State v. Braddy ( 2018 )

[Cite as State v. Braddy, 2018-Ohio-4904.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-17-1302
L-17-1303
Appellee
Trial Court No. CR0199902160
v.
Wayne Braddy
Karl Willis DECISION AND JUDGMENT
Appellants Decided: December 7, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, Andrew J.
Lastra and Brenda J. Majdalani, Assistant Prosecuting Attorneys,
for appellee.
Jennifer Paschen Bergeron and Mark A. Godsey, for appellants.
*****
SINGER, J.
{¶ 1} In this consolidated appeal, appellants, Karl Willis and Wayne Braddy,
appeal the November 15, 2017 judgment of the Lucas County Court of Common Pleas,
denying their motions for new trial. For the reasons which follow, we affirm.
Assignment of Error
{¶ 2} Appellants set forth the following assignment of error:
The trial court erred when it denied Appellants a new trial when new
evidence reviewed in the context of the entire record of the case shows their
co-defendant acted alone and they are innocent.
Background
{¶ 3} In the early morning hours of June 15, 1998, 13-year-old Maurice Purifie
was found murdered on Horace Street in Toledo, Ohio. Police began an investigation but
developed no leads until later that summer, when a phone call was received from a
woman who said her name was Shondrea Rayford.1 The caller said her boyfriend was
Travis Slaughter and he was involved with Purifie’s murder.
{¶ 4} Slaughter was arrested on August 26, 1998, and was subsequently
questioned by police. After extensive interrogation, Slaughter admitted he was present
when the victim was killed, but blamed Willis and Braddy for the murder.
{¶ 5} On September 15, 1998, Slaughter was indicted for complicity to murder.
During further interrogation, Slaughter changed his story numerous times with respect to
his involvement with the murder.
{¶ 6} On July 7, 1999, Slaughter pled guilty to involuntary manslaughter and
aggravated robbery, as well as another crime unrelated to Purifie’s murder. On July 9,
1
Rayford is also referred to as Shondrea Reyford and Shondrea Winfree in the record.
We will refer to her only as Rayford.
2.
1999, the court accepted the plea and Slaughter was sentenced to ten years for the killing
and three years on a gun specification. Slaughter was also sentenced to an additional
prison term for the unrelated crime to which he pled.
{¶ 7} On July 21, 1999, Willis and Braddy were indicted for aggravated murder.
The duo denied any involvement in Purifie’s murder. At their trial, in early January
2000, Slaughter was called as a witness and testified against Willis and Braddy, claiming
Purifie was robbed and murdered over drug money. Rayford was also called to testify at
trial, pursuant to a subpoena. After she took the witness stand and answered some
preliminary questions, Rayford refused to answer any questions about the murder and
would not testify further. Rayford was found in contempt of court and sentenced to 30
days in jail; she served all 30 days.
{¶ 8} Altogether, the trial lasted approximately 10 hours. The jury then
deliberated for about 26 hours and found Willis and Braddy guilty of aggravated murder
and aggravated robbery with firearm specifications. The court sentenced Willis and
Braddy to life in prison for aggravated murder, with parole eligibility after 20 years, 10
years for aggravated robbery to run concurrently with the aggravated murder sentence,
and a three-year mandatory, consecutive term for the firearm specifications. Willis and
Braddy timely appealed; we affirmed. State v. Willis, 6th Dist. Lucas No. L-00-1041,
2001 Ohio App. LEXIS 749 (Mar. 2, 2001) and State v. Braddy, 6th Dist. Lucas No.
L-00-1049, 2001 Ohio App. LEXIS 460 (Feb. 9, 2001).
3.
{¶ 9} In 2006, Willis filed a motion for leave to file a motion for new trial, and in
a reply memorandum in support, attached Slaughter’s affidavit. In the affidavit, dated
September 4, 2002, Slaughter recanted his trial testimony and averred that Willis and
Braddy were innocent. On July 5, 2006, the trial court denied Willis’s motion finding
there was no compelling reason to accept Slaughter’s recantation over his trial testimony.
Willis appealed; we affirmed. State v. Willis, 6th Dist. Lucas No. L-06-1244, 2007-Ohio-
3959.
{¶ 10} In March 2013, Willis and Braddy filed petitions for postconviction relief
and motions for leave to file motions for new trial. The state filed motions for summary
judgment with respect to the postconviction relief petitions; the trial court granted the
motions on March 18, 2015. Willis and Braddy appealed; we affirmed. State v. Willis,
6th Dist. Lucas Nos. L-15-1098, L-15-1101, 2016-Ohio-335, 58 N.E.3d 515 (6th Dist.).
{¶ 11} Also on March 18, 2015, the trial court granted the motions for leave to file
motions for new trial, finding that Willis and Braddy showed, by clear and convincing
evidence, they were unavoidably prevented from discovering the new evidence, which
was the information contained in Rayford’s affidavit. In the affidavit, dated March 4,
2012, Rayford averred, inter alia, that Slaughter acted alone in committing the murder.
{¶ 12} Willis and Braddy filed their motions for new trial on March 25, 2015, and
a hearing was held on May 25, 2017. On November 13, 2017, the trial court issued its
judgment entry denying the motions for new trial. The court found based on the record
including Rayford’s affidavit and her testimony, that it “cannot say there is a ‘strong
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probability that it will change the result if a new trial is granted.’” Willis and Braddy
appealed.
Assignment of Error
{¶ 13} Appellants argue the trial court erred when it denied them a new trial as the
new evidence shows Slaughter acted alone and appellants are innocent. Appellants
contend there is no evidence that more than one perpetrator was involved in the murder,
and there is no physical evidence indicating the identity of the murderer. Appellants
submit they were only implicated in the murder after Slaughter changed his story about
the crime, and Slaughter’s trial testimony provided the only evidence of appellants’
involvement with the murder. Appellants observe Slaughter has recanted his trial
testimony and admitted he acted alone in beating and shooting Purifie.
{¶ 14} Appellants further argue Rayford has now revealed new information which
confirms that Slaughter acted alone in committing the murder and Slaughter intentionally
misled the state into prosecuting appellants. Appellants note Rayford spent 30 days in
jail for contempt rather than testifying against them at their trial. Appellants assert the
state expected Rayford to testify at trial that she heard Willis and Braddy confess to their
involvement in the murder, but Rayford never heard them confess. Appellants argue
Rayford heard Slaughter confess that he killed Purifie over a rejected sexual advance, not
drug money. Appellants claim the new evidence presented by Rayford, that Slaughter
acted alone, creates a strong probability of an acquittal at a new trial.
5.
{¶ 15} The state counters appellants’ assertion that Slaughter recanted his trial
testimony is not new evidence; rather, it is a contradiction of Slaughter’s previous
statements. The state contends the jury heard all about Slaughter’s previous lies,
observed his demeanor at trial and was informed about Slaughter’s plea agreement.
{¶ 16} With respect to Rayford’s affidavit, the state claims it is not newly
discovered evidence. The state asserts, despite appellants’ contention that Rayford’s
affidavit provides compelling evidence not available to appellants before trial, the facts in
existence during trial establish that the information Rayford allegedly had in her
possession, she held prior to trial. The state contends Rayford’s attempt to clarify,
change, explain or create additional information is a contradiction of both her prior
testimony and statements she made to law enforcement, and serves to impeach her
credibility. Regarding Rayford as a witness at the hearing, the state submits she testified
to very little and said effectively nothing on the stand. The state maintains appellants’
claims are without merit and do not support granting their motions for new trial.
Law
{¶ 17} A motion for a new trial pursuant to Crim.R. 33 is left to the sound
discretion of the trial court and will not be disturbed on appeal absent an abuse of
discretion. State v. Scheibel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one of
the syllabus.
{¶ 18} In their motions, appellants allege grounds for a new trial pursuant to
Crim.R. 33(A)(6), which provides:
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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. * * *.
{¶ 19} In State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus, the
Supreme Court of Ohio set forth factors which must be present to warrant the granting of
a motion for a new trial in a criminal case based on newly discovered evidence. The
defendant must show that the new 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.” Id.{¶ 20} In the context of a motion for new trial, courts view newly discovered
evidence where a witness purportedly recants previous testimony with the utmost
suspicion. Taylor v. Ross, 150 Ohio St. 448, 83 N.E.2d 222 (1948), paragraph three of
the syllabus (“[r]ecanting testimony ordinarily is unreliable and should be subjected to
the closest scrutiny”). Further, “recanting statements present a question primarily for the
trial court to determine whether they are of such a character as to justify setting aside the
verdict.” Id. at paragraph four of the syllabus. When a witness claims to recant prior
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testimony, this recantation “mandates that the trial court make two determinations:
(1) which of the contradictory testimony offered by the recanting witness is credible and
true, and if the recanted testimony is to believed; (2) would the evidence materially affect
the outcome of the trial?” Toledo v. Easterling, 26 Ohio App.3d 59, 61-62, 498 N.E.2d
198 (6th Dist.1985).
{¶ 21} Even in situations which do not involve a witness recanting prior trial
testimony, “the credibility determination is still the paramount concern of the trial court
in assessing proposed newly discovered evidence in support of a motion for a new trial.”
State v. Phillips, 10th Dist. Franklin No. 14AP-362, 2014-Ohio-4947, ¶ 16. In Phillips,
the witness called to testify at the hearing on the motion for new trial did not testify at the
trial, but had been interviewed by counsel prior to trial. Id. at ¶ 13, 15-16. Thus, the
appellate court found that the situation was “analogous to a motion for new trial based on
a witness recanting his or her trial testimony.” Id. at ¶ 16. The appellate court further
found the trial court properly denied the motion for new trial based on newly discovered
evidence, because “[a]s the finder of fact, the trial court determined the witness lacked
credibility and the new evidence was not sufficient to warrant a new trial.” Id.
Analysis
{¶ 22} Here, appellants contend the trial court should have granted them new trials
because Rayford’s testimony, if offered at a new trial, would result in acquittals.
{¶ 23} The trial court found in its judgment entry that neither Rayford’s affidavit
nor her testimony at the hearing on the motions for new trial “creates ‘a strong
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probability that it will change the result if a new trial is granted.’” The court found
Rayford’s affidavit “does little more than add to [the] laundry list of credibility concerns
about Slaughter which are already contained in the trial record.” The court further found
that Rayford “was able to testify to very little at the hearing. She clearly did not have a
firm grasp of the events she recalled in her affidavit * * * and said effectively nothing on
the stand.” The court noted Rayford had such a weak grasp of the contents of her
affidavit that counsel had to be appointed to represent her at the hearing so “she made no
missteps by which she may perjure herself on the stand.”
{¶ 24} As set forth above, the first factor of Petro requires that the new evidence
must disclose a strong probability that it will change the outcome at trial if a new trial is
granted. In addition, as indicated in Phillips, the credibility of a witness is the utmost
concern of the trial court in considering proposed newly discovered evidence. Upon
review of the entire record of the case, including Rayford’s affidavit and the transcript of
the hearing on the motions for new trial, we agree with the trial court’s conclusion that
Rayford lacked credibility as a witness, and this new evidence did not have a strong
probability of changing the result if a new trial were granted.
{¶ 25} The record reveals Rayford, in her affidavit, set forth when and where she
met Travis and, in general terms, what their relationship entailed. Rayford averred the
following in her affidavit. Travis told her, in July 1998, that he shot somebody named
Maurice. In describing the murder, Travis said Maurice was the only other person in the
parking lot; Travis did not mention any other names. Travis said he and Maurice argued
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because Travis asked Maurice if Travis could pay him to perform oral sex, and Maurice
threatened to tell, so Travis shot him. Maurice got up and tried coming after Travis, so
Travis shot him again, so Maurice could no longer get to Travis. Travis asked Rayford to
keep this revelation secret, but Rayford told a friend. The friend called Crime Stoppers
using Rayford’s name and reported Travis’s involvement. In August 1998, when
Rayford visited Travis in jail, Travis was acting strangely, he began talking about Karl
and Wayne and said they were with him when the murder happened and they also shot
Maurice. Rayford told Travis she was confused as this was the first time Travis
mentioned Karl and Wayne in relation to what happened to Maurice, but Travis insisted
he had told her about Karl and Wayne during their first conversation. In September
1998, during a meeting with a prosecutor and a victim advocate, Rayford falsely
confirmed Travis’s story that she was on a four-way phone call with Travis, Karl and
Wayne, when Karl and Wayne confessed to being a part of the murder.
{¶ 26} With respect to Rayford’s participation at the hearing on the motions for
new trial, the record shows Rayford was expected to appear at the start of the hearing, at
about 9:30 a.m., but did not appear until approximately 12:45 p.m. Rayford took the
witness stand and testified, but the information she shared was hardly helpful, as she
could not recall what the prosecutor expected her to testify about at Willis and Braddy’s
trial, nor did she recall that she testified at all at that trial before she was held in contempt
and sent to jail for 30 days. In addition, Rayford could not remember many details
concerning her relationship with Slaughter or what Slaughter told her about the murder of
10.
Purifie. Even after Rayford was shown her affidavit and asked if specific averments
helped her to remember what Slaughter told her about the murder, Rayford testified she
could not remember. Moreover, during Rayford’s testimony concerning the statements in
her affidavit, counsel was appointed because the trial court was concerned there was a
risk of perjury, and Rayford may be entitled to assert certain Fifth Amendment rights.
{¶ 27} Overall, Rayford was not a credible witness, there was no substance to the
testimony she gave at the hearing, and her testimony was not helpful to appellants.
Moreover, her testimony would not, in all likelihood, bring about a different result if a
new trial were held. Since appellants were not able to satisfy all of the Petro factors, we
find the trial court did not abuse its discretion in denying appellants’ motions for new
trial. Accordingly, appellants’ assignment of error is not well-taken.
Conclusion
{¶ 28} For the foregoing reasons, the November 15, 2017 judgment of the Lucas
County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment affirmed.
11.
State v. Braddy
C.A. Nos. L-17-1302
L-17-1303
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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