COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68613 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION LEWIS WILLIAMS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 18, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-179814 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID BODIKER, ESQ. Cuyahoga County Prosecutor State Public Defender KAREN L. JOHNSON, ESQ. STEPHEN A. FERRELL, ESQ. Assistant County Prosecutor Asst. State Public Defender GEORGE J. SADD, ESQ. RICHARD J. VICKERS, ESQ. Assistant County Prosecutor Asst. State Public Defender The Justice Center Ohio Public Defenders Comm. 1200 Ontario Street 8 East Long Street - 11th Flr. Cleveland, Ohio 44113 Columbus, Ohio 43266-0587 - 2 - - 3 - KARPINSKI, J.: Defendant-appellant, Lewis Williams, Jr., appeals from the denial of his fifth petition for post-conviction relief ("PCR Petition"). On November 16, 1983, defendant was convicted of aggravated murder with robbery and firearm specifications and sentenced to death. This court affirmed defendant's conviction and sentence. State v. Williams (Nov. 5, 1984), Cuyahoga App. No. 47853, unreported. The Ohio Supreme Court rejected his twenty assignments of error on direct appeal and affirmed his conviction and sentence. State v. Williams (1986), 23 Ohio St.3d 16. The United States Supreme Court denied defendant's petition for certiorari. Williams v. Ohio (1987), 480 U.S. 923. Defendant thereafter filed pro se in the common pleas court two petitions for post-conviction relief ("PCR Petitions") in 1986. The trial court denied defendant's two pro se PCR Petitions and defendant did not appeal from the denial of either of these two PCR Petitions. Defendant, represented by the State Public Defender, thereafter filed the following additional proceedings, viz.: (1) three successive PCR Petitions; (2) a public records mandamus action; and (3) a motion for delayed reopening of defendant's direct appeal. This court of appeals affirmed the denial of defendant's third PCR Petition. State v. Williams (1991), 74 - 4 - Ohio App.3d 686. The Ohio Supreme Court denied further review. State v. Williams (1991), 62 Ohio St.3d 1463. Defendant filed his fourth PCR Petition, the denial of which this court affirmed in State v. Williams (Apr. 1, 1993), Cuyahoga App. No. 62066, unreported. The Ohio Supreme Court denied further review. State v. Williams (1993), 67 Ohio St.3d 1464. During the pendency of the fourth PCR Petition, defendant filed a public records mandamus action. This court granted the writ of mandamus in part and denied the writ in part. State of Ohio ex rel. Williams v. Cleveland (Dec. 24, 1992), Cuyahoga App. No. 61762, unreported. Defendant did not seek further review of this court's disposition of his mandamus action. Defendant filed a motion to delay reopening his direct appeal. This court of appeals denied the motion. State v. Williams (Nov. 5, 1984), Cuyahoga App. No. 47853, unreported, reopening disallowed (Mar. 22, 1995), Motion No. 57150. Defendant's request for review is pending in the Ohio Supreme Court as of the date of this opinion. Defendant filed a sixty-page fifth PCR Petition sub judice on July 10, 1992. Defendant's motion, which raised nineteen claims based on thirty exhibits, raised five principal issues, viz.: (1) a witness had since recanted his testimony that defendant while in jail confessed to killing the victim; (2) prior to trial defense experts did not examine defendant's jacket and shoes and the victim's nightgown; (3) the prosecution failed to disclose police records concerning other unnamed, uncharged - 5 - suspects investigated for the crimes; (4) the prosecution failed to disclose the pretrial witness statements; and (5) defendant's cousin was allegedly coerced to testify as a witness at trial. Attached to the motion were police records disclosed in the prior public records mandamus action, affidavits of witnesses, and various original papers and journal entries. The prosecution filed a motion to dismiss defendant's fifth PCR Petition, which the trial court granted, issuing an eleven- page typewritten journal entry with findings of fact and conclusions of law on January 26, 1995. Defendant appeals raising eleven interwoven assignments of error, which are set forth in the appendix. They shall be addressed in a different order than presented. I. Defendant's seventh, ninth and tenth assignments raise matters that have already been raised and rejected in prior proceedings. Defendant's seventh assignment of error contends the prosecution presented false testimony from Michael Anderson and concealed a deal to obtain his testimony, thereby depriving defendant of effective counsel. Defendant's ninth assignment of error complains about the inability of the defense to perform independent expert testing on defendant's jacket and shoes and on the victim's nightgown, thereby depriving him of effective counsel and resulting in his conviction on insufficient evidence. Defendant's tenth assignment of error argues defendant received ineffective assistance of trial counsel because of inadequate - 6 - pre-trial preparation concerning other suspects, defendant's clothing and forensic test results. Defendant contends he is entitled to file successive PCR Petitions, despite the denial of prior PCR Petitions raising the same grounds, whenever he presents new evidence to support the claims. Contrary to defendant's argument, Ohio law does not grant carte blanche to file successive PCR Petitions endlessly. State v. Steffen (1994), 70 Ohio St.3d 399, 411. R.C. 2953.23(A) governs the filing of multiple PCR Petitions and provides as follows: (A) Whether a hearing is or is not held, the court may, in its discretion and for good cause shown, entertain a second petition or successive petitions for similar relief on behalf of the petitioner based upon the same facts or on newly discovered evidence. Trial courts are not required to entertain successive petitions which allege the same grounds as earlier petitions. State v. Steffen, supra; State of Ohio ex rel. Workman