2021 Ohio 2020
Ohio Ct. App.2021Background
- On July 19, 2011 Salim Suleiman was fatally shot outside Kelley’s Carryout in Akron; Gevonte Hunter was indicted, tried, and convicted of aggravated murder and related counts and sentenced to 33 years to life. The Ninth District affirmed the conviction on direct appeal.
- At trial Hunter presented a defense that he did not have his cell phone (it was lost) and was not the shooter; key State witness Lashawna Boswell testified she believed she saw Hunter near the scene but said she was too intoxicated to be certain. Phone records and other circumstantial evidence supported the jury verdict.
- Approximately six years after the appellate affirmance, Hunter sought leave to file a motion for new trial based on a newly discovered affidavit from Deaysheona (Desha) Jackson claiming Hunter was on a porch at 517 East Avenue with Jackson, Jade Johnson, and Taveal Boswell when Boswell left to use a phone and shots followed shortly thereafter.
- Hunter also presented his own affidavit claiming he lent his phone to Boswell and an unauthenticated 2017 transcript of Lashawna Owens (Boswell) recanting parts of her trial testimony; Hunter argued Jackson’s affidavit would likely produce a different result and requested an evidentiary hearing.
- The trial court denied leave and the motion for a new trial, concluding (among other things) the Jackson affidavit was cumulative or impeaching, contradicted prior testimony and Hunter’s notice of alibi, and would not strongly probably change the verdict; the court also declined to hold an evidentiary hearing.
- The Ninth District Court of Appeals affirmed, holding the trial court did not abuse its discretion in denying a new trial or an evidentiary hearing; the assignment challenging failure to seek a pretrial continuance was deemed moot.
Issues
| Issue | Hunter's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Jackson’s affidavit is newly discovered evidence warranting a new trial under Crim.R. 33(A)(6) | Jackson’s affidavit exonerates Hunter, shows he was not at Kelley’s and had lent his phone to Boswell, and thus discloses a strong probability of a different result | Affidavit is cumulative/impeaching, contradicts Hunter’s prior alibi and his witnesses, could have been discovered or presented at trial; does not show strong probability of a different outcome | Denied. Court held affidavit was cumulative/contradictory and would not strongly probably change the verdict; trial court did not abuse discretion |
| Whether the trial court abused its discretion by denying an evidentiary hearing on the new-trial motion | An evidentiary hearing was required because Jackson’s affidavit was strong and would likely exonerate Hunter | No hearing required; trial judge had full familiarity with record and the filings did not warrant live testimony | Denied. Court held refusal to hold a hearing was within discretion given the record and the court’s review of filings |
| Whether denial of new trial was an abuse because Hunter failed to seek a continuance at trial to locate Jackson | Hunter argued he could not find Jackson despite diligent efforts and thus was unavoidably prevented from presenting her testimony | State argued Hunter provided no clear-and-convincing proof of unavoidable delay and could have presented the asserted theory earlier | Moot. Appellate court did not reach merits after rejecting the new-evidence claim; assignment rendered moot |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (circumstantial and direct evidence have equal probative value)
- State v. Petro, 148 Ohio St. 505 (Ohio 1947) (standards for newly discovered evidence warranting a new trial)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard explained)
- Pons v. Ohio State Medical Board, 66 Ohio St.3d 619 (Ohio 1993) (appellate court may not substitute its judgment for trial court when reviewing discretionary rulings)