STATE OF OHIO, Plaintiff-Appellee, v. CRAIG A. COWAN, Defendant-Appellant.
No. 108394
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 27, 2020
[Cite as State v. Cowan, 2020-Ohio-666.]
MICHELLE J. SHEEHAN, J.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED. Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-550536-A
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.
Craig A. Cowan, pro se.
MICHELLE J. SHEEHAN, J.:
{¶ 1} Craig A. Cowan appeals from the judgment of the Cuyahoga County Common Pleas Court that denied his motion for leave to file a motion for a new trial. On appeal, he presents three assignments of error for our review:
The trial court abused its discretion when it failed to hold a hearing on Cowan‘s motion for leave to file a motion for new trial when the record and circumstances supported Cowan‘s claims that he was unavoidably prevented from discovering the new evidence in violation of the United States Constitution, the Constitution of the State of Ohio, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963) and State v. Johnston, 39 Ohio St.3d 48, 60, 529 N.E.2d 898 (1988). - The trial court abused its discretion when it failed to grant Cowan‘s motion for leave to file a motion for new trial or hold a hearing when Cowan established the state failed to disclose material exculpatory evidence in violation of his right to due process under the Ohio Constitution and the Constitution of the United States of America.
- Alternatively, the trial court abused its discretion when it failed to grant Cowan‘s motion for leave to file a motion for new trial or hold a hearing when Cowan established the ineffective of counsel by failing to call as a witness and expert witness, evidence technician, lead crime scene investigator and member of Meel #806. Cowan did not get a fair trial and received [an] 18-year consecutive sentence.
After a review of the record and applicable law, we find no merit to the appeal and affirm the trial court‘s judgment.
Procedural Background
{¶ 2} In 2012, Cowan was convicted of felonious assault, discharge of a firearm on or near a prohibited premises, having weapons while under disability, and improperly handling firearms in a motor vehicle after a jury found him guilty of these offenses. This court affirmed his convictions in State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, discretionary appeal not allowed, 135 Ohio St.3d 1413, 2013-Ohio-1622, 986 N.E.2d 30.
{¶ 4} In his direct appeal, this court summarized the trial testimony as follows:
Toni Walcott testified that on the afternoon of May 19, 2011, she, her brother Robert, her cousin Artemus Blandling, her aunt Kim Blandling, Robert‘s girlfriend Celena Glover, Celena‘s cousin Albert Glover, and Cowan were socializing and drinking. They first convened
at Cowan‘s home and then at Kim‘s home. At some point that evening, they decided to go to a bar on Miles Avenue. They drove in two cars because they could not all fit in one. Celena drove Robert and Albert, and Cowan drove Toni, Artemus, and Kim. According to Toni, Cowan got into an argument with Kim causing Artemus to tell Cowan he did not like how he was talking to his mother. Cowan stopped the vehicle and reached under his seat, which caused them all to think he had a gun. Instead, he got out of the car, as did the others. He then pulled a gun out of the trunk and held it to Artemus‘s head. Toni was able to talk Cowan out of harming Artemus. Cowan then sat in the car and shot two times into the ground. He then left.
Toni called Celena, who came to pick up the stranded passengers. At that point, Toni told her brother that Cowan had her laptop at his house. She attempted to call Cowan to ask for permission to retrieve the computer, but Cowan hung up on her. Her brother then called him and told him they were on their way to pick up the computer.
Because of the earlier altercation with Artemus, Celena parked the car down the street, and Toni and Robert walked the rest of the way to Cowan‘s house. As they reached his house, Cowan jumped out from behind a tree with two guns drawn. According to Robert, Cowan ordered them to “lay it down,” an expression used when robbing someone. Robert said Cowan was four to five feet away from him. He grabbed Cowan‘s hand and twisted it and at the same time the gun went off. Robert and Toni ran in different directions while Cowan continued to shoot at them. According to Celena, he also started shooting at her car, causing her to drive in reverse to get away. Celena later located Toni running in the street. Toni then used Celena‘s cell phone to call police.
Darrell Gunter lived next to Cowan. He stated that at around 10:30 p.m. he heard someone loudly say, “I‘m going to get you mother f-er.” He then heard gunshots. He looked out the window and saw a man wearing the same clothes the other witnesses had described Cowan wearing, firing a gun. He could not see who he was shooting at, but claimed he shot about three rounds. Gunter called 911.
Officer Vasile Nan testified that he and his partner received a call about shots being fired in the area of East 142nd and Kinsman Road. As they were canvassing the area to locate the vehicle described in that shooting, they received a call regarding a shooting at East 139th Street. As they approached the scene, they saw Toni waving her hands
frantically, crying, and yelling. She told them her brother had been shot down the road and gave Cowan‘s name as the shooter, a description of his car, and his address. Because the car matched the description of the car from the earlier shooting, the officer realized the shootings were related. The officers proceeded to Cowan‘s house, which was a two family duplex. The door of the downstairs unit was open. The residents living there verified that Cowan lived upstairs. The officers then went upstairs where they found Cowan‘s apartment door open but Cowan was not present.
