State v. Phillips
95 N.E.3d 1017
Ohio Ct. App.2017Background
- In 2007 Kenny Phillips, then a teen, was convicted by a jury of multiple felonies (including attempted murder and felonious assault) arising from a 2006 drive-by shooting; he was sentenced to 92 years, later reduced to 65 years on remand.
- Phillips moved in December 2015 for leave to file a delayed Crim.R. 33 motion for a new trial, relying on affidavits from former/probationary Cleveland officers Gregory Jones and John Lundy describing observations inconsistent with trial testimony by Officers Keane and Lentz.
- Jones and Lundy stated they were at a nearby gas station, heard initial shots, did not observe or hear additional shots during the foot pursuit, and believed Keane/Lentz could not have seen the shooting from their alleged position.
- Affidavits alleged the detective and prosecutor were informed of Jones/Lundy’s observations but did not disclose them to the defense, raising a potential Brady claim.
- The state opposed leave, arguing Phillips failed to show he was unavoidably prevented from discovering the evidence and noting Jones/Lundy were known to the prosecution and listed as potential witnesses.
- The trial court denied leave without an evidentiary hearing, concluding Phillips failed to show by clear and convincing evidence that he was unavoidably prevented from discovering the evidence; Phillips appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Phillips) | Held |
|---|---|---|---|
| Whether Phillips was entitled to leave to file a delayed new-trial motion based on newly discovered evidence | Phillips failed to prove by clear and convincing evidence he was unavoidably prevented from discovering the evidence within 120 days; Jones and Lundy were known/rebuttal witnesses | Affidavits show officers had observations inconsistent with trial testimony and that the prosecution knew or should have known and failed to disclose, making discovery of that evidence unavoidably prevented | Reversed and remanded for an evidentiary hearing; court abused its discretion by denying a hearing because the submitted affidavits on their face showed unavoidable delay |
| Whether Phillips was unavoidably prevented from discovering the alleged Brady material earlier | Evidence insufficient, per trial court, to document diligence in seeking witnesses from 2007–2014 | Investigator affidavits and explanations that Jones refused to sign earlier due to his own legal problems and Lundy refused to speak until 2015 show unavoidable delay | Court held that where affidavits on their face indicate a potential Brady violation, the defendant is entitled to a hearing to prove unavoidable delay |
| Whether the trial court needed to hold a hearing before resolving the leave motion | No hearing required when motion/supporting affidavits do not show prima facie unavoidable delay | Affidavits did show, on their face, facts that would call into question trial testimony and suggest nondisclosure by prosecution, requiring a hearing | Holding: an evidentiary hearing is required because the filings, on their face, raised a prima facie showing of unavoidable prevention of discovery |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (suppression of exculpatory evidence by prosecution violates due process)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition and standard for clear and convincing evidence)
- Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83 (Ohio 1985) (definition of abuse of discretion)