[Cite as State v. Alford, 2020-Ohio-1099.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      29411

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JERRY D. ALFORD, JR.                                  COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 18 02 0431(A)

                                  DECISION AND JOURNAL ENTRY

Dated: March 25, 2020



        TEODOSIO, Judge.

        {¶1}     Appellant, Jerry D. Alford Jr., appeals from his convictions in the Summit County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     The 57-year-old victim (“D.A.”) was shot and killed near the Baho Convenience

Store (“the Baho”) in Akron on November 16, 2017. Surveillance video from the Baho that

evening shows D.A. arriving at the store in a black car, entering the store, making a purchase, and

then leaving the store. Two males can be seen entering the store approximately one minute later

and loitering near the door. When D.A. exits the store, one of the men looks out the door toward

him, and then both men follow out after him as he heads down nearby Oakdale Avenue toward his

home. D.A. was shot and killed on Oakdale shortly thereafter, although no one witnessed the

actual murder and no surveillance footage of the shooting exists.
                                                2


       {¶3}    According to Detective Richard Doney of the Akron Police Department, several

people came forward in the following days with information regarding the crime. T.T. contacted

the police to inform them that he was friends with D.A. and he had seen a man he knew as “Rollie”

hiding outside of D.A.’s apartment days before the murder. T.T. spoke to Rollie, and Rollie said

he was going to shoot the man who lives there. Knowing that D.A. lived there, T.T. was able to

convince Rollie to simply walk away instead. When shown a still photograph of Mr. Alford taken

from the Baho surveillance footage, T.T. identified him as the man he knew as Rollie. Next, D.A.’s

cousin (“W.A.”) told police that he ran into D.A. at a local pharmacy on the day of the murder.

W.A. agreed to give D.A. a ride home and, during that ride, D.A. asked W.A. if he had a gun he

could borrow because he encountered a man standing outside of his apartment that morning who

threatened to shoot him. D.A. asked to be dropped off at the Baho near his home, and when the

men pulled into the Baho parking lot D.A. pointed to a man standing outside of the store wearing

a gray hat and said, “There’s the guy right there who threatened to shoot me.” When shown still

photographs of two men taken from surveillance footage, W.A. identified Mr. Alford in one of the

photos as the man D.A. said had threatened to shoot him that morning. Finally, the victim’s

neighbor (“T.W.”) told police that she was familiar with a man named “Rollie” and had heard that

Rollie was the one who shot D.A. When shown the still photograph of Mr. Alford from the

surveillance footage, she identified him as the man she knew as Rollie.

       {¶4}    Other evidence connected Mr. Alford to the murder as well, including saliva or spit

found at the crime scene matching Mr. Alford’s DNA and a cell phone found in front of D.A.’s

Oakdale apartment containing Mr. Alford’s DNA and account information.              When police

interviewed Mr. Alford, he admitted to being in and out of the Baho several times that night while

looking for his cell phone. When police interviewed the other man seen with Mr. Alford in the
                                                 3


video (“D.M.”), he admitted that he was at the Baho with “Rollie” that night. Mr. Alford was

arrested and charged with aggravated murder and other offenses, while D.M. was charged with

crimes related to the murder.

        {¶5}    Mr. Alford filed a motion to suppress, which the trial court denied after a hearing.

Prior to trial, one count of aggravated robbery with a firearm specification was dismissed. After a

jury trial, Mr. Alford was found guilty of an amended count of murder with a firearm specification

and one count of having weapons while under disability. The jury found him not guilty of one

count of aggravated murder with a firearm specification. The trial court sentenced Mr. Alford to

life in prison with parole eligibility after 15 years for the crime of murder, 3 years mandatory

prison for the attendant firearm specification, and 3 years prison for having weapons while under

disability, all to be served consecutively to each other. Mr. Alford filed a timely motion for a new

trial, which the trial court denied.

        {¶6}    Mr. Alford now appeals from his convictions and raises two assignments of error

for this Court’s review.

                                                 II.

