State v. BrownState v. Brown
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-509535
BEFORE: Celebrezze, P.J., Jones, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 10, 2011
Thomas A. Rein
940 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶ 1} Appellant, David Brown, appeals from the denial of his motion for a new trial based on newly discovered evidence. For the following reasons, we affirm the trial court‘s judgment.
Procedural History
{¶ 2} In April 2008, the grand jury indicted appellant on one count of attempted murder in violation of
{¶ 4} Subsequently, appellant filed a direct appeal to this court, and his convictions and sentence were affirmed on February 25, 2010. State v. Brown, Cuyahoga App. No. 92814, 2010-Ohio-661.
{¶ 5} On May 21, 2010, appellant, pro se, filed a motion for a new trial and a motion for leave to file for a new trial. Both motions were denied without a hearing on June 4, 2010. It is from this ruling that appellant makes the instant appeal.
Statement of Facts
{¶ 6} In 2007, the victim, Anthony Doss, became friends with appellant and his wife, Nora, when Doss moved into the house across the street. The Browns introduced Doss to Leothia Scott, who worked with Nora. Doss and Scott began dating after that.
{¶ 7} Thereafter, Doss‘s friendship with appellant and Nora began to deteriorate after appellant asked Doss to take responsibility for a condom that Nora found in their home. The condom belonged to appellant, but Doss agreed to take the blame for it.
{¶ 8} Doss stated that, in April 2008, he was on the sidewalk in front of his house when appellant yelled from across the street, “I can‘t help it if you f***ed things up with your bitch.” Doss became angry at this and was “ready to start a fight.” He began to walk toward appellant‘s house and, as he did, he pulled his cell phone off of his belt and began to take off his shirt to fight. At that time, appellant came off his porch, “reached in his back, and pulled a gun out and started shooting.” Doss believed appellant shot at him about six times; he was hit three times, in both legs and in the stomach. Doss stated he then turned around and “slowly walked” back to his house, and appellant shouted at him, “you don‘t walk up on nobody, Tone.” Doss spent three-and-a-half weeks in the hospital as a result of being shot.
{¶ 9} At all times, appellant contended that Doss fired the first shots and that he only shot back in self defense.
Law and Analysis
Motion for New Trial
{¶ 10} In appellant‘s lone assignment of error, he argues that the trial court erred by denying his motion for a new trial without considering the merits and without conducting a hearing. Specifically, he argues that newly discovered evidence relating to the mental health of the state‘s witness creates a strong probability that there would have
{¶ 11} “A motion for new trial pursuant to
{¶ 12}
{¶ 13} Pursuant to
{¶ 14} A defendant is entitled to a hearing on his motion for leave if he submits “documents that on their face support his claim that he was unavoidably prevented from timely discovering the evidence” at issue. State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶19. Although a defendant may file his motion for a new trial along with his request for leave to file such motion, “the trial court may not consider the merits of the motion for a new trial until it makes a finding of unavoidable delay * * * If the defendant submits documents that on their face support his claim that he was unavoidably prevented from timely discovering the evidence, the trial court must hold a hearing to determine whether there was unavoidable delay.” State v. Stevens, Montgomery App. Nos. 23236 and 23315, 2010-Ohio-556, at ¶11. Where a motion for a new trial based on newly discovered evidence does not comply with the requirements of
{¶ 15} Appellant was convicted in November 2008; however, he did not file his motion for a new trial until May 2010, well beyond the 120-day limit under
{¶ 16} We do not believe that appellant has met this burden. Even accepting the newly discovered evidence as true, the affidavits attached to appellant‘s motion do not on their face support his claim that he was unavoidably prevented from discovering the evidence contained therein.
{¶ 17} The new evidence supporting appellant‘s motion for a new trial involved a copy of a docket from a 2003 case against the victim, Anthony Doss. In that case, Doss was referred to the court psychiatric clinic for a mental health evaluation. Essentially, appellant contends that evidence of Doss‘s poor mental health would have been probative to his 2008 case, as it questions the credibility of Doss‘s testimony. However, appellant‘s affidavit fails to demonstrate that he was unavoidably prevented from discovering this evidence within 120 days of his verdict. The 2003 information appellant now seeks to introduce as new evidence was made part of the public record and was available to him at the time of his 2008 trial. Appellant has failed to demonstrate that he exercised reasonable diligence to uncover this evidence during the period of time that elapsed between the November 2008 verdict and the filing of his motion for a new trial.
{¶ 18} Accordingly, the trial court did not abuse its discretion when it denied appellant‘s motion for a new trial without a hearing. Appellant‘s sole assignment of error is without merit.
Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, J., and SEAN C. GALLAGHER, J., CONCUR