[Cite as State v. Morris, 2012-Ohio-22.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                        :
                                                     :      Appellate Case No. 24034
        Plaintiff-Appellee                           :
                                                     :      Trial Court Case No. 09-CR-2159/1
v.                                                   :
                                                     :
D’ALCAPONE A. MORRIS                        :        (Criminal Appeal from
                                                     :      (Common Pleas Court)
        Defendant-Appellant                 :
                                                   :
                                                ...........

                                                OPINION

                               Rendered on the 6th day of January, 2012.

                                                  .........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorneys for Plaintiff-Appellee

JEREMIAH J. DENSLOW, Atty. Reg. #0074784, First National Plaza, 130 West Second
Street, Suite 1600, Dayton, Ohio 45402
        Attorney for Defendant-Appellant

                                                  .........

        HALL, J.

        {¶ 1} D’Alcapone A. Morris appeals from his conviction and sentence on charges of

murder, aggravated burglary, aggravated robbery, and a firearm specification.1


          1
           A jury convicted Morris of several other charges, which the trial court merged into those set forth above
                                                                                                         2


        {¶ 2} The record reflects that a jury found Morris guilty following an April 2010

trial. The State’s evidence at trial established that on June 3, 2009, Morris and a companion,

Michael Guy, arranged to have a female, Nichelle White, drive them to purchase marijuana

from an individual named Richard Pogue. 2 Upon arriving at Pogue’s residence, they

discovered that he did not have the marijuana. Pogue agreed, however, to accompany them to

the home of Javon Buckman, who had marijuana available. White drove the three men to

Buckman’s house on Kingsley Avenue. Once there, Buckman would allow only two of them

to enter. As a result, Pogue and Guy went inside while Morris stayed outside.

        {¶ 3} Inside the house, Buckman handed Guy some marijuana. Instead of paying,

Guy pulled out a revolver he earlier had obtained from Morris and ordered Buckman and

Pogue to the floor. As that was happening, Morris entered through the side door, punched

Buckman and Pogue in their faces, took the revolver from Guy, and declared that Buckman

and Pogue were about to die. With Guy standing in front of him and Morris standing behind

him, Buckman heard Morris cock the revolver and fire a single shot. Guy and Morris then

rifled through Buckman’s pockets before fleeing the scene in White’s waiting car. Pogue died

as a result of a point-blank gunshot wound to his back. During their investigation, police

identified Guy and Morris as suspects. They first located Guy, who led them to White. They

later found Morris hiding under insulation in the attic of his girlfriend’s house.

        {¶ 4} Morris testified at trial and admitted being at Buckman’s house with Guy and

Pogue on the night in question. He admitted bringing a revolver with him but denied knowing


 for purposes of sentencing. (Termination entry, Doc. #56).
         2
           Throughout the record, we have found Richard’s last name spelled “Pogue” and “Poe.” For purposes of
 consistency, we will refer to him herein as “Pogue.”
                                                                                             3


about a robbery. According to Morris, he entered the house after hearing or seeing commotion

inside and saw Guy brandishing the gun. He testified that he was attempting to get the gun

from Guy when it “went off.” The jury nevertheless convicted Morris of all charges against

him. The trial court imposed an aggregate sentence of thirty-five years to life in prison. Morris

then filed this timely appeal, advancing eight assignments of error.

       {¶ 5} In his first assignment of error, Morris contends the trial court erred in denying

his motion to suppress an out-of-court photo identification by Buckman and allowing

Buckman to identify him at trial.