                                ASSIGNMENT OF ERROR ONE

        THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
        SUPPRESS

        {¶7}    In his first assignment of error, Mr. Alford argues that the trial court erred in

denying his motion to suppress. We disagree.

        {¶8}    The Supreme Court of Ohio has stated:

        Appellate review of a motion to suppress presents a mixed question of law and fact.
        When considering a motion to suppress, the trial court assumes the role of trier of
        fact and is therefore in the best position to resolve factual questions and evaluate
        the credibility of witnesses. Consequently, an appellate court must accept the trial
        court’s findings of fact if they are supported by competent, credible evidence.
                                                  4


       Accepting these facts as true, the appellate court must then independently
       determine, without deference to the conclusion of the trial court, whether the facts
       satisfy the applicable legal standard.

(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶9}    Mr. Alford filed a motion to suppress the witness identifications of him, which were

secured through the use of still photographs taken from the Baho surveillance video footage. He

argued that the pretrial identification process and procedure used by police were so impermissibly

suggestive as to give rise to a substantial likelihood of irreparable misidentification in violation of

his due process rights. At the suppression hearing, he argued that the police should have used a

standard photo array, as the process actually employed by police was unduly suggestive.

       {¶10} The trial court held a suppression hearing and later denied Mr. Alford’s motion. In

a journal entry filed on February 26, 2019, the court stated the motion to suppress was denied

based on the findings of fact and conclusions of law it stated on the record at the February 25,

2019, final pretrial. At that pretrial hearing, the court made the following findings of fact. T.T.

identified Mr. Alford to Detective Doney by his nickname, “Rollie.” He told the detective he was

friends with Rollie, he heard Rollie make some threats in the days prior to the victim’s death, and

he saw Rollie hiding in the bushes outside of the victim’s home. T.T. also claimed he tried to

persuade Rollie not to shoot the victim. W.A. told Detective Doney that D.A. pointed at Mr.

Alford outside of the Baho and identified him as the person who had threatened to kill him. T.W.

told Detective Doney that she saw Mr. Alford outside of D.A.’s home on a regular basis prior to

the killing. The court found that all three witnesses were familiar with Mr. Alford prior to

confirming his identity in the photograph from the surveillance video.             All three had the

opportunity to visually see Mr. Alford and had distinct memories of him prior to any identification

of him. In considering the totality of the circumstances, the trial court concluded that the
                                                  5


identifications were reliable, as the witnesses identified Mr. Alford to police merely days after the

crime in a manner which was not impermissibly suggestive and did not give rise to any irreparable

misidentification.

       {¶11} After a complete review of the suppression hearing transcript, this Court accepts

the trial court’s findings of fact as supported by competent, credible evidence. Accepting those

findings as true, we must now independently determine, without deference to the conclusion of the

trial court, whether those facts satisfy the applicable legal standard. See Burnside at ¶ 8.

       {¶12} “A photographic identification procedure is violative of due process of law only if

it was ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification.’” State v. Putnam, 9th Dist. Summit No. 20629, 2002 WL 274459, *2 (Feb. 27,

2002), quoting Simmons v. United States, 390 U.S. 377, 384 (1968). “The rationale for excluding

a tainted pretrial identification is to protect the defendant from misconduct by the state.” State v.

Brown, 38 Ohio St.3d 305, 310 (1988). When determining whether identification procedures are

unnecessarily suggestive such that due process requires suppression of the identification, we

engage in a two-part analysis: (1) We first determine whether the identification procedure was

unnecessarily suggestive; and (2) if so, we determine whether the identification was ultimately

unreliable under all of the circumstances. State v. Turner, 9th Dist. Summit No. 28775, 2018-

Ohio-3898, ¶ 10. Thus, even if an identification process is unnecessarily suggestive, it does not

violate due process if it possesses sufficient indicia of reliability. State v. Mitchell, 9th Dist.

