“The decision to grant or deny a motion for a new trial on the basis of newly discovered evidence is within the sound discretion of the trial court and, absent an abuse of discretion, that decision will not be disturbed.”
How later courts described this case
- “The decision to grant or deny a motion for a new trial on the basis of newly discovered evidence is within the sound discretion of the trial court and, absent an abuse of discretion, that decision will not be disturbed.”
Written by the judges who cited it.
The opinion
Pfeifer, J.,
dissenting. The aggravating circumstances in this case fail to outweigh the mitigating factors, and I therefore dissent from the majority’s decision upholding Shawm Hawkins’s death sentence. The key mitigating factor in this case is residual doubt.
The truth of what really happened in the early morning of June 12, 1989 died with Diamond Marteen and Terrance Richard. The trial below was filled *352 with conflicting stories and conflicting alibis. Hawkins, Rob Bums, and the state’s only eyewitness, Henry Brown, Jr., or some combination of those three persons, were at the murder scene when the murders took place. Hawkins was the only one unlucky enough to leave fingerprints behind. The only evidence that he was the triggerman was the testimony of Brown, who testified under immunity after being charged with complicity to commit both aggravated robbery and aggravated murder. Brown also testified that Burns was in the car with Hawkins and that Burns threatened Brown with a gun when he realized that Brown had witnessed Richard’s murder. However, Burns was apparently never charged in this case.
The mitigating factor of residual doubt dovetails with the mitigating factor specifically set forth in R.C. 2929.04(B)(6), which regards “the degree of the offender’s participation in the acts that led to the deathfs] of the victim[s].” We can be relatively certain from the fingerprint evidence that Hawkins was in the car when the victims were murdered, or at least shortly thereafter. However, given that the only testimony naming him as the actual killer came from Brown, we can never be sure what role Hawkins really played.
Another mitigating factor in this case is the status of the victims. Marteen and Richard were not innocents — they were in the middle of a sizeable illegal drug transaction when they were killed. They chose to partake in criminal, dangerous activity and paid the consequences.
Finally, Hawkins’s relatively young age is another mitigating factor. He was no.older than twenty-one at the time of the offense.
The combined mitigating factors in this case, with special emphasis on residual doubt, are not outweighed by the aggravating circumstances. Therefore, Hawkins’s death sentence should be reversed and the cause remanded for resentencing under R.C. 2929.06.
Appendix
“First Proposition of Law[:] Where the substantial rights of the accused to a fair trial are adversely affected by the course of misconduct by the prosecuting attorneys the trial court shall order a mistrial.
“Second Proposition of Law[:] Where the newly discovered evidence would create a strong probability of a different result at trial, the trial court shall order a new trial.
“Third Proposition of Law[:] Where the defendant is not tried within the times governed by Section 2945.71 of the Ohio Revised Code, the court shall dismiss the charges against the accused.
“Fourth Proposition of Law[:] Where the court fails to serve the special venire at least fifteen days prior to the date fixed for trial, the court has *353 violated the statutory requirements relating to the establishment of a special venire in a captial [sic] case.
“Fifth Proposition of Law[:] Where the trial court refuses access to the juvenile court records of a co-defendant and refuses to seal a copy of records for review on appeal, it deprives the appellant of due process.
“Sixth Proposition of Law[:] During deliberations where the jury makes reasonable requests of the court to assist them in their deliberations and the trial court ignores such request, the defendant is prejudiced by such refusal; and where the trial court conducts proceedings with the jury without the defendant or counsel being present, the court violates the defendant’s right to be present at every stage of the trial.
“Seventh Proposition of Law[:] Where the state fails to adduce proof beyond a reasonable doubt on each and every element, the verdicts are contrary to law, or in the alternative[,] where the jury lost its way and created a manifest miscarriage of justice, the convictions must be reversed and a new trial ordered.
“Eighth Proposition of Law[:] Where the questioning of prospective jurors leads them to believe that the responsibility for determining the appropriateness of the defendant’s death rests with the trial court, it is error to empanel [sic] a jury in thát manner.
“Ninth Proposition of Law[:] Where the Ohio capital statutory sentencing scheme violated due process and the cruel and unusual punishment clauses of the United States Constitution, the trial court shall not impose the death penalty.
“Tenth Proposition of Law[:] Where the trial counsel is ineffective in the penalty phase of trial, the convictions and sentences of death shall be set aside.
“Eleventh Proposition of Law[:] Where the trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result, the defendant is denied effective assistance of counsel, as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.”