Opinion

State v. Davis

  • 214 N.E.3d 1148
  • 2023 Ohio 1657
Court
Ohio Court of Appeals
Filed
May 17, 2023
Status
Published
On the bench
Stevenson
Cited by
6 cases
Authority
More cited than 55.9%

The opinion

[Cite as State v. Davis, 2023-Ohio-1657.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 30231

Appellee

v. APPEAL FROM JUDGMENT

ENTERED IN THE

ROBERT DAVIS COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

Appellant CASE No. CR 2012-01-0289-B

DECISION AND JOURNAL ENTRY

Dated: May 17, 2023

STEVENSON, Judge.

{¶1} Defendant-Appellant Robert Davis (“Davis”) appeals the ruling of the Summit

County Common Pleas Court denying his motion for a new trial. For the following reasons, this

Court affirms.

I.

{¶2} The following summary of the factual and procedural background was derived in

large part from the original appellate decision upholding Davis’ convictions, State v. Davis, 9th

Dist. Summit No. 26660, 2013-Ohio-5226.

{¶3} On January 10, 2012, Davis, DeMarcus Williams (“Williams”), and Rasheem Carr

(“Carr”), also known as “Mal,” decided to rob Marcus Minter (“Minter”) because Williams knew

Minter always had money on him. According to Williams, the plan was that he and Carr would

rob Minter, and then Davis would drive them to Williams' aunt's (“Aunt’s”) house. Also, Carr was

2

supposed to park his mother's Buick Rendezvous in an alley behind Davis' house and give Davis

the keys.

{¶4} Down the street from Davis' house, Minter was sitting in Philip Anderson's

(“Anderson”) car with Alexander Wells (“Wells”). Williams and Carr approached the car with

their guns drawn. According to Williams, as he was robbing Minter, Carr fatally shot Anderson.

Williams and Minter ran. Davis was waiting for Williams in the Buick Rendezvous and drove him

to Aunt’s house. Davis then went back and picked up Carr. When they returned to Aunt’s house,

the three of them divided up the proceeds from the robbery.

{¶5} Williams initially refused to talk when questioned by the police, denying that he

had any knowledge or involvement in the incident. The second time Williams spoke with the

police, he told them that he and Davis robbed Minter, but Davis was the one who shot Anderson.

He implicated Carr as the getaway driver.

{¶6} A short time later, while Williams was still being held in jail, his girlfriend called

the Akron Police Department, stating that Williams urgently wished to speak with a detective on

his case. Sgt. Dave Garro then met with Williams at the Summit County Jail. Williams told Sgt.

Garro that in his prior interview he lied about Davis being the shooter, and that in fact, Carr was

the shooter and Davis simply drove the getaway car. Williams said that he previously implicated

Davis as the shooter because at the time, he erroneously believed Davis had turned him in. Once

Williams realized that Davis’ statement to the police had not implicated him, he wished to correct

his statement.

{¶7} Williams entered into an agreement to plead guilty to the lesser charges of

involuntary manslaughter and aggravated robbery, both with firearm specifications, in exchange

for his truthful testimony against Carr and Davis. Williams, Carr, and Davis were indicted. Davis

3

was charged with (1) felony murder, in violation of R.C. 2903.02(B), an unclassified felony; (2)

aggravated robbery, in violation of R.C. 2911.01(A)(3), a felony of the first degree: and (3) having

weapons while under disability, in violation of R.C. 2923.13, a felony of the third degree.

Additionally, the charges of felony murder and aggravated robbery had firearm specifications.

Williams pleaded guilty, and Carr and Davis were tried together.

{¶8} A jury found Davis not guilty of having weapons while under disability and the

firearm specifications, but guilty of felony murder and aggravated robbery. He was acquitted of

the other charges, including all firearm specifications. The court merged the two offenses and

sentenced Davis to 15 years to life in prison.

{¶9} Williams testified during the trial, and in accordance with his plea bargain, received

the benefit of reduced charges. After the trial, Williams was sentenced to ten years in prison.

Davis’ and Carr’s convictions were upheld on appeal. Davis, 2013-Ohio-5226; State v. Carr, 9th

Dist. Summit No. 26661, 2014-Ohio-806.

