Takeaway
In short, State v. Fanning confirms that disputed identification claims are assessed under the totality of the circumstances, Ohio’s statutory speedy-trial period does not automatically govern retrials after mistrial, and a Carter no-adverse-inference instruction is mandatory only when the defendant makes a procedurally proper request.
Fanning was charged with robbery and remained jailed in lieu of bail. Before trial, he moved to suppress an eyewitness’s identification, claiming that police had subjected him to an improper one-on-one confrontation and photographic procedure before a lineup. The eyewitness and the investigating officer denied that the claimed confrontation occurred, and the officer denied taking the photograph Fanning described. The eyewitness had also briefly but unobstructedly viewed the robber during the crime.
Fanning’s first trial began 88 days after his arrest but ended in a mistrial when the jury could not reach a verdict. His retrial began 120 days after arrest, after the trial court continued the matter for 29 days to reduce the chance of overlapping jurors. At the retrial, Fanning did not testify. He sought a jury instruction that his silence could not be considered against him, but he did not submit a written special instruction request at the close of the evidence as required by Criminal Rule 30. The Court of Appeals affirmed his conviction, and the Ohio Supreme Court affirmed the appellate judgment.
Issue #1
Whether the pretrial identification procedures were so impermissibly suggestive that admitting the eyewitness’s in-court identification denied Fanning due process.
Holding
No. The trial court did not err in finding that the identification procedure was not unduly suggestive.
Reasoning
The Court applied the totality-of-the-circumstances approach required by State v. Jackson. Under that approach, the question was not simply whether Fanning alleged a suggestive encounter, but whether the evidence established an identification procedure creating a substantial likelihood of irreparable misidentification.
The suppression record contained conflicting testimony. Fanning claimed there had been a one-on-one confrontation and a photograph taken before the lineup, but both the eyewitness and the police officer denied that any such confrontation occurred, and the officer denied taking the alleged photograph.
Questions of witness credibility and evidentiary weight ordinarily belong to the factfinder, and that principle also applies at suppression hearings. The trial court was therefore entitled to credit the eyewitness and officer rather than Fanning.
The eyewitness had a brief but unobstructed opportunity to see the assailant during the robbery. In light of that observation and the trial court’s supported finding that the asserted pre-lineup confrontation had not occurred, the Court found no unconstitutional suggestiveness.
Issue #2
Whether Ohio’s statutory speedy-trial deadline applies to a retrial following a mistrial caused by a hung jury.
Holding
No. R.C. 2945.71 does not govern retrials; the governing constitutional standard is reasonableness.
Reasoning
R.C. 2945.71 generally requires that a jailed defendant be brought to trial within 90 days of arrest. Fanning’s initial trial met that deadline because it began 88 days after his arrest, although the retrial began 120 days after arrest.
The Court concluded that the statute does not apply to retrials because its text makes no reference to retrials. Rather than extending the statutory deadline to a setting the legislature did not identify, the Court evaluated the delay under the constitutional standard of reasonableness.
The 29-day continuance after the mistrial was reasonable on these facts. The trial court granted it to lessen the risk that jurors from the first proceeding would overlap with those selected for the retrial, a practical concern that justified the short delay.
Issue #3
Whether the trial court was constitutionally required to instruct the jury, upon Fanning’s request, that it could not draw any inference from his failure to testify.
Holding
Not on this record. Carter v. Kentucky made the instruction mandatory upon a proper request, but Fanning did not make a proper request under Criminal Rule 30.
Reasoning
Carter v. Kentucky held that the Fifth Amendment privilege against self-incrimination gives a defendant the right, upon proper request, to an instruction that the jury may not consider the defendant’s failure to testify for any purpose. Because Fanning’s appeal remained pending when Carter was decided, the Court applied Carter to his case.
Carter displaced the Ohio rule announced in State v. Nelson, which had treated the instruction as discretionary with the trial judge. After Carter, a trial court has a constitutional duty to give the instruction when the defendant properly requests it.
The constitutional right recognized in Carter is triggered only by a proper request. Criminal Rule 30 required a special jury-instruction request to be in writing and submitted at the close of the evidence, unless the court directed an earlier time.
Fanning did not file the required written request at the close of the evidence. Because his request did not comply with Criminal Rule 30, it was not proper, and the trial court was not required to give the requested no-adverse-inference instruction.