State v. Alford ( 2020 )

[Cite as State v. Alford, 2020-Ohio-1099.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29411
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JERRY D. ALFORD, JR. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 18 02 0431(A)
DECISION AND JOURNAL ENTRY
Dated: March 25, 2020
TEODOSIO, Judge.
{¶1} Appellant, Jerry D. Alford Jr., appeals from his convictions in the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} The 57-year-old victim (“D.A.”) was shot and killed near the Baho Convenience
Store (“the Baho”) in Akron on November 16, 2017. Surveillance video from the Baho that
evening shows D.A. arriving at the store in a black car, entering the store, making a purchase, and
then leaving the store. Two males can be seen entering the store approximately one minute later
and loitering near the door. When D.A. exits the store, one of the men looks out the door toward
him, and then both men follow out after him as he heads down nearby Oakdale Avenue toward his
home. D.A. was shot and killed on Oakdale shortly thereafter, although no one witnessed the
actual murder and no surveillance footage of the shooting exists.
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{¶3} According to Detective Richard Doney of the Akron Police Department, several
people came forward in the following days with information regarding the crime. T.T. contacted
the police to inform them that he was friends with D.A. and he had seen a man he knew as “Rollie”
hiding outside of D.A.’s apartment days before the murder. T.T. spoke to Rollie, and Rollie said
he was going to shoot the man who lives there. Knowing that D.A. lived there, T.T. was able to
convince Rollie to simply walk away instead. When shown a still photograph of Mr. Alford taken
from the Baho surveillance footage, T.T. identified him as the man he knew as Rollie. Next, D.A.’s
cousin (“W.A.”) told police that he ran into D.A. at a local pharmacy on the day of the murder.
W.A. agreed to give D.A. a ride home and, during that ride, D.A. asked W.A. if he had a gun he
could borrow because he encountered a man standing outside of his apartment that morning who
threatened to shoot him. D.A. asked to be dropped off at the Baho near his home, and when the
men pulled into the Baho parking lot D.A. pointed to a man standing outside of the store wearing
a gray hat and said, “There’s the guy right there who threatened to shoot me.” When shown still
photographs of two men taken from surveillance footage, W.A. identified Mr. Alford in one of the
photos as the man D.A. said had threatened to shoot him that morning. Finally, the victim’s
neighbor (“T.W.”) told police that she was familiar with a man named “Rollie” and had heard that
Rollie was the one who shot D.A. When shown the still photograph of Mr. Alford from the
surveillance footage, she identified him as the man she knew as Rollie.
{¶4} Other evidence connected Mr. Alford to the murder as well, including saliva or spit
found at the crime scene matching Mr. Alford’s DNA and a cell phone found in front of D.A.’s
Oakdale apartment containing Mr. Alford’s DNA and account information. When police
interviewed Mr. Alford, he admitted to being in and out of the Baho several times that night while
looking for his cell phone. When police interviewed the other man seen with Mr. Alford in the
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video (“D.M.”), he admitted that he was at the Baho with “Rollie” that night. Mr. Alford was
arrested and charged with aggravated murder and other offenses, while D.M. was charged with
crimes related to the murder.
{¶5} Mr. Alford filed a motion to suppress, which the trial court denied after a hearing.
Prior to trial, one count of aggravated robbery with a firearm specification was dismissed. After a
jury trial, Mr. Alford was found guilty of an amended count of murder with a firearm specification
and one count of having weapons while under disability. The jury found him not guilty of one
count of aggravated murder with a firearm specification. The trial court sentenced Mr. Alford to
life in prison with parole eligibility after 15 years for the crime of murder, 3 years mandatory
prison for the attendant firearm specification, and 3 years prison for having weapons while under
disability, all to be served consecutively to each other. Mr. Alford filed a timely motion for a new
trial, which the trial court denied.
