State v. Caulton

[Cite as State v. Caulton, 2011-Ohio-6636.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )

) CASE NO. 09 MA 140

PLAINTIFF-APPELLEE, )

)

- VS - ) OPINION

)

ANTHONY CAULTON, aka )

TONY PHIFFER, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas

Court, Case No. 06 CR 1191.

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Attorney Paul J. Gains

Prosecuting Attorney

Attorney Ralph M. Rivera

Assistant Prosecuting Attorney

21 W. Boardman St., 6th Floor

Youngstown, OH 44503

For Defendant-Appellant: Attorney John P. Laczko

3685 Stutz Drive, Suite 100

Canfield,, OH 44406

JUDGES:

Hon. Mary DeGenaro

Hon. Cheryl L. Waite

Hon. Gene Donofrio

Dated: December 16, 2011

[Cite as State v. Caulton, 2011-Ohio-6636.]

DeGenaro, J.

{¶1} Defendant-Appellant, Anthony Caulton appeals the August 4, 2009

judgment of the Mahoning County Court of Common Pleas convicting him of one count of

murder, with an accompanying firearm specification, and sentencing him accordingly.

Caulton raises four assignments of error: involving speedy trial; failure to conduct a new

suppression hearing; manifest weight, and failure to instruct the jury on manslaughter.

{¶2} All of Caulton's arguments are meritless. First, Caulton's speedy trial rights

were not violated; because of tolling events, less than 270 days elapsed between his

arrest in Mahoning County and his execution of a speedy trial waiver. Second, the trial

court did not err by failing to conduct a new suppression hearing before the successor

judge; Caulton only challenged the credibility of the witnesses' identification at the scene,

which is properly tested at trial, he did not challenge the propriety of the photo array.

Third, by convicting Caulton of murder the jury clearly did not lose its way so as to create

a manifest miscarriage of justice. Finally, because the facts of this case do not

reasonably support both an acquittal on the charged crime of murder and a conviction for

voluntary manslaughter, the trial court properly and reasonably declined to instruct the

jury on the offense of voluntary manslaughter. Accordingly, the judgment of the trial court

is affirmed.

Facts and Procedural History

{¶3} On November 2, 2006, Caulton was indicted by the Mahoning County grand

jury on counts of: (1) murder (R.C. 2903.02(A)), an unclassified felony, with an

accompanying R.C. 2941.145(A) firearm specification; (2) having a weapon while under a

disability (R.C. 2923.13(A)(3)(B)), a third-degree felony; (3) illegal conveyance or

possession of a deadly weapon or dangerous ordnance into a school safety zone (R.C.

2923.122(B)(D)), a fifth-degree felony; and (4) inducing panic (R.C.

2917.31(A)(3)(C)(4)(a), a fourth-degree felony. The indictment alleged that Caulton

purposely caused the death of Larry Jones by shooting him multiple times at the South

Field House in Youngstown, during a pee wee football game.

{¶4} Caulton was arrested in the State of Washington on October 2, 2006,

charges having been originally filed against him in the Youngstown Municipal Court on

-2-

August 24, 2006. Caulton waived extradition and was returned to custody in Mahoning

County on October 31, 2006. Caulton was arraigned, pled not guilty and counsel was

appointed. While motion practice will be discussed in greater detail in the analysis of the

first assignment of error, which alleges a speedy trial violation, the major points are as

follows. On February 20, 2007, the trial court granted Caulton's motion for relief from

prejudicial joinder, severing the murder charge from the weapons disability charge. On

March 27, 2007, Caulton filed a motion to suppress pretrial identifications of two

witnesses, along with his statement to police following his arrest.

{¶5} At that time, the judge assigned to the case was Judge Cronin, and she

conducted the suppression hearing on May 23, 2007, where three witnesses testified.

Denise Leonard, who was familiar with both the victim and the defendant before the

incident on August 19, testified that she witnessed both men scuffling on the bleachers

during the football game, and then saw a gun in Caulton's hand. She heard gunshots but

did not see the actual shooting. Leonard was interviewed by police on August 26, where

she identified No. 2 (Caulton) as the man she saw with the gun, from a six-person photo

array. At first Leonard stated that she did not view or hear any news coverage about the

shooting prior to her identification. She subsequently stated she did recall hearing that

the police were looking for Caulton.

{¶6} Thomas witnessed the shooting from a close, unobstructed distance and did

not know either man prior to the incident. Thomas was presented with a six-person photo

array six days after the shooting and selected "No. 2," i.e., Caulton. Thomas testified that

he neither saw nor heard media coverage of the shooting during that six day period

between the shooting and his identification. Finally, Detective Kelty testified that he

showed the photo arrays to Leonard and Thomas and that both chose No. 2, which was

Caulton. The remainder of Det. Kelty's testimony centered on his custodial interview with

Caulton, which is not at issue on appeal.

{¶7} On July 1, 2007, Judge Cronin retired from the bench without issuing a

ruling on the motion to suppress. Thereafter, this case went through several judges. On

October 4, 2007, Caulton filed a motion to dismiss based on speedy trial grounds,

-3-

alleging he had been held in excess of the time permitted by Ohio law. The crux of

Caulton's argument was that the trial court's delay in ruling on the motion to suppress was

unreasonable. In that same motion he requested a hearing on the suppression motion,

but did not fully brief this issue. The case was assigned to a third judge who recused

himself and the case was transferred to a fourth trial judge on November 2, 2007. After

obtaining leave from the court, Caulton filed a more extensive motion requesting a new

suppression hearing.

{¶8} On January 24, 2008, the trial court conducted a hearing on the motion to

dismiss and the motion for a new suppression hearing. The next day, the trial court

overruled the motion to dismiss, and overruled the motion to suppress the two pretrial

identifications only. In so doing, the trial court relied upon the transcript of the

suppression hearing that was held before the judge originally assigned the case. On

January 30, 2008, the trial court granted the motion to suppress Caulton's post-arrest

statement to police on Miranda grounds. On February 11, 2008, Caulton executed a

speedy trial waiver.

{¶9} On April 8, 2008, Caulton filed a second motion to dismiss based on speedy

trial grounds, which essentially repeated the same arguments made in the first motion. It

appears from the record that the trial court never specifically ruled on this motion, so we

presume it was denied. See State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.

(1994), 69 Ohio St.3d 217, 223, 631 N.E.2d 150.

{¶10} For reasons that are unclear from the record, the case was transferred to a

fifth, visiting judge. The State dismissed Counts Three and Four of the indictment: having

a deadly weapon in a school zone and inducing panic, respectively.

{¶11} The case proceeded to a jury trial on the murder charge with firearm

specification where the following evidence was adduced. On August 19, 2006, Larry

Jones went to watch his nephew's pee wee football game at the South Field House in

Youngstown. Denise Leonard, who was familiar with Jones from the neighborhood, was

at the game with friends and briefly exchanged greetings with Jones while there. Later in

the game she saw Jones "tussling" with Caulton on a landing to the bleachers. Leonard

-4-

was familiar with Caulton, whom she knew as "Tone." She was not really paying much

attention to the two men, until she heard someone saying "he got a gun." She then saw a

gun in Caulton's hand. She did not see Jones with a gun, but rather saw him run away

from Caulton. Leonard was very close to where the shots were fired, but did not see the

actual shooting occur. Leonard later identified Caulton in a photo array as the man who

had the gun in his hand. Leonard was a reluctant witness, she did not come forward to

police on her own, instead detectives surprised her with an interview while she was at

felony dependency court on August 24, apparently because she told her caseworker she

was at the game.

{¶12} Danielle Howard, a good friend of Jones' sister, was also at the game. She

went to approach Jones to talk to him, but then saw a man walk up to Jones. She saw

Jones throw up his hands in what appeared to be an invitation to fight. The other man

pulled out a gun and chased Jones past her. Jones ran up the bleachers and after

tussling with the other man for a moment, went over the railing and onto the field.

Howard heard 1 gunshot, then 3 to 4 seconds later she heard 4 or 5 more. She did not

see the actual shooting occur; as soon as she heard the first shot she grabbed the

children she was with and started running. She did not talk to the police at the scene

since her focus was on the safety of the children. She called Jones' sister to notify her

about the shooting. On cross, Howard conceded that during a later interview with police

she was shown a photo array and believed the shooter was another person in the array,

not Caulton.

{¶13} Christopher Thomas witnessed the actual shooting from a close,

unobstructed distance. He first saw the victim running towards him, being chased by

another man. He heard someone shout, "he has a gun," and then saw the two men

scuffling. When the victim attempted to go over the railing to escape, the shooter took his

first shot. Thomas explained: "He shot him. He fell to the ground. He shot him again.

The shooter then turned his back towards me like he was getting ready to go, like he took

a few steps like he was getting ready to leave, and then came back and finished him off,"

firing several more shots into the victim as he lay on the football field.

-5-

{¶14} Thomas gave a description of the shooter to one of the police officers at the

scene. He went directly home and drew a diagram of what he had witnessed, because

he wanted to be accurate and remember everything. Several days later, on August 25,

2006, he was interviewed by police, shown a photo array, and selected Caulton as the

shooter. He knew neither the victim nor the shooter before the incident and did not see

any news accounts with Caulton's picture or name prior to making his identification. He

testified he was positive that the man he described to police on the day of the shooting,

the man selected in the photo array and the man he identified in the courtroom (the

defendant) is the same man he saw shoot and kill Larry Jones; he stated he got a direct

look at the shooter's face. On cross he was confronted with a few very minor

inconsistencies between his earlier suppression hearing testimony and his trial testimony.

