State v. Bullitt , 2023 Ohio 1899 ( 2023 )

[Cite as State v. Bullitt, 2023-Ohio-1899.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112168
v. :
DEAUNTE BULLITT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 8, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-12-565262-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellant.
Deaunte Bullitt, pro se.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Deaunte Bullitt appeals the trial court’s denial
of his motion for leave to file a delayed motion for new trial based on newly
discovered evidence. Because the trial court did not abuse its discretion in denying
the motion, we affirm.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
In December 2013, Bullitt was tried with his codefendant Jerael Dues
on various drug-related charges. Bullitt was convicted of drug trafficking with major
drug offender, juvenile, and forfeiture specifications; possession of drugs;
possession of criminal tools; and tampering with evidence. The trial court imposed
a prison term of 11 years, and we affirmed Bullitt’s convictions. State v. Bullitt, 8th
Dist. Cuyahoga No. 100885, 2014-Ohio-5138. Dues was also convicted of several
offenses, which convictions were affirmed on appeal. State v. Dues, 2014-Ohio-
5276, 24 N.E.3d 751 (8th Dist.). We summarized the facts presented at trial in
Dues’s appeal as follows:
At trial, the police officers testified to the following events. On July 19,
2012, three members of the Cuyahoga County Sheriff’s Impact Unit,
along with Detective Darren Porter from the Richmond Heights Police
Department, went to Dues’s apartment in Richmond Heights. The
apartment was on the third floor of the Richmond Park Apartments.
The officers were there to execute a warrant for the arrest of Dues
relating to a misdemeanor assault charge.
Upon arrival, the officers heard loud music and people talking inside
the apartment. They knocked on the door and identified themselves as
police officers. The music was turned down and someone looked out
from the door’s peephole. The officers heard people running around
and dishes clanging together. Detective Brian Nolan started to bang on
the door and again announced the presence of the police. Hearing the
commotion, a resident from the next unit came out. Because the
apartments have adjacent balconies, Detective Scott Vargo asked for
permission to go to the neighbor’s balcony to observe Dues’s
apartment. The neighbor gave Detective Vargo consent to enter her
apartment.
As soon as Det. Vargo went to the neighbor’s balcony, he saw a male,
later identified to be Bullitt, throwing a box off Dues’s balcony. Bullitt
then grabbed the rail with both hands and looked down at the rail.
Unsure if Bullitt was going to jump, Det. Vargo ordered Bullitt to lay
down on the balcony and yelled to the other officers that a male was
throwing items off Dues’s balcony. The other three officers then
quickly forced their way into Dues’s apartment. They found Dues
sitting on the couch in the living room. Sgt. Scott Hirko ran to the
balcony area and arrested Bullitt, and Det. Porter took Dues into
custody as well.
Det. Porter then searched the ground below Dues’s balcony and found
a bag of drugs inside a “GoodSense” sandwich bag box, which later
tested to be approximately 100 grams of crack cocaine. Det. Porter also
found, 30 feet away, a bag with a large amount of cash, later determined
to be $22,000.
Based on the discovery of the drugs and cash, the officers obtained a
warrant to search Dues’s apartment, where his girlfriend and three-
year-old son also resided. The officers found drugs and drug
paraphernalia throughout the apartment. In the kitchen, they found
(1) a bag of heroin in the cupboard, (2) a plastic plate with cut marks
and white residue — indicative of its use in cutting, separating, and
weighing crack cocaine, (3) two bottles of whey protein — a supplement
often used as “cut material” in preparing cocaine for sale, (4) a box of
latex gloves — typically worn when cooking drugs to avoid
contamination of the drug, (5) a digital scale in the garbage can in the
kitchen, and (6) a large glass measuring bowl with a large amount of
white residue — which later tested to be 4.21 grams of cocaine — in the
dishwasher rack.
In addition, inside the child’s bedroom were many small plastic bags
with blue stars on them — consistent with the packaging of heroin. In
the closet in the master bedroom was an empty, open safe.
Id. at ¶ 3-8.
Following Bullitt’s direct appeal, he filed an application for reopening
of his appeal, which application was denied. State v. Bullitt, 8th Dist. Cuyahoga
No. 100885, 2015-Ohio-3136. Further, Bullitt filed several writs regarding his
convictions, all of which were dismissed. State v. Bullitt, 8th Dist. Cuyahoga
No. 103638, 2016-Ohio-410; State v. Bullitt, 8th Dist. Cuyahoga No. 103774,
2016-Ohio-945; State v. Bullitt, 8th Dist. Cuyahoga No. 103720, 2016-Ohio-3179.
Bullitt also sought postconviction relief in the form of various motions
in the trial court. In 2016, we affirmed the trial court’s denial of Bullitt’s motion to
set aside the judgment of conviction, motion to compel the release of public records,
and motion to compel and preserve evidence. State v. Bullitt, 8th Dist. Cuyahoga
No. 103798, 2016-Ohio-4868. In 2018, the trial court denied Bullitt’s motions for
determination and to proceed to judgment. This court dismissed his appeal of those
judgments based upon res judicata. State v. Bullitt, 8th Dist. Cuyahoga No. 107224,
Motion No. 517833 (May 29, 2018). In 2021, we affirmed the trial court’s denial of
Bullitt’s successive petition for postconviction relief. State v. Bullitt, 8th Dist.
Cuyahoga No. 110985, 2022-Ohio-1591.
In May 2022, Bullitt obtained police reports from the Richmond
Heights Police Department. In June 2022, Bullitt filed a motion for leave to file a
delayed motion for new trial and a supplement to that motion. Bullitt argued that
the state suppressed a Richmond Heights Police Department incident report. He
attached a two-page incident report from the Richmond Heights Police Department
that documented a complaint regarding drug activity concerning Dues. The report,
Incident Number 12-01415, dated June 8, 2012, listed Dues as a subject and
contained the following narrative:
DET PORTER CONTACTED BY ANONYMOUS PERSON
REGARDING ACTIVITY IN DORCHESTER J BUILDING, 135
CHESTNUT.
A resident called RHPD [Richmond Heights Police Department] to
report drug activity at Dorchester Village Apartments “J” building. The
resident wanted to remain anonymous but did provide police with
information on the activity.
Bullitt also argues on appeal that a second police report, Richmond Heights
Police Department Incident No. 12-01836, dated July 19, 2012, was
suppressed. The report, authored by Detective Darren Porter, reads in
pertinent part:
DET SGT PORTER REQUEST REPORT FOR ARREST @ 443
RICHMOND PART APT 322D – DOOR WAS FORCED OPEN- (2) IN
CUSTODY AND DRUGS LOCATED INSIDE THE APT.
In response to the motion, the state asserted that although it did not
produce the June 8, 2012 report, it did not suppress evidence because the June 8,
2012 report was not material to Bullitt’s trial and thus did not constitute Brady
material that would be subject to disclosure. On appeal, the state disputes Bullitt’s
contention that the July 19, 2012 report was not provided in discovery.1
The trial court denied Bullitt’s motion for leave to file a motion for
new trial.
1Our review of the record confirms that Bullitt’s counsel had a copy of this report at trial.
Exhibit J attached to Bullitt’s motion for leave to file a delayed motion for new trial is an
excerpt of the trial transcript. The exhibit includes cross-examination of Detective Porter
that references Incident Report No. 12-01836.
II. LAW AND ARGUMENT
A. Assignment of error presented
Bullitt asserts the following assignment of error:
By denying defendant Bullitt’s motion for leave to file a delayed motion
for new trial, the trial court denied him his right to due process of law
under the 14th Amendment to the United States Constitution and
Article I, Section 14 of the Ohio Constitution
Bullitt asserts that Detective Vargo fabricated his testimony at trial
that he saw Bullitt throw a box from the balcony of the apartment. Bullitt argues
this claim is supported by the lack of fingerprints or DNA evidence recovered on the
box. Bullitt further claims that nothing was thrown from the balcony of the
apartment. In support, he cites the July 19, 2012 report indicating that drugs were
found in the apartment. Bullitt argues the import of these police reports supports
his theory that police fabricated evidence in order to justify an illegal entry into
Dues’s apartment. He further asserts that the June 8, 2012 police report could have
been used to impeach Det. Vargo’s testimony and bolster his defense that police
officers had a motive to fabricate testimony because there was an ongoing
investigation against Dues.
The state argues that the motion for leave was untimely filed,
asserting that the police report was not Brady material subject to disclosure because
it was not favorable evidence and does not lead to a probability that the outcome at
trial would be different.
B. Applicable law and standard of review
Crim.R. 33 provides that a defendant may file a motion for new trial.
Crim.R. 33(B) provides a time frame in which a motion for new trial may be filed
based upon newly discovered evidence as follows:
(B) Motion for new trial; form, time. Application for a new trial shall
be made by motion which, except for the cause of newly discovered
evidence, shall be filed within fourteen days after the verdict was
rendered, or the decision of the court where a trial by jury has been
waived, unless it is made to appear by clear and convincing proof that
the defendant was unavoidably prevented from filing his motion for a
new trial, in which case the motion shall be filed within seven days from
the order of the court finding that the defendant was unavoidably
prevented from filing such motion within the time provided herein.
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, or the decision of the court where trial by jury has
been waived. 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.
