[Cite as State v. Hale, 2023-Ohio-3894.]
[Please see vacated opinion at 2023-Ohio-3626.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112163
v. :
DELANO HALE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: October 26, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-04-454857-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sarah E. Hutnik, Assistant Prosecuting
Attorney, for appellee.
Law Office of Timothy Farrell Sweeney and Timothy F.
Sweeney, for appellant.
ON RECONSIDERATION1
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Delano Hale (“Hale”), appeals from the trial
court’s denial of his “motion for leave to file a delayed motion for new trial, with
memorandum in support and all exhibits.” He raises the following assignments of
error for review:
1. The trial court abused its discretion in denying appellant leave to file
a delayed motion for new trial.
2. The trial court abused its discretion in failing to address appellant’s
petition for postconviction relief.
{¶ 2} After careful review of the record and relevant case law, we affirm in
part, reverse in part, and remand the matter to the trial court for further proceedings
consistent with this opinion.
I. Procedural and Factual History
A. Hale’s Conviction and Direct Appeal
{¶ 3} On July 28, 2004, Hale was indicted for aggravated murder, with felony
murder death specifications, aggravated robbery, tampering with evidence, and
having a weapon while under disability, all in connection with the death of Douglas
Green (“Green”). The relevant facts supporting the indictment are as follows:
In 2003, Hale was released from prison after serving 12 years of a
sentence for aggravated robbery and carrying a concealed weapon. At
first, he lived with his father, but left in February 2004. That same
1 The original decision in this appeal, State v. Hale, 8th Dist. Cuyahoga No. 112163,
2023-Ohio-3626, released on October 5, 2023, is hereby vacated. This opinion, issued
upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C);
see also S.Ct.Prac.R. 7.01.
month, he obtained a telemarketing job with a base pay of $ 7.64 per
hour. On March 9, 2004, Hale told his sister Lashayla that he had a
gun.
By June 2004, Hale was in financial difficulty. His bank account had a
negative balance during all of June 2004. On June 8, he moved into
Room 260 of the Lake Erie Lodge, a motel in Euclid. He initially rented
the room for a week. He renewed his stay for another week on June 15,
renewed for a single night on June 22, and checked out on June 23.
On June 23, 2004, an employee of the lodge found a human corpse
wrapped in plastic garbage bags in Room 231, a vacant room being used
for storage. He notified the management, who summoned the police.
The body was identified as that of Douglas Green, a local voice teacher,
professional singer, and music producer.
An autopsy disclosed that Green had been shot four times in the right
side of the head. Two shots went into Green’s right ear, one entered his
skull directly behind the ear, and one entered about two and one-half
inches behind the ear. Three of the four shots entered Green’s brain.
Any one of these three wounds would have immediately stopped any
voluntary movement on Green’s part. Three of the wounds were
contact wounds, meaning that the shots were fired from no more than
an inch away. Gunshot residue was found on Green’s right hand, but
not his left, an indication that Green’s right hand was in close proximity
to the gun when it was fired.
Green’s bank statement shows that at 12:07 p.m. on June 22, 2004, a
person using Green’s Visa card made a $ 55.15 purchase at a Giant
Eagle store in Willoughby Hills. Giant Eagle records show that the
purchaser bought garbage bags, cleaning supplies, beer, and cigarettes
in that transaction. Green did not smoke or drink beer. The purchaser
also used a Giant Eagle discount card registered to Hale’s sister and
deceased mother.
Hale’s friend James Hull saw Hale driving a[n] Explorer SUV on two
occasions after Green’s murder, including on June 23, 2004, when Hull
helped Hale move out of the lodge. Hull later identified photographs
of Green’s SUV as the one Hale had been driving.
On June 28, 2004, at 2:30 p.m., Detective Sergeant Robert Pestak of
the Euclid police found Hale inside Green’s Ford Explorer SUV, parked
near Hale’s workplace in Cleveland. Pestak, supported by Cleveland
police units, arrested Hale.
When told that he was being arrested for Green’s murder, Hale said, “I
didn’t kill anybody.” Sergeant Pestak administered Miranda warnings
to Hale. While being led to a cruiser, Hale again said, “I didn’t kill
anybody.”
Hale was taken to the Euclid police station and placed in a cell. After
approximately five hours, Hale was removed from the cell and brought
to the detective bureau. There, Detective Sergeant James Baird [(“Det.
Baird”)] completed a personal-information form on Hale and
presented it to Hale for his signature. Hale signed the form using his
left hand, but Baird noted that Hale had difficulty writing with that
hand.
Baird then administered Miranda warnings to Hale. Hale signed a
Miranda waiver form, and this time, Hale used his right hand. Baird
proceeded to interrogate Hale. During the interrogation, Baird told
Hale that Green “was possibly bisexual” and that “if this was a case of
self-defense, then that would be understandable if he felt that Mr.
Green had attacked him.”
Hale wrote out and signed a four-page statement. In his statement,
Hale claimed that he had met Green in May 2004 when Green,
identifying himself as a record producer, asked Hale whether he had
considered singing professionally and gave Hale his cell-phone
number. According to Hale, he later called Green, and Green agreed to
go to Hale’s motel room to hear him sing.
According to Hale, they had arranged to meet at the Underground
Railroad, a bar near the lodge. Hale claimed that he and Green had met
at the Underground Railroad on Monday, June 21, 2004. (However,
according to the owner of the Underground Railroad, that
establishment was closed on Mondays.) They then went to Hale’s
room. According to Hale, Green had a small gun in his shoulder bag
and displayed it to Hale as they entered the room.
Hale claimed that he sang for Green, then went to the bathroom. Hale
claimed that when he returned, he found Green lying on the bed, nude.
Hale told Green to leave. According to Hale, Green grabbed Hale’s
wrists and “laid his head on [Hale’s] crotch” while making “slurping”
noises.
Hale claimed that he then freed his right hand, reached into Green’s
bag, pulled out the gun, held it to Green’s head, and cocked it.
According to Hale, Green said, “It isn’t loaded, so why don’t you give
me some of that dick.”
Hale fired. Green “reeled back,” but still gripped Hale’s left wrist,
according to Hale. Hale cocked the gun and fired again. He then backed
away from Green, took some bullets from Green’s bag, and reloaded.
According to Hale, Green then tried to stand up. Hale fired “once or
twice” more.
According to Hale, he considered calling an ambulance or the police,
but decided not to after he “thought about * * * [his] record” and “the
life [he] was attempting to build.” Instead, he disposed of the gun and
Green’s belongings. Then he went out to buy cleaning supplies to clean
up Green’s blood, using Green’s credit card because Hale’s “funds were
low.” The next day, he wrapped Green’s body in garbage bags, also
purchased with Green’s credit card, and dragged the body to a storage
room.
State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 4-17 (“Hale
I”).
{¶ 4} “At trial, the defense claimed that Hale’s killing of Green constituted
lawful self-defense because Green had attempted to rape Hale.” Id. at ¶ 36.
Ultimately, the jury rejected Hale’s defense and found him guilty of all counts and
specifications. On July 18, 2005, the trial court adopted the jury’s unanimous
recommendation and sentenced Hale to death on the aggravated-murder offense,
and an aggregate 13-year prison term on the remaining convictions.
{¶ 5} On July 15, 2008, Hale’s conviction and sentence were affirmed by the
Ohio Supreme Court. Hale I.
B. Postconviction Proceedings in State Court
{¶ 6} While his direct appeal was pending before the Ohio Supreme Court,
Hale filed a petition for postconviction relief, raising 19 grounds for relief. Following
a substantial delay, the trial court dismissed Hale’s petition on September 24, 2015.
This court affirmed the trial court’s judgement in State v. Hale, 8th Dist. Cuyahoga
No. 103654, 2016-Ohio-5837, ¶ 49 (“Hale II”).
{¶ 7} On January 11, 2017, Hale filed a “combined motion for leave to file a
motion for new mitigation trial pursuant to criminal rule 33 and R.C. 2953.21.” Hale
argued that the Ohio death penalty scheme was unconstitutional. On September 10,
2018, the trial court denied Hale’s combined motion. This court affirmed the trial
court’s judgment in State v. Hale, 8th Dist. Cuyahoga No. 107782, 2019-Ohio-1890
(“Hale III”).
C. Postconviction Proceedings in Federal Court
{¶ 8} In 2008, and again in 2017, Hale filed petitions for writs of certiorari
with the U.S. Supreme Court, which were denied. Hale v. Ohio, 556 U.S. 1168, 129
S.Ct. 1906, 173 L.Ed.2d 106 (2009); Hale v. Ohio, 138 S.Ct. 1269, 200 L.Ed.2d 424
(2018).
{¶ 9} On October 10, 2018, Hale filed a petition for a writ of habeas corpus in
the Northern District of Ohio, Eastern Division, pursuant to 28 U.S.C. 2254. In
relevant part, Hale argued that the trial court’s jury-selection procedures, which
excluded persons convicted of felonies from the jury pool, violated his Sixth
Amendment right to a jury from a fair cross-section of his community and his
Fourteenth Amendment rights to due process and equal protection. Hale also raised
various ineffective assistance of counsel claims based on defense counsel’s alleged
failure t0 (1) hire experts in forensic pathology, bloodstain pattern analysis, forensic
psychiatry, sexual abuse, and trauma; (2) discover Green’s alleged suicidal condition
before his murder; and (3) obtain parole and prison records. Finally, Hale claimed
that the prosecution failed to disclose material exculpatory and impeachment
evidence, violating his due process rights under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963).
{¶ 10} The motion was denied on March 31, 2021. Hale v. Shoop, N.D. Ohio
1:18-cv-504, 2021 U.S. Dist. LEXIS 61953 (Mar. 31, 2021). His request for
reconsideration was denied on March 1, 2022. Hale v. Shoop, N.D. Ohio 1:18-cv-
504, 2022 U.S. Dist. LEXIS 36135 (Mar. 1, 2022).
D. Hale’s Latest Motion for Leave to File
a Delayed Motion for New Trial
{¶ 11} On August 1, 2022, Hale filed a motion for leave to file a delayed
motion for new trial pursuant to Crim.R. 33(B) based on newly discovered evidence.
Hale argued that “due to improper suppression by the state, as well as facts
reasonably unknown to him, [he] was ‘unavoidably prevented from discovering the
evidence’ upon which he relies until well after 120 days had elapsed.” He contends
that the evidence attached to his motion for leave demonstrates that the state
unconstitutionally (1) withheld exculpatory or impeaching evidence at the time of
trial; (2) relied on “junk science” in securing his convictions and death sentence; and
(3) systematically excluded people with felony convictions, “which disproportionally
impacted black men, from petit and grand juries, including his own.”
{¶ 12} Within the motion for leave, Hale identified a collection of documents
that were allegedly not turned over to defense counsel prior to trial. These
documents included (1) Hale’s Ohio Adult Parole Authority records (Exhibit A-1);
(2) a supplemental police report completed by Det. Baird on June 24, 2004, (Exhibit
A-2); (3) handwritten notes taken by an unknown member of law enforcement
regarding a voicemail the victim left with his daughter (Exhibit A-16); (4) notes
taken by an unknown member of law enforcement regarding a phone interview with
the victim’s friend, Ricardo Cuffari (“Cuffari”) (Exhibit A-3); and (5) notes taken by
Det. Michael Grida of the Euclid Police Department regarding a statement made by
a friend of Green, acknowledging that he had “known about Green’s sexuality for a
long time.” (Exhibit A-17.) Hale’s motion also relied on new expert reports authored
by forensic pathologist, Dr. James Filkins (“Dr. Filkins”) (Exhibit A-13) and
bloodstain spatter analysis expert, T. Paulette Sutton (“Sutton”) (Exhibit A-14).
Finally, Hale relied on an advisory opinion issued by the Ohio Attorney General in
2006, and the testimony adduced during an unrelated trial in 2011, indicating that
the Cuyahoga County Court of Common Pleas was “systematically excluding
otherwise eligible jurors with felony convictions from its jury venire.” (Exhibits A-4,
A-5, A-6, A-8.)
{¶ 13} On August 29, 2022, the state filed a brief in opposition, arguing Hale
failed to demonstrate by clear and convincing evidence that he was unavoidably
prevented from discovering the evidence supporting his motion for leave. The state
maintained that Hale could not demonstrate that he “(1) had no knowledge of the
existence of the evidence or grounds supporting the motion for a new trial, and (2)
was unavoidably prevented, while exercising reasonable diligence, from learning of
these grounds within the statutorily prescribed time [by Crim.R. 33].”
{¶ 14} On October 25, 2022, the trial court summarily denied Hale’s motion
for leave without a hearing.
{¶ 15} Hale now appeals from the trial court’s judgment.
II. Law and Analysis
A. Leave to File Motion for New Trial
{¶ 16} In the first assignment of error, Hale argues the trial court abused its
discretion by denying his motion for leave to file a motion for new trial without a
hearing. Hale contends that leave should have been granted because the exhibits
attached to his motion established that he was unavoidably prevented from
discovering the evidence supporting his proposed motion for new trial. He explains
his position as follows:
Hale did not know the basis of his new trial motion existed at the time
of his trial, nor in the 120-day period following trial. First, Hale was
unavoidably prevented from discovering the favorable police and
parole records since the state suppressed them. Second, the trial
counsel’s failure to adequately investigate explains and excuses Hale’s
failure to discover the forensic evidence demonstrating his capital
convictions and sentence are based on fundamentally flawed and
incomplete testimony. Third, as the federal court concluded, “Hale was
not at fault for failing to develop sooner his fair-cross-section and
equal-protection claims relating to Cuyahoga County’s jury-selection
process (Doc. Nos. 13-8 - 13-15). The factual predicate of these claims
was not apparent or readily available to Hale or his counsel at trial or
before his post-conviction proceedings.”
