State v. Gray , 2019 Ohio 1638 ( 2019 )

[Cite as State v. Gray, 2019-Ohio-1638.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107394
v. :
RAMON GRAY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 2, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-08-507759-A
Appearances:
Russell S. Bensing, for appellant.
Michael C. O’Malley, Prosecuting Attorney, and Anthony
Thomas Miranda, Assistant Prosecuting Attorney, for
appellee.
RAYMOND C. HEADEN, J.:
Defendant-appellant Ramon Gray (“Ramon”) appeals from the trial
court’s judgment denying his motion for leave to file a motion for new trial. For the
reasons that follow, we affirm.
Procedural History
At trial on September 29, 2008, Ramon was found guilty of two
counts of aggravated murder, each with a capital offense and firearm specification,
and one count of having a weapon while under disability. He was sentenced to life
in prison without parole. Ramon appealed and this court affirmed his conviction
and remanded on sentencing errors in State v. Gray, 8th Dist. Cuyahoga No. 92303,
2010-Ohio-240. Ramon filed a petition for postconviction relief on July 29, 2009,
that was denied on February 6, 2014, because it was untimely and barred by the
doctrine of res judicata.
On December 28, 2017, Ramon filed a motion for leave to file a
delayed motion for new trial on the basis of newly discovered evidence. The trial
court conducted a hearing on the motion for leave on March 27, 2018, and denied
the motion on June 5, 2018. Ramon now appeals, presenting one assignment of
error for our review.
Statement of the Facts
The facts that led to Ramon’s conviction were clearly detailed in a
prior appeal decided in Gray at ¶ 2-9 and were stated as follows:
At approximately 2:30 a.m. on January 11, 2007, as Eddie Parker
walked up to the B-5 Lounge and Deli in Cleveland, Ohio, he saw his
younger brother, Andre Parker, and his brother’s friend, Willie
DeLoach, scuffling with two men in the parking lot. Eddie described
the man fighting with his brother as wearing a black leather jacket and
black baseball cap (later identified as Ramon) and the man fighting
with DeLoach as wearing a white tee-shirt and a white skull cap with a
small brim on it (later identified as Ramon’s brother, Rufus Gray).
Eddie saw the man fighting with his brother pull a weapon and then
saw Andre run to his car. Eddie ran inside the B-5 Lounge and
screamed for the owner to call 911 and then, as he watched through the
windows, saw Ramon open the rear passenger door of his brother’s car,
and, with one hand on top of the car, aim the gun into the car and fire
two shots into the vehicle.
***
Eddie then went out to the parking lot, where he found his brother
slumped back in the driver’s seat of his car and DeLoach lying wounded
in the parking lot. Both men died almost immediately; according to the
coroner, Andre Parker died from a single gunshot wound to the right
side of the chest and DeLoach died from a single gunshot wound to the
left abdomen. The coroner also determined that both men had been
shot with the same weapon.
***
The police arrested Ramon in February 2008. After his arrest, Eddie
identified Ramon in a physical line-up at police headquarters as the
man who shot his brother. Subsequently, the police determined that
three fingerprints lifted from above the rear passenger side door of the
car Andre Parker was found in matched Ramon’s prints.
Ramon now presents the affidavits of his brother Rufus Gray
(“Rufus”), Curtis Davis (“Davis”), and himself providing new evidence that allegedly
supports his motion for leave to file a motion for new trial. The relevant portions of
the new narrative are as follows. As Ramon and Rufus attempted to leave the B-5
Lounge and Deli, they were followed by two men. Two men fought with Rufus at the
back of Ramon’s vehicle while Ramon fought one man at the front of the car. As
Ramon fought with this man, a fourth man exited the deli and entered into the fight
with Ramon. Ramon fought the two men at the front of his car while his brother
fought two men at the rear of the car. Ramon heard a gunshot from the rear of
Ramon’s car, near where Rufus was fighting. One of the men fighting with Ramon
ran back into the deli and Ramon and the fourth man ran to the side of the deli,
down 142nd Street. The men stopped in the alley to continue fighting, but heard two
more gunshots. The man fighting Ramon, whom Ramon could not identify, ran
from the scene.
The gunshots occurred near Rufus and the gun belonged to one of the
men fighting Rufus. Rufus was hit over the head with the gun and the weapon fell
to the ground. Rufus grabbed the gun first and the two men tried to wrestle it from
his grip. While struggling, a gun shot was fired and struck one of the men fighting
with Rufus. That individual ran to his car and sat in the driver’s side seat. Rufus
continued to fight with the remaining man, both trying to gain control of the gun.
With both men’s hands on the gun, one shot was fired into the air and a second shot
hit the man fighting with Rufus. The man fell to the ground and Rufus left in
Ramon’s car, finding Ramon on East 142nd Street. Rufus attests Ramon did not
have a gun at the scene nor did Ramon fire any shots. Rufus states he was
subpoenaed to appear at Ramon’s trial and was present, but was never called to
testify. Had he been called as a witness, he would have presented the facts in his
affidavit. Ramon’s trial attorneys and Rufus unsuccessfully attempted to locate the
unidentified fourth individual with whom Ramon fought.
The affidavits further state that while Ramon was serving time at Lake
Erie Correctional Institution, Davis began serving a ten-year sentence at the same
facility in late 2015. Davis approached Ramon and indicated he was the fourth man
who fought with Ramon on the day of the murders. Davis’s affidavit depicts the
same facts as those presented above. Davis did not offer an alibi for Ramon at trial
due to his fear of being shot or beat up by Eddie Parker. Davis now avers that Ramon
did not have a weapon on the night in question and Ramon did not shoot Andre
Parker or Willie DeLoach; Ramon was with Davis on East 142nd when those
individuals were shot. Davis kept a low profile to avoid any encounters with the
police or Eddie Parker and, as a result, it would have been difficult to locate Davis
following the shootings.
Ramon presented this new evidence to support his motion for leave
to file a motion for new trial. Following a hearing, the trial court denied Ramon’s
motion for leave on June 5, 2018. Ramon appeals, presenting the following
assignment of error for our review. Assignment of Error I: the trial court abused its
discretion in denying defendant’s motion for leave to file a motion for new trial on
the basis of newly discovered evidence.
Law and Analysis
This court reviews the denial of leave to file a delayed motion for new
trial for an abuse of discretion. State v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981, ¶ 13
(8th Dist.). “The term ‘abuse of discretion’ is one of art, ‘connoting judgment
exercised by a court, which does not comport with reason or the record.’” State v.
Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-4468, ¶ 10,
quoting State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089,
¶ 30.
Crim.R. 33(B) contemplates a bifurcated procedure: (1) a motion for
leave to file a delayed motion for new trial supported by evidence demonstrating
that the movant was unavoidably prevented from ascertaining the ground sought to
be asserted by way of motion for new trial within fourteen days after the rendering
of the verdict; and (2) if the motion be granted, the filing within seven days of the
actual motion for new trial properly supported by affidavit demonstrating the
existence of the grounds for the motion pursuant to Crim.R. 33 (C). State v. Walden,
19 Ohio App.3d 141, 483 N.E.2d 853 (10th Dist.1984).
A motion for new trial based on newly discovered evidence filed
beyond 120 days of a jury verdict must demonstrate, by clear and convincing proof,
that the petitioner was unavoidably prevented from discovering the evidence upon
which he must rely. Crim.R. 33(B). A party is “unavoidably prevented” from
discovering evidence if the party had no knowledge of the existence of the grounds
supporting the motion and could not have learned of that existence in the exercise
of reasonable diligence within the time prescribed by the rule. See State v. Gray,
8th Dist. Cuyahoga No. 92646, 2010-Ohio-11, ¶ 17, quoting State v. Lee, 10th Dist.
Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 7.
Where the newly discovered evidence is obtained beyond the
prescribed 120 days, a petitioner must first file a motion for leave to file a delayed
motion for new trial. State v. Phillips, 8th Dist. Cuyahoga No. 104810, 2017-Ohio-
7164. In it, the petitioner must show by “‘clear and convincing proof that he has
been unavoidably prevented from filing a motion in a timely fashion.’” Gray at ¶ 13,
quoting State v. Morgan, 3d Dist. Shelby No. 17-05-26, 2006-Ohio-145, ¶ 9. Clear
and convincing proof “is that measure or degree of proof [that] is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ * * * 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.” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
In addition to showing an unavoidable delay in discovering the evidence, a petitioner
must show that they filed their motion for leave within a reasonable time after
discovering the evidence. Gray at ¶ 18. Whether a delay is reasonable depends on
the facts and circumstances surrounding the case and whether the petitioner has an
adequate explanation for the delay. Id. If the trial court finds that the documents
submitted in support of a motion for leave clearly and convincingly demonstrate that
the petitioner was unavoidably prevented from discovering the evidence, then the
court must grant the motion for leave to file a motion for new trial. State v. Glover,
2016-Ohio-2833, 64 N.E.3d 442, ¶ 28 (8th Dist.).
