[Cite as State v. Armstrong, 2004-Ohio-5635.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NOS. 2001-T-0120 - vs - : and 2002-T-0071 SHAWN ARMSTRONG, : Defendant-Appellant. : October 22, 2004 Criminal Appeal from the Court of Common Pleas, Case No. 00 CR 274. Judgment: Reversed and remanded. Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street., N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee). Margaret E. Amer Robey, 14402 Granger Road, Cleveland, OH 44137 (For Defendant- Appellant). JUDITH A. CHRISTLEY, J. {¶1} Appellant, Shawn Armstrong, appeals from a Trumbull County Court of Common Pleas jury verdict, finding him guilty of one count of aggravated murder, in violation of R.C. 2903.01(A), with a firearm specification, in violation of R.C. 2941.145. For the following reasons, we reverse appellant’s conviction and remand this matter for further proceedings. {¶2} The record discloses the following facts. On the evening of August 9, 1998, the victim, Brad McMillan (“McMillan”), and his sister, Tracy Robinson (“Robinson”), visited the Elk’s Lodge in Warren Township, Ohio. Robinson was initially hesitant in allowing McMillan to go out because McMillan had previously served as a confidential informant for the Trumbull County Drug Task Force and was scheduled to give testimony in an upcoming drug trafficking case. Ultimately, McMillan persuaded Robinson to join him for a night out at the Elk’s Lodge. {¶3} The Elk’s Lodge was located at 1919 Highland Avenue. Immediately adjacent and to the south of the Elk’s Lodge was Cliff’s Lounge. These two properties were separated by a small grass median. To the east and behind Cliff’s Lounge was a small wooded area. Two blocks south of the Elk’s Lodge was the Monument of Faith Church, which was positioned on the corner of Highland Avenue and Miller Street. {¶4} While Robinson and McMillan were inside the Elk’s Lodge, McMillan was informed that an unidentified man wanted to see him in the parking lot. McMillan left Robinson and went outside to the parking lot. {¶5} Shortly after McMillan had left the club, Robinson went outside to check on him. Robinson found McMillan’s body in the driver’s seat of his car. He was dead with a bullet wound to the back of the head. Robinson immediately ran back into the Elk’s Lodge and called 911 for emergency assistance. {¶6} Sergeant Edward Anthony (“Sgt. Anthony”), of the Warren Township Police Department, was patrolling the area near the Elk’s Lodge on the night of the shooting. As he drove eastbound onto Miller Street, Sgt. Anthony noticed an occupied burgundy Pontiac that was parked with its lights off at the Monument of Faith Church parking lot. He watched the suspicious vehicle turn on its headlights and make a right turn northbound on Highland Avenue. Sgt. Anthony followed the Pontiac by turning 2 right on Highland Avenue and radioed in the vehicle’s license plate number. The Pontiac then turned into the parking lot of Cliff’s Lounge. Sgt. Anthony continued northbound on Highland Avenue, still trying to obtain information on the suspicious vehicle. Before he obtained any information, he received a dispatch that a shooting had occurred at the Elk’s Lodge. {¶7} A short time later, Patrolman Michael Merritt (“Ptlm. Merritt”) arrived at the crime scene with Skyler, a trained tracking dog. After speaking briefly with Sgt. Anthony, Ptlm. Merritt checked the scene for contamination and then gave the command to search. Once Skyler came to the back of the deceased’s vehicle, he detected a fresh track and began to follow it. Skyler first headed east toward the wooded area behind Cliff’s Lounge and then proceeded south. Eventually, Skyler ended his track at the Monument of Faith Church parking lot. {¶8} Warren Township Police Lieutenant, Donald Bishop (“Lt. Bishop”), began the investigation by following up on the suspicious burgundy Pontiac which had been previously spotted in the church parking lot. Lt. Bishop learned that the burgundy Pontiac belonged to Ronald Peterson (“Peterson”), a Youngstown City police officer. Further investigation revealed that appellant had been staying at Peterson’s home in Youngstown, Ohio, while Peterson was living with his parents in Warren. On August 10, 1998, appellant agreed to give a voluntary statement to Lt. Bishop. {¶9} In his statement, appellant explained that he had borrowed Peterson’s car on the night of the homicide to visit his own family in Warren. Appellant stated that he went to the Elk’s Lodge around midnight, but did not enter the club due to the entrance fee. Instead, appellant parked the car at Cliff’s Lounge and began to roll a joint of 3 marijuana. Appellant was about to smoke the joint when a man passing by informed him that there were undercover police officers nearby. {¶10} At this time, appellant maintained that he drove Peterson’s car to the Monument of Faith Church parking lot and started to smoke marijuana. Appellant acknowledged that he saw a police car heading eastbound down Miller Street towards Highland Avenue. Appellant then stated that he exited the church parking lot and drove northbound on Highland Avenue with the police officer directly behind him. He further explained that he took a right turn into the Elk’s Lodge parking lot and the police officer continued northbound on Highland Avenue. Appellant asserted that when he pulled into the Elk’s Lodge he heard someone scream, “Brad is dead.” Without exiting the car, he claimed he then drove to the back of the club and drove out of the parking lot. {¶11} Lt. Bishop continued his investigation by questioning Peterson and receiving his consent to search and tow his Pontiac. Peterson also surrendered an empty gun box that contained .45 caliber Speer Lawman ammunition. A casing recovered from the front seat of the victim’s car matched this caliber and brand of ammunition. Lt. Bishop further discovered that on August 12, 1998, three days after the homicide, Peterson reported to the Youngstown City Police Department that his .45 caliber automatic pistol had been stolen from his residence. {¶12} During the pendency of the investigation, Lance Pough (“Pough”), the individual against whom McMillan had been scheduled to testify as a confidential informant, and Pough’s friend, Art Bell, were already incarcerated due to federal drug trafficking charges. While incarcerated, both Pough and Art Bell entered into various agreements with the prosecution relating to the McMillan homicide investigation. Pough 4 and Art Bell provided Detective Melanie Gambill (“Det. Gambill”), of the Warren City Police Department, with information regarding the murder. Specifically, Art Bell provided Det. Gambill with unsworn, out-of-court statements as part of his agreement, in which he confessed to his participation in the planning of the McMillan homicide. His statements also inculpated appellant as part of this murder-for-hire scheme. Ultimately, prior to appellant’s trial, Art Bell was convicted in state court for his role in the McMillan homicide. {¶13} Thereafter, the investigation effectively stalled until March 30, 2000, when an Austintown police patrolman stopped the car of Edrick Davis (“Davis”) and observed a round of ammunition and a clip in plain view. The patrolman investigated and found a gun next to the clip. The gun was later identified as Peterson’s missing weapon. Further evidence was gathered which ultimately linked appellant to the gun that was found in Davis’ car. {¶14} On May 9, 2000, appellant was indicted for one count of aggravated murder with specifications of aggravated circumstances and a firearm specification, in violation of R.C. 2903.01(A), R.C. 2929.04(A)(8), and R.C. 2941.145. Appellant was also indicted on one count of conspiracy to commit aggravated murder with a firearm specification, in violation of R.C. 2923.01(A)(1) and 2941.145. Before trial, the prosecution nolled the aggravated circumstances, and the trial court dismissed the conspiracy charge. As a result, appellant proceeded to a trial by jury on September 18, 2001, for one count of aggravated murder with a firearm specification. {¶15} During trial, Pough and Art Bell testified as to their involvement with the homicide. Pough testified that he had agreed to pay Carlo Eggleston (“Eggleston”) 5 $14,000 to have McMillan killed because McMillan was going to testify against Pough in a drug trafficking case. Eggelston was also a police officer with the Youngstown City Police Department and had been Peterson’s partner. Pough testified that he had paid Eggleston $6,700 while in Art Bell’s garage. Pough further stated he had given Eggleston the $6,700 that day, but knew none of the details surrounding the murder because, as he testified, “it was irrelevant to me really.” Pough then testified that after Art Bell informed him of McMillan’s death, Pough instructed Art Bell to “give the money to whoever is over there.” {¶16} During his direct and cross-examination, Art Bell developed memory problems concerning his previous unsworn statements to Det. Gambill. As a result of Art Bell’s lack of recollection, the prosecutor read aloud a series of statements, previously made to Det. Gambill, by Art Bell. In those unsworn statements, Art Bell confessed to his own role in the murder-for-hire scheme and inculpated appellant. After each incriminating statement was read, Art Bell testified that he did not remember making the statements. At no time did he acknowledge or deny the substance of those statements. {¶17} Kendra Bell, Art Bell’s sister, testified that appellant visited the Bell family home on the day after the murder. Although she did not see any exchange of money, Kendra Bell testified that, at that time, Art Bell was there with an undisclosed amount of money. {¶18} In relationship to the gun, the following convoluted trail of evidence was laid. Vincent Thomas (“Thomas”), a resident of the Westlake Housing Project in Youngstown, testified that, after the murder, Josh Miller (“Miller”) had approached him at 6 his apartment in an attempt to purchase a gun. Thomas told Miller that he was not going to sell him a gun. At this time, a man outside of Thomas’ apartment door approached Miller from behind and informed Miller that he had a gun for sale. Thomas then shut the door of his apartment. Lt. Bishop contacted Thomas and asked him to identify the man who approached Miller from an eight-man photo array. Thomas selected appellant’s picture as the man who approached Miller regarding a gun for sale. {¶19} Additional testimony at trial established that, subsequent to McMillan’s death, Miller had come into possession of the .45 caliber revolver used in the murder. He ultimately sold the gun to Darrin Lane (“Lane”). Lane then sold it to Darryl Cooper (“Cooper”). Cooper sold the weapon to Davis, who was ultimately pulled over by the Austintown patrolman. Firearms expert, Michael Roberts (“Mr. Roberts”), testified that a bullet fragment recovered from McMillan’s skull matched a bullet that was discharged from the .45 caliber revolver recovered from Davis’ vehicle. {¶20} Following the close of the case, the jury found appellant guilty of one count of aggravated murder, in violation of R.C. 2903.01(A), with a firearm specification, in violation of R.C. 2941.145. Appellant was sentenced to a prison term of twenty-three years to life. {¶21} On October 10, 2001, appellant filed a motion for a new trial and a renewed motion for acquittal. A hearing on the motion for a new trial began on January 18, 2002, but was continued after Thomas unexpectedly invoked his Fifth Amendment privilege. The court gave appellant leave to amend the motion for a new trial, explaining that once the new motion was filed, a second hearing date would be set. 7 {¶22} Appellant filed a supplemental brief with affidavits on March 14, 2002, and the prosecution filed its response on April 10, 2002. On May 13, 2002, without a hearing, the trial court denied both appellant’s motion for a new trial and his renewed motion for acquittal. {¶23} Appellant filed a timely notice of appeal and now sets forth the following eleven assignments of error for our review: {¶24} “[1] The trial court erred in admitting the identification testimony of Vincent Thomas in violation of defendant’s state and federal right to due process. {¶25} “[2] The trial court erred and abused its discretion by admitting substantial amounts of inadmissible hearsay at trial, thus depriving the defendant of his rights to due process of law and to confront witnesses. {¶26} “[3] The trial court erred by preventing the defense from inquiring into Lt. Bishop’s alleged threats and intimidation of Witnesses during the investigation of this case, thereby violating the defendant’s rights to due process and to confront the witnesses against him. {¶27} “[4] The trial court erred and abused its discretion by denying the defendant’s motion in limine to exclude dog tracking evidence, thus denying the defendant’s right to due process of law and to confront witnesses. {¶28} “[5] The trial court erred by allowing a witness to testify as an expert on firearms identification without being qualified as an expert, and without the testimony passing the Daubert test, in violation of the defendant’s right to due process and a fair trial. 8 {¶29} “[6] The trial court erred and abused its discretion in denying the defendant’s motion for new trial and failing to complete the hearing on the motion, thus depriving the defendant of his right to due process of law. {¶30} “[7] The defendant was denied his constitutional right to a fair trial and due process of law because of prosecutorial misconduct that unfairly prejudiced the defendant. {¶31} “[8] The defendant was denied his constitutional right to effective assistance of counsel when his attorney failed to protect his rights at trial. {¶32} “[9] The trial court erred in denying the defendant’s rule 29 motion when the state failed to offer evidence sufficient to sustain a conviction. {¶33} “[10] The jury’s decision was not supported by sufficient probative evidence. {¶34} “[11] The jury’s verdict was against the manifest weight of the evidence.” {¶35} For the sake of clarity, we will discuss appellant’s assignments of error out of order. Under his first assignment of error, appellant contends that the trial court erred by denying his motion to suppress the identification testimony of Thomas. Appellant maintains that the eight-man photo array used by the prosecution to obtain Thomas’ identification of appellant was unduly suggestive and created a substantial likelihood of misidentification. {¶36} At a hearing on a motion to suppress, the trial court functions as the trier of fact. Accordingly, the trial court is in the best position to weigh the evidence by resolving factual questions and evaluating the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366. On review, an appellate court must accept the trial 9 court’s findings of fact if those findings are supported by competent, credible evidence. State v. Retherford (1994), 93 Ohio App.3d 586, 592. After accepting such factual findings as true, the reviewing court must then independently determine, as a matter of law, whether or not the applicable legal standard has been met. Id. {¶37} First, we note that even if the identification procedure contains notable flaws, this alone does not necessarily preclude the admissibility of the subsequent in- court identification. State v. Moody (1978), 55 Ohio St.2d 64, 67, citing State v. Barker (1978), 53 Ohio St.2d 135, 142-143. In order to suppress identification testimony, there must be “‘a very substantial likelihood of irreparable misidentification.’” State v. Jells (1990), 53 Ohio St.3d 22, 27, quoting Simmons v. United States (1968), 390 U.S. 377, 384. {¶38} Here, appellant claims that the procedure used by the police was unduly suggestive for the following reasons: (1) he was the only light skinned black man among the men depicted in the photos; (2) one of the photos depicted a man in a police uniform; and (3) one of the photos showed a man with a bald head. Further, appellant argues undue prejudice existed, as the photos included only suspects in the instant case. {¶39} After careful examination, we find that the photo array used by the police was not unduly suggestive. Our review of the photo array shows that at least one of the other men actually had a similar, if not the same, skin tone as appellant. Even if appellant had the lightest complexion of the six men, the procedure still was not unduly suggestive because “‘there was not such a significant difference in skin tones to make the distinction prejudicial.’” State v. McDade (Sept. 25, 1998), 11th Dist. No. 97-L-059, 10