{¶10} In January 2019, Davis sought leave of court to file a delayed motion for a new trial

pursuant to Crim.R. 33(B). The trial court granted the motion, and Davis timely filed a motion

and amended motion for a new trial under Crim.R. 33(A)(6) (newly discovered evidence). The

motion alleged that since the trial, Williams repeatedly wrote to Davis and the Ohio Innocence

Project (“OIP”) stating that he wanted to help exonerate Davis. The motion included Williams’

signed affidavit, which stated in pertinent part with original spelling and grammar:

[I] did not testify truthfully at Robert’s trail when I stated that he was involved in

the robbery. In fact I asked him if he wanted to go with me to rob Minter. He said

I’m kool or something like that. It was obvious to me that he wanted no parts of

the robbery. He said something about being kool with Minter or his people. I had

previously told the procutor this. I had met with the prosecution so many times that

they made me believe he was a part of the crime when he wasn’t.

4

{¶11} The trial court held an evidentiary hearing on the motion for new trial in January

2020. Williams and former Assistant Summit County Prosecutor Michael Cody testified. At the

time of the hearing, Williams was still in custody, serving his prison sentence, his release date

approaching.

{¶12} Upon direct examination, Williams stated that his testimony at trial was not truthful,

and that Davis was not in any way involved in the robbery. Williams testified that he and Carr

planned and committed the robbery, that Carr shot Anderson, and Carr drove them both away from

the scene. This testimony completely contradicted Williams’ trial testimony.

{¶13} In support of Williams’ recantation testimony, Davis introduced six letters that

Williams admitted sending to Davis while they were both in prison, characterizing them as

evidence of Williams’ desire to change his testimony and exculpate Davis of any wrongdoing.

Davis also introduced into evidence Williams’ affidavit.

{¶14} During the time of his correspondence with Davis, Williams was also writing back

and forth with the OIP about helping Davis. Those letters were also presented at the hearing. While

at times in those letters Williams expressed willingness to help, he made it clear that his willingness

was contingent upon whether his cooperation would reverse his plea deal. After the OIP’s letter to

Williams on July 27, 2017, no further correspondence transpired. At the conclusion of Williams’

testimony, the Court questioned him in a very protracted exchange. The parties submitted their

final arguments by brief.

{¶15} The trial court denied Davis’ motion for a new trial. In its ruling, the court

concluded that Williams’ recantation was not credible, and even if it were, was merely impeaching

of and cumulative of his trial testimony, and thus, were it to be admitted at a new trial, would not

materially affect the outcome.

5

{¶16} David timely appealed and raises six assignments of error for our review. Davis

asks this Court to reverse the ruling of the trial court and remand the matter for a new trial. For

the following reasons, this Court affirms.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT A NEW

TRIAL

{¶17} In his first assignment of error, Davis makes the following arguments: 1) this Court

should apply a de novo standard of review because the trial court applied an incorrect standard of

law; 2) State v. Petro, 148 Ohio St. 505 (1947), not State v. Brown,186 Ohio App. 3d, 309, 2010-

Ohio-405, nor State v. Calhoun, 86 Ohio St. 3d 279 (1999), governs the trial court’s exercise of

discretion in determining whether to grant a new trial subsequent to a hearing on the motion; 3)

Calhoun provides the factors that determine whether to grant a hearing on the motion for new trial;

and 4) Davis met his burden under Petro and is entitled to a new trial.

{¶18} For the following reasons, this Court disagrees and overrules Davis’ first

assignment of error.

Abuse of Discretion Is The Appropriate Standard of Review.

{¶19} This Court has consistently held that an appellate court reviews a trial court’s ruling

on a motion for new trial under an abuse of discretion standard. State v. Roper, 9th Dist. Summit

No. 29466, 2021-Ohio-188, ¶ 8, citing State v. Pyle, 9th Dist. Summit No. 28802, 2018-Ohio-

3160, ¶ 47. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). “When applying an abuse of discretion standard, a

6

reviewing court is precluded from simply substituting its own judgment for that of the trial court.”

Roper at ¶ 8, citing Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1983).

