The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
LAWRENCE DANGERFIELD,
Petitioner, : Case No. 1:20-cv-582
- vs - District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
WARDEN, Southeastern
Correctional Complex,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Lawrence Dangerfield under 28
U.S.C. § 2254, is before the Court on Petitioner’s Objections (ECF No. 11) to the Magistrate
Judge’s Report and Recommendations recommending dismissal of the Petition (the “Report,” ECF
No. 10). The Warden has responded to Petitioner’s Objections (ECF No. 12) and District Judge
Black has recommitted the case to the Magistrate Judge for reconsideration in light of the
Objections (Order, ECF No. 13).
Dangerfield pleaded five grounds for relief, but has objected only to the Report’s
conclusion on Grounds One and Two. Thus no further analysis is needed on Grounds Three, Four,
and Five.
Ground One: Failure to Grant Motion to Suppress
In his First Ground for Relief, Dangerfield claims the photo array presented to eyewitness
Dennis Medley was unduly suggestive and should therefore have been suppressed. Respondent
agreed that this issue had been preserved for merits determination in habeas and argued this Court
should defer to the merits decision of the Ohio First District Court of Appeals. The Report
concluded that the First District’s decision was not an unreasonable application of the controlling
Supreme Court precedent, Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432
U.S. 98, 114 (1977).
The Report relies on the controlling Sixth Circuit application of Neil, Howard v. Bouchard,
405 F.3d 459, 469 (6th Cir. 2005). In that case the circuit court held “an identification procedure
violates a defendant’s right to due process if it “was so unnecessarily suggestive as to run the risk
of irreparable mistaken identification.” Id. at 469. Even if an identification procedure was
impermissibly suggestive, the identification is still admissible if it is reliable. Id. at 469, 472.
Dangerfield continues to object that the photo array was impermissibly suggestive in
violation of the first prong of Neil. The Supreme Court has recently held that for a pre-trial
identification procedure to be “‘impermissibly suggestive,’ the procedure must ‘give rise to a very
substantial likelihood of irreparable misidentification.’” Sexton v. Beaudreaux, 138 S. Ct. 2555,
2559 (2018), quoting Neil v. Biggers, 409 U.S. 188, 197 (1972).
The First District described the identifying eyewitness as follows:
Dennis Medley, Jr., the owner of an auto repair shop, was driving
south on Reading Road at the same time [Jan. 18, 2015, just before
11:00 p.m.] and observed a heavily damaged silver BMW,
streaming coolant from its radiator, driving north. The front
windshield was heavily cracked. Medley observed the driver as the
cars passed. Medley called 911 and described the driver as "a black
male with a beanie on his head* * * [h]air on his face," and
distinctive eyes and nose. Medley subsequently picked
Dangerfield's photo out of an eight-image police photo lineup and
identified Dangerfield as the driver during trial.
State v. Dangerfield, Case No. C-180057 (Ohio App. 1st Dist. Jun. 28, 2019)(unpublished; copy at
State Court Record, ECF No. 6, PageID 98). Dangerfield does not dispute any of the factual
findings in this paragraph.
The First District’s factual findings about Medley’s pre-trial identification are:
Within a few days of the accident, Medley identified Dangerfield as
the driver of the BMW from a photo lineup of eight photos of
African-American men shown to him by a blind administrator, an
officer not involved in the investigation. Each photo showed an
African-American male with a beard and roughly similar features.
The other seven photos had been selected from a computer database
to match Dangerfield's characteristics. Medley was not told that the
suspect's photo was in the lineup. The skin tone of the subjects
varied, but the instructions had cautioned that "Photographs may not
always depict the true complexion of a person. It may appear lighter
or darker in the photograph." The photo of Dangerfield showed him
wearing a dark brown or black cap, very similar in shade to his hair
color, and much darker than the cap he had worn the night that he
struck Denson.
Id. at PageID 100.
Dangerfield does not dispute several factual findings in this paragraph, including that the
photo array contained eight photographs of African-American men, that it was not shown to
Medley until several days after the collision, that it was shown by a blind administrator1 (i.e. that
it was shown to Medley by a police officer who was not involved in the investigation and who did
not know which of the eight photographs was a picture of Dangerfield), and that the photographs
of the other seven men were chosen from a computer database.
