State v. Shepherd

Criminal Appeal from Common Pleas Court Trial Court Case No. 2019-CR-4172

MATHIAS H. HECK, JR. by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, Attorney for Defendant-Appellant

OPINION

EPLEY, J.

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{¶ 1} Defendant-Appellant Jesse Lamar Shepherd appeals from a judgment of the Montgomery County Court of Common Pleas. After a jury found Shepherd guilty of two counts of attempted aggravated murder, one count of attempted murder, two counts of aggravated robbery, two counts of felonious assault, and a single count of failure to comply with the order or signal of a police officer, the trial court sentenced him to 45 to 50.5 years of incarceration. Shepherd raises two assignments of error. First, he argues that the trial court erred by overruling his motion to suppress. This assignment of error will be overruled. Second, Shepherd asserts, and the State agrees, that the trial court erred by denying his right to allocution at sentencing. That assignment of error will be sustained. The judgment of the trial court will be reversed in part and remanded for the limited purpose of resentencing. In all other respects, the trial court's judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} Between 1:00 and 1:30 in the afternoon on December 18, 2019, Akil Kontar and his fiancée, Joi White, were packing up to leave the Double Tree Hotel on Prestige Place in Miami Township. White pulled their car around to the front of building near the lobby and waited inside the hotel while Kontar worked to place their young daughter's car seat into the vehicle. Once the car seat was in place, White returned to the car with their daughter and buckled her in while Kontar threw some trash away in a nearby bin. As White finished getting her daughter situated, she heard a shuffling of feet on the ground and turned around in time to see Shepherd pointing a gun at Kontar's head. According to White's testimony at trial, she saw Shepherd shoot Kontar in the head at point-blank

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range.

{¶ 3} After seeing her fiancé get shot, White fell to the ground. She testified that when she looked up, Shepherd was standing over her pointing the gun at her head. Before any harm came to her, though, White was able to get up and dash to the lobby, leaving her two-year-old daughter in the car and Kontar bleeding on the ground. She further testified that she watched Shepherd grab a bag out of her car and then get into a vehicle of his own and speed away. After the threat was gone, White ran back out to the car where she, to the best of her abilities, tended to Kontar. A hotel employee grabbed the child and took her inside.

{¶ 4} Police officers soon arrived, and White was able to inform them that the person they would be looking for was Jesse Shepherd and that he was driving a tan Z71 Chevy truck. White explained that she knew the assailant's identity because he had been in a previous relationship with one of her family members, and she was able to show officers a picture of him on Facebook.

{¶ 5} Kontar was taken to the hospital; he survived his injuries, although he is paralyzed on his left side. Meanwhile, officers began their search for Shepherd and the Chevy truck he was driving. After a brief chase, Shepherd crashed his truck and was apprehended.

{¶ 6} Back at the hotel, Detective Comer put together a photo array to administer to witnesses and enlisted the help of Officer Beatty to show the photos to White and two Double Tree employees who observed the incident. Two of the three witnesses picked out Shepherd as the shooter.

{¶ 7} On January 28, 2020, Shepherd was indicted on two counts of attempted

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aggravated murder, one count of attempted murder, two counts of aggravated robbery (deadly weapon), one count of aggravated robbery (serious harm), one count of felonious assault (deadly weapon), one count of felonious assault (serious harm), and one count of failure to comply with the order or signal of a police officer. With the exception of the failure to comply count, all the charges had a three-year firearm specification attached.

{¶ 8} On March 25, 2020, Shepherd filed a motion to suppress seeking, among other things, to exclude witness identifications obtained using the photo arrays. The trial court held a hearing and overruled the motion; the case later proceeded to trial. After three days of trial testimony from 20 witnesses and seeing dozens of exhibits, the jury convicted Shepherd of all counts and specifications. The court then sentenced Shepherd to an aggregate term of 45 to 50.5 years of incarceration. The court did not, however, give him an opportunity to speak on his own behalf prior to imposing the sentence.

II. Motion to Suppress

{¶ 9} In his first assignment of error, Shepherd argues that the trial court erred when it overruled his motion to suppress the photo lineup and eyewitness identification.

{¶ 10} An appeal from a ruling on a motion to suppress presents a mixed question of facts and law. State v. Ojezua, 2016-Ohio-2659, 50 N.E.3d 14, ¶ 15 (2d Dist.). When considering a motion to suppress, the trial court takes on the role of trier of fact and is in the best position to resolve factual questions and assess the credibility of witnesses. State v. Turner, 2015-Ohio-4612, 48 N.E.3d 981, ¶ 10 (2d Dist.). As a result, we must accept the trial court's findings of fact if they are supported by competent and credible evidence. Id. "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

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applicable legal standard." Id., quoting State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-1326, ¶ 13. The trial court's application of law to the findings of fact is subject to a de novo standard of review. Id.

Photo Array Identification

{¶ 11} Due process may require the suppression of eyewitness pretrial identification when the basis of the identification creates a substantial likelihood that the witness is mistaken, and to prevail on a motion to suppress in this regard, a "defendant must * * * show that the identification procedure was unduly suggestive." State v. Scott, 2018-Ohio-198, 104 N.E.3d 143, ¶ 10 (2d Dist.), quoting State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 19. A photo lineup is unduly suggestive if it "steers the witness to one suspect, independent of the witnesses' honest recollection." State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208. If the identification procedure was not unduly suggestive, any remaining questions as to the identification's reliability...