{¶20} A trial court’s application of an incorrect standard of law constitutes an abuse of

discretion. State ex rel. Perry v. Indus. Comm., 10th Dist. Franklin No. 06AP-312, 2007-Ohio-

4687, ¶ 17-18 (internal citations omitted); Lance v. Boldman, 9th Dist. Wayne No. 16AP0032,

2018-Ohio-44, ¶ 12, quoting Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 21

(“‘A trial court will be found to have abused its discretion when its decision is contrary to law,

unreasonable, not supported by evidence, or grossly unsound.’”). Thus, Davis’ claim that the trial

court applied an incorrect standard of law may be reviewed for an abuse of discretion, and his

assertion that a de novo standard of review should be applied is not well-taken.

Hearing On Motion For New Trial Does Not Establish Credibility of Affidavit

{¶21} Davis contends that the trial court’s February 18, 2020, order granting a hearing

on his motion for new trial necessarily means the trial court weighed the Calhoun factors and

established the credibility of Williams’ affidavit prior to the hearing, and therefore, should have

likewise granted Davis’ motion for new trial when it applied Calhoun subsequent to the hearing.

Davis is essentially arguing that the trial court weighed the same set of facts both before and after

the hearing under the lens of Calhoun, yet arrived at two different results. We disagree.

{¶22} Calhoun involved a petition for postconviction relief filed pursuant to R.C.

2953.21. After reviewing the documents submitted in support of the petition, the trial court found

the petition to be without merit and denied it without a hearing. Calhoun at 280. The Ohio Supreme

Court held that the trial court properly denied the defendant’s petition without holding an

evidentiary hearing where the petition, the supporting affidavits, documentary evidence, files and

records did not demonstrate the petitioner set forth sufficient operative facts to establish

7

substantive grounds for relief. Id. at paragraph two of the syllabus. “The trial court may, under

appropriate circumstances * * * deem affidavit testimony to lack credibility without first observing

or examining the affiant.” Id. at 284.

{¶23} Thus, Calhoun holds that a trial court may deny relief without a hearing, not as

Davis contends, that the granting of a hearing necessarily established the credibility of an affidavit.

Calhoun only addressed the questions of whether a trial court must accept the affidavits presented

as true, and whether the trial court erred in dismissing the petition without holding an evidentiary

hearing. Both of those questions were answered in the negative. Id. at 281. Therefore, Davis’

contention that the granting of a hearing on a motion for a new trial establishes the credibility of

the evidence attached to that motion is not supported by Calhoun.

{¶24} Moreover, Davis’ claim is contradicted by the language of the trial court’s February

18, 2020 order setting the hearing on his motion for new trial, which stated, “[O]n February 11,

2020, upon due consideration of this Court, IT IS HEREBY ORDERED that a hearing in this case

be set for March 25, 2020, at 2:00 P.M.” No reasonable reading of the order supports the assertion

that the trial court found Williams credible at that stage.

{¶25} Furthermore, as explained below, under Crim. R. 33 (New Trial) the trial court was

not tasked with conducting a credibility analysis prior to the hearing on the motion for new trial.

New Trial Procedure Under Crim R. 33

{¶26} Crim.R. 33(A)(6) permits a defendant to move for a new trial “[w]hen new evidence

material to the defense is discovered which the defendant could not with reasonable diligence have

discovered and produced at trial.” A motion for a new trial that alleges newly discovered evidence

must be filed within 120 days of the verdict. Crim.R. 33(B).

8

{¶27} Because Davis’ motion for new trial was filed well outside the 120-day period, he

was required to obtain leave of court to file an untimely motion for new trial as further set forth in

Crim.R. 33(B):

Motions for new trial on account of newly discovered evidence shall be filed within

one hundred twenty days after the day upon which the verdict was rendered, or the

decision of the court where trial by jury has been waived. If it is made to appear

by clear and convincing proof that the defendant was unavoidably prevented from

the discovery of the evidence upon which he must rely, such motion shall be filed

within seven days from an order of the court finding that he was unavoidably

prevented from discovering the evidence within the one hundred twenty day period.

(Emphasis added.) Crim.R. 33(B).

{¶28} Thus, as this Court has explained, “‘a two-step process is anticipated when [a

motion for a new trial] is made outside the period during which motions for a new trial are

permitted as a matter of course[]’ and has recognized that ‘[t]here will be an initial step that results

in the issuance of an order from the court that there was an unavoidable delay.’” State v. Grad, 9th

Dist. Medina No. 22CA0011-M, 2022-Ohio-4221, ¶ 7, citing State v. Georgekopoulos, 9th Dist.