Dangerfield objects that the other seven photographs were chosen by an investigating
1 Dangerfield specifically says he is not objecting to the administration of the photo array, but claiming that the array
itself was suggestive (Objections, ECF No. 11, PageID 1396).
officer, Officer Enneking, and:
A review of those photo's reveal that all seven photos clearly are
distinguishable from that of Petitioner's photo. Petitioner[‘s] photo
show him wearing a beanie. None of the seven other individuals are
waering [sic] beanies. Further, the beanie is not the same color as
alleged by medley [sic]. Petitioner's photo also show him with a long
beard and no greys. None of the other seven photo's [sic]have
the other individuals with long beards. Another known fact is
that Petitioner is a light skinned male. Only one other
individual in the seven photo line up was a light skinned male
besides Petitioner, but he had a beard that was fully grey and
no beanie.
(Objections, ECF No. 11, PageID 1395-96).
Dangerfield makes numerous factual assertions in his objections which he says show the
photo array was suggestive. However, he makes no record citations for that supposed evidence,
despite the fact that he has been furnished with a full copy of the State Court Record as filed and
was ordered to cite to the PageID number of any record reference.2
In an attempt to find the record evidence to which Petitioner refers, the Magistrate Judge
has reviewed the transcript of the motion to suppress hearing which occurred September 14, 20173
(ECF No. 6-1, PageID 292, et seq.) John Enneking testified that he had been a police officer of the
City of Cincinnati for twenty-nine years. Id. at PageID 294. His area of assignment is serious and
fatal crashes and hit-skip occurrences. Id. at PageID 295. On January 18, 2015, he was called
from home to the scene of the crash in suit. While at the scene investigating the fatal crash, he
received word from Cincinnati Police District 4 that a car that might have been involved was
located about half a mile from the scene. Id. at PageID 297. Dangerfield was identified as a suspect
2 “All papers filed in the case thereafter [after the record is filed], by either party, including the answer and the exhibit
index, shall include record references to the PageID number.” (Order, ECF No. 4, PageID 22.)
3 The hearing occurred more than a year and a half after the crash. This probably accounts for some lapses of memory
by Officer Enneking. For example, he could not recall the day of the week on which the collision occurred. Id. at
PageID 317.
at that time and taken in for questioning. He learned that an Officer Jerry Stephens had received
a call from Dennis Medley who claimed to be a witness. Id. at PageID 300. Dangerfield’s
photograph was retrieved from the OHLEG website and used as a “seed” to develop a photo array
of persons with the same characteristics as the suspect, including race and facial hair. Id. at PageID
301. The witness’s description would also be used which Officer Enneking recalled as “male,
black, wide nose, beard, grayish beard.” Id. at PageID 301. The other seven photographs were
drawn from a computer database. Dangerfield’s attorney did not ask foundational questions about
how the computer would go about doing that, how large the database was, etc. Hence there is no
evidence to support Dangerfield’s speculation that Enneking intentionally chose persons who did
not meet Medley’s description.
Dangerfield argues that he was only one of two light-skinned men in the array, but
Medley’s description only says “black,” not light-skinned, and the characterization of Dangerfield
as “light-skinned” is his own. Dangerfield complains that on the night in question he was wearing
a light-colored kufi or “beanie,” but his picture in the array has a dark kufi. That point contradicts
his claim of suggestiveness: it would have been more suggestive to put in his picture with the light
kufi he was wearing January 18, 2015. Petitioner also complains that his picture in the array shows
him with a beard without grey in it, whereas Medley’s description was of a “grayish” beard. This
is also counter-suggestive: Medley’s beard description more closely matches the other bearded
man in the array.
Although the Magistrate Judge has reviewed the transcript of the suppression hearing, he
has not looked at the photo array itself. Dangerfield claims it is part of the record, but it is not in
the State Court Record filed by Respondent and ordinarily this Court does not see admitted exhibits
from the trial court. Even if the array had been made part of the State Court Record here, the Court
would not review it de novo, i.e. to decide for itself if the array was suggestive. Rather the question
in habeas is whether the state courts’ decision that the array is not unduly suggestive is objectively
unreasonable. Given the actual evidence cited above, it was not.
Even if the array had been unduly suggestive, Dangerfield would not be entitled to have
Medley’s identification suppressed unless he also met the second prong of Neil by showing that
the identification was unreliable. In finding against Dangerfield on the second prong, the
Magistrate Judge noted the following:
[Medley] is an automobile mechanic and immediately identified the
vehicle leaving the scene as a damaged silver BMW. Dangerfield
was found with a silver BMW relatively near the accident scene and
with an abrasion on his forehead. His DNA was in the car and the
victim’s blood was on the outside of the car. The BMW he was with
had a cracked windshield and was missing the front bumper; that
BMW front bumper with an identifying license plate was found at
the scene. Dangerfield matched the description Medley gave the
police at the scene. Dangerfield points to no evidence that these
incriminating facts are mere coincidence.
