State v. Johnson

[Cite as State v. Johnson, 2022-Ohio-523.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 110163 and 110228
v. :
ANTHONY E. JOHNSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: February 24, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-00-400550-ZA and CR-00-397780-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Ochocki, Assistant Prosecuting
Attorney, for appellee.
Jennifer Paschen Bergeron and Mark Godsey, Ohio
Innocence Project, University of Cincinnati College of
Law, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant Anthony E. Johnson (“Johnson”) appeals from
the trial court’s denial of his motion for leave to file a motion for new trial without a
hearing. For the following reasons, we reverse and remand.
Factual and Procedural History
This appeal stems from two robberies for which Johnson was
convicted during a joint bench trial for four consolidated cases in 2001.1 This court
summarized the facts of these incidents in Johnson’s direct appeal as follows:
Case CR-399616 originally involved one count each of aggravated
robbery, attempted rape, kidnapping, gross sexual imposition, and
receiving stolen property; the lone female victim is hereinafter referred
to as MG. Case CR-400550 originally involved one count each of
aggravated robbery and kidnapping; the two female victims are
hereinafter referred to as BB and RS. During the course of the trial, the
defense offered no witnesses in its case-in-chief.
***
CR-400550 [“parking garage robbery”]
The offenses in this case occurred at approximately 6:30 to 7:00 p.m.
on September 15, 2000 at the St. Maron Church parking garage located
near East 12th Street and Carnegie Avenue in downtown Cleveland.
Both of the female victims testified on behalf of the state.
[BM] testified she and her co-worker friend, co-victim RS, had just
eaten at a birthday dinner for BB and were going to BB’s car, a Ford
Focus coupe. It was still light out. After BB had placed some of her
birthday balloons inside the rear passenger seat area of the car, and RS
was standing beside the passenger side of the car, BB stood up and
turned to find RS standing with a man with a green jacket. The man
1Four separate cases were consolidated for Johnson’s original trial: the two
robberies at issue in this appeal, a third robbery for which Johnson has maintained
his innocence since trial, and a drug possession case in which Johnson pleaded
guilty and has not attempted to challenge in this or any other appeal.
was holding RS with his arm around her throat holding a knife. As BB
walked toward the rear of the car, she told the man that they did not
have any money. BB then spotted another man out of the corner of her
eye. BB began to scream and run; the other man chased her. As BB
reached the Carnegie entrance to the parking garage, she heard the
green-jacketed man say to his accomplice, We got the money. Let’s go
man. BB then fell at the entrance to the garage. BB did not see where
the two assailants went, but she then returned to her car where she
found RS alone inside the car. They then went to the police and made
a report. Approximately ten days after the attack, BB observed a
photographic array at the police station. BB focusing on the suspect’s
eyes and hair, picked out photo number 2 as the green-jacketed, knife-
wielding assailant, after only seconds of viewing the array, and
identified appellant in court as that assailant who was depicted in photo
number 2.
RS, testifying for the state, generally corroborated the version of events
testified to by BB. In addition, RS testified to more information. RS
stated that the person that grabbed her from behind demanded that she
surrender her purse. She did not get a good look at this man, but did
note that he was an African-American male who wore a green
windbreaker made with a rubber-type material and he pointed a knife
at her throat. RS observed the other man, wearing a yellow polo shirt,
advance on BB as BB started to scream and run away. The man holding
RS loosened his grip and then removed the backpack purse RS was
wearing over her left shoulder. RS stated that the purse contained, in
part, her checkbook, credit cards, loose change, and $540 in currency
which was from her cashing her payroll check. After taking the
backpack, the man swung it and called to the other man that he had it.
At that point, the assailants ran away. Her backpack purse, minus her
money, was recovered in a nearby alley later that evening. RS was
unable to identify her assailant when shown a photographic array. At
the police station, RS stated on cross-examination that she perused and
identified a green windbreaker, a photograph of which was admitted as
State Exhibit 9, as the windbreaker which her assailant had worn.
***
CR-397780 [“court reporting school robbery”]
The offenses in this case occurred at 2:30 p.m. on October 9, 2000.
Victim SB testified that she and the two other victims (HP and BC) had
just left classes at The Academy of Court Reporting located in The
Rockefeller Building on West 6th Street in downtown Cleveland and
were going to HP’s car, a four-door Ford Escort, which was parked in a
nearby alley. As the ladies were looking for a lost hamster which HP
believed was still in the car from that morning, a man came up behind
SB, who was at the rear passenger door, bumped her and told her to get
into the car. At first, SB did not obey, but changed her mind when the
man displayed a kitchen butcher knife from his windbreaker jacket. SB
identified the windbreaker shown in State Exhibit 10 as the appellant’s
windbreaker that she observed at the time of the offense. The other
victims and the appellant all got into the car; HP was driving. SB sat
beside the appellant in the rear seat while BC sat in the front passenger
seat.
While inside the car which was heading to the projects, located in the
vicinity of Cedar Avenue and East 30th Street in Cleveland which is
where the appellant instructed HP to drive toward, the appellant
instructed BC to hand over her purse to him; BC complied. Appellant
then instructed SB to get the wallet out of BC’s purse; SB found the
wallet and approximately $3.00 which was inside and which was then
taken by appellant. Appellant then searched SB’s purse and took
approximately $200 which was inside.
While the car was heading toward the projects, the appellant also
bragged that he had been the subject of reporting on the front page of
the local daily newspaper.
When the car reached the projects, appellant exited the car and
departed, telling the victims to have a nice day as he left. The victims
then drove back to the school, where the police were summoned.
SB viewed a photographic array at the Third District, but was unable to
identify a suspect. The day after the robbery, SB viewed an in-person
line-up of approximately eight suspects at police headquarters, at
which time she identified the appellant. SB also identified the appellant
in court.
Victims BC and HP generally corroborated the testimony of SB.
BC added that appellant threatened to kill all of them. BC also stated
that the man who attacked them was very dark-skinned, that he locked
the car doors when all were inside, and that she looked at the
appellant’s face in the rear-view mirror from time-to-time while the car
was being driven. BC next stated that she had approximately $600 to
$800 cash in her purse, but that appellant only found, and took,
approximately $2.50 which was in the change section of her wallet. BC
identified a green hat with a polo emblem, see State Exhibit 8, as the
hat which appellant wore during the robbery. BC also identified the
windbreaker depicted in State Exhibit 10 as the same windbreaker
which appellant wore during the robbery.
BC, on the day of the robbery and while separated from the other
victims, identified the appellant (as depicted in photograph number 2)
from a photographic array at the police station. BC also identified the
appellant in court as her attacker and during a line-up at the police
station.
Victim HP added that she repeatedly observed the appellant in the rear-
view mirror during the robbery. HP also identified the windbreaker in
evidence as the windbreaker worn by appellant during the robbery. HP
also testified that appellant wore a green hat with a polo emblem during
the robbery, and identified State Exhibit 8 as that hat. HP stated that
appellant took $6.00 from her which she had kept in her pocket. HP
identified the appellant in court as her robber. HP, while separated
from BC, identified appellant as photograph number 2 in a
photographic array shown to her at the police station on the day of the
robbery. HP was with the police after the robbery, touring the projects
area looking for the attacker, when the police located the abandoned
windbreaker and hat, which HP, at the time, identified as having
belonged to the robber. HP, a day or so after the robbery and without
the presence of her co-victims in the line-up viewing room, identified
appellant from a line-up at police headquarters.
State v. Johnson, 8th Dist. Cuyahoga No. 79831, 2002-Ohio-1661, ¶ 2 (“Johnson
I”).
