STATE OF OHIO, Plaintiff-Appellee, - vs - KEVIN WATSON, Defendant-Appellant.
CASE NO. CA2016-08-159
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
4/17/2017
[Cite as State v. Watson, 2017-Ohio-1403.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR87-06-0303
Barney DeBrosse, LLC, Derek A. DeBrosse, 503 South Front Street, Suite 240B, Columbus, Ohio 43215, for defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Kevin Watson, appeals a decision of the Butler County Court of Common Pleas, dismissing his motion for leave to file a motion for new trial and his motion for new trial and/or petition for postconviction relief. For the reasons that follow, we affirm the decision of the trial court.
{¶ 2} We have previously detailed the facts of appellant‘s case as follows:
{¶ 3} On the evening of June 3, 1987, Eli Mast and Krista Toney were checking lottery receipts at Mast‘s New and Used Furniture Store located at 427 South Second Street in Hamilton, Ohio. State v. Watson, 12th Dist. Butler No. CA88-02-014, 1989 Ohio App. LEXIS 1165, *1 (Mar. 31, 1989) (Watson I). Two juveniles, Marlon Moon, age 15, and Willie Prater, age 16, were in the rear of the store playing video games. Id. At approximately 7:30 p.m., a black man entered the store carrying a gym bag and a 12-gauge shotgun. Id. The man ordered Mast to lie face down on the floor and then threw the gym bag at Toney and told her to fill it with money. Id. Moon and Prater ran into a back room, apparently unnoticed by the assailant. Id. at *2. As Toney filled the gym bag with money, the assailant placed the shotgun at the back of Mast‘s head and fired once, killing Mast instantly. Id. He then pointed the gun at Toney and threatened to kill her before running out of the store. Id.
{¶ 4} The police arrived and Toney provided a description of the assailant. Id. The next day, Donald Cook reported that Rodney Henderson had stolen a twelve-gauge shotgun from him the day of the robbery at 6:30 p.m. Id. Cook explained that he was conversing with Henderson and appellant, and then, Henderson left the room and retrieved a shotgun from the trunk of Cook‘s car. Id. at *2-3. According to Cook, Henderson loaded the gun with seven shells and showed it to appellant, who nodded his head in approval when asked, “will this do?” Id. at *3. Cook unsuccessfully protested giving the gun to Henderson. Id. Moon, Prater, and Toney all positively identified appellant as the man they saw in the store in statements made both before and during the trial. Id. at *6. Toney recognized that appellant was the assailant because appellant had stayed at her house the previous night with her stepbrother Rodney Henderson. Id. at *7.
{¶ 5} On October 31, 1987, appellant was adjudged guilty by a jury in the Butler County Court of Common Pleas of one count of aggravated murder with a firearm specification and one count of aggravated robbery with a firearm specification. Id. at *3-4.
{¶ 6} Appellant presented seven assignments of error to this court in his direct appeal. Id. We overruled all seven assignments of error and affirmed the trial court‘s judgment. Id. Appellant appealed his case to the Ohio Supreme Court, which found that a death sentence was an inappropriate penalty, and remanded the case to the trial court for the imposition of a life sentence. State v. Watson, 61 Ohio St.3d 1, 18 (1991) (Watson II). On remand, the trial court imposed a sentence of life imprisonment with eligibility for parole after 30 years for the aggravated murder conviction, to be served consecutively with the terms of incarceration imposed for the aggravated robbery conviction and the firearm specification. State v. Watson, 76 Ohio App.3d 258, 260 (12th Dist.1992) (Watson III). Appellant appealed the trial court‘s sentence to this court, and we affirmed the judgment of the trial court. Id. A motion for leave to appeal to the Supreme Court of Ohio was overruled in State v. Watson, 65 Ohio St.3d 1421 (1992) (Watson IV).
{¶ 7} On September 16, 1996, appellant filed a petition for postconviction relief pursuant to
{¶ 8} On February 16, 2016, appellant filed his instant motion for leave to file a motion for new trial and his motion for new trial and/or petition for postconviction relief. Appellant supported his present motions with his own affidavit and Smith‘s affidavit from
{¶ 9} Appellant avers he has always maintained his innocence and has pursued proving such with reasonable diligence and any delay in bringing the present motions/petition was caused by the Innocence Project dropping his case, which forced him to search for new counsel while incarcerated with limited financial resources. Smith avers that while incarcerated together, Henderson admitted to murdering Mast. Prater avers he was young and very afraid when questioned, so he was eager to please the police; therefore, he has “had misgivings about [his] identification” of appellant and truly does not believe appellant killed Mast. Michelle Williams avers she is related to Henderson and when she was seven years old, she recalls Henderson admitting to shooting Mast. Blair avers she had a child with Henderson and lived with him in the 1990s until their separation in July 1997. Blair further avers that while they lived together, Henderson admitted to killing Mast. Zanetta Williams avers she and Henderson were close friends, and that, during the late 1990s Henderson admitted to killing Mast. Michelle Williams, Blair, and Zanetta Williams all aver Henderson died of an apparent overdose in 2000.
{¶ 10} The trial court denied appellant‘s present motion for leave to file a motion for new trial and motion for new trial and/or petition for postconviction relief without holding an evidentiary hearing and this appeal followed
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MR. WATSON‘S MOTION FOR NEW TRIAL OR IN THE ALTERNATIVE PETITION FOR POSTCONVICTION RELIEF.
{¶ 13} In his sole assignment of error, appellant presents four issues for review. Appellant asserts he has shown by clear and convincing proof that he was unavoidably
{¶ 14} “[A] postconviction proceeding is not an appeal of a criminal conviction but, rather, a collateral civil attack on the judgment.” State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). A trial court‘s decision to grant or deny a postconviction petition pursuant to
MOTION FOR LEAVE
{¶ 15}
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 * * *. 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.
Therefore, appellant must establish by “clear and convincing proof that [he] was unavoidably prevented from the discovery of the evidence upon which he must rely.” Thornton at ¶ 18, discussing
{¶ 16} Because the present matter is well outside the 120-day period, appellant was required to obtain leave of court to file a motion for new trial. State v. Williams, 12th Dist. Butler No. CA2003-01-001, 2003-Ohio-5873, ¶ 17. If leave of court is given to file a motion for new trial, the defendant must then demonstrate the alleged newly discovered evidence “(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.” State v. Petro, 148 Ohio St. 505 (1947), syllabus.
{¶ 17} Likewise, appellant‘s petition for postconviction relief is untimely.
{¶ 18} Appellant argues that he was unavoidably prevented from discovering the affidavits relied upon to support his motion for leave, and therefore, the trial court abused its discretion by finding otherwise. Appellant contends that it would have been impossible for him to produce this evidence at trial because it did not exist at such time and did not become available until the affiants later came forward.
{¶ 19} With respect to Smith‘s affidavit, the trial court properly found it did not constitute newly discovered evidence, as the affidavit was previously addressed by the trial court when it dismissed appellant‘s first petition for postconviction relief, which we affirmed in Watson V.
{¶ 20} The trial court summarily found appellant failed to meet his burden to show by clear and convincing proof he was unavoidably prevented from discovering the remainder of the evidence within the parameters of
{¶ 21} In consideration of Prater‘s affidavit, appellant has failed to demonstrate he was unavoidably prevented from presenting such evidence at trial. Prater testified as a witness for the state at appellant‘s trial in 1987. Appellant, with reasonable diligence, could have discovered Prater‘s “misgivings” concerning his trial testimony within the periods prescribed by
{¶ 22} With respect to the affidavits of Michelle Williams, Blair, and Zanetta Williams, appellant has met his burden to demonstrate he could not have with reasonable diligence discovered and produced such evidence at trial. There is no indication that appellant had knowledge of the existence of the affiants claims within the prescribed periods. Nor was it possible for appellant to possess such knowledge since Henderson‘s alleged admissions did not occur until the 1990s. Therefore, appellant has met his burden of proof to establish unavoidable prevention in seeking leave to file his motion/petition with respect to the affidavits of Michelle Williams, Blair, and Zanetta Williams. Accordingly, the trial court erred by finding appellant did not meet his burden of proof for these three affidavits. However, as demonstrated by our analysis below, this error was not more than an error of law or judgment
MOTION FOR NEW TRIAL AND/OR PETITION FOR POSTCONVICTION RELIEF
{¶ 23} Appellant asserts the affidavits submitted in support of his motion/petition do more than merely impeach or contradict former evidence – as the trial found – but rather, they establish a new trial would likely have resulted in a different result. Appellant further asserts the trial court erred in finding the supporting affidavits unreliable and not credible. Appellant contends the trial court further erred by making these findings without holding an evidentiary hearing. Therefore, appellant argues the trial court abused its discretion by denying appellant‘s motion for new trial and/or petition for postconviction relief.
{¶ 24} The Ohio Supreme Court has stated “[t]he trial court may, under appropriate circumstances in postconviction relief proceedings, deem affidavit testimony to lack credibility without first observing or examining the affiant.” Calhoun, 86 Ohio St.3d at 284. “That conclusion is supported by common sense, the interests of eliminating delay and unnecessary expense, and furthering the expeditious administration of justice.” Id. Likewise, the decision to hold an evidentiary hearing on a motion for new trial is left to the sound discretion of the trial court. State v. Zielinksi, 12th Dist. Warren No. CA2014-05-069, 2014-Ohio-5318, ¶ 16.
{¶ 25} We note that we need not further address Smith‘s affidavit because the trial court properly found that it did not constitute newly discovered evidence. Likewise, appellant failed to meet his burden for unavoidable prevention in regards to Prater‘s affidavit. Nonetheless, even if we assume arguendo appellant had met his burden, as discussed below, Prater‘s affidavit is still insufficient to warrant the granting of appellant‘s motion/petition.