{¶15} Tyla Smith, who was coaching young cheerleaders on the sidelines during

the game, testified that she noticed two men running in the stands. Upon realizing that

one of the men had a gun, Tyla took off running to try to get the cheerleaders away from

the danger. After she reached the inside of the field, Smith said she heard shots and

then chaos ensued. Her main focus was getting the cheerleaders, who were between the

ages of 4 and 12, out of harm's way. Smith was unsure about how many gunshots she

heard, although she agreed it was more than one. She recalled hearing all of the

gunshots together, and did not recall hearing any gunshots after the victim was already

on the ground. She told police that she could not identify anyone as the shooter because

as soon as she saw the gun, she started running.

{¶16} Youngtown Police Officer Edward Kenney responded to the shooting shortly

after it occurred. The scene was chaotic, with hundreds of people milling around, some

walking and some running from the field. Officer Kenney questioned people at the scene

about what happened, but was generally offered no assistance. For example, people

stated: "you're the police, you figure it out. You want us to do your job for you?"

{¶17} Officer Kenney obtained the shooter's description from Christopher Thomas,

who had described him as a "5'5" to 5'7" black male, dark skin, 18 to 21, white T-shirt,

blue jean shorts, short hair or braids, 9mm black automatic, white sneakers." He

-6-

broadcast this description over the police radio. While investigating at the scene, Officer

Kenney overhead people saying that a man named "Muldrow," was the shooter, and

consequently his report listed "Muldrow" as a possible suspect.

{¶18} Later, when Detective Kelty arrived, someone walked past him and

whispered the name "Anthony Phiffer." That person refused to stop and talk further to

police. Police later determined that Caulton is also known as Anthony Phiffer, and these

names were released to the news media as a "person of interest." Det. Kelty stated that

his investigation ruled out the other possible suspect, Muldrow.

{¶19} The victim, Jones, was transported to St. Elizabeth's Hospital where he died

as a result of his injuries. Dr. Ohr, a medical examiner for the Mahoning County

Coroner's Office, testified regarding the cause and manner of Jones' death. The coroner

who actually performed the autopsy was unavailable, and Dr. Ohr thus testified as a

substitute witness by stipulation of the parties. Dr. Ohr reviewed the case file including

the autopsy photographs and reports and reached his own conclusions regarding the

death. Dr. Ohr found that Jones suffered eight gunshot wounds. The bullet which

entered through Jones' back and exited via his lower chest wall tore through two major

vessels and caused Jones to bleed out into his chest and ultimately die.

{¶20} Jonathan Gardner, a firearms examiner from the Ohio Bureau of Criminal

Identification and Investigation (BCI) analyzed seven 9mm cartridge casings, and one

copper-jacketed slug which were recovered from the scene and submitted to his lab for

analysis. Two of the three bullets were recovered from Jones' body and were also

analyzed. Gardner determined that all seven 9mm cartridge casings were fired from the

same firearm, and that all three bullets were fired from the same firearm.

{¶21} Several other witnesses provided background testimony about the scene at

the South Field House, the police investigation, and the circumstances surrounding

Caulton's arrest, namely that a detective obtained possession of Caulton from the United

States Marshals at Pittsburgh International Airport. These witnesses included the victim's

mother and sister, and several members of the Youngstown police force.

{¶22} After the State rested, the defense made a Crim.R. 29 motion for acquittal,

-7-

which was overruled. The defense then rested without presenting any witnesses. The

jury found Caulton guilty of murder with the accompanying firearm specification. After the

jury verdict, the State dismissed the previously severed weapons under disability charge.

Following a hearing, the trial court sentenced Caulton to 15 years to life on the murder

charge, to be served consecutively to 3 years on the firearm specification.

Speedy Trial

{¶23} In his first of four assignments of error, Caulton asserts:

{¶24} "The trial court erred to the prejudice of Appellant and violated his statutory

and constitutional rights to a speedy trial by denying his motions to dismiss due to

expiration of speedy trial for Appellee's failure to bring Appellant to trial within the period

specified in R.C. 2945.71."

{¶25} Ohio recognizes both a constitutional and a statutory right to a speedy trial.

State v. King (1994), 70 Ohio St.3d 158, 161, 637 N.E.2d 903; see also Sixth

Amendment, United States Constitution; Section 10, Article I, Ohio Constitution. The

Sixth Amendment of the U.S. Constitution provides that, "[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy [trial]." This fundamental right has been codified

by the General Assembly as R.C. 2945.71 to 2945.73. The Supreme Court of Ohio has

found the statutory speedy-trial provisions set forth in R.C. 2945.71 to be coextensive with

constitutional speedy-trial provisions. State v. O'Brien (1987), 34 Ohio St.3d 7, 9, 516

N.E.2d 218.

{¶26} R.C. 2945.71 provides the time-frame for a defendant's right to a speedy

trial based on the level of offense. According to the Ohio Revised Code, "a person

against whom a charge of felony is pending shall be brought to trial within two hundred

seventy days after his arrest." R.C. 2945.71(C)(2). However, each day the defendant

spends in jail in lieu of bail, solely on the pending criminal charge, counts as three days.

R.C. 2945.71(E). State v. Brown (1992), 64 Ohio St.3d 476, 479, 597 N.E.2d 97.

{¶27} Once the statutory limit for speedy trial has expired, the defendant has

established a prima facie case for dismissal and the burden shifts to the State to

demonstrate any tolling or extension of the time limit. State v. Howard, 7th Dist. No. 08

-8-

BE 6, 2009-Ohio-3251, at ¶18, citing State v. Price (1997), 122 Ohio App.3d 65, 68, 701

N.E.2d 41, citing State v. Butcher (1986), 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368.

{¶28} R.C. 2945.72 provides a list of tolling events, relevant to this case are

sections: (E) "[a]ny period of delay necessitated by reason of a plea in bar or abatement,

motion, proceeding, or action made or instituted by the accused;" and (H) "[t]he period of

any continuance granted on the accused's own motion, and the period of any reasonable

continuance granted other than upon the accused's own motion[.] "R.C. 2945.72(E), (H).

{¶29} When reviewing a speedy trial issue, this court must count the days of delay

chargeable to either side and determine whether the case was tried within the time limits

pursuant to R.C. 2945.71. State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853

N.E.2d 283, at ¶8. Our review of a trial court's decision regarding a motion to dismiss for

violation of the speedy trial provisions involves a mixed question of law and fact. State v.

Brown (1998), 131 Ohio App.3d 387, 391, 722 N.E.2d 594. We give due deference to the

trial court's findings of fact if they are supported by competent, credible evidence. Id.

However, we independently determine whether the trial court properly applied the law to

the facts of the case. Id. When reviewing the legal issues in a speedy trial claim, we

must strictly construe the statutes against the State. See Brecksville v. Cook (1996), 75

Ohio St.3d 53, 57, 661 N.E.2d 706; Brown at 391.

{¶30} Here Caulton correctly concedes that the State had 270 days to bring him to

trial because he was being held on two unrelated charges. See R.C. 2945.71(C)(2) ,

Sanchez at ¶7 ("the triple-count provision does not apply when a defendant is being held

in custody pursuant to other charges.") Thus, this court must determine whether

Caulton's speedy trial clock expired before he executed a waiver of his rights on February

11, 2008. Caulton has made out his prima facie case because 468 days elapsed

between the time he was brought into custody in Mahoning County and the time he

executed the time waiver.

{¶31} The State alleges that numerous tolling events occurred which prevented

the expiration of Caulton's speedy trial clock before the 270th day. It is undisputed that

from the time Caulton was taken into custody in Mahoning County on October 31, 2006,

-9-

until Caulton filed a request for discovery on January 8, 2007, the speedy trial clock ran

for a period of 69 days.

{¶32} At that point, the parties argue over whether the January 8 discovery motion

was a tolling event. The Supreme Court of Ohio has previously held that discovery

requests are tolling events pursuant to R.C. 2945.72(E). State v. Brown, 98 Ohio St.3d

121, 2002-Ohio-7040, 781 N.E.2d 159, at ¶23, 24, and 26. Nonetheless, Caulton

contends that his discovery motion did not toll the clock because "a review of the record

indicates Appellee provided discovery to Appellant pursuant to local Rule 9 on November

21, 2006." This argument is meritless. The record reveals that on November 21, 2006,

Caulton both requested and received an initial discovery packet from the State. However,

the January 8, 2007 request sought additional discovery, above and beyond that which

was provided on November 21, 2006. The State correctly asserts that it complied with

the January 8, 2007 discovery on January 31, 2007 and thus the clock was tolled until

that time. And in any event, Caulton also filed a request for a bill of particulars on

January 8, 2007, which the State filed on January 10, 2007, thus tolling the clock until

then. Brown, supra at ¶18.

{¶33} Another tolling event occurred on January 10, 2007, when Caulton filed a

motion to continue trial. Caulton does not include this in his speedy trial calculation,

however, it is well-established that a defense motion to continue trial tolls the speedy trial

clock until the rescheduled trial date. R.C. 2945.72(H); State v. Brown, 7th Dist. No. 03-

MA-32, 2005-Ohio-2939, at ¶41. Here Caulton's trial date was continued until February

28, 2007, thus tolling the clock until then.

{¶34} A third set of tolling events occurred on February 20, 2007 when Caulton

filed three motions: (1) motion for relief from prejudicial joinder, (2) motion for ex parte

order authorizing an investigator at the State's expense, and (3) a motion to continue trial.

Caulton's trial was continued until April 25, 2007.

{¶35} Then Caulton filed a motion to suppress and request for hearing on March

27, 2007. On April 23, 2007, Caulton filed a third motion to continue trial. Caulton's

suppression hearing was set for April 26, 2007. Due to the court's unavailability, the

- 10 -

suppression hearing was rescheduled for May 23, 2007. "R.C. §2945.72(H) permits the

tolling of the speedy trial time when a trial court issues a sua sponte continuance as long

as the continuance is reasonable." State v. Driver, 7th Dist. No. 03 MA 210, 2006-Ohio-

494, at ¶14.

{¶36} Based on the above, the State correctly calculates that only 69 days had

elapsed on Caulton's speedy trial clock from the time Caulton was arrested in Mahoning

County on October 31, 2006, until the suppression hearing was held on April 25, 2007.

Ultimately, the trial court did not rule on the motion to suppress until 304 days after it was

filed (252 days after the hearing). In the interim, on October 4, 2007, while the

suppression motion was pending, but after it had been heard, Caulton filed a motion to

dismiss on speedy trial grounds which the trial court did not rule on until January 25, 2008

(113 days later).

{¶37} The crux of Caulton's speedy trial argument is that the trial court's delay in

ruling on both the motion to suppress and the motion to dismiss were unreasonable. The

Ohio Supreme Court has held that a trial court does not have "unbridled discretion

concerning the amount of time it takes to rule on a defense motion. * * * A strict

adherence to the spirit of the speedy trial statutes requires a trial judge, in the sound

exercise of his judicial discretion, to rule on these motions in as expeditious a manner as

possible." State v. Martin (1978), 56 Ohio St.2d 289, 297, 384 N.E.2d 239. Stated

otherwise, "the extension of time to rule on a defendant's motion to suppress is subject to

a requirement of reasonableness." State v. Arrizola (1992), 79 Ohio App.3d 72, 76, 606

N.E.2d 1020. See, also, State v. Santini (2001), 144 Ohio App.3d 396, 403, 760 N.E.2d

442 (Seventh District) (adopting the reasonableness requirement for speedy trial

purposes in assessing the delay necessary in ruling on a defendant's motion.)

{¶38} In assessing the reasonableness of a delay, this court has held that a

balancing should be employed in which a court should weigh the "[l]ength of delay, the

reason for the delay, the defendant's assertion of his right, and prejudice to the

defendant." Id. at 404, quoting Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct.

2182, 33 L.Ed.2d 101. A court should also specifically consider the nature of the motion

- 11 -

filed and the timing of said motion in assessing whether a delay is reasonable. Santini at

404.

{¶39} Regarding the length and reason for the delay in this case, the 252-days

which elapsed was largely due to the sudden retirement of the original trial judge who

presided over the suppression hearing without issuing a ruling, and necessitated a

transfer of the case to three other judges before the trial court ultimately issued a ruling.

This delay cannot be attributed to Caulton. Regarding the nature of the motion, the

issues appear moderate in their complexity. The first issue involved a custodial

interrogation where the detective prodded Caulton to continue with the interrogation after

he attempted to end it several times, and the trial court granted suppression of the

interrogation. The second issue involved two pretrial identifications of Caulton, which

solely challenged the credibility of the witnesses. As discussed in more detail below,

Caulton did not argue that the photo arrays were impermissibly suggestive, and the trial

court denied suppression. Despite the fact that the trial court and not Caulton caused the

delay, based on the totality of the circumstances, the trial court's delay in ruling on the

suppression motion was not unreasonable.

{¶40} Moreover, there was an interim tolling event: Caulton's motion to dismiss.

The trial court took 113 days to issue a ruling on that motion and this delay was

reasonable. The motion to dismiss was filed on October 4, 2007, and the next day the

newly appointed trial judge, having been a prosecutor previously, recused upon Caulton's

oral motion. On November 2, 2007, the case was assigned to the fourth trial judge, and

on November 5, 2007, Caulton filed a motion for a new evidentiary hearing for his

suppression motion. The trial court held a hearing on both that request and the motion to

dismiss on January 24, 2008, ruled from the bench and issued a judgment entry to that

effect the next day. The motion to dismiss was handled as expeditiously as possible

given the circumstances and therefore the delay was not unreasonable.

{¶41} Even assuming that the time from the suppression hearing until the court's

ruling on the suppression motion was unreasonable and counted against the State, the

motion to dismiss, filed in the interim, still tolled the clock long enough so that less than

- 12 -

270 days had elapsed when Caulton executed his speedy trial waiver on February 11,

2008. As discussed above, as of the date of the suppression hearing on May 23, 2007,

69 days elapsed on the speedy trial clock. An additional 133 days elapsed thereafter

through October 4, 2007 when Caulton filed his motion to dismiss for a speedy trial

violation. This tolled the speedy trial clock until the trial court issued its ruling on that

motion and the original motion to suppress on January 25, 2008. Thereafter, an

additional 17 days elapsed on the speedy trial clock until Caulton executed a speedy trial

waiver on February 11, 2008. Thus, only 219 days had run on Caulton's speedy trial

clock.

{¶42} Even assuming that the delay in ruling on the suppression motion was

unreasonable, and assuming that none of the time the court took to rule on that particular

motion tolled the speedy trial clock, Caulton's speedy trial rights were not violated. The

motion to dismiss was a separate tolling event, and according to the calculations above,

when accounting for that tolling event, only 219 days had elapsed at the time Caulton

executed his speedy trial waiver. For all of these reasons, Caulton's first assignment of

error is meritless.

Failure to Conduct New Suppression Hearing

{¶43} In his second assignment of error, Caulton asserts:

{¶44} "The trial court erred to the prejudice of Appellant and violated his right to

due process under the Fourteenth Amendment when the trial court refused to conduct a

new suppression hearing before ruling on Appellant's motion using testimony from a

previous hearing."

{¶45} Since the trial court ultimately granted the motion to suppress Caulton's

statement to police on Miranda grounds, the remaining issue is whether the trial court

erred by failing to conduct a new hearing on the motion to suppress the pretrial

identifications, and resolving the motion by reviewing the transcript of the hearing. While

there is no case law analyzing this precise issue, it is well-established that the trial court

acts as a fact-finder during a suppression hearing, and its role in part is to determine

credibility issues, which are difficult to determine from a "cold record." See State v.

- 13 -

Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583: "it is fundamental that the

weight of the evidence and credibility of witness [sic] are primarily for the trier of the facts.

State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212 [39 O.O.2d 366], paragraph

one of the syllabus. This principle is applicable to suppression hearings as well as trials."

Fanning at 20. See, also, State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.

{¶46} In support of his argument that the trial court erred by failing to conduct a

new suppression hearing, Caulton cites Welsh v. Brown-Graves Lumber Co. (1978), 58

Ohio App.2d 49, 389 N.E.2d 514, and Vergon v. Vergon (1993), 87 Ohio App.3d 639, 622

N.E.2d 111. These two cases are distinguishable because they involved bench trials,

where witness credibility is critical to the trier of fact's resolution of the case. By contrast,

the sole basis for Caulton's suppression motion was the believability of the witnesses'

identification of him at the scene, which can only be challenged at trial. Caulton did not

challenge the procedure followed by the State when presenting the photo array to the

witnesses. Thus, the credibility, or lack thereof, of the witnesses at the suppression

hearing would not have changed the outcome of the proceeding.

{¶47} This is so because in order to suppress a pretrial identification the defense

must also prove that the identification procedure itself was impermissibly suggestive. See

State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634, at ¶40: "Pretrial

identifications may be suppressed only if they are both unnecessarily suggestive and

unreliable under the totality of the circumstances.") Thus, where the defense fails to

prove that the identification procedure was suggestive, "it is unnecessary * * * to discuss

whether the identifications were unreliable under the totality of the circumstances." Id. at

¶56. Further, "[c]onvictions based on eyewitness identifications at trial following pretrial

identification by photograph will be set aside [on appeal] only if the photographic

identification procedure was so impermissibly suggestive so as to give rise to a very

substantial likelihood of irreparable misidentification." State v. McGee, 7th Dist. No. 07

MA 137, 2009-Ohio-6397, at ¶18.

{¶48} In this case, the defense put on no evidence that the identification

procedures used by the Youngstown police, to wit, a photo array, were impermissibly

- 14 -

suggestive. Instead, the defense focused on the alleged unreliability of the identifications

due to pretrial publicity. That alone would not have mandated suppression of the

identifications, but rather would have affected the weight of the witness testimony at trial.

{¶49} Thus, assuming arguendo the suppression witnesses were lacking in all

credibility, and in fact viewed extensive media coverage of the proceedings, the trial court

would have nonetheless denied the suppression motion and allowed the identifications in

at trial. It is at trial that credibility of witnesses becomes a subject for the jury to decide.

In light of this, the trial court's failure to conduct a new suppression hearing was not

erroneous. Accordingly, Caulton's second assignment of error is meritless.

Manifest Weight

{¶50} In his third assignment of error, Caulton asserts:

{¶51} "The trial court denied Appellant due process under the Fourteenth

Amendment due to the fact his conviction for murder with a firearm specification were

[sic} against the manifest weight of the evidence and the jury's verdict was inconsistent

with the evidence and testimony presented at trial."

{¶52} Although this assignment of error contains some language regarding

sufficiency, the crux of Caulton's argument is that his murder conviction is against the

manifest weight of the evidence; i.e., he argues that witness testimony was inconsistent,

unreliable and not credible. "The legal concepts of sufficiency of the evidence and weight

of the evidence are both quantitatively and qualitatively different." State v. Thompkins,

(1997), 78 Ohio St.3d 380, 678 N.E.2d 541, at paragraph two of the syllabus.

"Sufficiency of the evidence" is " 'a term of art meaning that legal standard which is

applied to determine whether the case may go to the jury or whether the evidence is

legally sufficient to support the jury verdict as a matter of law." ' Id. at 386, quoting

Black's Law Dictionary (6th Ed.1990) 1433.