{¶ 17} We review the denial of a motion for leave to file a delayed motion for
new trial for an abuse of discretion. State v. Hill, 8th Dist. Cuyahoga No. 108250,
2020-Ohio-102, ¶ 13, citing State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-
Ohio-6983, discretionary appeal not allowed, 152 Ohio St.3d 1411, 2018-Ohio-723,
92 N.E.3d 881. This includes any decision granting or denying an evidentiary
hearing. State v. Johnson, 8th Dist. Cuyahoga No. 109084, 2020-Ohio-3371, ¶ 14,
citing State v. Bonnell, 8th Dist. Cuyahoga No. 108209, 2019-Ohio-5342, ¶ 37, citing
State v. Hill, 8th Dist. Cuyahoga No. 102083, 2015-Ohio-1652, ¶ 16. An abuse of
discretion occurs when a court exercises “its judgment, in an unwarranted way, in
regard to a matter over which it has discretionary authority.” Johnson v. Abdullah,
166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
{¶ 18} Crim.R. 33 provides that a new trial may be granted on motion of the
defendant where new evidence materially affects the defendant’s substantial rights
and satisfies the following:
When new evidence material to the defense is discovered, which the
defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at
the hearing on the motion, in support thereof, the affidavits of the
witnesses by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may
postpone the hearing of the motion for such length of time as is
reasonable under all the circumstances of the case. The prosecuting
attorney may produce affidavits or other evidence to impeach the
affidavits of such witnesses.
Crim.R. 33(A)(6).
{¶ 19} Crim.R. 33(B) provides that a motion for new trial based on newly
discovered evidence must be filed within 120 days after a verdict is rendered. A
defendant who fails to file a motion for new trial within the prescribed timeframe
must seek leave from the trial court to file a delayed motion for new trial. Hale, 8th
Dist. Cuyahoga No. 107782, 2019-Ohio-1890, at ¶ 9, citing State v. Bryan, 8th Dist.
Cuyahoga No. 105774, 2018-Ohio-1190.
{¶ 20} To obtain leave, Crim.R. 33(B) requires the defendant to demonstrate
by clear and convincing proof that he or she was unavoidably prevented from filing
the motion for a new trial. Significantly, “[w]hen a defendant seeks leave to file a
motion for a new trial under Crim.R. 33(B), the trial court may not consider the
merits of the proposed motion for a new trial until after it grants the motion for
leave.” State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 30,
citing State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41,
citing State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio-1080, ¶ 14. “The
sole question before the trial court when considering whether to grant leave is
whether the defendant has established by clear and convincing proof that he was
unavoidably prevented from discovering the evidence on which he seeks to base the
motion for a new trial.” Id.
[A] party is unavoidably prevented from filing a motion for a new trial
if the party had no knowledge of the existence of the ground supporting
the motion * * * and could not have learned of the existence of that
ground within the time prescribed for filing the motion * * * in the
exercise of reasonable diligence.
State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).
{¶ 21} In turn, “clear and convincing proof” is defined as “‘that measure or
degree of proof [that] is more than a mere “preponderance of the evidence,” but not
to the extent of such certainty as is required “beyond a reasonable doubt” * * * 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.’” State v. Gray, 8th Dist. Cuyahoga No. 107394,
2019-Ohio-1638, ¶ 12, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118
(1954), paragraph three of the syllabus.
{¶ 22} In Bethel, the Ohio Supreme Court examined the scope of the
“unavoidably prevented” requirement in Crim.R. 33(B) to determine whether the
rule imposes a reasonable time requirement. The Bethel Court noted that,
historically, appellate courts have concluded that a defendant must file a motion for
leave within a reasonable period of time after discovering the new evidence. Id. at
¶ 53. The court, however, applied “general principles of statutory construction” and
determined that the rules do not authorize or support the “creation of a reasonable-
time filing requirement” under Crim.R. 33(B). Id. at ¶ 54-55. Bethel clarified that
Crim.R. 33(B) “does not establish a time frame in which a defendant must seek leave
to file a motion for a new trial based on the discovery of new evidence.” Id. at ¶ 55.
{¶ 23} In this case, Hale was convicted in 2005 and he filed his motion for
leave in August 2022, well beyond Crim.R. 33(B)’s 120-day time limit. Thus, to
obtain leave to file a motion for new trial, Hale was required to establish, by clear
and convincing evidence, that he was “‘unavoidably prevented from the discovery of
the evidence upon which he must rely.’” Bethel at ¶ 53, quoting Crim.R. 33(B).
{¶ 24} With the foregoing standards in mind, we separately address the
evidentiary materials supporting Hale’s motion for leave.
1. Hale’s Parole Records
{¶ 25} In his motion for leave, Hale argued that he was unavoidably
prevented from discovering certain parole records due to the state’s suppression of
favorable evidence. He alleged that the evidence was not discovered until October
2, 2018, despite his numerous requests for the state to produce all relevant
documents during the discovery process in 2004.
{¶ 26} In this case, the documents attached to Hale’s motion for leave
demonstrate that on November 8, 2004, Det. Grida sought a subpoena requiring the
Ohio Adult Parole Authority to produce Hale’s parole records. The subpoena
requested “any and all information, as to [Hale’s] reporting, living arrangements,
and employment as well as any other information within the persons file.”
Collectively, the parole records sent to the police department establish that (1) Hale
had been in compliance with the terms of his parole since his release from prison on
unrelated charges in December 2003, (2) Hale reported to his parole officer that he
was living at the Lake Erie Lodge, Room 260, for a period of time before Green’s
murder, and (3) Hale received positive reviews during his imprisonment. Hale
asserts that the parole records were exculpatory and could have been used to
impeach the state’s evidence that he “selected [the] hotel room as part of a scheme
to execute and rob Green.” Hale further contends that the parole records were
relevant to the highly contested issue of mitigation during the sentencing phase of
his trial.
{¶ 27} After careful review of the exhibits attached to Hale’s motion for leave,
we are unable to conclude by clear and convincing evidence that Hale was
unavoidably prevented from discovering the parole records stemming from his
prior, unrelated convictions. Without delving into the relevance of the parole
records, we find Hale had independent knowledge of the information contained
within the documents and, therefore, could have discovered and produced the
records at trial had reasonable diligence been exercised. Hale actively participated
in the meetings with his supervising parole officer and was aware of the factors
supporting his release from custody in 2003. Under these circumstances, we find
the trial court did not abuse its discretion in determining that Hale was not entitled
to leave to file a motion for new trial based upon his discovery of certain parole
records in 2018.
2. Newly Obtained Expert Reports
{¶ 28} Hale’s motion for leave further suggests that he was unavoidably
prevented from discovering the expert opinions of Dr. Filkins, a forensic pathologist,
and Sutton, a bloodstain-pattern analyst. Hale contends that “trial counsel’s failure
to adequately investigate explains and excuses [his] failure to discover the new
evidence within the 120-day post-trial deadline imposed by Crim.R. 33(B).”
{¶ 29} In this case, the issue of self-defense was highly contested at Hale’s
trial. Now, approximately 18 years following his convictions, Hale is attempting to
introduce the expert reports of Dr. Filkins and Sutton in an effort to undermine the
state’s theory that Green was “executed” or killed “execution style.” Relevant to this
appeal, Dr. Filkins summarized his opinion as follows:
[I]n this case there are plausible, medically based explanations
supporting Mr. Hale’s version of events. Based on the material I
reviewed, nothing in Mr. Hale’s written statement is directly
contradicted by the medical evidence in this case.
{¶ 30} In turn, Sutton rendered the following relevant opinions based on her
review of the trial evidence (1) there is not sufficient evidence to conclude that the
bloodstain discovered on the lower portion of the headboard in Hale’s hotel room
was produced as the result of a gunshot; (2) the most probable causative mechanism
of the single stain on the headboard was some activity or activities that took place
after the gunshots; (3) there is no scientifically reliable means to determine where
the single stain of blood on the headboard originated from in this case; and (4) the
finding of gunshot primer residue on the right hand of Green does not provide any
information as to the posture of Green at the time the shot was fired, i.e., “whether
in a defense posture, an offensive posture, or a neutral posture.” (Exhibit A-14, pgs.
