State v. SmithState v. Smith
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED
RELEASED AND JOURNALIZED: April 11, 2024
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van and Tasha Forchione, Assistant Prosecuting Attorneys, for appellee.
Kimberly Kendall Corral and Gabrielle M. Ploplis, for appellants.
EILEEN A. GALLAGHER, P.J.:
{¶ 1} In this consolidated appeal, defendants-appellants Ashunte Smith (“Ashunte“) and Willie Smith (“Willie“) (collectively, “appellants” or “the Smiths“) appeal the trial court‘s denial of their separate motions for leave to file a motion for
{¶ 2} For the reasons that follow, we find that, as it relates to Marshall‘s recantation of his trial testimony, the trial court abused its discretion in denying appellants’ motions for leave to file a motion for a new trial without a hearing. We reverse the trial court and remand for a hearing on appellants’ motions for leave to file a motion for a new trial based on that evidence. We affirm the trial court as it relates to the new information allegedly contained within the transcripts from Ashunte‘s trial.
Factual Background and Procedural History
{¶ 3} In 1995, Willie and his younger brother Ashunte were charged with the kidnapping and murder of Reginald Gary Lewis a.k.a. “Reggie” (“Lewis“). On April 19, 1995, Lewis’ body was found in a creek behind the Dalebridge Apartments in Warrensville Heights. The Cuyahoga County Coroner determined that Lewis had
{¶ 4} Willie and Ashunte were tried in separate jury trials.1 Willie‘s trial commenced on September 25, 1995, and the jury rendered its verdicts against Willie on October 6, 1995.2 The jury found Willie guilty of kidnapping in violation of
{¶ 5} Ashunte‘s trial commenced on May 14, 1996, and the jury rendered its verdicts against Ashunte on May 22, 1996. The jury found Ashunte guilty of kidnapping in violation of
{¶ 6} Marshall was a key witness for the state in both brothers’ trials. Before Willie‘s trial, Marshall, who had been charged with murder, entered into a plea agreement with the state. Under the terms of the plea agreement, Marshall agreed
{¶ 7} A brief summary of the trial testimony relevant to the issues raised in this appeal follows.3
Willie‘s Trial
{¶ 8} In Willie‘s trial, Marshall testified that he had been shot by an unknown, masked assailant in February 1995 and that it was rumored in the neighborhood that an individual named “Reggie” was responsible for the shooting.
{¶ 10} According to Marshall, Willie and Ashunte entered their grandmother‘s house and went down to the basement with Lewis. Willie asked Marshall if their grandmother was home. After Marshall informed his cousins that their grandmother was not home, they instructed Marshall to get something to tie up Lewis. Marshall brought them an extension cord and Ashunte used it to tie Lewis to a pole in the basement. Marshall stated that he told Willie and Ashunte that he did not know “for sure” if Lewis had been the person that shot him “because he had a mask on” but that “[h]e look[ed] like the same size and everything.”
{¶ 11} Marshall testified that the telephone rang and he went upstairs to answer it; his grandmother had called. After speaking with his grandmother, Marshall returned to the basement. He told Willie and Ashunte that “whatever you all going to do, you better do it” because their grandmother would be home soon.
{¶ 12} Marshall stated that Willie pulled a gun from the waistband of his pants, “something like a nine millimeter,” and said, “We‘re going to do him then.” Willie cocked the gun and told Marshall to go upstairs and “[m]ake sure Grandma
{¶ 13} Marshall testified that appellants told him to get some sheets in which to put the body and that he got some sheets from his bedroom and returned to the basement, where they untied Lewis, picked him up, wrapped him in the sheets and dragged him upstairs. Marshall held the door open as Willie and Ashunte carried the body out, opened the trunk of the white car and put Lewis into the trunk. Willie and Ashunte told Marshall to clean up the blood and drove away. After they left, Marshall attempted to clean up the blood in the basement.
{¶ 14} Shenelle Owens testified that, earlier that day, Willie and Ashunte had confronted Lewis at her house and asked him if he was the person who had shot Marshall. She stated that Lewis denied that he had shot Marshall and that Willie and Ashunte began beating him up, chased him down the street and ultimately “put” Lewis into a small white car as he fought back.
{¶ 15} Sarah Marshall, the grandmother of Willie, Ashunte and Marshall, testified that she left her home at approximately 12:15 p.m. on March 28, 1995, went to lunch and ran some errands. After eating lunch, she called home at approximately 2:30 or 3:00 p.m. and spoke to Marshall. Sarah Marshall told Marshall that she would be home soon but she did not, in fact, return home until after 6:30 or 7:00 p.m. that evening. Before returning home, sometime after 4:00 p.m., Sarah Marshall stopped at a hardware store. As she was leaving the store and getting into
{¶ 16} No defense witnesses testified in Willie‘s trial.
Ashunte‘s Trial
{¶ 17} Marshall‘s testimony in Ashunte‘s trial was similar to that in Willie‘s trial. Marshall testified that he had been shot by an unknown, masked assailant in February 1995 in an apparent robbery attempt and that it was rumored in the neighborhood that a person named “Reggie” was responsible for the shooting.
{¶ 18} Marshall indicated that, on March 28, 1995, he left school at 12:30 p.m. after getting into a fight. Marshall stated that he arrived at home, where he lived with his grandmother, at approximately 1:30 p.m. Marshall testified that, approximately 10 or 20 minutes later, he was drinking beer when the doorbell rang and Marshall saw Willie and Ashunte at his side door and a white car parked in the driveway. Marshall opened the door, greeted them and his cousins asked him where their grandmother was. Marshall told Willie and Ashunte she was not home. Willie and Ashunte then advised Marshall that they had the male who shot him in the car.
{¶ 20} The telephone rang, and Marshall went upstairs to answer it; his grandmother had called. After speaking with his grandmother, Marshall told his cousins that “whatever y‘all going to do, y‘all better do it,” because their grandmother was on her way home. Willie responded, “We‘re going to do him then,” and pulled a black 9 mm gun or “something like that” from the waistband of his jeans. Willie told Marshall to look out the side door to make sure no one pulled up. Marshall complied. While looking out the door, approximately 30 seconds later, Marshall heard two shots, fired approximately five to ten seconds apart. Marshall looked down the steps and saw Ashunte holding the gun and Lewis lying on the floor. Lewis appeared to be dead.
{¶ 21} Marshall testified that one of his cousins told him to get something in which to wrap Lewis. Marshall retrieved a blanket from his bed and brought it to the basement. One of his cousins untied Lewis and they put him in the blanket,
{¶ 22} Shenelle Owens testified that, earlier that day, Lewis had been at her house when Willie and Ashunte drove by, along with Bledsoe and Digger. They got out of the car, Willie said something to Lewis and Willie and Ashunte began beating Lewis. Lewis attempted to fight back and get away. Owens testified that Lewis said, “I ain‘t shoot your cousin” and “[T]ake me to your cousin.” She stated that she was “kind of confused” about what happened next, but that Lewis left in the car with Willie, Ashunte, Bledsoe and Digger. Owens stated that she did not know if they “shoved” Lewis in the car or if he just “got in.”
{¶ 23} Sarah Marshall testified that she left home at approximately 12:15 or 12:30 p.m. on March 28, 1995, went to lunch and then ran some errands. Before leaving the restaurant, she called home, at approximately 2:20 or 2:30 p.m., and spoke to Marshall. Sarah Marshall told Marshall that she would be home “later, after while.” As she was leaving a hardware store, sometime between 4:00 and 4:30 p.m., she saw Willie driving a white car with Ashunte and two of his friends. She spoke with Willie “a little while” and told him to “be careful driving that car.” She testified that she called Marshall a second time from her girlfriend‘s house, between 6:45 and 7:00 p.m., and told him she was on her way home. She arrived home a
{¶ 24} At Ashunte‘s trial, Ashunte and five witnesses testified in his defense. Ashunte testified that one morning in late March 1995, he and Willie had been driving around in a white car Willie had borrowed from a friend along with two friends, Bledsoe and Clarence Brown a.k.a. “Digger,” when they saw Lewis sitting on Owens’ porch. Owens flagged them down and told them to come see Lewis, who had been beaten up. Ashunte testified that he and Willie struck Lewis. After the fight stopped, Lewis told Ashunte and Willie that he was not the person who had shot their cousin and asked to be taken to Marshall. Ashunte stated that Lewis entered their car willingly and that they drove to Banbury Estates, an apartment complex in Warrensville Heights where they met another cousin, Shawn Laney, and his friend Ronnie Johnson. Everyone drove to the home of one of Ashunte‘s aunts, Kitt Marshall a.k.a. Kitt Laster (“Kitt“), and were sitting in the driveway, talking.
{¶ 25} Ashunte testified that while he and Marshall were both in the detention center, Marshall confessed to him that he had shot Lewis. According to Ashunte, Marshall told him that Laney and Johnson had brought Lewis to the basement of Marshall‘s home. Marshall retrieved his gun and began hitting Lewis with it. Marshall gave his gun to Laney, who shot Lewis in the head. Marshall then took the gun back from Laney and shot Lewis in the head a second time. Ashunte stated that Marshall then told him that Laney and Johnson took the body away. Ashunte claimed that, according to Marshall, their grandmother was home at the time and answered the door when Laney and Johnson arrived. Ashunte denied having threatened, kidnapped or caused any harm to Lewis.
{¶ 26} Bledsoe and Brown testified that they last saw Lewis getting into a vehicle with Laney and someone else.
{¶ 27} Ashunte‘s uncle, Donald Laster, and his aunt, Kitt, testified that they had seen Ashunte and Willie in their driveway with “Reggie,” the person who was rumored to have shot Marshall. They testified that Marshall confessed to each of them that he had shot Lewis.
{¶ 28} Jermell Moore testified that Marshall told him on the bus that he and “Shawn” had killed Lewis. He testified that Ashunte told him that Ashunte and Willie had gotten into a fight with Lewis and that Ashunte and Willie then took Lewis to Marshall‘s house and left him there.
{¶ 29} In addition to their direct appeals, appellants filed multiple postconviction petitions and motions.
Willie‘s Postconviction Filings
{¶ 30} On September 20, 1996, while his direct appeal was pending, Willie filed a motion for leave to file a motion for a new trial instanter, or in the alternative, a petition for postconviction relief pursuant to
{¶ 32} On remand, after conducting an evidentiary hearing, the trial court denied Willie‘s request for a new trial, finding that the affidavits and witness testimony presented at the hearing6 were not credible. On appeal, this court affirmed the trial court. The court found that Willie was not unavoidably prevented from timely discovering the evidence at issue because Kitt, Bledsoe and Brown were available before trial and their testimony surrounding the events was discoverable. With respect to Owens, the court held that the trial court did not err in discrediting her affidavit because, at the hearing, she denied that she was recanting her prior testimony and confirmed she had testified truthfully. State v. Smith, 8th Dist. Cuyahoga No. 78229, 2001 Ohio App. LEXIS 2076 (May 10, 2001), appeal not accepted, 93 Ohio St.3d 1427, 755 N.E.2d 351 (2001).
{¶ 33} On January 30, 2006, Willie, pro se, filed a second motion for leave to file a motion for a new trial pursuant to
{¶ 34} In March 2009, Willie filed another petition for postconviction relief, alleging that he was “legally innocent,” that the indictment was defective and did not charge an offense under Ohio law and that he was denied the effective assistance of counsel. The trial court denied the motion and Willie appealed. This court affirmed, concluding that Willie did not satisfy the requirements for untimely filing under
{¶ 35} On June 21, 2017, Willie filed a “common-law motion to correct void judgment.” Willie argued that the jury‘s finding of not guilty on the felony-murder specification operated as an acquittal and that, therefore, his conviction and sentence for aggravated murder were void. The trial court denied the motion and Willie appealed. Once again, this court affirmed the trial court‘s judgment finding that Willie‘s argument was based on an argument previously raised in his direct appeal, i.e., that the trial court had erred in accepting inconsistent verdicts, and was
{¶ 36} On June 1, 2022, Willie filed, pro se, a civil complaint for declaratory judgment against Cuyahoga County Common Pleas Court Judges Steven E. Gall and Timothy J. McGinty. The complaint alleged that the jury‘s verdict in 1995, finding Willie guilty of aggravated murder in violation of
Ashunte‘s Postconviction Filings
{¶ 37} In June 2005, Ashunte filed a petition in the Fifth District for a writ of habeas corpus, claiming that his convictions were void because, prior to
{¶ 38} On April 3, 2009, Ashunte filed, pro se, a petition for postconviction relief, claiming that he was “legally innocent,” that his indictment was defective and that he was denied the effective assistance of counsel. The trial court denied the petition and Ashunte appealed. This court affirmed the trial court, concluding that his petition was untimely and, in any event, his indictment was not defective. State v. Smith, 8th Dist. Cuyahoga No. 94110, 2010-Ohio-4492.
{¶ 39} On September 22, 2016, Ashunte filed a second petition for postconviction relief, requesting that the court apply Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and declare his life sentence void because he was sentenced without being afforded a hearing as that prescribed in Miller. The state filed a motion to dismiss the petition as untimely. On October 27, 2016, Ashunte filed a motion for summary judgment on his petition and an opposition to the state‘s motion to dismiss. On October 18, 2018, the trial court denied Ashunte‘s motion for summary judgment on his petition for postconviction
The Motions at Issue Here
Ashunte‘s Motion for Leave to File a Motion for a New Trial
{¶ 40} On July 14, 2022, more than 25 years after his convictions, Ashunte filed a motion for leave to file a motion for new trial pursuant to
2. After many years of living a lie my conscience and heart are compelled to tell the truth.
3. On March 28, 1995, I was at home at 3267 E. 130th St, Cleveland, OH 44120.
4. On that day, Albert Little better known as Uncle Al showed up with Reginald Lewis, the person we both identified as the person who had shot me on February 8th, 1995.
5. My uncle, Uncle Al then took Reginald Lewis into the basement.
21. Therefore, I must tell the truth, which I have done today, the 19[th] day of January, 2022.86. I looked out the window as a lookout.
7. While I was looking out the window, I heard two gun shots.
8. Uncle Al the[n] wrapped up the body of Reginald Lewis and took him outside while I held the door.
9. Uncle Al put him, Reginald Lewis, in his trunk and drove off.
10. I am coming forward now with the truth because I can‘t stand the false conviction of my cousins any longer.
11. The Warrensville Detectives who interrogated me about the incident threatened me with life imprisonment and told me I would be raped and sodomized in prison.
* * *
13. I was young[,] terrified, and scared. I had never been to prison and the detectives told me that prison was very dangerous.
14. And the[y] told me they [would] grant me full immunity if I put the murder on Ashunte Smith and Willie Smith.
15. I knew Ashunte Smith and Willie Smith did not kill Reginald Lewis but the police told me to say it was them.
16. Out of fear of prison and fear of being sexually assaulted in prison as descri[b]ed by the Warrensville detectives I complied.