{¶53} In contrast, "[w]eight of the evidence concerns the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather than

the other." (Emphasis sic.) Id. A conviction will only be reversed as against the manifest

weight of the evidence in exceptional circumstances. Id. This is so because the triers of

- 15 -

fact are in a better position to determine credibility issues, since they personally viewed

the demeanor, voice inflections and gestures of the witnesses. State v. Hill (1996), 75

Ohio St.3d 195, 204, 661 N.E.2d 1068; State v. DeHass (1967), 10 Ohio St.2d 230, 231,

39 O.O.2d 366, 227 N.E.2d 212.

{¶54} To determine whether a verdict is against the weight of the evidence, an

appellate court must review the entire record, weigh the evidence and all reasonable

inferences and determine whether, in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered. State v. Thompkins (1997), 78 Ohio St.3d 380, 387,

678 N.E.2d 541.

{¶55} Ultimately, "the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact 'unless it is patently apparent that the

factfinder lost its way.' " State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, at ¶31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, at ¶81.

In other words, "[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,

at ¶13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.

{¶56} Here, Caulton was convicted of murder, pursuant to R.C. 2903.02(A) which

states: "[n]o person shall purposely cause the death of another * * *." Caulton argues his

conviction was against the manifest weight because witness testimony was unreliable and

conflicting. As to unreliability, Caulton focuses his argument on the fact that Caulton's

name, alias and photograph were released to the media soon after the shooting, but

before any witness identified him in the photo array. He contends that this rendered any

witness identification unreliable and his conviction was against the weight of the evidence.

{¶57} While an identification witness' viewing of news media reports about the

defendant could render his or her identification less reliable, there is no evidence of this

occurring in the present case. Denise Leonard, who testified that she saw the two men

- 16 -

tussling on a landing in the bleachers and then saw a gun in Caulton's hand was familiar

with Caulton before the shooting. There was nothing in her trial testimony to indicate that

her identification of Caulton was influenced by news accounts.

{¶58} Further, Christopher Thomas, the other eyewitness who was able to identify

Caulton, had a substantial opportunity to view the shooter as the crime took place. While

shielding his daughter behind him, Thomas got a direct view of the shooter's face as the

incident unfolded. He was able to provide police with an immediate description of the

shooter. Then, upon arriving home, Thomas prepared a detailed diagram of the crime

scene, which he later duplicated during his interview with police.

{¶59} Prior to the shooting Thomas was not familiar with Caulton and there is no

indication in the record that he was influenced by pretrial publicity prior to choosing

Caulton in the photo array. He did overhear the name "Tone Phiffe," mentioned in his

workplace as a possible suspect, and in turn wrote that down on his diagram, which he

later provided to police. But there is no indication that he knew which photo was "Tone

Phiffe," when he viewed the photo array and identified Caulton (aka Phiffe) as the

shooter. Det. Kelty determined that Thomas was a reliable witness before showing him

the photo array, and noted that Thomas' statement was consistent with the physical

evidence, namely the wounds on the victim. For all of these reasons, the eyewitness

testimony was not inherently unreliable.

{¶60} Nor do minor conflicts in witness testimony render Caulton's conviction

against the manifest weight of the evidence. For example, Caulton makes much of the

fact that eyewitness testimony regarding the precise number of shots fired was

inconsistent. Yet everyone testified that the scene following the shooting was chaotic,

and all of the witnesses with the exception of Thomas were admittedly preoccupied with

trying to flee or protect nearby children. The fact that the witnesses either could not recall

exactly how many shots were fired, or recalled incorrectly, does not render other aspects

of their testimony unreliable. Witness testimony regarding the shooting was overall very

consistent; resolving any minor inconsistencies among the witness testimony fell within

the province of the jury. See State v. Hurst, 181 Ohio App.3d 454, 2009-Ohio-983, 909

- 17 -

N.E.2d 653: "The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witness's credibility. 'While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not

render defendant's conviction against the manifest weight or sufficiency of the evidence.'"

Id. at ¶99 (citations omitted).

{¶61} In sum, the jury did not lose its way so as to create a manifest miscarriage

of justice. Rather, the weight of the evidence supports the conviction. Accordingly,

Caulton's third assignment of error is meritless.

Failure to Instruct Jury on Manslaughter

{¶62} In his fourth and final assignment of error, Caulton asserts:

{¶63} "The trial court erred to the prejudice of the Appellant by failing to give

proper instructions to the jury regarding the lesser included instruction for voluntary

manslaughter when evidentiary testimony adduced at trial warranted said instruction."

{¶64} An appellate court reviews a trial court's decision to give or not to give a

particular jury instruction under an abuse of discretion standard. State v. Kaufman, 187

Ohio App.3d 50, 2010-Ohio-1536, 931 N.E.2d 143, at ¶103. An abuse of discretion

connotes more than an error of law or judgment; it implies an attitude on the part of the

court that is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio

St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.

{¶65} Voluntary manslaughter is an inferior offense of murder, not a lesser

included offense; State v. Kanner, 7th Dist. No. 04 MO 10, 2006-Ohio-3485, at ¶17, citing

State v. Shane (1992), 63 Ohio St.3d 630, 632, 590 N.E.2d 272, because the elements of

the crime of voluntary manslaughter are contained within the offense of murder, except

for one or more additional mitigating elements. Id. "Nonetheless, when determining

whether an instruction on voluntary manslaughter should have been given, we apply the

same test utilized when determining whether an instruction on a lesser-included offense

should have been given." State v. Lewers, 5th Dist. No. 2009 CA 00289, 2010-Ohio-

5336, at ¶100, citing Shane, supra at 632.