The next morning, Officer Terrance Smith located Cowan‘s vehicle near Cowan‘s residence and notified his supervisor. When backup arrived, two officers went upstairs to Cowan‘s apartment and knocked loudly and announced “police.” They received no response; therefore, the SWAT unit was called. As the SWAT unit and Cleveland police set up a perimeter around the house, one of the SWAT officers who was standing near an abandoned house next to Cowan‘s house discovered two weapons near a tree, a 9 millimeter and a revolver.
A SWAT officer, using the PA system from the SWAT mobile, announced several times “Cleveland Police SWAT Unit” and requested that “Craig Cowan” come out. Cowan eventually exited the home on his own with his arms up. He kneeled on the driveway as directed and was handcuffed by SWAT officers. As he was being escorted to the zone car he stated, “What‘s the big deal? I didn‘t hit anybody.” One of the arresting officers read Cowan his Miranda rights and inquired if he had any more weapons. According to the officer, Cowan turned and looked toward the tree where the weapons were recovered and said, “no that was it.”
Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, at ¶ 4-12.
{¶ 5} In his direct appeal, Cowan claimed his convictions were not supported by sufficient evidence in that the guns were not test-fired to show that they were in fact operable. This court explained that it is not necessary for a gun to be test-fired to prove that it was operable and that proof of operability can be established beyond a reasonable doubt by testimony of lay witnesses who were in a
{¶ 6} The Supreme Court of Ohio affirmed this court‘s denial of his latest petition for a writ of mandamus on April 18, 2018. Cowan alleged that, on July 30, 2018, a family friend obtained through a public records request certain Brady materials not previously disclosed by the prosecutor. Five months later, on January 2, 2019, Cowan filed a motion for leave to file a motion for a new trial. He attached to his motion several pages from the “Offense/Incident Report” in this case, one of which contained Detective Don Meel‘s report of the test result of the guns retrieved from near Cowan‘s residence. He also attached correspondence dated July 30, 2018, on the letterhead of City of Cleveland Department of Law Public Records Section.
{¶ 7} The trial court denied his motion without a hearing. Cowan now appeals. All three assignments concern the trial court‘s denial of his motion without a hearing, and we address them together.
Motion for Leave to File a Motion for a New Trial
{¶ 8}
{¶ 9} “‘[A] party is unavoidably prevented from filing a motion for a new trial if the party had no knowledge of the existence of the ground supporting the motion and could not have learned of that existence within the time prescribed for filing the motion in the exercise of reasonable diligence.‘” Brown at ¶ 13, quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). As the Second District explained in State v. McConnell, 2d Dist. Montgomery No. 24315, 2011-Ohio-5555, ¶ 18,
[t]he essence of
Crim.R. 33 is that collateral attacks on the validity of trial proceedings must be made close in time to the proceeding to ensure that any issue raised may be given full and fair consideration. The rule equally protects both the finality of verdicts and principles of judicial economy. Delays in presenting evidence once discovered undermine the [] overall objective of the criminal rules in providing the [“] speedy and sure administration of justice, simplicity in procedure, and the elimination of unjustifiable delay.” [State v. Barnes, 12th Dist. Clermont No. CA99-06-057, 1999 Ohio App. LEXIS 6421, 1999 WL 1271665, 2 (Dec. 30, 1999).] Allowing a defendant to drag the process out while the evidence and the recollections of
witnesses become increasingly stale defies the very purpose of the criminal rules.
{¶ 10} The burden is on the defendant to show by clear and convincing proof that he was unavoidably prevented from filing his motion within the time prescribed and he must make such showing with more than a mere allegation that he was unavoidably prevented from discovering the evidence he seeks to introduce to support a new trial. State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298, ¶ 20.
{¶ 11} A defendant is entitled to a hearing on a motion for leave to file a motion for a new trial only if he submits documents that, on their face, support his claim that he was unavoidably prevented from timely discovering the evidence in question. See, e.g., State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 12; State v. Ambartsoumov, 10th Dist. Franklin Nos. 12AP-877 and 12AP-878, 2013-Ohio-3011, ¶ 13; State v. Cleveland, 9th Dist. Lorain No. 08CA009406, 2009-Ohio-397, ¶ 54; and State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77 (2d Dist.). In other words, the trial court is required to hold a hearing to determine whether there is clear and convincing proof of unavoidable delay only if the court determines that the documents submitted on their face support the defendant‘s claim that he was unavoidably prevented from timely discovering the evidence.