Following the bench trial, in the parking garage robbery case, the trial
court found Johnson guilty of one count of aggravated robbery and one count of
kidnapping, both with notices of prior conviction and repeat violent offender
specifications. In the court reporting school robbery case, the trial court found
Johnson guilty of two counts of kidnapping and three counts of aggravated robbery.
The court sentenced Johnson to a combined sentence of 25 years. In his direct
appeal, Johnson raised four assignments of error, challenging the weight and
sufficiency of the evidence, the nature of the eyewitness identification procedures,
and the imposition of consecutive sentences. This court affirmed Johnson’s
convictions but vacated part of his sentence and remanded for resentencing.
Johnson I at 33. Johnson appealed this court’s decision in Johnson I, and the Ohio
Supreme Court declined jurisdiction. State v. Johnson, 96 Ohio St.3d 1492, 2002-
Ohio-4534, 774 N.E.2d 766.
Since his direct appeal, Johnson has filed numerous postconviction
filings. Prior to securing representation from the Ohio Innocence Project, Johnson
filed a series of convoluted and seemingly contradictory pro se motions. On March
6, 2002, Johnson filed a pro se petition to vacate or set aside judgment of conviction
or sentence. On April 10, 2002, Johnson filed a pro se motion for voluntary
dismissal without prejudice of his March 6, 2002 petition. On April 18, 2002,
Johnson attempted to undo this by filing a pro se motion to withdraw the motion
for voluntary dismissal, which the trial court denied on May 16, 2002.
On May 14, 2002, Johnson filed a pro se motion for DNA testing in
only these two robbery cases. The same day, Johnson separately filed an affidavit,
dated May 10, 2002, from Frederick Norman (“Norman”), who was then in prison
for similar robberies that had occurred in the Cleveland area around the same time
as the robberies for which Johnson was convicted. In this May 10, 2002 affidavit,
Norman confessed that he committed the court reporting school robbery alone and
admitted that he had discarded some clothing and a hat immediately following the
robbery. On July 1, 2002, the trial court denied Johnson’s motion for DNA testing
without a hearing, and Johnson did not appeal that judgment.
On October 1, 2002, Johnson filed two pro se motions: a “motion for
order finding that defendant was unavoidably prevented from discovery of new
evidence in which he must rely pursuant to Criminal Rule 33(B)” and a “motion for
new trial pursuant to Criminal Rule 33(A)(2)(3)” regarding the robberies. Johnson
attached an additional affidavit from Norman, dated August 14, 2002, in which
Norman stated that he committed the parking garage robbery alone and that
Johnson did not participate in that robbery. On November 14, 2002, the trial court
denied Johnson’s October 1 motions without a hearing. Johnson appealed the
denial.
This court affirmed the judgment of the trial court, finding that the
court did not abuse its discretion in denying Johnson’s motion for a new trial
without a hearing. State v. Johnson, 155 Ohio App.3d 145, 2003-Ohio-5637, 799
N.E.2d 650, ¶ 20 (8th Dist.) (“Johnson II”). In affirming, this court considered only
the August 2002 affidavit from Norman and therefore noted that the affidavit
“specifically did not address his involvement, if any, in the other consolidated case
for which [Johnson] was found guilty.” Id. at ¶ 19.
On October 21, 2004, Johnson filed a pro se application for DNA
testing, attaching two more affidavits from Norman: a November 6, 2002 affidavit
in which Norman confirmed that he had signed the August 14, 2002 affidavit
attached to Johnson’s motion for a new trial, and a December 27, 2002 affidavit in
which Norman stated that he would be willing to provide DNA samples to prove that
he committed both the parking garage robbery and the court reporting school
robbery. On October 29, 2004, the trial court denied Johnson’s application for DNA
testing without a hearing. Johnson did not appeal this judgment.
On February 8, 2013, having secured representation from the Ohio
Innocence Project, Johnson filed a third application for DNA testing. Johnson
argued that his third application was not barred by res judicata because in 2006,
S.B. 262 altered Ohio’s DNA statute by lowering the burden to meet the definition
of “outcome determinative” and that advances in DNA testing would allow the
testing of a hair without a root, and possible other DNA could be recovered and
tested on the hat and jacket that were introduced as evidence at trial.
On August 23, 2013, the state filed a brief in opposition to Johnson’s
application for DNA testing. On September 10, 2013, the trial court denied
Johnson’s application without a hearing, stating:
The application fails to satisfy the statutory requirements for
acceptance under Ohio R.C. 2953.74(B)(1) since he did not request or
have DNA testing at the trial stage and at the trial stage, DNA testing
was available. Furthermore, under Ohio R.C. 2953.74(B)(1) and (C)(5),
Johnson fails to demonstrate the statutory requirement that the DNA
testing could be outcome determinative, such that in light of all
available evidence there would be a strong possibility that this court
would not have found him guilty.
On October 10, 2013, Johnson appealed.
On appeal, this court unanimously reversed the judgment of the trial
court, finding that DNA testing would be outcome determinative and remanding the
case for such testing. State v. Johnson, 2014-Ohio-2646, 14 N.E.3d 482 (8th Dist.)
(“Johnson III”).
On August 20, 2015, the trial court issued an agreed order instructing
the Cuyahoga County Prosecutor’s office and the Cuyahoga County Sheriff’s office to
coordinate the DNA testing of the hat and jacket and obtain DNA samples from
Norman for comparison. On September 28, 2015, the trial court issued a journal
entry ordering Norman to be transported from Trumbull Correctional Institution to
the Cuyahoga County Jail so that his DNA samples could be obtained.
On December 11, 2015, the state filed a “supplemental report
regarding chain of custody of biological material pursuant to R.C. 2953.75(B).”
(“supplemental report”). The supplemental report described that the evidence to be
tested was inexplicably missing, stating as follows:
On October 14, 2014, the State filed a Report Regarding Chain of
Custody of Biological Material stating that one unknown human hair
(referenced in SIU Lab Report No. 409130) was available for DNA
testing. Thereafter, a biological sample via buccal swabs was obtained
from inmate Frederick Norman for comparison purposes. On
November 18, 2015, the undersigned attempted to sign out the
unknown human hair from the Cleveland Police Property Room and
learned that the wrong hair – Anthony Johnson’s standard instead of
the unknown human hair – had been obtained from SIU and held for
DNA testing. The undersigned contacted P.O. Tom Ward of the
Cleveland Police Property Room and Tina Stewart, SIU Scientific
Examiner, to locate the correct hair.
On November 20, 2015, the undersigned was informed by Tina Stewart
that the unknown human hair could not be located. Ms. Stewart
provided a written report stating that “after searching the archives and
various other laboratory storage areas,” she was unable to locate the
evidence. A copy of the report is attached hereto.
On December 9, 2015, the undersigned and P.O. Ward searched a trash
bag associated with this case that is stored at the Cleveland Police
Property Room. The bag had previously been searched by P.O. Ward;
no items sought for DNA testing were found. In an abundance of
caution, the undersigned and P.O. Ward re-searched the bag together.
No items sought for DNA testing were found. None of the items found
inside the bag are individually bagged or tagged for identification. The
bag contains miscellaneous items including: one pair of navy nylon
Nike pants; a yellow cap; a black and red Ohio State baseball cap;
socks[;] two duffel bags; a fanny pack; a backpack; toiletries; a bolt
cutter; a screwdriver, and pornographic material.
In sum, the sole item believed to be available for DNA testing, one
unknown human hair, cannot be located.
The supplemental report also indicated that the state had conveyed
this information to defense counsel.
On January 6, 2016, Johnson filed a motion for an evidentiary
hearing to determine what happened to the missing evidence. The motion argued
that an evidentiary hearing could help determine what happened to the hair between
Cleveland police’s 2015 confirmation that the hair was in its possession and the
acknowledgement from the state that the evidence was missing. On January 11,
2016, the state filed a brief in opposition to Johnson’s motion for an evidentiary
hearing. The state argued that, as it described in the supplemental report, the hair
that Cleveland police had represented as the unknown hair held for testing was in
fact Johnson’s own hair that had been collected for use as a standard for DNA
testing. Therefore, according to the state, it was never in possession of the missing
hair. The same day, the state filed a motion to dismiss Johnson’s application for
DNA testing. On January 19, 2016, Johnson filed a brief in opposition to the state’s
motion to dismiss.
On October 19, 2016, the court held an evidentiary hearing. Eight
witnesses, including representatives from the City of Cleveland Division of Police
(“CDP”), the Cuyahoga County Prosecutor’s Office, the Cuyahoga County Court
Reporter’s Office, and the Cuyahoga County Clerk of Courts. The witness testimony
primarily concerned four pieces of evidence: a hat, a jacket, a bandana, and the
missing hair. The witnesses described their respective interactions with and
responsibility for various pieces of evidence throughout the trial proceedings in this
case. They also described unsuccessful attempts to locate the evidence. According
to the witness testimony, there is no record indicating that any of the evidence was
ordered destroyed.
Tina Stewart (“Stewart”) testified in her capacity as a scientific
examiner employed in the forensic laboratory at CDP. Stewart testified that at one
point, the lab had in evidence a hat and bandana described as property of Johnson.
Stewart explained where and when she searched for the missing hair and explained
that she was unable to find it. CDP patrolman Tom Ward (“Ward”), who has worked
in the CDP property room since 2001, also testified. Ward also explained searching
unsuccessfully for the missing hair. Ward also testified that the hat and bandana
referenced by Stewart had been signed out of the property room for court in 2001
and had never been returned to the property room.
Bruce Bishilany (“Bishilany”), the Chief Court Reporter for the
Cuyahoga County Court of Common Pleas, also testified. Bishilany testified as to
the court reporters’ office’s policies for holding evidence admitted during a trial.
Bishilany further testified that he worked directly with the court reporter assigned
to the case at trial to search for the missing evidence but that search did not yield
any evidence or additional information. Bishilany also testified that because his
office destroys records after 12 years, he could not say whether his office ever
received a jacket or hat in connection with this case.
Frank Kost (“Kost”), a Deputy Clerk with the Cuyahoga County Clerk
of Courts, also testified at the hearing. Kost similarly testified that in his search for
records and evidence in this case related to the hearing, he found an envelope of
exhibits primarily consisting of photos. He did not find a hat, jacket, or hair.
CDP Detective Michael Alexander (“Detective Alexander”) testified at
the hearing that he had worked on the investigation in this case. Alexander testified
that because he had only been notified that he was subpoenaed for the hearing the
previous day, he had a limited recollection of his work on the case, and he had been
unable to bring any documentation related to the case to the evidentiary hearing.
Detective Alexander agreed that based on the other evidence and testimony
presented at the evidentiary hearing, he had signed out the hat, the jacket, and a
bandana in this case for trial. He went on to testify that because the hat and jacket
were admitted into evidence at trial, he would not have handled those items after
trial. Detective Alexander testified that with respect to the bandana, because it was
not an exhibit at trial, it would have been returned to the property room, but he had
“no idea” what he did with the bandana.
The court agreed to excuse Detective Alexander to allow him to check
the archives of the CDP’s Third District, where any of his files would have been
stored after he took a new position within the department, in order to see if he could
locate his file from this case.
Assistant Prosecuting Attorney Mary McGrath (“McGrath”) also
testified at the evidentiary hearing. McGrath testified as to her knowledge of the
evidence in this case as it related to orders for DNA testing beginning in February
2013. McGrath testified that in July 2013, she went to the police property room and
was told by a detective that a hat and bandana had been signed out by Alexander on
April 3, 2001, but were never returned. McGrath was also told that there was a trash
bag of clothing in the property room, but it did not contain the hat, bandana, or
jacket.
On November 11, 2016, the court reconvened for a continuation of the
October 19 evidentiary hearing. Detective Alexander once again testified. Having
had the opportunity to check the police archives at multiple locations, along with the
police supply unit, he was unable to locate “any of his files from that era,” including
the file from Johnson’s 2001 trial.
Following the hearing, the state and Johnson filed post-hearing
briefs. In his post-hearing brief, Johnson requested the court issue an order
granting his counsel the opportunity to personally search CDP archives for Detective
Alexander’s missing case files. In the state’s post-hearing brief, it argued that
Johnson’s application for DNA testing should be dismissed because the state
exercised reasonable diligence to locate DNA evidence for testing and could not.
Therefore, according to the state, Johnson failed to satisfy a statutory requirement
for DNA testing because he was unable to show that a parent sample of the biological
material against which a sample from Johnson could be compared still exists.
On January 11, 2017, the court granted Johnson’s extraordinary
motion for an order to search CDP archives. The court also issued an order
instructing police to preserve any evidence from this case should it be located in the
future, and to notify the court of any such discovery. The parties arranged to conduct
a search on February 7, 2017. On February 6, 2017, a CDP representative contacted
Johnson’s counsel and stated that Detective Alexander’s file from this case was likely
destroyed during a 2016 purge of Third District files. The February 7 search was
postponed. On February 15, 2017, Johnson filed a report regarding the search for
evidence in which counsel detailed subsequent efforts to ascertain whether the
missing file might be located at another Third District location. Johnson’s report
requested that the court broaden its prior order to allow defense counsel to search
the Third District’s files and the archives room at police headquarters. On February
16, 2017, the state filed a brief in opposition to Johnson’s request to expand the
search. On March 13, 2017, the court granted Johnson’s request.2
2 On April 12, 2017, the city of Cleveland (“the city”) filed a motion to intervene and
vacate or modify. The city sought to vacate or modify the court’s March 13, 2017 order
granting Johnson’s counsel access to police archives. Also on April 12, 2017, the city filed
a notice of appeal of the court’s March 13, 2017 order. On April 25, 2017, Johnson and
the city filed an agreed judgment entry by which the parties stipulated to conducting the
search in the presence of representatives from the state, Johnson, and the city, and
otherwise limiting the parameters of the search. The city also agreed to dismiss its appeal
On May 12, 2017, the parties conducted a search of the CDP archive.
CDP Sergeant Robert Dunn (“Sergeant Dunn”) produced a case file containing
follow-up detective reports related to Johnson’s cases. The file was labeled with a
sticker listing four police report numbers and identifying Johnson as a suspect. The
top of the envelope containing the file also had Norman’s name handwritten across
the label. None of the aforementioned evidence in Johnson’s case was located, in
this file or elsewhere. On May 22, 2017, the parties filed briefs summarizing the May
12 search. The state renewed its January 11, 2016 motion to dismiss Johnson’s
application for DNA testing.
On June 16, 2017, the court issued a journal entry rejecting Johnson’s
application for DNA testing. On July 21, 2020, Johnson filed a motion for judicial
release and a motion for leave to file a motion for new trial. In his motion, Johnson
argued that because his hope of proving his innocence through court-ordered DNA
testing “evaporated” after it was discovered that CDP “inexplicably lost all of the
evidence” in his case, he deserved an evidentiary hearing to allow the court for the
first time to hear and consider testimony from Norman regarding his confessions to
the two robberies. On July 27, 2020, the state filed a brief in opposition to Johnson’s
motion for judicial release. The state did not file a brief in opposition to Johnson’s
motion for leave to file a motion for new trial.
and withdraw its motion to intervene. The city voluntarily dismissed its appeal on April
27, 2017.
On December 21, 2020, the court denied Johnson’s motion for
judicial release and motion for leave to file a motion for new trial.
Johnson appeals the denial of his motion for leave to file a motion for
new trial, presenting two assignments of error for our review:
I. The trial court abused its discretion by denying leave to file a motion
for new trial where another man has confessed to the crimes and the
defendant was unavoidably prevented from discovering that confession
at the time of trial.
II. The trial court abused its discretion by denying leave to file a motion
for new trial without first holding a hearing when the defendant
presented prima facie evidence that satisfied Criminal Rule 33.
Legal Analysis
In Johnson’s first assignment of error, he argues that the trial court
abused its discretion by denying Johnson leave to file a motion for a new trial where
another man has confessed to the crimes and Johnson was unavoidably prevented
from discovering that confession at the time of trial.
This court reviews the denial of a motion for leave to file a motion for
new trial for an abuse of discretion. State v. Hill, 8th Dist. Cuyahoga No. 108250,
2020-Ohio-102, ¶ 13. An abuse of discretion is more than an error of law or
judgment; it implies that the court’s ruling is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
Crim.R. 33(A)(6) provides that a new trial may be granted on motion
of the defendant:
When new evidence material to the defense is discovered, which the
defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
grounds of newly discovered evidence, the defendant must produce at
the hearing on the motion, in support thereof, the affidavits of the
witnesses by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may
postpone the hearing of the motion for such length of time as is
reasonable under all the circumstances of the case. The prosecuting
attorney may produce affidavits or other evidence to impeach the
affidavits of such witnesses.
Crim.R. 33(B) provides that when a defendant wishes to file motion
for new trial based on newly discovered more than 120 days after a verdict is
rendered, they must seek leave from the trial court to file a delayed motion. State v.
Hale, 8th Dist. Cuyahoga No. 107782, 2019-Ohio-1890, ¶ 9. To obtain leave,
Crim.R. 33(B) states that the defendant must show clear and convincing proof that
they were unavoidably prevented from filing their motion for a new trial. Id. A party
is unavoidably prevented from filing a motion for a new trial if the party “had no
knowledge of the existence of the ground supporting the motion * * * and could not
have learned of the existence of that ground within the time prescribed for filing the
motion * * * in the exercise of reasonable diligence.” Id., quoting State v. Walden,
19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).
As an initial matter, we acknowledge that the unique circumstances
of this case guide our analysis. The inexplicable break in the chain of custody of
critical physical evidence, despite court-ordered DNA testing of that evidence, and
through no fault of Johnson, is an essential aspect of this case that we cannot ignore.
This court has previously imposed a requirement that in addition to satisfying the
requirements of Crim.R. 33, a defendant filing a motion for leave to file a delayed
motion for a new trial must file such a motion within a reasonable time after the new
evidence was discovered. State v. Washington, 8th Dist. Cuyahoga No. 103875,
2016-Ohio-5329, ¶ 16, citing State v. Stansberry, 8th Dist. Cuyahoga No. 71004,
1997 Ohio App. LEXIS 5461, 9 (Oct. 3, 1997). The purported rationale for this
requirement is to prevent defendants from “[waiting] before filing his motion in the
hope that witnesses would be unavailable or no longer remember the events clearly,
if at all, or that evidence might disappear,” thus unfairly heightening the state’s
burden of potentially retrying the case. Stansberry at 3. This concern is
inapplicable here, where Johnson has maintained his innocence for approximately
two decades and, we reiterate, the particular delay in filing his motion for leave was
largely the consequence of the unique circumstances of this case.
Johnson’s July 2020 motion for leave contained numerous exhibits,
including eight affidavits from Norman prepared between 2002 and 2018
confessing to Johnson’s crimes and an affidavit from Dr. Charles Goodsell (“Dr.
Goodsell”) highlighting the range of issues with the eyewitness identifications made
in Johnson’s case. Thus, Johnson’s motion for leave was based on the theory,
asserted in various ways throughout the duration of his case, that Johnson was
misidentified as the perpetrator.
In response to Johnson’s arguments on appeal, the state argues that
Johnson has not satisfied Crim.R. 33 because he failed to show that he was
unavoidably prevented from timely filing his motion for a new trial where the
motion was supported by affidavits from 2002. The state also argues that Johnson’s
arguments are barred by res judicata. We disagree. With respect to the state’s first
argument, it ignores the tortured procedural and factual history that has brought us
to this point and is therefore unpersuasive. We are likewise not persuaded by the
state’s argument that Johnson’s motion for leave is barred by res judicata.
The doctrine of res judicata provides that a final judgment of
conviction bars a convicted defendant who was represented by counsel from “raising
and litigating in any proceeding except an appeal from that judgment, any defense
or any claimed lack of due process that was raised or could have been raised by the
defendant” at trial or on direct appeal. State v. Johnson, 8th Dist. Cuyahoga No.
108311, 2020-Ohio-568, ¶ 15, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d
104 (1967), paragraph nine of the syllabus. Res judicata “‘promotes the principles
of finality and judicial economy by preventing endless relitigation of an issue on
which a defendant has already received a full and fair opportunity to be heard.’” Id.,quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.
The Ohio Supreme Court has held that res judicata “is a rule of fundamental and
substantial justice,” and therefore “‘is not to be applied so rigidly as to defeat the
ends of justice or so as to work an injustice.’” State v. Simpkins, 117 Ohio St.3d 420,
2008-Ohio-1197, 884 N.E.2d 568, ¶ 25, quoting Grava v. Parkman Twp., 73 Ohio
St.3d 379, 386, 653 N.E.2d 226 (Douglas, J., dissenting), quoting 46 American
Jurisprudence 2d, Judgments, Section 522, at 786-787 (1994).
Although Johnson’s theory of the case set forth in his motion for leave
is not new, he has not been afforded the opportunity to present testimony from
Norman or Dr. Goodsell at a hearing to determine whether a new trial is warranted.
While the whereabouts of the missing evidence was thoroughly litigated — to no
avail — at the trial court, the substance of Johnson’s argument that he is entitled to
a new trial based on Norman’s confession as the perpetrator of his crimes has not
been litigated. Therefore, Johnson’s motion for leave is not barred by res judicata.
We turn now to the substance of Johnson’s motion for leave. The
affidavits provided in support of Johnson’s motion show by clear and convincing
evidence that he was unavoidably prevented from timely filing his motion for a new
trial. With respect to Norman’s affidavits, Johnson did not even meet Norman until
April 2002, well over 120 days after Johnson was convicted. With respect to Dr.
Goodsell’s affidavit, although Johnson has consistently maintained that he was
misidentified as the perpetrator, Johnson’s motion for leave was the first point at
which he attempted to introduce expert evidence regarding the flaws in eyewitness
identifications. The evidence submitted in support of Johnson’s motion for leave is
internally consistent, consistent with Johnson’s longstanding claim of innocence,
and consistent with this court’s most recent opinion in this case, Johnson III.
Finally, we reiterate that the state’s inability to locate physical evidence in this case
should not curtail Johnson’s pursuit of justice, or any party’s pursuit of the truth.
For the foregoing reasons, we find the trial court’s denial of Johnson
leave to file a motion for a new trial was unreasonable. Johnson’s first assignment
of error is sustained. Our decision is limited to the narrow issue of whether Johnson
should have been granted leave to file a motion for a new trial. Because our analysis
of Johnson’s first assignment of error is dispositive, we decline to address his second
assignment of error.
Judgment reversed and remanded. Upon remand, the trial court
shall enter judgment granting Johnson leave to file a delayed motion for a new trial.
If Johnson files such motion within seven days of the trial court’s judgment granting
leave, the trial court must consider the motion in accordance with Crim.R. 33.
It is ordered that appellant recover from appellee 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.
MARY EILEEN KILBANE, JUDGE
ANITA LASTER MAYS, P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., DISSENTS (WITHOUT SEPARATE OPINION)