{¶6} Mr. Alford now appeals from his convictions and raises two assignments of error
for this Court’s review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS
{¶7} In his first assignment of error, Mr. Alford argues that the trial court erred in
denying his motion to suppress. We disagree.
{¶8} The Supreme Court of Ohio has stated:
Appellate review of a motion to suppress presents a mixed question of law and fact.
When considering a motion to suppress, the trial court assumes the role of trier of
fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses. Consequently, an appellate court must accept the trial
court’s findings of fact if they are supported by competent, credible evidence.
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Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.
(Citations omitted.) State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8.
{¶9} Mr. Alford filed a motion to suppress the witness identifications of him, which were
secured through the use of still photographs taken from the Baho surveillance video footage. He
argued that the pretrial identification process and procedure used by police were so impermissibly
suggestive as to give rise to a substantial likelihood of irreparable misidentification in violation of
his due process rights. At the suppression hearing, he argued that the police should have used a
standard photo array, as the process actually employed by police was unduly suggestive.
{¶10} The trial court held a suppression hearing and later denied Mr. Alford’s motion. In
a journal entry filed on February 26, 2019, the court stated the motion to suppress was denied
based on the findings of fact and conclusions of law it stated on the record at the February 25,
2019, final pretrial. At that pretrial hearing, the court made the following findings of fact. T.T.
identified Mr. Alford to Detective Doney by his nickname, “Rollie.” He told the detective he was
friends with Rollie, he heard Rollie make some threats in the days prior to the victim’s death, and
he saw Rollie hiding in the bushes outside of the victim’s home. T.T. also claimed he tried to
persuade Rollie not to shoot the victim. W.A. told Detective Doney that D.A. pointed at Mr.
Alford outside of the Baho and identified him as the person who had threatened to kill him. T.W.
told Detective Doney that she saw Mr. Alford outside of D.A.’s home on a regular basis prior to
the killing. The court found that all three witnesses were familiar with Mr. Alford prior to
confirming his identity in the photograph from the surveillance video. All three had the
opportunity to visually see Mr. Alford and had distinct memories of him prior to any identification
of him. In considering the totality of the circumstances, the trial court concluded that the
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identifications were reliable, as the witnesses identified Mr. Alford to police merely days after the
crime in a manner which was not impermissibly suggestive and did not give rise to any irreparable
misidentification.
{¶11} After a complete review of the suppression hearing transcript, this Court accepts
the trial court’s findings of fact as supported by competent, credible evidence. Accepting those
findings as true, we must now independently determine, without deference to the conclusion of the
trial court, whether those facts satisfy the applicable legal standard. See Burnside at ¶ 8.
{¶12} “A photographic identification procedure is violative of due process of law only if
it was ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.’” State v. Putnam, 9th Dist. Summit No. 20629, 2002 WL 274459, *2 (Feb. 27,
2002), quoting Simmons v. United States, 390 U.S. 377, 384 (1968). “The rationale for excluding
a tainted pretrial identification is to protect the defendant from misconduct by the state.” State v.
Brown, 38 Ohio St. 3d 305, 310 (1988). When determining whether identification procedures are
unnecessarily suggestive such that due process requires suppression of the identification, we
engage in a two-part analysis: (1) We first determine whether the identification procedure was
unnecessarily suggestive; and (2) if so, we determine whether the identification was ultimately
unreliable under all of the circumstances. State v. Turner, 9th Dist. Summit No. 28775, 2018-
Ohio-3898, ¶ 10. Thus, even if an identification process is unnecessarily suggestive, it does not
violate due process if it possesses sufficient indicia of reliability. State v. Mitchell, 9th Dist.
Summit No. 21413, 2003-Ohio-5614, ¶ 8, citing State v. Parker, 53 Ohio St. 3d 82, 87 (1990). See
also State v. Allen, 73 Ohio St. 3d 626, 634 (1995) (stating that even if the use of a single photo for
identification purposes is suggestive, reliable identification testimony may be admitted regardless
of the flaws in the procedure).
