State v. WalterState v. Walter
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 17, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-06-485250-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin, Assistant Prosecuting Attorney, for appellee.
Terrance J. Walter, pro se.
SEAN C. GALLAGHER, J.:
{¶ 1} Terrance J. Walter appeals from the denial of a motion for leave to file a delayed motion for a new trial and a successive petition for postconviction relief, both of which were filed over 12 years after the final entry of conviction was entered. Walter and his codefendant Antonio Campbell were convicted for the
{¶ 2} This is not Walter‘s first foray into postconviction proceedings. After his direct appeal in State v. Walter, 8th Dist. Cuyahoga No. 90196, 2008-Ohio-3457, Walter has filed an application for reopening pursuant to
{¶ 3} In addition, Walter filed a motion for leave to file a motion for new trial in 2009, in which he argued that his codefendant was the shooter. Walter, 8th Dist. Cuyahoga No. 106984, 2018-Ohio-4415, at ¶ 4. Walter attached an affidavit
{¶ 4} Following the numerous, unsuccessful attempts to challenge various aspects of his convictions, Walter sought a copy of the police report created in relation to his case through the help of a third party and Walter‘s uncle in late 2016. Walter obtained the police report in the fall of 2017, but claims he never reviewed the information personally because the third party and his uncle were presenting the information to various attorneys — presumably in the attempt to circumvent the general proposition that a delayed motion for a new trial must be filed within a reasonable time after discovering the new evidence. State v. Lemons, 11th Dist. Trumbull No. 2019-T-0001, 2019-Ohio-5060, ¶ 13. According to Walter, the information was passed around to at least two attorneys, with the materials being returned to Walter in February 2019. In his motions, Walter claimed that the police
{¶ 5} Walter‘s appellate briefing focuses on the standard under
{¶ 6}
{¶ 7} To obtain leave,
{¶ 8} In this case, Walter‘s claims fail at the most basic of levels — nothing in the record demonstrates that the police report or its contents constitute “newly discovered evidence” under
{¶ 9} Walter alleges that the contents of the police report were not made available to him before his trial; however, there is no requirement for this to have occurred. State v. Bluford, 8th Dist. Cuyahoga No. 83921, 2004-Ohio-4088, ¶ 26; State v. Jones, 10th Dist. Franklin No. 16AP-13, 2016-Ohio-5387, ¶ 9. Because
{¶ 10} Moreover, according to the state, the contents of the police report, identified as newly discovered evidence by Walter, were not only known to defense counsel before trial, but the subject of cross-examinations of trial witnesses — demonstrating that the contents of the police report were available to Walter‘s trial counsel before trial. It is self-evident that Walter is attempting to argue that a newly obtained document must necessarily constitute “newly discovered” evidence. We cannot agree with such a broadly asserted conclusion.
{¶ 11} On this point, Walter argues that there are several pieces of evidence revealed by the police report he obtained in 2017: (1) a statement from the DNA expert regarding the fact that Walter‘s codefendant was identified as a contributor to the DNA material found on the mask but that the DNA profile was also linked to a case in Richland County; (2) several statements regarding the victim‘s involvement in drug trafficking; (3) unspecified statements from a witness allegedly inconsistent
{¶ 12} As the state notes, all of the supposed “newly identified” evidence was thoroughly discussed at trial: the DNA evidence from the ski mask implicating Walter‘s codefendant was the subject of extensive cross-examination, including the fact that Walter‘s DNA was not conclusively identified from material found in the mask; the FBI agent was called as a witness at trial and subject to cross-examination on the suspected motive of the shooting; Walter‘s argument regarding the drug trafficking is based on witness statements regarding a financial transaction that had nothing to do with drug trafficking (and thus seems irrelevant to the argument presented); Walter‘s counsel was aware of the trial witness‘s indictment and the statements regarding Walter‘s alleged threats to a witness‘s family based on the trial cross-examination exploring such; any discrepancies regarding the codefendant‘s possession of a particular firearm were discussed at trial, including the fact that the witness did not see the codefendant in possession of the firearm on the day of the shooting; and finally, there was trial testimony regarding the victim‘s child witnessing the events surrounding the shooting. Walter, 8th Dist. Cuyahoga No. 90196, 2008-Ohio-3457, ¶ 3, 8, 9, 12, and 14. In short, none of Walter‘s arguments
{¶ 13} In light of the fact that Walter has not presented any evidence demonstrating the police report and its contents are “newly discovered,” the trial court did not abuse its discretion in denying the motion for leave to file a delayed motion for a new trial. Further, Walter‘s failure to provide any argument in support of error in the trial court‘s denial of the petition for postconviction relief precludes our ability to review that decision in its entirety.
{¶ 14} Walter‘s sole assignment of error is 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.
It is ordered that a special mandate issue out of this court directing the common pleas court 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.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR