OVI LAW: “show up” identification upheld
City of New Lexington v. Stanley, 2010-Ohio-1916, 09-CA-5 (OHCA5)
FACTS: On September 20, 2008, Jennifer Stenson was outside of her home at 402 Mill Street, in New Lexington, Ohio, when she heard a car crash nearby. Ms. Stenson was sitting outside in her yard with several friends after a local high school football game when she heard the crash.
Ms. Stenson, and others who were with her, began to look around for the source of the crash. As she walked towards an alley to the side of her house, Ms. Stenson observed a dark colored pickup truck wrecked in some bushes in the alley. She approached the driver’s side door of the truck and a man, later identified as Appellant, exited the vehicle. She described Appellant as wearing an orange shirt, a hat, and jeans. Ms. Stenson asked the man exiting the truck if he was okay. He responded that he was “fine” and walked away. It was Ms. Stenson’s impression at that time that the man was drunk.
As the man walked away, Ms. Stenson observed a police cruiser at the other end of the alley on Mill Street. Ms. Stenson relayed her observations to Sergeant Richard Cline. Sergeant Cline contacted dispatch and relayed the license plate of the truck. Dispatch reported that the owner of the vehicle was an individual named Larry Stanley. Sergeant Cline drove his cruiser away from the scene in order to look for the man who had exited the truck. Within five minutes, Sergeant Cline found Appellant between two houses, wearing an orange shirt, a ball cap, and jeans. He appeared to have stumbled and fallen and was trying to get up when Sergeant Cline approached him.
Sergeant Cline returned to the scene with Appellant in the back of the cruiser. At that time he asked Ms. Stenson if she could identify Appellant. He escorted her to the cruiser and shined his flashlight into the back of the cruiser. Ms. Stenson positively identified Appellant as being the man she saw exit from the driver’s side of the wrecked truck.
Issue: The issue in the case involved whether the “show up” identification was so inherently suggestive that it should have been suppressed.
Ruling:A “show-up” identification is inherently suggestive. Ohio v. Barnett (1990), 67 Ohio.App.3d 760, 588 N.E.2d 887. However, the “admission of evidence of a show-up without more does not violate due process.” Neil v. Biggers (1972), 409 U.S. 188, 198, 93 S.Ct. 375. A defendant is entitled to the suppression of eyewitness identification of the defendant at a show-up only if the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. Id.; Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967; State v. Madison (1980), 64 Ohio St.2d 322, 331, 415 N.E.2d 272. When “evaluating the likelihood of misidentification, the court must consider factors such as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, supra, at 199.
Here, Ms. Stenson testified that she observed Appellant get out of his truck and walk off down the alley. She stated that the person who exited the truck was wearing blue jeans, an orange shirt, and a hat. When he exited the vehicle, she spoke to him, asking him if he was okay, to which he replied that he was “fine.” Within ten minutes of speaking to Sergeant Cline, the Sergeant returned to the scene with Appellant in the back of his cruiser. Appellant was still wearing his orange shirt, hat, and blue jeans.
Given Ms. Stenson’s ability to view Appellant as he exited the vehicle, her opportunity to speak with Appellant and observe his attire, her accurate description of Appellant, and the short period of time from which he exited the vehicle until Sergeant Cline returned with him to the scene, we cannot say that the show-up procedure created a substantial likelihood of misidentification such that counsel’s motion to suppress Ms. Stenson’s identification of Appellant should have been granted.
The “show up” identification was upheld by the Fifth District Court of Appeals.