[Cite as State v. Cannon, 2021-Ohio-4198.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210131
TRIAL NO. B-9507633
Plaintiff-Appellee, :
vs. : O P I N I O N.
DEREK CANNON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 1, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ohio Innocence Project and Donald Caster, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Derek Cannon appeals the Hamilton County
Common Pleas Court’s judgment denying his Crim.R. 33(A)(6) motion for a new trial
on the ground of newly discovered evidence. We affirm the court’s judgment.
{¶2} Cannon was convicted in 1996 of aggravated murder for the death of
fellow inmate Darrell Depina during the 1993 riot at the Southern Ohio Correctional
Facility in Lucasville, Ohio. He unsuccessfully challenged his conviction on direct
appeal and in postconviction motions filed in 1996, 1998, and 2009. See State v.
Cannon, 1st Dist. Hamilton No. C-950710, 1997 WL 78596 (Feb. 26, 1997), appeal
not allowed, 81 Ohio St.3d 1523, 692 N.E.2d 1024 (1998); State v. Cannon, 1st Dist.
Hamilton No. C-980389 (Mar. 10, 1999); State v. Cannon, 1st Dist. Hamilton No. C-
090907 (Jan. 12, 2010).
{¶3} In 2018, Cannon moved under Crim.R. 33(B) for leave to file a Crim.R.
33(A)(6) motion for a new trial on the ground of newly discovered evidence. On
appeal from the denial of the motion for leave, we reversed and remanded for a
hearing on the matter of leave. State v. Cannon, 1st Dist. Hamilton No. C-180474,
2019-Ohio-3941.
{¶4} On remand, the common pleas court effectively granted leave when it
conducted an evidentiary hearing on the January 2020 motion from which this appeal
derives, seeking a new trial under Crim.R. 33(A)(6) on the ground of newly discovered
evidence. Following the hearing, the common pleas court denied a new trial.
{¶5} In this appeal, Cannon presents a single assignment of error
challenging the denial of his new-trial motion. We find no merit to that challenge.
The Trial
{¶6} Darrell Depina was one of several inmates who was deemed a “snitch”
and beaten to death by a “death squad” of fellow inmates during rioting at Lucasville
prison. An autopsy showed his cause of death to be skull fractures and a brain injury
from two “heavy injuries” to the head.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} State’s witnesses testified to seeing Cannon with the “death squad” in
the “snitch” section of the prison, with a weapon in his hand, beating Depina about
the head and body. A witness also testified that Cannon had later confessed to
having struck someone in the head. Cannon took the stand in his own defense and
denied entering the area of the prison where the murders had taken place. Other
defense witnesses corroborated his testimony.
{¶8} In rebuttal, the state offered the testimony of jailhouse informant
Dwayne Buckley. Buckley testified that he had met Cannon in the Hamilton County
Justice Center while serving as a porter in Cannon’s pod, that they had discussed the
Lucasville riot, and that Cannon had confessed to being part of a group who had
tortured and killed “a guard” and shanked a “white guy” in another cell. Buckley
stated that Cannon had declared that he would “beat” the charges and avenge himself
on any “snitches” who had implicated him. And Buckley stated that he had reported
Cannon’s confession to law enforcement because he feared for his safety and the
safety of others after an argument between the two had escalated into threats by
Cannon against Buckley and his family.
{¶9} In surrebuttal, Cannon testified that any contact with Buckley had
been in the presence of two corrections officers. And Cannon denied threatening
Buckley or confessing to Buckley that he had tortured and murdered a corrections
officer.
The Motion for a New Trial
{¶10} In his 2020 motion for a new trial, Cannon argued that newly
discovered evidence demonstrated a strong probability of a different outcome if a
new trial were granted. He supported the motion by reference to evidence outside
the record that had been presented on his motion for leave to file a new-trial motion.
{¶11} That evidence included affidavits made by Buckley in April 2017 and
May 2018. In his 2017 affidavit, Buckley averred that his trial testimony that
“Cannon had confessed to [him] that he had murdered the guard * * * was not true.”
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OHIO FIRST DISTRICT COURT OF APPEALS
Buckley also stated that he did not remember Cannon threatening him, and that he
had testified against Cannon because law enforcement presented him with “[a]n
opportunity to get back at Cannon” for an altercation between the two, by “offer[ing]
[him] in exchange for [his statement] * * * some sort of minor incentive, maybe a few
days off of [his] sentence.” Buckley further stated that, after his release from jail, he
ignored a subpoena to testify, but a detective came to his place of work, told him he
“had to testify,” and drove him to court. Buckley asserted that after his testimony, a
state’s attorney had “said [his] testimony sealed their case against Cannon.” And
Buckley insisted that he had made his affidavit not under threat or compulsion, but “to
make things right and prevent this from further weighing on [his] conscience.”
{¶12} But in his 2018 affidavit, offered by the state in opposition to Cannon’s
motion for leave, Buckley retracted his 2017 affidavit. He averred that he had
testified truthfully at trial, and that his 2017 affidavit had been false and the product
of threats against his mother and against his brother’s son, who was incarcerated
with Cannon at the time.
{¶13} Buckley’s brother responded to Buckley’s May 2018 retraction of his
2017 affidavit with an affidavit made in June 2018. Buckley’s brother denied that he,
his son, or his mother had been threatened in connection with Cannon’s case.
{¶14} Cannon also offered an affidavit made in 1996 by a state’s witness,
recanting his trial testimony that he had seen Cannon in the prison with a weapon in
his hand. The witness asserted that he had provided false testimony as part of a plea
arrangement that allowed him to avoid death-eligible charges and plead guilty to
felonious assault.
{¶15} An affidavit was also provided by a private investigator engaged by the
Ohio Innocence Project in late 2016 to locate and interview Buckley after he had
expressed to family members regret about his testimony at Cannon’s trial. The
investigator averred that, in interviews beginning in January 2017 that culminated in
the making of his April 2017 affidavit, Buckley said that he had been “coached” on his
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OHIO FIRST DISTRICT COURT OF APPEALS
statement to police, that that statement had been prompted by “pressure on his
family that ‘turned into something else,’ ” and that his reward had been early release.
{¶16} At the hearing conducted on the new-trial motion, Buckley was put on
the stand. But he invoked his privilege against self-incrimination, and the state
declined to grant him immunity. The parties stipulated to the authenticity of
Buckley’s 2017 affidavit and a video of him signing the affidavit, and the common
pleas court admitted those exhibits. The parties further stipulated that the recanting
state’s witness would have testified consistent with his 1996 affidavit.
{¶17} The common pleas court also “accepted” Buckley’s 2018 affidavit “as
part of the record.” Concerning the “veracity” of that affidavit, the defense called the
Ohio Innocence Project’s private investigator, Buckley’s brother and nephew, and the
notary for Buckley’s 2018 affidavit. The notary testified that Buckley had signed the
2018 affidavit. The private investigator testified that she had contacted Buckley by
phone in January 2017, after locating him through his brother, and had met with him
in February and secured his affidavit in April. She further stated that Buckley’s
family members had been present when he signed the affidavit and had expressed
fears about a perjury charge for Buckley, but not physical threats by Cannon.
Buckley’s brother and nephew testified that no family member had been threatened
by Cannon.
No Abuse of Discretion
{¶18} In this appeal, Cannon presents a single assignment of error
challenging the denial of his motion for a new trial. We find no merit to this
challenge.
{¶19} A new trial may be granted under Crim.R. 33(A)(6) on the ground that
“new evidence material to the defense is discovered, which the defendant could not
with reasonable diligence have discovered and produced at trial.” To prevail on a
Crim.R. 33(A)(6) motion for a new trial on the ground of newly discovered evidence,
the movant must demonstrate that the evidence “(1) discloses a strong probability
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OHIO FIRST DISTRICT COURT OF APPEALS
that it will change the result if a new trial is granted, (2) has been discovered since
the trial, (3) is such as could not in the exercise of due diligence have been discovered
before the trial, (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, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.
{¶20} A motion for a new trial is directed to the sound discretion of the trial
court, and the court’s decision will not be reversed on appeal in an absence of an
abuse of that discretion. See State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891
(1975), paragraph two of the syllabus. An abuse of discretion “implies that the
court’s attitude [was] unreasonable, arbitrary or unconscionable.” State v. Adams,
62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). An “unreasonable” decision is a
decision that is not supported by “a sound reasoning process.” AAAA Ents., Inc. v.
River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990).
{¶21} We note at the outset that, in the direct appeal, Cannon assigned as
error the balance struck by the jury in weighing the evidence adduced at trial. In
overruling that assignment of error, this court did not rely on Buckley’s trial
testimony. We acknowledged that that there were “inconsistencies among the
various witnesses’ testimony,” and that due to “the nature of this case, the credibility
of a number of witnesses on both sides was certainly suspect, a fact of which the jury
was assuredly aware.” But based on our review of the testimony provided by
witnesses other than Buckley, we found “nothing in the record [to] indicate[] that the
jury lost its way when it chose to believe the state’s witnesses rather than Cannon
and his witnesses.” And we found “more than substantial evidence upon which the
jury could reasonably conclude that all of the elements of aggravated murder had
been proven beyond a reasonable doubt.” Cannon, 1st Dist. Hamilton No. C-950710,
1997 WL 78596, at *1-3.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Buckley’s 2017 affidavit recanted his trial testimony that Cannon had
confessed to being part of a group who had tortured and killed “a guard” and then
gone to “another cell and pulled a white guy out and shanked him.” In its entry
denying a new trial, the common pleas court noted that the “shanked” “white guy”
was never identified, by Buckley or otherwise, as the inmate whom Cannon was
convicted of murdering, Darrell Depina. Nor could such an identification have
credibly been made, when Depina died of skull fractures and a brain injury from two
“heavy injuries” to the head.
{¶23} In deciding the new-trial motion, the court did not discount the
credibility of Buckley’s affidavit or consider his 2018 retraction of his 2017
recantation. Instead, applying the Petro analysis, the court denied a new trial upon
its finding that Buckley’s 2017 recantation would not create the possibility of a
different outcome if a new trial were granted. That finding was not demonstrably the
product of an arbitrary or unconscionable attitude and was supported by a sound
reasoning process.
Affirmed
{¶24} We, therefore, hold that the common pleas court did not abuse its
discretion in denying Cannon’s Crim.R. 33(A)(6) motion for a new trial.
Accordingly, we overrule the assignment of error and affirm the court’s judgment.
Judgment affirmed.
CROUSE, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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