{¶ 26} As stated above, to warrant the granting of a motion for new trial based on newly discovered evidence in a criminal case, appellant must show the new evidence (1)
{¶ 27} In making credibility determinations, the trial court should consider all the relevant factors, including, but not limited to “(1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner‘s efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial.” State v. Calhoun, 86 Ohio St.3d 279, 285 (1999). “[A] trial court may find sworn testimony in an affidavit to be contradicted by evidence in the record by the same witness, or to be internally inconsistent, thereby weakening the credibility of that testimony.” Id.
{¶ 28} Appellant contends the trial court erred by not considering the Calhoun factors in its credibility analyses. Specifically, appellant asserts the trial court should have been limited to the five factors listed in Calhoun, and thus, the trial court‘s consideration of the timeliness of information contained in the affidavits was improper. However, appellant‘s argument that Calhoun provides an exclusive listing of the factors to be considered does not comport with the plain language of the opinion. The case provides that a trial court should “consider all relevant factors“, and then, proceeds to list five specific factors as “among” the relevant factors for a trial court to consider. Accord id. (“Depending on the entire record, one or more of these or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility“). Therefore, contrary to appellant‘s
{¶ 29} Appellant argues the trial court erred in its finding that Prater‘s affidavit was unreliable and not credible because it unequivocally states he does not believe appellant shot Mast. Appellant states Prater was a key prosecutorial witness since he identified appellant as the shooter; therefore, his recanted testimony tends to create a strong probability of a different result at a new trial. Appellant further argues that individually or collectively, the affidavits of Michelle Williams, Blair, and Zanetta Williams create a strong possibility of a different result at trial because they each identify Henderson as the actual shooter.
{¶ 30} We first note that a claim of newly discovered evidence founded in the recantation of the testimony of an important witness does not alone entitle the appellant to a new trial. State v. Wood, 12th Dist. Madison No. CA97-08-034, 1998 Ohio App. LEXIS 2361, *4 (June 1, 1998). Rather, when such a motion is brought, the trial court, acting as the finder of fact, must assess the credibility of the alleged recanting testimony. Id., citing State v. Moore, 99 Ohio App.3d 748, 755 (1st. Dist.1994); see also Taylor v. Ross, 150 Ohio St. 448 (1948), paragraph three of the syllabus (“[r]ecanting testimony ordinarily is unreliable and should be subjected to the closest scrutiny“).
{¶ 31} We find the trial court properly considered Prater‘s affidavit recanting his trial testimony. In so doing, the trial court acknowledged Prater “had misgivings about” his identification of appellant as the shooter and found this position to be contradictory to his trial testimony. The trial court stated recanting affidavits as the basis for a new trial upon newly discovered evidence are viewed with extreme suspicion and determined Prater‘s affidavit lacked reliability and credibility. Appellant argues that the trial court erred by making this finding solely on the basis the recanting testimony contradicts or impeaches the original testimony. However, the record does not reflect appellant‘s assertion. As discussed below,
{¶ 32} Likewise, appellant fails to identify how the affidavits of Michelle Williams, Blair, and Zanetta Williams do not merely impeach or contradict former evidence. At trial, Prater, Moon, and Toney all identified appellant as the shooter. The statements in the three affidavits directly contradict the trial testimony by identifying Henderson as the shooter. Additionally, Henderson‘s alleged admissions to Michelle Williams, Blair, and Zanetta Williams constitute hearsay, as they are statements made by one other than the declarant while testifying, offered in evidence to prove the truth of the matter asserted.
{¶ 33} Appellant asserts the statements fall within a hearsay exception because they are statements against Henderson‘s interest. A hearsay statement is admissible pursuant to
{¶ 34} However,
{¶ 35} The trial court identified the circumstances under which the alleged admissions were made and properly found that they tend to show the untrustworthiness of the statements. The affidavits state that in the 1990s Henderson told the affiants he was the actual shooter; yet the affiants waited over a decade before coming forward with this revelation. In addition to the substantial delay in coming forward, the trial court found that identifying Henderson, who died of an apparent drug overdose in 2000, as the actual shooter was “convenient and suspicious“, and thus, negated the statements trustworthiness. The trial court further discussed that Blair ended her relationship with Henderson in 1997 and Henderson died in 2000, yet she waited until 2011. Similarly, Zanetta Williams avers that her promise to not tell anyone about the admission dissolved when Henderson passed away, yet she waited until 2011. The record clearly supports the trial court‘s findings that the above circumstances indicate the statements’ untrustworthiness; therefore, the alleged admissions constitute inadmissible hearsay.
{¶ 36} Finally, the trial court determined that appellant‘s affidavit was self-serving and
{¶ 37} Accordingly, the trial court did not abuse its discretion by denying appellant‘s motion/petition without holding an evidentiary hearing when it found the affidavits not credible and unreliable, and thus, did not create a strong possibility of a different result.
{¶ 38} Appellant‘s sole assignment of error is overruled.
{¶ 39} Judgment affirmed.
RINGLAND and M. POWELL, JJ., concur.