State v. Williams ( 2016 )

[Cite as State v. Williams, 2016-Ohio-5403.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103257
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MORACE WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-587955-A
BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: August 18, 2016
ATTORNEY FOR APPELLANT
Thomas E. Conway
55 Public Square
Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Edward D. Brydle
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Morace Williams (“Williams”), appeals from his
felonious assault convictions. For the reasons set forth below, we affirm.
{¶2} In August 2014, Williams was charged in a 13-count indictment resulting
from a shooting at an apartment complex on East 40th Street in Cleveland, Ohio. Counts
1-3 charged Williams with improperly discharging a firearm into a habitation and carried
one-and three-year firearm specifications. Counts 4-13 charged him with felonious
assault and carried one-and three-year firearm specifications. All of the victims named
in the indictment lived in or were occupying the individual apartments at the time of the
shooting. Six of the victims are children.1
{¶3} In May 2015, the matter proceeded to a jury trial, at which the following
evidence was adduced.
{¶4} Rayleen Patterson (“Patterson”) testified that on the evening of the shooting,
she was at home with her children and her friend, Michael Jackson (“Jackson”).
Patterson lives on East 40th Street. Her daughter, Kenyatta Grove (“Grove”), and her
daughter’s best friend, Tiesha Braxton (“Braxton”), were hanging out together. While
Patterson was cooking dinner, Grove and Braxton came into the kitchen and told her that
they were going to fight two girls. In response, Patterson told them not to fight anybody.
1 In January 2016, Williams’s co-assailant, Errick Shelton (“Shelton”) was
charged in a separate case in a 16-count indictment, consisting of three counts of
improperly discharging a firearm into a habitation, ten counts of felonious assault,
and three counts of vandalism. Shelton entered into a plea agreement with the
state of Ohio (“state”) and has not filed an appeal as of the date of this opinion.
Then, approximately two hours later Patterson heard some noise outside. She went to
her front door and observed Grove and Braxton arguing with two females and two males,
who were standing outside her door. One of the females, later identified as Taujahree
Borich (“Borich”), stated she was there to fight Braxton. Patterson asked them to leave,
stating that Braxton does not live with her. Braxton and Borich began to fight outside.
Patterson eventually stopped that fight. Thereafter, she observed Grove and the other
female, later identified as Williams’s sister, fighting in the grass, which was closer to her
apartment. Patterson eventually stopped this fight as well. The attention then shifted to
the two males.
{¶5} Patterson testified that she had never seen these two males before and she
could not recall what they looked like at the time of the incident. She testified that one
of the males, who is also known as “Fat Man,” started going “crazy,” yelling and cursing.
“Fat Man” was later identified as Shelton. Then, the other male, who was later
identified as Williams, pulled a gun out and started shooting in the air. She further
testified that Shelton told Williams to give him the gun and then Shelton started shooting.
The bullets hit the housing complex. Eventually, the two girls, Williams, and Shelton
got back into their vehicle and drove away from the scene. Patterson testified that
Williams was the driver of the vehicle. After the vehicle turned the corner, it stopped
and several more shots were fired from the vehicle. Patterson then called 911.
{¶6} Grove did not want to testify, and was declared an adverse witness upon the
state’s request. She testified that she knows Williams and Borich through Braxton.
Borich is Williams’s girlfriend. On the day of the incident, Braxton was over Grove’s
house. At some point, Braxton called Borich and the two of them began arguing over the
phone. The conversation ended with the idea that Borich would come over and she and
Braxton would fight. When Borich arrived, she was with another female, Williams’s
sister, and two males, Williams and Shelton. Braxton and Borich started fighting
outside. As Grove helped stop the fight, Williams’s sister hit her in the head. A fight
then began between Grove and Williams’s sister until Patterson stopped that fight.
Thereafter, Grove heard gunshots. Grove testified she did not know who fired the
gunshots.
{¶7} Grove further testified that even if she viewed her statement to the police, she
still would not know who fired the gunshots because Braxton helped her write her
statement. Grove then read her statement to the jury. In her statement, she said that
after the fighting, “Fat Man” pulled a gun threatening everyone and then gave the gun to
Williams who then started shooting. The shooting continued in Grove’s direction, as the
four of them left in their van. Grove testified that she had previously adopted her
statement as true.
{¶8} When questioned by the state, Grove admitted that while waiting to testify,
she had been outside the courtroom sitting, and going to lunch with Braxton and Borich.
Borich was crying outside the courtroom in the hallway about the case the previous day,
and Braxton helped to console Borich. Eventually, Grove testified that she did observe
the van drive away, and observed gunfire coming from the van toward her and Patterson.
She testified that Williams was driving the van and was the shooter, but then stated that
she was uncertain as to who the shooter was.
{¶9} Braxton testified that on the day of the shooting, she was at Grove’s home.
She called Borich to see if she wanted to go out to eat. Their phone conversation ended
with talk of a fight. Eventually, Williams, Shelton, Borich, and Williams’s sister came to
Grove’s home. Braxton testified that she knows Williams because he is a family friend.
She also knows Shelton through Borich.
{¶10} When the four of them arrived, Braxton and Grove went outside. Borich
walked up to Braxton and they started fighting. Their fight moved towards the tree lawn
in front of Grove’s home. Then, Grove and William’s sister began fighting. She heard
Borich say “[m]ove. They got guns.” Next, Braxton testified that she observed Shelton
and Jackson arguing. She then ran into Grove’s home. She noticed that Patterson was
not inside, so she went back outside. At this point, she observed Shelton shooting at
Patterson and toward the house. She testified that she never observed Williams with a
gun. Braxton further testified that she was not truthful when she wrote in her statement
that Williams had a gun. She lied because she was mad at Williams. Braxton also
admitted that she told Grove what to say in her police statement.
{¶11} Borich testified that she is in a relationship with Williams and has a child
with him. Borich and Braxton were best friends for years. On the day of the incident,
Borich was with Williams, Shelton, and Williams’s sister. Braxton called her and they
made plans to go out to eat, but a verbal argument ensued over the phone. The four of
them then went to Grove’s home, with Williams driving. Borich testified that when they
arrived, she and Braxton began to fight. When they stopped fighting, Grove and
Williams’s sister started fighting. Thereafter, Shelton and Jackson got into an
altercation. Shelton pulled out a gun and started shooting. Borich never observed
Williams with a gun. She testified that Williams got into the van when the shooting
occurred. Shelton was shooting at Jackson, who was running back toward the house.
Williams drove the van when they left. Borich testified that there were no gunshots
coming from the van as they left the scene.
{¶12} Jackson testified that he is Patterson’s boyfriend. He knows her daughter,
Grove, and Grove’s friend, Braxton. He does not know Williams, Borich, and Shelton.
At the time of the incident, Jackson heard commotion outside. He went to the front door
and observed two females and two males outside, along with Grove and Braxton. He
described one of the males as a “heavy-set, brown-skinned guy with a hoodie,” who was
later identified as Shelton. He described the other male as “a skinny dark-skinned guy.”
He testified that the females were fighting in two separate fights, and Patterson was trying
to stop the fights.
{¶13} As he went to help Patterson stop the fights, the heavy-set male pulled a gun
and told him to “move, walk away.” Jackson then walked back into the house. He
partially opened the front door and looked outside. He observed the skinny,
dark-skinned male, who was by the tree lawn, shoot the gun one time. After the gunfire,
he left the front door and went into the house. Jackson went back to the front door for a
second time and told everyone to get back in the house. There were approximately five
or six gunshots fired toward the house when Jackson came to the door. Jackson testified
that the heavy-set male was shooting the gun this time. Grove and Braxton ran into the
house, but Patterson was scared and did not move.
{¶14} When the police arrived, Jackson stayed in his room because he had an
outstanding warrant. At a later point in time, he did speak with police and was shown
two photo arrays. He was able to identify Shelton in one of the photo arrays. He was
not able to identify anyone in the second photo array.
{¶15} Cleveland Metropolitan Housing Authority Police Officer Robert Paolucci
(“Officer Paolucci”) testified that he responded to the scene. He spoke with Patterson,
Grove, and Braxton. He gave Grove and Braxton statements and asked them to write
down what happened. He stayed with them while they each wrote their own statement.
While he was with them, Officer Paolucci testified that he never observed one of the
females tell the other female what to write in her statement. As part of the investigation,
Patterson was shown a photo array of the suspects on two occasions, but was unable to
identify either Williams or Shelton. Grove and Braxton were shown a photo array three
days after the incident and both identified Williams as the shooter. Grove identified
Williams as the person who “shot into the house and * * * a few times in the air and then
he got in the mini van and shot * * * a few times more out of the car while pulling off.”
She testified at trial, however, that she picked Williams as the assailant because Braxton
instructed her to do so. Braxton testified at trial that she lied to the police when she
identified Williams as the shooter because she was mad at him.
{¶16} A 911 call from an unidentified female was played for the jury. In that call,
the female reported hearing five to six gunshots at Patterson’s home on East 40th Street.
She stated there were girls fighting and there were two males, one was light in
complexion and the other had a dark-skinned complexion. The male with the dark
complexion had a gun. One male was wearing a hooded sweatshirt and the other male
was wearing a white t-shirt and had a beard. She heard one male tell the other male to
give him the gun. As she turned around to walk away, she started hearing gunshots.
{¶17} At the conclusion of trial, the jury found Williams guilty of felonious
assault, with the accompanying firearm specifications, as charged in Counts 4-13. The
jury found him not guilty of improperly discharging a firearm into a habitation as charged
in Counts 1-3.
{¶18} Approximately one month after the conclusion of trial, Williams filed a
motion for a new trial based on newly discovered exculpatory evidence. Williams
argued for a new trial based on the statements of Shelton and Jackson. Attached to his
motion was an affidavit of a private investigator, who averred that he took a statement
from Shelton and Jackson. He averred that Shelton’s statement indicated the following:
(1) Shelton never observed Williams with a gun; (2) Williams did not give him a gun; (3)
he and Williams did not plan the shooting beforehand; and (4) there was no gunfire
coming from the vehicle as Williams drove away from the scene. The investigator
further averred that Jackson’s statement indicated the following: (1) Jackson never
observed Williams with a gun, nor did he observe Williams hand a gun to anyone;
(2) Jackson observed Shelton engage in all of the shooting; and (3) Jackson testified at
trial that Williams engaged in the shooting because “someone else told him so.” The
state opposed, arguing that Williams did not produce new admissible evidence. The
court held a hearing on Williams’s motion. After hearing arguments from both Williams
and the state, the trial court denied the motion and proceeded to sentencing.2
{¶19} The trial court sentenced Williams to two years in prison on each count to be
served concurrently. The court merged the one-year firearm specification on each count
into the three-year firearm specification on each count. The court ordered that the
three-year firearm specification on Counts 4 and 5 be served prior to and consecutive with
the base charge of two years on Counts 4 through 13. The court further ordered that the
remaining firearm specifications be served concurrently with each other, for a total of
eight years in prison. The court ordered that judicial release for Williams be considered
after six years in prison.
{¶20} Williams now appeals, raising the following three assignments of error for
review.
Assignment of Error One
2Williamsfiled a supplement to his motion for a new trial on July 1, 2015.
In the supplement, he included notarized statements from Shelton and Jackson.
This supplement was not before the trial court at the time of hearing.
The trial court erred in failing to grant [Williams’s] motion for judgment of
acquittal as to all counts of the indictment, including Counts Four through
Thirteen.
Assignment of Error Two
The jury’s verdicts of guilty as to all counts of which [Williams] was found
guilty were against the manifest weight of the evidence.
Assignment of Error Three
The trial court erred in not granting [Williams’s] motion for new trial based
on newly discovered exculpatory evidence.
Motion for Acquittal
{¶21} In the first assignment of error, Williams argues the court erred when it
denied his motion for acquittal. Specifically, he argues there was insufficient evidence to
convict him of felonious assault under the complicity theory, with Shelton as the principal
offender.
{¶22} Under Crim.R. 29(A), a trial court “shall not order an entry of acquittal if
the evidence is such that reasonable minds can reach different conclusions as to whether
each material element of a crime has been proved beyond a reasonable doubt.” State v.
Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. A motion for judgment
of acquittal under Crim.R. 29 should only be granted where reasonable minds could not
fail to find reasonable doubt. State v. Apanovitch, 33 Ohio St.3d 19, 23, 514 N.E.2d 394(1987), citing Bridgeman.
{¶23} “The test an appellate court must apply in reviewing a challenge based on a
denial of a motion for acquittal is the same as a challenge based on the sufficiency of the
evidence to support a conviction. See State v. Bell (May 26, 1994), 8th Dist. [Cuyahoga]
No. 65356, 1994 Ohio App. LEXIS 2291.” State v. Turner, 8th Dist. Cuyahoga No.
88489, 2007-Ohio-5449, ¶ 72. The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d
460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of
the evidence as follows:
Raising the question of whether the evidence is legally sufficient to support
the jury verdict as a matter of law invokes a due process concern. State v.
Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
In reviewing such a challenge, “[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d
259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v.
Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶24} Williams was convicted of felonious assault in violation of
R.C. 2903.11(A)(2), which provides that “[n]o person shall knowingly * * * [c]ause or
attempt to cause physical harm to another * * * by means of a deadly weapon or
dangerous ordnance.”
{¶25} Ohio’s complicity statute, R.C. 2923.03(A), provides that “[n]o person,
acting with the kind of culpability required for the commission of an offense, shall do any
of the following: * * * (2) Aid or abet another in committing the offense.” A person aids
or abets another when he supports, assists, encourages, cooperates with, advises, or
incites the principal in the commission of the crime and shares the criminal intent of the
principal. State v. Johnson, 93 Ohio St.3d 240, 245-246, 2001-Ohio-1336, 754 N.E.2d
796. “Such intent may be inferred from the circumstances surrounding the crime.” Id.
at 246.
{¶26} Aiding and abetting may be shown by both direct and circumstantial
evidence, and participation may be inferred from presence, companionship, and conduct
before and after the offense is committed. State v. Cartellone, 3 Ohio App.3d 145, 150,
444 N.E.2d 68 (8th Dist.1981), citing State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d
884 (4th Dist.1971). Aiding and abetting may also be established by overt acts of
assistance such as driving a getaway car or serving as a lookout. Id., citing State v.
Trocodaro, 36 Ohio App.2d 1, 301 N.E.2d 898 (10th Dist.1973).
{¶27} Williams argues that there is no evidence that he aided or abetted Shelton in
the shooting at the apartment complex. He relies on the testimony of Groves, Braxton,
and Borich, who testified that they did not observe him with a gun. He contends that
Shelton implusively fired the gun at Jackson, after his confrontation with Jackson.
{¶28} While Williams attempts to separate himself from Shelton, a review of the
record does not support such a finding. The record demonstrates that Williams drove
himself, Shelton, his sister, and his girlfriend to Patterson’s house for a fight. Williams
and Shelton watched as Williams’s sister and girlfriend fought with Groves and Braxton.
Williams fired off a gun in the air, then handed over the gun to Shelton, who was in an
agitated state from his argument with Jackson. Both Patterson and the unidentified 911
caller described how one of the males (Shelton) asked for the gun from the other male
(Williams) and started firing the gun. Patterson testified “[the gun] was in [Williams’s]
hands.” Williams then fled the scene with Shelton, his sister, and his girlfriend. As
Williams drove away, more gun shots were fired from the vehicle.
{¶29} Based on the foregoing, we conclude that any rational trier of fact could
have found that Williams knowingly aided and abetted the essential elements of felonious
assault. Therefore, it was not error for the trial court to deny Williams’s motions for
acquittal.
{¶30} Accordingly, the first assignment of error is overruled.
Manifest Weight of the Evidence
{¶31} In the second assignment of error, Williams argues that his convictions are
against the manifest weight of the evidence. In contrast to a sufficiency argument, a
manifest weight challenge questions whether the state met its burden of persuasion.
State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13, citing
Thompkins, 78 Ohio St.3d at 390, 1997-Ohio-52, 678 N.E.2d 541. The Ohio Supreme
Court in State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25,
stated:
[T]he reviewing court asks whose evidence is more persuasive — the
state’s or the defendants? * * * “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
with the factfinder’s resolution of the conflicting testimony.” [Thompkins
at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
L.Ed.2d 652.
{¶32} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight
grounds is reserved for “‘the exceptional case in which the evidence weighs heavily
against the conviction.’” Id., quoting Martin.
{¶33} We note that when considering a manifest weight challenge, the trier of fact
is in the best position to take into account inconsistencies, along with the witnesses’
manner, demeanor, gestures, and voice inflections, in determining whether the proffered
testimony is credible. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶
26; see also State v. Lilliard, 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385,
2013-Ohio-4906, ¶ 93 (In considering the credibility of witnesses on a manifest weight
challenge, an appellate court is “guided by the presumption” that the jury, or the trial
court in a bench trial, is “‘best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.’” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984)). Therefore, we afford great deference to the factfinder’s
determination of witness credibility. State v. Ball, 8th Dist. Cuyahoga No. 99990,
2014-Ohio-1060, ¶ 36.