17. I would have come forward sooner but I was afraid.
18. I did not say it was my Uncle Al because I was afraid of Uncle Al (Albert Little) as he was my uncle and I had just seen what he had did to Reginald Lewis.
19. I was scared of retaliation from the Warrensville Detectives and the police in general.
20. I can‘t see my cousins locked up because of my fears and lies any longer.
{¶ 41} Ashunte claimed that he could not have previously discovered the “new material evidence” contained in Marshall‘s affidavit because (1) he had no “control” over Marshall recanting his prior testimony and his recantation could not have been discovered “until it actually occurred [of] Marshall‘s own volition,” (2) Marshall had been “afraid” to “come forward with this true information sooner” due to the threats made by law enforcement and his fear of “Uncle Al” and (3) Marshall had been given “full immunity” for identifying Ashunte and Willie as the persons who killed Lewis and would not jeopardize his plea agreement.
Willie‘s Third Motion for Leave to File a Motion for a New Trial
{¶ 42} On March 23, 2023, more than 27 years after his convictions, Willie filed his third motion for leave to file a motion for a new trial pursuant to
{¶ 43} In support of his motion for leave, Willie submitted copies of (1) Marshall‘s January 19, 2022 affidavit, (2) the transcript from Ashunte‘s trial, filed with this court on September 4, 1996, and (3) the state‘s brief in opposition to Willie‘s initial motion for a new trial, filed on November 19, 1999.
The Trial Court‘s Rulings and Appellants’ Appeals
{¶ 44} On December 6, 2022, the trial court summarily denied Ashunte‘s motion for leave to file a motion for a new trial. On July 6, 2023, the trial court summarily denied Willie‘s motion for leave to file a motion for a new trial. Both Willie and Ashunte appealed. This court, sua sponte, consolidated the appeals for briefing, hearing and disposition. Appellants raise the following seven assignments of error for review:
Assignment of Error I: The trial court abused its discretion in denying Ashunte and Willie Smith‘s Motions for Leave to File a Motion for a New Trial as the evidence presented meets the requisite standard under
Crim.R. 33 .
Assignment of Error II: The trial court abused its discretion when it failed to hold an evidentiary hearing, especially in light of the state‘s opposition which shows why court intervention is imperative. Assignment of Error III: The trial court abused its discretion as evidence [sic] by failing to identify the correct legal standard or state findings demonstrating the application of the correct legal standard.
Assignment of Error IV: The trial court abused its discretion when it failed to hold an evidentiary hearing where the state did not oppose Ashunte‘s transcript as new evidence supporting Willie Smith‘s motion for leave to file a motion for a new trial.
Assignment of Error V: It is unconscionable to support a conviction with solely the testimony of a witness the state has asserted lacks credibility, and where the record shows per se that the witness had committed perjury, that is an abuse of discretion.
Assignment of Error VI: Where the trial court‘s denial necessarily relied on a credibility determination, that credibility assessment must be free from bias.
Assignment of Error VII: It is a per se abuse of discretion when the court gives dispositive weight to judicial efficiency over every other principal and purpose of criminal justice.
For ease of discussion, we consider appellants’ assignments of error out of order and together, where appropriate.
Law and Analysis
{¶ 45} In their first, second and fourth assignments of error, appellants contend that the trial court abused its discretion in denying their motions for leave to file a motion for a new trial without holding an evidentiary hearing.
Motion for Leave to File Motion for a New Trial under Crim.R. 33
{¶ 46}
{¶ 47} A defendant whose case was tried to a jury must file a motion for a new trial based on newly discovered evidence within 120 days after the jury‘s verdict; otherwise, leave of court to file a motion for new trial must be sought and granted. To obtain leave to file an untimely motion for a new trial, the defendant must show “by clear and convincing proof” that he or she was “unavoidably prevented” from discovering the evidence and filing a timely motion for a new trial within the 120-day period.
{¶ 48} “Clear and convincing” evidence is that “measure or degree of proof” that “produce[s] in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. “It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” (Emphasis deleted.) Id. at 477.
{¶ 49} When a defendant seeks leave to file a motion for a new trial under
{¶ 50} A witness‘s recantation of testimony can constitute newly discovered evidence for purposes of
{¶ 51} A defendant is entitled to a hearing on a motion for leave to file an untimely motion for a new trial only if the defendant submits documents that “on their face” support his or her claim that he or she was unavoidably prevented from timely discovering the grounds for the motion. See, e.g., State v. McAlpin, 8th Dist. Cuyahoga No. 110811, 2023-Ohio-4794, ¶ 29; McFarland at ¶ 28; State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 12; State v. Ambartsoumov, 10th Dist. Franklin Nos. 12AP-877 and 12AP-878, 2013-Ohio-3011, ¶ 13 (motion for leave to file motion for new trial may be summarily denied where neither the motion nor its supporting affidavits “embody prima facie evidence of unavoidable delay“), quoting State v. Peals, 6th Dist. Lucas No. L-10-1035, 2010-Ohio-5893, ¶ 22; State v. Martin, 8th Dist. Cuyahoga No. 110549, 2022-Ohio-1494, ¶ 36-37 (defendant who submitted evidence that on its face showed he was unavoidably prevented from discovering and presenting evidence sooner was entitled to a hearing on motion for leave to file motion for new trial). Accordingly, the issue before us on appeal is whether appellants submitted documents in support of their motion for leave that “on their face” support appellants’ claim that they were unavoidably prevented from timely discovering the grounds for their motion so as to entitle them to a hearing on their motion for leave to file an untimely motion for a new trial.
{¶ 52} We review both a trial court‘s decision on a motion for leave to file an untimely motion for a new trial and a trial court‘s decision whether to hold an evidentiary hearing on a motion for leave for abuse of discretion. Hatton at ¶ 29; McAlpin at ¶ 29; State v. Gibson, 8th Dist. Cuyahoga No. 112160, 2023-Ohio-4792, ¶ 21.
{¶ 53} A court abuses its discretion “when a legal rule entrusts a decision to a judge‘s discretion and the judge‘s exercise of that discretion is outside of the legally permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 19; see also Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35 (describing the “common understanding of what constitutes an abuse of discretion” as “a court exercising its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority“). A decision is an abuse of discretion when it is unreasonable, arbitrary or unconscionable. See, e.g., State v. Brusiter, 8th Dist. Cuyahoga No. 112410, 2023-Ohio-3794, ¶ 10; McAlpin at ¶ 30; Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision is “unreasonable” “if there is no sound reasoning process that would support that decision.” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 106, quoting AAAA Ents. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An “arbitrary” decision is “made ‘without consideration of or regard for facts [or] circumstances.‘” State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶ 12, quoting Black‘s Law Dictionary 125 (10th Ed.2014). When applying an abuse-of-discretion standard, this court may not substitute its judgment for that of the trial court. McFarland at ¶ 21.
{¶ 54} A defendant may make the required showing that he or she was “unavoidably prevented” from filing a timely motion for a new trial based on new evidence by demonstrating that he or she was previously unaware of the evidence on which the motion relies and could not have discovered it within the required time by exercising reasonable diligence. State v. Johnson, Slip Opinion No. 2024-Ohio-134, ¶ 18; Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 21; McFarland at ¶ 16.
{¶ 55} A defendant may also make the required showing by establishing that the prosecution suppressed the evidence at issue. Bethel at ¶ 25 (“[W]hen a defendant seeks to assert a Brady claim in an untimely or successive petition for postconviction relief, the defendant satisfies the ‘unavoidably prevented’ requirement contained in
{¶ 56} In their filings before the trial court and their appellate briefs, appellants did not claim a Brady violation or that the state otherwise suppressed any of the “new evidence” at issue.9 Accordingly, to warrant a hearing on their motions for leave, appellants needed to submit documents with their motions for leave that, on their face, supported their claims that they were previously unaware of the evidence at issue and could not have discovered it within the required time by exercising reasonable diligence.
Affidavit from Marshall Recanting His Trial Testimony
{¶ 57} Appellants contend that they established that “there was no reasonable opportunity” for them to have discovered Marshall‘s recantation of his trial testimony within 120 days of the juries’ verdicts and that the trial court abused its discretion in denying their motions for leave because (1) this “new evidence” could only come from Marshall; (2) Willie and Ashunte “had no control over” Marshall‘s decision to recant his trial testimony; (3) “Ohio Supreme Court case law
{¶ 58} With respect to Willie, appellants further argue that the record “shows conclusively” that Marshall was not willing to recant his trial testimony during the “120-day window” because “he did not do so at Ashunte‘s trial” and, instead, continued to identify Willie and Ashunte as the persons who shot and killed Lewis when he testified at Ashunte‘s trial.
{¶ 59} The state responds that (1) “Marshall‘s recantation is not newly discovered evidence because Marshall‘s statements within his affidavit are not credible“; (2) “Marshall‘s affidavit is contradicted by evidence, independent of Marshall, that implicated [appellants] in assaulting [Lewis] and taking [Lewis] to Marshall‘s home“; (3) appellants have not shown that they were unavoidably prevented from timely discovering “Marshall‘s purported misgivings about his trial testimony” because Marshall was a relative, his statement “does not indicate that he was not willing to provide the information earlier” and appellants have not presented any evidence that Marshall was unwilling to speak with appellants or their representatives following the trials and (4) Ashunte “admitted to his own role [in] the kidnapping and initial assault of [Lewis] and also implicates [Willie] as being involved.”
{¶ 60} There certainly could be concerns regarding the credibility of Marshall‘s statements in his affidavit. As stated above, however, “[t]he sole question
{¶ 61} In Johnson, Slip Opinion No. 2024-Ohio-134, the Ohio Supreme Court considered what evidence a petitioner needs in order to establish, for purposes of an untimely or successive petition for postconviction relief under
R.C. 2953.23(A)(1)(a) requires a petitioner to show that he was “unavoidably prevented” — not merely “prevented” — from discovering the facts on which he would rely. (Emphasis added.) “Unavoidable” means “not avoidable” or “inevitable.” Merriam-Webster‘s Collegiate Dictionary 1360 (11th Ed.2003). And something is “inevitable” if it is “incapable of being avoided or evaded.” Id. at 638. Keeping in mind thatR.C. 2953.23 means what it says, a petitioner filing an untimely postconviction petition must show that any delay in discovering the facts undergirding the petition was “incapable of being avoided or evaded,” Merriam-Webster‘s Collegiate Dictionary at 638.The light that an affidavit‘s date sheds on that issue is dim, at best. A date merely reveals when the affidavit was executed or provided, not when the testimony it contains became available. Without an explanation of how the recantation was discovered, the information essential to the
R.C. 2953.23 inquiry remains cloaked in darkness. It is this type of information that bears on the petitioner‘s ability to avoid delay in discovering recanted testimony. * * *Accepting an affidavit‘s date as prima facie evidence satisfying the strictures of
R.C. 2953.23(A)(1)(a) would effectively eliminate the word “unavoidably” from the statute. Thus, we hold thatR.C. 2953.23(A)(1)(a) requires a petitioner to submit evidence of specificfacts beyond the supporting affidavit‘s date to explain why the petitioner was unable to timely obtain an affidavit from the recanting witness.
{¶ 62} The court also rejected the argument that questions concerning the reasons for a recanting witness affidavit, the timing of a recanting witness affidavit and efforts to discover a recantation must be explored at a hearing:
[T]he petitioner bears the burden of proving that he was unavoidably prevented from discovering the evidence on which he must rely * * *. Therefore, it is the petitioner‘s duty to present sufficient evidence to carry that burden at the time he files the petition. And there is no practical reason why a hearing might be necessary for the petitioner to satisfy this burden. If testimony can be elicited at a hearing, it can be attested to in an affidavit. We therefore reject Johnson‘s argument that regardless of the circumstances, a hearing is required whenever a petitioner produces an affidavit from a witness recanting the witness‘s testimony.
{¶ 63} In Johnson, the only evidence the petitioner, Johnson, had submitted in support of his postconviction petition was an affidavit from the recanting witness, the victim. Id. at ¶ 28. In his affidavit, the victim detailed his “doubts” about his trial testimony, his limited recollection of his assailant and his concern that he had improperly identified Johnson as his attacker. Id. at ¶ 7. He also explained that he had “felt pressured by [a police detective] to * * * testify against [Johnson] even though [he] wasn‘t sure [Johnson] was the person who committed these crimes against [him].” Id. Although Johnson asserted in his petition, “in conclusory fashion,” that the information in the affidavit “was not available to [him] until this
{¶ 64} Because the “unavoidably prevented” requirement in
{¶ 65} In Allen, this court recently addressed a similar issue. In that case, the defendant, Allen, filed a motion for leave to file a motion for new trial under
{¶ 66} The trial court denied the motion for leave without a hearing and Allen appealed. Id. at ¶ 18-19. Applying Johnson, this court affirmed the trial court, concluding that Allen had not shown that the trial court abused its discretion in denying his motion for leave without a hearing based on Perkins’ and Weems’ affidavits. Id. at ¶ 30-38. The court explained:
In this case, the only evidence Allen presented in support of his claim that he was unavoidably prevented from discovering Weems’ recantation were the affidavits from Perkins and Weems. Allen argues that he was “prevented from obtaining [the affidavits] unless and until the individuals were willing to provide those affidavits.” However, there is no evidence in the record detailing Allen‘s efforts, if any, to timely obtain an affidavit from Perkins or Weems or establishing why any such efforts would have been unavailing.
In his motion for leave Allen asserts (unsupported by affidavit) that the path to his discovery of Weems’ recantation began when he hired a private investigator in 2020. Allen further asserts that the private investigator located Perkins and obtained an affidavit from him in November 2020. No information is provided in Perkins’ affidavit as to how or when the private investigator located Perkins. Allen claims that it was only after obtaining the affidavit from Perkins — in which Perkins disclaimed any role in Weems’ identification of Allen * * * — that he (or his private investigator) could approach Weems, but he offers no explanation as to why he could not have reached out to Perkins or Weems sooner. No information is provided in Weems’ affidavit as to what led him to execute an affidavit in November 2021 recanting his trial testimony, i.e., whether it was Perkins’ statement or something else. Perkins states in his affidavit that no one ever interviewed him regarding the incident.
Allen and his defense attorneys were well aware of the existence of Perkins and his role in the case at the time of trial — if not before. Multiple witnesses, including Weems and police detectives, testified regarding the fact Perkins had allegedly told Weems the names of the
men involved in the shooting. The record reflects also that a private investigator assisted in Allen‘s defense prior to trial. In this case, all we have are Allen‘s conclusory assertions (unsupported by affidavit) that he was unavoidably prevented from discovering Perkins’ statement and Weems’ recantation within the prescribed time frame. However, ““[m]ere conclusory allegations do not prove that the defendant was unavoidably prevented from discovering the evidence he seeks to introduce as support for a new trial.“” McFarland, 2022-Ohio-4638, at ¶ 28, quoting State v. Cashin, 10th Dist. Franklin No. 17AP-338, 2017-Ohio-9289, ¶ 17, 20-23 (trial court did not err in denying defendant‘s motion for leave to file motion for new trial based on evidence contained in new witness affidavits where defendant “failed to produce any evidence regarding his efforts to obtain the witnesses’ affidavits“; defendant‘s statement that he did “everything possible” to obtain the witnesses’ testimony was a “conclusory allegation devoid of the detail necessary to determine whether [the defendant] exercised reasonable diligence“).
{¶ 67} Like the affidavits of the recanting witnesses in Johnson and Allen, Marshall‘s affidavit did not provide any information regarding the specific circumstances that led Marshall to recant his prior testimony, execute the affidavit at issue and provide it to appellants. Marshall‘s affidavit provides no information regarding specifically when Marshall decided to recant his testimony, whether appellants (or others acting on their behalf) played a role in that decision (e.g., who contacted whom),11 what prior communications appellants (or others on their behalf) had with Marshall regarding his testimony, at what point appellants learned
{¶ 68} In this case, unlike in Johnson or Allen, the record contains evidence of specific facts explaining why appellants were unable to timely obtain an affidavit from Marshall. Marshall‘s statements in his affidavit regarding the circumstances surrounding his plea deal, the terms of his plea deal and the fact that Marshall testified (without recanting) in Ashunte‘s trial support appellants’ claim that they were unavoidably prevented from discovering that Marshall would recant his testimony within 120 days from the jury‘s verdicts.
{¶ 69} As stated above, the jury‘s verdicts in Willie‘s trial were announced on October 6, 1995. Marshall testified in Ashunte‘s trial on May 17, 1996, more than 220 days later. Given that Marshall‘s testimony in Ashunte‘s trial remained consistent with his testimony in Willie‘s trial, i.e., that Willie and Ashunte killed
{¶ 70} The record further reflects that Marshall entered into a very favorable plea agreement, contingent on his “truthful” testimony against Willie and Ashunte. That plea agreement, pursuant to which Marshall remained in the juvenile system and pled guilty to complicity to involuntary manslaughter — rather than being subject to bindover and tried for murder as an adult — required Marshall to cooperate with police and prosecutors and to testify “truthfully,” i.e., to implicate Willie and Ashunte in Lewis’ murder, in Willie‘s and Ashunte‘s trials. Marshall was sentenced to a juvenile facility “for a term of one year until he‘s to reach 21 years of age.” However, if Marshall held up his end of the bargain, the prosecutor‘s office agreed to write a letter to ODYS requesting that Marshall be released after one year.13 Marshall was 16 at the time he entered into the plea agreement and testified in Willie‘s trial. He was 17 when he testified in Ashunte‘s trial.
{¶ 71} Based on the particular facts and circumstances here, we find that appellants submitted documents that, on their face, supported their claims that they could not have discovered Marshall‘s recantation within the required time frame by exercising reasonable diligence. The trial court, therefore, abused its discretion in denying appellants’ motions for leave to file a motion for a new trial without a
New Information Contained within Transcripts from Ashunte‘s Trial
{¶ 72} Appellants also contend that Willie should have been granted leave to file a motion for a new trial based on “new information contained within Ashunte‘s trial transcripts.”
{¶ 73} In their fourth assignment of error, appellants contend that the trial court abused its discretion in failing to hold an evidentiary hearing on Willie‘s motion for leave based on the “new information” contained within Ashunte‘s trial transcripts, because the state “did not oppose the introduction of Ashunte‘s trial transcripts as new evidence” and, thereby, “conceded that such information was new evidence warranting a hearing.” The record does not support this claim. The record reflects that the state disputed appellants’ claim that Ashunte‘s trial transcripts constituted newly discovered evidence as related to Willie‘s convictions and that the
{¶ 74} In their first and second assignments of error, appellants contend that the trial court abused its discretion in denying Willie‘s motion for leave to file a motion for a new trial because Ashunte‘s trial transcripts contained “new information” that “could not have been discovered within 120 days after Willie‘s trial.” The state responds that the trial court properly denied Willie‘s motion for leave because (1) “[a]ppellants utterly fail to explain why the use of trial transcripts in a post-conviction proceeding or motion would require reversal here or why * * * this would warrant a trial court granting leave” and (2) “[w]ere [a]ppellants[‘] arguments adopted, this Court would blur the line between newly available and newly discovered.” (Emphasis deleted.)
{¶ 75} Willie does not identify, either in his motion for leave or in his appellate briefs, precisely what “new information” he claims to have discovered in Ashunte‘s trial transcripts. In their appellate briefs, appellants refer generally to “the statements Marshall made during [h]is testimony at Ashunte‘s trial” and assert that “[w]hen comparing the testimony William Marshall and his grandmother, Sarah Marshall, provided in Ashunte‘s trial versus that provided in Willie‘s trial it is
{¶ 76} In any event, appellants’ arguments with regard to William Marshall‘s testimony would appear to be moot given that Marshall has now allegedly recanted his testimony from Ashunte‘s trial. With respect to Sarah Marshall‘s testimony, even assuming Sarah Marshall provided additional or different testimony in Ashunte‘s trial than that she provided in Willie‘s trial, Willie has not submitted documents that, on their face, support Willie‘s claim that he was unavoidably prevented from timely discovering any such “new evidence.”
{¶ 77} Simply because the transcripts from Ashunte‘s trial did not exist until after Ashunte‘s trial and, thus, Willie could not have discovered those transcripts within 120 days after the jury‘s verdict, does not mean that Willie was unavoidably prevented from timely discovering any “new evidence” allegedly contained within those transcripts within 120 of the jury‘s verdict in his case.
{¶ 78} Evidence is not undiscoverable simply because no one looked for it. See, e.g., McFarland, 2022-Ohio-4638, at ¶ 25 (“A defendant cannot claim that evidence was undiscoverable merely because the defendant or his defense counsel made no effort to obtain the evidence sooner.“), quoting Hubbard, 2020-Ohio- 2726, at ¶ 56; Hale, 2023-Ohio-3894, at ¶ 31 (same); State v. Collins, 8th Dist. Cuyahoga No. 108486, 2020-Ohio-918, ¶ 45 (“It is the duty of the criminal defendant and his trial counsel to make a serious effort, on their own, to discover potential, favorable evidence. * * * Claims that evidence was undiscoverable simply because the defense did not take the necessary steps earlier to obtain the evidence do not satisfy the requisite standard [under
{¶ 79} Sarah Marshall is Willie‘s grandmother. She testified that Willie had visited her often prior to this incident and that she “got a lawyer for all [her] grandsons” following the incident.
{¶ 80} Accordingly, we overrule appellants’ first and second assignments of error to the extent that they relate to “new information” contained within Ashunte‘s trial transcripts.
Findings of Facts and Conclusions of Law
{¶ 81} In their third assignment of error, appellants contend that the trial court erred in failing to issue findings of facts and conclusions of law when denying their “new trial motions.” Appellants argue that without such findings, the appellate
{¶ 82} This appeal involves the denial of appellants’ motions for leave to file a motion for a new trial. While it is certainly a “best practice” for a trial court to issue findings of fact and conclusions of law when denying a motion for leave to file a motion for a new trial,
{¶ 83} Further, based on our resolution of appellants’ first two assignments of error, this assignment of error is arguably moot. Accordingly, we overrule appellants’ third assignment of error.
{¶ 84} Appellants’ fifth, sixth and seventh assignments of error concern the merits of appellants’ motions for a new trial and whether the trial court abused its discretion in failing to hold an evidentiary hearing on appellants’ motions for a new trial.
{¶ 85} Here, however, the trial court ruled only on appellants’ motions for leave to file a motion for a new trial. Having denied leave, the trial court never addressed the merits of appellants’ motions for a new trial or whether an evidentiary hearing should be held on those motions. See, e.g., Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, at ¶ 30, 33; see also State v. Ali, 8th Dist. Cuyahoga No. 112285, 2023-Ohio-2587, ¶ 8 (disregarding assignment of error relating to motion for a new trial “because it addresses a motion [appellant] was never permitted to file“). Accordingly, we overrule appellants’ fifth, sixth and seventh assignments of error.
Conclusion
{¶ 86}
{¶ 87} Judgment affirmed in part and reversed in part. Cases remanded for a hearing on appellants’ motions for leave to file a motion for a new trial based on William Marshall‘s recantation of his trial testimony.
It is ordered that appellants recover from appellee the costs herein taxed.
The court finds that there were reasonable grounds for these appeals.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and MICHAEL JOHN RYAN, J., CONCUR
Notes
Marshall, petitioner‘s aunt, averred that Marshall had admitted to her that he killed Reginald Lewis. In her affidavit, petitioner‘s mother, Lucretia Smith, stated that Shenell[e] Owens, a friend of petitioner, told Smith that she lied at petitioner‘s trial.Petitioner submitted seven sworn affidavits in support of his petition. Three of the affidavits were from relatives of petitioner. Donald Laster, petitioner‘s uncle, stated that William Marshall had bragged to him about shooting Reginald Lewis. Laster also stated that Marshall had told him that he lied at petitioner‘s trial about petitioner‘s involvement in the crimes. Kitt
Four of the affidavits were from friends of petitioner. Rasheen Bledsoe and Clarence Brown averred that they were willing to testify favorably for Willie at his trial but received threatening phone calls and, consequently, did not testify. Another friend, Jermell Moore, stated that Marshall told him that he and his cousin, Shawn Laney, had killed Lewis. Finally, in a handwritten affidavit, Shenell[e] Owens stated that she had not testified truthfully at petitioner‘s trial because petitioner had agreed to testify against her brother in an unrelated murder case.