State v. Dewberry

Citations

• 2020 Ohio 691

Syllabus

Appellant was convicted of aggravated murder, attempted murder, and having weapons while under disability based on the shooting of two individuals. The trial court erred in denying appellant's request to call the surviving victim as a witness at the suppression hearing. Nevertheless, with the record before us, the trial court did not err in denying appellant's motion to suppress the surviving victim's photospread identification of appellant as the shooter even if the police's photospread or its administration were unduly suggestive, the surviving victim's identification was sufficiently reliable. Appellant's convictions were based on sufficient evidence and were not against the manifest weight of the evidence the jury did not lose its way when it concluded that appellant was the shooter. Any error in the trial court's failure to admit text messages sent to the surviving victim from her ex-boyfriend was harmless, given that the jury was made aware of the threatening nature of the messages and that the ex-boyfriend sent those messages to the victim shortly before the shooting. Appellant did not demonstrate that his counsel rendered ineffective assistance by failing to offer the text messages properly since the appellant was not prejudiced by the lack of the admission of the messages. The detective's brief testimony that an attorney told him that the surviving victim was in fear and wanted protection by the police was harmless error, given that the statement was cumulative of the victim's extensive prior testimony at trial on those matters. The trial court did not abuse its discretion in allowing an FBI special agent to testify on redirect examination about whether appellant's cell phone could have been located at his residence at the time of the shooting. No cumulative error shown. Judgment affirmed.