NO. 1N 'I'HE SUI'RF.MEi COUR'I' OF OHIO APPP,AL. FROM 'IHF; COl1RT' OF APPEAI,S FOR CUYAHOGA C.OUNTY, OH10 CA 92646 STATE OF OHIO Plaintiff-Appellce -vs- RICARDO GRAY Delendant-Appellant MEMORANI)UM IN SUPPOI2T OF JURISDICTION C.ounsel loi- De(endanL-Appellant James E. Valontinc (0036994) Brett Murner (0074363) Suite 450 Lalceside Place 323 Lakeside Avenue Cleveland, Ohio 441 13 (216) 702-5211 Fax (216) 781-6242 C'ounsel for Defendant-Appellec William D. Mason Cuyalloga County Prosecutor The Justice Center-9th Floor 1200 Ontario Street Cleveland, Ohio 44113
Transcript
NO.
1N 'I'HE SUI'RF.MEi COUR'I' OF OHIO
APPP,AL. FROM'IHF; COl1RT' OF APPEAI,S FOR CUYAHOGA C.OUNTY, OH10
CA 92646
STATE OF OHIO
Plaintiff-Appellce
-vs-
RICARDO GRAY
Delendant-Appellant
MEMORANI)UM IN SUPPOI2T OF JURISDICTION
C.ounsel loi- De(endanL-Appellant
James E. Valontinc (0036994)Brett Murner (0074363)Suite 450 Lalceside Place323 Lakeside AvenueCleveland, Ohio 441 13(216) 702-5211Fax (216) 781-6242
C'ounsel for Defendant-Appellec
William D. MasonCuyalloga County ProsecutorThe Justice Center-9th Floor1200 Ontario StreetCleveland, Ohio 44113
TABLE OF CONTENTS
LXPLANA"T[ON OP WHY 71IIS CASL IS A C'ASI3 OF PUBLIC OR GREAT GF=.NF.RA1..1NTF.RES"1' AND INVOLVES SURSTAN'TIAL CONSTITU"1'IONAI,QIJl?STIONS ....................................................................................................................................1
STATEMGNT OP TIIL CASL AND PACTS .................................................................................3
Proposition of Law l: A criniinal defendant's due process rights under the United States and(7hio Constitutions are violated when a trial court does not provide the basis for its rulingdenying the defendant's motion for• leave to file a motion for new trial, thereby depriving himof mcaningful appellate review .........................................................................................................9
Proposition of Law 11: A trial court violates a criminal defendant's due process rights nnder
the United States and Ohio Constitutions when it dmiies his motion for a new trial based upon
newly discovered evidence on the basis that it is barred by the doctrine of res.%addcatrr where
ttie new evidence presented was not a part of his prior motion ...............................................11
EXPLANA'I'ION OF WHY TH1S FELONY CASE IS A MA'I"I'ER OFPUBLIC AND GRGAT GENERAL INTEREST AND INVOLVES
SUBS'I'AN'I'IAL CONSTITIITIONAL QUTS"I'IONS.
This is a case of actual innoeenee which is ol public or grcat general interest and which
presents substantial constittttiottal issues to this Court.
In determining whether a trial court has abused its discretion in denying a criminaldefendant's motion for leave to file a tnotion for new trial based upon newlydiscovei-ed evidence, to what extent is it possible for a reviewing court to make sucha determination wherethe trial courlhas simplydenied the motion with no indicationof the basis forthe denial without violating the defendant's due process rights underthe United States tuld Ohio Constitutions?
In ruling on a criminal defendant's motion for leave to file a motion for new trialbased upon newly discovered evidence, is il a violation of a critninal def endant's clueprocess rights under the United States and Ohio Constitutions to deny the motion by
reasott of the doctxine of resjuclicata where the new motion is premised upondifferent new evidence from that presented in the priot- motion'?
With respect to the fit•st of these issues, Defendant-Appellant Ricardo (nay (hereafter
"Appellant") subniits that a reviewing court cannot make a reasoned determination as to wltether fhe
Irial court abused its diseretion absent sotne indication by the trial court, cither oti the record, through
a written opinion, or in its journial entry denying the motion, of the basis for the trial court's ruling.
The trial court's failure to indicate the basis for its ruling pt-events a criminal defendant li-om having
mcaningffitl appellate review oC 1.he ruling where the pa.rties and the reviewing court must make
assumptions or, in effect, guess as to the basis for the ruling, thereby violating the defendant's due
process rights under the Fifth Amendment to the Unite.d States Constitution and Article I Section 10
of the Ohio Constitution.
In the case at bar, thc trial court denied Appellant's motion by way of ajournal entry which
simply stated that the motion was denied. Tn appealing, Appellaut is compelled to argue every
conceivable basis for ttte denial, and the appellate court likewise must address or at least consider
various potential bases for the trial court's ruling. It is eonceivable that none of the rationales for the
trial court's ruling which are argued before the appellate coto't was thc actual basis for the ruling. ln
the case at bar the assumption made by the appellate court was that the basis for the ruliog was re.s
jzedicata, but only the trial court knows whether that was indeed the case. '1'he question becomes
how can a reviewing court evaluate whether the trial court abttsed its discretion whet-e it does not
know what discretion was c.xcrcised.
With respect to the secoitd issue presented above, Appellant submits that it is an abuse of
discrction to deny a motion for leave to (ile a motion fot- newtrial on the basis that a porlion oI-the
new evidence set fot-tlt had been presented in a previous motion for leave to file motion for netivtrial.
In the ease at bar Appellaut filed a motion for leave to iile a motion for new trial. IIe had
pt'eviously Gled such a motion based upon the recantation of the only two wi(nesses who had
identificd him as the gunntan who fired ilse fatal shots. 7'he witnesses explained that they had
testi fied falsely at trial in identifying Appellant as the gunman because they had been pressured to
do so in one case by the police, and in the other by gang menibets. Tlte motion was snmtnat'ily
denied.
Now tttc actual guntnan has been identified. Appellant has been able to learn the identity of
the true gunman where only a Iirst name had been known, ohtaincd a photo of him, and presented
it to one ofthe witnesses who prcviously recanted. 'I'hatrivitness identitied this individual as thetruc
gunman. Other witnesses have been located who also identi (ied this person as the guntnan. Otle of
the witnesses had been incarecrated with him and had even secured a confession Lhat he had bccn
at the scene of the murder that night firing a gun at people.
None of this new inlormalion had been known nor presented in Appellant's prior motion.
It is an absurdity to deny Appellant's present motion on the basis of' res judlcatct when the
icleutificatiotis and the confession were not part of the prior motion.
In lhe end, this Court's aceeptance of the instantcasewill serve two purposes. First, it will
allow this Court to rule that a trial court must announce the basis for its rulitig on a motion lor leave
to file a motion for new trial so that the movant, the State, and the reviewing court can effeetivcly
evaluate whetlrer an abuse of discretion has occurred as a ct-iminal defendant's Federal and State
Constitutional due process rights require.
Second, it will curo a miscarriagc ofjustice intlicted upon an imiocent person who has bccn
denicd the opportunity of receiving a new trial which would be replete with ncw exenlpatozy
evidence. Allhough 11ie present motion litr new trial is based upon diffcrent new evidence from that
presented in his priot• tnotion for newtrial, in defiance of logic and comnton sensethc appellate court
applied the docti-ine of res juclic•ata to bar consideration of thc later motion. As a result an innocent
nian rcmains incarcerated. This Court's resources will be well invested in (he instant casc.
STATEMENT OF THF CASF, ANl) FACTS
A. 'I'ria( Yroceeditrgs
'I'hc testimony at trial was outlined by the Eighth District Court of Appeals in its
decision affinning the verdict in P,ight District Cotu-t of Appeal s Case No. 76170 (in pertincnt part):
I'he prosecution's case in chief began with Assistant C-ounty Coroner, AndreaMcCollom. She testified she pcrformed the autopsy on James D. Russell. Furtlier sheestablished Russell's cause of death as a gunshotwot.md to flre back with vascular andvisceral hijuries. The next two witnesses Deanine Srnith and C;ary Blanchard testifiedto seeing and heat-ing acommolion near their home located on East 143rd Street. The
commotion involved a large group of people localed near the intcrsection of Fast143rd and IGnsman. Both witnesses lestified to hear-ino glass brealcing, yelling andgunshots. Gary Blanchard lesiitied lhat afterthe commotion stopped, James Russellknoclced on his door and asked to enter his home. Gary Blanchard refused. A fewminutes later Blanchard came out on his porch where he heard the sound of breathingcoming from the side of the house. IIe looked over the side of' ihc porch andciiseovered Russell lying face down in the bushes. Upon linding Russell, Blanchardasked Ms. Stnith to call the police.
Arthur Jackson teslified that on September 1, 1998 a group of his friends Ii-om the
Bartlett area got into a fight with a gt'oup of guys from the Kinsman area. The [ight
broke up when the two sides thought they heard police sirens and scatte-ed. Jackson
returned to the area o1'the li,ht a short timc later with his friends Jatnes Russell and
Mike. On reLUrning thcy saw Ricardo Gray comittg toward them on a bike. Jackson
testified Ricardo Gray started shooting as he rode toward Jackson and his li-iends.
Whett they heard the gunshots Jackson, Mike, and James Russel l ran cast up 143 rd
Su'eet. Jackson testified lie heard bullets, like "bees" in his cars. Jackson said lie
retLuroed approximately fi ftecn minutes later and learned that James Russell had been
shot. Jackson spoke with police officets the following morning and told them
Ricardo Grav killed James Russell.
Anthony Mixon testified that he saw Gray cotning down F,ast 143rd Street riding a
moitntain bike. Mixon testilied (iray pulled out a gun as lie rode past him. Mixon
stated Gray i-ode down F:ast 143rd and fired the gun until it was empty. Mixon stated
thc gun appeared to be a ninc mitlimeter handgun and he heard approximately
fourteen shots.
Officer [tandall Presti testified he responded to a call he received on Septeniber 1,1998 at 9:00 PM of a large fight in progress with shots fired, with one male shot. Onarriving at the scene he found James Russell at Gary Blanchard's and waited with thevictim for lhe ambulance to arri ve. Qnce the atnbulanec arrived Presti testified ArthurJackson approaehed him and provided the namc of the shooter, Ricardo Gray. OI7 icerPresti later searched the area where the altercation and sliooting occurred. Ne focmdfourteen nine millimeter spent shell casings. IIe marked the location of the casings.Additionally Pi-esti testified he went to Gray's mother's home several clays after theincident. He saw Gray in the backyard. Officer Presti tcstit7ecl that Gray fled whenhe approached the homc and he was unable to catch Gray at that titnc.
Officer John 1'ak testilied he conliscated Lhe fom'teen shell casings found at the
scone. Detective Ronald Bhrbar, a firearms examiner with the Cleveland
Department's Forensic Laboratory, testified the fourteen shell casings found at the
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scene all came from the sanie nine millimeter weapon. Additionally, he testified thespent pellet removed lrom the James Russell's body was consistent with being (iredby a nine millinteter weapon.
Detective Beaman testifiied he interviewed both Arthur Jackson and Anthony Mixonthe day following the shooting. He stated that both witnesses named Ricardo Grayas the shooter. Beaman also testified he intet•viewed Gray following his atrest.Beaman stated Gray said lie did not do the shooting but knew who did. HoweverBeanian stated Gray did not provide any names and requested to speak with hisattornev.