       {¶ 6} With regard to the photo-identification issue, the record reflects that, as part of

his investigation, detective Michael DeBorde prepared six or seven photo spreads, with

Morris being pictured in one of them. In early June 2009, the detective showed the photo

spreads to Buckman, who was unable to identify anyone in any of them. (Trial transcript at

23). Approximately three weeks later, DeBorde and another detective showed Buckman

another six-person photo spread that included a different, more recent picture of Morris. At

that time, “Buckman indicated that he did not remember the photos from the [earlier]

photospread[s].” (Suppression ruling, Doc. 35 at 4). Buckman then “stated that the persons in

positions two and five looked a lot like the person who was at the residence on Kingsley on

June 3, 2009,” but he was uncertain. (Id.). One of the two pictures, in fact, was of Morris. At

trial, DeBorde reiterated, however, that Buckman was not “a hundred percent sure” either of

the two people had been present at the time of the shooting. (Trial transcript at 34). In his own

trial testimony, Buckman recalled that he told the detectives both pictures looked like “the

shooter” but he could not be sure. (Trial transcript at 423). Despite his inability to make a

positive identification when viewing the photo spreads, Buckman subsequently testified at
                                                                                            4


trial and provided an in-court identification of Morris as the shooter. (Id. at 400-401).

       {¶ 7} On appeal, Morris contends the trial court should have suppressed all evidence

about the photo spreads shown to Buckman. Morris argues that it was unduly suggestive for

police to show Buckman two photo spreads containing his picture, one in early June 2009 and

one three weeks later. He points out that no other individual’s photograph was shown to

Buckman more than once. In its suppression ruling, the trial court rejected Morris’s argument,

reasoning:

       {¶ 8} “Defendant argues that, as it relates to the two photo lineups shown to Mr.

Buckman, that Mr. Morris’ likeness was the only one in both arrays. However, Mr. Buckman

indicated to the detectives that he did not remember the [earlier] pictures. Further, he was not

shown one lineup on the first occasion, but instead was shown six to seven lineups, only one

of which contained a photograph of Morris. Given the length of time between the two

interviews with Mr. Buckman, and the differences in the two arrays containing Morris’

pictures, as well as the number of arrays shown to Mr. Buckman, the court cannot say that

there was anything suggestive in the manner or means employed with the lineups shown to

Mr. Buckman. There is nothing distinguishing or different about the two pictures of Mr.

Morris that would make them stand out or suggest that a witness was being directed to him.”

(Doc. #35 at 5-6).

       {¶ 9} Upon review, we agree with the trial court that the photo-spread identification

process in which Buckman participated was not suggestive. Morris’s only argument is that

detective DeBorde showed Buckman two photo spreads containing his picture. As the trial

court noted, however, the pictures of Morris in the two photo spreads were different, the two

reviews were separated by approximately three weeks, and Buckman testified that he did not
                                                                                             5


remember the pictures in the earlier photo spreads when he reviewed the later one. Under

these circumstances, we find no error in the trial court’s determination that there was nothing

suggestive in the “manner or means employed with the lineups shown to Mr. Buckman.” That

being so, the disputed evidence was admissible and any remaining questions as to reliability

went to the weight of the identification rather than its admissibility. State v. Garrett,

Montgomery App. No. 22262, 2008-Ohio-3710, ¶13.

       {¶ 10} With regard to Buckman’s positive in-court identification of him as the

shooter, Morris argues that this identification should have been disallowed because the prior,

out-of-court photo identification was “unduly suggestive and the identification was

unreliable.” We disagree. Morris did not object to the in-court identification and, therefore,

has waived all but plain error.

       {¶ 11} We see no error, much less plain error, in allowing Buckman to identify Morris

at trial. For the reasons set forth above, we conclude that the out-of-court photo-identification

process was not suggestive. Moreover, the failure to make a positive pretrial identification

does not preclude a witness from making a later in-court identification. State v. Brown,

Montgomery App. No. 21540, 2007-Ohio-2098, ¶19. Buckman’s trouble identifying Morris

by reviewing photo spreads may have affected the weight of his in-court identification but not

its admissibility. Moreover, an in-person identification can have different parameters such as

height, weight, and a three-dimensional view that is not evident in a photograph.

Accordingly, the first assignment of error is overruled.

       {¶ 12} In his second assignment of error, Morris claims the trial court erred when it

allowed Nichelle White to testify that she overheard him say, just days after the shooting, that

he had been “born and raised to kill.”
                                                                                              6


       {¶ 13} Morris asserts that the foregoing statement was irrelevant or, alternatively, that

its probative value was substantially outweighed by the danger of unfair prejudice. We

disagree. The trial court acted within its discretion in finding the statement to be relevant.

