State v. HowardState v. Howard
Ohio Innocence Project and Donald Caster, for Defendant-Appellant.
{1} Defendant-appellant Angelo Howard appeals the common pleas court‘s judgment denying both of his
Background
{2} In 2008, Angelo Howard was indicted for the 2002 murders (and related offenses) of Gino Booker, Tim Canady, Kevin Johnson, and Keith Redding. The state‘s theory of these murders was that Howard and a group of accomplices, including brothers Eugene and Carlos Jackson, Andre Thomas, Quinton Gill, Scott McCoy, and Raeshaun Hand, had been “hustling” drug dealers. Throughout 2002, this group of men had engaged in the robbery and murder of known drug dealers and would then sell the drugs obtained in the robberies for profit.
{3} Following a jury trial, Howard was convicted of the aggravated murders (and related offenses) of Booker, Canady, and Redding. He was acquitted of the charged offenses related to the murder of Johnson. The common pleas court sentenced him to an aggregate prison term of 148 years’ to life imprisonment.
{4} In State v. Howard, 1st Dist. Hamilton No. C-100240, 2011-Ohio-2862, appeal not accepted, 130 Ohio St.3d 1418, 2011-Ohio-5605, 956 N.E.2d 310, this court reversed Howard‘s convictions related to Redding, but affirmed Howard‘s convictions related to the murders of Booker and Canady. In our decision, we set forth the following facts surrounding the homicide of Booker and Canady:
- The Gino Booker Homicide
The evidence at trial established that, at approximately 4:30 in the afternoon on October 16, 2002, Howard and Carlos Jackson had been
standing outside a housing complex on Walters Ave. in Walnut Hills. They were talking to a group of people when Booker approached them and inquired about buying marijuana. Booker was not satisfied with the prices he was offered, and he then produced his own bag of marijuana. Howard took the bag of marijuana to examine and smell. He then “checked” the marijuana, or refused to give it back. Booker reached for the marijuana, and Howard displayed his gun. When Booker attempted to reach for Howard‘s weapon, Howard fired his gun two times, hitting Booker once. Howard and Carlos Jackson then fled from the scene, and Booker died from injuries caused by the gunshot. - The Tim Canady Homicide
On December 14, 2002, Howard, Andre Thomas, and a third accomplice had entered the home of Krystal White, Tim Canady‘s girlfriend, in the middle of the night. The men were armed and wore masks. White and Canady had been asleep in White‘s bedroom, and various other relatives and friends of White had been sleeping throughout the home. Howard and his accomplices dragged Canady out of White‘s bed and then moved White and the other residents into the dining room, where they were restrained and tied up with cords. Canady was questioned by the intruders about where he kept his supply of marijuana.
Canady was handcuffed, and White and all the others were barricaded in the basement so that they could not escape. Howard and his accomplices then left with a beaten and handcuffed Canady in Canady‘s truck. After driving around, they eventually stopped, at Canady‘s direction, at Sakinah Malik‘s apartment in Clifton. Eugene Jackson remained in the truck with Canady, while Howard and Thomas
entered Malik‘s apartment building. Howard and Thomas encountered Malik in the hallway as she was leaving for work. They forced her back into her apartment, placed a gun to her head, and demanded to know where “the stuff” was. Malik directed them to a duffel bag in her closet that contained Canady‘s marijuana. The men then restrained Malik with an extension cord and put her in bed. As she struggled to get free, she heard a gunshot outside. After returning to Canady‘s truck with his bag of marijuana, Howard shot the handcuffed Canady in the back of his head two times.
Id. at ¶ 7-10.
{5} We held that the testimony of brothers Carlos and Eugene Jackson provided sufficient evidence to support Howard‘s convictions. With respect to Booker, we noted that Carlos testified that Howard shot Booker after Booker attempted to retrieve the marijuana that Howard had taken from him, and Eugene had witnessed Howard reveal a gun, heard two gunshots, and saw Booker collapse. Id. at ¶ 31. With respect to the aggravated murder and aggravated robbery of Canady, we noted that Carlos testified, “Howard had entered White‘s residence without permission, had restrained the home‘s occupants with cords, had handcuffed Canady and driven him around the area in his van, and had shot him in the head after taking his marijuana, [and] Eugene corroborated this testimony, stating that an armed Howard had taken Canady‘s supply of marijuana and shot Canady in the head.” Id. at 36.