The prosccution's final wittiess Patrolman John Ilall testilied oClicers made severalattempts to locate Ricardo Gray for the two months {allowing the shooting. Hallstated he attd several other officers finally located Gray at his grandmother's houseoti Noveniber 20, 1998. IIall and his partner positioned thernselves in the backyard.When the ollicers identi tied themselves Gray attentptcd to flee by eYiting a seconddoor which led to an unfinished porclt. "1'hc only way to reacli the ground was toclimb down or jump. For this reason, Hall believed Gray was attempting to escape.Hall testified he ordered Gray to stop, and lie down in the house. Gray cooperated.I Iall stated other oflicers then entered the house from the front and arrested Gray.
Gray presented tlu-ec witnesses in his defcttse, James Thotnpson, Charles Williams,and London Hill. Gray did not take the stand. Thompson testitied lie participated inthe fight on September 1, 1998. He stated he saw Ricardo Gray gct hit in the licadwith a stick. Thompsott said Gray ('ell down in Pront ofhim aftcn ceing hit. Thompsonsaid he grabbed Gray and dragged him across the strcct to afriend's car. Iie put Grayin the ear and the friend putlccl off. '1'hompsoti then went back across the streel tocontinue fighting. Thompson said at that point he heard gunfire. He t.esti tied to seei nga young man named Bemiy running down the street shooting. Thompson said whenhe saw Beiuiy coming down the street he i-an arotrnd the corner on 144th "I'hompsonstated hc did not scc any one clse shooting that evening. Further, he testified Gray leftshortly bcfore ttte shooting stat•ted. '['hompson stated that he never provicied thisiuformation to the police because lie had been involved in tbe light.
Charles Williams testificd hc witncssed his fricttds James 'fhonipson and RicardoGray near the area of the fight ott the evening of September 1, 1998. Williams statedGray was bleeding. Williams said lie started across the sti-eet toward (it-ay when hcheard shooling, so lie ran. Williams also named Benriy as thc shooter. Williams didnot provide this information to the police.
London IIill, the fiuai defense witness, testified he saw the fight on September 1,1998, bttt did tiot participate in it. IIe said lie saw Thompson pull Gray across thcstreet. About a minute later, Hill said lie heard gunlire. Hill named Renny as the
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shooter. Ilill testitied he dicl not know Benny's last name. Hill testified that hecontacted the police a couple days tbllowing the shooting. He saicl he spoke with a1'eniale officer and told her he witnessed the shooting. Hill said he also told her thatRenny did tlie shooting. Hill stated the ofiicer took his name and numbcr, andindicated that a detective investigating tlle case would call. Hill said the police didnot call. Following Hill's testiinony, the defense rested.
B. NIotion for Leave to File Motion for New 7'rial.
Subsequent to lrial, both of the State's identifying witnesses, Jackson and Mixon, provided
affidavits stating that they had been coereed into identifying Appe(lant attrial. Ln his 2002 affidavit,
Mixon stated that he had hecn on parole at the timc of the incident, and that members of thc
Clevelamd 1'olice Department had coerced him into identilyhig Appellant as the sliooter by
threr.itening to get Mixon's parole revoked should he not do so. Mixon stated in his afftdavit that lie
then testitied as the police directed, and that, in fact, the person w9io really fired the shots was
somconc hc knew only as "Benny."
Jackson, also in a 2002 affidavit, stated that, contrary to his trial testitnony, he did not see
Appellant with a gun. There were sevcral shooters fi-om both sidcs that night, but Appel lant was not
one of them. Sonie oCthe "Kinsman boys" told him to say that Appellant was the shooter. One can
easily inCei- Ifrom Jackson's affidavit that he felt his physical salety was in jeopardy should lie not
idcntify Appellant. Out o f concern for his safety, Jackson told the police and tesl.i I ied that Appellant
was the shootcr.
These afiidavits wcre the basis of Appellant's prior iVlotion for Leave to File Motion f'o- New
Trial_ Said motion was denied withoul a hcaring in spite of tlie faot that tha-e would now be no
identifying witness in a new trial. '[`hc L;ight District C'.ourt of Appeals affiinied the trial court's
ruling, and this Honorablc C:ourt declined to accept jm-isdietion.
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Appellant's 2008 Motion for Leave to File Motion for New Trial, which is subject of the
pi-esent appeal, included a ne.w affidavit from Mixon in which he stated that he had now learned the
t-eal shooter's last namc. 1he shooter was an individual named Betmy Kern. Mixon has now seen
a photo of hint and states that he is 100% sure that Kern was the real shooter. The photo was from
ttic website of the Ohio Department of Rehabilitation and Correction. The Offender Detail
Information stated that Kern was scrving a sentenee for multiple charges, including Attempted
Murder, stemming 1i-orn a Cuyahoga County case.
The Motion also included an affidavit from an individual named Michael Steele Jr. in which
he stated that he saw Benny Kerti firing a gun therc ttiat night. Anothcr witness, Kenneth Bell, also
provided an affidavit in which he states that he saw Benny Kern shooting that night, and that
Appellant had been taken lo a hospital. He is positive that Appellant is wrongfully imprisoned for
a shooting that he did not commit.
1'he Supplemental Motion for Leave incl uded an afftdavitfi'om Appcllant in which he i-elatcs
how he had eventually (carned "Benny"'s last name and what lie did to follow up on that new
infotmation. He was provided a photo of Bentry Kern, which he theu showed to Mixon. Mixon
identificct Kern as the actual shooter.
Appeltant was also able to obtain an affidavit from another witness, Duane Washington-
W ashington had been present at the shooting. He was later incarcerated with Benny Kern. Kern had
told him that he, Kern, had been shooting at Washington and others that night.
