STATE OF OHIO, Plaintiff-Appellee, vs. DEREK CANNON, Defendant-Appellant.
APPEAL NO. C-180474
TRIAL NO. B-9507633
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 27, 2019
2019-Ohio-3941
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Ohio Innocence Project, Mallorie Thomas and Donald Caster, for Defendant-Appellant.
{¶1} Defendant-appellant Derek Cannon appeals the Hamilton County Common Pleas Court‘s judgment overruling his
{¶2} In 1996, Cannon was convicted of aggravated murder for the death of Darrell Depina, a fellow inmate at the Southern Ohio Correctional Facility in Lucasville, Ohio (“Lucasville“), during the April 1993 riot there. Cannon unsuccessfully challenged his conviction on direct appeal and in postconviction motions filed in 1996, 1998, and 2009. See State v. Cannon, 1st Dist. Hamilton No. C-950710, 1997 WL 78596 (Feb. 26, 1997), appeal not allowed, 81 Ohio St.3d 1523, 692 N.E.2d 1024 (1998); State v. Cannon, 1st Dist. Hamilton No. C-980389 (Mar. 10, 1999); State v. Cannon, 1st Dist. Hamilton No. C-090907 (Jan. 12, 2010).
{¶3} In 2018, Cannon moved under
The Trial
{¶4} On the afternoon of April 11, 1993, Lucasville inmates seized control of the facility‘s cellblock “L” (“L-Block“), taking several correctional officers hostage and locking inmates considered “snitches” into cells in the L-6 section of L-Block. A “death squad” assembled by inmate Keith LaMar gathered bats, shovels, and weight bars, and with their faces concealed in T-shirts, towels, and bandannas, they
{¶5} An autopsy showed the cause of Depina‘s death to be skull fractures and brain injury from two “heavy injuries” to the head. According to the state‘s witnesses, when the riot began, Cannon was in the prison recreation yard and, with fellow inmates LaMar and Louis Jones, entered L-Block to check on personal belongings in his cell. When rioting inmates barred them from returning to the recreation yard, LaMar successfully bartered for their return in exchange for killing the “snitches” confined in L-6. LaMar, Jones, and Cannon then enlisted and armed other inmates for the death squad and entered L-6. State‘s witnesses placed Cannon with the death squad in L-6, with a weapon or baseball bat in his hand. Other witnesses testified to seeing Cannon beat Depina about the head and body. Jones testified that he and Cannon had wanted nothing to do with killing “snitches,” but that Cannon had later confessed to having struck someone in the head.
{¶6} Cannon took the stand and denied entering L-6. He testified that he had gone alone into L-Block, proceeded to his cell, and changed his shoes. As he was returning to the recreation yard, he walked toward L-6 in search of his friend LaMar, but he continued on to the yard when he saw that the L-6 windows and doors were taped shut. Defense witnesses who had been with Cannon in the recreation yard confirmed that he had gone alone into L-Block to get his shoes and other personal items from his cell and had returned alone ten to 15 minutes later with his shoes. Witnesses who saw Cannon in L-Block testified that he had appeared to have armed himself, as had other inmates in L-Block, with a small club, but that he had not been masked and had not entered L-6 with the death squad. And a witness who was
{¶7} Jailhouse informant Dwayne Buckley testified in the state‘s case in rebuttal. He stated that he had met Cannon in the Hamilton County Justice Center while serving as a porter in Cannon‘s pod, that they had discussed the Lucasville riot, and that Cannon had confessed to being part of a group who had tortured and killed “a guard” and shanked a “white guy” in another cell. Cannon, Buckley insisted, declared that he would “beat” the charges and avenge himself on any “snitches” who had implicated him. Buckley stated that he had reported Cannon‘s confession because he feared for his safety and the safety of others after an argument between the two had escalated into threats by Cannon against Buckley and his family.
{¶8} In rebuttal, Cannon testified that any contact with Buckley had been in the presence of two corrections officers. And Cannon denied threatening Buckley or confessing to torturing and murdering a corrections officer.
The Motion
{¶9} In his April 2018
{¶10} In opposition to the motion for leave, the state argued that the proposed new-trial motion would not succeed on the merits and supported that argument with an affidavit made by Buckley in May 2018, recanting his April 2017 affidavit. In his 2018 affidavit, Buckley averred that he had testified truthfully at trial, and that his 2017 affidavit had been false and the product of threats against his mother and against his nephew, who had been incarcerated with Cannon at the time.
{¶11} Cannon, in response, argued that the only issue presented by his
Abuse of Discretion in Denying Leave without a Hearing
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{¶16} We note at the outset that, under the bifurcated proceeding contemplated by
{¶17} Moreover, we conclude that Cannon established an entitlement to an evidentiary hearing on his motion for leave. Throughout his trial, in his direct appeal, and in postconviction motions filed in 1996, 1998, and 2009, Cannon consistently maintained that he had not murdered Delpino. His 2018 new-trial proceedings were also predicated upon his claim of actual innocence. That claim was advanced by the averments contained in Buckley‘s affidavit, that a falling-out with Cannon, along with law enforcement‘s promise of early release, had caused him to provide a statement to police and trial testimony that falsely incriminated Cannon in Delpino‘s death. And Cannon‘s assertion in his motion for leave to move for a new trial out of time, that he had been unavoidably prevented from timely discovering that evidence and presenting it in a new-trial motion, was supported by the affidavit
{¶18} Because Cannon was entitled to an evidentiary hearing on his
Judgment reversed and cause remanded.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.