Opposition Brief — Trevonte Jenkins, Petitioner v. Ohio

No. 18-7825

In the Supreme Court of the Anited States

Trevonte Jenkins,

Petitioner,

Vv.

State of Ohio,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE OHIO COURT OF APPEALS, EIGHTH

APPELLATE DISTRICT

BRIEF IN OPPOSITION

MICHAEL C. O'MALLEY

Cuyahoga County Prosecutor

KATHERINE E. MULLIN*

Assistant Prosecuting Attorney

*Counsel of Record

1200 Ontario Street, 8th Floor

Cleveland, Ohio 44113

216-698-6454

kemullin@prosecutor.cuyahogacounty.us

Counsel for Respondent

State of Ohio

QUESTIONS PRESENTED

In Neil v. Biggers, 409 U.S. 188, 198 (1972), the Court reaffirmed that “[i]t is

the likelihood of misidentification which violates a defendant’s right to due process

[...].” When police use an unnecessarily suggestive procedure, courts must review

the “totality of the circumstances” to determine if an identification is reliable “even

though the confrontation procedure was suggestive.” Id. at 199. However, “for those

defendants who are identified under suggestive circumstances not arranged by

police, the requirements of due process are satisfied in the ordinary protections of

trial.” United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir. 2018) (citing Perry

uv. New Hampshire, 565 U.S. 228, 132 S.Ct. 716 (2012)).

Prior to trial, Petitioner Trevonte Jenkins filed a motion to prohibit the

identification testimony of witness John Eanes, Jr (“Eanes”). Relying on Biggers,

Jenkins argued that Eanes’s in-court identification was unreliable due to the passage

of time. At Jenkins’s request, the trial court applied Biggers and denied Jenkins’s

motion. Jenkins’s conviction was affirmed on appeal by an Ohio appellate court. State

v. Jenkins, Eighth Dist. App. No. 105881, 2018 Ohio App. LEXIS 2598, 2018-Ohio-

2397. That court, citing Biggers, held that Eanes had a reliable, independent basis for

the identification prior to his testimony. Jd. at 140. The Ohio Supreme Court declined

to accept Jenkins’s appeal.

This case presents two questions:

1. Did Jenkins forfeit his argument that a standard other than Neil v.

Biggers should apply to first-time in-court identifications?

2. What standard should courts apply to determine the admissibility of

first-time in-court identifications where there is no evidence that police used an

unnecessarily suggestive procedure?

LIST OF PARTIES

All parties appear in the caption of the cover page.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 00. ccccecesctseseseseneseeesesesssasscsesee soesesenesaeeeaeetaeecieaneesieesieeess i

LIST OF PARTIES 0.0.0... eee ccc eceseceeecceeeaeneeeeeeenaeeaeeeeeaasueeesneeeeesusaeesseseseeenseeeaaea li

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TABLE OF AUTHORITIES ooo. ee ececesceseceeecseeneeenesseesaesseeeeeeesceeeneeeseseeseseseesseesees lv

INTRODUCTION Woe ececceeceneeseesenecteesetsseesaenaesseeenessassessieescesscosaeeeeseesesasssenaeneesenees 1

COUNTERSTATEMENT ooo. ccseeeescsesseseceeeaeeaceaeeaeesseseececessaceeceseaecaesaeseneenensess 1

REASONS FOR DENYING THE WRIT ono... cceecceeseseneneeeeeseeeneesesaeeeseeeeseeeeeteeaeseneetaes 8

I. THE COURT SHOULD DENY REVIEW BECAUSE THE PETITIONER

FORFEITED HIS CLAIM uuu... sssesssescssssssessusssssseesessssnssssseessuansanseesseanatnsesasseceesivarsereseettnnecesettaeeeseeeeet 8

I THE COURT OF APPEALS RULING COMPORTS WITH THIS COURT'S CASES

‘ AND WITH CASES FROM OTHER JURISDICTIONS ........:.ccccceccssvecsecsseseuseseeese 10°

TI THE COURTS PRECEDENT DOES NOT SUPPORT PETITIONER'S REQUEST FOR

A BRIGHT LINE RULE PROHIBITING ALL FIRST-TIME IN-COURT

IDENTIFICATIONS ...........00006 dnnceanecnseeeeceeeeeeeseeeceessuseaenescessaesuaausaqaaeeseeseeeeesees 11,

CONCLUSION oe ..ececcccececceeceeeceeceeeeaseeseeceeecsesesseesaeessat ceases cseseserssseaeesseseesateeseesss 18

Appendix

Motion in Limine to Exclude In-Court Identification testimony, State v. Trevonte

Jenkins, Cuyahoga County Case No. CR 610627

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Freytag v. Commissioner, 501 U.S. 868, 894, fn. 2, 111 S.Ct. 2681 (1991) wee 9

Gunnells v. Cartledge, 669 F.App’x 165 (4th Cir. 2016) ....cccccsecccscceecssescssesesseseseeessesees 11

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 (1988)... cccesceccsssesssessescersscenseeennes 9

Kennaugh v. Miller, 289 F.8d 86, 47 (2002) ...cccccccsccsssssscssssseeccsssecsessscessscseassesasestesssssacscnscee 10

Manson v. Brathwaite, 482 U.S. 98, 97 S.Ct. 2248 (1977) ..cccessccssssssesseessccsreseesstennennss

Neil v. Biggers, 409 U.S. 188, 198 (1972) .cccecsscsssessesssesssessssseasssssseeneceneees

Perry v. New Hampshire, 565 U.S. 228, 182 S.Ct. 716 (2012)... eceesssseeeteeseeeeeee i

Rice v. Warden, Leath Corr. Inst., 2017 U.S. Dist. LEXIS 157170

State v. Jenkins, Eighth Dist. App. No. 105881, 2018 Ohio App. LEXIS 2598, 2018-

ON10-2897 ooeeeeccccesetcescecseeceesessensecescessesenceesssesstscasseatscesvenseassensses . wel

United States v. Correa-Osorio, 784 F.3d 11, 16 (2015)..cc.cccccccessceessscsssscssesessesesassssenes 10

United States v. Matthews, 20 F.3d 538 (2d Cir. 1994) ...ccccsscssssessecnersesessseecsssessseeseeseess 10

United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir. 2018)... ecsseesesseseeseeseees i

iv

INTRODUCTION

Trevonte Jenkins has filed a petition for certiorari asking the Court to adopt a

bright line rule prohibiting the use of first-time in-court identifications. Neither the

Court nor the Circuit Courts nor the state courts have taken that approach. Instead,

courts are guided by reliability. The Ohio courts, applying Biggers, found that

Eanes’s identification was reliable under the totality of the circumstances.

Jenkins now argues that Biggers does not effectively determine the reliability of

first-time in-court identifications. But he did not make that argument to the trial

court. Nor did he make that argument to the appellate court. Instead, Jenkins argued

that Eanes’s identification should be excluded following application of Biggers. In light

of Jenkins’s failure to preserve this claim, the Court should deny certiorari.

Even if Jenkins preserved his claim, the Court should not grant review. The

state appellate court found affirmed, finding that Eanes had a reliable, independent

basis for the identification prior to his testimony. State v. Jenkins, 2018-Ohio-2397,

40. The lower court’s application of Biggers to first-time in-court identification may

have been unnecessary in light of Perry, but its application provided Jenkins with

more protection that the United States Constitution requires.

COUNTERSTATEMENT

John Eanes, Jr. (“Eanes”) worked for G-Security providing private security for

events in the Cleveland area. On October 8, 2016, Eanes worked as the downstairs

doorman for Phantasy Nightclub in Lakewood, Ohio. He was tasked with patrolling

the door and sidewalk area. That night, Eanes observed a male physically assault his

female companion. A group of men tried to break up the fight, and Eanes intervened.

1

Testimony established that the area was well lit with streetlights and safety lights

from the nightclub.

Eanes testified that he got a “good look” at the male, female, and the vehicle

the male left in. He stated that the female, later identified as Sara Super, appeared

to be under the influence. Super used another security guard’s phone to call the male

for a ride back home. The male returned driving the same car that Eanes observed

leave the area. The male pulled out of a nearby business and began to open fire on the

‘nightclub. Eanes testified that he saw the same male as before, and that the male

“look[ed] him dead in [his] eye.”

After hearing from Eanes at a pretrial motion hearing, the trial court denied

Jenkins’s motion in limine. At Jenkins’s suggestion, the trial court applied the test

from Biggers and found Eanes’s identification was reliable.

The state presented Eanes and other witnesses that confirmed Jenkins guilt.

The following facts are summarized by the appellate court:

“On October 7, 2016, the Beautiful Soulz festival, featuring local hip-hop

artists, took place at the Phantasy club on Detroit Avenue in Lakewood,

Ohio. Phantasy is part of a larger complex containing three separate

bars and venues, including the Phantasy, the Symposium, and the

Chamber.

Jonathan Bobak went to Phantasy that night after one of the performing

artist's promoters hired him to take photographs of the event. Bobak

testified that he went outside the complex to smoke a cigarette around

10:00 p.m. that evening. He stated that while outside, he saw Jenkins

‘hit "a Caucasian female," who he believed to be Jenkins's girlfriend,

multiple times on the sidewalk outside of the complex. Bobak testified

that a number of men approached and beat up Jenkins for hitting his

girlfriend and that he eventually intervened because the men were

"really kind of roughing [Jenkins] up a bit" and figured that Jenkins had

"learned his lesson." Bobak told Jenkins to go home and saw him walk

toward Value World, which was a few hundred feet away from the

complex. He testified that people visiting the complex typically park in

the Value World parking lot for events.

According to Bobak, after Jenkins left, the woman who Jenkins had hit

was a "mess," crying and slurring her words. He stated that the woman

kept saying that she "needed to call [her] dude" and that she appeared

to be under the influence "of something." Bobak eventually left to go

back inside to the festival, and after working for another hour and a half,

decided to leave and walked outside around 12:00 a.m. He testified that

as he waited for his ride, he saw the same woman from earlier walking

toward Value World and then get into the passenger side of a white

vehicle parked in the businesses' parking lot. Bobak could not see who

was driving the white vehicle. He stated that the vehicle exited the

Value World parking lot, turned left on Detroit, and drove by the

complex. He testified that he saw the vehicle's driver's-side window roll

down right before gunshots were fired toward the complex and that upon

realizing that it was gunfire, people began running into the complex.

Bobak suffered a gunshot wound to his right leg during the incident, and

he testified that he received treatment for the wound a few hours later. —

Bobak also testified that law enforcement visited him later that day to

look at a photo array. Bobak identified Jenkins in the photo array as the

man involved in the fight with the woman that occurred earlier on the

night of October 7 outside of Phantasy. At trial, Bobak stated that

although he did not see the shooter, he assumed that Jenkins was the

shooter after witnessing the woman get into the vehicle later after

saying she needed to contact "her dude."

George Trouche testified that he visited Phantasy on October 7, 2016, to

perform at the music festival. He stated that toward the end of the night

he was waiting outside for a ride when someone started shooting. He

testified that he was standing outside in front of the complex when he

heard the gunshots. He ran inside and later realized that he had been

shot in the leg. At trial, Trouche admitted that he did not see where the

shots were coming from or who the shooter was.

Gregory Cunningham testified that he is the owner of G-Enforcement, a

personal security company that staffs security guards for venues and

celebrities. He stated that he, along with several of his employees, were

at the complex that night, working the venues and the entrances.

According to Cunningham, at one point during the evening, he was

outside the complex and witnessed a "young man fighting a * * * white

young lady." He testified that he saw the man punch the woman "at

least" five times before he intervened and that some other men

approached the young man and started fighting with him. Cunningham

eventually intervened in the fight between the man and the other men,

3

and after he broke up that fight, the man walked toward the Value

World parking lot and got into a white four-door vehicle. He stated that

after breaking up the fight, the woman, who seemed intoxicated, said

that the man was her boyfriend. ,

Cunningham testified that the woman asked him if she could use his

cell phone to call her boyfriend so that he could come back and get her.

Cunningham gave her his phone, retrieved it a few minutes later, and

then went back inside Phantasy. A few minutes later, a number of

people ran inside the complex shouting, "[H]e's out there shooting, the

young man that drove away in the white car."

While he was not outside when the shots were fired, Cunningham

testified that he spoke to law enforcement when they arrived and viewed

a photo lineup later that day. The lineup administration form was

presented at trial and shows that one of the six pictures is circled; the

one that is circled is not Jenkins. When presented with the form at trial,

Cunningham testified that he did not personally cirele or initial the page

with the pictures of the suspects. He testified that he told the officer that

he recognized two men in the lineup, one of whom was Jenkins. He also

told the officer that the men he identified were at Phantasy and that

_ Jenkins was the man involved in the fight with the woman.

John Eanes, Jr. testified that he worked as a security guard for G

Enforcement, and that he was working Phantasy's front door all night.