A se.cond affidavit li-om Appcllant explained the process by which he showed the photo of
Kern to Mixon. and then mailed copies ol' the photo to Michael Stcele and Kenneth Bell.
Investigator Tom Pavlish had learned of Steele and Bell as individuals who were present al the
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shooting. Steele and Bell had identificd the photo of Kern as being that of the shooter, and had
providcd affidavits lo Appellant's sister who had then sent tlhem to Appellant's eounsel.
Witlioul hearing or explanation of the basis for its rnlitig, the trial court denied Appellant's
motion for leave to file motion for new trial as well as his supplemental inolion for leave to tilc
motion for new trial.
C. Appeal.
Appellant appealed the trial couit-s denial of hi s motion for leave to file motion for new trial.
The Eight District court of Appeals affirtned the denial of the tnotiort. At oral argument there was
discussion of the tact that the basis for the tri al court's denial was not Icnown, had not been expressed
by the trial court, and could only be assumed. T7ie question was raised by one of the panel as to how
there coul d be mcaninl,ful review- of a potential abuse of discretion on the. part of the uial court whcn
it was not known what discretion was exercised. Neverl.heless, the appellate court affirmed the trial
court's ruiing, citing res jrrdiccata as the basis.
ARGl IMliNT
The trial court's ruling should have been reversed on appeal, or, at a minimum, the case
should have been remanded to the trial court so that the trial court could elucidate the rationale 1'or
its ruling. Only then could there be mcaniugftil appellate review.
'fhe Ohio Supreme. Court held in SIcrte v- Petro (1947), 148 Ohio St. 505, that:
"°T'o warrant the granting o f a tnotion for a new trial in a criminal casc, based on theground of newly discovercd evidence, it must bc shown that the new evidence ( I)discloses a strong probabilitythat it will change the result ifa new tt9a1 is granted, (2)has been discovcred since the trial, (3) is sttch as could not itt the exercise of duediligence havc been discovered beforc the trial, (4) is material to the issues, (5) is notmerely cumulative to the forincr evidence, and (6) does not merely impeach oreontradiet the fonner evidence."
8
Petr•u, supra.
The decision whether to grant a new trial ots grounds of ncwty discovered evidence Ialls
within the sound <liscretion of thc trial court. Stale v. Hatvkins (1993), 66 Ohio St.3d 339, 350.
Motions for new trial pttrsuant to Crim.R. 33(13) are addressed to the sound discretion of the trial
court, see Slule n- VPillianzs (1975). 43 Ohio St2d 88, and will not be disturbed ot1 appeal abseot an
abuse of discretion. Stnte v. Schiehel (1990), 55 Ohio St.3d 71.
'Ihe term "abuse of discretion" connotes more than an etrot- ofjudgment, but t-ather implics
an attitude of the court charactorized as unreasonable, arbitrary, or tmeonscionable. Stale v.
appellate court cannot propedy discharge its duty outlineit in Article IV Section (B)2 of the Ohio
constitution, which stale.s in pertinent parl: "Courts of appeals sliall have suc.h,jurisdiction as may
be provided by law to review and affirm, modify, or reverse j udgments or final orders of the courts
of record inferior to the court of appeals within the district ..."
"I'his tionoi-able Court has previously required trial courts to issue findings on the record
when granting or denying a motion 1or a new trial in civil cases for the e.xpress purpose of appellate
i-eview: "[W)ithout some articulated basis lor grauting a new trial, the trial court's decision is
virtual ly insulated from ineaningful appellate review. As previously stated, an appell atetribunal will
not reverse the trial coLu-t's ruling abscnt an abuse of discretion. Ilowever, when the trial court offers
no i-easous for its decision, the court of appeals practically must defer to lhe tr•ial cocn't's conchision
that the verdict was against the weight ofthe evidence." Antal v. Olde iVorlde Products. Inc. (1984).
9 Ohio.St.3d 144, 146. 'fhis 1--lonorable C:ourt's reasoning is even more pertincnt in a criminal case
wliere an individual's li•eectom is at stake.
W hen revi ewing in the dark, there is the additional risk that the appellate cotirt, in speculating
as to the basis for the lower cotirt's ruling, may base its affirmance or deuial upon a basis that did
not play a part in the trial couit's det;ision, thereby evaluating whether the trial coui-t abused
discretion Chat it did not even exercise. 'i'his, too, is a denial of a ct'tmirial defendai,t's due process
rights under both the United States and Ohio Constitutions.
Additionally, public policy and judicial economy requii-e ttlat the basis for thc euling be
1O
cxpressed by the trial court. Without ]mowing the basis for the lower court's ruting, the appellate
court is forced to consider and evaluate multiple possible bases for the ruling, thereby wasting (lie
appellate eourt's timc and resources, aud poteutiatly creating a miscarriage of justiee, as in this case,
wherein furLhcr judicial time and resour•ces mr.ist be utilized to correct the crror below.
Proposition of Law I1: A trial court violates a criminal defendant's due prncess rights tinderthe lJnited States and Ohio Constitutions when it denies his motion for a ncw trial basecl uponnewly discovered evidence on tbe basis that it is barred by the doctrine of res,jurGcatrc where
the new evidenee presented was not a part of his prior motion.
The State argued, and the appellate court agreed, that the new evidence in this case was not
really new. We do not l.now the trial court's position, as outlined above. A review of the new
evidence that was presented reveals that position to defy all togic and common sense.
Clearly, thc appellate com•L carmot be saying that a crirninal defendant is forever barred by
the cloctrine of res juddcata from filing a second new trial motion once his first oue is denied,
regardless of the basis for the later niotion. One can easily envision a case wherein a criminal
defcndant Iilcs a new trial motion on the basis o f a recanling witness, the motion is dcnied, and then
later it is Icarned that there is DNA which reveals thal he is not the culprit. Since the basis for Lhc
seeond motion is not the sanre as in the iirst, res juctieafcr would not bar the se.cond motion.
In the case at bar, the first motionwas hased upon both of the St<ite's idenlifying witnesses,
Jackson and Mixon, providing affidavits stating that they had bee.n coerecd into identifying
Appellant at trial. The State's only identifying witnesses,. Mixon and.lackson, both recanted their
trial testimony and exptained how they had been coerced into testifying falsely at the trial that
Appellant was the gunman_ Mixon stated in his affidavit that, fearing that his parole would be
revoked if he did not do so, he had testified as the police directed , and Lhat, in fact, the person who
I1
really fired the shots was someone he knew only as "13emry."
.laclcson, also in a2002 afGdavit, stated that, eonu ary to his tritil testimony that Appel lant was
Lhe shooter., he clid not see Appellant with a gtm. There were several shooters from both sides that
night, buL Appcllantwas not one ofthem. Out of concern for his safety. Jackson told the police that
Appellant had been the one shooting.
Thcse affidavits wcre the basis of Appellant's prior Motion for Leave to File Motion ior New
Trial. Said motion was denied without a hearing in spite of the lact that there would now bc no
identifying witness in a new trial. The L;ight Disiriet Court of Appeals afiirrned the trial court's
ruling, and this Ilonorable CourL declined to acceptjurisdiction.
Appellant's 2008 Motiott for Leave to File Motion for New'1'rial was premised upon much
more new evidetice (han had been presented previously. The true gunman was not just some
amoiphous guy narned "Benny;" Bcnny's last name was now known, a picture had becn obtained,
ancl Miaon positively identifled him as the gunman_ It is interesting to nole that the person who
actually eommitted the murderin this case, Benny Kern, was serving aprison sentence for attempted
murder.
Bnt the 2008 motion did not sirnply t-Cst on the gunman's identity being revealed, and
Mixon's positive ideutiiication of ICern_ Michael Steel Jr. slates in an affidavit that he too saw
Benny Kern firing a gun there that night. That was not in the prior motion and eould not be a basis
for the application of resjudiccrta. Purlher, another witness, Kenneth Bell, states in an affidavit that
lle saw Beijnv Kerii shootilig that night, and that Appellant ltad be: n taken to a liospital. l le is
positive thal Appellant is wrongfully imprisoned 'for a shooting that he did not commit. That is
evidence not presented in the prior motion.
12
Additionally, the 2008 tnotion included an affidavit from another witness. Duane
Washington, who had been presetrt at the shooting. While Washinglon was incarcerated with Betnly
Kern, Ke.rn had told him that he had been the one shooting at Washington atid olhers that night.
I'he application oC the docti-inc of res judiccafa makes absolutely tio sense when the prior
ntotion madc no mention whatsoever of Washington, Bell, or Steele, or of Mixon's idc.ntificalion
ofa specific indi vidual as the gumnan- At tlhe time of the filing of the prior tnotion,13el1 and Steele
had not yet becn identific.d and located by Appellant's investigator. Washington had not yet been
inc.at-cerated with Kcrn, had not yetlteard Kern confcss that he was the one doing the shooting, aud
had not yet been transferred to the institution whea'c Appellant is itiearcerated wliero he would thcn
tell Appellant of Ket7t's statement. OtLly then would Appellant come to learn "Benny's" iclentity,
only thcn could Appellant obtain a photo of Kern and begin the process ofshowing it to Mixoo and
others. One mustkeep in mind that Appellant was trying to clo alt oCthis with little money and with
no 1i-eedom.
Thc new evidence in this case was not part of the prior motion could not liave been because
it had not yet becn discovet-ed. IfWashington had not by chance been incarceraled with Kei-n he
might never have been identified. If Washington had not by chance been transferred to the sanie
inslitution as Appellant and had not told him what Kern had confessed, none of this would have
conLC to light.
Inexplicably, the appellate court stated that Appellant is raising the "identical issuc"raised
in hts prlor nlOtton, and toLlnd ttliAt the doetrlne of PL'S ) tfC(LCCI(a bars conSlderattoil oi his present
clainn. VVhile thc identical issuc of his innocence was indeed raised in both motious, thc basis lor
ttic tuotions were not the same. It is difficult to see how the appellate court could have concludcd
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that the identical issue was raised. Once again, if DNA or a videotape of the i ncident was now found
that clears Appellant, would the presentation of that evidence be barred by res judicata?
CONCLUSION
Wherefore, this Court should accept the instant case so that it can require trial courts to issue
this Court should accept this case so that it can clarify that res jucltcatca does not bar the presentation
of a second ncw trial motion premised upon different new evidenec than that wliich was presented
in a prior motion.
Kespectfully submitted,
ines h;. Valentine (0036994)Attorncy for DeFcndant-AppellantSuitc 450 Lakeside Place323 West Lakeside Avenue
Cleveland, Ohio 44113
(216) 702-5211
Brett Murner (0074363)Attorney Por Defendant-AppellantSuite 450 Lakeside Place323 West Lakeside AvenueCleveland, Ohio 44113(216) 696-4514
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SERVICE
A copy ol'tlie foregoing was hand-delivered to the office of William D. Mason, CuyahogaCoruflty Prosecutor, Justice Center-9th Floor, 1200 Ontario Street, Cleveland, Oliio 44113 on this
20 t3 /^ ^.5 da}' Of r G,/ ,
L4 LW-es E. Valentine
15
^4Lirt of ZfppPato 4
EIGHTH APPELLATE DISTRIC'TCOUNTY OF CWAHOGA
JOIJRNAL ENTRY AND OPINIONNo. 92646
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICARDO GRAY
DEFENDANT-APPELLANT
JUDGMENT:AFFIRMED
EK^Criminal Appeal from the
Cuyahoga County Court of Common PleasCase No. CR-369837
BEFORE: Blackmon, J., McMonagle, P. J., and Cooney, J.
James E. ValentineBrett F. Murner323 Lakeside AvenueSuite 450Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. MasonCuyahoga County Prosecutor
Kristen L. SobieskiAssistant County Prosecutor8"' Floor Justice Center1200 Ontario StreetCleveland, Ohio 44113
FILED AND JOURNAL9Z6DPER APP.R. 22(C)
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N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and26(A); Loc.App.R. 22. This decision will be journalized and will become the judgmentand order of the court pursuant to App.R. 22(C) unless a motion for reconsiderationwith supporting brief, per App.R. 26(A), is filed within ten (10) days of theannouncement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1).
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PATRICIA ANN BLACKMON, J.:
Appellant Ricardo Gray appeals the trial court's denial of his motion for
leave to file a motion for a new trial. This appeal is Gray's eighth appeal
seeking to overturn his conviction and sentence for murder and felonious
assault. The salient facts leading to Gray's conviction and sentence are set forth
in State u. Gray.' The history of his case is contained in the prior decisions of
this court and of the Ohio Supreme Court.2 In this appeal, Gray assigns the
following error for our review:
"I. The trial court erred and abused its discretion in denyingappellant's motion for leave to file motion for new trial andsupplemental motion for leave to file motion for new trialthereby violating appellant's due process rights under theUnited States and Ohio Constitutions."
Having reviewed the record and pertinent law, we affirm the trial court's
decision. The apposite facts follow.
In November 1.998, the Cuyahoga County Grand Jury indicted Gray for
one count of aggravated murder and two counts of attempted aggravated
'See State v. Gr•ay (2000), 90 Ohio St.3d 1469; State u. Gr•ay (Sept. 17, 2001),
Cuyahoga App. No. 76170 (Gray II); State v. Gray, Cuyahoga App. No. 76170,
2002-Ohio-1093 (Gray III); State v. Gray, Cuyahoga App. No. 81474, 2003-Ohio-436
(Gray IV); State u. Gray, Cuyahoga App. No. 82841, 2003-Ohio-6643 (Gray V); State v.
Gray, 102 Ohio St.3d 1460, 2004-Ohio-2569; State v. Gray, Cuyahoga App. No. 83926,
2004-Ohio-5861(Gray VI); State v. Gray, Cuyahoga App. No. 84677, 2004-Ohio-7030
(Gray VII).
/ cG^?'G28
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murder, each count with a firearm specification. On February 18, 1999, a jury
found him guilty of the lesser included offenses of murder, felonious assault, and
the firearm specifications. The trial court sentenced him to fifteen years to life
for murder, five years for felonious assault, and three years for the firearm
specifications to be served consecutively.
Gray I sets out this court's affirmance of his conviction and sentence. In
Gray V, this court reviewed and overruled his assigned errors regarding the trial
court's denial of his motion for a new trial based on newly discovered evidence.
The newly discovered evidence consisted of two affidavits from witnesses
Anthony Mixon and Arthur Jackson, Sr. Both Mixon and Jackson testified in
Gr•ay I that Gray was the shooter; however, in Gray V, they recanted their
stories. The trial court held that the request for a new trial was untimely and
failed to establish that the evidence would result in a not guilty verdict. We
affirmed the trial court's decision, and the Ohio Supreme Court declined further
review.3 Gray then moved for leave again, and in Gray VII, we ruled that the
doctrine of res judica.ta barred any further consideration. However, while Gray
VII was pending, Gray filed for leave to file a motion for new trial. In that
motion, Gra,y argued in support of his request that he had obtained newly
3See Gray VI.
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discovered exculpatory evidence; he attached affidavits from Quandale Johnson,
Kenneth Bell, and himself.
Affi.ant Johnson averred that he was familiar with the shooting and
claimed that Gray was not the shooter; instead an individual named Benny was
the shooter. Bell also averred that Gray was not the shooter; he stated that
Gray had in fact been injured, and driven to the hospital prior to the shooting,
and that Benny was the shooter.
The trial court denied Gray motion for leave to file a motion for a new
trial. Thereafter, Gray filed a citizen's petition and appealed the Gray VII
decision to the Ohio Supreme Court. On May 25, 2005, the Ohio Supreme Court
declined jurisdiction and dismissed the appeal, citing lack of any substantial
constitutional question of law.
On September 26, 2008, Gray filed another motion for leave to file a
motion for a new trial; he cited as grounds newly discovered evidence. The
xnotion included a new affidavit frozn Mixon, who averred that he had learned
that the shooter's last name was Kern. Mixon also averred that he had seen a
photograph of Kern, and he was positive that Kern was the shooter. Gray also
provided the affidavits of Michael Steele, Jr. and Kenneth Bell, both of whom
averred that Kern was the shooter.
-4-
On December 4, 2008, the trial court denied the motion without a hearing.
Gray filed a motion for reconsideration and a supplemental motion for leave to
file a motion for new trial. In the supplemental motion for leave to file a motion
f'or new trial, Gray attached an affidavit detailing how he eventually learned
Benny's last name was Kern. In the affidavit, Gray averred that after he
learned Benny's last name, he obtained a picture of Kern, which he showed to
Mixon, who confirmed that Kern was the shooter.
In addition, Gray attached an affidavit of Duane Washington, who averred
that he was present at the shooting. Washington also averred that he was later
incarcerated with Benny Kern, who told him that he had been shooting at
Washington and others on the night in question. On January 7, 2009, the trial
court denied Gray's motion for reconsideration and his supplemental motion for
leave to file a motion for a new trial. This appeal followed.
Motion for Leave to File
In the sole assigned error, Gray argues the trial court erred when it denied
his motion for leave to file a motion for a new trial.
!'^'^1 ^'6J?:31
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At the outset, we note that this court, in Gray VII,4 held that res judicata
barred this court from any further consideration of this matter. We stated the
following:
"* * * [B]ecause this court has already addressed this issue in Gray
V and found that Gray is not entitled to a new trial, the doctrineof res judicata bars any further consideration. See State v.
Szefcylz, 77 Ohio St.3d 93, 671 N.E.2d 233, 1996-Ohio-337; State v.
Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. It iswell-established that `under the doctrine of res judicata, a finaljudgment of conviction bars the convicted defendant from raisingand litigating in any proceeding, except an appeal from thatjudgment, any defense or any claimed lack of due process that wasraised or could have been raised by the defendant at the trialwhich resulted in that judgment of conviction or on an appealfrom that judgment.' Perry, supra, at 180, 226 N.E.2d 104.Accordingly, we find that the trial court did not abuse itsdiscretion in denying Gray leave to file a second motion for a newtrial because he failed to raise any issue different from the issuesthis court previously adjudicated.75
In the instant appeal, Gray raises the identical issue raised in his prior
motions for a new trial. The doctrine of res judicata bars consideration of his
present claim. Although res judicata resolves this matter, we nevertheless
address his motion for leave to file a motion for new trial.
°Cuyahoga App. No. 84677, 2004-Ohio-7030.
M
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Crim.R. 33(A)(6) sets forth the guidelines for filing a motion for a new trial
based on newly discovered evidence.' In discussing that rule, State U. Morgan
held: "In order to be able to file a motion for a new trial based on newly
discovered evidence beyond the one hundred and twenty days prescribed in the
above rule, a petitioner must first file a motion for leave, showing by `clear and
convincing proof that he has been unavoidably prevented from filing a motion in
a timely fashion.""
The standard of "clear and convincing evidence" is defined as "that
measure or degree of proof which is more than a mere `preponderance of the
evidence,' but not to the extent of such certainty as is required `beyond a
reasonable doubt' in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established."$
Judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by a reviewing court. An
appellate court should not substitute its judgment ior that of the trial court
6 State u. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178.
'3rd Dist. No. 17-05-26, 2006-Ohio-145-
RCross u. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus.
PG0 L33
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when there exists competent and credible evidence supporting the findings of
fact and conclusions of law rendered by the trial court judge.s9
Thus, in reviewing the trial court's refusal to grant leave to file a motion
for new trial, we will examine the record to determine whether appellant
presented sufficient evidence to satisfy the "clear and convincing evidence"
standard; however, we cannot substitute our judgment for that of the trial court
if competent, credible evidence supports the trial court's decision.
"[A] party 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
„'odiligence.
In addition to demonstrating that a petitioner was unavoidably prevented
from discovering the evidence relied upon to support the motion for new trial,
the petitioner also must show that he filed his motion for leave within a
reasonable time after discovering the evidence relied upon to support the motion
9State v. Schiebel (1990), 55 Ohio St.3d 71, 74.
10State v. Lee, 10th Dist. No. 05AP-229, 2005-Ohio-6374, ¶7.
I.': :^ ^ 1 i-G i^! 2 3 4
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-for new trial." If there has been a significant delay, the trial court must
determine whether the delay was reasonable under the circumstances or
whether the defendant has adequately explained the reason for the delay.'Z
We review both aspects of Crim.R. 33 permission for leave to file a motion
for a new trial and the substantive ruling on the motion for a new trial under the
abuse of discretion standard.13 An abuse of discretion is more than an error of
law or judgment; it implies that the court's attitude is unreasonable, arbitrary,
or unconscionable.14
In the instant case, Gray's motion for leave to file a xnotion for new trial
states in pertinent part as follows:
"*** The defendant in this case has been unavoidably preventedfrom filing this motion for a new trial within one hundred twenty
days after the day upon which the verdict was rendered as keyparts of the new evidence have only recently come to light. **"In addition to the prior affidavit of Anthony Mixon, there is nowa new affidavit from Mixon in which he reiterates that his trial
testimony identifying Gray as the shooter was false and made
under duress, and that the actual shooter was a male known only
"State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 37; State v. Elersic,
111:h Dist. No. 2007-L-104, 2008-Ohio-2121, ¶20; State v. Cleveland, 9th Dist. No.
08CA009406, 2009-Ohio-397, ¶49.
"-Id.
"See State u. Bates, l0t" No. 08AP-753, 2008-Ohio- 1422, ¶9.
"State v. Adanis (1980), 62 Ohio St.2d 151, 157.
nu 0 2 35
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as `Benny.' He has now learned that the last name of thatindividual is `Kern.' He has now seen a photo of Benny Kern fromthe Ohio Department of Rehabilitation and Correction website,and confirms that Benny Kern is the person he saw doing theshooting. * * * Further, an individual named Michael Steele hasnow been located and identified as a witness to the shooting. Hehas provided an affidavit in which he, too, states that the actualshooter that night was an individual named Benny Kern. * * *This, too, is information not previously known to or available toMr. Gray as he was not aware that Steele had been a witness tothe shooting. * * * Additional new evidence is in the form of anaffidavit from an individual named Kenneth Bell. Mr. Bellwitnessed the shooting and states that Benny Kern was theshooter. He states that Mr. Gray was taken to the hospital thatnight and did not cominit the crime for which he is imprisoned.* * * This, too, is information not previously known to Gray as hewas not aware that Bell was a witness to the shooting."15
At the outset, we note that in Gray's motion for leave, there is a complete
absence of any indication of a time frame in which Gray allegedly acquired this
newly discovered evidence. Noticeably absent from the motion is any indication
of when Mixon learned the last name of the individual he alleges is the actual
shooter. Also absent is any indication of when Gray learned from Mixon that
Kern was the last name of the alleged shooter.
Without any time frame, Gray has failed to provide the trial court with
any facts for the trial court to determine whether he was unavoidably prevented
from discovering this new evidence. Further, without providing a time frame
'sGray's Motion for Leave.
^!i`_.;^t37 ?ui^236
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for when this newly discovered evidence was acquired, Gray has failed to provide
the trial court with the facts necessary for its determination of whether the
motion for leave was filed within a reasonable time after acquiring the newly-
discovered evidence.
Thus, without providing the trial court with any information about the
time line of the acquisition of the newly discovered evidence, the only conclusion
that the trial court could reach is that the evidence was acquired sometime after
Gray's preceding motion for leave was filed. Since the record indicates that
Gray's preceding motion for leave was filed on June 11, 2004, more than four
years prior to the present motion, Gray's present motion for leave, which was
filed on September 28, 2008, is patently untimely.
As such, we refrain from concluding that the trial court abused its
discretion in denying what amounts to Gray's fourth attempt to get a new trial
on the grounds of newly-discovered evidence.
Nonetheless, in support of his claim that he was unavoidably prevented
from acquiring this newly discovered evidence, Gray cites State v. Houston,16 one
of our recen.t decisions, which he claims to be remarkably similar to the facts of
the instant case. Houston does involve a quest to discover the last name of an
"Cuyahoga App. No. 90780, 2009-Ohio-224.
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alleged assailant. In I-Iouston, the petitioner presented some semblance of a
time frame and the steps taken to discover the alleged assailant's last name.
In Ilotaston, we wrote:
"'^' * * Houston had engaged the services of an investigator in 2006.He gave the investigator the surname "Ware" but told her that heknew the person by the nickname `Popeye.' A person who lived inthe area near wbere the robbery occurred recalled a person withthe same nickname and thought that this person originally camef'rom Indiana. At some point, Houston learned that this person hadthe first name of either `Lamar' or `Demarr,' but could not becertain. The investigator made records checks in Indiana andmade contact with the Gary Police Department. Those contactsled her to discover Demarr Eugene Ware, who had two differentsocial security numbers. The investigator eventually contactedthe Cobb County, Georgia Sheriff's Department and obtained abooking sheet and mug shot photo of Ware. Pope then identifiedWare as the man he knew as `Popeye' and whom he claimed hadbeen the robber. Bobby Ray Slaughter, who lived in theneighborhood at the time of the robbery, also saw Ware's mug shotand identified him as the person whom he knew from the time ofthe robbery by the nickname `Popeye."'"
Based on the information Houston provided in his motion for leave, we
concluded that the trial court could have rationally viewed those facts as
showing by clear and convincing evidence that llouston had been unavoidably
prevented from discovering Ware's identity and location.
In Gray's latest motion for leave to file a motion for new trial, he relies
heavily on the affidavit of Mixon as the source leading to the discovery of the
"Id.
uu 0' 3 8
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alleged shooter's last name. As previously stated, Mixon testified at the trial,
identified Gray as the shooter, but later recanted his testimony, and claimed
that lie was coerced by the police to identify Gray as the shooter.
A witness's recantation of testimony can be newly discovered evidence if
the court finds the new testimony credible and if the new testimony would
materially affect the outcome of the trial.'fl In determining the credibility of a
witness's recanted testimony, newly discovered evidence that recants testimony
given at trial is looked upon with the utmost suspicion." Recanting affidavits
and witnesses are viewed with extreine suspicion because the witness, by
making contradictory statements, either lied at trial, or in the current testimony,
or both times.20
It must be noted that the same trial judge who presided over the trial has
also presided over the lengthy procedural history that has ensued. Because it
is the trial court's obligation to measure the credibility of witnesses, in order to
`ySta.te u. Burke, lOthDist. No. 06AP-686, 2007-Ohio-1810, ¶18, citing Toledo u.
Easterling (1985), 26 Ohio App.3d 59.
"State u. Jones, 10th Dist. No. 06AP•62, 2006-Ohio-5953, ¶25; State u. Covender,
9t,h Dist. No. 07CA009228, 2008-Ohio-1453, ¶11; State v. .Saban (Mar. 18, 1999),
Cuyahoga App. No. 73647. See, also, United, States u. Chambers (C.A.6, 1991), 944
P'.2d 1253, 1264.
20Jones, citing United States v. Earles (N.D. Iowa1997), 983 F.Supp. 1236, 1248.
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grant a motion for new trial based on recanted testimony, the trial court must
be reasonably well satisfied that the trial testimony initially given by the
witness was false and, by implication, that the recanted testimony is credible
and true.21 Since the trial court observed Mixon testify at the trial, it is clear
from the trial court's decision denying Gray's motion for leave, that it did not
believe Mixon's recantation and present averments.
As it pertains to the affidavit of Steele, which states in total as follows:
"On the night of the shooting that Ricardo Gray was convicted ofI Michael Steele Jr saw Benny Kern start shooting and I startedrunning for my safety."
Steele provided the above affidavit, claiming to be an eyewitness to the shooting,
some ten years after the incident. Gray, who was represented by counsel, fails
to indicate why neither he nor his trial counsel were prevented from
investigating the matter and discovering that Steele witnessed the incident. We
conclude Gray has failed to demonstrate how he was unavoidably prevented
from obtaining these statements at an earlier time.
"Cleueland at ¶56; Jones at ¶25; Covender.
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Consequently, we find no abuse of discretion in the trial court's decision
denying Gray's motion for leave to file a motion for new trial. Accordingly, we
overrule Gray's sole assigned error.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. The defendant's conviction having been affirmed, any
bail pending appeal is terminated. Case remanded to the trial court for execution
of sentence.
A certified copy of this entry shall constitute the inandate pursuant to Rule
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