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 Matthew W. McFarland
Magistrate Judge Michael R. Merz
WARDEN, Southeastern
Correctional Complex,
:
Respondent.
SECOND 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 (“Second Objections,” ECF No. 15)
to the Magistrate Judge’s Supplemental Report and Recommendations recommending dismissal
of the Petition (the “Supplemental Report,” ECF No. 14).
Judge Black initially adopted the Supplemental Report (ECF Nos. 16, 17), then vacated
that Order so as to allow consideration of Petitioner’s late-filed Objections (Notation Order of
April 28, 2021). On July 5, 2022, the case was reassigned to District Judge McFarland (ECF No.
20) who then recommitted the case to the undersigned to consider Dangerfield’s most recent
Objections (“Third Objections, “ECF No. 21).
The Supplemental Report noted that Dangerfield had pleaded five Grounds for Relief, but
but had objected only to the proposed disposition of Grounds One and Two; no additional analysis
was provided on Grounds for Relief Three, Four, or Five (Supplemental Report, ECF No. 14,
PageID 1409). In his Third Objections, Dangerfield objects only to the recommended disposition
of Ground One. Therefore Grounds Two, Three, Four, and Five may be dismissed with prejudice
and without objection (See Report, ECF No. 10, PageID 1392; Supplemental Report, ECF No. 14,
PageID 1417).
Ground One: Suggestive Pre-Trial Identification
In his First Ground for Relief, Petitioner claims a suggestive pre-trial photo array tainted
the in-court identification by witness Dennis Medley and Dangerfield was thereby deprived of his
right to due process of law. Respondent defends this Ground for Relief on the merits (Return of
Writ, ECF No. 7, PageID 1299-1306). Petitioner recounts motion to suppress and trial testimony
at length (Traverse, ECF No. 8, PageID 1327-45). He then claims the First District’s decision on
this Ground for Relief is an unreasonable application of relevant Supreme Court precedent,
particularly Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98, 114
(1977)(Traverse, ECF No. 8, PageID 1348). The Report concluded that the state court decision
was not an unreasonable application of those cases while agreeing that they were the controlling
precedent.
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), relying 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
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).
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).
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 As noted in the Supplemental
Report, the Magistrate Judge reviewed the transcript of the motion to suppress hearing which
occurred September 14, 20173 (ECF No. 6-1, PageID 292, et seq.). 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 Petitioner’s claim of biased photo array
selection.
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.
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).
Therefore the Supplemental Report recommended Dangerfield’s objections to the Report as to the
First Ground for Relief should therefore be overruled. In his Third Objections, Dangerfield
reviews the claimed factual descriptions Mr. Medley gave with the people in the array. Those
descriptions are sufficiently different from Mr. Dangerfield as to undermine any claim of
suggestiveness. Our task in habeas corpus is not to review the evidence de novo, but to decide
whether the Ohio courts’ conclusion of lack of suggestiveness is an unreasonable interpretation of
the facts in light of the evidence. 28 U.S.C. § 2254(d)(2).
In previous Reports, the Magistrate Judge noted that he has not reviewed the photo array
itself because it is not part of the State Court Record. Dangerfield asserts this is inaccurate, citing
“EXHIBITS ID at #839.” There is no copy of the photo array at that place in the State Court
Record. The court reporter also separately numbers pages of the transcript, but the photo array
does not appear at that page, which is also PageID 1113. Dangerfield’s objection that the photo
array is in the State Court Record is not well taken. Because the array was undoubtedly in the
appellate record in this case, Dangerfield may well have been confused.
Dangerfield quarrels with a number of inferences drawn by the jury from the circumstantial
evidence presented to it:
Contrary to Magistrate Judge note, Petitioner asserts Medley did not
immediately identify the vehicle leaving the scene. It wasn't until
he got two blocks down the road that he realized an accident had
happen. ID at #730. Petitioner asserts he was not found with the
silver BMW, contrary to he was. Dangerfield was in the house where
it was located, they were looking for Dangerfield because he was
linked to the car and they had a picture of him #879 and wanted him
for outstanding traffic warrants #879. Petitioner asserts there were
multiple there #874. Petitioner asserts Dangerfield abrasion on his
head had no relation to the accident, it was not fresh or bleeding. His
blood wasn't found in the car. Petitioner asserts DNA of his was
found in the car with multiple others #1161. Dangerfield has taken
the car to a shop a couple of days before the accident, making it
understandible [sic] to find his DNA ID at #/iG? in the car. Petitioner
asserts there was no DNA on the gear shift from Dangerfield #1144.
Petitioner asserts out of all the places in the car to get the driver's
DNA would be the gear shift. You can't drive without it. Petitioner
asserts there is no facts here to support any claim of Dangerfield
being the driver of the car in the accident. Dangerfield objects to all
the findings of the report and Medley's identification. Petitioner
asserts that the identification and statements of witness Medley in pre-
trial and trial are unreliable.
(Objections, ECF No. 15, PageID 1423). The inferences to be drawn from circumstantial evidence
are for the jury to decide. In addition to the points of circumstantial evidence which Dangerfield
says are not conclusive, the jury had to decide whether to believe Dangerfield on those points
where he was the sole source of the competent evidence, e.g., when his DNA got onto the gear
shift and whether he wiped it down before the police arrived.
Conclusion
Based on the foregoing analysis, the Magistrate Judge again respectfully recommends 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.
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. #
July 19, 2022.
s/ Michael R. Merz
United States Magistrate Judge