2022 Ohio 3407
Ohio Ct. App.2022Background
- On January 8, 2008, Fred Brock was found handcuffed and fatally shot in an apartment that had been ransacked; a torn fingertip from a green latex glove found under the body contained Graggs' DNA. A similar glove and a revolver were later recovered from Graggs' residence.
- Graggs was tried in January 2009, convicted of aggravated robbery, kidnapping, and aggravated murder, and sentenced to concurrent terms including life without parole for aggravated murder.
- Over many years Graggs pursued multiple post-conviction motions and repeated motions for leave to file untimely motions for new trial, submitting affidavits from various inmates (Bridges, Sealy, Shepard, Mullins) alleging others were present at or transported gloves into the apartment. Those motions were repeatedly denied by the trial court and the denials were affirmed on appeal.
- In 2021 Graggs filed another motion for leave to file a new-trial motion, attaching an affidavit from Leroy S. Brown claiming he transported used latex gloves (including Graggs’) into Lanier’s apartment in 2007; Graggs said he only learned of Brown’s statements after meeting him in prison.
- The trial court denied leave, finding Graggs failed to prove by clear and convincing evidence that he was unavoidably prevented from discovering Brown’s testimony within the Crim.R. 33(B) filing period and that Brown’s affidavit was cumulative of evidence and defenses already presented at trial. The Tenth District affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Graggs) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying leave to file an untimely motion for new trial based on alleged newly discovered evidence (Brown affidavit) | The record shows Graggs and his counsel knew of the glove theory and potential witnesses pretrial; Graggs failed to show he was unavoidably prevented from discovering Brown and could have presented similar witnesses earlier. | Graggs had no knowledge of Brown's conduct until meeting him in prison in 2021, so he was unavoidably prevented from timely discovering the evidence. | No abuse of discretion: Graggs did not prove by clear and convincing evidence he was unavoidably prevented from discovering Brown's affidavit; Brown's statements were cumulative of evidence available at trial. |
| Whether the trial court erred by considering the merits (Petro factors) when ruling on leave to file | The court may consider merits when appropriate; prior precedent allows addressing whether evidence would change the result. | Graggs argued the trial court should have limited review to whether he was unavoidably prevented from discovering the evidence, not the merits. | Court may consider Petro factors at leave stage; here it properly assessed both unavoidable-prevention and that the evidence was cumulative and would not produce a strong probability of a different result. |
| Whether Graggs was entitled to an evidentiary hearing on the motion for leave | No hearing required where movant fails to submit documents that on their face demonstrate unavoidable prevention or when the affidavit could not support a new trial. | Graggs contended he was entitled to a hearing to develop Brown’s testimony. | No error in denying a hearing: because Graggs failed to establish unavoidable prevention and the affidavit was cumulative, the court did not abuse its discretion in refusing a hearing. |
Key Cases Cited
- State v. Petro, 148 Ohio St. 505 (Ohio 1947) (sets the six-factor test for newly discovered evidence required to grant a new trial)
- State v. McConnell, 170 Ohio App.3d 800 (2d Dist. 2007) (discusses documents that must on their face show unavoidable prevention to warrant a hearing on new-trial leave)