Summit No. 21952, 2004-Ohio-5197, ¶ 7, quoting State v. Dawson, 9th Dist. Summit No. 19179,

1999 WL 492600, *2 (July 14, 1999).

{¶29} Wherefore, the singular threshold consideration in determining whether leave to

file a motion for new trial outside of the 120 days permitted by rule should be granted is whether

there was clear and convincing evidence that the movant “was unavoidably prevented from

discovering the evidence within the time prescribed * * * .” Crim.R. 33(B). There is nothing in

the language of Crim.R. 33(B) that mentions evaluation of the credibility of affidavits or other new

evidence, or whether that new evidence, in this case the key prosecution witness’s recantation, is

dispositive and justifies a new trial. The determination of the credibility of affidavits is made later,

at the hearing on the motion if a hearing is granted. Crim.R. 33(A)(6) (“the defendant must produce

9

at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom [newly

discovered evidence] is expected to be given * * *”).

{¶30} The trial court recognized in its February 11, 2022, ruling that it granted the motion

for leave based on Davis’ assertion that he was “unavoidably prevented” from discovering that

Williams lied under oath within 120 days after the verdict was rendered. As previously noted, the

trial court’s February 18, 2020, order setting the hearing on the motion for new trial established

nothing more than a hearing date. Under Crim.R. 33(B), the trial court was not called upon to

assess the credibility of Williams’ affidavit in deciding whether to grant leave or whether to hold

a hearing on the motion for new trial. Accordingly, neither of those orders can be interpreted as a

judgment on Williams’ credibility.

Brown Test Is the Standard For Reviewing Recantation

{¶31} In its ruling denying Davis’ motion for new trial, the trial court cited Brown as the

standard for determining whether a witness’s recantation constitutes newly discovered evidence,

and Calhoun for the factors to determine the credibility of an affidavit. Davis argues that the trial

court erred in applying Brown and Calhoun, and instead, should have applied Petro. Again, Davis’

argument lacks merit.

{¶32} Davis is correct that the requisites for granting a new trial based upon newly

discovered evidence are set forth in Petro at syllabus, which provides:

To warrant the granting of a motion for a new trial in a criminal case, based on the

ground of newly discovered evidence, it must be shown that the new evidence (1)

discloses a strong probability 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.

10

{¶33} Petro approved and followed State v. Lopa, 96 Ohio St.410 (1917) (a new trial

should be refused unless the trial court finds there is a strong probability that the newly discovered

evidence will result in a different verdict and is not just cumulative or impeaching in character).

Petro at syllabus.

{¶34} In determining whether recanted testimony qualifies as newly discovered evidence,

this Court has consistently applied the well-settled test set forth in Brown at ¶ 20, which provides:

If the newly discovered evidence is a recantation by a main prosecution witness,

the trial court must determine which of the contradicting testimonies of the

recanting witness is credible. The trial court must make two determinations: (1)

which of the contradictory testimony offered by the recanting witness is credible

and true, and if the recanted testimony is to be believed; (2) would the evidence

materially affect the outcome of the trial.

(Internal quotation marks and citations omitted.) See e.g. State v. Velez, 9th Dist. Summit No.

09CA009564, 2010-Ohio-312; State v. Covender, 9th Dist. Lorain No. 11CA010093, 2012-Ohio-

6105, ¶ 7; State v. Elkins, 9th Dist. Summit No. 21380, 2003 WL 22015409, *3 (Aug. 27, 2003).

{¶35} Our review of Brown and the cases it relies on revealed that the Brown court applied

Petro to recanted witness testimony. The test from Brown was based on an earlier decision, Toledo

v. Easterling, 26 Ohio App.3d 59 (6th Dist.1985). In Easterling, the trial court was similarly faced

with the alleged recantation of trial testimony by the victim and sole prosecution witness to the

crime. Easterling at 61. Easterling cited Petro for the fundamental six-part test to determine

whether a new trial is warranted based on newly discovered evidence. Id.

{¶36} Wherefore, the two-part test in Brown is not a deviation from established law nor

is the connection between Petro and Brown a quantum leap. As explained in Easterling, the

answer to the two-part test in Brown connects directly to the first Petro factor (“discloses a strong

probability that it will change the result if a new trial is granted”). Thus, the Brown test rose from

cases construing Petro. Accordingly, the trial court followed well-settled law in applying Brown.

11

The Trial Court Applied Petro

{¶37} Davis apparently failed to recognize the trial court’s reference to Petro. The trial

court specifically wrote in its order denying Davis’ motion for new trial that it found Williams’

affidavit “ * * * not credible, thus if admitted at a new trial, would not materially affect the

outcome. Thus, following Petro and its successors, the evidence presented does not support a new

trial for [Davis]” (Emphasis added). Clearly, by its own statement, the trial court followed Petro,

even referencing specifically the first Petro factor (“strong probability that it will change the result

if a new trial is granted”). Moreover, the trial court addressed other Petro factors without

specifically listing them.

{¶38} The fifth and sixth Petro factors were also specifically addressed in the trial court’s

ruling:

The evidence presented at this hearing is that of Williams impeaching or

contradicting his own testimony at trial. As Williams admitted at trial to making

three different statements to the police regarding the incident and was thoroughly

cross-examined as to his credibility, this additional new statement actually is not

‘newly discovered evidence’. Nor is it evidence that [Davis] was prevented from

discovering in order to file a more timely Motion for New Trial.

***

Even if this Court were to find Williams’ latest version of events credible, his

newest recantation is merely impeaching of and, at the same time, cumulative to

his trial testimony.

(Emphasis added.) State v. Davis, Summit Cty. C.P. No. CR 2012-01-0289B, 32-33 (Feb. 1, 2022),

Journal Entry.

{¶39} Based on the foregoing excerpts from the trial court’s ruling, Davis’ claim that the

trial court did not apply Petro is incorrect. The trial court addressed the first, fifth, and sixth Petro

factors. Davis simply disagrees with the trial court’s decision that Williams’ recantation is not

credible.

12

{¶40} The trial court rejected Williams’ recantation under the first, fifth, and sixth Petro

factors through its Brown analysis. Petro is a conjunctive test. Therefore, Davis’ argument fails

under Petro.

Calhoun Factors May Be Applied To Affidavits In Support Of Motions For New Trial

{¶41} The trial court recited Calhoun as relevant but not dispositive in determining the

credibility of Williams’ affidavit and recantation testimony. Davis argues that while other

appellate districts have applied Calhoun in assessing witness recantation testimony, this Court has

not adopted Calhoun in that context, and therefore, it was error for the trial court to rely on it. As

previously noted, Davis incorrectly believed that Calhoun is confined to an analysis of pre-hearing

credibility and is not appropriately applied subsequent to a hearing. We disagree.

{¶42} According to Calhoun at 285, the factors for determining credibility are not

individually dispositive, and include, but are not limited to:

(1) whether the judge reviewing the [motion for new trial] presided over the original

trial, (2) whether multiple affidavits contain nearly identical language, or otherwise

appear to have been drafted by the same person, (3) whether the affidavits contain

or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or

otherwise interested in the success of the petitioner’s efforts, and (5) whether the

affidavits contradict evidence proffered by the defense at trial.

{¶43} The Calhoun court further noted that “a trial court may find sworn testimony in an

affidavit to be contradicted by evidence in the record by the same witness, or to be internally

inconsistent, thereby weakening the credibility of that testimony.” Id. “Depending on the entire

record, one or more of these or other factors may be sufficient to justify the conclusion that an

affidavit asserting information outside the record lacks credibility. Such a decision should be

within the discretion of the trial court.” Id.

{¶44} Although Calhoun was decided in the context of postconviction relief, it has been

applied in cases like this one where an affidavit was attached to a motion for a new trial. State v.

13

Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 14, applying State v. Coleman, 2d Dist.

Clark No. 04CA43, 2005-Ohio-3874, ¶ 25 (holding that Calhoun’s analysis of affidavits

supporting petitions for postconviction relief “comfortably applies to affidavits submitted in

support of a motion for a new trial”). Furthermore, other appellate districts have expressly relied

on the Calhoun factors to discredit a witness’ hearing testimony recanting the witness’ trial

testimony. See e.g. State v. T.S., 10th Dist. Franklin No. 20AP-159, 2021-Ohio-2203, ¶ 36-37;

State v. Watson, 12th Dist. Butler No. CA2016- 08-159, 2017-Ohio-1403, ¶ 28 (noting that

Calhoun stated a nonexclusive list of credibility factors).

{¶45} Moreover, as the Calhoun factors are not intended to be exhaustive or exclusive,

and because a credibility assessment is a matter of the trial court’s discretion, it was not error for

the trial court to apply Calhoun as a tool to determine Williams’ credibility.

{¶46} Based on the foregoing, Davis’ first assignment of error is overruled.

ASSIGNMENT OF ERROR II

WHERE THE TRIAL JUDGE DETERMINES THE RECANTING

WITNESS IS NOT CREDIBLE, A NEW TRIAL MUST BE GRANTED

WHERE THERE IS NO INDEPENDENT EVIDENCE OF APPELLANT’S

GUILT.

ASSIGNMENT OF ERROR III

THE TRIAL COURT’S CREDIBILITY ASSES[S]MENT IS SO

ARBITRARY THAT IT CONSTITUTES AN[] ABUSE OF DISCRETION.

ASSIGNMENT OF ERROR IV

IT IS SO UNCONSCIONABLE TO SUPPORT A CONVICTION WITH []

SOLELY THE TESTIMONY OF A WITNESS THE STATE AND COURT

FIND TO LACK CREDIBILITY, THAT IT IS AN ABUSE OF

DISCRETION.

14

ASSIGNMENT OF ERROR V

THE TRIAL COURT’S JUDGMENT IS ARBITRARY WHERE A PRIOR

APPROPRIATE APPLICATION OF CALHOUN’S FACTORS TO THE

SAME CLAIMS PRODUCED A DIFFERENT RESULT.

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MADE AN

UNREASONABLE DETERMINATION OF FACT NOT SUPPORTED BY

THE RECORD.

{¶47} For ease of analysis, we address Davis’ second, third, fourth, fifth, and sixth

assignments of error in a consolidated fashion because they each address alleged errors in the trial

court’s credibility analysis. The summary of Davis’ arguments is that the trial court erred in

finding that Williams’ recantation was not credible. We disagree.

{¶48} As an initial matter, we note that the Ohio Supreme Court has said “the weight to

be given the evidence and the credibility of the witnesses are primarily for the trier of facts.” State

v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. This is because “[t]he trier of

fact is in the best position to judge the credibility of the witnesses.” State v. Curry, 9th Dist. Summit

No. 23104, 2007-Ohio-238, ¶ 19.

{¶49} In addition, it is important to bear in mind the fundamental principle that “[n]ewly

discovered evidence that recants testimony given at trial is ‘looked upon with utmost suspicion.’”

Covender, 2008-Ohio-1453, at ¶ 11, citing State v. Perez, 9th Dist. Medina No. 3045-M, *3, 2000

WL 1420341, (Sept. 27, 2000). Merely because an important witness recants, the defendant is not

per se entitled to a new trial as a matter of law. Id. at ¶ 12. “Recanting affidavits and witnesses

are viewed with extreme suspicion because the witness, by making contradictory statements, either

lied at trial, or in the current testimony, or both times.” State v. Gray, 8th Dist. Cuyahoga No.

15

92646, 2010-Ohio-11, ¶ 29, citing State v. Jones, 10th Dist. Franklin No. 06AP-62, 2006-Ohio-

5953, ¶ 25.

{¶50} Referencing the first Calhoun factor, the trial court noted preliminarily that the

judge that reviewed the motion for new trial also presided over the entirety of the original trial.

Thus, the trial judge was familiar with the underlying proceedings and was in the best position to

observe Williams and assess the credibility of his recantation.

{¶51} The trial court listed all the components it considered in arriving at its decision:

specifically, that it reviewed Davis’ motion for new trial, the State’s response, Williams’ testimony

at the hearing, the exhibits (letters, Williams’ affidavit), the testimony from the original trial, and

the post-hearing briefs submitted by the parties. Particularly noteworthy is that the trial court

questioned Williams at length to understand the “logical inconsistencies in the new version” and

“what Williams was now saying happened.” Thus, the trial court took comprehensive measures to

thoroughly understand the differences between Williams’ testimony at trial and his recantation to

“determine which of the contradicting testimonies of the recanting witness is credible” as required

under Brown. Brown at 318.

{¶52} The trial court addressed Williams’ prior testimony at the original trial, noting that

Williams was subjected to “intense cross-examination about his credibility by attorneys for Carr

and Davis, and that they each went over his prior numerous statements in detail. * * * All of

Williams’ vacillations were discussed and explored before the jury * * *.” The trial court further

noted that the jury also found Williams’ testimony at the original trial to be credible, even after

hearing multiple prior statements.