{6} Based on the outcome of his appeal, Howard is currently serving a prison sentence of 108 years to life.
Postconviction Proceedings
{7} In 2014, Howard filed a
{8} In July 2018, the Ohio Innocence Project, working with Howard, sent a public records request to the Cincinnati Police Department seeking documents related to the murder investigation of Booker and Canady. In response, the following documents related to the Booker investigation, which Howard contends were never disclosed to the defense, were released: (1) “Six-Pack” photographic lineups with corresponding notes; (2) the fingerprint card of Michael Thompson, which had a post-it note attached that read, “Don‘t Release Just File“; (3) a fingerprint-image search result; and (4) an evidence-examination worksheet.
{9} The evidence-examination worksheet, which had been completed by Criminalist James Lawson, noted that four latent prints were lifted from sandwich-bag boxes found at the scene of Booker‘s murder and that one of the latent prints matched those of Michael Thompson. Further, a “value quality print” was lifted from the magazine of the 9 mm gun used to shoot Booker.
{10} The “six-pack” photographic lineup and the police officer‘s corresponding notes indicate that Britney Kelley, a witness to Booker‘s murder, was shown a lineup, which included Howard‘s photograph. However, after viewing the photographs, Kelley identified another person, not Howard, as the shooter.
{11} In March 2019, Howard filed a
{12} At the same time that Howard moved for leave to file a new-trial motion, he also applied for postconviction DNA testing, under
{13} After the state reported that it could not locate any of the evidence requested, the court held a hearing on the matter. At the hearing, it was demonstrated that in July 2012 the Hamilton County Court of Common Pleas had journalized an order that was captioned, “State of Ohio vs. Andre Thomas,” with the case number “B-0703493,” which ordered the county court reporter to transfer custody of the evidence in his or her possession related to the captioned case to the county prosecutor‘s property clerk for “disposal or return to owner where appropriate.” (Andre Thomas was one of Howard‘s codefendants.) This order was signed by the trial judge and an assistant county prosecutor. The county then returned the evidence in its possession to the Cincinnati Police Department.
{14} Jennifer Schrage, the property-room manager for the city of Cincinnati, testified that the police department no longer had any of the evidence that had been returned. She testified that she completes affidavits approximately twice a year that are then submitted to an assistant solicitor with the city‘s law department. The
{15} In January 2020, the trial court denied Howard‘s application for postconviction DNA testing because the evidence had “been disposed of and is unavailable for testing.” Howard did not appeal from this judgment.
{16} In November 2020, Howard filed another
{17} The common pleas court considered both the 2019 and 2020 motions for leave together and denied them, without a hearing, stating, “Having found the arguments by Defendant fail on the merits, this Court does not need to review whether Defendant‘s motions were even timely.” Howard now appeals.
Assignments of Error
{19} A motion for a new trial on grounds of prosecutorial misconduct must be filed within 14 days of the return of the verdict, and a motion for a new trial on the grounds of newly discovered evidence must be filed within 120 days of the return of the verdict. If not filed within the applicable time frames, then the new-trial motion may be filed within seven days after the granting of leave to file a new-trial motion.
{20} Because Howard‘s motion for a new trial was untimely, he had to request leave from the court. On a
{21} In State v. Carusone, 1st Dist. Hamilton No. C-130003, 2013-Ohio-5034, ¶ 31, this court said:
Crim.R. 33 , by its terms, contemplates a bifurcated proceeding when a motion for a new trial [is filed out of time]. First, the court must review the motion for leave, along with any evidentiary material supporting the motion, and decide whether, underCrim.R. 33(B) ‘s unavoidable-prevention standard, leave to file a new-trial motion is warranted. If leave is not warranted, the matter is final, and the court may not proceed to the second step of the analysis and decide the new-trial motion. Ifleave is warranted, the movant is afforded seven days to file his new-trial motion, and the court may then decide that motion on its merits.
{22} While this appeal was pending, the Ohio Supreme Court released State v. Bethel, Slip Opinion No. 2022-Ohio-783, which addressed, in part, new-trial motions. The Bethel court, in explaining why it was not addressing the merits of Bethel‘s new-trial motion, stated that “until a trial court grants leave to file a motion for a new trial, the motion for a new trial is not properly before the [trial] court.” Id. at ¶ 41, citing State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio-1080, ¶ 14. In Bethel, the court found that the trial court had acted improperly by first denying Bethel‘s motion for a new trial on the merits and then denying Bethel‘s motion for leave to file the new-trial motion. Because of that error, the court said it would not review any challenges to the merits of Bethel‘s new-trial motion because it had not been properly before the trial court in the first instance. Id.
