State v. Peterson

[Cite as State v. Peterson, 2020-Ohio-4579.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 19AP-595
(C.P.C. No. 05CR-592)
v. :
Jerome C. Peterson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 24, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Jerome C. Peterson, pro se.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Jerome C. Peterson, from a
judgment of the Franklin County Court of Common Pleas denying his motion for leave to
file a motion for new trial.
{¶ 2} In 2005, appellant was indicted on one count of murder, one count of
aggravated burglary, one count of aggravated robbery, one count of having a weapon
while under disability, and one count of participating in a criminal gang. The charges
arose out of the shooting death of James Goins on November 9, 2004.
{¶ 3} The matter came for trial before a jury beginning November 13, 2006.
Following the presentation of evidence, the jury returned verdicts finding appellant guilty
of murder, aggravated burglary, aggravated robbery, and participating in a criminal gang.
The trial court separately found appellant guilty of having a weapon while under
disability. By judgment entry filed July 6, 2007, the trial court sentenced appellant to a
prison term of 30 years to life.
No. 19AP-595 2
{¶ 4} Appellant appealed from the judgment raising four assignments of error
which included claims of prosecutorial misconduct, ineffective assistance of counsel, and
challenges to the sufficiency and weight of the evidence. In State v. Peterson, 10th Dist.
No. 07AP-303, 2008-Ohio-2838, this court overruled all four assignments of error and
affirmed the judgment of the trial court.
{¶ 5} In addressing appellant's challenge to the sufficiency of the evidence, this
court noted the following evidence presented by the state regarding the underlying events.
On the date of the incident, appellant and two other individuals, Justin King and Reginald
Perry, "discussed planning to do a 'lick,' or robbery" of the victim, James Goins, "under
the pretense they were going to purchase marijuana from him." Peterson at ¶ 70. Tyrone
Payne, who admitted to a history of selling drugs and who was working as a confidential
informant with the sheriff's office, "made arrangements to meet with Goins at his
apartment, and Payne, appellant, King and Perry drove there in two separate vehicles."
Id. Payne entered the apartment alone in order to speak with Goins, "with Payne
intending to then bring Goins outside to introduce him to appellant." Id.{¶ 6} Appellant and Payne, however, "burst into the apartment; Perry was
wielding a gun, and appellant grabbed a baseball bat and began waving it at Goins." Id. at
¶ 71. Goins initially "attempted to charge at Perry but he backed off after Perry pointed
the weapon at him." Id. Perry then "ordered Payne to lay face down on the floor, and
appellant continued to hold the bat toward Goins, who sat on a couch." Id. As Perry
"went into the kitchen area where the drugs were located, Goins ran for the door, but
appellant attempted to block him. Goins was able to get outside, but appellant and Perry
chased after him, and Perry shot Goins in the back of the head." Id. He "died almost
immediately from the wound." Id.
{¶ 7} Appellant, Perry, and King "fled from the scene, with Perry carrying a brown
bag as they left the apartment." Id. at ¶ 72. Later that same evening, "appellant offered
Payne half the drugs taken from the apartment in order to ensure he would not contact
the police." Id. The following day, "appellant offered Payne $10,000 not to speak to the
police." Id. Plaintiff-appellee, State of Ohio, also presented evidence indicating "the
bullet fragment recovered from the victim was fired by a weapon subsequently recovered
from Perry's residence." Id.
No. 19AP-595 3
{¶ 8} Following his direct appeal, appellant filed a pro se petition to set aside his
conviction and sentence on December 26, 2007. By entry filed February 5, 2008, the trial
court denied the petition. On May 18, 2018, appellant filed a pro se motion for re-
sentencing, which the trial court denied by decision and entry filed January 22, 2019.
{¶ 9} On February 7, 2019, appellant, acting pro se, filed a motion for leave to file
a motion for new trial under Crim.R. 33. On February 25, 2019, the state filed a
memorandum contra the motion for leave. By decision and entry filed August 16, 2019,
the trial court denied appellant's motion for leave to file a motion for new trial.
{¶ 10} On appeal, appellant, pro se, sets forth the following single assignment of
error for this court's review:
THE TRIAL COURT ABUSED IT'S [sic] DISCRETION IN
FAILING TO HOLD A HEARING UPON MOTION FOR
LEAVE TO FILE A MOTION FOR NEW TRIAL WHEN
RECORD AND CIRCUMSTANCES SUPPORTED
UNAVOIDABLY PREVENTED FROM DISCOVERING
EVIDENCE.
{¶ 11} Under his single assignment of error, appellant asserts the trial court erred
in failing to hold a hearing on his motion for leave to file a motion for new trial. Appellant
argues he submitted evidence demonstrating he was unavoidably prevented from timely
discovering new information he obtained through a private investigator.
{¶ 12} Crim.R. 33(A)(6) states in part that a new trial may be granted upon motion
of a defendant "[w]hen new evidence material to the defense is discovered, which the
defendant could not with reasonable diligence have discovered and produced at the trial."
Pursuant to Crim.R. 33(B), "[m]otions 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." However, "[i]f 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." Id.
{¶ 13} Thus, "a trial court may grant a motion for leave to file a motion for new
trial based on newly discovered evidence beyond the 120-day deadline in certain
circumstances." State v. G.F., 10th Dist. No. 18AP-201, 2019-Ohio-3673, ¶ 20. A court
No. 19AP-595 4
must first "determine whether the defendant has met his [or her] burden of establishing
by clear and convincing proof that he or she was ' "unavoidably prevented from the
discovery of the evidence upon which he must rely." ' " Id., citing State v. Graggs, 10th
Dist. No. 13AP-852, 2014-Ohio-1195, ¶ 5, quoting Crim.R. 33(B). In accordance with Ohio
law, a defendant is " 'unavoidably prevented from filing a motion for new trial if the party
had no knowledge of the existence of the ground supporting the motion for new trial and
could not have learned of the existence of that ground within the time prescribed for filing
the motion for new trial in the exercise of reasonable diligence.' " Id., quoting State v.
Walden, 19 Ohio App.3d 141, 145-46 (10th Dist.1984). Second, a trial court "must
determine whether the party seeking leave under Crim.R. 33 filed the motion for leave
within a reasonable time after discovering the evidence supporting the motion under the
circumstances." Id., citing State v. Armengau, 10th Dist. No. 16AP-355, 2017-Ohio-197,
¶ 16; State v. Warren, 2d Dist. No. 26979, 2017-Ohio-853, ¶ 40.
{¶ 14} The issue as to whether a defendant "was unavoidably prevented from
discovering the asserted new evidence or was reasonably delayed in filing a motion for
leave may require a hearing." G.F. at ¶ 21. In this respect, " '[i]f the defendant provides
documents that on their face support the defendant's claim that discovery of the evidence
was unavoidably delayed, the trial court must hold a hearing to determine whether there
is clear and convincing evidence of unavoidable delay.' " Id., quoting State v. Bush, 10th
Dist. No. 08AP-627, 2009-Ohio-441, ¶ 8.
{¶ 15} This court applies "an abuse of discretion standard in reviewing a trial
court's denial of a motion for leave to file a delayed motion for new trial." State v.
Hoover-Moore, 10th Dist. No. 14AP-1049, 2015-Ohio-4863, ¶ 14, citing State v.
Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 9. Further, "[a] trial court's
decision whether to conduct an evidentiary hearing on a motion for leave to file a motion
for new trial is also discretionary." Id., citing State v. Cleveland, 9th Dist. No.
08CA009406, 2009-Ohio-397, ¶ 54.
{¶ 16} In his pro se motion for new trial, filed on the same date as his motion for
leave, appellant argued that a private investigator provided him with exculpatory evidence
in the form of a police progress report (attached to the motion and labeled as part of "Ex.
A") which contradicted the trial testimony of a witness who stated he did not observe
anyone contaminate the crime scene. The attached exhibit, containing statements of "first
No. 19AP-595 5
responding officers," included a statement that Columbus Police Officer Daniel Kirk
reported "he had seen a footprint at the scene and was told by Sergeant Derossier * * *
that [the] footprint belonged to one of [the] medic[s], who was treating the victim." (Ex.
A, Police Summary No. 2.) The exhibit further contained a statement of "Firefighter
Lieurance" who related that, "while attempting to render medical assistance to the victim,
he had inadvertently stepped in the victim's blood; thereby, creating the bloody boot print
at the scene." (Ex. A, Police Summary No. 1.)
{¶ 17} In response to appellant's motion for leave, the state argued it was "very
likely that [appellant's] counsel was in fact aware of the shoe print, considering that
Summary # 1 (attached to [appellant's] motion for new trial) refers to a 'boot impression
in blood on one of the red brick squares,' and that the very next page * * * describes the
means by which investigators determined that the boot print belonged to a medic."
(Emphasis sic.) (State Memo. Contra at 3.) The state further argued the defense could
have obtained this information prior to trial with reasonable diligence and that the only
explanation appellant provided for the delay in discovering this information was that he
was incarcerated and indigent.
{¶ 18} In its decision denying the motion for leave, the trial court noted that
appellant's motion "appears to argue that a Statement Report taken of Officer Daniel Kirk
contains reference to exculpatory evidence that was required to be turned over to defense
counsel." (Decision at 3.) The court noted that an excerpt from the exhibit stated in part:
"Visible in the scene area outside of * * * Easthaven Drive South was a shoeprint created
when unknown person(s) had stepped in the victim's blood. It was determined from
information supplied by police officers at the scene on November 9, 2004 that the
shoeprint actually belonged to a Columbus Fire Medic." (Decision at 3.) In denying the
motion for leave, the trial court concluded that appellant "does not demonstrate by clear
and convincing evidence that Officer Kirk's Statement Report was not provided to defense
counsel during the trial phase or that he was unavoidably prevented from discovering the
evidence." (Decision at 3.)
{¶ 19} On review, we find no abuse of discretion by the trial court in denying the
motion for leave to file a motion for new trial. In his motion for leave, appellant argued
delay based on his incarceration and the fact he had to "wait" until the owner of "Ace
No. 19AP-595 6
Investigations * * * conducted his investigation" and found exculpatory evidence "that was
not available at trial." (Appellant's Memo. in Support of Leave at 1.)
{¶ 20} At the outset, "the fact of a defendant's incarceration, without more, does
not equate to clear and convincing evidence that he was unavoidably prevented from
discovering the evidence within the time parameter established by Crim.R. 33(B)." State
v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 40, citing State v. Frase, 5th Dist.
No. 99CA32 (Aug. 2, 1999); State v. Smith, 2d Dist. No. 97 CA 46 (Mar. 27, 1998). As
noted by the state, appellant acknowledged he was able to obtain the information at issue
while incarcerated. See State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 16
(finding that appellant's incarceration "clearly did not impede his ability to discover * * *
statement" made by female to police, as appellant "admits that he obtained the summary
of her police interview while incarcerated in state prison").
{¶ 21} Appellant offers no explanation, in either his motion or supporting affidavit,
as to the efforts he took to obtain the information at issue or why he (or his trial counsel)
was unavoidably prevented from timely discovering the information. See State v.
Franklin, 7th Dist. No. 09 MA 96, 2010-Ohio-4317, ¶ 20 ("the use of an affidavit signed
outside the time limit for a timely motion that fails to offer any reason why it could not
have been obtained sooner is not adequate to show by clear and convincing proof that the
evidence could not have been obtained within the prescribed time period").
{¶ 22} Further, "[i]n addition to the requirement that a defendant show he or she
was unavoidably prevented from discovering the evidence relied upon to support a
motion for new trial, a defendant 'also must show that he filed his motion for leave within
a reasonable time after discovering the evidence relied upon to support the motion for
new trial.' " State v. Grinnell, 10th Dist. No. 09AP-1048, 2010-Ohio-3028, ¶ 12, quoting
State v. Gray, 8th Dist. No. 92646, 2010-Ohio-11, ¶ 18. See also Berry at ¶ 37, quoting
State v. Griffith, 11th Dist. No. 2005-T-0038, 2006-Ohio-2935 ("a 'trial court may require
a defendant to file his motion for leave to file within a reasonable time after he discovers
the evidence' ").
{¶ 23} In the present case, neither appellant's motion for leave nor his affidavit in
support identifies when he obtained the police progress report. See Golden at ¶ 18
("without knowing exactly when" appellant obtained summary of police interview, "it is
impossible to determine whether he filed his motion within a reasonable time after
No. 19AP-595 7
receiving it"); State v. Monford, 10th Dist. No. 16AP-866, 2018-Ohio-1273, ¶ 18 (trial
court did not err in denying motion for leave to file motion for new trial where appellant
failed to explain when he obtained documents and failed to submit any evidence that he
filed his motion within a reasonable time after acquiring the documents).
{¶ 24} On review, we find no error in the trial court's determination that appellant
failed to demonstrate he was unavoidably prevented from timely discovering the evidence
at issue. Further, because neither the motion nor the supporting documents, on their
face, support appellant's claim that discovery of the information was unavoidably delayed,
the trial court did not abuse its discretion in failing to conduct a hearing on the motion.
Accordingly, the trial court did not err in denying the motion for leave to file a motion for
new trial.
{¶ 25} Based on the foregoing, appellant's single assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
LUPER SCHUSTER and NELSON, JJ., concur.
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