2021 Ohio 4533
Ohio Ct. App.2021Background
- Hawk was indicted for attempted murder and four counts of felonious assault (with firearm specifications) arising from an October 13, 2011 Duxberry Avenue shooting; multiple victims identified a light-skinned shooter and Hawk (light-skinned) was tried and convicted by a jury.
- Trial evidence included eyewitness IDs of Hawk, alternative-witness testimony implicating Hawk’s dark-skinned half-brother (Jywaun), phone-call recordings, and a ballistics link to a recovered firearm; Hawk was sentenced to 40 years and this court affirmed on direct appeal.
- Years later Hawk filed a delayed Crim.R. 33 motion asserting newly discovered/exculpatory evidence: municipal-court records and affidavits indicating Jywaun surrendered and admitted responsibility (and that Detective VanVorhis had lied about no in-person statement).
- The trial court denied Hawk’s first delayed-leave motion (finding no unavoidable prevention and that the records did not prove an in‑person statement), and later denied a successive second motion for leave supported by additional affidavits and municipal documents.
- On appeal Hawk argued the denial abused discretion and implicated Brady/ prosecutorial misconduct; the appellate court affirmed, concluding res judicata issues and, crucially, Hawk failed to show he was unavoidably prevented from discovering the evidence or that Brady applied.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hawk) | Held |
|---|---|---|---|
| 1) Whether the trial court abused its discretion denying leave to file a delayed Crim.R. 33 motion based on newly discovered evidence | Denial proper; Hawk failed to show unavoidable prevention and successive motion is barred by res judicata | Evidence of Jywaun's arrest and affidavits are newly discovered and exculpatory; denial was an abuse of discretion | Affirmed: no abuse of discretion — Hawk did not prove unavoidable prevention; res judicata concerns noted |
| 2) Whether the alleged municipal-court records and affidavits show prosecutorial suppression (Brady) | Brady not triggered because Hawk knew (or could have learned) of Jywaun’s arrest prior to or during trial | Records show state withheld evidence proving Jywaun surrendered and admitted guilt, violating Brady | Held for State: no Brady violation — defendant had knowledge/effective access to the evidence; prosecution’s suppression not established |
| 3) Whether Detective VanVorhis perjured himself about not receiving an in‑person statement from Jywaun | Perjury not established: affidavits and records do not contradict detective’s testimony that no in‑person statement was given | Municipal records and Jywaun’s affidavits prove the detective lied and that Jywaun gave an in‑person statement | Held for State: submitted documents/affidavits do not reliably prove perjury; second affidavit actually states Jywaun declined to give a statement in person |
| 4) Whether the successive motion is barred by res judicata | Successive/new claims could have been raised earlier; res judicata bars relitigation via successive Crim.R. 33 motions | New documents discovered later support claims that could not previously have been proven | Held for State: res judicata applies; Hawk did not show why the second motion’s matters could not have been raised earlier |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s suppression of material exculpatory evidence violates due process)
- State v. Petro, 148 Ohio St. 505 (1947) (six-factor test for newly discovered evidence warranting a new trial)
- Cross v. Ledford, 161 Ohio St. 469 (1954) (definition and standard for clear and convincing evidence)
- State v. Schiebel, 55 Ohio St.3d 71 (1990) (abuse-of-discretion review for new-trial rulings)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion definition)