{23} Here, the common pleas court did not determine whether Howard had been unavoidably prevented from discovering the state‘s posttrial destruction of evidence before denying his
{24} Because the court did not determine whether Howard was unavoidably prevented from timely discovering the facts upon which he now relies or timely filing his
{25} We reach a similar resolution in Howard‘s second assignment of error, where he contends “the trial court erred in denying, without a hearing, [his] motion for leave to file a [
{26} Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), governs situations where the state withholds evidence that tends to exculpate a criminal defendant. “When the prosecution withholds material, exculpatory evidence in a criminal proceeding, it violates the due process right of the defendant under the Fourteenth Amendment to a fair trial.” State v. Johnston, 39 Ohio St.3d 48, 60, 529 N.E.2d 898 (1988). Brady violations may be found regardless of whether the defense requested the evidence and “irrespective of the good faith or bad faith of the prosecution.” Brady at 87.
{27} As noted above, in order to file a motion for a new trial based on newly discovered evidence that was discovered beyond the 120 days prescribed in
{28} “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 for a new trial and could not have learned of the existence of that ground within the time prescribed for filing the motion for a new trial in the exercise of reasonable diligence.” State v. Gray, 8th Dist. Cuyahoga No. 2010-Ohio-11, ¶ 17, quoting State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 7. But the Ohio Supreme Court has recently held where the movant is asserting a Brady claim in a motion for a new trial, the defendant is “not required to show that he could not have discovered the suppressed evidence by exercising reasonable diligence[,] but instead a defendant satisfies the ‘unavoidably prevented’ requirement * * * by establishing that the prosecution suppressed the evidence on which the defendant [now] relies.” Bethel, Slip Opinion No. 2022-Ohio-783, at ¶ 25, 29.
{29} In Bethel, the defendant submitted affidavits from two of the defendant‘s former trial counsel, which stated that the defendant and his legal team did not know about evidence (a police report) upon which he is now relying to support his motion for a new trial. The court, after noting that the state had not provided any support for its claim that the affidavits were insufficient or that the defendant needed additional evidence to prove that he was unaware of the report before trial, concluded that “the documents Bethel submitted * * * establish a prima facie claim that the prosecution had suppressed [the police report].” Id. at 30.
{30} Here, the common pleas court did not find that Howard was “unavoidably prevented” from discovering the evidence that he contends was suppressed by the state. Instead, it denied Howard‘s motion for leave on the basis that his new-trial motion was meritless. As we stated in our analysis of the first assignment of error, this was an improper basis for denying a
{31} We recognize that the common pleas court, when improperly considering the merits of the new-trial motion before granting leave, stated in its decision that the evidence “was in no way suppressed.” Even if we construe this statement as a finding by the court that Howard had not satisfied the unavoidable-prevention standard, we still must reverse the court‘s judgment because the court abused its discretion by denying Howard‘s motion for leave without an evidentiary hearing. See Carusone, 1st Dist. Hamilton No. C-130003, 2013-Ohio-5304, at ¶ 4; State v. Smith, 1st Dist. Hamilton No. C190485, 2020-Ohio-6718, ¶ 17 (an evidentiary hearing is required if there is evidence of unavoidable prevention).
{32} Our review of the record demonstrates that there may have been suppression of the evidence at issue-“six-pack” lineups and accompanying notes, fingerprint card of Michael Thompson, finger-image search results, and an evidence-examination worksheet. For example, given that the identity of the shooter was an issue at trial, and although the common pleas court notes that there was a discussion of “fingerprints” in the record, the trial transcript is absent of any comment, question or discussion about the fact that fingerprints of someone other than Howard were found on items of evidence recovered from the crime scene and that a “value quality print,” presumably not Howard‘s, was found on the gun magazine of the murder weapon. Further, even though the court notes that it was revealed that Kelley had identified
{33} Based on the foregoing, we sustain Howard‘s second assignment of error, reverse the trial court‘s judgment, and remand this matter to the common pleas court to conduct an evidentiary hearing on Howard‘s 2019
{34} In conclusion, having sustained both assignments of error, we reverse the common pleas court‘s judgment denying the motions for leave and remand this matter to the court for proceedings consistent with the law and this opinion.
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.