State v. MathisState v. Mathis
Lead Opinion
On November 11, 1995, a jury found appellant Alphonso Mathis guilty of complicity to murder Ronald Dodson. Mathis appealed the conviction resulting from the jury’s verdict, and on December 31, 1996, this court affirmed the judgment of the trial court. On June 4, 1998, Mathis filed a motion for leave to file a delayed
Under
Clear and convincing proof is a measure of proof that is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt: it “ ‘producéis] in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ ” 3 Clear and convincing proof requires more than a mere allegation that a defendant has been unavoidably prevented from discovering the evidence he seeks to introduce as support for a new trial. 4 “Where the proof required must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” 5 However, where there is competent and credible evidence supporting the trial court’s decision, the appellate court should not substitute its judgment for that of the trial court. 6
The record indicates that on June 4, 1998, more than two and one-half years after Mathis’s conviction, Mathis filed his motion seeking leave to file a motion for a new trial based on newly discovered evidence. In his memorandum
In McMullen’s first affidavit, he contended that Woods, a witness at Mathis’s trial, allegedly made certain statements оn December 19, 1995, that contradicted and impeached Woods’s trial testimony. McMullen, who was apparently an acquaintance of Mathis, clearly had knowledge of Woods’s testimony before the оne hundred twenty days had ended. Thus, the fact that Mathis did not know McMullen had the information relating to Woods’s statements does not demonstrate how Mathis was prevented, if he had exercised due diligence and effоrt, from discovering the statements within one hundred twenty days of the jury’s verdict. In McMullen’s second affidavit, he stated that “on or about” March 20, 1996, he had a conversation with Rogers in which Rogers informed him that he had shot Dodson and that Mathis had no knowledge of the incident. Even if we assume that this conversation may have occurred outside the one hundred twenty-day filing period, the record reflects that McMullen signed the affidavit on September 23, 1996. Apparently, this information was available to Mathis almost two years before he filed the motion. Mathis presents no explanation why he delayed filing his motion for an additional two years. Thus, Mathis did not еxercise reasonable diligence in bringing that evidence to light in a timely manner. 7
In Elliott’s affidavit, he alleged that Rogers told him that Mathis was not involved in Dodson’s murder. Mathis’s defense at his trial was that Rogers had killed Dodson, аnd that Mathis was not present. However, the record fails to demonstrate by clear and convincing evidence that Mathis did not have the opportunity for diligent inquiry to find Elliott within one hundred twenty days of
In Rogers’s affidavit, he stated that Mathis was not with him at the time of the murder and that Mathis did not use his car to help Rogers escape. At Mathis’s trial, Rogers was subрoenaed and called as a witness, but he exercised his privilege against self-incrimination. Clearly, Rogers possessed this information during the one-hundred-twenty-day time period, and no evidence was offered as to why Rogers did not come forth with the information during that period. Therefore, the information presented in Rogers’s affidavit was available to Mathis within the required time period. Additionally, Rogers’s affidavit was notarized on September 23, 1996, so Mathis was aware of Rogers’s contentions nearly two years before he filed his motion. 8 Absent an explanation for why the evidence could not have been discovered during thе statutory time frame or why he was delayed for years before filing his motion after receiving Rogers’s affidavit, we cannot say that Mathis provided clear and convincing evidence that he was unavoidably delayed in obtaining this evidence.
Finally, in Lipscomb’s affidavit, he stated that he saw an individual other than Mathis with Rogers when Rogers shot Dodson, and that he saw Rogers shoot Dodson. Mathis has failed to demonstrate that he wаs unavoidably prevented from discovering Lipscomb’s evidence. Lipscomb was subpoenaed and available for examination at trial. The fact that he had stated that he had not seen anything in an infоrmal setting did not preclude Lipscomb from being sworn as a witness and questioned at trial. If this had occurred, Lipscomb might have provided truthful testimony.
In sum, we hold that Mathis did not present sufficient evidence to obtain leave for the filing of a motion for a new trial. Mathis’s sole assignment of error is, therefore, overruled, and we affirm the judgment of the trial court.
Judgment affirmed.
Notes
.
.
State v. Walden
(1984),
.
State v. Schiebel
(1990),
. See
State v. Kiraly
(1977),
.
State v. Schiebel, supra,
. See id.
. See
State v. Nicholson
(May 1, 1997), Cuyahoga App. No. 70916, unreported,
. See State v. Nicholson, supra.
Dissenting Opinion
dissenting.
While I agree with the majority that Mathis failed to meet the clear-and-convincing standard of
Rogers exercised his рrivilege against self-incrimination during Mathis’s trial. In September 1996, he executed his affidavit in which he stated that Mathis was not with him at the time of the murder and that Mathis did not help him escape with his car. (The state contends that it сould not locate the signature page to Rogers’s affidavit. The record shows that Rogers signed his affidavit on the back page above the notary’s stamp.) In State v. Barber 9 the Tenth Appellate District acknowledged that evidence provided by a witness after he had exercised his Fifth Amendment right not to testify at a trial was clearly unavailable until the witness agreed to testify after trial, and that calling him as a witness at trial demonstrаted “reasonable diligence” in attempting to produce his testimony at trial. Although State v. Barber did not involve a motion for leave to file a delayed new-trial motion, I believe that its conclusion is instructive in this case. Rogers’s invocation of the Fifth Amendment and the trial court’s finding that he was unavailable at trial clearly made the testimony in his affidavit unavailable until he executed his affidavit.
Our review should focus on whether Mathis exercised “reasonable diligence” in obtaining the evidence he now wishes to present to the trial court, and not on whether he exercised “reasonable diligence” in filing his motion for leave to file an untimеly motion for a new trial. Even so, I conclude that the record demonstrates that Mathis was diligently addressing his concerns with the judicial system. He filed a direct appeal in November 1996. He filed a postconviсtion petition, pro se, without signed affidavits on October 16, 1996. In November 1996, the trial court denied his postconviction petition. In December 1996, we affirmed his conviction. In April 1997, he obtained the necessary verified affidavits. In Junе 1998, he filed his motion for leave.
.
State v. Barber
(1982),