Case Information
*1
[Cite as
State v. Moore
,
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 13 MA 9 V. )
) OPINION ERIC MOORE, )
)
DEFENDANT-APPELLANT. ) CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio Case No. 98CR136 JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph Rivera Assistant Prosecutor 21 W. Boardman ST., 6 th Floor Youngstown, Ohio 44503 For Defendant-Appellant Eric Moore, Pro-se
#333-698
Trumbull Correctional Institution 5701 Burnett Road P.O. Box 901 Leavittsburg, Ohio 44430 JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: January 31, 2014
*2
[Cite as
State v. Moore
,
DONOFRIO, J.
{¶1} Defendant-appellant Eric L. Moore appeals a decision of the Mahoning County Common Pleas Court overruling his motion for a new trial.
{¶2} On January 27, 1996, a dance was held at The Pub, which is located in Kilcawley Center on the campus of Youngstown State University, in the city of Youngstown, Mahoning County, Ohio. [1] (Tr. 41). In attendance at the dance were several YSU football players, namely William Walker, Leon Jones, John Phillip Baptiste, and the victim, Jermaine Hopkins. (Tr. 41, 210, 385-86). While at the dance, an altercation erupted when William Walker’s
girlfriend accidentally bumped into Timothy Slocum, a co-defendant in this case. (Tr. 42). When Walker approached Slocum to apologize, Slocum pushed him and a fight ensued. (Tr. 42). Jones, Baptiste and Hopkins tried to break up the fight and separate the combatants. (Tr. 42-43). Eventually, the YSU police arrived, canceled the dance and ordered everyone to leave. (Tr. 43-44). However, Slocum continued to make threats; saying that he would be back and that he was going to kill all of the men involved in the fight. (Tr. 49). Upon leaving the dance, the football players went to prepare for an
after-dance party at a house located at 107 Park Avenue in Youngstown where several YSU football players, including Hopkins and Jones, resided. (Tr. 36, 209, 211-212, 388). Meanwhile, Slocum and an individual named Anthony Howell went to
the Class Act bar. (Tr. 266). After a short stay at the Class Act, Slocum left the bar with Moore and several others and proceeded in separate vehicles to the after-dance party being held by the football players at 107 Park Avenue in Youngstown. (Tr. 267). When Slocum arrived at the party, Mack Gilchrist, another YSU football player, stopped him and asked him to leave. (Tr. 76-77). Slocum said that he wanted the men involved in the fight at The Pub. (Tr. 254). Ultimately, punches were thrown, shots were fired and Jermaine Hopkins was hit in the head and subsequently died. (Tr. 652).
1. The underlying facts of this case are set forth nearly verbatim from this Court’s decision concerning
Moore’s direct appeal in State v. Moore , 7th Dist. No. 97-CA-39,
{¶7} Eboni Witherspoon, who was patting down female guests before they entered the party, testified that she observed two men approach the party, saw Moore throw a punch at Baptiste, saw a gun and heard three gun shots. (Tr. 131, 135, 137, 143). Elizabeth Williams provided the police with a statement which indicated that she witnessed Moore shoot the gun. (Tr. 171). Darnell Bracy, a football player that was affiliated with Slocum on the night in question, also informed the police that appellant was the shooter and that he saw appellant shoot Jermaine Hopkins. (Tr. 252, 352).
{¶8} Leon Jones also testified that he saw Moore approach the party and pull a gun out from behind his back. (Tr. 392). Jones further testified that Moore shot the gun right over his ear, prompting him to run inside the house. (Tr. 392, 394). Following a jury trial, Moore was found guilty of aggravated murder and attempted aggravated murder, along with firearm specifications on each. Accordingly, on February 11, 1997, Moore was sentenced to life imprisonment on the aggravated murder charge; an indefinite incarceration term of not less than ten nor more than twenty-five years on the attempted aggravated murder charge; and, three years on each firearm specification to be served consecutively with the prior imposed sentences. Thereafter, Moore filed a timely appeal in this Court in which he raised
four assignments of error. Specifically, Moore argued that he was denied a fair trial by “the trial court’s open and obvious bias” against him; that the trial court committed reversible error when it permitted the state to impeach two of its own witnesses without a showing of either surprise or affirmative damage; that his indictment was invalid because an unauthorized individual was present in the grand jury room when one of the witnesses testified; and that he was denied effective assistance of counsel. On September 29, 2000, this Court found all of Moore’s assignments of
error to be without merit and thus affirmed the judgment of the trial court. Moore , 7th Dist. No. 97-CA-39,
delayed motion for a new trial based on newly discovered evidence in Mahoning County Common Pleas Court. Despite the motion’s untimeliness, it should be noted that Moore did not first file a motion for leave to file a motion for new trial. Nonetheless, in support, Moore attached an affidavit of Butler Johnson, in which Johnson averred that both he and Elizabeth Williams offered coerced written statements and subsequent testimony to avoid prosecution. Additionally, Moore attached a memorandum in support in which Moore argued that although he filed his motion for a new trial outside of Crim.R. 33’s 120 day time-limit, he was unavoidably prevented from the discovery of this evidence because he was incarcerated for the duration of the proceedings against him. Moore offered no other evidence to establish that he was unavoidably prevented from discovering the new evidence. Nonetheless, Moore concluded Johnson’s affidavit entitled him, at the very least, to a hearing to establish by clear and convincing evidence that he was indeed unavoidably prevented from discovering the evidence. On January 15, 2013, the trial court overruled Moore’s motion for new
trial. Moore timely appealed the trial court’s judgment and filed a motion for
appointment of new counsel. Proceeding pro se on appeal, Moore’s sole assignment of error states:
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION. The standard for determining ineffective assistance of counsel was set
out by the United States Supreme Court in Strickland v. Washington ,
first seek and obtain leave from the trial court before filing his untimely motion for new trial pursuant to Crim.R. 33. Suggesting that he was also prejudiced by his counsel’s deficiency, Moore further asserts that but for counsel’s failure to file for leave, this Court would not have construed Moore’s motion as a petition for post-conviction relief. Thus, Moore concludes, “[i]f not for counsel’s deficient and prejudicial performance, appellate [sic] would have had proper new trial proceedings and a hearing on his motion.” In response, the state concedes that Moore’s counsel failed to seek and
obtain leave and thus failed to establish that he was unavoidably prevented from discovering the new evidence – and further failed to establish that he filed his motion within a reasonable time upon discovering said evidence. However, the state argues that based on the record, the trial court’s judgment would have been the same even if Moore’s counsel had properly filed the motion for leave. In short, the state argues that even if Moore’s counsel was deficient, Moore was not prejudiced by his counsel’s shortcomings as the trial court would have denied Moore’s motion all the same. In this case, the performance of Moore’s counsel was neither deficient
nor prejudicial. A trial court’s decision to grant or deny a new trial on grounds of
newly discovered evidence falls within the court’s sound discretion. State v. Hawkins,
conviction certainly raises the question of timeliness. Crim.R. 33(B) addresses timeliness when the basis of a new trial motion is newly discovered evidence:
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. Because Moore’s new trial motion was filed well outside the 120-day
period, he was required to obtain leave of court. Leave of court must be granted before the merits of the motion are
reached. State v. Lordi, 149 Ohio App.3d 627,
unavoidably prevented from discovering the allegations contained within the affidavit
was that he was incarcerated. However, Moore’s post-trial incarceration does not
justify his failure to discover the allegations contained within the affidavit earlier. It
has been recognized that “the fact of a defendant’s incarceration, without more, does
not equate to clear and convincing evidence that he was unavoidably prevented from
discovering the evidence within the time parameter established by Crim.R. 33(B).”
State v. Berry , 10th Dist. No. 06AP-803,
has been prevented from contacting the affiant, Butler Johnson. Indeed, it is unreasonable for Moore not to have attempted to contact Johnson sooner if he knew that Johnson and Elizabeth Williams had provided false testimony. Moore was present at his own trial where Johnson and Elizabeth Williams presumably testified. If he genuinely knew Johnson’s or William’s testimony to be false, he should have known that at the time of their testimony. Consequently, it was upon Moore to exercise reasonable diligence to make efforts to obtain an affidavit from one of them establishing the fact of their false testimony and the reasons for it a lot sooner than fifteen years following his conviction. In other words, Moore did have knowledge of the existence of the ground supporting the motion from the time of his trial and, although he was incarcerated, he could have contacted the witnesses himself or through representatives and investigated the nature of the alleged false testimony and the reasons behind it. Moreover, even if we were to reach the substantive merits of Moore’s
new trial motion, the credibility surrounding the sole affidavit in support is
circumspect. Johnson averred that his and Elizabeth Williams’s testimony was
coerced by investigators. This suggests that their testimony was false and that he
and Williams would be recanting or that their testimony could have been impeached.
As this Court observed in State v. Brown ,
“Newly discovered evidence must do more than merely impeach
or contradict evidence at trial, and there must be some compelling
reason to accept a recantation over testimony given at trial.” Fortson, 8th Dist. No. 82545,
could have obtained leave of court to file the motion for new trial. Had Moore’s counsel sought leave, the result before the trial court would have been no different. Therefore, Moore’s counsel was not deficient for not seeking leave of court to file the motion for a new trial and Moore suffered no prejudice as a result. Accordingly, Moore’s sole assignment of error is without merit. The trial court’s judgment is affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.