No. CA2008-09-113. | Ohio Ct. App. | May 4, 2009
{¶ 2} On August 16, 2006, appellant was indicted on one count of felonious assault, stemming from an allegation that he attacked a fellow inmate while serving a sentence at *2 Warren Correctional Institution for a previous conviction. Following a jury trial, appellant was found guilty of felonious assault and sentenced to serve six years in prison. Appellant timely appealed his conviction to this court.
{¶ 3} While his direct appeal was pending in this court, appellant filed petitions seeking postconviction relief and motions for discovery and a new trial based upon newly-discovered evidence. The trial court denied the petitions and motions on August 22, 2008. Thereafter, this court affirmed appellant's conviction on direct appeal on October 6, 2008. See State v. Clark, Warren App. No. CA2007-03-037,
{¶ 4} Assignment of Error No. 1:
{¶ 5} "THE TRIAL COURT ERRED IN DISMISSING MR. CLARK'S POSTCONVICTION PETITION FINDING NONE OF THE GROUNDS FOR RELIEF TO WARRANT GRANTING RELIEF WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS TO MERIT RELIEF OR, AT A MINIMUM, AN EVIDENTIARY HEARING."
{¶ 6} Initially, we note that while appellant references several alleged grounds for postconviction relief in his assignment of error and brief, appellant specifically limited his appeal to the trial court's dismissal of his fourth and fifth grounds for relief in both his brief and at oral argument. Accordingly, we will only address these grounds.
{¶ 7} In reviewing an appeal of postconviction relief proceedings, this court applies an abuse of discretion standard in determining whether the trial court erred in denying the petitioner's motion without a hearing. State v. Barton, Warren App. No. CA2006-10-127,
{¶ 8} A petitioner seeking postconviction relief is not automatically entitled to an evidentiary hearing on the petition. State v.Calhoun,
{¶ 9} In his fourth ground for relief, appellant argues the state failed to disclose exculpatory information related to a federal civil lawsuit filed by the victim in this case against several employees of the Ohio Department of Rehabilitation and Correction in violation ofBrady v. Maryland (1963),
{¶ 10} In Brady v. Maryland, the United States Supreme Court held, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Evidence is "material" only if there is a reasonable probability that the proceeding would have turned out differently had the evidence been disclosed to the defense. UnitedStates v. Bagley (1985),
{¶ 11} In rejecting appellant's Brady claim, the trial court found that the state was not required to disclose the existence of the victim's federal civil lawsuit. The trial court found that the assistant attorney general who acted as a special assistant prosecutor in appellant's trial and the assistant attorney general who defended the state employees in the civil lawsuit performed completely separate functions within the Ohio Office of the Attorney General. Further the trial court found that there is no evidence the special assistant prosecutor had actual knowledge of the civil lawsuit or that he knowingly withheld the existence of the lawsuit. Also, the trial court found that the existence of the victim's civil lawsuit against state employees does not in itself create evidence to impeach the credibility of the victim's testimony in appellant's trial. Finally, the trial court examined the alleged inconsistencies in testimony from both trials and found no material differences that would have altered the outcome of appellant's trial.
{¶ 12} Appellant argues that the state violated the Brady requirement because an assistant attorney general who was appointed as a special assistant prosecutor to assist Warren County Prosecutor's Office in prosecuting this case is imputed with knowledge of allegedly favorable, material evidence from the civil lawsuit because a different assistant attorney general represented the state employees in the civil lawsuit. Appellant is correct in his assertion that the state's actual knowledge of favorable, material evidence is not required in a Brady analysis. SeeGiglio v. United States,
{¶ 13} "[W]hether the nondisclosure [of favorable, material evidence] was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an *5 entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. * * * To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it." (Emphasis added and internal citations omitted.)
{¶ 14} At issue in Giglio was whether a promise of immunity made by one Assistant United States Attorney to a witness in exchange for the witness agreeing to testify before a grand jury can be attributed to the government when a different United States Attorney, who had no actual knowledge of the promise, represented the government at trial in the same case. Id. at 152-155. However, this case presents a much different fact scenario than the court faced in Giglio.
{¶ 15} In this case, appellant invites us to extend the reach ofGiglio to attribute knowledge of a federal civil lawsuit filed in the United States District Court for the Southern District of Ohio to the Warren County Prosecutor's Office simply because an assistant attorney general represented state employees in the civil lawsuit and a different assistant attorney general, in a wholly separate division and office, aided the prosecutor's office in this case as a special assistant prosecutor pursuant to R.C.
{¶ 16} Further, appellant has failed to demonstrate that the evidence in question is *6
material, such that there is a reasonable probability that the proceeding would have turned out differently. See Bagley,
{¶ 17} In his fifth ground for postconviction relief, appellant argues his trial counsel was ineffective for failing to discover the existence of the federal civil lawsuit.
{¶ 18} In determining whether counsel's performance constitutes ineffective assistance, an appellate court must find that counsel's actions fell below an objective standard of reasonableness and that appellant was prejudiced as a result. Strickland v. Washington (1984),
{¶ 19} As we found above, appellant has failed to demonstrate that the outcome of the trial would have been different if appellant had knowledge of the civil lawsuit. We find that trial counsel's failure to discover the existence of the civil lawsuit did not have a prejudicial effect on the outcome of appellant's trial. Accordingly, we find that the trial court did not abuse its discretion in rejecting appellant's fifth ground for postconviction relief.
{¶ 20} Appellant's first assignment of error is overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} "THE TRIAL COURT ERRED IN DISMISSING MR. CLARK'S MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL AND MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE FINDING THE OFFERED EVIDENCE WAS NOT NEWLY DISCOVERED."
{¶ 23} Under Crim. R. 33(A)(6), "[a] new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: * * * When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial. * * *"
{¶ 24} To grant a motion for a new trial based on the ground of newly-discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. State v. Hawkins (1993),
{¶ 25} We agree with the trial court's finding that the evidence in question is not "newly discovered" as the civil lawsuit is public record and evidence of its existence could have been discovered in exercising due diligence before trial. See State v. Hensley, Warren App. No. CA2002-01-002, 2002-Ohio-3494, ¶ 12. It is undisputed that the victim filed the civil lawsuit on June 29, 2006 and appellant wasn't indicted until August 16, 2006. Further, it is undisputed that the existence of the civil lawsuit is a matter of public record. Moreover, appellant has failed to demonstrate that the evidence does more than merely impeach or contradict the former evidence. Hawkins,
{¶ 26} Appellant's second assignment of error is overruled.
{¶ 27} Judgment affirmed.
POWELL and RINGLAND, JJ., concur.