State v. Brodbeck, 2017 Ohio 7187

Darrin Brodbeck was convicted in 2008 of murder, tampering with evidence, and domestic violence; this court affirmed the convictions on direct appeal.
Brodbeck sought leave in October 2016 to file an untimely motion for a new trial based on newly discovered evidence, more than eight years after the January 14, 2008 verdict.
He asserted three categories of newly discovered evidence: (1) hearsay reports that the victim, Christine Turner, attempted suicide with a gun in 1997; (2) a 2016 forensic opinion by Dr. Amy Hawes concluding the wound was self-inflicted and supporting forensic literature; and (3) enhanced 911 audio allegedly showing Brodbeck shouting “don’t hit her” rather than “help her.”
The trial court denied leave, finding the prior-suicide evidence was inadmissible hearsay and of little relevance, the Hawes opinion could have been presented at trial and Brodbeck had not shown unavoidable prevention, and the 911 enhancement likewise could have been presented earlier.
On appeal the Tenth District reviewed denial of leave for abuse of discretion and affirmed, holding Brodbeck failed to show he was unavoidably prevented from discovering the evidence and that the proffered evidence did not warrant a new trial.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Brodbeck)	Held
Whether leave to file an untimely Crim.R. 33 motion should be granted for evidence of a prior suicide attempt	Evidence is hearsay, minimally relevant, and would not change the verdict	Prior suicide attempt is highly material to intent and supports suicide theory	Denied — evidence is hearsay/inadmissible and not shown to produce a different result
Whether leave should be granted for new blood-spatter/forensic opinion (Dr. Hawes)	Hawes’s opinion could have been offered at trial; Brodbeck not unavoidably prevented from obtaining it	Hawes is a superior forensic pathologist whose opinion supports suicide and undermines trial experts	Denied — Brodbeck could have engaged/called expert at trial; no unavoidable prevention proven
Whether enhanced 911 recordings justify leave for new trial	Enhancement adds little to central trial evidence; could have been presented earlier	Enhanced audio identifies caller as Brodbeck and supports his account	Denied — enhancement could have been obtained and used earlier; not sufficiently material
Whether Brodbeck was unavoidably prevented from discovering any of the new evidence within Crim.R. 33(B) period	No — no adequate showing of lack of knowledge or reasonable diligence	Yes — incarceration and alleged family concealment prevented earlier discovery	Denied — court found Brodbeck failed to show unavoidable prevention and untimely filing after discovery

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (defines abuse-of-discretion standard)
Petro v. State, 148 Ohio St. 505 (1947) (six-part test for newly discovered evidence in criminal cases)
Morris v. [State], 132 Ohio St.3d 337 (2012) (discusses appellate review under abuse-of-discretion standard)
Walden v. State, 19 Ohio App.3d 141 (1984) (defines "unavoidably prevented" for untimely new-trial motions)