[Cite as State v. Taylor, 2011-Ohio-2563.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 23916
vs. : T.C. CASE NO. 97CR1303
EDWARD D. TAYLOR : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 27th day of May, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No.0020084, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Adrian King, Atty. Reg. No.0081882, 36 N. Detroit Street, Suite
104, Xenia, OH 45385
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Edward Taylor, appeals from a final judgment
denying his motion for a new trial based upon a claim of newly
discovered evidence.
{¶ 2} In February 1998, Defendant was found guilty following
a jury trial of murder with a firearm specification. The trial
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court sentenced Defendant to prison terms totaling eighteen years
to life. We affirmed Defendant’s conviction and sentence on direct
appeal. State v. Taylor (April 16, 1999), Montgomery App. No.
17142. In our Opinion we set forth the facts of the case as follows:
{¶ 3} “On May 9, 1997, Paul Metz was shot and killed in the
rear bedroom of his apartment. Earlier that day, Metz had asked
an ex-neighbor, Tyaunna Landers, to find buyers for some marijuana
he was receiving that day. Landers brought defendant-appellant
Edward Taylor and an unidentified man, referred to only as ‘Joe,’
to Metz's apartment to purchase the marijuana. When the three first
arrived at the apartment, only Paul and his girlfriend, Jody Brown
were present. The five smoked some marijuana and discussed the
price of the marijuana. After approximately thirty to forty-five
minutes, Taylor, Joe and Landers left.
{¶ 4} “Later, Merle Lunsford arrived at the apartment. He
brought six pounds of marijuana with him, as well as a .38 caliber
Smith & Wesson handgun, which he kept in his jacket pocket. Lunsford
testified that he brought the gun with him upon Metz's request
because Metz did not trust the buyers. Lunsford gave Metz five
pounds of the marijuana, which Metz took into the back bedroom
of the apartment; the other pound of marijuana was intended for
another party. Shortly after Lunsford arrived, Landers, Taylor
and Joe returned. Metz and Taylor went to a back bedroom, leaving
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Landers, Joe, Lunsford and Brown in the living room.
{¶ 5} “Brown and Landers testified that they heard a gunshot
in the rear bedroom, and then Joe began shooting at Lunsford.
Lunsford was not sure whether he heard the shots in the bedroom
before Joe started shooting. Lunsford testified that Joe shot him
in the forehead, causing him to fall back over the couch. He
testified that Joe then shot him several times in the leg. According
to Lunsford, he then pulled out his gun and returned fire at Joe,
getting off two shots. He testified that Taylor came out of the
bedroom with a gun and aimed at Lunsford. He testified that Taylor
pulled the trigger, but the gun did not fire. Lunsford further
testified that he fired approximately three times at Taylor,
wounding him in the head. Taylor fled the apartment through the
bedroom window.
{¶ 6} “At some point, Brown, Landers and Joe fled the
apartment. Lunsford testified that before leaving the apartment
he picked up Joe's .25 caliber silver automatic, and then left
the apartment as well. He further testified that once outside the
apartment, he saw Landers, Joe and Taylor getting into their car;
at that point he attempted to shoot at them with Joe's gun, but
the gun was empty. According to Lunsford, he then threw Joe's gun
into a mud puddle, where it was later recovered. Lunsford then
went to a fire department where he was treated and transported
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to a hospital. Lunsford testified that he disposed of his .38
caliber weapon and only turned it over to the authorities after
he was assured of immunity for his testimony in the prosecution
of Taylor.
{¶ 7} “Landers testified that after she fled the apartment,
she helped Taylor into the Plymouth Breeze automobile they had
arrived in. They drove away and picked up Joe somewhere on the
street. Landers testified that they drove to Taylor's apartment
where she and Taylor transferred into Taylor's car. Taylor and
Landers then drove to Cincinnati so that Taylor could be treated
at a hospital. Taylor and Landers told hospital staff and the
Cincinnati Police that he had been shot when they stopped to ask
for directions in Cincinnati. Taylor was subsequently arrested
by the Dayton police.
{¶ 8} “Metz died as a result of four gunshot wounds. The
coroner recovered only one bullet from his body; the bullet was
from a .45 caliber weapon that was found in the bedroom with Metz.
An atomic absorption test was performed on Metz's hands to test
for gunpowder residue. Residue was found on his hands. An atomic
absorption test performed on Lunsford's hands also indicated that
he had gunpowder residue on his hands. No atomic absorption test
was performed on Taylor's hands.”
{¶ 9} On February 16, 2007, nine years after he was convicted
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of murdering Paul Metz, Defendant filed a motion for a new trial
based upon newly discovered evidence. Crim.R. 33(A)(6). In
support of his motion, Defendant attached affidavits from Antonio
Haney and Charles Martin, who, in identical language, claim that
they overheard Merle Lunsford tell an unidentified person that
he had falsely testified at Defendant’s trial that Defendant went
to Metz’s apartment to rob Metz and Lunsford. Also, according
to the affidavits, Lunsford stated that it was Metz, and not him,
who shot Defendant.
{¶ 10} On January 8, 2008, Defendant supplemented his motion
for a new trial with his own affidavit, wherein he states he shot
Metz in self-defense after Metz shot him in the face. On February
14, 2008, the State filed its third memorandum contra Defendant’s
motion for a new trial. The State argued that the materials
submitted by Defendant fail to demonstrate that he was unavoidably
prevented from discovering his new evidence, and in any event the
evidence presented at trial was overwhelming and the affidavits
submitted by Defendant were insufficient to demonstrate a
reasonable probability of a different result should a new trial
be ordered. On April 8, 2008, Defendant supplemented his new trial
motion with an affidavit from Joseph Postone, who claims he was
present and saw Metz shoot Defendant in the face before Defendant
pulled his gun and fired back.
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{¶ 11} On February 12, 2010, the trial court summarily denied
Defendant’s motion for a new trial without a hearing. The court
concluded that Defendant had not demonstrated by clear and
convincing proof that he was unavoidably prevented from discovering
the new evidence he now relies on. The court further concluded
that the affidavits submitted by Defendant are not credible and
are insufficient to justify a hearing.
{¶ 12} Defendant timely appealed to this court from the trial
court’s decision overruling his motion for a new trial
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN OVERRULING THE MOTION FOR LEAVE
TO FILE MOTION FOR A NEW TRIAL WITHOUT HAVING A HEARING.”
{¶ 13} The decision whether to grant a motion for a new trial
lies within the sound discretion of the trial court and will not
be disturbed on appeal absent an abuse of that discretion. State
v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54.
{¶ 14} “Abuse of discretion” has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482
N.E.2d 1248, 1252. It is to be expected that most instances of
abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or
arbitrary.
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{¶ 15} A decision is unreasonable if there is no sound
reasoning process that would support that decision. It is not enough
that the reviewing court, were it deciding the issue de novo, would
not have found that reasoning process to be persuasive, perhaps
in view of countervailing reasoning processes that would support
a contrary result. AAAA Enterprises, Inc. v. River Place Community
Redevelopment (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.
{¶ 16} Pursuant to Crim.R. 33(A)(6), a new trial may be granted
when new evidence material to the defense is discovered that the
defendant could not with reasonable diligence have discovered and
produced at trial. To prevail on a motion for new trial based upon
newly discovered evidence, Defendant must show that the new
evidence: (1) discloses a strong probability that the result of
the trial would be different if a new trial were granted; (2) has
been discovered since the trial; (3) is such as could not have
been discovered before the trial through the exercise of due
diligence; (4) is material to the issues; (5) is not merely
cumulative to former evidence; and (6) does not merely impeach
or contradict the former evidence. State v. Petro (1947), 148 Ohio
St. 505; State v. DeVaughns, Montgomery App. No. 23720,
2011-Ohio-125.
{¶ 17} Motions for a new trial based upon newly discovered
evidence must be filed within one hundred twenty days after the
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verdict was rendered, unless it appears by clear and convincing
proof that the movant was unavoidably prevented from discovering
the new evidence, in which case the motion for new trial must be
filed within seven days after an order of the court finding that
Defendant was unavoidably prevented from discovering the new
evidence within the one hundred twenty day period. Crim.R. 33(B).
{¶ 18} Defendant failed to obtain leave of court to pursue
an untimely motion for a new trial, and further failed to
demonstrate by clear and convincing proof that he was unavoidably
prevented from discovering the new evidence on which he relies.
Further, a review of Defendant’s motion for a new trial reveals
that it lacks merit, because the new evidence is not material to
the defense. Material evidence is evidence which goes to the
substantial matters in dispute or has a legitimate and effective
influence or bearing on the decision in the case. Black’s Law
Dictionary (4th Ed., 1968), at p. 1128.
{¶ 19} Defendant’s motion for a new trial is predicated on
the proposition that Defendant had agreed to buy marijuana from
Metz, and that Metz pulled a gun on Defendant in order to steal
his money and shot Defendant in the head, after which Defendant
shot Metz in self-defense. However, Defendant never claimed at
trial that he acted in self-defense in shooting Metz. To the
contrary, Defendant claimed that he never shot anyone. The “new
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evidence,” which consists of affidavit statements by Defendant
and three others, if true, directly contradicts and defeats the
defense Defendant pursued at trial. The new evidence therefore
fails to satisfy the materiality requirement of Crim.R. 33(A)(6).
{¶ 20} Additionally, we note that the affidavits of Haney and
Martin, which were offered in support of Defendant’s theory that
he shot Metz in self-defense, inaccurately report the facts. Both
affidavits claim that Lunsford admitted falsely testifying that
Defendant Taylor came to the apartment to rob Lunsford and Metz.
Howeer, Lunsford never testified at trial that Defendant Taylor
came to rob them. No abuse of discretion on the part of the trial
court in denying Defendant’s motion for a new trial has been
demonstrated.
{¶ 21} With respect to Defendant’s claim that he was
unavoidably prevented from timely discovering this new evidence,
we note that the guilty verdicts in this case were returned by
the jury in February 1998. This motion for a new trial was filed
on February 16, 2007, nine years after the guilty verdicts.
Obviously Defendant’s motion for a new trial is untimely, and he
was therefore required to demonstrate by clear and convincing proof
that he was unavoidably prevented from discovering the new evidence
within one hundred and twenty days after the guilty verdicts were
rendered.
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{¶ 22} In concluding that Defendant failed to demonstrate that
he was unavoidably prevented from discovering the new evidence,
the trial court found that the affidavits submitted by Defendant
were not credible. State v. Calhoun (1999), 86 Ohio St.3d 279.
The court pointed out that Defendant became aware of Haney’s
statements that Lunsford had changed his testimony more than one
year prior to filing his motion for a new trial. Martin’s
affidavit, which employs the exact same language as Haney’s, was
obtained ten months after Haney’s affidavit. No showing has been
made as to why it took ten months to obtain Martin’s affidavit.
{¶ 23} Furthermore, the court noted that the affidavits fail
to specify when and where the conversation with Lunsford took place,
how affiants know Lunsford, affiants’ relationship with Defendant
and when and how Defendant became aware of the conversations between
affiants and Lunsford. The trial court noted that several of the
Calhoun factors affecting credibility apply in this case. For
instance, this trial court presided over the trial, the wording
of Haney’s and Martin’s affidavits are identical, and the new
evidence set forth in the affidavits relies completely upon
hearsay.
{¶ 24} We find no abuse of discretion in the trial court’s
denial of Defendant’s motion for a new trial on the court’s finding
that Defendant failed to demonstrate by clear and convincing proof
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that he was unavoidably prevented from discovering the new
evidence, and on the court’s further finding that the affidavits
Defendant submitted from Haney and Martin were not credible. State
v. Lanier, Clark App. No. 2009CA84, 2010-Ohio-2921, at ¶16.
{¶ 25} Defendant’s assignment of error is overruled. The
judgment of the trial court will be affirmed.
DONOVAN, J. And HALL, J., concur.
Copies mailed to:
Carley J. Ingram, Esq.
Adrian King, Esq.
Hon. Barbara P. Gorman