Summit No. 21413, 2003-Ohio-5614, ¶ 8, citing State v. Parker, 53 Ohio St.3d 82, 87 (1990). See

also State v. Allen, 73 Ohio St.3d 626, 634 (1995) (stating that even if the use of a single photo for

identification purposes is suggestive, reliable identification testimony may be admitted regardless

of the flaws in the procedure).
                                                  6


       {¶13} The facts in Mr. Alford’s case are analogous to the facts in our recent decision in

State v. Tyler, 9th Dist. Summit No. 29225, 2019-Ohio-4661. In Tyler, a shooting occurred just

outside of an Akron bar, and police reviewed surveillance footage from the bar. Id. at ¶ 10. They

focused on five unknown individuals, pinpointing one as the shooter, accompanied by four of his

friends, and created still photographs of each man from the security footage. Id. The police

released the stills of the four friends and asked them to come forward, which they all did. Id. Each

of the four men eventually admitted that they knew the fifth man and provided his name as well

as some nicknames. Id. The trial court, in denying a motion to suppress those identifications,

found that the men’s familiarity with Mr. Tyler greatly reduced the chances of a police-induced

improper identification, as did the fact that they were with him immediately before and after the

incident. Id. See also State v. Smith, 11th Dist. Portage No. 2016-P-0074, 2018-Ohio-4799, ¶ 47,

quoting State v. Huff, 145 Ohio App.3d 555, 564 (1st Dist.2001) (“‘A strong showing of reliability

can arise from the fact that a victim knew the perpetrator of a crime before the crime was

committed.’”). The court noted that the police were not asking the individuals to identify Mr.

Tyler as the shooter—as they already knew who the shooter was—but were only asking the men

for his name. Tyler at ¶ 11. The court concluded, based on the totality of the circumstances, that

the police did not employ an unnecessarily suggestive identification procedure in violation of Mr.

Tyler’s constitutional rights. Id. This Court affirmed on appeal and found Mr. Tyler’s argument

that the police employed an unduly suggestive identification procedure by only showing one

picture of Mr. Tyler, instead of creating an entire photo array, to be misguided. Id. at ¶ 12-13.

       {¶14} “A suggestive identification procedure is one that suggests to a victim or eyewitness

that a specific person is the perpetrator.” Tyler at ¶ 13. “The law guards against suggestive

procedures due to the inherent danger they will result in an unreliable identification, i.e., one that
                                                  7


misidentifies the perpetrator due to the state’s action.” Id., citing Neil v. Biggers, 409 U.S. 188,

196-198 (1972). As we determined in Tyler, however, no such danger existed in this case because

the police never asked the witnesses to identify Mr. Alford as the shooter. Id. The police had

reviewed the Baho surveillance footage and sought to identify two men seen in the video. Once

the witnesses came forward with information about a man who might have been involved in the

crime, the police showed the witnesses the still photographs not to identify Mr. Alford as the

shooter, but to merely confirm that the man in the photo was the man they were familiar with and

were speaking about, i.e., the man T.T. knew as “Rollie” whom he saw hiding outside of D.A.’s

apartment and threatening to shoot him days before the murder, the man in the gray hat outside of

the Baho that night whom D.A. told W.A. had threatened to shoot him earlier that morning, and

the man T.W. knew as “Rollie” in her neighborhood. Because the police did not employ an

unnecessarily suggestive procedure to identify Mr. Alford as the shooter, we conclude that the trial

court properly denied his motion to suppress. See id.

       {¶15} Accordingly, Mr. Alford’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
       APPELLANT’S MOTION FOR A NEW TRIAL

       {¶16} In his second assignment of error, Mr. Alford argues that the trial court erred in

denying his motion for a new trial. We disagree.

       {¶17} Crim.R. 33(A) allows a defendant to move for a new trial when his substantial

rights have been materially affected. Mr. Alford filed his motion pursuant to Crim.R. 33(A)(1)-

(3), which provide that a new trial may be granted for any of the following causes materially

affecting his substantial rights: (1) Irregularity in the proceedings, or in any order or ruling of the

court, or abuse of discretion by the court, because of which the defendant was prevented from
                                                  8


having a fair trial; (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state;

or (3) Accident or surprise which ordinary prudence could not have guarded against. “By its terms,

Crim.R. 33 does not require a hearing on a motion for a new trial, and this Court has consistently

held that the decision to conduct a hearing is one that is entrusted to the discretion of the trial

court.” State v. Jalowiec, 9th Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 20.

       {¶18} This Court reviews a trial court’s decision to deny a motion for new trial for an

abuse of discretion. State v. Pyle, 9th Dist. Summit No. 28802, 2018-Ohio-3160, ¶ 47. “The term

‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from

simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993).

       {¶19} Mr. Alford took issue with two separate incidents in his motion for a new trial.

First, he argued that he suffered prejudice when an officer testifying at trial opened up a sealed

evidence bag containing the victim’s hat and a piece of the victim’s skull unexpectedly fell out of

the hat and onto the floor, in full view of the jury. The officer spontaneously picked up the item

and stated, “That’s actually a bone fragment.” Defense counsel objected and, after a brief sidebar,

the court sustained the objection and instructed the jury to disregard the officer’s testimony

regarding the supposed bone fragment falling from the hat. The court told the jurors that the officer

was not qualified to make a determination about what the material was that fell from the hat, and

again instructed them to disregard the officer’s statement and to not consider it for any purpose.

The court also denied counsel’s oral motion for a mistrial.
                                                   9


       {¶20} In denying Mr. Alford’s motion for a new trial, the trial court found that it had

promptly issued a curative instruction to the jury, juries are presumed to follow a court’s

instructions, and nothing in the record indicated that the jury did not follow the court’s instructions.

It also found that the officer’s stray comment was not prejudicial and did not deprive Mr. Alford

of a fair trial, as this was a murder case involving a victim being shot four times, including once

in the head. The chief medical examiner testified as to the victim’s cause of death, and several

photographs of the victim’s body were admitted into evidence. Thus, even if the jury was unable

to disregard the officer’s statement, the court determined it was merely cumulative of other

evidence presented at trial.

       {¶21} Mr. Alford argues on appeal that he was prejudiced because there was no way the

jury could “unsee” the bone fragment and, unlike photographs or testimony describing details or

injuries, a surprising display of a skull fragment risked arousing the jurors’ sympathies, evoking a

sense of horror, and appealing to an instinct to punish. Although it is most certainly irregular for

something to fall from a murder victim’s hat in the midst of a jury trial and for a testifying witness

to then exclaim that it was a bone fragment that fell, Mr. Alford has not demonstrated that he was

prejudiced by this unexpected incident. The State alleged that Mr. Alford murdered D.A. by

shooting him multiple times, including once in the head, and the chief medical examiner testified

that D.A. died from these gunshot wounds. Nevertheless, the trial court sustained defense

counsel’s immediate objection to the officer’s statement as to what fell from the hat and then twice

instructed the jury to disregard that statement. Jurors are presumed to follow the trial court’s

instructions, and Mr. Alford has not directed us to anything in the record indicating that the jury

disregarded the court’s curative instructions here. See State v. Vactor, 9th Dist. Lorain No.
                                                  10


02CA008068, 2003-Ohio-7195, ¶ 47. The trial court therefore did not err in denying Mr. Alford’s

motion for a new trial as to this ground for relief.

        {¶22} Mr. Alford also argued in his motion for a new trial that the jury was contaminated

on the evening of Friday, March 1, 2019, after it ceased deliberations for the weekend. Four of

the jurors were approached by some individuals in the parking garage that evening, one of whom

expressed thanks for their work on his father’s case, in what Mr. Alford characterized as “an

obvious attempt to garner sympathy and support for the [S]tate’s case.” None of the jurors

responded to the stranger’s comment. On Monday morning, the four jurors discussed the incident

in the presence of the remaining jurors when they reconvened in the jury room, and one of them

informed the court of the incident during their first break in deliberations. Defense counsel moved

for a mistrial.

        {¶23} “[A] trial court’s consideration of a motion for a new trial based on juror

misconduct involves two steps: (1) ‘a determination of whether misconduct actually occurred,’

and (2) ‘whether that misconduct materially prejudiced the defendant’s substantial rights.’” Pyle

at ¶ 50, quoting Jalowiec at ¶ 48. Although Crim.R. 33(C) requires the causes enumerated in

Crim.R. 33(A)(2) and (3) to be sustained by affidavit showing their truth, the trial court here found

that such affidavits were not required because the relevant facts regarding the alleged juror

misconduct were addressed on the record during trial. When a trial court learns about an improper

outside communication with a juror, the court must hold a hearing to determine whether the

communication biased the juror. State v. Smith, 9th Dist. Wayne Nos. 01CA0039 and 01CA0055,

2002-Ohio-4402, ¶ 57, citing State v. Phillips, 74 Ohio St.3d 72, 88 (1995) and Remmer v. United

States, 347 U.S. 227, 229-230 (1954).
                                                 11


       {¶24} In denying Mr. Alford’s motion for a new trial as to this ground for relief, the trial

court found that it had questioned the four jurors and each stated that the stranger’s comment had

no impact on them and affirmed that they could ignore the comment and continue with

deliberations. It further found that it questioned the remaining jurors individually, and each one

confirmed they heard about the unsolicited comment. Each juror stated that the incident did not

have any impact on them and affirmed that they could ignore the comment and continue with

deliberations. The court then questioned the attorneys as well as Mr. Alford, and Mr. Alford

indicated he was satisfied that the jury could continue to deliberate in a fair manner. Mr. Alford

also withdrew his motion for a mistrial and the parties agreed to keep the four jurors in question.

The court found that the jurors did not commit any misconduct in merely hearing the unsolicited

comment, but did commit misconduct by failing to immediately report the incident and by sharing

it with the rest of the jury. Nonetheless, the court found that the misconduct did not materially

prejudice Mr. Alford’s substantial rights, as the jurors all agreed they could ignore the comment

and continue with deliberations. It also noted Mr. Alford’s withdrawal of his motion for a mistrial,

but his subsequent renewal of all motions and objections after the jury already returned a

unanimous guilty verdict for murder.

       {¶25} Mr. Alford argues on appeal that there is “no question” the four jurors were

influenced by the incident as they were “excused from service and replaced on the panel.” He

contends there is uncertainty, however, as to the effect their discussions of the incident had on the

remaining jurors, and the trial court should have sua sponte granted a mistrial. Contrary to Mr.

Alford’s belief, the record does not indicate that the four jurors were excused from service and

replaced on the panel. The record is abundantly clear that after a thorough hearing was held, in

which each juror was questioned as to the effect the incident had on them as well as their ability
                                                  12


to continue to be fair and impartial, the trial court and both parties agreed that the jurors would not

be dismissed, but would instead remain on the jury and continue with deliberations. Although Mr.

Alford initially moved for a mistrial, he withdrew that motion after all jurors had been questioned

and after private discussions with defense counsel. The record belies Mr. Alford’s argument that

the effect on the remaining jurors is uncertain, as the trial court questioned them all individually,

the jurors stated it had no impact on them, and they affirmed that they could ignore it and continue

with deliberations. Although minimal juror misconduct occurred in the jurors’ discussion of the

incident amongst themselves and in the delay in reporting it to the court, Mr. Alford has not shown

how his material rights have been substantially prejudiced.

       {¶26} Upon review of the record, this Court concludes that the trial court did not abuse

its discretion in denying Mr. Alford’s motion for a new trial, as its decision was not unreasonable,

arbitrary, or unconscionable. Neither the incident with the officer on the witness stand nor the

incident with the jurors materially affected Mr. Alford’s substantial rights. Accordingly, Mr.

Alford’s second assignment of error is overruled.

                                                 III.

       {¶27} Mr. Alford’s assignments of error are both overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                  Judgment affirmed.
                                                13




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



CALLAHAN, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

DONALD R. HICKS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