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{¶13} The facts in Mr. Alford’s case are analogous to the facts in our recent decision in
State v. Tyler, 9th Dist. Summit No. 29225, 2019-Ohio-4661. In Tyler, a shooting occurred just
outside of an Akron bar, and police reviewed surveillance footage from the bar. Id. at ¶ 10. They
focused on five unknown individuals, pinpointing one as the shooter, accompanied by four of his
friends, and created still photographs of each man from the security footage. Id. The police
released the stills of the four friends and asked them to come forward, which they all did. Id. Each
of the four men eventually admitted that they knew the fifth man and provided his name as well
as some nicknames. Id. The trial court, in denying a motion to suppress those identifications,
found that the men’s familiarity with Mr. Tyler greatly reduced the chances of a police-induced
improper identification, as did the fact that they were with him immediately before and after the
incident. Id. See also State v. Smith, 11th Dist. Portage No. 2016-P-0074, 2018-Ohio-4799, ¶ 47,
quoting State v. Huff, 145 Ohio App. 3d 555, 564 (1st Dist.2001) (“‘A strong showing of reliability
can arise from the fact that a victim knew the perpetrator of a crime before the crime was
committed.’”). The court noted that the police were not asking the individuals to identify Mr.
Tyler as the shooter—as they already knew who the shooter was—but were only asking the men
for his name. Tyler at ¶ 11. The court concluded, based on the totality of the circumstances, that
the police did not employ an unnecessarily suggestive identification procedure in violation of Mr.
Tyler’s constitutional rights. Id. This Court affirmed on appeal and found Mr. Tyler’s argument
that the police employed an unduly suggestive identification procedure by only showing one
picture of Mr. Tyler, instead of creating an entire photo array, to be misguided. Id. at ¶ 12-13.
{¶14} “A suggestive identification procedure is one that suggests to a victim or eyewitness
that a specific person is the perpetrator.” Tyler at ¶ 13. “The law guards against suggestive
procedures due to the inherent danger they will result in an unreliable identification, i.e., one that
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misidentifies the perpetrator due to the state’s action.” Id., citing Neil v. Biggers, 409 U.S. 188,
196-198 (1972). As we determined in Tyler, however, no such danger existed in this case because
the police never asked the witnesses to identify Mr. Alford as the shooter. Id. The police had
reviewed the Baho surveillance footage and sought to identify two men seen in the video. Once
the witnesses came forward with information about a man who might have been involved in the
crime, the police showed the witnesses the still photographs not to identify Mr. Alford as the
shooter, but to merely confirm that the man in the photo was the man they were familiar with and
were speaking about, i.e., the man T.T. knew as “Rollie” whom he saw hiding outside of D.A.’s
apartment and threatening to shoot him days before the murder, the man in the gray hat outside of
the Baho that night whom D.A. told W.A. had threatened to shoot him earlier that morning, and
the man T.W. knew as “Rollie” in her neighborhood. Because the police did not employ an
unnecessarily suggestive procedure to identify Mr. Alford as the shooter, we conclude that the trial
court properly denied his motion to suppress. See id.
{¶15} Accordingly, Mr. Alford’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S MOTION FOR A NEW TRIAL
{¶16} In his second assignment of error, Mr. Alford argues that the trial court erred in
denying his motion for a new trial. We disagree.
{¶17} Crim.R. 33(A) allows a defendant to move for a new trial when his substantial
rights have been materially affected. Mr. Alford filed his motion pursuant to Crim.R. 33(A)(1)-
(3), which provide that a new trial may be granted for any of the following causes materially
affecting his substantial rights: (1) Irregularity in the proceedings, or in any order or ruling of the
court, or abuse of discretion by the court, because of which the defendant was prevented from
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having a fair trial; (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
or (3) Accident or surprise which ordinary prudence could not have guarded against. “By its terms,
Crim.R. 33 does not require a hearing on a motion for a new trial, and this Court has consistently
held that the decision to conduct a hearing is one that is entrusted to the discretion of the trial
court.” State v. Jalowiec, 9th Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 20.
