State of Ohio, Plaintiff-Appellee, v. John Q. Graggs, Defendant-Appellant.
No. 15AP-480
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 29, 2015
[Cite as State v. Graggs, 2015-Ohio-3990.]
(C.P.C. No. 08CR-02-1098); (ACCELERATED CALENDAR)
Rendered on September 29, 2015
Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
John Q. Graggs, pro se.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, P.J.
{¶ 1} John Q. Graggs, defendant-appellant, appeals the judgment of the Franklin County Court of Common Pleas, in which the court denied his motion for new trial.
{¶ 2} Appellant was previously found guilty, pursuant to a jury trial, of aggravated robbery, a first-degree felony and violation of
{¶ 3} On November 10, 2009, appellant filed in the trial court a petition for postconviction relief. On February 16, 2010, the trial court dismissed the petition without a hearing. We affirmed the trial court‘s judgment in State v. Graggs, 10th Dist. No. 10AP-249, 2010-Ohio-5716 (”Graggs II“).
{¶ 4} On August 8, 2013, appellant filed a motion for leave to file a motion for new trial based on newly discovered evidence pursuant to
{¶ 5} On March 24, 2015, appellant filed the current motion for leave to file a motion for new trial based upon newly discovered evidence. Appellant‘s newly discovered evidence was in the form of an affidavit from another Ohio prison inmate, Jamal Sealy. Sealy averred that, in June 2008, Lanier confided in him that he killed Brock. Sealy claimed in the affidavit that he did not discover appellant had been convicted of murdering Brock until October 2014. The trial court denied the motion for leave to file a motion for new trial without an evidentiary hearing. Appellant appeals the judgment, asserting the following assignments of error:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION FINDING THAT THE APPELLANT WAS NOT UNAVOIDABLY PREVENTED FROM DISCOVERING THE NEW EVIDENCE THAT WAS THE BASIS OF HIS MOTION FOR LEAVE TO FILE A MOTION FOR A NEW TRIAL.
[II.] THE TRIAL COURT [ABUSED] IT[S] DISCRETION FINDING THAT THE NEW EVIDENCE DOES NOT
CONVEY A STRONG PROBABILITY OF CHANGING THE RESULT IF A NEW TRIAL IS GRANTED. [III.] THE TRIAL COURT ABUSED IT[S] DISCRETION WHEN IT FAILED TO CONDUCT AN EVIDENTIARY HEARING TO DETERMINE IF IN FACT APPELLANT WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE NEW EVIDENCE.
{¶ 6} We will address appellant‘s assignments of error together. Appellant argues in his assignments of error that the trial court erred when it found that he was not unavoidably prevented from discovering the new evidence, found that the new evidence does not convey a strong probability of changing the result if a new trial is granted, and failed to conduct an evidentiary hearing to determine if, in fact, appellant was unavoidably prevented from discovering the new evidence.
{¶ 7}
Application for a new trial shall be made by motion which, except for the cause of newly discovered evidence, shall be filed within fourteen days after the verdict was rendered, or the decision of the court where a trial by jury has been waived, unless it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial, in which case the motion shall be filed within seven days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the time provided herein.
Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.
{¶ 8} Thus,
{¶ 9} A motion for new trial, pursuant to
{¶ 10} To warrant the granting of a motion for new trial in a criminal case, 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. Petro, 148 Ohio St. 505 (1947), syllabus.
{¶ 11} In the present case, appellant‘s motion for new trial was based upon the affidavit of Sealy. In the affidavit, Sealy claimed that Lanier had asked him in June 2008 to store large amounts of cocaine and money at his house. When Sealy told Lanier that he did not want to end up dead like Brock, Lanier told him that he did not need to worry because he was the person who killed Brock. Lanier told him that Brock had been stealing drugs from him, and he only meant to scare Brock, but his gun accidentally fired. Lanier told Sealy that he got scared and tried to shoot Brock again, but his gun jammed, so he
{¶ 12} The trial court here addressed both the merits of appellant‘s motion for leave to file his motion for new trial and also the underlying merits of the argument in favor of a new trial, which this court found in Graggs III to be permissible. See id. at ¶ 9. With regard to appellant‘s motion for leave to file a motion for new trial, the trial court concluded that Lanier‘s involvement in drug dealing from the apartment in which Brock was murdered had been obvious from the beginning, and the factual record from the trial and all of appellant‘s appeals set out Lanier‘s involvement. The trial court found that, although it was unclear whether appellant‘s counsel interviewed Lanier prior to trial and before he was murdered, the State of Ohio, plaintiff-appellee, identified Lanier during discovery in May 2008, and appellant had every opportunity to develop Lanier‘s role. With regard to the merits of the underlying motion for new trial, the trial court found that Sealy‘s affidavit did not convey a strong probability of changing the result at trial, even if a new trial were granted. The trial court determined that Lanier‘s alleged confession to Sealy was hearsay, and it was unlikely Sealy would be permitted to testify regarding such statement. The trial court also found that Sealy‘s statement does not dispel the possibility that appellant was still involved in Brock‘s murder as an aider and abettor, as the jury apparently believed because it acquitted him of the firearm specifications.
{¶ 13} However, even if we were to find, assuming arguendo, that appellant was unavoidably prevented from discovering the new evidence about Lanier earlier, as appellant argues in his first assignment of error, appellant‘s motion would fail because the new evidence does not disclose a strong probability that it would change the result if a new trial were granted. Initially, Sealy has no evidence to offer on Lanier‘s alleged involvement in Brock‘s murder outside of his own testimony. That Sealy‘s testimony, which is unrebuttable by the now deceased Lanier, would convince a jury of Lanier‘s sole
{¶ 14} Additionally, Jones testified that $35,000 in cash was missing from the apartment after Brock‘s murder. Id. at ¶ 25. On the day after the murder, appellant paid $480.35 in cash for a pair of diamond earrings at a jewelry store. Id. at ¶ 10. He returned to the same jewelry store the same day and paid $4,771.69 in cash for an anniversary ring. Id. Six days after the murder, appellant made a lump-sum payment of $2,900 on the loan for his Cadillac. As we explained in Graggs I, there was testimony that, as of January 8, 2008, appellant was working full-time and making $16.26 per hour netting $443.73 on January 4 and $495.76 on January 11, 2008, and appellant had made only erratic payments on his car loan during 2007.
{¶ 15} Therefore, even if we were to assume arguendo that appellant was unavoidably prevented from discovering Sealy‘s information within the time prescribed for filing a motion for new trial through the exercise of reasonable diligence, we agree with the trial court that appellant‘s motion would fail because Sealy‘s affidavit does not disclose a strong probability that it would change the result if a new trial was granted. Sealy‘s affidavit does nothing to prevent a conclusion that appellant was an aider and abettor, as the jury found, and fails to rebut any of the evidence this court relied on in Graggs I in
{¶ 16} Accordingly, appellant‘s first and third assignments of error are moot, his second assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER and BRUNNER, JJ., concur.
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