State v. ShabazzState v. Shabazz
{¶1} Defendant-appellant, Jamil A. Shabazz, appeals the trial court‘s decision denying his “motion for leave asking for a new trial.” For the reasons that follow, we affirm.
{¶2} Shabazz has filed numerous appeals following his 2007 murder conviction. Most recently in State v. Shabazz, 8th Dist. Cuyahoga No. 98601, 2013-Ohio-267 (”Shabazz IV “), this court set forth the procedural history of his case and appeals.
Appellant was indicted on April 26, 2007, charged with one count of aggravated murder with a three-year firearm specification, a notice of prior conviction and a repeat violent offender specification. Prior to the commencement of trial, appellant executed a jury waiver as to the notice of priоr conviction and repeat violent offender specification.
Appellant was found guilty of the lesser-included offense of murder as well as the attached three-year firearm specification by a jury verdict rendered on November 19, 2007. The trial court found appellant guilty of the notice of prior conviction and repeat violent offender specifications. Appellant was sentenced to a prison term of 15 years to life on the murder charge to run consecutively to a three-year prison term for the firearm specification.
Appelant brought a direct appeal of his conviction in State v. Shabazz Abdul, 8th Dist. No. 90789, 2009-Ohio-225 (”Shabazz I “). Appellаnt asserted two assignments of error: ineffective assistance of counsel and the trial court‘s denial of his
Crim.R. 29 motion for acquittal. We rejected both assignments of error and affirmed the conviction.
On May 7, 2009, appellant applied to reopen our judgment in Shabazz I based on a claim of ineffective assistance of appellate counsel. In State v. Shabazz Abdul, 8th Dist. No. 90789, 2009-Ohio-6300 (”Shabazz II” ), we denied appellant‘s application. While [Shabazz] II was pending, appellant filed a petition for post-conviction relief in the trial court. Thе state filed a motion for summary judgment, which was granted by the trial court. On appeal in State v. Abdul Shabazz, 8th Dist. No. 94738, 2010-Ohio-5789 (”Shabazz III “), appellant asserted seven assignments of error. We rejected all seven of appellant‘s errors and affirmed the judgment of the trial court.* * *
{¶3} In Shabazz IV, Shabazz appealed the trial court‘s 2012 denial of his motion for a new trial, setting forth four assignments of error pertaining to alleged procedural errоrs at the time of indictment and during trial, including the jury instructions and amending the indictment. Id. at ¶ 7.
{¶4} This court found that Shabazz‘s motion was not only time barred pursuant to
{¶5} In September 2013, Shabazz moved the trial court for “leave asking for a new trial pursuant to Crim.R. 33(B)” contending that he recently received newly discovered evidence that was not available at trial. Based on this new evidence, Shabazz raised
{¶6} The trial court denied Shabazz‘s motion fоr leave for a new trial by summarily denying his motion for a new trial. Shabazz now appeals from this decision raising five assignments of error.
{¶7} In his first assignment of error, Shabazz contend that the trial court erred by denying his “mоtion for leave in accordance with Crim.R. 33 due to 52(B) plain error with memorandum of support to support this claims without cause.” Reviewing the arguments made under his second, third, and fourth assignments of errоr, we find that Shabazz merely dissects the arguments raised under his first assignment of error and separately assigns them as errors.1 Shabazz‘s fifth assignment of error is a “cumulative
{¶8} In his assignments of error, Shabazz reasserts the arguments raised in his motion for a new trial filed with the trial court. He contends that the state engaged in misconduct by failing to provide discovery, specifically, the witness statements of Saunders, Carter, and Green and also Green‘s criminal record. Because the state did not provide discovery, he claims that his counsel was ineffective for going forward with trial without this evidence.
{¶9} Motions for a new trial are governed by the framework provided in
{¶11} Although Shabazz has now obtained possessiоn of the witness statements and criminal convictions, his blanket assertions that these documents show hearsay and perjured testimony are insufficient to withstand his burden that these documents were not available at the time of trial. In fact, his prior appeals demonstrate that this evidence was available at trial, was reviewed during the appropriate times at trial, and used by counsel at trial where defense counsel determined it was beneficial. See Shabazz II and III.
{¶12} In Shabazz II, this court held that trial counsel was not ineffective for failing to share discovery, i.e. witness statements, with Shabazz or use Green‘s criminal history fоr impeachment at trial. Id. at ¶ 8-9. Accordingly, this evidence was available a trial, and Shabazz was not unavoidably prevented from discovering this evidence because it was the underlying issue to his arguments in а prior appeal. Moreover, Green‘s prior convictions were public records, which could be discovered. Furthermore, in Shabazz II, this court held that the state complied with the then-existing discovery rules; thus, there was no withholding of evidence by the state. Id. at ¶ 8.
{¶14} Notwithstanding the effect of res judicata, we further find that Shabazz failed to satisfy his burden of proving he was unavoidably prevented from discovering the purported new evidеnce, which would warrant the trial court to grant him leave to request a new trial. Shabazz‘s first, second, third, fourth, and fifth assignments of error are overruled.
{¶15} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
Notes
“Assignment of Error II. State violated the Due Process rights of Appellant by withholding еvidence thus causing a extreme prejudice at trial that change the outcome of the case.
“Assignment of Error III. Prosecutorial misconduct by the State for allowing perjure testimony at trial by there alleged witnesses that cause a prejudice to severe to overcome at trial.
“Assignment of Error IV. Trial counsel violated the Sixth Amendment Constitutional rights of his client by trying the case without Criminal Rule #16, this act prejudice Appellant from not being afforded compotent counsel at trial.” [sic.]