{¶18} This Court reviews a trial court’s decision to deny a motion for new trial for an
abuse of discretion. State v. Pyle, 9th Dist. Summit No. 28802, 2018-Ohio-3160, ¶ 47. “The term
‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217,
219 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from
simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66
Ohio St. 3d 619, 621 (1993).
{¶19} Mr. Alford took issue with two separate incidents in his motion for a new trial.
First, he argued that he suffered prejudice when an officer testifying at trial opened up a sealed
evidence bag containing the victim’s hat and a piece of the victim’s skull unexpectedly fell out of
the hat and onto the floor, in full view of the jury. The officer spontaneously picked up the item
and stated, “That’s actually a bone fragment.” Defense counsel objected and, after a brief sidebar,
the court sustained the objection and instructed the jury to disregard the officer’s testimony
regarding the supposed bone fragment falling from the hat. The court told the jurors that the officer
was not qualified to make a determination about what the material was that fell from the hat, and
again instructed them to disregard the officer’s statement and to not consider it for any purpose.
The court also denied counsel’s oral motion for a mistrial.
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{¶20} In denying Mr. Alford’s motion for a new trial, the trial court found that it had
promptly issued a curative instruction to the jury, juries are presumed to follow a court’s
instructions, and nothing in the record indicated that the jury did not follow the court’s instructions.
It also found that the officer’s stray comment was not prejudicial and did not deprive Mr. Alford
of a fair trial, as this was a murder case involving a victim being shot four times, including once
in the head. The chief medical examiner testified as to the victim’s cause of death, and several
photographs of the victim’s body were admitted into evidence. Thus, even if the jury was unable
to disregard the officer’s statement, the court determined it was merely cumulative of other
evidence presented at trial.
{¶21} Mr. Alford argues on appeal that he was prejudiced because there was no way the
jury could “unsee” the bone fragment and, unlike photographs or testimony describing details or
injuries, a surprising display of a skull fragment risked arousing the jurors’ sympathies, evoking a
sense of horror, and appealing to an instinct to punish. Although it is most certainly irregular for
something to fall from a murder victim’s hat in the midst of a jury trial and for a testifying witness
to then exclaim that it was a bone fragment that fell, Mr. Alford has not demonstrated that he was
prejudiced by this unexpected incident. The State alleged that Mr. Alford murdered D.A. by
shooting him multiple times, including once in the head, and the chief medical examiner testified
that D.A. died from these gunshot wounds. Nevertheless, the trial court sustained defense
counsel’s immediate objection to the officer’s statement as to what fell from the hat and then twice
instructed the jury to disregard that statement. Jurors are presumed to follow the trial court’s
instructions, and Mr. Alford has not directed us to anything in the record indicating that the jury
disregarded the court’s curative instructions here. See State v. Vactor, 9th Dist. Lorain No.
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02CA008068, 2003-Ohio-7195, ¶ 47. The trial court therefore did not err in denying Mr. Alford’s
motion for a new trial as to this ground for relief.
{¶22} Mr. Alford also argued in his motion for a new trial that the jury was contaminated
on the evening of Friday, March 1, 2019, after it ceased deliberations for the weekend. Four of
the jurors were approached by some individuals in the parking garage that evening, one of whom
expressed thanks for their work on his father’s case, in what Mr. Alford characterized as “an
obvious attempt to garner sympathy and support for the [S]tate’s case.” None of the jurors
responded to the stranger’s comment. On Monday morning, the four jurors discussed the incident
in the presence of the remaining jurors when they reconvened in the jury room, and one of them
informed the court of the incident during their first break in deliberations. Defense counsel moved
for a mistrial.
