         [Cite as State v. Ruff, 2012-Ohio-1910.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-110250
                                                        TRIAL NO. B-1007073
        Plaintiff-Appellant,                        :

  vs.                                               :      O P I N I O N.

LAMOUR RUFF,                                        :

    Defendant-Appellee.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 2, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Roger Kirk, for Defendant-Appellee.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

       {¶1}     The state of Ohio appeals from the order of the Hamilton County Court

of Common Pleas that suppressed the pretrial identification of defendant-appellee

Lamour Ruff by two eyewitnesses under R.C. 2933.83(C)(1) because the police had not

complied with the requirements for photo lineups set forth in R.C. 2933.83(B).

Whether R.C. 2933.83(C)(1) provides an independent ground for suppressing a pretrial

identification is a matter of first impression in this state. We hold that it does not and,

therefore reverse the judgment of the trial court.

       {¶2}     On October 26, 2010, the Hamilton County Grand Jury returned an

indictment charging Ruff with two counts of aggravated robbery in violation of

R.C. 2911.01(A)(1), two counts of robbery in violation of R.C. 2911.02(A)(2), one

count of carrying concealed weapons in violation of R.C. 2923.12(A)(2), and having

weapons while under disability in violation of R.C. 2923.13(A)(3). In the bill of

particulars, the state alleged that on or about September 21, 2010, Ruff had

approached Deboragh Evans and Robert Sanders in the parking lot of a hair salon,

placed a firearm against Evans’s head, and demanded their cash and cellular

telephones before fleeing.

       {¶3}     Both Evans and Sanders identified Ruff as the perpetrator after being

shown photo lineups. The trial court determined, however, that the detective who had

administered the lineups had failed to comply with the requirements for photo lineups

under R.C. 2933.83(B). The court specifically found that the detective had not recorded

(1) all the confidence statements made by the witnesses, (2) the time of the lineups, and

(3) the names of all the subjects who appeared in the lineups.                         See

R.C. 2933.83(B)(4)(a), (c), and (e). The court further found that the detective had




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instructed the eyewitnesses to initial—but not sign—their confidence statements. See

R.C. 2933.83(B)(4)(a).      The court held that “because the requirements of ORC

2933.83(B) were not complied with, the photo-identification in the above caption case

must be suppressed.”

       {¶4}    In its single assignment of error, the state essentially argues that

R.C. 2933.83(C)(1) does not provide a ground for suppressing pretrial identifications

independent of the traditional constitutional analysis concerned with unduly suggestive

identification procedures and the reliability of identifications. See Neil v. Biggers, 409

U.S. 188, 196-197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), quoting Simmons v. United

States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Manson v.

Brathwaite, 432 U.S. 98, 114, 97 N.E.2d 2243, 53 L.Ed.2d 140 (1976). We agree.

       {¶5}    Effective July 6, 2010, R.C. 2933.83(B) requires any law enforcement

agency or criminal justice entity that conducts live lineups and photo lineups to adopt

specific procedures for conducting the lineups.

              The procedures, at a minimum, shall impose the following

              requirements:

              (1) Unless      impracticable,      a   blind   or   blinded

                  administrator shall conduct the live lineup or photo

                  lineup.

              (2) When it is impracticable for a blind administrator to

                  conduct the live lineup or photo lineup, the

                  administrator shall state in writing the reason for that

                  impracticability.

              (3) When it is impracticable for either a blind or blinded

                  administrator to conduct the live lineup or photo



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                 lineup, the administrator shall state in writing the

                 reason for that impracticability.

              (4) The administrator conducting the lineup shall make a

                 written record that includes all of the following

                 information:

                 (a) All identification and nonidentification results

                     obtained during the lineup, signed by the

                     eyewitnesses,      including    the   eyewitnesses’

                     confidence statements made immediately at the

                     time of the identification;

                 (b) The names of all persons present at the line up;

                 (c) The date and time of the lineup;

                 (d) Any eyewitness identification of one or more

                     fillers in the lineup;

                 (e) The names of the lineup members and other

                     relevant identifying information, and the sources

                     of all photographs or persons used in the lineup.

              (5) If the blind administrator is conducting the live

                 lineup or the photo lineup, the administrator shall

                 inform the eyewitness that the suspect may or may not

                 be in the lineup and that the administrator does not

                 know who the suspect is. Id.

       {¶6}    R.C. 2933.83(C)(1) provides that evidence of any failure to comply with

this protocol “shall be considered by trial courts in adjudicating motions to suppress




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                      OHIO FIRST DISTRICT COURT OF APPEALS



eyewitness identification resulting from or related to the lineup.” Ruff relied solely on

this provision in moving to suppress the identification of him by Evans and Sanders.

       {¶7}     In Kettering v. Hollen, 64 Ohio St.2d 232, 416 N.E.2d 598 (1980), the

Ohio Supreme Court cautioned that the exclusionary rule shall not apply “to statutory

violations falling short of constitutional violations, absent a legislative mandate

requiring the application of the exclusionary rule.” Id. at 235. We find no such

mandate here.      The language of R.C. 2933.83(C)(1)—particularly the phrase “in

adjudicating”—implies that the actual basis for suppression is not rooted in the statute,

but is instead extraneous to it. Accordingly, we hold that R.C. 2933.83(C)(1) does not

provide an independent ground for suppression, and that the trial court erred in relying

solely on the statute in suppressing the identifications.

       {¶8}     We stress that today, we hold only that noncompliance with

R.C. 2933.83(B) alone is insufficient to warrant suppression. Although discussed at

oral argument before this court, Ruff expressly declined to argue before the trial court

that the photo lineups in this case were, under the Fourteenth Amendment to the

United States Constitution, “so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” State v. Crutchfield, 1st Dist.

No. C-100694, 2011-Ohio-5383, ¶ 26, quoting Biggers, 409 U.S. at 197. See also

Brathwaite, 432 U.S. at 114 (holding that “reliability is the linchpin in determining

the admissibility of identification testimony.”). Thus, we decline to address whether,

under the separation-of-powers doctrine or any other constitutional theory, the

legislature may require courts to consider noncompliance with R.C. 2933.83(B) in

adjudicating a motion to suppress premised on an alleged constitutional violation.

See, e.g., State ex rel. DeBrosse v. Cool, 87 Ohio St.3d 1, 7, 716 N.E.2d 1114 (1999)

(“Courts decide constitutional issues only when absolutely necessary.”).



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    The assignment of error is sustained. The judgment of the trial court is

reversed, and this cause is remanded for further proceedings consistent with this

opinion and the law.

                                               Judgment reversed and cause remanded.


H ILDEBRANDT , P.J., and D INKELACKER , J., concur.


Please note:
       The court has recorded its own entry this date.




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