2021 Ohio 4198
Ohio Ct. App.2021Background
- Derek Cannon was convicted in 1996 of aggravated murder for the 1993 Lucasville prison riot death of inmate Darrell Depina; autopsy showed skull fractures and brain injury from heavy blows to the head.
- At trial multiple state witnesses placed Cannon with the "death squad" beating Depina; Cannon denied involvement and testified in his defense. Jailhouse informant Dwayne Buckley testified in rebuttal that Cannon confessed to torturing/killing a guard and attacking another inmate.
- Years later, Buckley executed a 2017 affidavit recanting his trial testimony and alleging coercion/incentives; a 1996 state witness also executed an affidavit recanting identification. A private investigator corroborated aspects of Buckley’s recantation effort.
- Buckley then executed a 2018 affidavit retracting his 2017 recantation, claiming threats had produced the earlier affidavit; Buckley’s relatives denied threats. At the new-trial hearing Buckley invoked the Fifth Amendment and the state refused immunity.
- The common pleas court admitted Buckley’s 2017 affidavit and a stipulated recanting-witness statement but concluded under the Petro factors that the newly discovered evidence would not likely produce a different result and denied a new trial; the appellate court affirmed, finding no abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying a Crim.R. 33(A)(6) new-trial motion based on newly discovered recantation evidence | State: Buckley’s recantation and other affidavits do not create a strong probability of a different verdict and are unreliable; denying a new trial was within the court’s discretion. | Cannon: Buckley’s 2017 recantation (plus other affidavits) is newly discovered, material, not obtainable earlier with due diligence, and would likely produce a different result. | Court: No abuse of discretion; under Petro factors the recantation would not likely change the outcome, so denial of Crim.R. 33(A)(6) motion is affirmed. |
Key Cases Cited
- State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (Ohio 1947) (sets six-part standard for newly discovered evidence warranting a new trial)
- State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (Ohio 1975) (new-trial motions reviewed for abuse of discretion)
- State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (Ohio 1980) (defines abuse of discretion as unreasonable, arbitrary, or unconscionable)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (Ohio 1990) (an unreasonable decision lacks a sound reasoning process)