He testified that during the night, he witnessed a man and woman

arguing and fighting a few feet away from Phantasy's entrance. He

stated that they were screaming at each other for a few minutes when

the man began hitting the woman. Hanes said that a group of men then

approached the man and began fighting him and that eventually he and

Cunningham intervened. He stated that after the fight was broken up,

Jenkins walked toward the Value World parking lot and, a few minutes

later, pulled out of the parking lot in a "white Ford Fusion."

Eanes testified that the woman with whom Jenkins was fighting

remained outside of Phantasy and seemed to be "high or something." He

stated that the woman indicated that she needed a ride to Lorain County

and that he radioed Cunningham to assist her. About two hours later,

Eanes saw the white vehicle retuin and pull into the Value World

parking lot. He also saw the woman walk toward Value World and

testified that a short time later, the white vehicle pulled out and drove

toward Phantasy. Eanes stated that as the vehicle approached

Phantasy, he saw the vehicle's driver's-side window roll down, saw

Jenkins's face, saw the woman in the passenger seat, and saw Jenkins

point a gun out of the driver's-side window toward the group of people

in front of Phantasy. He stated that there were about 20 people outside

4

of Phantasy at that time and that he told everyone to get inside when

the gunfire started.

According to Eanes, he did not speak to the police because he told

Cunningham what he witnessed and that Cunningham took the lead

and said he would contact Eanes if he needed anything. Eanes testified

that he did not speak to police until a few weeks before trial, months

after the shooting. When asked why he did not give a statement to the

police earlier, Eanes stated that he was not aware that the police had

identified and caught the shooter.

At trial, Eanes stated that he got a good look at both the man and the

woman and that the lighting in the area outside of Phantasy was good.

He testified that he remembered the man who was fighting the woman

and identified Jenkins as that man in court.

Sadie Jones testified that she worked as a bartender at Phantasy that

night and arrived around 7:00 p.m., parking her 2006 Ford Freestyle

right in front of the entrance to the venue. During the shooting, Jones's

vehicle was hit multiple times. Jones stated that her vehicle's rear tire

was flat as the result of a gunshot, the driver's-side window was "shot

out," her driver's-side door had-a bullet hole, and her driver's-side

headrest had a bullet hole.

Sarah Super testified that she went to Phantasy on the night of October

7 with Jenkins, who was her boyfriend at the time, but as of the date of

trial was her fiancé. She stated that they went to the club around 9:30

p.m. and that Jenkins drove them in a white four-door rental car and

that they parked "around the corner from the club[.]" Super stated that

she did not know the make or model of the vehicle.

According to Super, she drank a Four Loko on the way to Phantasy and

continued drinking at Phantasy and was heavily intoxicated. Because of

this, Super explained that she did not recall getting into a verbal or

physical altercation with Jenkins that night. When asked about the

bruises that officers observed the next day at Super's house, Super

testified that it was "probably" from her “drunk stumbling" that night

and that she "probably fell down [her] steps[.]" Exhibits submitted by

the state during Super's testimony showed bruises and scratches on

Super's chin, neck, right eye, left cheek, lower back, arms, and elbow.

Super stated that she did not have the bruises before going to Phantasy

that night.

Super testified that she did not remember leaving Phantasy and did not

know how she got home that night. She blacked out and did not recall

hearing any gunfire. Super stated that when she woke up the next

5

morning, Jenkins was with her, and the white rental car they drove to

Phantasy the night before was parked outside of her home. When shown

a photograph of the rental vehicle, she confirmed that the vehicle's

license plate was from Wisconsin and read 876XPZ. When shown

another photograph of items found in the vehicle, Super identified one

of the items as her wallet, but stated that she could not remember if she

had her wallet on her person when she went to Phantasy on October 7.

Officer Daniel Hilfiker testified that he was the officer who administered

the photo lineup with Cunningham. He testified that Cunningham

wrote on the form and circled the picture. The officer was unclear as to

what his instructions were. He stated that after reading Cunningham

the instructions, he "showed him the pictures, and [] said if you see

anybody you recognize, * * * just circle them, initial and date.” Later,

however, Officer Hilfiker agreed that the purpose of the photo lineup

was to identify the shooter. He also testified that Cunningham only

identified one individual, which was not Jenkins, and that he

understood Cunningham's identification to be of the shooter.