{¶ 12} A trial court‘s decision to grant or deny a motion for leave to file a delayed motion for a new trial is reviewed for an abuse of discretion. See, e.g., State
Appellant‘s Motion for Leave and Supporting Documents
{¶ 13} Cowan attached to his motion for leave three pages (pages 6, 7, and 9) from the “Cleveland Police Department Offense/Incident Report” in this case. Page 6 of the Offense/Incident Report contained Detective Don Meel‘s report regarding the test result for two firearms and a partially loaded pistol magazine retrieved from the bushes of 4120 E. 139th Street, near Cowan‘s residence. Detective Meel stated that “these two weapons and ammunition were processed using cyanoacrolate [fuming] and white powder with negative results. No prints. No trace.” There was no further explanation as to what a result of “no prints” or “no trace” indicate.
{¶ 14} To show that Detective Meel‘s report was newly discovered evidence and that he was unavoidably prevented from discovering the evidence, Cowan attached a correspondence in the letterhead of City of Cleveland Department of Law Public Records. The document states the following in its entirety:
07/30/2018
Craig A. Cowan
Re: PUBLIC RECORDS REQUEST of July 30, 2018, Reference # P006993-073018
Dear Craig A. Cowan,
The City of Cleveland received a public record request from you on July 30, 2018. You requested the following:
“Crime Scene Unit Report 2011-00143308”
This letter will certify that the responsive documents are true, accurate, and authentic copies of the records maintained in the regular course of business by the City of Cleveland Law Department Public Safety- Public Records Request – P006993-073018
If you have any questions, or wish to discuss this further, please contract City of Cleveland Public Records.”
Sincerely,
City of Cleveland Public Records
City of Cleveland
Mayor Frank G. Jackson
{¶ 15} Five months after the alleged public records request, on January 2, 2019, Cowan filed a motion for leave to file a motion for a new trial. In his motion for leave, he stated the following:
Movant has had family friends make public record request to the Cleveland Police Department concerning any and all police reports related to Cowan‘s case and investigation. Some request[s] have been more successful than other requested materials.
Over a period of over 7½ years, family friends have made several visits to secure evidence that had been suppressed. This is not ordinary information. I present to this court exculpatory evidence.
* * *
On one visit to the Police Department, family friend was given access to the missing CLEVELAND DEPARTMENT INCIDENT REPORT of Detective Donald J. Meel. * * *.”
{¶ 17} The state pointed to a Bate stamp at the bottom of the pages that Cowan purportedly obtained through a public records request and explained that the Bate stamp reflected that these pages were part of the documents that were provided through discovery before trial. For example, page 6 — the page containing Detective Meel‘s report — bore the stamp “Cuyahoga County Prosecutor‘s Office 5066092 40128 V14560E-65 PKG1 6/10/2011 Page 65,” which indicated the document was provided through the electronic discovery portal on June 10, 2011, and was page 65 of the discovery package provided to the defense.
{¶ 18} The state also attached to its brief in opposition an affidavit from the assistant prosecutor who handled the trial in this case. The affidavit stated that (1) he prepared a discovery package during the course of prosecuting the case in response to the discovery request made by the defense pursuant to
{¶ 19} On the record before us, we cannot conclude the trial court abused its discretion in summarily denying Cowan‘s motion for leave to file a motion for a new trial without a hearing. The documents submitted by Cowan — the correspondence
{¶ 20} In fact, the documents submitted by Cowan did not even seem to support his claim that the police report was newly discovered evidence — the Bate stamping by the prosecutor‘s office appears to be telling evidence that the document was part of the discovery package provided to the defense. In order to establish a defendant was unavoidably prevented from discovering the new evidence, the defendant must first establish the evidence was “newly discovered.” State v. Davis, 10th Dist. Franklin No. 03AP-1200, 2004-Ohio-6065, ¶ 14. For these reasons, we are unable to find that the trial court abused its discretion denying Cowan‘s motion
{¶ 21} Under the third assignment of error, Cowan claims that the trial court‘s denial of his motion for leave to file a motion for a new trial was an abuse of discretion because he has established his trial counsel provided ineffective assistance in failing to call Detective Meel as a witness at trial. Cowan did not raise this argument in his motion for leave to file a motion for a new trial. Even assuming he had raised this claim before the trial court, we note that the ineffective-assistance-of-counsel claim may conceivably be raised as part of his motion for a new trial if he successfully demonstrates by clear and convincing evidence that he was unavoidably prevented from timely discovering the evidence in question. As we have explained in the foregoing, Cowan failed to present documents to support the threshold issue that he was avoidably prevented from timely discovering the evidence. Accordingly, the third assignment of error also lacks merit.
{¶ 22} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue 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.
MICHELLE J. SHEEHAN, JUDGE
MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR