State v. Morris

[Cite as State v. Morris, 2018-Ohio-4527.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27875
:
v. : Trial Court Case No. 2009-CR-2159/1
:
D’ALCAPONE A. MORRIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 9th day of November, 2018.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} This matter is before the court on the appeal of Defendant-Appellant,
D’Alcapone Morris, from a trial court judgment overruling and dismissing his post-
conviction petition for relief. According to Morris, the trial court abused its discretion by
dismissing his successive post-conviction petition because the record shows that Morris
was unavoidably prevented from discovering the facts upon which he relied and that, but
for the constitutional error in his trial, no reasonable fact-finder would have found him
guilty.
{¶ 2} Morris further contends that that court abused its discretion by failing to hold
an evidentiary hearing on his successive petition before dismissing it. His argument is
based on a claim that evidence outside the record sets forth sufficient operative facts
demonstrating substantial grounds for relief. Finally, Morris maintains that his conviction
is voidable because trial counsel provided ineffective assistance of counsel.
{¶ 3} We conclude that the trial court lacked jurisdiction to consider Morris’s
successive petition for post-conviction relief, based on Morris’s failure to meet the
threshold requirements to excuse his untimely petition under R.C. 2953.23(A)(1).
Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} This is the fourth appeal we have considered in connection with Morris’s
case. In 2012, we affirmed Morris’s conviction and sentence of 35 years to life on
charges of murder, aggravated burglary, aggravated robbery, and a firearm specification.
State v. Morris, 2d Dist. Montgomery No. 24034, 2012-Ohio-22 (Morris I). Morris did not
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appeal from that judgment to the Supreme Court of Ohio.
{¶ 5} In September 2015, Morris filed a motion for leave to file a delayed motion
for new trial; the trial court overruled this motion in November 2015. Shortly after the trial
court’s decision, Morris filed a motion asking the trial court to provide him with the
transcripts of his trial. This motion was also denied. After Morris appealed from both
judgments, we consolidated the appeals.
{¶ 6} After the case had been briefed, Morris asked us to remand the case to the
trial court to correct the record to include an affidavit that he purportedly submitted to the
trial court. We denied this request in September 2016, because Morris admitted he had
not submitted the affidavit in question to the trial court. We noted that the Ohio Appellate
Rules did not allow us to add matters to the record that the trial court had not considered.
See State v. Morris, 2d Dist. Montgomery No. 26949, 2016-Ohio-7417, ¶ 6 (Morris II).
{¶ 7} We then filed an opinion on March 31, 2017, affirming the trial court’s
judgments on the motion for leave and the motion for transcripts. State v. Morris, 2d
Dist. Montgomery No. 26949, 2017-Ohio-1196 (Morris III).
{¶ 8} The factual background of Morris’s case, according to Morris I, is as follows:
The record reflects that a jury found Morris guilty following an April
2010 trial. The State's evidence at trial established that on June 3, 2009,
Morris and a companion, Michael Guy, arranged to have a female, Nichelle
White, drive them to purchase marijuana from an individual named Richard
Pogue. Upon arriving at Pogue's residence, they discovered that he did
not have the marijuana. Pogue agreed, however, to accompany them to
the home of Javon Buckman, who had marijuana available. White drove
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the three men to Buckman's house on Kingsley Avenue. Once there,
Buckman would allow only two of them to enter. As a result, Pogue and
Guy went inside while Morris stayed outside.
Inside the house, Buckman handed Guy some marijuana. Instead
of paying, Guy pulled out a revolver he earlier had obtained from Morris and
ordered Buckman and Pogue to the floor. As that was happening, Morris
entered through the side door, punched Buckman and Pogue in their faces,
took the revolver from Guy, and declared that Buckman and Pogue were
about to die. With Guy standing in front of him and Morris standing behind
him, Buckman heard Morris cock the revolver and fire a single shot. Guy
and Morris then rifled through Buckman's pockets before fleeing the scene
in White's waiting car. Pogue died as a result of a point-blank gunshot
wound to his back. During their investigation, police identified Guy and
Morris as suspects. They first located Guy, who led them to White. They
later found Morris hiding under insulation in the attic of his girlfriend's house.
Morris testified at trial and admitted being at Buckman's house with
Guy and Pogue on the night in question. He admitted bringing a revolver
with him but denied knowing about a robbery. According to Morris, he
entered the house after hearing or seeing commotion inside and saw Guy
brandishing the gun. He testified that he was attempting to get the gun
from Guy when it “went off.” The jury nevertheless convicted Morris of all
charges against him. The trial court imposed an aggregate sentence of
thirty-five years to life in prison.
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(Footnote omitted.) Morris I, 2d Dist. Montgomery No. 24034, 2012-Ohio-22, at ¶ 2-4.
{¶ 9} On March 24, 2016 (while the appeal in Morris III was pending), Morris filed
a petition for post-conviction relief in the trial court. In this petition, Morris alleged that in
February 2016, a State witness, Javon Buckman, began writing to him through the inmate
J-Pay system while Buckman was incarcerated at Ross Correctional Institution.
According to Morris, Buckman eventually admitted that he had lied at trial and that he had
changed his story to avoid being charged with possession of drugs. Morris contended
that the victim, Richard Pogue, had not been shot in the back as Buckman testified, but
was shot in the chest during a struggle for the gun. Morris alleged that this was newly
discovered evidence, and that the State knew that Buckman had lied. In a second claim,
Morris alleged that the State had withheld evidence from the defense because the
defense was never made aware of the fact that Buckman had entered into a plea deal
with the State.
{¶ 10} The State did not respond to the petition, and on April 27, 2017, the trial
court dismissed the petition and overruled other requests Morris had filed, like a motion
for appointment of counsel and appointment of an expert. See Doc. # 10. Among other
things, the trial court concluded that the petition was untimely and that Morris failed to
offer any evidence or information concerning the fact that he had been unavoidably
prevented from timely filing the petition. Id. at p. 8. Morris did not appeal from the trial
court’s judgment.
{¶ 11} In June 2017, Morris filed a motion for production of the autopsy report and
trial exhibits. The trial court denied this motion on September 6, 2017, and Morris did
not appeal. Subsequently, on September 19, 2017, Morris filed a second petition for
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post-conviction relief. The denial of this petition is the subject of the current appeal.
{¶ 12} The petition was supported by the affidavit of Michael Guy, dated July 8,
2017; the affidavit of Patrick Davis, dated September 14, 2015; and Morris’s own affidavit,
dated August 25, 2017. The grounds asserted in the petition were the same as the
alleged errors that Morris cites on appeal. The State filed a motion to dismiss the
petition. After considering the matter, the trial court filed a judgment in January 2018,
concluding that the petition was untimely, and that Morris failed to offer information or
evidence that he was unavoidably prevented from discovering the facts on which the
petition was based. The court further found that the issues in the petition were barred
by res judicata. Finally, after considering the merits, the trial court found that the petition
had no merit. Morris timely appealed from the trial court’s dismissal of his petition.
II. Alleged Error in Dismissing the Petition for Untimeliness
{¶ 13} Morris’s First Assignment of Error states that:
The Trial Court Abused Its Discretion When It Dismissed Morris[‘s]
Successive Post-Conviction Petition When the Record Showed That (1)
Morris Was Unavoidably Prevented From Discovery of the Facts Upon
Which He Relies, and (2) But for the Constitutional Error in His Trial, No
Reasonable Factfinder Would Have Found Morris Guilty.
{¶ 14} Under this assignment of error, Morris concedes that his petition was
untimely, but argues that he was unavoidably prevented from discovering the facts
presented in Guy’s affidavit. Morris contends that he attempted to reach out to Guy after
trial, and that Guy only recently contacted him to express willingness to provide an
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affidavit. According to Morris, he also established constitutional error because Guy’s
affidavit indicated that Morris did not come to the house to rob Buckman, and that the
shooting was accidentally done during a brief struggle in which the victim, Pogue, lunged
at Morris.
{¶ 15} Under R.C. 2953.21(A)(2), petitions for post-conviction relief, except as
otherwise provided by R.C. 2953.23, must “be filed no later than three hundred sixty-five
days after the date on which the trial transcript is filed in the court of appeals in the direct
appeal of the judgment of conviction or adjudication * * *.”1 The exception pertinent to
this case, as found in R.C. 2953.23, states that:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition
filed after the expiration of the period prescribed in division (A) of that
section or a second petition or successive petitions for similar relief on
behalf of a petitioner unless * * * :
(1) Both of the following apply:
(a) * * * [T]he petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely to
present the claim for relief * * *.
(b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have found
1 When Morris was convicted, the time limit was 180 days. See State v. DeVaughns,
2017-Ohio-475, 84 N.E.3d 332, ¶ 25, fn.2 (2d Dist.). For purposes of the present appeal,
this is irrelevant, as Morris’s petition was filed many years after August 26, 2010, when
the transcript was filed in his direct appeal.
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the petitioner guilty of the offense of which the petitioner was convicted * * *.
{¶ 16} Unless untimely filing is excused under R.C. 2953.23, a trial court lacks
jurisdiction to consider untimely or successive petitions for post-conviction relief.
DeVaughns at ¶ 25. As has been often stressed, post-conviction petitions are civil
collateral attacks on the criminal judgment, and the remedy is narrowly prescribed. State
v. Steffen, 70 Ohio St. 3d 399, 410, 639 N.E.2d 67 (1994); State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. As a result, “in a postconviction
proceeding, a convicted defendant has only the rights granted him by the legislature.”
State v. Dean, 187 Ohio App. 3d 495, 2010-Ohio-1684, 932 N.E.2d 918, ¶ 11 (2d Dist.).
{¶ 17} We review the trial court’s ruling for abuse of discretion, which “most often
involves an ‘unreasonable’ decision that is not supported by a sound reasoning process.”
State v. Mackey, 2018-Ohio-516, 106 N.E.3d 241, ¶ 8 (2d Dist.), citing Gondor at ¶ 58.
{¶ 18} “ ‘The phrase “unavoidably prevented” means that a defendant was
unaware of [the] facts and was unable to learn of them through reasonable diligence.’ ”
State v. Buennagel, 2d Dist. Greene No. 2010 CA 74, 2011-Ohio-3413, ¶ 25, quoting
State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 19.
{¶ 19} With respect to Michael Guy, Morris was well aware of his existence and
location at all relevant times before trial. Morris was arrested on the indictment in August
2009 and remained in the Montgomery County Jail until trial, due to the very high bail
amount that had been set. On November 19, 2009, the State filed a subpoena for the
original scheduled trial date, and asked that it be served on Guy at the Montgomery
County Jail. After the original trial date was continued, the State subpoenaed Guy for
trial the week of February 8, 2010, again at an address at the Montgomery County Jail.
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Guy was also on witness lists filed by the State on January 29, 2010, and by Morris on
February 1, 2010, with Guy’s address still being at the Montgomery County Jail.
{¶ 20} After a time waiver was filed, trial was rescheduled for April 19, 2010, and
the State again subpoenaed Guy at the jail address. The State’s amended list of
witnesses, filed on April 10, 2010, listed Guy as a State witness, with a listed address at
the Montgomery County Jail. Given these facts, Morris was well aware of Guy’s location
and could have subpoenaed him to testify at trial. Compare State v. Moody, 2d Dist.
Montgomery No. 27737, 2018-Ohio-2561, ¶ 5 (finding untimeliness in filing post-
conviction petition unexcused, because defendant would have been aware of alibi
witnesses at time of trial). Thus, there was no unavoidable delay concerning Guy.
{¶ 21} In his successive petition, Morris did not discuss the issue of unavoidable
delay with respect to Patrick Davis, although he did state in passing that Davis’s account
was “new” evidence. According to the affidavit that was filed, Davis went to Javon
Buckman’s house the night of the murder to buy “weed” from Buckman. After Davis got
out of his car, he heard a gunshot and saw two men running out of the side door of the
house. He then heard another gunshot and saw an individual stumbling out of the front
door. Davis claimed that he did not then know someone had been killed, but had recently
heard two inmates talking about the case. Davis said that he told these inmates about
what he had seen and of his willingness to sign an affidavit and testify.
{¶ 22} The intent of submitting this affidavit was to imply that another unidentified
individual fired a shot after Morris left Buckman’s house and that this shot, rather than
Morris’s shot, killed Pogue. However, the record in the trial court is clear that Morris
possessed this information shortly after he filed his motion for leave to file a delayed
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motion for new trial. Specifically, that motion was filed on September 10, 2015, and the
Davis affidavit is dated September 14, 2015.
{¶ 23} As was noted, our decision in Morris II affirmed the trial court’s denial of
Morris’s request for leave to file a delayed motion for new trial. See Morris II, 2d Dist.
Montgomery No. 26949, 2017-Ohio-1196, at ¶ 9-20 and 36. When we discussed what
had occurred in the trial court, we noted Morris’s claim that “Joshua Davis, another inmate
at Ross Correctional Institution, had overheard him discussing his case in August 2015.
Davis (who was previously unknown to Morris) indicated that on the night of the murder,
he was going to Buckman's house to buy marijuana. While Davis was walking toward
the house, he heard a gunshot and saw two African-American males running out of the
door. As Davis was leaving, he heard another shot and saw another African-American
male stumbling out the other door of the house, at which point Davis stated that ‘he got
his ass out of there.’ ” Id. at ¶ 5.
{¶ 24} Despite the discrepancy in the first names, “Joshua” and “Patrick” are
clearly the same person, and Morris had obtained a signed affidavit from Davis within a
few days after he asked in 2015 to file a delayed motion for a new trial. However, Morris
did not file this affidavit with the trial court at that time. He also did not file the affidavit
as part of his first petition for post-conviction relief, which was filed on March 24, 2016.
Instead, he waited until September 19, 2017, to file the affidavit as part of his second
petition for post-conviction relief. This was more than two years after Morris obtained
the affidavit, and the delay was clearly avoidable.
{¶ 25} Accordingly, we agree with the trial court that Morris failed to establish the
first prong under R.C. 2953.23(A)(1). As a result, the trial court lacked jurisdiction to
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consider Morris’s successive petition. DeVaughns, 2017-Ohio-475, 84 N.E.3d 332, at
¶ 25. In view of the failure to satisfy one of the two required elements in R.C.
2953.23(A)(1), we need not address whether Morris showed “clear and convincing
evidence that, but for constitutional error at trial, no reasonable factfinder would have
found” him guilty of the offenses of which he was convicted. R.C. 2953.23(A)(1)(b).
{¶ 26} Based on the preceding discussion, the First Assignment of Error is
overruled.
III. Failure to Hold an Evidentiary Hearing
{¶ 27} Morris’s Second Assignment of Error states that:
The Trial Court Abused Its Discretion When It Failed to Hold an
Evidentiary Hearing on Morris[’s] Successive Post-Conviction Petition
When the Full Balance of the Evidence Dehors the Record Set Forth
Sufficient Operative Facts That Demonstrate Substantial Grounds for
Relief.
{¶ 28} Under this assignment of error, Morris contends that he demonstrated
substantial grounds for relief because he submitted three affidavits containing evidence
outside the record. We have already discussed two of the affidavits. The third is the
affidavit of Morris, who says that he was not “totally forthcoming” at trial. His reason for
this is that he knew the autopsy report had been amended and was afraid the jury would
not believe him, since Guy was not present to tell the truth as to what had happened.
{¶ 29} We need not address this assignment of error. Morris’s “failure to meet the
threshold requirement” imposed by R.C. 2953.23(A) renders the assignment of error
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moot. State v. Beavers, 2d Dist. Montgomery No. 20572, 2005-Ohio-1205, ¶ 24. The
assignment of error, therefore, is overruled as moot.
IV. Ineffective Assistance of Trial Counsel
{¶ 30} Morris’s Third Assignment of Error states as follows:
Morris[’s] Conviction and Sentence Is Voidable Because Morris Was
Denied the Effective Assistance of Counsel in Violation of His Rights Under
the Sixth Amendment of the United States Constitution.
{¶ 31} Under this assignment of error, Morris contends that his trial counsel
rendered ineffective assistance because he failed to properly investigate the case.
According to Morris, if trial counsel had investigated, he would have discovered that Guy
was willing to testify at trial, and would have also learned that Morris was not involved in
a plan to rob Buckman. In addition, Morris contends that proper investigation would have
revealed that Pogue was shot in the chest and not in the back as indicated by the autopsy
report, and that a second shooter (as revealed by the Davis affidavit) may have existed.
{¶ 32} Again, due to Morris’s failure to meet the necessary requirements in R.C.
2953.23(A), this assignment of error is overruled as moot. See State v. Yates, 2d Dist.
Montgomery No. 25308, 2013-Ohio-3388, ¶ 21 (overruling claim of ineffective assistance
of trial counsel as moot, due to defendant’s untimely filing of petition for post-conviction
relief).
V. Conclusion
{¶ 33} Morris’s First Assignment of Error having been overruled, and the remaining
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assignments of error having been overruled as moot, the judgment of the trial court is
affirmed.
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DONOVAN, J., concurs.
HALL, J., concurring:
{¶ 34} I wholeheartedly agree that Morris failed to demonstrate that he was
“unavoidably prevented from discovery of the facts upon which the petitioner must rely to
present the claim for relief.” R.C. 2953.23(A)(1)(a). Therefore, Morris’s successive post-
conviction petition, which was filed more than seven years after the filing of the trial
transcript in his direct appeal, was not timely and without excuse for the late filing. For
that reason alone, the trial court did not have jurisdiction to consider the petition and we
affirm its decision. I write separately to elaborate on the fact that Morris has also failed to
show “by clear and convincing evidence that, but for constitutional error at trial, no
reasonable factfinder would have found the petitioner guilty.” R.C. 2953.23(A)(1)(b). This
failure also separately prevented the trial court from considering the late petition.
{¶ 35} There should be no doubt that, even if the purported new evidence included
in the affidavit of Michael Guy were considered, and assuming Guy would testify
consistent with the affidavit’s terms, Morris would have been found guilty. I start with the
undisputed evidence that Pogue was shot in the “upper back sort of just left of midline.”
T. 538. At the trial, then deputy coroner Kent Harshbarger testified about Pogue’s
wounds. Photographs of Pogue’s shirt from the scene and of his body at the autopsy were
displayed. Harshbarger described the wound in the back, the pattern of the wound, and
the thermal effect on the skin, referencing Exhibit 9 and others. He described why it was
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a “gunshot wound of entrance” T. 539. Harshbarger was shown a photograph from the
scene depicting the back of Pogue’s shirt showing “soot, and gunpowder, and its all been
deposited right around that defect in the shirt.” T. 542. Harshbarger testified this meant
the gunshot wound to the back was a “contact wound” T. 539. Also displayed were
State’s Exhibits 12 and 13, photos of the front of Pogue’s body, where Harshbarger
pointed out “[t]his is a gunshot wound of exit on the anterior left chest or front of the left
chest.” T. 544. He also explained why he concluded this was an exit wound. Morris
makes much of an apparent dictation or transcription error that was made in the original
coroner’s report indicating that the direction of travel of the bullet through the body was
“front to back” T. 550. The detailed trial testimony, confirmed by specific photographic
evidence, was that “[c]learly, the entrance wound is in the back and comes out the front.
It’s a back to front pathway. My report originally read the front to back, which clearly is an
error.” T. 551.2 In my view, the evidence that Pogue was shot in the back at point blank
range was undisputed. No reasonable juror could have concluded that Pogue was shot
in some other way.
{¶ 36} To provide more context, Javon Buckman, the surviving victim of the
robbery, testified that after Pogue and Michael Guy initially entered the house, Guy pulled
out a gun and told Buckman and Pogue to get down. As they were doing so, Morris barged
in, took the weapon from Guy, and threatened Buckman and Pogue that they were about
to die. Both victims apparently attempted to get up but again laid back down. Morris was
holding the gun when it went off. Buckman and Pogue were on the floor when Morris fired
2
The original report was signed June 25, 2009. T. 550. The amended report was signed
November 11, 2009. Id. The jury trial commenced on April, 19, 2010.
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the weapon. T. 398-404.
{¶ 37} That leads to the pertinent part of Guy’s affidavit, which is as follows:
7. While I had them both on the ground [decedent Richard Pogue
and victim Javon Buckman], D’Alcapone [Morris] came in and asked what
was going on because he had no idea that I was going to rob Mr. Buckman.
8. He [Morris] then asked me to hand him the gun to try to defuse the
situation and in the process told me to “chill out”.
9. While this exchange was going on, Richard Pogue lunged at
[Morris] while he [Morris] had the gun in his hand and a struggle ensued
after which I heard a gunshot.
Affidavit of Michael Guy. Morris’s contention is that if Guy’s affidavit’s version of
events were presented to a jury, the jury could reasonably believe that Morris
accidentally shot Pogue in the back at point blank range, causing a “contact
wound,” when Pogue purportedly “lunged” at Morris and a ”struggle ensued.” On
its face, that conclusion is preposterous.
{¶ 38} In addition, Michael Guy’s seven-years-late affidavit is suspicious. Guy’s
affidavit itself says that his original statements to the police were lies. “I had lied about
what happened.” Id. at ¶ 17. So Guy’s original statements must have been different than
his current story that Pogue was shot while standing as a result of lunging at Morris. Guy
did not testify at the trial. Neither the State nor the defense called him, although he was
listed on each of their witness lists. But the trial transcript provides a window to the
previous story Guy had told police. In opening statements, Morris’s counsel stated the
following:
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* * * Michael Guy, you’re going to hear, is going to say that he went to that
house on June 3rd, 2009, without any idea, without any type of consulting
with Mr. Morris. Went there to buy some marijuana and that was all that was
going to happen. And he’s going to tell you that he walked into that house
and unbeknownst to him, out of the blue, without any type of provocation,
that my client [Morris] pulls a handgun and tells hey, this is a robbery; hey,
get down on the ground; hey, this is what’s going down and you know it;
and hey, you guys are going to die.
That’s what Michael Guy is going to tell you.
T. 306.
{¶ 39} “In reviewing petitions for post-conviction relief, a trial court may, in the
exercise of its sound discretion, weigh the credibility of affidavits submitted in support of
the petition to determine whether to accept the affidavit as true statements of fact.” State
v. Thrasher, 2d Dist., Greene No. 06CA0069, 2007-Ohio-674, ¶ 12 citing State v.
Calhoun, 86 Ohio St. 3d 279, 284, 714 N.E.2d 905. Michael Guy’s affidavit is simply not
believable because it is impossible that Pogue was shot in the back at point blank range
as a result of lunging at Morris and because Guy previously provided a markedly different
story to the police. Reasonable jurors would likely find Guy’s current story to be fabricated
and they would still have found Morris guilty.
{¶ 40} Most damaging to Morris’s petition, however, is his trial testimony and his
own affidavit in support of postconviction relief. Morris’s testimony at trial was:
Q. Okay. So, what is – what do you see Mikey [Michael Guy] doing at this
point in time when you ask for this gun?
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A. He – he was giving me the gun.
Q. Okay. And explain what happened.
A. As he was reaching to give me the gun, the gun went off. I never reached
the gun though. But the gun went off. Red [Richard Pogue] was laying
on the ground, Boo [Javon Buckman] was laying on the ground.
Everybody still seemed the same and we left.
(Emphasis added.) T. 752.
{¶ 41} Morris’s trial testimony directly contradicted the story now told in Michael
Guy’s affidavit. Morris testified Pogue was on the floor when Pogue was shot, not lunging
at Morris. Morris testified that he never reached the gun so it must have still been in Guy’s
possession when it went off. Morris, realizing these discrepancies, tries to claim in his
brief that “Guy[’]s testimony corroborated the physical evidence in the case which would
show that Pogue was shot in the chest and not in the back as indicated in the autopsy
and amended autopsy report.” Brief of Defendant-Appellant at 11. But the physical
evidence, as elaborated upon at the beginning of this opinion, convincingly supported the
coroner’s testimony that Pogue was shot in the back at point blank range. To further Guy’s
lunging story, Morris now attempts to change his own sworn trial testimony by a sworn
affidavit admitting he committed perjury at the trial.
10. At my trial I testified as to what occurred on this night, but wasn’t
totally forthcoming because I knew the autopsy report was amended, and I
was scared since Michael Guy was not present to tell the truth as to what
happened, the jury would not believe me. So I tried to make my testimony
conform with the amended autopsy report.
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Morris Affidavit ¶ 17. The amended autopsy report says Pogue was shot in the back. So
Morris admits he intentionally lied on the witness stand by saying Pogue was on the
ground when shot, instead of Pogue being shot in the front while lunging at Morris while
on his feet facing Morris. One can reasonably conclude that Morris’s postconviction
submissions are no more than an attempt at a fraud upon the court by recreating the
existing evidence.
{¶ 42} Even if Morris declined to testify in a retrial, either or both of his prior
conflicting sworn statements (that Pogue was on the ground when shot rather than
lunging, or that Guy, rather than Morris, was holding the gun when it went off) would be
admissible in evidence. State v. Smith, 12th Dist. Butler No. CA2009-02-038, 2010-
Ohio-1721, ¶ 105, citing Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20
L. Ed. 2d 1047 (1968) and State v. Slone, 45 Ohio App. 2d 24, 340 N.E.2d 413 (10th
Dist.1975). No reasonable juror would find Morris’s changed story to be credible.
{¶ 43} In sum, Morris’s postconviction submissions were inconsistent with the
physical evidence and inconsistent with Guy’s and Morris’s previous stories, which are
also inconsistent with each other. Morris has simply failed to show by clear and
convincing evidence that no reasonable factfinder would have found him guilty. In my
opinion, any reasonable juror reviewing the shifting sands presented by Morris’s petition
would still find him guilty.
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Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Anthony R. Cicero
Hon. Mary Katherine Huffman