Officer Ariana Zuk of the Lakewood Police Department testified that she

responded to a call of an incident at Phantasy on October 8 and, upon

arriving, began identifying evidence at the scene. She testified that she

discovered that the suspect shooter had been identified as a "[b]lack

male who was with a white female[, who] * * * had left eastbound in a

white four-door vehicle[.]" Officer Zuk stated that officers found a

keychain with a tag at the scene that "came off of the suspected shooter"

and contained the make, model, and year of the vehicle (‘2015 HYUN

ACNT"), the license plate number ("876XPZ"), and the vehicle's color

("white"). The tag also stated, "Average Key Replacement Cost $225."

Laura Stanton testified that she is a forensic DNA analyst with the

Cuyahoga County Medical Examiner's Office. She explained that based

on her test of item four, which was a blood swab from the driver's seat

of the white rental vehicle (ater identified as a Hyundai Accent),

Jenkins was the source of the DNA to a reasonable degree of scientific

certainty.

Officer Jeffrey Robinson of the Lakewood Police Department testified

that he responded to the scene and took photographs of the evidence and

that based on the bullet holes in Jones's vehicle, the shots were "coming

from a moving object[.]" He admitted on cross-examination, however,

that his conclusion was a general assumption based on his observations

and was not the result of in-depth calculations concerning the bullet

holes' angles.

Sergeant Duane Brown of the Lakewood Police Department testified

that he was in the police. station that night when he received a request

to check the traffic cameras for information related to a drive-by

shooting that occurred outside of Phantasy. He said that he received a

phone call about shots being fired around 12:46 a.m. He reviewed the

footage and witnessed a white four-door sedan driving northbound on

West 117th Street toward Phantasy around 12:41 a.m. He stated that

another camera captured the same car heading westbound on Detroit

Avenue toward Phantasy a minute later. At trial, Sergeant Brown

admitted that the cameras did not capture any part of the drive-by

shooting.

Detective Terry Miller of the Lakewood Police Department testified that

he was assigned to investigate the shooting outside of Phantasy and

reviewed the footage collected from the traffic cameras. He identified the

suspect vehicle based on the keychain collected from the scene and

observed the vehicle on the footage entering the city around 12:41 a.m.

When asked about some of the witnesses’ statements that the suspect

vehicle was a Ford Fusion or Taurus, Detective Miller stated that he did

not "put a lot of credence into that" because "[g]enerally, sedans that are

all generic looking, anybody in my opinion can be confused|[.]" Detective

Miller stated that he was able to identify the vehicle's license plate

information from a still photograph of the camera footage "[a]fter kind

of zooming in and out." Detective Miller stated that he contacted

Enterprise Rent-A-Car and learned that the vehicle was a 2015 Hyundai

Accent that was rented to Jenkins from an Enterprise location in Elyria.

Based on that information, Detective Miller explained that officers

obtained an arrest warrant for Jenkins and a search warrant for the

addresses where police believed Jenkins lived, one of which was Super's

home in Elyria. According to Detective Miller, during the search of

Super's home, as well as the search of the white rental vehicle parked

outside of the home, officers located and photographed a ticket stub for

the Beautiful Soulz festival on the weekend of October 7-8. Detective

Miller stated that officers collected blood from the driver's seat vehicle

of the car as well based on the fact that witnesses told officers that the

shooter was in a fight earlier in the night and was "possibly bleeding."

During the search, officers also collected some items of clothing,

including a black T-shirt and a pair of blue jeans, which Super told

officers that Jenkins wore to Phantasy on the night of the shooting.

Further, when asked why officers did not contact Eanes right away,

Detective Miller stated that officers "weren't aware that he existed as

far as someone who had actually been a witness to the events."

During trial, Jenkins requested that the court give the jury the

instruction concerning eyewitness identification set forth in United

7

States v. Teifaire, 469 F.2d 552, 152 U.S. App. D.C. 146 (D.C. Cir.1972),

but the court denied his request.

The jury found Jenkins guilty of all counts and the related firearm

specifications. The bench found Jenkins guilty of having weapons while

under disability and the notice of prior conviction and repeat violent

offender specifications.

At sentencing, the court found that the one- and three-year firearm

specifications for the counts of attempted murder, discharge of firearm

on or near prohibited premises, improperly handling firearms in a motor

vehicle, and having weapons while under disability merged. The court

merged the three-year firearm specifications for attempted murder and

discharge of a firearm on or near prohibited premises and additionally

merged all of the five-year firearm specifications.

As to the counts themselves, the court merged Counts 1 (attempted

murder), 3 (felonious assault), and 5 (discharge of firearm on or near

prohibited premises) and merged Counts 2 (attempted murder), 4

(felonious assault), and 6 (discharge of firearm on or near prohibited

premises). The state elected to proceed to sentencing on Counts 1 and 2.

The court sentenced Jenkins to 4 years of prison for Count 1, which was

to run consecutive to the 3- and 5-year firearm specifications tied to that

count, for a total of 12 years of prison. The court then sentenced Jenkins

to 4 years of prison for Count 2, which was to run consecutive to the

attached 3-year firearm specification for that count, for a total of 7 years

of prison. The court sentenced Jenkins to 12-month terms of prison for

his convictions for improperly handling firearms in a motor vehicle,

which the court found did not merge; a 12-month term of prison for his

conviction for having weapons while under disability; and 180-day terms

of jail for his convictions for criminal damaging and domestic violence.

All of those terms were to run concurrent to Jenkins's 7-year sentence

for Count 2. Finally, the court ordered that Jenkins's sentence for Count

2 (7 years) run consecutive to his sentence for Count 1 (12 years), giving

Jenkins an aggregate prison sentence of 19 years.

State v. Jenkins, Eighth Dist. App. No. 105881, 2018-Ohio-2397, 6-33.

REASONS FOR DENYING THE WRIT

I. THE COURT SHOULD DENY REVIEW BECAUSE THE PETITIONER FAILED TO

PRESERVE HIS CLAIM.

Jenkins has not preserved his argument to the Court, and certiorari should be

denied.

Jenkins asks the Court to ¢reate a rule prohibiting first-time in-court

identification. He argues that the Biggers standard is unworkable in the absence of a

pretrial identification, and that the Court should accept this case to prohibit the

“inherently unreliable” identification in this case. But this case is a poor vehicle for

determining the issues presented as Jenkins did not raise this issue in the trial or

appellate court. Instead, Jenkins filed a motion in limine with the trial court asking

the court to apply Biggers. See Mt. in Limine to Exclude In-Court Identification

Testimony (Appendix).

A party can intentionally relinquish a known right or privilege by waiving their

rights. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 (1938). Some rights may .

also be forfeited “by means short of a waiver.” Freytag v. Commissioner, 501 U.S. 868,

894, fn. 2, 111 8.Ct. 2631 (1991)(Scalia, J., concurring in part). Jenkins did not merely

forget to object, he asked the trial court to apply the same case he now asks the Court

to abandon. The Court should not grant certiorari over an issue that was not presented

in the lower courts.

Even if the issue were preserved, Jenkins’s question does not warrant review.

Jenkins guilt did not rest solely on the Eanes’s identification. Jenkins, while

assaulting his girlfriend, dropped a keychain to the vehicle he used during the driveby shooting, his DNA was recovered from the vehicle along with a ticket to the concert,

his girlfriend confirmed that he was at the concert and the car he drove, and video

surveillance shows the vehicle consistent with the time frame of the shooting. Even if

Eanes’s identification

II. THE COURT OF APPEALS RULING COMPORTS WITH THIS COURT’S CASES

AND WITH CASES FROM OTHER JURISDICTIONS

The Ohio courts applied the test that Jenkins requested. Ohio is not alone in

applying Biggers to first-time in court identifications.

Federal courts have applied the Biggers test to in-court identification. See

United States v. Matthews, 20 F.3d 538 (2d Cir. 1994). As the Second Circuit noted, the

“Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits have held that in-court

identification testimony in the absence of a pretrial identification must satisfy the

Manson [v. Brathwaite, 482 U.S. 98, 97 S.Ct. 2243 (1977)] reliability standard, either

by meeting the Biggers requirements or in other ways.” Kennaugh v. Miller, 289 F.3d

36, 47 (2002).

There has recently been some debate whether first-time in-court identifications

should instead be reviewed under Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716

(2012). See United Siates v. Correa-Osorio, 784 F.3d 11, 16 (2015). Perry argued the

Court's precedent supported “a rule requiring trial judges to prescreen eyewitness

evidence for reliability any time an identification is made under suggestive

circumstances.” Id. at 725. The Court disagreed.

Had the trial court applied Perry to the instant case, Eanes would still have been

permitted to testify. There was no suggestion that the police used an unnecessarily

suggestive identification procedure. The police did not seek to obtain an identification

from Eanes at all. As the Court noted, “all in-court identifications” involve some

element of suggestion. Jd. at 727. That does not render the identification inadmissible

under the United States Constitution.

10

Jenkins cites Rice v. Warden, Leath Corr. Inst., 2017 U.S. Dist. LEXIS 157170

(U.S. Dist. S.C.) for the proposition that some courts do not apply Biggers to in-court

identifications. The Rice court denied habeas relief, finding that it was not

unreasonable for the state court to refuse to apply Biggers to Rice’s claim. The district

court noted that the “Supreme Court of South Carolina has ‘concluded as the majority

of courts have, that Neil v. Biggers does not apply to in-court identifications and that

the remedy for any alleged suggestiveness of an in-court identification is crossexamination and argument.” Id. (citing Gunnells v. Cartledge, 669 F.App’x 165 (4th

Cir. 2016).

Applying Perry rather than Biggers does not support Jenkins claim. Jenkins

defense counsel was able to cross-examine Eanes and had an opportunity to test the

strength of his identification. This method of attack did not deprive Jenkins of due

process. The Court should decline to grant certiorari.

II. THE CourtT’s PRECEDENT DOES NOT SUPPORT PETITIONER’S REQUEST FOR

A BRIGHT LINE RULE PROHIBITING ALL FIRST-TIME IN-COURT

IDENTIFICATIONS

Jenkins advocates for a bright-line rule prohibiting the use of first-time in-court

identification. His rule is not supported by precedent from any court and is specifically

incompatible with Perry.

The Perry Court held that “[iJnstead of mandating a per se exclusionary rule,

the Court held that the Due Process Clause requires courts to assess, on a case-bycase basis, whether improper police conduct created a ‘substantial likelihood of

misidentification.” Perry at 239 (citing Biggers, 409 U.S., at 201). This is because “[a]

rule requiring automatic exclusion” because it would prohibit the admission of

il

evidence that is otherwise reliable and relevant. Jd. The Court has declined to adopt

a bright-line rule even when there is evidence that police used an unnecessarily

suggestive procedure, and it should not create one here where the police had no

involvement in the identification.

Jenkins proposal is unsupported and is not constitutionally required. The Court

should decline certiorari.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MICHAEL C. O’-MALLEY

yi County Prosecutor

fall

KATHERINE E. MULLIN*

Assistant Prosecuting Attorney

*Counsel of Record

1200 Ontario Street, 8th Floor

Cleveland, Ohio 44113

216-698-6454

kemullin@prosecutor.cuyahogacounty.us

Counsel for Respondent State of Ohio

13

No. 18-7825

Iu the Supreme Court of the United States

Trevonte Jenkins,

Petitioner,

v.

State of Ohio,

Respondents.

INDEX OF APPENDICES

Appendix:

Motion in limine to exclude in-court identification

testimony, State v. Trevonte Jenkins, Cuyahoga County

Case No. CR 610627

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

CRIMINAL DIVISION

STATE OF OHIO CR610627

Plaintiff JUDGE STEVEN GALL

--VS-- | MOTION IN LIMINE TO EXCLUDE

IN-COURT IDENTIFICATION TESTIMONY

TREVONTE JENKINS (Oral Hearing Requested)

Now comes Defendant, Trevonte Jenkins, by and through the undersigned counsel, and

respectfully moves this Honorable Court for an ORDER in limine excluding any in-court

identification of Defendant by witness John Eanes, which the state may intend to introduce at

trial, since the admission of such unduly suggestive and unreliable evidence would violate the

Due Process Clauses of the Fourteenth Amendment to the United States Constitution, Article I,

Section 10 of the Constitution of the state of Ohio, and the case law.

Reasons are set forth more fully in the attached Memorandum, and shall be adduced and

supplemented at oral hearing in the matter.

Respectfully submitted,

ROBERT L. TOBIK

Chief Public Defender

/s/ Jason G. Haller

- JASON G. HALLER [0072674]

Assistant Public Defender

Attorney for Defendant

310 West Lakeside Ave, Ste 400

Cleveland, Ohio 44113

(216) 443-8375

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MEMORANDUM IN SUPPORT

I. STATEMENT OF FACTS/PROCEDURAL HISTORY

On the 14% of October 2016, Defendant was indicted in an eleven-count indictment

regarding a shooting incident occurring on October 8, 2016 outside of Symposium nightclub

located at 11794 Detroit Avenue, Lakewood, Ohio. The matter was set to proceed to jury trial on

April 3, 2017. On April 3°, the State indicated to defense counsel that a new witness had come

forward and appeared at Court that day. The witness is John Eanes (hereinafter “EANES”), a

security guard employed at the nightclub. EANES stated that he witnessed events leading up to

the shooting and the shooting itself. The State permitted defense counsel to question EANES

regarding the events of that night. EANES indicated that he could identify the shooter.

Upon information and belief, EANES discussed the case with alleged victim Jonathan

Bobak outside of the Courtroom and also viewed the Defendant from outside the Courtroom

doors while Defendant was in the Courtroom facing to the rear (in the direction of EAN. ES).

Il. LAW AND ARGUMENT

Any in-court identifications by EANES would violate Defendant’s fundamental right to

due process of law, since EANES never made an out-of-coutt identification. It is well-settled that

a confrontation or identification can be so unfair that it infringes an accused’s right to due

process of law. Stovall v. Denno (1967), 388 U.S. 293. A criminal defendant has a due process

right not to be subjected to suggestive identification procedures that create a “very substantial

likelihood of irreparable misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct.

2243, 2254, 53 L.Ed.2d 140 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967,

971, 19 L.Ed.2d 1247 (1968)). This includes in-court identifications. The United States Supreme

Court has made it clear that an in-court identification of a suspect as the person who committed

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the crime must have an out-of-court basis or such procedure will be deemed unduly suggestive

and conducive to irreparable misidentification in violation of the Due Process Clause of the U.S.

Constitution. Stovall, supra.

Because of the per se undue suggestiveness of any in-court identification by EANES in

this case, the State must show that under a ‘totality of the circumstances' test the prospective incourt identifications would be reliable even though the confrontation procedure was suggestive.

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972). (See United States v. Hill, 967 F.2d 226, 232

(6th Cir.1992) holding Biggers totality of circumstances test applied to witness' in-court

identification of defendant, whom witness had never before positively identified in person. )

Test for Independent Reliability of In-Court Identifications

The Supreme Court in Biggers set forth a list of at least five factors for use in

determining the independent reliability of an identification, including an in-court identification.

They are: 1) “the opportunity of the witness to view the criminal at the time of the crime, 2) the

witness’ degree of attention, 3) the accuracy of {the witness'] prior description of the criminal, 4)

the level of certainty demonstrated at the confrontation, and 5) the time between the crime and

the confrontation.” Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; Biggers, 409 US. at 199-200,

93 S.Ct. at 382. This rule is intended to avoid distortion of witnesses’ recollection by

circumstances, by the passage of time, or by police actions. These factors are weighed against the

corruptive effect of the suggestive identification. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253.

1) The Opportunity of the Witness to View the Criminal at the Time of the Crime and 2)

The Witness’ Degree of Attention

The alleged offense occurred at night time in the dark in less than a minute. EANES

indicates that he was engaged in his employment and speaking to other individuals when the

shots were fired from a moving car. EANES misidentified the make and model of the car. Based

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on these known facts, EANES degree of attention and opportunity to view the suspect were

minimal.

3) The Accuracy of the Witness' Prior Description of the Suspect

EANES never provided any identifying features such as height, weight, race, facial

features, clothing description, etc., to Lakewood PD on the night of the incident or in the

intervening months leading up to the trial date. EANES stated that he preferred to allow his

employer, Greg Cunningham, to speak to police.

4) The Level of Certainty Demonstrated at the Confrontation

_ This factor does not apply as the prospective out-of-court confrontation never occurred.

5) Time Between Crime and Confrontation

Approximately six months will have elapsed between the alleged offense and the trial

date in this matter. This long length of time between the crime and any potential identification at

trial weighs against a finding of reliability. See Biggers, 409 U.S. at 201, 93 S.Ct. at 383 (“[A]

lapse of seven months between the [crime] and the confrontation ...would be a seriously negative

factor in most cases.”). (Emphasis added),

Conclusion

The Biggers factors do not indicate in any way the reliability of the witness’ prospective

in-court identification. Therefore, the admission of an in-court identification would be

constitutional error.

WHEREFORE, pursuant to the foregoing law and argument, Defendant respectfully

requests this Honorable Court to exclude any and all in-court identification evidence from

EANES that the State intends to introduce at trial.

Respectfully submitted,

/s/ Jason G. Haller

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JASON G. HALLER [0072674]

Attorney for Defendant

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that a true and accurate copy of the foregoing

Motion and Memorandum was forwarded by means of electronic delivery to Cuyahoga County

Prosecutor, Michael O’Malley, and/or a member of his staff, on this 10th day of April 2017.

és/ Jason G. Haller

JASON G. HALLER [0072674]

Attorney for Defendant

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