(Report, ECF No. 10, PageID 1376). Dangerfield makes no objection to these findings in the
Report. The cited circumstantial evidence is strong proof that Medley’s identification is reliable.
Dangerfield’s objections to the Report as to the First Ground for Relief should therefore be
overruled.
Ground Two: Insufficient Evidence
In his Second Ground for Relief, Dangerfield claimed that the State presented insufficient
evidence to show that he possessed the requisite mental state – recklessness – to convict him of
aggravated vehicular homicide. Dangerfield’s argument to the First District was that the evidence
showed that he was only speeding and that is insufficient for a finding of recklessness. The First
District found that the accident reconstructionist’s report supported a finding that he was driving
between 59 and 72 miles per hour when he struck the victim. The posted prima facie speed limit
on that portion of Reading Road, a residential neighborhood, in January 2015 was 30 miles per
hour. State v. Dangerfield, supra, at PageID 102-03. It was about 11:00 p.m. when the collision
occurred and the victim had just alighted from a public transit bus and was attempting to cross
Reading Road when Dangerfield struck her while passing the bus. The victim’s companions did
not hear any indicia of an attempt to stop by Dangerfield, whose driver’s license was suspended at
the time. Id.
Overruling Dangerfield’s insufficiency of the evidence claim, the First District concluded:
Dangerfield's excessive speed, when combined with the
circumstances surrounding the incident, showed a "heedless
indifference to the consequences" of and disregard for a known risk
that his conduct was likely to cause. Napier at * 4. Thus the record
reflects substantial, credible evidence from which the jury could
have reasonably concluded that the state had proved all elements of
aggravated vehicular homicide beyond a reasonable doubt,
including that Dangerfield had killed Denson recklessly. See
Waddy, 63 Ohio St.3d at 430, 588 N.E.2d 819; see also Moore at ¶
8. The second assignment of error is overruled.
(Judgment Entry, State Court Record, ECF No. 6, PageID 102-03). The Report recommended
deferring to this conclusion as an objectively reasonable application of Jackson v. Virginia, 443
U.S. 307 (1979).
In his Objections, Dangerfield concedes that Ohio law permits a finding of recklessness
when something more than speeding is presented, e.g., intoxication or driving on a suspended
license (ECF No. 11, PageID 1397). Dangerfield correctly points out there is no evidence he was
under the influence of alcohol. The First District found his license was suspended. He claims he
had a valid Texas driver’s license, but cites no place in the record where that is shown. Id. The
First District found he lived at the place where he stopped the BMW. A valid Texas license does
not authorize driving in Ohio by an Ohio resident.
Dangerfield’s principal reliance is on his claim that speeding is speeding:
Whether it was night or day, raining or dry, foggy or wet, in a
residential area, highway, or school zone, speeding is speeding, no
matter the posted speed limits. Whether a[n] individual is going one
mile or a hundred miles over the speed limit, its still speeding.
(Objections, ECF No. 11, PageID 1397).
This represents a serious misunderstanding of Ohio law. Ohio Revised Code § 4511.21
prohibits driving “at a speed greater or less than is reasonable or proper, having due regard to the
traffic, surface, and width of the street or highway and any other conditions . . . .” The statute then
goes on to list the prima facie reasonable speed limits which are to be posted. All of the factors
listed by the First District – darkness, residential neighborhood, passing a transit bus, driving on a
suspended license, and driving at twice the posted prima facie limit – all show that Dangerfield
was doing more than “just” speeding.
In any event, it is Ohio law that determines what is sufficient evidence of recklessness for
aggravated vehicular homicide. To put it another way, there is no federal constitutional definition
of what must be shown to prove recklessness. The First District’s determination that the facts
shown beyond a reasonable doubt in Dangerfield’s case are enough to prove recklessness is
binding on this Court. Bradshaw v. Richey, 546 U.S. 74 (2005).
Dangerfield’s Objections as to the Second Ground for Relief should also be overruled.
Conclusion
Having reconsidered the Report in light of the Objections, the Magistrate Judge again
respectfully recommends that the Petition be dismissed with prejudice. Because reasonable jurists
would not disagree with this conclusion, it is also recommended that Petitioner be denied a
certificate of appealability and that the Court certify to the Sixth Circuit that any appeal would be
objectively frivolous and should not be permitted to proceed in forma pauperis.
April 5, 2021.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal.