State v. Johnson , 2016 Ohio 4889 ( 2016 )

[Cite as State v. Johnson, 2016-Ohio-4889.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 26795
Plaintiff-Appellee :
: Trial Court Case No. 1991-CR-1751/1
v. :
: (Criminal Appeal from
DERRICK L. JOHNSON : Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of July, 2016.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
DERRICK L. JOHNSON, No. 254-768, Post Office Box 209, Orient, Ohio 43146
Defendant-Appellant, pro se
.............
HALL, J.
{¶ 1} Derrick L. Johnson appeals pro se from the trial court’s July 16, 2015
decision, order, and entry overruling his Crim.R. 33 motion for leave to file a delayed new-
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trial motion based on newly-discovered evidence.
{¶ 2} The record reflects that a jury convicted Johnson in 1992 on two counts of
aggravated murder, one count of attempted aggravated murder, and one count of
aggravated robbery. The charges stemmed from his participation in a home-invasion
robbery and shooting that involved the theft of cocaine. The victim of the attempted
aggravated murder, Ralph Allen, was a key prosecution witness at Johnson’s trial.
{¶ 3} Johnson filed his pro se motion for leave to file a delayed new-trial motion on
June 19, 2015.1 (Doc. #6). Therein, he argued that he had obtained newly discovered
evidence undermining the validity of his 1992 convictions. The evidence consisted of April
2003 testimony by Allen in connection with a federal-court sentencing hearing for another
defendant, Keith DeWitt.
{¶ 4} In his motion, Johnson argued that Allen’s 2003 federal-court testimony
demonstrated that Allen committed perjury when testifying against Johnson in 1992. In
particular, Johnson claimed Allen’s federal-court testimony revealed that Allen had failed
to disclose certain facts during Johnson’s criminal trial. Those facts included Allen’s
activity as drug dealer, Allen’s contamination of the crime scene, and Allen’s failure to
mention the presence of two “witnesses” who fled the scene.
{¶ 5} Johnson argued that he had been unavoidably prevented from filing his new-
trial motion within 120 days of the jury’s verdict as required by Crim.R. 33. He asserted
that he had no knowledge of the existence of the grounds for his motion (i.e., Allen’s 2003
1
We note that Johnson’s June 19, 2015 motion for leave to file a delayed new-trial motion
was his second such motion. He filed his first Crim.R. 33 motion for leave to seek a new
trial on January 27, 2014. The trial court overruled the first motion in a July 2, 2014
decision, order, and entry that is the subject of a separate appeal, Montgomery Cty. App.
Case No. 26339.
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federal-court testimony) until much later. Attached to his motion were transcript excerpts
from Allen’s 1992 testimony at Johnson’s trial and Allen’s 2003 federal-court testimony at
DeWitt’s sentencing. Johnson also provided his own affidavit. Therein, he averred that he
had discovered Allen’s 2003 federal-court testimony through a “diligent investigation” by
an attorney who had been appointed to represent him in November 2014. In his motion
and affidavit, he sought an evidentiary hearing in connection with his request for leave to
seek a new trial.2
{¶ 6} Without conducting an evidentiary hearing, the trial court overruled
Johnson’s motion for leave to file a delayed new-trial motion. In its July 16, 2015 ruling,
the trial court agreed that he had satisfied the requirements to obtain leave to move for a
new trial. It reasoned:
Even without a hearing on the issue, the Court finds the attachments
to the Defendant’s motion sufficient to satisfy Crim.R. 33(A)(6)’s
requirements for newly discovered evidence. The Court also accepts
Defendant’s representation that he could not have moved within 120 days
after the guilty verdict against him for a new trial based on the evidence he
now advances * * * because Allen’s 2003 testimony clearly did not exist at
that time. * * * Accordingly, no evidentiary hearing is necessary in order to
determine that Defendant has satisfied those initial obstacles to filing a
delayed motion for a new trial in this case. See Crim.R. 36(B).
(Doc. #8 at 9).
2 In conjunction with his motion for leave, Johnson also moved for the appointment of
counsel to assist him in obtaining in camera review of Allen’s grand-jury testimony. The
trial court denied his request, and that aspect of its ruling has not been raised as an issue
on appeal.