{¶66} In order to include an instruction for the inferior degree offense of voluntary

- 18 -

manslaughter, the evidence presented at trial must "reasonably support both an acquittal

on the charged crime of murder and a conviction for voluntary manslaughter." Id. The

trial court is required to consider the facts of the case and evaluate the evidence in the

light most favorable to the defendant. State v. Wilkins (1980), 64 Ohio St.2d 382, 388,

415 N.E.2d 303. Thus, a reviewing court must determine whether sufficient evidence was

presented at trial relative to the voluntary manslaughter offense in order to warrant its

inclusion in the instructions to the jury. In order to be entitled to an instruction, a

defendant must show that there is more than "some evidence" meriting such an

instruction. Shane at 632.

{¶67} Murder is defined as, inter alia, "purposely caus[ing] the death of another."

R.C. 2903.02(A). In contrast, voluntary manslaughter is defined as knowingly causing the

death of another "while under the influence of sudden passion or in a sudden fit of rage,

either of which is brought on by serious provocation occasioned by the victim that is

reasonably sufficient to incite the person into using deadly force." R.C. 2903.03(A).

{¶68} In order to warrant an instruction on voluntary manslaughter, the defendant

must prove by a preponderance of the evidence that there was a provocation by the

victim, that the provocation was severe enough to inflame even an ordinary person into

using deadly force, and that the defendant was so inflamed. State v. Mack (1998), 82

Ohio St.3d 198, 201, 694 N.E.2d 1328; Shane at 634. The defendant's burden contains

both an objective and a subjective element. Objectively, "[f]or provocation to be

reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person

beyond the power of his or her control." Id. at 635. And to subjectively determine

whether the provocation by a victim was sufficient to provoke the use of deadly force in a

particular case, "the court must consider the emotional and mental state of the defendant

and the conditions and circumstances that surrounded him at the time." State v. Deem

(1988), 40 Ohio St.3d 205, 211, 533 N.E.2d 294, quoting State v. Mabry (1982), 5 Ohio

App.3d 13, 5 OBR 14, 449 N.E.2d 16, paragraph five of the syllabus.

{¶69} Further, as this court has previously explained in State v. Kanner, 7th Dist.

No. 2006-Ohio-3485:

- 19 -

{¶70} "[A]ny passion or rage felt by an offender who has had time to cool off does

not qualify for 'sudden passion' or 'sudden fit of rage' under the current voluntary

manslaughter statute. The caselaw dealing with the "cooling off" period indicates that it is

a very short time span. * * *

{¶71} "In the past, we have recognized that the few seconds it takes to reload or

readjust one's weapon indicates a sufficient cooling off period: 'the fact that Appellant

shot the victim in the head and then stood over the victim and shot him multiple times

after that tends to show cool deliberation and not sudden passion.' State v. Shakoor, 7th

Dist. No. 01CA121, 2003-Ohio-5140, ¶105; see also State v. Crago (1994), 93 Ohio

App.3d 621, 644, 639 N.E.2d 801." Kanner at ¶28-29 (some internal citations omitted.)

{¶72} Here the evidence of provocation was scant. Danielle Howard testified that

she saw the victim "throw up his hands, like let's fight," and there was testimony from

several witnesses about scuffling or "tussling" between the two men before the gunshots.

However, as indicated, in order to be entitled to an instruction, a defendant must show

that there is more than "some evidence" meriting such an instruction. Shane at 632.

Moreover, the fact that Caulton shot Jones several times, walked away, and then returned

to "finish him off," shooting him several more times, seems to demonstrate cool

deliberation, not sudden passion.

{¶73} The facts of this case do not reasonably support both an acquittal on the

charged crime of murder and a conviction for voluntary manslaughter. Thus, the trial

court did not abuse its discretion when it declined to instruct the jury on the offense of

voluntary manslaughter. Accordingly, Caulton's fourth assignment of error is meritless.

{¶74} In sum, Caulton's speedy trial rights were not violated; taking into

consideration the tolling events, less than 270 days elapsed between his arrest in

Mahoning County and his execution of a speedy trial waiver. Second, the trial court did

not err by failing to conduct a new suppression hearing before the successor judge;

Caulton only challenged the credibility of the witnesses' identification at the scene, which

is properly tested at trial, he did not challenge the propriety of the photo array. Third, by

convicting Caulton of murder the jury clearly did not lose its way so as to create a

- 20 -

manifest miscarriage of justice. Finally, because the facts of this case do not reasonably

support both an acquittal on the charged crime of murder and a conviction for voluntary

manslaughter, the trial court properly and reasonably declined to instruct the jury on the

offense of voluntary manslaughter. Accordingly, the judgment of the trial court is

affirmed.

Waite, P.J., concurs.

Donofrio, J., concurs.