{¶34} Here, Williams claims the “jury lost its way” because Patterson was not
credible. Specifically, he refers to her testimony, in which she stated that she did not
“remember a lot of stuff” because it happened “so long ago.” He also refers to her
testimony that Williams gave Shelton the gun, which was contradicted by Groves,
Braxton, Borich, and Jackson.
{¶35} In the instant case, the jury observed Patterson’s appearance and demeanor,
heard her testimony, and found it to be credible. Her testimony was further supported by
the unidentified 911 caller, who stated one of the males (Shelton) asked for the gun from
the other male (Williams) and started firing the gun. Moreover, Groves, Braxton, and
Borich may have had an ulterior motive when testifying. Borich testified that Williams
is her boyfriend and the father of her child. Groves testified that Braxton told her to
write in her statement to the police that Williams was the shooter. Braxton testified that
she lied to the police, telling them that Williams was the shooter, because she was upset
with him.
{¶36} We are mindful that it “‘[i]t is the province of the [trier of fact] to determine
where the truth probably lies from conflicting statements, not only of different witnesses
but by the same witness.’” State v. Jennings, 10th Dist. Franklin No. 09AP-70,
2009-Ohio-6840, ¶ 56, quoting State v. Haynes, 10th Dist. Franklin No. 03AP-1134,
2005-Ohio-256, ¶ 24; State v. Hill, 8th Dist. Cuyahoga No. 99819, 2014-Ohio-387 ¶ 38.
The trier of fact in this case, was in the best position to weigh the evidence and evaluate
witness credibility. The jury was entitled to believe or disbelieve all, part, or none of a
witness’s testimony. After examining the entire record, we cannot say that the jury lost
its way or created a manifest miscarriage of justice in convicting Williams of felonious
assault.
{¶37} Accordingly, the second assignment of error is overruled.
Motion for a New Trial
{¶38} In the third assignment of error, Williams argues the court erred when it
denied his motion for a new trial. Specifically, he contends that Shelton’s and Jackson’s
statement by virtue of the private investigator’s affidavit is new evidence, which
demonstrates his actual innocence. The state maintains that the investigator’s affidavit
is hearsay and lacks credibility.
{¶39} A trial court’s decision to grant or deny a motion for a new trial is not
subject to reversal on appeal absent an abuse of discretion. State v. Schiebel, 55 Ohio
St.3d 71, 76, 564 N.E.2d 54 (1990), syllabus. “The term ‘abuse of discretion’ connotes
more than an error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶40} Crim.R. 33 governs motions for a new trial and provides in pertinent part:
(A) Grounds. A new trial may be granted on motion of the defendant for
any of the following causes affecting materially his substantial rights:
***
(6) When new evidence material to the defense is discovered, which the
defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at the
hearing on the motion, in support thereof, the affidavits of the witnesses by
whom such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing of
the motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.
{¶41} To warrant the granting of a motion for a new trial in a criminal case, based
on the grounds of newly discovered evidence, the new evidence must demonstrate that it:
(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.
Lopa, 96 Ohio St. 410, approved and followed.)
State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.
{¶42} When reviewing motions for new trial, a trial court may weigh the
credibility of affidavits submitted in support of the motion in determining whether to
accept the affidavit as true statements of fact. State v. Taylor, 8th Dist. Cuyahoga No.
88020, 2007-Ohio-825, ¶ 15, citing State v. Coleman, 2d Dist. Clark Nos. 04CA43,
04CA44, 2005-Ohio-3874.
{¶43} In the instant case, Williams filed his motion for new trial based on newly
discovered exculpatory evidence on June 25, 2015. In support of his motion, Williams
attached an affidavit from a private investigator. The state filed its brief in opposition
on June 30, 2015, which was the same day as sentencing. Before sentencing, the trial
court held a hearing on Williams’s motion.
{¶44} At issue, was the affidavit attached to Williams’s motion. In this affidavit,
the private investigator averred that he took a statement from Shelton and Jackson. He
averred that Shelton’s statement indicated the following: (1) Shelton never observed
Williams with a gun; (2) Williams did not give him a gun; (3) he and Williams did not
plan the shooting beforehand; and (4) there was no gunfire coming from the vehicle as
Williams drove away from the scene. The investigator further averred that Jackson’s
statement indicated the following: (1) Jackson never observed Williams with a gun, nor
did he observe Williams hand a gun to anyone; (2) Jackson observed Shelton engage in
all of the shooting; and (3) Jackson testified at trial that Williams engaged in the shooting
because “someone else told him so.” The state opposed, arguing that Williams did not
produce new admissible evidence. The court held a hearing on Williams’s motion and
found the following:
I am looking at this, the affidavit of [the private investigator], and I’m going
to take these statements as if they were provided in a separate affidavit.
I’m looking at them and the merits of the statements provided by Errick
Shelton and Michael Jackson.
So we all know, we’re here under Criminal Rule 33(A)(6). It’s a motion
for a new trial based on newly discovered evidence. The defense filed this
motion within the required 120 day time limit, and to warrant the Court’s
granting of a new trial, the newly discovered evidence must at least disclose
a strong probability that it will change the result if a new trial is granted.
It must not be merely cumulative to the former evidence.
Now this decision of whether or not to grant a new trial is based solely on
the trial court’s discretion, so the affidavit contained here has statements
from two — one witness, one additional individual from witness Michael
Jackson and the unindicted co-conspirator, Errick Shelton, so Michael
Jackson’s statement contradicts his trial testimony the way I see it, and he
now states he never saw the defendant with a gun and that he only testified
at trial that he saw Mr. Williams with a gun because someone told him to
testify to such.
Errick Shelton’s affidavit, not his affidavit, but his statement in the affidavit
of [the private investigator] swears that he did not plan, talk to, talk about
the shooting with Mr. Williams and that Mr. Williams didn’t possess a gun
and never handed him a gun.
In order to satisfy the high burden set forth in Petro, [148 Ohio St. 505, 76
N.E.2d 370], which is cited by the defense you have to meet all the
required prongs of Petro, and as it relates to Michael Jackson’s statements
in this, [the private investigator’s] affidavit, I find that the newly discovered
evidence to be lacking in this area.
Although the statement was made after trial, Mr. Jackson was brought into
court as stated by the defense on a material witness warrant, and both the
State and the defense were given the opportunity to speak with Mr. Jackson
regarding his testimony prior to taking the stand.
Further, Mr. Jackson’s statement in this affidavit that Mr. Williams did not
possess a handgun can be considered cumulative to the testimony of Miss
Borich, Miss Grove and Miss Braxton, all three of whom testified that
Morace did not have a handgun on the night in question.
His affidavit, the statements in the affidavit of Mr. Jackson, contradicts his
former testimony, and I do not believe they disclose a strong probability that
it would change the result if a new trial is granted.
This trial was ripe with witnesses who contradicted their own prior
statements as well as the statements of other testifying witnesses. It’s a
unique situation with Mr. Shelton[,] but I do not find it meets the required
prongs of Petro.
Again his statement was given at the trial but his identity was known to
everyone both prior to and during the trial. I know he has been avoiding
or potentially avoiding detection but his identity was known. The
prosecution subpoenaed him. He did not come in. The defense didn’t
list him as a potential witness, nor did they subpoena him or subpoena —
ask this Court to bring him in as a material witness, so I can’t say that due
diligence was exercised in this case before trial to have him come in and
make these statements.
We don’t know if he would exercise his Fifth Amendment right. I’m not
going to speculate that he would or wouldn’t[,] but in this case I can’t say
that those factors are met.
And even if he was brought in here and he testified consistent with the
statements made in [the investigator’s] affidavit, again it’s cumulative
evidence in that another person is stating that Morace Williams did not have
a gun on him that night, and I can’t find that that’s enough or that’s enough
to say there is a strong probability that a new, that a different decision
would be reached.
We have a very clear jury instruction that the testimony of one witness if
believed is enough to prove any fact of consequence. We’re not sure
exactly who the jury believed or put their weight on, but I have to consider
based on everything in the verdict, that was Rayleen Patterson because she
did testify that she saw the defendant. She was right next to him and that
he handed a gun to Mr. Shelton who then shot up the residence, so I cannot
say that there is a strong probability that given this evidence the outcome of
trial would be different, so for all those reasons I’m going to deny Mr.
Williams’s motion for a new trial.
{¶45} It is clear from the record that the trial court considered the Petro factors
and the credibility of the affidavits. In doing so, the trial court did not find that there
was a strong probability that given this evidence the outcome of trial would be different.
Based on the foregoing analysis, we cannot say the trial court abused it discretion in
denying Williams’s motion for a new trial.
{¶46} Accordingly, the third assignment of error is overruled.
{¶47} Judgment is affirmed.
It is ordered that appellee recover of 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR