STATE OF OHIO, Plaintiff-Appellee, - vs - JAMES E. TRIMBLE, Defendant-Appellant.
CASE NO. 2013-P-0088
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
March 16, 2015
[Cite as State v. Trimble, 2015-Ohio-942.]
TIMOTHY P. CANNON, P.J.
Criminal Appeal from the Portage County Court of Common Pleas. Case No. 2005 CR 00022. Judgment: Reversed and remanded.
Kathryn L. Sandford, Office of the Ohio Public Defender, Supervisor, Death Penalty Division, 250 East Broad Street, Suite 1400, Columbus, OH 43215; Joseph E. Wilhelm, Assistant Federal Public Defender, Capital Habeas Unit, Skylight Office Tower, 1660 West Second Street, Suite 750, Cleveland, OH 44113 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, James E. Trimble, appeals from the October 8, 2013 judgment order of the Portage County Court of Common Pleas, overruling his motion for leave to file a motion for new trial. For the reasons that follow, the judgment of the trial court is reversed and remanded.
{¶3} On October 25, 2005, appellant was found guilty by a jury of three counts of aggravated murder and accompanying specifications, three counts of kidnapping, one count of aggravated burglary, and two counts of felonious assault. The jury recommended the death sentence be imposed on appellant, and on November 8, 2005, the trial court sentenced appellant to death for the aggravated murders of Renee Bauer, her son, and Sarah Positano. Appellant’s sentence was affirmed on direct appeal by the Ohio Supreme Court. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961 (2009).
{¶4} While his direct appeal was pending, appellant filed a petition for postconviction relief on May 27, 2007. The trial court denied appellant’s petition. This court affirmed the trial court’s decision in State v. Trimble, 11th Dist. Portage No. 2007-P-0098, 2008-Ohio-6409.
{¶5} Over five years later, on August 29, 2013, appellant filed the instant “Motion for Leave to File New Trial Motion.” His motion for leave was accompanied by a memorandum in support. Attached to appellant’s memorandum in support were two e-mails and a response to a public records request. The first e-mail was dated
[O]n or about October/November 2005/2006, I learned that a Rogue SWAT Officer was in Sara Positano duplex during the 2hr cool off period.
On or about October/November, of 2005/2006, I communicated what I learned and my concerns to then, Chief David Doak, of the Portage County Sheriff Office.
Approximately 3 years later, on or about, January 2009, I had a second conversation with Dave Doak as Portage County’s newly elected Sheriff—reference the rogue officer * * *.
To date, I have no information on whether the information I passed on to Dave Doak went anywhere. I am reaching out to you—to make sure certain information about the Trimble case are known, so Justice can be served.
{¶6} The second e-mail attached to appellant’s memorandum in support was dated July 15, 2013, and sent by Mr. Muldowney to Mark Rooks of the Office of the Ohio Public Defender. That e-mail stated:
I [Michael Muldowney] have reached out the best way I can to the County and Ohio Public Defenders Office with my e-mail—reference the Trimble case. Please let the Lawyers know that I want to move forward and be part of the process but I cannot move forward without receiving a subpoena first etc.
{¶7} Appellant’s memorandum argued that he did not purposely cause Ms. Positano’s death. Instead, appellant asserts the presence of law enforcement officers inside the residence caused appellant to accidentally shoot Ms. Positano. Appellant argues that “this new evidence impeaches prosecution witnesses who claimed that law enforcement did not enter Positano’s house during the standoff.”
{¶9} On October 8, 2013, the trial court overruled appellant’s motion for leave. As the reason for overruling appellant’s motion for leave, the trial court’s judgment entry stated the following:
An e-mail sent by Michael Muldowney does not constitute evidence sufficient to grant a motion for leave to file notice for a new trial for newly discovered evidence. At a minimum, an affidavit is needed. See, State versus Gilcreast, (Ohio App. 9 Dist.), 2003-Ohio-7177; State versus Williams, (Ohio App. 2 Dist.), 2004-Ohio-3135.
{¶10} Appellant timely appeals the trial court’s judgment entry overruling his motion for leave. On appeal, appellant sets forth two assignments of error.
{¶11} In his first assignment of error, appellant argues:
The trial court abused its discretion and violated appellant’s due process rights, when it denied appellant’s [motion for leave] by requiring appellant to support that motion with an affidavit, by not holding a hearing on that motion, and when it denied appellant a fair mechanism to develop facts to support the motion for leave.
{¶12} This court has previously explained the mechanics of
The foregoing rule anticipates a two-step process where the motion for new trial is made outside the permissible timeframe for filing the motion. First, the trial court must find the party was unavoidably prevented from filing his motion within the prescribed window set
forth in Crim.R. 33(B) . The party must then file his or her motion within seven days of the trial court’s determination. ‘Crim.R. 33 does not specify the procedure by which the initial order is to be obtained.’
Id. at ¶23 (citations omitted). A trial court may not consider the merits of the motion for a new trial until it makes a finding of unavoidable delay. State v. Stevens, 2d Dist. Montgomery Nos. 23236 & 23315, 2010-Ohio-556, ¶11.
{¶13}
{¶14} “The standard of ‘clear and convincing evidence’ is defined as ‘that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’” State v. Schiebel, 55 Ohio St.3d 71, 74 (1990), citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶15} 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. However, it is also firmly established that judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court. An appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court judge.
{¶16} When a motion for leave to file a motion for new trial is filed, the trial court has three options. First, if it determines that the documents in support of the motion on their face do not demonstrate that the movant was unavoidably prevented from discovering the evidence, it may either overrule the motion or hold a hearing. See State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶19 (2d Dist.) (“a trial court has discretion when deciding whether to grant leave to file a motion for a new trial, or whether to hold a hearing on the issue”). Second, if the trial court determines that the documents submitted clearly and convincingly demonstrate the movant was unavoidably prevented from discovering the evidence, the court must grant the motion for leave and allow the motion for new trial to be filed. See
{¶17} To begin, we note that the jury verdict in this case was rendered on October 25, 2005. Appellant did not file his motion for new trial until August 29, 2013, significantly beyond the 120-day prescribed time period. As such, appellant was required to make a showing by clear and convincing proof that he was unavoidably prevented from discovering this evidence. See
{¶19} In addition, we note the trial court would only need to consider whether the evidence is, in fact, “newly discovered” if it finds that appellant “had no knowledge of the existence of the ground supporting the motion and could not have learned of that existence within the time prescribed for filing the motion in the exercise of reasonable diligence.” State v. Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-4468,
{¶20} Appellant’s first assignment of error has merit.
{¶21} In his second assignment of error, appellant asserts:
Appellant’s due process right to a fair trial was denied when the state suppressed favorable evidence about the presence of law enforcement inside Sarah Positano’s residence and when it failed to correct false testimony about the lack of any law enforcement officers inside that residence.
{¶22} Appellant’s second assignment of error argues appellee’s failure to disclose material evidence or correct false testimony violated appellant’s due process rights. See Brady v. Maryland, 373 U.S. 83, 87 (1963). “Brady holds that a prosecutor violates due process when he (1) suppresses evidence (2) that is favorable to the defendant, when that evidence (3) is material to guilt or innocence.” United States v. Olsen, 737 F.3d 625, 628 (9th Cir.2013) (Kozinski, C.J., dissenting), citing Brady, supra at 87. The same due process violation occurs when the prosecution suppresses evidence that bears upon the credibility of a government witness. Giglio v. United States, 405 U.S. 150, 153-54 (1972).
{¶23} Additionally, “prosecutors have ‘a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’” State v. Sanders, 92 Ohio St.3d 245, 261 (2001), quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995). “‘The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation’” for purposes of determining whether a Brady violation occurred. State v. Iacona, 93 Ohio St.3d 83, 92 (2001), quoting United States v. Payne, 63 F.3d 1200, 1208 (2d Cir.1995).
{¶24} On appeal, appellant argues that appellee suppressed evidence related to Muldowney’s e-mail regarding the presence of a rogue law enforcement officer in Ms. Positano’s residence. Appellant argues Muldowney’s e-mail is favorable to appellant because it creates an issue of fact as to the mens rea element of the aggravated murder charge involving Ms. Positano. As previously stated, Muldowney’s e-mail states, in part, that “[o]n or about October/November, of 2005/2006, I communicated what I learned and my concerns [about the presence of a rogue SWAT officer in Positano’s home] to then, Chief David Doak, of the Portage County Sheriff Office.”
{¶25} In this case, the assignment of error assumes the existence of facts that are not in the record. Whether or not the conversations alluded to in the e-mails actually took place, and whether those conversations had any relevance to the case is, at this point in time, unresolved. Any claim that appellee withheld any evidence is purely speculative. See State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, ¶60. Therefore, appellant has not met his burden to establish there was any sort of Brady violation. See State v. Moore, 10th Dist. Franklin Nos. 11AP-1116 & 11AP-1117, 2013 Ohio App. LEXIS 3439, *22-23 (Aug. 1, 2013). Accordingly, appellant’s second assignment of error is without merit.
{¶26} For the reasons stated above, the judgment of the Portage County Court of Common Pleas is reversed and remanded. On remand, if the trial court determines
THOMAS R. WRIGHT, J., concurs,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
STATE OF OHIO, Plaintiff-Appellee, - vs - JAMES E. TRIMBLE, Defendant-Appellant.
CASE NO. 2013-P-0088
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
{¶27} The majority reverses and remands the decision of the lower court for its purported failure to make the threshold determination “of whether it found that appellant was ‘unavoidably prevented’ from discovering the ‘newly discovered’ evidence.” Supra at ¶ 18. Without the benefit of the trial court’s finding, the majority maintains there is “an insufficient record to review.” This view misconstrues the role and function of the appellate courts.
{¶28} A fundamental tenet of appellate review is that “[r]eviewing courts affirm and reverse judgments, not reasons.” (Citation omitted.) State v. Eschenauer, 11th Dist. Lake No. 12-237, 1988 Ohio App. LEXIS 4479, 8 (Nov. 10, 1988); Mizer v. Smith, 5th Dist. Licking No. 09-CA-00026, 2009-Ohio-6820, ¶ 20 (“[i]t is a fundamental rule of appellate review that we review judgments, not reasons”).
{¶30} The evidence on which the trial court based its decision to deny Trimble leave to file an untimely motion for new trial is the same evidence in the record before this court. The trial court’s “finding” based on this evidence neither contributes to nor detracts from the record before this court. There is simply no impediment to this court performing its role as a reviewing court to decide whether the trial court abused its discretion in denying Trimble leave. Geneva v. Fende, 11th Dist. Ashtabula No. 2009-A-0023, 2009-Ohio-6380, ¶ 33 (“[i]t is the duty of the reviewing court to affirm the judgment if it can be supported on any theory, although a different theory from that of the trial court”) (citation omitted).
{¶31} In the present case, the trial court did state its reasons, albeit succinctly, for denying Trimble leave: “[a]n email sent by Michael Muldowney does not constitute evidence sufficient to grant a motion for leave to file notice for a new trial for newly discovered evidence.” It is difficult not to agree with this conclusion.
{¶32} Trimble’s newly discovered evidence consists of an unsworn email by a former Portage County Deputy Sheriff (Muldowney) with no apparent connection at all to the events of Trimble’s case. In the email, Muldowney claims that, “on or about
{¶33} Trimble’s burden under
{¶34} The majority may disagree with the trial court’s statement that, “at a minimum, an affidavit is needed,” but that does not render the trial court’s judgment unreasonable or arbitrary, i.e., an abuse of discretion. Regardless of whether an affidavit was required, Trimble did not submit clear or convincing proof of being unavoidably prevented from discovering evidence, but merely of the existence of unauthenticated hearsay. Having failed to meet his burden, the denial of Trimble’s motion for leave should be affirmed.
{¶35} I respectfully dissent.