{¶23} “[A] trial court’s consideration of a motion for a new trial based on juror
misconduct involves two steps: (1) ‘a determination of whether misconduct actually occurred,’
and (2) ‘whether that misconduct materially prejudiced the defendant’s substantial rights.’” Pyle
at ¶ 50, quoting Jalowiec at ¶ 48. Although Crim.R. 33(C) requires the causes enumerated in
Crim.R. 33(A)(2) and (3) to be sustained by affidavit showing their truth, the trial court here found
that such affidavits were not required because the relevant facts regarding the alleged juror
misconduct were addressed on the record during trial. When a trial court learns about an improper
outside communication with a juror, the court must hold a hearing to determine whether the
communication biased the juror. State v. Smith, 9th Dist. Wayne Nos. 01CA0039 and 01CA0055,
2002-Ohio-4402, ¶ 57, citing State v. Phillips, 74 Ohio St. 3d 72, 88 (1995) and Remmer v. United
States, 347 U.S. 227, 229-230 (1954).
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{¶24} In denying Mr. Alford’s motion for a new trial as to this ground for relief, the trial
court found that it had questioned the four jurors and each stated that the stranger’s comment had
no impact on them and affirmed that they could ignore the comment and continue with
deliberations. It further found that it questioned the remaining jurors individually, and each one
confirmed they heard about the unsolicited comment. Each juror stated that the incident did not
have any impact on them and affirmed that they could ignore the comment and continue with
deliberations. The court then questioned the attorneys as well as Mr. Alford, and Mr. Alford
indicated he was satisfied that the jury could continue to deliberate in a fair manner. Mr. Alford
also withdrew his motion for a mistrial and the parties agreed to keep the four jurors in question.
The court found that the jurors did not commit any misconduct in merely hearing the unsolicited
comment, but did commit misconduct by failing to immediately report the incident and by sharing
it with the rest of the jury. Nonetheless, the court found that the misconduct did not materially
prejudice Mr. Alford’s substantial rights, as the jurors all agreed they could ignore the comment
and continue with deliberations. It also noted Mr. Alford’s withdrawal of his motion for a mistrial,
but his subsequent renewal of all motions and objections after the jury already returned a
unanimous guilty verdict for murder.
{¶25} Mr. Alford argues on appeal that there is “no question” the four jurors were
influenced by the incident as they were “excused from service and replaced on the panel.” He
contends there is uncertainty, however, as to the effect their discussions of the incident had on the
remaining jurors, and the trial court should have sua sponte granted a mistrial. Contrary to Mr.
Alford’s belief, the record does not indicate that the four jurors were excused from service and
replaced on the panel. The record is abundantly clear that after a thorough hearing was held, in
which each juror was questioned as to the effect the incident had on them as well as their ability
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to continue to be fair and impartial, the trial court and both parties agreed that the jurors would not
be dismissed, but would instead remain on the jury and continue with deliberations. Although Mr.
Alford initially moved for a mistrial, he withdrew that motion after all jurors had been questioned
and after private discussions with defense counsel. The record belies Mr. Alford’s argument that
the effect on the remaining jurors is uncertain, as the trial court questioned them all individually,
the jurors stated it had no impact on them, and they affirmed that they could ignore it and continue
with deliberations. Although minimal juror misconduct occurred in the jurors’ discussion of the
incident amongst themselves and in the delay in reporting it to the court, Mr. Alford has not shown
how his material rights have been substantially prejudiced.
{¶26} Upon review of the record, this Court concludes that the trial court did not abuse
its discretion in denying Mr. Alford’s motion for a new trial, as its decision was not unreasonable,
arbitrary, or unconscionable. Neither the incident with the officer on the witness stand nor the
incident with the jurors materially affected Mr. Alford’s substantial rights. Accordingly, Mr.
Alford’s second assignment of error is overruled.
III.
{¶27} Mr. Alford’s assignments of error are both overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
CALLAHAN, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
DONALD R. HICKS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.