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{¶ 7} Despite the foregoing conclusion, the trial court reasoned that granting
Johnson leave to seek a new trial would be “futile” because “the proffered subsequent
testimony of trial witness Allen is inadequate as a matter of law to demonstrate a ‘strong
probability’ that Defendant was prejudiced or denied a fair trial[.]” (Id.). In reaching this
conclusion, the trial court recognized that it had discretion to deny a motion for a new trial
without an evidentiary hearing. (Id.). The trial court found no hearing necessary, and no
need to grant Johnson leave, where the attached transcript excerpts convinced it that his
new-trial argument necessarily would fail. (Id. at 9-13). As a result, it concluded “that
Defendant is not entitled to a new trial based on any of the newly-discovered evidence he
has presented.” (Id. at 13). This appeal followed.
{¶ 8} In his sole assignment of error, Johnson contends the trial court abused its
discretion in failing to grant him an evidentiary hearing after determining that he had been
unavoidably prevented from obtaining his newly-discovered evidence within 120 days of
the jury’s verdict. It is less clear, however, whether he is asserting that the trial court was
obligated to grant him an evidentiary hearing in connection with his request for leave or
an evidentiary hearing before essentially deciding the merits of the new-trial issue.
{¶ 9} Near the end of his opening brief, Johnson cites State v. McConnell, 170
Ohio App. 3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 7 (2d Dist.), for the proposition that
an evidentiary hearing is warranted when a movant has supported his motion for leave
with evidentiary materials that, on their face, demonstrate unavoidable prevention.
(Appellant’s brief at 9). McConnell involved the showing required for a defendant to obtain
an evidentiary hearing as to whether he had been unavoidably prevented from filing a
timely new-trial motion. In his reply brief, Johnson cites State v. Devaugns, 2d Dist.
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Montgomery No. 25826, 2015-Ohio-452, ¶ 14, which likewise addressed the
circumstances under which a defendant is entitled to a hearing on whether he should be
granted leave to file a new-trial motion. (Appellant’s reply brief at 4).
{¶ 10} In the present case, the trial court conceded that Johnson had satisfied the
statutory requirements to obtain leave to move for a new trial. In that regard, Crim.R.
33(B) provides:
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.
(Emphasis added).
{¶ 11} Here the trial court found, without the need for a hearing, that Johnson had
presented clear and convincing proof that he had been unavoidably prevented from
discovering Allen’s 2003 federal-court testimony within 120 days of the verdict in his 1992
criminal trial. Because Allen’s 2003 testimony obviously did not exist a decade earlier, the
trial court held that Johnson had satisfied Crim.R. 33(B)’s “obstacles to filing a delayed
motion for a new trial in this case.”3 (Doc. # 8 at 9).
3Under this court’s precedent, Johnson also was required to file his motion for leave
within a “reasonable time” after discovering his new evidence. See, e.g., State v. Tubbs,
2d Dist. Miami No. 2015-CA-14, 2016-Ohio-842, ¶ 16, citing State v. York, 2d Dist.
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{¶ 12} The real issue on appeal is whether, after finding that Johnson had met the
statutory requirements to file a delayed new-trial motion, the trial court erred in denying
him leave to do so on the basis that such a motion would be “futile.” As a threshold matter,
we note that Johnson never actually filed a motion for a new trial in the present case.
Under Crim.R. 33, a two-step process applies when a defendant seeks to file a delayed
new-trial motion. First, he must obtain leave by demonstrating that he was unavoidably
prevented from filing his motion within the time provided by the rule. If he makes this
showing, he must file his new-trial motion within seven days of a court order granting him
leave. See Crim.R. 33(B). This court has recognized, however, “[a] defendant may file his
motion for a new trial along with his request for leave to file the such motion[.]” State v.
Lanier, 2d Dist. Clark No. 2009 CA 84, 2010-Ohio-2921, ¶ 17. In that situation, “the trial
court may not consider the merits of the motion for a new trial until it makes a finding of
unavoidable delay.” (Citations omitted). Id.
{¶ 13} In the present case, no new-trial motion accompanied Johnson’s motion for
leave to file one. The trial court essentially preempted his filing of a new-trial motion,
finding that it would be futile. Nevertheless, Johnson does not raise on appeal the
propriety of the trial court resolving the substance of the new-trial issue in the context of
his motion for leave to file a new-trial motion.4 At best, his assignment of error suggests
Greene No. 2000 CA 70, 2001 WL 332019 (April 6, 2001). The trial court did not explicitly
address the “reasonable time” issue, however, and did not deny Johnson’s motion on that
basis. Instead, as set forth more fully above, it addressed the substance of Johnson’s
new-trial evidence, which it found lacking.
4 In any event, in State v. Brewer, 2d Dist. Montgomery No. 20051, 2004-Ohio-6873,
which the trial court relied on below, this court upheld the denial of a motion for leave to
file a delayed new-trial motion on the basis that the new evidence at issue was insufficient
to warrant a new trial. Much like the present case, the trial court in Brewer denied a motion
for leave to file a delayed new-trial motion, in part on the basis that the new evidence
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he is challenging the trial court’s failure to hold an evidentiary hearing before deciding
that a new-trial motion would be futile.
{¶ 14} To prevail on a new-trial motion, a defendant must demonstrate, among
other things, that his newly-discovered evidence “ ‘discloses a strong probability that it
will change the result if a new trial is granted[.]’ ” State v. Quinn, 2d Dist. Clark No. 2014-
CA-95, 2016-Ohio-140, ¶ 13, quoting State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370
(1947). The decision whether to grant a new trial is within a trial court’s discretion.
Likewise, the decision whether to grant a hearing on a new-trial motion is within a trial
court’s discretion. Id. at ¶ 12. Its ruling will not be disturbed absent an abuse of discretion,
which implies that its attitude was unreasonable, arbitrary, or unconscionable. Id.
{¶ 15} Here we see no abuse of discretion in the trial court’s determination, without
a hearing, that Johnson’s newly-discovered evidence was insufficient to warrant a new
trial. A review of Allen’s 1992 trial testimony and his 2003 federal-court testimony,
excerpts of which were attached to his motion for leave, supports the trial court’s finding
that the latter “is inadequate as a matter of law to demonstrate a ‘strong probability’ that
Defendant was prejudiced or denied a fair trial[.]” (Doc. #8 at 9). Moreover, the trial court
acted reasonably in concluding that an evidentiary hearing was unnecessary for it to make
this determination.
{¶ 16} In its ruling, the trial court summarized the facts underlying Johnson’s
convictions and the evidence against him at his 1992 trial. (Id. at 2-3). In particular, the
offered in support of the defendant’s motion for leave would not likely have changed the
outcome of his trial. Upon review, this court held that the trial court did not abuse its
discretion because “[a]n affidavit and subsequent testimony of two trial identification
witnesses did not significantly undermine the State’s case against [the defendant].” Id. at
¶ 2.
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trial court quoted portions of this court’s 1993 opinion in Johnson’s direct appeal. (Id.). In
that opinion, this court noted that Johnson allegedly was one of at least three assailants
who went to a Jefferson Township home under the pretense of purchasing cocaine. Once
inside, his accomplices shot three occupants of the home, one of whom was Allen, the
sole survivor of the shooting and the only eyewitness to testify against Johnson. In its
1993 opinion, this court addressed and rejected arguments that the jury should have been
better informed about Allen’s questionable reliability and credibility, that the prosecution
minimized Allen’s involvement in drug dealing, that the prosecution attempted to bolster
Allen’s credibility, and that the prosecution improperly attempted to characterize the
incident as a drug deal gone bad. State v. Johnson, 2d Dist. Montgomery No. 13449,
1993 WL 248135, *1-3 (July 7, 1993). With regard to the foregoing issues, this court
reasoned:
Ralph Allen was the sole survivor of the shooting on June 29, 1991.
The evidence established that during the course of the police investigation,
Allen lied to the police. Allen also admitted during the trial that he had lied
during his testimony at a previous trial involving another assailant. During
the trial, inconsistencies between Allen’s present testimony and previous
testimony were demonstrated. Some of the foregoing untruthfulness was
brought out by the State during its direct examination of Allen. Johnson had
experienced defense counsel who appears from the record to have been
provided full pretrial discovery and to have been in possession of the
transcripts of Allen’s prior testimony. Defense counsel skillfully utilized
Allen’s written statement to an investigating officer, and Allen’s prior
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testimony, to elicit from him admissions of untruthfulness and to
demonstrate inconsistencies between his present and previous testimony.
There was no abdication of the State’s obligation to “seek justice”
where the State attempted to prosecute the perpetrators of two killings on
the basis of the eye witness testimony of the sole survivor, and the jury was
apprised by both the State’s direct examination and the defendant’s cross
examination of the eye witness that the witness had been untruthful during
the police investigation, that he had previously been untruthful under oath,
and that his present testimony was in certain respects inconsistent with his
prior testimony.
* * * It is apparent from the evidence that a substantial amount of
cocaine was located in the house where the shooting occurred. Allen did
not live at the house where the shooting occurred and testified that [Shay]
Stephens was handling the cocaine that was in the house. Allen testified
that he and [Isaac] Washington had journeyed earlier that morning from
Allen’s residence in Dayton to the house in Jefferson Township where the
shooting occurred. He testified that he was not involved with the cocaine
that was present at the house. There was other evidence suggesting that,
relative to other individuals, Allen was not a major player in drug dealing.
The prosecution so observed in its closing argument. * * *
* * * As we have observed in connection with Johnson's first
contention, Allen's lack of candor with the police, untruthfulness during his
previous testimony, and inconsistencies between his present and past
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testimony were all before the jury at the time of the closing argument. Allen
testified that he lied to the police about not knowing the identity of two of his
assailants, [Keith] DeWitt and Johnson, out of fear of reprisal should he
identify them. This was a plausible explanation for his initial lack of candor
with the police investigating the shooting[.] * * *
* * * Johnson’s defense counsel said in his opening statement that
the incident was a “drug deal,” and in his final argument that the incident
was a “drug buy.” During his cross examination of Allen, defense counsel
characterized the incident as a “drug deal” and Allen implicitly agreed with
this characterization. Despite Allen’s testimony that he was not involved in
drug dealing at the house, the evidence readily supports an inference that
the assailants, two of whom entered the house without resistance by the
occupants, entered under the pretense of purchasing drugs, which were in
the house in ample supply, and, upon entering the house, determined, or
acted upon a predetermined plan, to steal the drugs and shoot the
occupants of the premises rather than pay for the drugs. The evidence
certainly supported a characterization of the incident as “a drug deal (gone)
awry.”
Id. at *1-3.
{¶ 17} After reviewing this court’s 1993 appellate opinion, the trial court turned to
Johnson’s arguments about the potential impact of Allen’s 2003 federal-court testimony.
In so doing, the trial court left no stone unturned, considering each cited portion of Allen’s
2003 testimony in light of Allen’s 1992 testimony at Johnson’s trial. The trial court
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reasoned as follows:
In Defendant’s attachments of what purport to be excerpts from
Allen’s 2003 testimony, Allen admits that he was involved with Ike
Washington and Shay Stevens [the two deceased shooting victims] in
“[s]elling cocaine” from April to June 1991, when the crimes of which
Defendant was convicted occurred; that two unidentified Colombian drug
suppliers were present in the basement of the crime scene at the time of
those crimes, although Allen did not disclose that fact to anyone until 1998;
and that Allen cleaned up the crime scene before police arrived by
concealing “pagers and phones” and “dumping the dope . . . in the sink.”
(Motion for Leave to File New Trial Motion, attached Sentencing
Hearing/Transcript of Proceedings, pp. 2, 17, 18, 21, 33, 50-51). The Court
therefore agrees that such new evidence indicates that Allen did not testify
truthfully at Defendant’s trial when he denied selling drugs for a living (see
Motion for Leave to File New Trial Motion, attached excerpts from trial
transcript from State v. Johnson, Case No. 91-CR-1751, Vol. I, p. 61);
withheld information about potential witnesses by failing to disclose to
investigators or at trial that two Colombian drug suppliers were in the
basement of the house at the time of the crimes; and also withheld
information about concealing and/or destroying evidence at the crime
scene.
As the appellate court’s opinion on Defendant’s direct appeal makes
clear, however, there is no reason to believe that such new evidence would
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lead to an acquittal for Defendant, or that the absence of such information
otherwise denied him a fair trial. See Johnson, 1993 Ohio App. LEXIS 3448,
at **1-7. The record before the jury already contained ample evidence and
arguments casting doubt on Allen’s credibility, [as] recounted by the Second
District [in Johnson’s direct appeal]. * * *
Knowledge of numerous instances when Allen had been less than
truthful notwithstanding, the jury apparently found Allen’s testimony to be
credible as to the critical element of the case against this Defendant:
Johnson’s identity as one of the three intruders who committed the subject
crimes. There is no reason to believe that the new evidence Defendant now
advances would change that verdict, as such evidence is merely cumulative
of existing evidence of record regarding Allen’s past inconsistencies and
lies. * * *
The same result follows as to new evidence that Allen was a drug
dealer. Although Allen testified at trial “that he was not involved in drug
dealing at the house” where the crimes occurred, see id., at *7, other
evidence before the jury tended to undermine the credibility of that claim. *
**
In light of the jury’s awareness that Allen was present at the crime
scene where drug trafficking presumably had been taking place, Allen’s
2003 admission that he was involved in selling drugs at the time of the 1991
crime (see Motion for Leave to File New Trial Motion, attached Sentencing
Hearing/Transcript of Proceedings, p. 17) does not “disclose[ ] a strong
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probability” that Allen’s later admission would change the result if a new trial
were granted. * * * Given the jury’s acceptance of Allen’s identification of
Defendant despite Allen’s known history of lying and association with
presumed drug dealers, a new jury is not likely to acquit Defendant based
simply on new evidence that Allen lied about his own drug dealing. Again,
such evidence is merely cumulative of other record evidence that lends
Allen’s credibility suspect as to facts other than his identification of this
Defendant. * * *
Neither does new evidence that Allen hid or disposed of certain items
at the crime scene before calling the police (see Motion for Leave to File
New Trial Motion, attached Sentencing Hearing/Transcript of Proceedings,
pp. 33, 50) warrant the relief that Defendant now seeks. Contrary to
Defendant’s suggestion that Allen’s 2003 testimony shows he “wip[ed]
down surfaces that would/could have revealed latent prints of other’s [sic]
that may have played key roles in the crime” (Motion for Leave to File New
Trial Motion, Memorandum in Support, p. 1), nothing in the limited excerpts
of testimony produced to this Court makes reference to Allen wiping down
any surfaces at the crime scene. (See Motion for Leave to File New Trial
Motion, attached Sentencing Hearing/Transcript of Proceedings).
Moreover, even if evidence of such had been produced, neither such
evidence nor the evidence in fact produced re Allen’s testimony about
“stash[ing]” pagers and phones and “dumping” drugs (see id., pp. 33, 50) is
material to Allen’s positive identification of Defendant Johnson as one of the
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assailants responsible for these crimes. Consequently, the new evidence
regarding alterations to the crime scene admittedly made by Allen cannot
be said to “disclose[ ] a strong probability that it will change the result if a
new trial is granted,” and Defendant is not entitled to a new trial on that
basis. * * *
As to the remaining evidence advanced in support of Defendant’s
new trial motion, although testimony divulging previously undisclosed
witnesses seemingly would present a more compelling argument for a new
trial, the Court concludes that Allen’s testimony about the presence of two
Colombian drug suppliers in the basement at the time of these crimes (see
Motion for Leave to File New Trial Motion, attached Sentencing
Hearing/Transcript of Proceedings, pp. 18, 21, 33) also does not warrant a
new trial in this case. The actual content of Allen’s testimony does not
support Defendant’s suggestion that those two individuals “could have
provided visual and or auditory testimony” (Motion for Leave to File New
Trial Motion, Memorandum in Support, p. 7) material to his guilt or
innocence. Instead, Allen’s testimony indicates that those two individuals
were drug suppliers from New York who remained in the home’s basement
throughout the time that the three intruders identified by Allen as Johnson,
DeWitt, and Sinkfield were in the house. (Motion for Leave to File New Trial
Motion, attached Sentencing Hearing/Transcript of Proceedings, pp. 21,
33). That testimony discloses no reason to believe that the two unnamed
individuals saw anything relevant to Defendant’s responsibility for the
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crimes of which he was convicted. Given Allen’s indication that such
individuals were Colombians in from New York to deliver drugs to the house
where the crimes occurred (see id.), there also is no reason to believe that
those two individuals had any familiarity with the intruders which might be
of benefit in identifying the perpetrators based on what the two may have
been able to hear from the basement, and thus potentially exculpatory as
to Defendant Johnson. Accordingly, and irrespective of very legitimate
questions about the prospect of securing those two individuals’ presence at
trial to testify as witnesses, the mere fact that two previously undisclosed
persons were in the basement at the crime scene during the crime does not
“disclose[ ] a strong probability” that something perceived by those persons
from that limited vantage point “will change the result if a new trial is
granted.” * * *
(Doc. #8 at 9-13).
{¶ 18} On appeal, Johnson does not challenge any particular aspect of the trial
court’s analysis. Instead, he repeatedly asserts that the trial court was obligated to grant
him an evidentiary hearing. With regard to the showing needed to obtain leave to seek a
new trial, no hearing was necessary. Even without a hearing, the trial court agreed with
Johnson that he had made the requisite showing to justify his delay. The trial court denied
Johnson leave, however, because his newly-discovered evidence failed to disclose a
strong probability that it would change the result if a new trial were granted. The trial court
was capable of making this determination by considering each cited portion of Allen’s
2003 federal-court testimony in light of Allen’s 1992 testimony at Johnson’s trial. Under
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the circumstances before us, the trial court did not abuse its discretion in finding an
evidentiary hearing unnecessary to reach its conclusion. Nor do we find an abuse of
discretion in the trial court’s substantive determination that Allen’s 2003 federal-court
testimony would be unlikely to change the result if a new trial were granted. The trial court
cogently and correctly analyzed Johnson’s newly-discovered evidence and set forth valid
reasons supporting its determination that pursuing a new-trial motion premised on Allen’s
2003 testimony would be futile. We cannot say that the trial court’s thorough analysis,
quoted above, is unreasonable, arbitrary, or unconscionable.
{¶ 19} Finally, Johnson contends the trial court erred in denying him leave despite
finding that it “‘affirmatively appears from the record that the defendant was prejudiced
[by the absence of such evidence] or was prevented from having a fair trial.’” (Appellant’s
brief at 8, quoting Doc. #8 at 7). Contrary to Johnson’s argument, the trial court did not
find that he was prejudiced or denied a fair trial due to the absence of his newly-
discovered evidence. In the quoted passage, the trial court plainly was setting forth the
legal standard for obtaining a new trial based on newly-discovered evidence. The portion
of the trial court’s decision quoted by Johnson reads, in context, as follows:
Irrespective of the timing of such a motion, however, a new trial
based on newly discovered evidence is warranted only when that new
evidence is “material to the defense,” Crim.R. 33(A)(6), and it “also
affirmatively appears from the record that the defendant was prejudiced [by
the absence of such evidence] or was prevented from having a fair trial.”
Crim.[R.] 33(E)(5). * * *
(Doc. #8 at 7).
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{¶ 20} Johnson has misread the foregoing language, which does not contain a
finding by the trial court that the absence of Allen’s 2003 federal-court testimony
prejudiced him or deprived him of a fair trial. Accordingly, we find his argument on that
issue unpersuasive.
{¶ 21} Based on the reasoning set forth above, we overrule Johnson’s assignment
of error and affirm the judgment of the Montgomery County Common Pleas Court.
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FAIN, J., and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Derrick L. Johnson
Hon. Mary L. Wiseman