Opinion
No. 70-93
Decided June 23, 1971.
Criminal procedure — Evidence — Identification of defendant — Evidence of previous out-of-court identification — Identification made from police photograph — Admissibility of photograph in evidence, where identifying numerals removed.
APPEAL from the Court of Appeals for Cuyahoga County.
Abner Wilkinson was convicted of the December 24, 1966, armed robbery of a Lawson Milk Store. The victim, John Raso, his 15-year-old son, Timothy Raso, and Joseph Harper, a customer who was in the store at the time of the robbery, all identified Wilkinson in court at trial as having been one of the robbers.
The testimony of these three witnesses revealed that four men, three of whom were armed with guns, participated in the robbery during which Raso was severely beaten. Appellant was seen leaving the store carrying a bag. Both John and Timothy Raso also testified that they previously identified one of the robbers, Clarence Rolland, at a lineup at the police station the same night of the robbery.
State's witness, Curtiss Watkins, a Cleveland police patrolman, testified that while off duty, working as a part-time security guard at a drugstore across the street from the Lawson store, he was informed that the robbery was taking place. Upon arriving at the store, he confronted two men; one carrying a bag who stated to Officer Watkins that he "didn't do anything." Although admittedly unable at that time to remember appellant's name, Officer Watkins did testify that he recognized the man carrying the bag as a childhood acquaintance from some 10-12 years previously.
Officer Watkins then testified that he gave chase to another man coming out of the store carrying a gun, became involved in a scuffle with that man, and apprehended him. This man was later identified as Clarence Rolland. During the scuffle, the first two men departed from the scene. Three days later the officer observed a photograph on a bulletin board at the police station and identified it to be a photograph of Wilkinson, the person he had known in earlier years and had seen on December 24, 1966, coming from the Lawson's store carrying a bag. On cross-examination by Wilkinson's counsel, when asked if the photo was "like a mug shot," Officer Watkins answered in the affirmative.
The same night of the armed robbery when other police officers arrived at the store, John Raso gave them a description of the man who had robbed him, then went to a hospital where his injuries were treated. Later that night, at separate lineups in the Cleveland Police Department Detective Bureau, the Rasos identified Clarence Rolland as one of the robbers. After the lineup, they were shown a number of photographs from which both selected appellant's picture as being a participant in the crime. Detective Patterson testified that the Rasos had individually picked Wilkinson's picture from the group of approximately a dozen "mug shots" of "colored males" the night of the robbery. After the picture identification, a 5" x 7" enlargement of the frontal view photograph of appellant was sent to the district police stations. Subsequently, Wilkinson was arrested on February 19, 1967.
The photographs of appellant, taken in 1965, were admitted in evidence over the objection of appellant's counsel that it had not been established who took the photographs, and that the pictures "did not adequately describe this defendant as he looked on December 24, 1966 * * *"
When admitted in evidence, the lower portions of the pictures bearing police identification numbers were cut off, so that no numbers appeared on the pictures when presented to the jury.
Appellant offered no evidence on his behalf at trial.
Upon appeal, the judgment of the trial court was affirmed by the Court of Appeals. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Harvey R. Monck, for appellee.
Mr. Donald A. Modica and Mr. William T. Wuliger, for appellant.
The state's witnesses, John Raso, Timothy Raso, and Officer Watkins, at trial made in-court identifications of appellant as the man they personally observed on the night of the robbery. In addition, at trial on direct examination, each of these witnesses told of a prior out-of-court identification of Abner Wilkinson by selecting his photograph from a group of other photographs. It is the evidence of the prior out-of-court identification procedure about which appellant complains.
This court recently has had occasion to decide a case concerning an out-of-court identification procedure and its impact upon the trial of the defendant. State v. Breedlove (1971), 26 Ohio St.2d 178. We held that under R.C. 2945.55 evidence of a prior out-of-court identification of the defendant by a photograph selection is admissible at trial if the photographs do not provide the finder of facts with the reasonable inference that defendant has had prior criminal involvement.
In this case, the photographs of Wilkinson admitted in evidence and submitted to the jurors had no identification numerals on them. We have examined these photographs and cannot find, as a matter of law, that any of them provide a basis for a reasonable inference that appellant had had prior criminal involvement.
Defense counsel's reference, on cross-examination, to the photographs as "mug shots," first injected into the trial the suggestion that the photographs were mug shots.
The defense on cross-examination went into the fact that three days after the robbery Officer Watkins observed a photograph of Wilkinson at the police station. In the cross-examination defense counsel used the term "mug shot" in referring to the photograph, as follows:
"Q. You did testify on direct examination when Mr. Hanna was examining you that you have known him for about 15 years, didn't you?
"A. Well, I said about 15 years.
"* * *
"Q. Now, you indicated to this court that on the 27th day of December 1966, that you saw in the police — what do they call it?
"A. A roll call.
"Q. A roll call you saw a photograph?
"A. Yes.
"Q. As best as you can remember, how large was this photograph?
"A. Well, I'd say two by four probably. Two inches by four inches.
"Q. Then it was a small photograph?
"A. Yes.
"Q. Like a mug shot?
"A. Right.
"Q. The average size mug shot?
"A. That is what is was, yes."
John Raso and Timothy Raso identified appellant's photograph prior to the stage of the criminal procedure when his rights under the Sixth Amendment to the United States Constitution attached. Officer Watkins had known appellant some years before, and there is no evidence that his testimony regarding his having observed Wilkinson's photograph on the wall at a police station tainted the incourt identification. See State v. Jackson (1971), 26 Ohio St.2d 74; United States v. Wade (1967), 388 U.S. 218; Gilbert v. California (1969), 388 U.S. 263.
Appellant also contends that the trial court erred in admitting the photographs in evidence without the laying of a proper foundation in that at no time was the jury informed when, how, or why the photos were taken. Although this contention is somewhat incongruous with the fact that defense counsel termed them "mug shots," the admission or rejection of photographs was in the sound discretion of the court. See State v. Woodards (1966), 6 Ohio St.2d 14; State v. Hill (1967), 12 Ohio St.2d 88. The state's witnesses stated that the pictures were in fact pictures of the man they saw on the night of the crime. We find no abuse of discretion.
Apparently, appellant also assigns as prejudicial error the court rulings on the admissibility of evidence of a relationship between Clarence Rolland and himself. The prosecutor obviously was attempting to produce testimony from Detective Patterson that appellant's connection with the robbery was first suggested by the fact that a check of Rolland's police file showed appellant to have been an associate of Rolland. The trial court sustained defense counsel's objections to the prosecutor's attempted elicitation of such testimony. There is no need to determine whether there is evidence of a criminal conspiracy, or if one was proved. We believe the record in this regard demonstrates no prejudice to appellant.
The following direct testimony of Detective Patterson was elicited:
"Q. No, prior to that, sir. What I am getting at is, after the lineup that was conducted and the identification made, did you do anything or your partner do anything in your presence?
"A. Yes. After the failure to identify from slides, my partner reviewed the arrest record of Clarence Roland —
"Q. Wait a minute. Of who?
"A. Clarence Roland.
"Q. Now, after viewing that —
"Mr. Carson: Object.
"The Court: Sustained.
"The answer will go out and the jury is instructed to disregard that last answer.
"Q. Did your partner check anything in your records?
"A. Yes, he did.
"Q. Was it ascertained whether or not Roland had known anyone in this courtroom before?
"Mr. Carson: Objection.
"The Court: Sustained.
"Q. A lineup was conducted, Officer?
"A. Yes, sir.
"Q. After the lineup and the name of the person was identified and was ascertained, did your partner check anything?
"A. Yes, he did.
"Q. As a result of checking whatever he checked, what did you then do?
"A. He then obtained photographs and brought them to the robbery squad for the purpose of showing to Mr. Raso and Timothy Raso.
"Q. And Abner Wilkinson's photograph was amongst those, is that correct?
"A. That's correct.
"Mr. Hanna: Thank you."
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.