Ramon’s trial was held on September 15, 2008, and his motion for
leave to file a motion for new trial was filed on December 28, 2017, well beyond the
120-day time limit. Ramon had to establish, by clear and convincing evidence, that
he was unavoidably prevented from discovering the new evidence as a predicate for
obtaining leave to file a new trial.
The offered affidavits do not satisfy the required clear and convincing
standard. A claim that evidence was undiscoverable simply because the defense did
not take the necessary efforts to obtain the evidence sooner does not meet the
requisite standard. State v. Anderson, 10th Dist. Franklin No. 12AP-133, 2012-
Ohio-4733, ¶ 14. Criminal defendants and their trial counsel have a duty to make a
“serious effort” of their own to discover potential favorable evidence. State v.
Williams, 8th Dist. Cuyahoga No. 99136, 2013-Ohio-1905, ¶ 9. No evidence has
been introduced to indicate what, if any, steps were taken by defense counsel to
locate the “fourth man.” No affidavit has been provided by trial counsel
corroborating Ramon and Rufus’s affidavits. There is no evidence to suggest the
police were told of Ramon’s alibi along with a description of the man. Davis avers
he moved just prior to the murders, did not have a job, and purposely attempted to
keep a low profile. We cannot discount what the police could have accomplished
had they been privy to Ramon’s alibi and a description of the man with whom he
allegedly fought in the alley. An alibi is not newly discovered evidence from which
appellant was unavoidably prevented from knowing within the time frame
prescribed by Crim.R. 33. State v. Bridges, 8th Dist. Cuyahoga Nos. 102930 and
103090, 2015-Ohio-5428, ¶ 28. Ramon did not testify at trial and his unsworn
statement to the jury made no mention of the “fourth man.” If Ramon fought with
a fourth man at the scene who could testify he was not the shooter, Ramon was privy
to this information at the time of the trial. No new evidence has been introduced.
A court may discount self-serving affidavits from a petitioner or his
family members. State v. Stedman, 8th Dist. Cuyahoga No. 83531, 2004-Ohio-
3298, ¶ 29. The affidavits of Ramon and Rufus are self-serving in that both
individuals are personally tied to the outcome of the motion. Even setting aside the
fact that the affidavits are self-serving, they are deficient. Ramon claims he testified
at the mitigation phase of his trial to the same facts included in his affidavit. Yet,
the only testimony presented by Ramon at trial was an unsworn statement
discussing his family dynamics and education, his encounters with the law, and his
hope the jury would spare his life. Rufus’s affidavit states he canvassed the area
around the Deli and on a separate occasion he and his mother spoke with people in
the neighborhood in an attempt to locate the “fourth man.” Ramon and Rufus’s
mother performed internet searches, presumably after Ramon’s sentencing, for the
“fourth man” and Rufus periodically stopped at the deli from 2009 to 2016 to seek
leads. These purported minimal attempts did not uncover the name and
whereabouts of Davis. We again reference Ramon’s failure to notify the police of
Davis’s presence at the shooting so that they could attempt to locate him soon after
the incident occurred.
While it is not the factfinder’s role to determine the merits of the new
trial motion, leave to file a motion for new trial requires the offered evidence to
produce a “firm belief or conviction as to the facts.” State v. Mack, 8th Dist.
Cuyahoga No. 75086, 1999 Ohio App. LEXIS 5063, 4 (Oct. 28, 1999). The
information contained within the affidavits is not plausible when compared with the
forensic evidence. The fingerprint evidence established Ramon touched the roof of
the victim’s car, which comports with the eyewitness’ narrative. The new version of
the events does not place Ramon near the victim’s car and leaves the presence of his
fingerprints unexplained. The forensic evidence supported the argument that Andre
Parker was shot while seated inside his car. No gunshot primer residue was found
on the victims. Yet, the affidavits propose Parker was shot outside his vehicle and
the victims were holding the guns when the gunshots were fired. The new evidence
lacks credibility.
Lastly, even assuming Ramon established he was unavoidably
prevented from discovering the name of Davis, Ramon’s motion for leave was not
filed within a reasonable time after he learned of the new evidence. Davis was
transferred to the Lake Erie Correctional Institution in late 2015. Davis’s affidavit
was not obtained until December 2017. The lapse of two years is outside a
reasonable timeframe.
Because Ramon did not provide clear and convincing evidence that
he was unavoidably prevented from discovering the new evidence, the trial court’s
denial of his motion for leave to file a motion for new trial was not an abuse of
discretion.
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 of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
RAYMOND C. HEADEN, JUDGE
MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR