove the other elements of the offenses for which he was convicted beyond a reasonable doubt. We, therefore, limit our analysis to whether the evidence weighed heavily against the trial court's determination that Harris was, indeed, the perpetrator of the enumerated crimes.
{¶ 35} As discussed in the resolution of the first assignment of error, the challenged identification procedure was not unduly suggestive or unreliable. The reliable identification testimony, when viewed in conjunction with the DNA evidence the state presented, through Lekova's testimony, was consistent, competent, credible evidence upon which the trial court could have reasonably found, beyond a reasonable doubt, that Harris was the perpetrator.
{¶ 36} With respect to the DNA evidence, the profile obtained from the blind swab of the driver's side interior of the vehicle was from a single source that matched the buccal swab from Harris. The match to Harris as being more probable than a coincidental match to an unrelated African-American, Caucasian, or Hispanic person ranged between 389 million to 1.54 billion times more probable.
{¶ 37} In addition, the profile obtained from the blind swab of the steering wheel of the vehicle was a mixture containing DNA from three unknown contributors, but there was also a match between the DNA from the steering wheel and the buccal swab from Harris. Although this profile contained a mixture, the numbers representing the match with Harris was just as staggering as those for the driver's-side interior of the vehicle. The profile obtained from the blind swab of the gear shifter was also a mixture containing DNA from three unknown contributors. Yet again, there was a match between the DNA from the gear shifter and the buccal swab from Harris. Again, the numbers were likewise as staggering.
{¶ 38} Nonetheless, Harris finds it incredulous that both patrolmen's body cameras and the patrol car's dash camera were simultaneously inoperable during the incident. That Harris finds the patrolmen's testimonies, in this regard, incredulous, is not lost on this panel. However, the specter of the simultaneous inoperability of these crucial law enforcement devices and the overwhelming DNA evidence, as well as the testimony of Quinones, albeit unwillingly, are all issues that go to credibility. As previously stated, the factfinder "is free to believe all, some, or none of the testimony of each witness appearing before it." State v. Maldonado, 8th Dist. Cuyahoga No. 108907, 2020-Ohio-5616, ¶ 40, citing State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18. Thus, we will not substitute our judgment for that of the factfinder.
{¶ 39} Based on our review of the entire record in this case, weighing the strength and credibility of the evidence presented and the inferences to be reasonably drawn therefrom, we cannot say that the trial court lost its way and created such a manifest miscarriage of justice that Harris's convictions are against the manifest weight of the evidence.
{¶ 40} Accordingly, we overrule the second assignment of error.
{¶ 41} Judgment affirmed.
It is ordered that appellee recover from appellant 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 convictions having been affirmed, any bail pending 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. /s/_________
EMANUELLA D. GROVES, JUDGE ANITA LASTER MAYS, P.J., and
LARRY A. JONES, SR., J., CONCUR