{¶53} The trial court rejected Davis’ assertion that it was Williams’ own guilt and moral

code which compelled him to come forward. The court was particularly persuaded by the fact that

16

Williams did not initiate contact with Davis, but rather, Davis first wrote to Williams, and none of

those letters from Davis were introduced. From that, the trial court concluded that Davis reaching

out for Williams’ help “does lessen the strength of the presentation of Williams’ ‘recantation’ as

being something Williams initiated or decided to do on his own out of a genuine belief regarding

Davis’ innocence.”

{¶54} The trial court summarized its impression of all the letters from Williams to Davis

as “Williams never stopped expressing hesitation about changing his statement, apparently out of

concern for himself and the possibility he could do more prison time as a result”, rather than as

Williams expressing a genuine change of heart.

{¶55} The trial court further concluded that Williams did not appreciate that Ohio law

allows for an accomplice to be convicted of the foreseeable outcome of a decision to rob someone

at gunpoint, noting specifically that Williams did not seem to understand that Davis’ peripheral

involvement of planning or participating in the robbery would make him equally responsible with

Carr and Williams for Anderson’s death. In arriving at that conclusion, the trial court highlighted

Williams’ statement in his first letter about “Mal” not owning up to being solely responsible for

something he, Williams, and Davis planned together (“Mal didn’t keep it real! Cuz if he would’ve

then the whole situation would be different. He was supposed to stand up and take ownership for

what he did, but instead he wanted 2 n * * *s to take the fall for some shit he did”). The trial court

also questioned why Williams pleaded guilty to involuntary manslaughter, a charge he was at risk

of being found guilty at trial, even though he did not pull the trigger. The trial court’s impression

of Williams’ misunderstanding about complicity was further solidified when it asked Williams at

the hearing “[w]ere you aware of the laws of complicity [at the time of the original trial]? Williams

responded, “No, ma’am.”

17

{¶56} Davis also complained that the trial court “largely” based its assessment of

Williams’ credibility on the fact that the jury found Williams’ trial testimony credible. However,

the trial court stated,“[t]he jury found that testimony to be credible as well,” (emphasis added),

meaning in addition to the other things the court took into consideration, not “largely.”

{¶57} The trial court addressed Davis’ claim that the prosecution coerced or misled

Williams into making multiple statements and rejected it. The trial court noted that in his affidavit,

Williams claimed that “I had met with the prosecution so many times that they made me believe

he [Davis] was a part of the crime when he wasn’t.” However, former prosecutor Michael Cody

testified at the hearing that the prosecution only met twice with Williams, the first time in April

2012 to discuss a plea deal, and again in July or August to prepare for trial. Moreover, as the trial

court indicated, “the recordings of Williams’ statements to the prosecutor and police show no

coercion whatsoever and appear to be voluntarily made by Williams.”

{¶58} Last, the trial court stressed that Williams’ affidavit was not executed until

September 20, 2018, more than three years after Davis first approached Williams for help,

concluding that the “time lapse alone causes one to question Williams’ sincerity in wishing to help

his friend.”

{¶59} Accordingly, upon review of the record, this Court cannot conclude that the trial

court’s ruling was “arbitrary, unconscionable, and unreasonable.” Blakemore, 5 Ohio St.3d at 219.

The trial court applied the proper legal standards and engaged in a sound reasoning process. As

the independent trier of fact, the trial court was in a superior position to evaluate the totality of the

facts and circumstances, Curry, 2007-Ohio-238 at ¶ 19, and we can find no reason to disturb that

finding.

18

{¶60} We conclude that the trial court did not abuse its discretion when it determined that

Williams’ recantation was not credible and that his motion for new trial should be denied. Davis’

second, third, fourth, fifth, and sixth assignments of error are overruled.

III.

{¶61} The judgment of the Summit County Court of Common Pleas denying Davis a new

trial is affirmed.

Judgment Affirmed

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

SCOT STEVENSON

FOR THE COURT

19

SUTTON, P. J.

HENSAL, J.

CONCUR.

APPEARANCES:

KIMBERLY KENDALL CORRAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant

Prosecuting Attorney, for Appellee.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.