Bullitt claimed that the June 2012 police report was not provided in
discovery and, as such, was newly discovered evidence. Where a defendant asserts
newly discovered evidence being relied upon to make a motion for new trial was
suppressed, the defendant must make a prima facie case that he/she was
unavoidably prevented from discovery of the material when the trial court considers
whether the motion for new trial was timely under Crim.R. 33. State v. McNeal, 169
Ohio St.3d 47, 2022-Ohio-2703, 201 N.E.3d 861, ¶ 2. A defendant establishes a
Brady violation “‘by showing that the favorable [but suppressed] evidence could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.’” Id. at ¶ 21, quoting Kyles v. Whitley, 514 U.S. 419, 434,
115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); see also State v. Hatton, 169 Ohio St.3d 446,
2022-Ohio-3991, 205 N.E.3d 513, ¶ 36 (Suppressed evidence that “illuminated a
substantial hole in the state’s theory of its case” was sufficient to grant defendant
leave to file a motion for new trial.).
Appellate review of a trial court’s ruling on a motion for leave to file a
motion for a new trial is conducted under an abuse-of-discretion standard. State v.
Townsend, 10th Dist. Franklin No. 08AP-371, 2008-Ohio-6518, ¶ 8, citing State v.
Pinkerman, 88 Ohio App.3d 158, 160, 623 N.E.2d 643 (4th Dist.1993), citing State
v. Wright, 2d Dist. Greene No. 90 CA 135, 1992 Ohio App. LEXIS 1762 (Mar. 31,
1992).
A court abuses its discretion when it “exercises its judgment in an
unwarranted way regarding a matter over which it has discretionary authority.”
State v. McFarland, 8th Dist. Cuyahoga No. 111390, 2022-Ohio-4638, ¶ 20, citing
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
“In other words, ‘[a] court abuses its discretion when a legal rule entrusts a decision
to a judge’s discretion and the judge’s exercise of that discretion is outside of the
legally permissible range of choices.’” Id. at ¶ 20, quoting State v. Hackett, 164 Ohio
St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 19. Further, an abuse of discretion
“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).
C. The trial court did not abuse its discretion by denying the
motion for leave to file motion for new trial
The state does not dispute that Detective Porter’s June 8, 2012 report
documenting a complaint of drug activity regarding Dues was not turned over to
Bullitt in discovery. The state does dispute that the report was subject to disclosure
under Brady v. Maryland, 373 U.S.83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady
requires the state to produce evidence that is “favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d
286 (1999). “‘Materiality pertains to the issue of guilt or innocence, and not to the
defendant’s ability to prepare for trial.’” State v. Osie, 140 Ohio St.3d 131,
2014-Ohio-2966, 16 N.E.3d 588, ¶ 154, quoting United States v. Bencs, 28 F.3d 555,
560 (6th Cir.1994).
At issue in this case is whether failure to disclose the June 8, 2012
report constituted a Brady violation and, if so, whether the police report “viewed in
the context of the whole case, is sufficient to undermine confidence in the verdict.”
Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 36. The police
report details that Detective Porter received a complaint by a resident of Dues’s
apartment complex that drug activity was occurring one month prior to Bullitt’s
arrest. To be considered as Brady material, the report must be favorable to Bullitt
and consist of exculpatory or impeaching information. Greene at 281-282. The
report of Dues’s prior drug activity might be considered favorable to Bullitt because
it implicates Dues in ongoing drug activity without mentioning Bullitt. However,
the report is not exculpatory to the charges brought against Bullitt at trial; it did not
address the facts and circumstances of the charges brought against him. Further,
the report did not contradict the police officers’ testimony. See Wallace v. Ludwick,
E.D. Mich. No. 08-11747, 2009 U.S. Dist. LEXIS 77866, 11 (Aug. 31, 2009)
(“Evidence is not exculpatory or impeaching under Brady where it does not
contradict any testimony offered by the witness at trial.”).
Bullitt asserts that had the police report been disclosed, he would
have used it to impeach Detective Vargo and to support his contention that the police
officers had a motive to fabricate testimony. However, in light of the testimony at
trial, such use of the police report and Bullitt’s assertion is tenuous at best. That the
police received a complaint of drug activity by Dues in the past does not contradict
or impeach trial testimony, does not give rise to the conclusion that the police
officers had a motive to fabricate evidence, and does not undermine confidence in
the verdict rendered at trial. As such, the trial court did not abuse its discretion by
denying leave to file a motion for new trial based on newly discovered evidence and
the assignment of error is overruled.
III. CONCLUSION
Bullitt filed a motion for leave to file a delayed motion for new trial
based upon newly discovered evidence. The newly discovered evidence supporting
the motion for new trial was a police report implicating his codefendant in prior drug
activity that was not disclosed prior to trial. The report did not implicate Bullitt in
drug activity, did not contradict or impeach any police officer’s testimony at trial,
and did not give rise to the conclusion that police had a motive to fabricate evidence.
Further, use of the report at trial in light of the context of the trial is not sufficient to
undermine confidence in the verdict at trial.
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.
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, A.J., and
MARY J. BOYLE, J., CONCUR