14-15.)
{¶ 31} Despite Hale’s suggestion to the contrary, a defendant cannot claim
that evidence was undiscoverable merely because the defendant or his defense
counsel made no effort to obtain the evidence sooner. State v. Jackson, 8th Dist.
Cuyahoga No. 108241, 2019-Ohio-4893, ¶ 20, citing State v. Cashin, 10th Dist.
Franklin No. 17AP-338, 2017-Ohio-9289. As recognized by this court:
It is the duty of the criminal defendant and his [or her] trial counsel to
make a serious effort, on their own, to discover potential, favorable
evidence. State v. Williams, 8th Dist. Cuyahoga No. 99136, 2013-Ohio-
1905, ¶ 9. Claims that evidence was undiscoverable simply because the
defense did not take the necessary steps earlier to obtain the evidence
do not satisfy the requisite standard [under Crim.R. 33]. State v.
Anderson, 10th Dist. Franklin No. 12AP-133, 2012-Ohio-4733, ¶ 14; see
also State v. Golden, 10th Dist. Franklin No. 09AP-1004, 2010-Ohio-
4438, ¶ 15.
State v. Collins, 8th Dist. Cuyahoga No. 108486, 2020-Ohio-918, ¶ 45. To hold
otherwise, would permit a convicted defendant to perpetually “‘ferret out new expert
witnesses to re-examine the evidence with the hope of obtaining a different result.’”
See State v. Oneil, 11th Dist. Portage No. 2022-P-0030, 2023-Ohio-1089, ¶ 24,
quoting State v. Thompson, 2d Dist. Montgomery No. 25016, 2012-Ohio-4862, ¶ 12.
{¶ 32} Applying the foregoing, we find the evidence supporting Hale’s
motion for leave does not, on its face, support Hale’s claim that he was unavoidably
prevented from discovering the evidence contained in the expert reports. Beyond
conclusory statements, Hale fails to explain why neither he nor his trial counsel
could not have timely discovered the allegedly new evidence at an earlier point in
time. Hale and his counsel also were on notice that issues relating to gunshot
residue and blood splatter were relevant to his defense, and general information on
these topics was readily available. Furthermore, Hale’s motion fails to recognize the
significant distinction between newly discovered evidence and newly presented
evidence. See State v. McClain, 5th Dist. Guernsey No. 2019 CA 0024, 2020-Ohio-
2833, ¶ 11. Here, the opinions and affidavits of Dr. Filkins and Sutton are not based
on any new information or scientific research. Rather, the experts merely
reexamined the evidence presented at trial and offered alternative theories to those
raised by the state at trial. Under these circumstances, we find the trial court did
not abuse its discretion in denying Hale’s motion for leave to file a motion for a new
trial to the extent the motion relies on the newly commissioned expert reports.
3. Alleged Brady Violations
{¶ 33} Next, Hale argued that, due to the state’s suppression of evidence, he
was unavoidably prevented from discovering certain supplemental police reports
and notes that contain information concerning Green’s sexuality and his state of
mind in the days before his death. Hale alleged that the evidence was material and
could have been used by defense counsel at trial to (1) explain Green’s behavior
during his encounter with Hale, (2) explain why Green may have had a gun in his
possession on the day of the altercation, (3) support his statement to the police about
the attempted sexual assault, and (4) impeach the state’s evidence that “gave the
jury the erroneous impression that Green was not bisexual or otherwise attracted to
men.” Hale maintained that he “could not have reasonably known that the state had
failed to turn over such important exculpatory or impeaching evidence, [thus]
establishing that this evidence was not previously available within 120 days of the
verdict.”
{¶ 34} In Brady v. Maryland, the Supreme Court of the United States
recognized that the prosecution has an affirmative duty to disclose evidence that is
favorable to the accused and material to the accused’s guilt or punishment. 373 U.S.
83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also Kyles v. Whitley, 514 U.S. 419,
432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). That “duty encompasses impeachment
evidence as well as exculpatory evidence,” and “it encompasses evidence ‘known
only to police investigators and not to the prosecutor.’” Strickler v. Greene, 527 U.S.
263, 280-281, 286, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), quoting Kyles at 438.
The Brady rule applies regardless of whether evidence is suppressed by the state
willfully or inadvertently. Id. at 282.
{¶ 35} Thus, in order to establish a due-process violation under Brady, the
defendant must demonstrate that “(1) the prosecution failed to disclose evidence
upon request; (2) the evidence was favorable to the defendant; and (3) the evidence
was material.” State v. Goney, 2d Dist. Greene No. 2017-CA-43, 2018-Ohio-2115,
¶ 66. Evidence is favorable to the accused when it is exculpatory or impeaching.
State v. McNeal, Slip Opinion No. 2022-Ohio-2703, ¶ 20, citing Strickler at 281-
282.
“Favorable evidence is material, and constitutional error results from
its suppression by the government, ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Kyles [v. Whitley, 514 U.S.
419,] at 433, [115 S.Ct. 1555, 131 L.Ed.2d. 490 (1995)], quoting United
States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481
(1985). A different result is reasonably probable “when the
government’s evidentiary suppression ‘undermines confidence in the
outcome of the trial.’” Id. at 434, quoting Bagley at 678.
McNeal at ¶ 20.
{¶ 36} However, as it relates to a motion for leave to file a delayed motion for
new trial, the Ohio Supreme Court has clarified that “‘criminal defendants have no
duty to “scavenge for hints of undisclosed Brady material.”’” Id. at ¶ 23, quoting
Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 24, quoting Banks
v. Dretke, 540 U.S. 668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Thus,
contrary to the state’s contention that Hale failed to exercise reasonable diligence in
obtaining the police reports and notes, the Ohio Supreme Court has clarified that
“[a] defendant seeking to assert a Brady claim * * * is not required to show that he
could not have discovered suppressed evidence by exercising reasonable diligence.”
Bethel at ¶ 25. Accordingly, a defendant satisfies the “unavoidably prevented”
requirement for a Brady claim by establishing that the prosecution suppressed the
evidence on which the defendant relies. Id. at ¶ 25.
{¶ 37} After careful consideration, we find Hale has made a prima facie
showing that the state, either willingly or inadvertently, suppressed evidence upon
which the Brady claims rely. In this case, Hale’s motion incorporates various
reports and notes that were completed by members of the Euclid Police Department
during the investigation into Green’s death. The records contain relevant
information relating to Green’s profession, his personal life, and his state-of-mind
in the days leading to his death. Most significantly, the motion for leave is supported
by the affidavits of Hale’s former trial counsel, Jillian Davis, Esq. (“Davis”), and
former postconviction counsel, Rachel Troutman, Esq. (“Troutman”).
{¶ 38} In relevant part, Davis averred that she “did not recall receiving police
reports or police notes” during the discovery process leading up to Hale’s trial.
(Davis affidavit at ¶ 4.) Davis later clarified that the disputed reports and notes
attached to Hale’s motion for leave were “never previously disclosed to [her].” (Id.
at ¶ 6.) Troutman similarly averred that she “did not come across any of these
documents while reviewing the files of [Hale’s] trial attorneys” while assigned to
Hale’s postconviction case in 2005. Finally, Davis and Troutman each averred that
they believed the suppressed police reports and notes constituted Brady evidence
that could have been used to impeach state witnesses at the time of trial. (Id. at ¶ 8,
10, 12; Troutman affidavit at ¶ 6, 12, 15.) As articulated by Davis:
I was not aware of any of the evidence or documents discussed in the
above paragraphs * * * before Hale’s federal habeas counsel shared it
with me. This information would have changed the direction of our
investigation by opening up new investigative leads. More importantly,
I could have and would have directly used each of these pieces of
evidence in the two phases of Hale’s trial as described above. This
evidence would have supported the self-defense argument, and
countered the state’s theory that Hale calculated a scheme to set Green
up to execute and rob him. I believe this information likely would have
tipped the scales such that the jury would not have convicted Hale of
aggravated murder, or would have chosen a life sentence instead of a
death sentence.
(Davis affidavit at ¶ 19.)
{¶ 39} Troutman echoed Davis’s sentiments, stating:
No member of law enforcement or the prosecution ever shared the
above information with me during my representation of [Hale]. I
learned of it for the first time when Hale’s counsel shared it with me in
2022. I would have wanted to know all of the information contained in
these withheld documents. Had these documents, or their contents,
been known to me at the time I filed [Hale’s] postconviction petition, I
would have used the information to raise new claims and support the
claims I did raise. Individually, and collectively, these documents
undermine the state’s theory at trial, support [Hale’s] explanation of
events, and would have helped the mitigation presentation and made it
less likely the jury would have convicted or chosen the death penalty.
Because this is a case with a single aggravating factor, I believe the
additional information contained in these documents could have
changed the outcome at trial.
(Troutman affidavit at ¶ 22.)
{¶ 40} As previously stated, the sole issue before the trial court in this case
was whether leave to move for a new trial should be granted to Hale because he was
unavoidably prevented from timely moving for a new trial due to the state’s
suppression of evidence. See Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192
N.E.3d 470, at ¶ 41 (“until a trial court grants leave to file a motion for a new trial,
the motion for a new trial is not properly before the court”). Consistent with the
Ohio Supreme Court’s discussion in Bethel, we find the affidavits attached to Hale’s
motion for leave were sufficient to prove that Hale was unaware of the undisclosed
documents at the time of his trial or within 120 days of his verdict. Bethel at ¶ 27-
29 (“Two of Bethel’s former attorneys provided affidavits stating that Bethel and his
legal team did not know about Summary 86 before Bethel’s trial. The state provides
no support for its claim that these affidavits were insufficient or that Bethel needed
additional evidence to prove that he was unaware of the report before trial.”).
{¶ 41} We reiterate that Hale was not required to prove the merits of his
Brady claims at this stage of the proceedings. See State v. Phillips, 2017-Ohio-7164,
95 N.E.3d 1017, ¶ 23 (8th Dist.) (“Although the state argues on appeal that no Brady
violation actually occurred, its argument puts the proverbial cart before the horse.
The proper place for that discussion is the new trial motion itself — if the court
grants leave to file the motion.”). Rather, he “was required to establish only that he
was unavoidably prevented from discovering the evidence on which he seeks to base
his motion.” Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, at ¶ 33.
Whether Hale’s newly discovered evidence satisfies the remaining elements of the
standards set forth in Brady and State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370
(1947), syllabus, including whether the suppressed evidence is material, remains for
the trial court to decide when adjudicating the motion for a new trial itself. Thus,
we express no opinion on whether Hale should ultimately prevail on the merits of
his motion for a new trial.2
4. Jury-Selection Procedures
{¶ 42} Finally, Hale argued in his motion for leave that he was unavoidably
prevented from discovering evidence of “systematic jury composition issues” in the
Cuyahoga County Common Pleas Court. Specifically, Hale alleged that the common
pleas court in this county arbitrarily and unlawfully excluded “otherwise eligible
jurors with felony convictions from its jury venire, resulting in an unlawful and
underrepresented jury pool.” Hale further asserted that he was prevented from
raising this claim at the time of his trial or within 120 days of his verdict because the
facts underlying the claim were not readily available to him until his federal habeas
counsel discovered them in 2018.
2 In his federal habeas proceedings, Hale attempted to raise analogous Brady
claims and filed a motion to expand the record to include the newly discovered evidence
supporting his claims. Shoop, N.D. Ohio 1:18-cv-504, 2021 U.S. Dist. LEXIS 61953, 302-
312 (Mar. 31, 2021). In resolving the Brady claims, however, the federal court did not
review the merits of the claims. The court’s discussion, while relevant to the resolution of
Hale’s proposed motion for new trial on remand, was limited to the determination that
Hale’s Brady claims were procedurally defaulted and barred from habeas consideration.
We further note that in holding Hale’s Brady claims were procedurally barred, the federal
court did not consider the U.S. Supreme Court’s holding in Banks v. Dretke, 540 U.S. 668,
695, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004).
{¶ 43} Mindful that the merits of Hale’s jury-selection claim are not properly
before this court, we find the federal district court’s discussion in Hale v. Shoop,
N.D. Ohio No. 1:18-cv-504, 2021 U.S. Dist. LEXIS 61953 (Mar. 31, 2021), to be
persuasive in this matter. In Shoop, the district court discussed the availability of
the evidence supporting Hale’s present jury-selection claim, stating:
Hale was not at fault for failing to develop sooner his fair-cross-section
and equal-protection claims relating to Cuyahoga County’s jury-
selection process (Doc. Nos. 13-8 - 13-15). The factual predicate of
these claims was not apparent or readily available to Hale or his counsel
at trial or before his post-conviction proceedings. See Ambrose, 684
F.3d at 645-46 (“to suggest that an effective defense attorney must
investigate the jury assembly process in every case conditioned upon
his client’s loss of the right is unnecessary and wasteful”) (internal
citation and quotation marks omitted).
Id. at 340-341.3
{¶ 44} Consistent with the findings of the federal court, we find Hale
established by clear and convincing evidence that he was unavoidably prevented
from discovering evidence of the jury-selection practices in this county within the
time period provided by Crim.R. 33(B).
5. Discussion of “Futility” in Bethel
{¶ 45} In reaching the foregoing conclusions, we recognize that in Bethel the
Ohio Supreme Court discussed the futility of the defendant’s underlying motion for
new trial when determining whether or not the lower court erred in denying the
3 While relevant to future considerations, the federal court’s discussion of Hale’s
jury-selection claims in Shoop did not address or otherwise resolve Hale’s present
arguments concerning alleged violations of R.C. 2967.16(C)(1) and the Ohio Constitution.
defendant leave pursuant to Crim.R. 33(B). Specifically, the Bethel Court concluded
it “would be an exercise in futility” to proceed with a hearing on the motion for new
trial because the proposed “Brady claim, which is the basis of his motion, is without
merit.” Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 59.
{¶ 46} In Bethel, however, the court only contemplated the merits of the
proposed motion for new trial because earlier in the same decision the court was
required to assess the merits of identical claims raised in the defendant’s separately
filed successive petition for postconviction relief. There, the court concluded that
although the defendant was unavoidably prevented from discovering the evidence
supporting his Brady claims, he could not satisfy the second requirement of R.C.
R.C. 2953.23(A)(1), which required him to demonstrate, by clear and convincing
evidence, that no reasonable factfinder would have found him guilty or eligible for
the death sentence but for the constitutional error at trial. Id at ¶ 40.
{¶ 47} After careful consideration, we find the discussion of futility in Bethel
is limited to the unique circumstances presented in that case and is not applicable
to the issues currently before this court. At this time, Hale has not filed a
corresponding petition for postconviction relief that relied on the same evidence or
legal arguments discussed in the proposed motion for new trial. The singular issue
before the trial court, and in turn this court, concerns Crim.R. 33(B) and whether
Hale was unavoidably prevented from discovering the evidence supporting his
proposed motion for new trial. Unlike the circumstances presented in Bethel, the
parties have yet to brief the merits of Hale’s claims and whether the newly
discovered evidence was material. We decline to speculate as to the arguments that
may be raised in the future. To this point, we note that since the release of Bethel,
the Ohio Supreme Court has continued to emphasize the general principle that
courts may not consider the merits of a proposed motion for new trial until leave to
file the motion is granted. Hatton, 69 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d
513, at ¶ 30, 33; McNeil, Slip Opinion No. 2022-Ohio-2703, at ¶ 1, 21.
{¶ 48} The first assignment of error is sustained in part, overruled in part.
B. Successive Petition for Postconviction Relief
{¶ 49} In the second assignment of error, Hale argues the trial court
committed reversible error by failing to address his petition for postconviction relief
pursuant to R.C. 2953.23, which was incorporated into the motion for new trial
attached to Hale motion for leave. We find no merit to Hale’s position.
{¶ 50} As discussed previously, it is undisputed that “until a trial court grants
leave to file a motion for a new trial, the motion for a new trial is not properly before
the court.” Bethel at ¶ 41, citing State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-
Ohio-1080, ¶ 14. In this case, Hale did not separately file a successive motion for
postconviction relief and, therefore, the state was not provided an opportunity to file
a brief in opposition to such a motion. Although Hale raised alternative arguments
under R.C. 2953.23 in the proposed motion for new trial attached to his motion for
leave, marked Exhibit A, the proposed motion was merely an exhibit and was not
properly before the court at the time leave was denied. Based on the procedural
posture of the appeal before us, we find the trial court had no discretion to address
the arguments raised in the proposed motion for new trial. See Hatton at ¶ 30.
Accordingly, the trial court did not err in limiting its judgment to the only motion
properly before the court.
III. Conclusion
{¶ 51} Because Hale established a prima facie case that he was unavoidably
prevented from moving for a new trial within the time specified in Crim.R. 33(B)
due to the state’s suppression of the evidence and the late discovery of the jury-
selection procedures in Cuyahoga County, we find the trial court abused its
discretion in denying his motion for leave to file a delayed motion for a new trial on
these grounds. Consequently, we reverse the trial court’s judgment and remand this
case to the trial court with instructions for it to grant Hale’s motion for leave.
{¶ 52} The second assignment of error is overruled.
{¶ 53} Judgment affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
It is ordered that appellee and appellant share costs herein taxed; costs waived.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE ATTACHED OPINION)
SEAN C. GALLAGHER, J., DISSENTING:
{¶ 54} I concur with the majority’s determination that Hale was not entitled
to file a motion for a new trial to the extent his “newly discovered” evidence consisted
of his parole records predating the crime and the postconviction acquirement of
forensic-expert opinions. This evidence was available to Hale at the time of his trial
or otherwise could have been obtained with the exercise of reasonable diligence.
With respect to the remaining evidence supporting Hale’s request for leave,
however, I respectfully dissent.
{¶ 55} Crim.R. 33 provides six reasons upon which an offender may seek a
new trial: (1) irregularity in the proceedings that deprives the defendant of a fair
trial; (2) misconduct of the jury, prosecutor, or a state’s witness; (3) accident or
surprise that ordinary prudence would not have guarded against; (4) verdict is not
sustained by sufficient evidence; (5) legal error during trial; or (6) new evidence
material to the defense is discovered that could not have been discovered with
reasonable diligence in time for trial. In this case, Hale claims that there may have
been irregularities in the trial based on newly discovered evidence, and additionally
he has discovered new evidence material to his defense under Crim.R. 33(A)(6).
{¶ 56} Motions for a new trial must be filed within 14 days of the verdict,
extended to 120 days if based on newly discovered evidence. Id. “[N]ewly
discovered evidence is, by definition, that ‘which the defendant could not with
reasonable diligence have discovered and produced at trial.’ ” State v. Campbell, 1st
Dist. Hamilton No. C-950746, 1997 Ohio App. LEXIS 11, 12-13 (Jan. 8, 1997). Under
the rule, a defendant who fails to timely file a motion for a new trial must seek leave
from the trial court to file a delayed motion for a new trial. State v. Dues, 8th Dist.
Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 10, citing State v. Mathis, 134 Ohio
App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999).
{¶ 57} To obtain leave, Crim.R. 33(B) requires the defendant to show clear
and convincing proof that he was unavoidably prevented from timely filing his
motion for a new trial. “[A] party is unavoidably prevented from filing a motion for
a new trial if the party had no knowledge of the existence of the ground supporting
the motion * * * and could not have learned of the existence of that ground within
the time prescribed for filing the motion * * * in the exercise of reasonable
diligence.” (Emphasis added.) State v. Walden, 19 Ohio App.3d 141, 145-146, 483
N.E.2d 859 (10th Dist.1984). A trial court’s decision with respect to a motion for a
new trial under Crim.R. 33 cannot be reversed absent an abuse of discretion. State
v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981, ¶ 13 (8th Dist.). This includes any
decision granting or denying an evidentiary hearing. State v. Johnson, 8th Dist.
Cuyahoga No. 109084, 2020-Ohio-3371, ¶ 14, citing State v. Bonnell, 8th Dist.
Cuyahoga No. 108209, 2019-Ohio-5342, ¶ 37, and State v. Hill, 8th Dist. Cuyahoga
No. 102083, 2015-Ohio-1652, ¶ 16.
{¶ 58} “When a defendant seeks leave to file a motion for a new trial under
Crim.R. 33(B), the trial court may not consider the merits of the proposed motion
for a new trial until after it grants the motion for leave.” State v. Hatton, 169 Ohio
St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 30, citing State v. Bethel, 167 Ohio
St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41. “The sole question before the trial
court when considering whether to grant leave is whether the defendant has
established by clear and convincing proof that he was unavoidably prevented from
discovering the evidence on which he seeks to base the motion for a new trial.” Id.
Notwithstanding, even if the offender demonstrates the “unavoidably prevented”
prong of the analysis, that alone is insufficient to demonstrate reversible error with
the trial court’s decision denying the motion for leave. If the hearing on a motion
for new trial would be “an exercise in futility” in light of past decisions within the
same case, no reversible error over the denial of leave has occurred. Bethel at ¶ 59.4
{¶ 59} In Bethel, the Ohio Supreme Court concluded that there was no Brady
violation under the postconviction-relief analysis that the court was required to
undertake in light of the arguments presented. Id. at ¶ 20. Bethel acknowledged
under the separate Crim.R. 33 analysis that the same Brady claims should have
4 Hatton did not overrule Bethel.
warranted the granting of leave to file a motion for new trial, but that act would have
been futile because the trial court, in that anticipated hearing, would have been
required to apply Bethel’s analysis on the Brady claim in light of the fact that the
offender relied on the same claim for both the postconviction relief motion and the
motion for leave to file a motion for new trial. Id. at ¶ 59. Bethel thus establishes
that appellate courts must consider the law of the case in reviewing a motion for
leave to file a motion for new trial.
A. Limitations of the Arguments Presented for Review
{¶ 60} In this case, as is pertinent to my disagreement with the majority’s
decision, Hale’s claims as to demonstrating reversible error are extremely limited:
he claims that (1) the state wrongfully withheld police reports despite his trial
occurring during the period of time for which open discovery was not required; and
(2) he did not timely discover the jury venire issue although he provides no
explanation as to why he was prevented from timely discovering it.
{¶ 61} Hale’s briefing, however, is limited.
{¶ 62} With respect to the withheld police reports, Hale’s argument, in its
entirety, is limited to the claim that
Hale had filed multiple motions requesting access to all the relevant
discovery before trial (see, e.g., Demand for Discovery, Cuyahoga C.P.
No. CR 4548587, Aug. 9, 2004; Demand for Disclosure of Impeaching
Information, Sept. 9, 2004; Demand for Disclosure of Exculpatory
Evidence, Sept. 9, 2004), and for the prosecutor’s file to be sealed for
appellate review (Motion for an Order, Sept. 9, 2004). Yet this evidence
was never turned over and it was not independently discovered by Hale
until 2018. Regardless of any specific request, the State had a duty to
turn over this information.
Because the State failed to turn over this evidence, Hale has established
by clear and convincing evidence that he was unavoidably prevented
from discovering the favorable, material parole and police records. See
Bethel at ¶ 25 (“[T]he defendant satisfies the ‘unavoidably prevented’
requirement . . . by establishing that the prosecution suppressed the
evidence on which the defendant relies.”).
That argument is not sufficient to establish the existence of reversible error in light
of the extensive appellate record in this case. See App.R. 16(A)(7). Hale simply
presumes that the evidence is material to his defense without elaborating as to how
it is material given the appellate history consistently rejecting his theory of
self-defense.
{¶ 63} With respect to the exclusion of felons from the venire, Hale’s claim is
limited to the fact that he personally did not discover the issue until 2018. He then
blames his trial counsel for the failure to investigate. There is a stark contrast
between being unavoidably prevented from discovering an issue and simply not
looking for it. State v. Fortson, 8th Dist. Cuyahoga No. 82545, 2003-Ohio-5387,
¶ 11. The question presented in this appeal is whether the trial court abused its
discretion in denying Hale leave to pursue a motion for new trial on the question of
excluding felons from the venire, and on this point, Hale has not argued, let alone
demonstrated, that he was prevented from discovering the publicly available
information.
{¶ 64} Based on the limited arguments presented for our review, I would
affirm without delving deeper.
B. Merits of Hale’s Motion for Leave to File a Motion for New Trial
{¶ 65} As to the merits of the motion for leave, either Hale has failed to
demonstrate that he was unavoidably prevented from timely discovering the basis
of his claims for a new trial, or there is no reversible error in summarily denying the
motion for leave because a hearing on a motion for new trial would have been futile
given the impact of earlier decisions on the arguments Hale would present to the
trial court. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, does not
require trial courts to suspend their review of the appellate history when a defendant
presents the same arguments in a renewed attempt to obtain a new trial.
1. Alleged Brady Material
{¶ 66} Hale claims that supplements to the police report made during the
investigation would have permitted him to more effectively cross-examine the
state’s witnesses on their knowledge of Green’s sexuality, an issue discussed at trial,
and also would have revealed that one member of Green’s family mentioned
something that could be interpreted as demonstrating that Green had suicidal
ideations shortly before his murder.
{¶ 67} The latter claim is defective on its face. Potential evidence of a victim’s
suicidal ideations is not relevant to an offender’s conviction for murder, especially,
as is the case herein, when the offender admits to killing the victim in self-defense.
On this point, Hale cannot clearly and convincingly demonstrate that he was
unavoidably prevented from timely filing his motion for a new trial on this issue
because he could never have raised this claim in his defense — it was not material to
his defense. See, e.g., State v. Bullitt, 8th Dist. Cuyahoga No. 112168, 2023-Ohio-
1899, ¶ 17 (denial of the motion for leave to file a new trial was affirmed because
although the police report contents were withheld from the defendant at trial, the
new information did not undermine the confidence in the verdict).
{¶ 68} Although Hale is attempting to claim that the suicidal ideations
demonstrate Green’s alleged possession of the firearm Hale used in his murder, such
a connection is pure speculation requiring an inference to be stacked upon another
inference: that Green’s suicidal ideations (an inference drawn from ambiguous
statements made by one potential witness) provided a potential explanation as to
why Green could have been carrying a handgun when the witnesses at trial stated
Green was not known to possess a firearm (requiring an inference that if Green
indeed had suicidal ideations, he would have committed the act with a firearm).
Even if Hale presented this information to the jury, the jury would have been
precluded from considering his conclusion. See State v. Greeno, 2021-Ohio-1372,
170 N.E.3d 1224, ¶ 32 (4th Dist.), quoting State v. Cowans, 87 Ohio St.3d 68, 78,
717 N.E.2d 298 (1999) (the jury may not draw “ ‘draw an inference based * * *
entirely upon another inference, unsupported by any additional fact or another
inference from other facts’ ”). Thus, that argument would never have been a basis
for filing a timely motion for new trial, much less can it be used to substantiate his
newfound claims.
{¶ 69} Further with respect to the police being aware of the claims
surrounding Green’s sexuality, that information solely relates to Hale’s claim that
Green was sexually assaulting him, the predicate allegation of his self-defense
claims. According to Hale, the two police interviews, with witnesses who testified at
trial and were available for cross-examination, provided evidence of Green’s
sexuality to support his theory of self-defense undisclosed at trial.
{¶ 70} The Ohio Supreme Court, however, concluded that Hale’s story of
Green attempting to sexually assault him was “not worthy of belief. Hale’s version
of the shooting was both internally inconsistent and inconsistent with the evidence
at trial.” Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 266.
Having more evidence of others being aware of Green’s purported sexuality does not
add any credence to Hale’s incredible tale nor supplant the Ohio Supreme Court’s
earlier decision in this case. See also State v. Hale, 8th Dist. Cuyahoga No. 103654,
2016-Ohio-5837, ¶ 24 (concluding that “Hale’s contention that the victim provoked
the murder was refuted by the physical evidence [and moreover] the jury was
already aware that the victim had raped another man by forcefully performing oral
sex on him” such that more evidence of Green’s sexuality would not “have added to
his defense”). Conducting a hearing on the question of the additional evidence of
Green’s sexuality would be an exercise in futility in light of previous decisions
concluding that Hale’s claims supporting the claims of self-defense were
“incredible.” The trial court could not contradict those conclusions by finding Hale’s
self-defense claims now arguably credible.
{¶ 71} In order to demonstrate entitlement to the filing of a motion for new
trial, the defendant must clearly and convincingly demonstrate that he was
unavoidably prevented from filing his motion for new trial based on new evidence
material to the defense. Crim.R. 33(A)-(B). The evidence Hale identifies could
never have formed the basis of a motion for a new trial because it is not material to
his defense based on the law of this case. Remanding for a hearing on the motion
for a new trial would be futile unless the trial court disregards the appellate history.
Hatton does not require this expenditure of resources on settled arguments.
a. Exclusion of Felons from Venire
{¶ 72} And finally, with respect to the jury commission’s exclusion of felons
from jury service, Hale claims that the jury commission, at the time of his trial,
excluded all felons from jury service and that impacted the percentage of black
persons eligible to serve on the venire. Hale extensively cites the hearing transcript
from the proceedings in the criminal proceedings against Anthony Sowell5 as a basis
to demonstrate his claim. See Hale v. Shoop, N.D.Ohio No. 1:18-cv-504, 2021 U.S.
Dist. LEXIS 61953, 45 (Mar. 31, 2021) (noting there is some evidence that the jury
commission’s practice of excluding felons from the venire continues to this day) and
“What to Expect During Jury Duty” available at
https://cp.cuyahogacounty.us/court-information/jury-duty/ (last visited Sept. 21,
2023) (“You are disqualified from service if you have been convicted of a felony and
are currently on probation or are serving a community control sanction.” (Emphasis
5 Anthony Sowell was a serial killer who was convicted for murdering 11 women
and subsequently sentenced to death. See State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-
8025, 71 N.E.3d 1034, ¶ 1-3.
sic.)).6 According to the transcript in the unrelated case provided by Hale, which is
within our record, the trial court denied the motion to invalidate the venire.
{¶ 73} Notwithstanding this observation, this issue was addressed in the
federal habeas proceedings. Although Hale includes a blanket citation to certain
“state” rights implicated, his entire argument is devoted to federal law interpreting
the federal Constitution. Hale advanced these arguments to the federal trial court,
and the decision overruling the arguments was affirmed in that appeal:
Hale asserts that the exclusion of felons has a disproportionate impact
upon Black men. “[R]acial groups cannot be excluded from the venire
from which a jury is selected.” Holland v. Illinois, 493 U.S. 474, 478,
110 S.Ct. 803, 107 L.Ed.2d 905 (1990). Black people have been
recognized as a distinctive group under the Duren test. See Lockhart
v. McCree, 476 U.S. 162, 175, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986);
Garcia-Dorantes v. Warren, 801 F.3d 584, 600 (6th Cir. 2015).
Cuyahoga County excluded felons rather than Black men, however, and
Hale does not offer any legal authority for his supposition that felons
are a distinctive group. Reasonable jurists would not find the district
court’s denial of this claim debatable or wrong.
Hale v. Shoop, 6th Cir. No. 22-3265, 2023 U.S. App. LEXIS 13645, at 7 (June 1,
2023).
{¶ 74} Hale has not clearly and convincingly demonstrated that he was
unavoidably prevented from challenging the jury commission’s alleged policy during
his trial. In fact, his sole argument is that he did not discover the issue until the
federal proceedings, but he makes no attempt to demonstrate how he was
unavoidably prevented from discovering the issue. This district has a long history of
6 Under R.C. 2961.01, no person convicted of a felony is permitted to serve on a
jury while serving any portion of their sentence. The jury commission’s statement is in
compliance with state law.
routinely rejecting this argument. Fortson, 8th Dist. Cuyahoga No. 82545, 2003-
Ohio-5387, at ¶ 11 (“[t]he phrases ‘unavoidably prevented’ and ‘clear and convincing
proof’ do not allow one to claim that evidence was undiscoverable simply because
affidavits were not obtained sooner”); State v. Hutton, 8th Dist. Cuyahoga No.
111432, 2022-Ohio-4509, ¶ 22; State v. Mock, 8th Dist. Cuyahoga No. 108837, 2020-
Ohio-3667, ¶ 30. (“Claims that evidence was undiscoverable simply because the
defense did not take the necessary steps earlier to obtain the evidence do not satisfy
the requisite standard.”), citing State v. Anderson, 10th Dist. Franklin No. 12AP-133,
2012-Ohio-4733, ¶ 14, and State v. Golden, 10th Dist. Franklin No. 09AP-1004,
2010-Ohio-4438, ¶ 15; State v. Hubbard, 8th Dist. Cuyahoga No. 108853, 2020-
Ohio-2726, ¶ 56.
{¶ 75} The majority’s decision undermines the steep standard for
demonstrating the necessity of a belated or successive motion for new trial and
permits defendants to simply demonstrate that they were not aware of the issue
rather than being unavoidably prevented from discovering it. Compare State v.
McFarland, 8th Dist. Cuyahoga No. 111390, 2022-Ohio-4638, ¶ 16 (recognizing the
black-letter law that an offender must present more than the simple allegation that
he did not discover the basis of the evidence he seeks to introduce to support the
motion for new trial). The defendant must demonstrate both that he had no
knowledge of the existence of the grounds for the new trial motion, and he “could not
have learned of the existence” either. Id. at ¶ 16.
{¶ 76} The majority’s conclusion reduces the inquiry to the limited
demonstration that the defendant had no knowledge of the basis for the motion; the
sole argument Hale presented for our review.
{¶ 77} Hale has not demonstrated that he could not have learned of the venire
issue during his trial. In Shoop at 45, fn. 10, it was noted that Hale believed the policy
to have been in place since 1998, but nothing within Hale’s argument demonstrates
how he was unavoidably prevented from using Sowell’s unsuccessful tactical
approach during his own trial.7 The information was not new in 2011, nor even now.
It had existed since 1998 according to Hale’s own argument; although it is unclear
from the record produced whether the jury commission excluded all felons or only
those who are actively serving nonprison or nonjail sentences. His argument is
entirely based on his subjective lack of knowledge of the jury process and the fact that
policy was later challenged by another defendant.
{¶ 78} This is insufficient to demonstrate that he was unavoidably prevented
from timely raising the argument in his own trial proceedings. See McFarland at
¶ 29. “[A] party is unavoidably prevented from filing a motion for a new trial if the
party could not have learned of the existence of that ground within the time
7 Hale has not demonstrated that he was prevented from discovering the jury
commission’s alleged practice. This is unlike a situation in which the venire selection
defect is latent, only discoverable through extensive investigation, and was demonstrated
to affect the composition of the venire. See, e.g., Ambrose v. Booker, 684 F.3d 638, 645
(6th Cir.2012). Hale has no evidence that the composition of the venire was affected by
the alleged policy at issue, nor has Hale presented evidence of any further investigations
being instigated based on the questions arising from Sowell’s proceeding.
prescribed for filing the motion * * * in the exercise of reasonable diligence.” Walden,
19 Ohio App.3d 141, at 145-146, 483 N.E.2d 859 (10th Dist.1984). Hale has not
demonstrated any basis to conclude that he was unavoidably prevented from
attempting Sowell’s trial strategy. He simply claims to have not been aware of the
issue until the federal proceedings. The majority’s acceptance of Hale’s argument
muddies the standard of review in this district.
C. Conclusion
{¶ 79} In light of the limited briefing presented for review and the extensive
appellate history pertaining to several of the same arguments presented in the
current motion for leave, I would affirm.
State v. Hale
Combined Opinion