Such a statement made by an accused killer two days after a killing in which he has been

implicated has a “tendency to make the existence of any fact that is of consequence to the

determination of the action more probable * * * than it would be without the evidence.”

Evid.R. 401. Specifically, the statement is relevant to Morris’s identity as the killer. The trial

court also acted within its discretion in finding the probative value of the statement not

substantially outweighed by the danger of unfair prejudice. Morris’s statement had

considerable probative value given that he made it shortly after a murder that he allegedly had

committed. The second assignment of error is overruled.

       {¶ 14} In his third assignment of error, Morris argues that his due process rights were

violated when Pogue’s mother testified about her surviving son and cried in front of the jury.

The record reflects that Terry Clark briefly testified about having two sons, Richard Pogue

and Quentin Clark, and identified their ages. Thereafter, the prosecutor showed Clark a picture

of the decedent and she identified him as Richard Pogue. The trial transcript reflects that

Clark was “crying” during this part of her testimony. Immediately after Clark identified her

deceased son, the trial court took a five-minute break. During that time, defense counsel

objected to the identification, arguing that Morris had offered to stipulate to identity.

       {¶ 15} In response, the State denied that a stipulation had been offered. Moreover, the

prosecutor correctly noted that the State was not required to accept a stipulation. See, e.g.,

State v. Wilson (Oct. 12, 1994), Lorain App. No. 92CA005396. The prosecutor further argued

that Clark’s testimony was pertinent to the aggravated robbery charge because she described
                                                                                                  7


missing jewelry and other items that her deceased son had worn the night of his death. The

trial court resolved the issue by instructing the jury to “disregard any display of emotion[.]”

       {¶ 16} Upon review, we see no error in the trial court’s handling of the situation. As

an initial matter, Morris did not object to Clark’s testimony about having a

twenty-eight-year-old son named Quentin Clark. Therefore, he has waived all but plain error,

which does not exist. With regard to Clark’s identification of her deceased son’s picture, the

trial court acted within its discretion in giving a cautionary instruction, particularly when

defense counsel never requested a mistrial. The third assignment of error is overruled.

       {¶ 17} In his fourth assignment of error, Morris asserts that his convictions are against

the manifest weight of the evidence. Notably absent from his brief, however, is any specific

argument addressing the state of the evidence. After setting forth the standards governing a

manifest-weight challenge, Morris asserts, in conclusory fashion, “that the case before the

court presents exceptional circumstances in that the jury clearly lost its way when it found

[him] guilty of the herein charges.”

       {¶ 18} We are unpersuaded that Morris’s convictions are against the manifest weight

of the evidence. Particularly in the absence of any argument from him on the issue, we do not

find that the evidence weighs heavily against his convictions. The State presented testimony

that fully supports his convictions for murder, aggravated burglary, aggravated robbery, and

a firearm specification. Accordingly, the fourth assignment of error is overruled.

       {¶ 19} In his fifth assignment of error, Morris maintains that the trial court erred in

allowing the prosecutor to elicit hearsay testimony identifying him as the shooter. Detective

Michael DeBorde of the Dayton Homicide Squad was assigned to investigate the death of
                                                                                                                8


Richard Pogue. On the witness stand, the prosecutor directed DeBorde through the course of

his investigation, asking how the detective constructed several photo spreads, as well as when,

and how, the photo spreads were presented to Javon Buckman. DeBorde responded that he

initially showed Buckman six or seven photo spreads, one of which contained a 2008 picture

of the defendant. DeBorde included Morris’s picture because he had received the name

“D’Alcapone” through a “Crimestopper tip.” (Trial transcript at 608).3 Buckman was unable

to identify anyone in the photo spreads. At trial, the prosecutor asked DeBorde: “* * * [D]id

Mr. Buckman say that the shooter was not in any of those photo spreads?” The prosecutor

apparently used the term “shooter” to refer to the person Buckman already had testified fired

the shot inside his house that struck Richard Pogue.

        {¶ 20} A couple weeks later, DeBorde constructed a photo spread containing a picture

of Michael Guy. Buckman identified Guy as the “darker and shorter individual that had come

into the house and pulled the gun on them, and then gave the gun over” to the defendant. (Id.

at 615). DeBorde then was asked about how he got to the defendant to obtain a more current

photograph for inclusion in another photo spread that Buckman eventually reviewed. The

following is the direct examination of detective DeBorde about a jailhouse interview with

Michael Guy:

        {¶ 21} “Q. Now, you can’t help [sic] us what he said, but let me ask you, Detective,

did he identify the shooter, the individual–

        {¶ 22} “[Defense Counsel] Objection.

        {¶ 23} “The Court:           Overruled. You can answer it if he did.


          3
             The defense objected to this answer to a question but has not raised the overruling of that objection as part
 of the fifth assignment of error.
                                                                                           9


       {¶ 24} “Q. Correct. Not eliciting the statements, as I said, without telling us what

his answer was, did [Guy] tell you at that time, identify who the shooter was inside that house

on Kingsley Avenue?

       {¶ 25} “A. He did.

       {¶ 26} “Q. And was he offered anything in exchange for that information that he

provided in that interview?

       {¶ 27} “A. He was not. A cup of water.

       {¶ 28} “Q. Cup of water. Had he entered into any agreements with the state of Ohio

at any time in that interview?

       {¶ 29} “A. He did not. We hadn’t even spoken to the state of Ohio at that time.

       {¶ 30} “Q. In fact, did you even have a warrant for his arrest in reference to this case

at the time of that interview?

       {¶ 31} “A. We did not.

       {¶ 32} “Q. Now, again, you can’t tell us what he said, but let me just ask you, after

interviewing Michael Guy, who did you then try to seek out to interview?

       {¶ 33} “A.     Ms. Nichelle White, and eventually D’Alcapone Morris.”            (Id. at

617-618).

       {¶ 34} Morris contends the foregoing testimony is tantamount to DeBorde saying Guy

told him Morris was the shooter—which Morris contends would be inadmissible hearsay. We

disagree. Our interpretation of the question, in context, is that DeBorde was being asked

whether Guy provided the name of his accomplice, who the prosecutor was referring to as the

“shooter.” DeBorde merely testified that Guy “identified” the “shooter.” This testimony
                                                                                                               10


apparently was not admitted for the truth of the matter, but rather to explain how the detective

proceeded to the next step in his investigation. In that respect, the testimony was not hearsay

at all. The testimony was carefully tailored to describe how DeBoard proceeded through his

investigation. DeBorde added that, after interviewing Guy, he tried to interview White and

Morris. DeBorde did not say that Guy identified Morris as the shooter, and such an inference,

in our view, is not as clear as appellant argues. It could be that Guy merely suggested to

DeBorde that White and Morris might have more or better information about the case.

        {¶ 35} But our inquiry into whether the above questions and their answers should

have been admitted does not end with the determination that the testimony does not contain

hearsay.4 In State v. Sinkfield (Oct. 2, 1998), Montgomery App. No. 16277, a detective was

permitted to testify that he included Sinkfield’s photograph in a photo spread because police

had received an anonymous “Crimestoppers” tip that Sinkfield was a suspect. On review, this

Court cited as authority State v. Blevins (1987), 36 Ohio App.3d 147, for the proposition that

when out-of-court statements are admitted merely to explain a police officer’s conduct during

the course of an investigation, “[f]irst, the conduct to be explained must be ‘relevant,

equivocal, and contemporaneous’ with the out-of-court statements. Second, the out-of-court

statements must meet the standard of Evid.R. 403(A). Thus, even if the statements are

relevant to proving some fact other than the truth of the matter asserted, the evidence still

must be excluded if its probative value is substantially outweighed by the dangers of unfair

prejudice, confusion of the issues, or misleading the jury.” Sinkfield, citing Blevins. The Tenth

District Court of Appeals has since expanded on Blevins to include a third criteria that “when


          4
           Appellant’s argument, and apparently the trial objection, is that the testimony elicits hearsay. It does not.
 But we continue with the analysis to describe the broader spectrum of case law affecting this kind of testimony.
                                                                                           11


the statements connect the accused with the crime charged, they should generally be

excluded.” State v. Humphrey, Franklin App. No. 07AP-837, 2008-Ohio-6302, ¶11.

       {¶ 36} Here, the detective did not testify to any actual “statements” made by Michael

Guy. One must infer from the detective’s testimony, and subsequent actions, that Guy

identified D’Alcapone Morris as his accomplice. But, for the sake of this discussion, we will

assume that the testimony effectively contained a statement. That testimony was apparently

“relevant” to the issues at hand. Without context or some explanation, the actions of the

detective would be presented in a vacuum and would appear “equivocal.” And, the continued

course of the investigation was contemporaneous with the “statement.”

       {¶ 37} The next two questions are whether the prejudicial effect of the testimony

outweighed the probative value and whether the “statements” should “generally be excluded.”

To put the “statement” testimony into perspective, Javon Buckman had already testified that

two men robbed him and Richard Pogue, and a shot was fired by the defendant. Buckman

hardly could have mistaken one of the robbers for the other. Guy was later described as 5'8" or

5'9" and 180 pounds. Morris was 4'11" and 100 pounds. Buckman identified Morris as the

one who had fired the shot and who had punched him in the face. Nichelle White already

testified that she had driven Morris, Guy, and “Red” (Richard Pogue) to Buckman’s house.

She saw Morris with the gun. At Buckman’s house on Kingsley Avenue, the three got out of

the car and went toward the house. Shortly thereafter, from her waiting car White heard

gunshots. Morris and Guy returned to her car and left. Morris said his hand “was broke” and

he had blood on his shirt. Later, Morris forensically was connected to the scene through

testimony that his DNA was in a bloodstain on the back of the T-shirt Javon Buckman was

wearing. Moreover, although clearly not evidence, in opening statements the jury heard
                                                                                             12


defense counsel disclose an expectation that Michael Guy would testify that D’Alcapone

Morris was the one who pulled out the gun and committed the robbery. Guy was on both the

State’s and the defense’s witness list but was not called by either. Given all of these

circumstances to evaluate, we cannot say that admission of the “statement” that Guy identified

his accomplice was an abuse of discretion.

       {¶ 38} Assuming that we were to find an abuse of discretion, requiring exclusion of

the described testimony, we still would be faced with evaluating whether admission of the

testimony was harmless. All of the considerations in the previous paragraph go into that mix.

In addition, unlike in Sinkfield, the prosecutor did not argue that DeBorde’s testimony about

Guy leading him to Nichelle White and then to the defendant should be considered as

substantive evidence of the defendant’s guilt. To the contrary, the prosecutor argued: “You

can’t speculate as to the reason why [Guy] wasn’t called anymore than you can speculate as to

what he would have said if he came in and testified. * * * You can’t pretend you know what

he would say. * * * And that’s not evidence.” (Trial transcript at 832). Finally, Morris

testified himself. He acknowledged that he brought the gun to Buckman’s house because “I’m

a drug dealer. I–I carry a gun every day.” (Id. at 743). He testified that Guy committed the

robbery and he, Morris, tried to stop him by asking for the gun; and when Guy was reaching to

give Morris the gun it went off. (Id. at 752). Additionally, unlike in Sinkfield, the jury had not

been subjected to several “highly inflammatory and prejudicial” comments constituting

“prosecutorial misconduct” that was apparent in that case. Here we conclude that the

“statement” Guy made was, at most, harmless error beyond a reasonable doubt. For all of

these reasons, the fifth assignment of error is overruled.

       {¶ 39} In his sixth assignment of error, Morris contends the trial court erred when it
                                                                                              13


disallowed cross-examination of detective DeBorde about proffer and plea agreements

between Michael Guy and the State. Morris contends that cross-examination regarding such

agreements should have been allowed because the prosecutor had “opened the door” in her

prior questioning of DeBorde.

       {¶ 40} Upon review, we see no error in the trial court’s ruling. The trial court allowed

defense counsel to cross-examine DeBorde about the fact that the State had entered into

proffer and plea agreements with Guy. The trial court reasoned, however, that unless Guy

actually testified (which he did not do) the particular substance of the agreements was not

relevant. We agree. The only apparent reason for seeking to cross-examine DeBorde about the

agreements was to impeach Guy’s credibility by establishing bias or interest. But Guy’s

credibility was not at issue because he did not testify. Accordingly, the sixth assignment of

error is overruled.

       {¶ 41} In his seventh assignment of error, Morris claims the trial court erred in

allowing the prosecutor to elicit hearsay testimony from detective DeBorde about Javon

Buckman identifying Morris as the shooter.

       {¶ 42} Once again, we disagree. Buckman’s statement to DeBorde identifying Morris

as the shooter met the requirements for admissibility under Evid.R. 801(D)(1)(c) and R.C.

2945.55. Under the evidence rule, a statement is not hearsay if “[t]he declarant testifies at trial

or hearing and is subject to cross-examination concerning the statement, and the statement is *

* * one of identification of a person soon after perceiving the person, if the circumstances

demonstrate the reliability of the prior identification.” Here Buckman, the declarant, testified

at trial and was subject to cross-examination about his identification. His statement to

DeBorde identifying Morris as the shooter was made shortly after the shooting. Finally,
                                                                                                              14


circumstances corroborated the reliability of Buckman’s statement to DeBorde, including

Buckman’s own in-court identification of Morris as the shooter. Buckman’s statement to

DeBorde likewise satisfied R.C. 2945.55, which provides: “When identification of the

defendant is an issue, a witness who has on previous occasion identified such person may

testify to such previous identification. Such identification may be proved by other witnesses.”

(Emphasis added). As noted above, Buckman previously had identified Morris as the shooter.

Therefore, the State was permitted to prove this identification through another witness such as

DeBorde. See, e.g., State v. Levingston, Hamilton App. No. C-090235, 2011-Ohio-1665,

¶24-25. The seventh assignment of error is overruled.

        {¶ 43} In his eighth assignment of error, Morris argues that the trial court erred in

allowing the prosecutor to elicit hearsay testimony from DeBorde identifying Michael Guy as

the person who had paid Nichelle White forty dollars for a ride. We reject this argument for

much the same reason we overruled the seventh assignment of error. White testified at trial

and was subject to cross-examination. Her statement to DeBorde identifying Guy as the

person who had paid her forty dollars for a ride on the night of the shooting was made shortly

after the incident. DeBorde’s testimony about White’s statement also was corroborated by her

own in-court testimony that Guy paid her forty dollars to serve as the driver. At a minimum,

White’s statement to DeBorde identifying Guy as the person who had paid her forty dollars

met the requirements for admissibility under Evid.R. 801(D)(1)(c). 5 Finally, even if

DeBorde’s testimony on this issue did constitute inadmissible hearsay, we would find its


          5
             Parenthetically, we note that R.C. 2945.55 does not appear to apply to White’s identification of Guy as the
 person who had paid her forty dollars because Guy is not the defendant here. Unlike Evid.R. 801(D)(1)(c), the
 statute is limited to “identification of the defendant.”
                                                                                         15


admission harmless beyond a reasonable doubt. Testimony about the forty dollars was

relatively insignificant, and White herself testified that Guy had paid her. Accordingly, the

eighth assignment of error is overruled.

       {¶ 44} Based on the reasoning set forth above, the judgment of the Montgomery

County Common Pleas Court is affirmed.

                                       ..............

GRADY, P.J., concurs.

DONOVAN, J., concurs in judgment only.

Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Jeremiah J. Denslow
Hon. Mary K. Huffman
