State v. Green
2013 Ohio 5327
Ohio Ct. App.2013Background
- June 22, 2008: At a family cookout at appellant James E. Green's house, an argument with his nephew Quentin escalated; Green retrieved a rifle and shot Quentin in the leg.
- July 27, 2009: Following a jury trial, Green was convicted of felonious assault with a firearm specification, having a weapon while under disability, and a repeat violent offender specification.
- Angela McClain (witness) gave inconsistent statements to 911, an initial officer, and a detective about seeing the shooter and whether Green reloaded the rifle; she later admitted some statements were untrue.
- February 1, 2013: Green filed a pro se motion titled "Motion for 52(B) and Motion for New Trial" alleging prosecutorial misconduct and perjury based on those inconsistencies. He sought a new trial or dismissal.
- March 11, 2013: The trial court denied the motion as untimely under Crim.R. 33 and because Green did not seek leave or show unavoidable delay. Green appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Green) | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying motion for new trial without adjudicating prosecutorial misconduct claims | Motion untimely; merits not reached because leave was required and not shown | Prosecutor knew of witness inconsistencies and suborned/permitted perjury; motion warranted adjudication | Court affirmed denial: motion untimely under Crim.R. 33; no leave sought or proof of unavoidable delay |
| Whether trial court erred by not holding a hearing on the motion for new trial | No hearing required when movant fails to obtain leave under Crim.R. 33 | Requested hearing to determine if prosecution deliberately suborned perjury or failed to correct it | Court affirmed: leave must be granted before merits/hearing; no abuse of discretion in denying hearing |
Key Cases Cited
- Schiebel v. Ohio, 55 Ohio St.3d 71 (1990) (standard: appellate review of denial/grant of Crim.R. 33 is abuse of discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
- Lordi v. Ohio, 149 Ohio App.3d 627 (2002) (leave must be granted before merits of untimely Crim.R. 33 motion are considered)
- Walden v. Ohio, 19 Ohio App.3d 141 (10th Dist. 1984) (definition of "unavoidable delay" for Crim.R. 33 leave)