v. McGrath (1988), 40 Ohio St.3d 91; State v. Apanovitch (Nov. 30, 1995), Cuyahoga App. No. 68742, unreported; State v. Richard (Nov. 14, 1991), Cuyahoga App. No. 60741, unreported. Defendant should generally be prepared, after thorough investigation, to present all relevant evidence to support the particular grounds before broaching the subject. Defendant has failed to show that the trial court abused its discretion by dismissing these claims in his fifth PCR Petition. Defendant raised the same claims in his fourth PCR Petition and made no attempt to show good cause for permitting him to - 7 - raise them again belatedly with additional evidence. That Michael Anderson testified falsely at trial and the prosecution concealed promises of lenient sentencing to induce his testimony were arguments raised before. Defendant's fourth PCR Petition was based on an affidavit of investigator Jeff Layman and on certified copies concerning Anderson's conviction in a separate criminal case. Defendant's fifth Petition merely adds an affidavit in which Anderson recants his trial testimony. However, recanted testimony is suspect and does not generally warrant a hearing. State v. Moore (1994), 99 Ohio App.3d 748, 754 (citing Taylor v. Ross (1948), 150 Ohio St. 448, syllabus paragraph three). Even if Anderson's affidavit nine years after trial were true, Navarro Brooks also testified at trial that defendant admitted shooting the victim. Brooks has not recanted his testimony. In his fourth PCR Petition defendant also raised the same arguments concerning his inability to perform independent testing on defendant's jacket and shoes and on the victim's nightgown. In that earlier petition, defendant complained about trial counsel's failure to retain experts and sought an opportunity for his criminalist, Larry Dehus, to examine these items. The trial court denied defendant's motion for discovery concerning the items in connection with his fourth PCR Petition and defendant did not raise an assignment of error to challenge this ruling. Neither published articles on gunshot residue nor an affidavit by Donald Nittskoff (a new expert retained by defendant in - 8 - connection with his fifth PCR Petition) concerning gunshot residue warrant a hearing at this late date. Defendant raised various claims concerning the ineffective assistance of trial counsel at least four times before his fifth PCR Petition. This claim was rejected by reviewing courts on direct appeal in his third and fourth PCR Petitions and, most recently, in his motion for delayed reopening of his direct appeal. The order denying defendant's motion to reopen his appeal states in part as follows: Significantly, many of the issues applicant raises have already been litigated and reviewed or could have been litigated and reviewed. For example, all issues regarding the effectiveness of trial counsel either were raised or could have been raised in applicant's post-conviction proceedings since trial and appellate counsel were the same. See State v. Williams (1991), 74 Ohio App.3d 686, 600 N.E.2d 298. This court has already found 'overwhelming evidence in the record of trial counsel's competence.' Id. at 693. This court found no ineffectiveness of trial counsel either at the guilt phase or penalty portion of applicant's trial. Id. at 693-700. Thus, to ask this court to reopen an appeal to permit the launch of yet another challenge to the performance of trial counsel in total disregard of the previous holding of this court is not only inappropriate pursuant to App.R. 26(B), which governs claims of ineffective assistance of appellate counsel, but borders on frivolity, abuse and misconduct, all of which are subject to sanctions. State v. Williams (Nov. 5, 1984), Cuyahoga App. No. 47853, unreported, reopening disallowed (Mar. 22, 1995), Motion No. 57150 at 4-5. Defendant's newly minted contentions concerning trial counsel's inadequate investigation of unnamed, uncharged suspects and defendant's jacket, shoes, and related forensic evidence do not warrant a hearing. - 9 - Accordingly, defendant's seventh, ninth and tenth assignments of error are overruled. II. Defendant's fifth and sixth assignments of error charge the prosecutor failed to disclose material exculpatory evidence favorable to the defense prior to trial in violation of Brady v. Maryland (1963), 373 U.S. 83. Defendant's fifth assignment of error relates to police reports containing pretrial statements of three trial witnesses, personal property records, and information concerning other suspects. Defendant's sixth assignment of error complains the prosecution did not disclose the identity of unnamed, uncharged suspects investigated in connection with the crimes. Undisclosed evidence is "material" for purposes of Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." State v. Sowell (1991), 73 Ohio App.3d 672, 677 (citations omitted); State v. Apanovitch, supra at 12-21. Defendant contends that statements attributed to Kevin Samuels, Brent Byrd and Tyrone Nicholson in police reports differ in various respects from their trial testimony. These differences include what, if anything, defendant was doing at the victim's house, the precise location of defendant and the victim, the exact time, and who requested a ride before the witnesses - 10 - left the scene prior to the crimes. These conflicts in details concerning the events are not material inconsistencies, and there is no reasonable probability that the outcome of the trial would have been different if the statements had been disclosed. The arrest and booking records concerning defendant's personal property do not constitute material exculpatory evidence. PCR Exhibit 10 indicates that a jacket and shoes were taken from defendant following his arrest three days after the crimes. PCR Exhibit 9 lists additional items subsequently taken from defendant at the time of his booking; Exhibit 9 does not purport to list all the items taken, including those previously described on PCR Exhibit 10. That PCR Exhibit 9 does not refer to defendant's jacket and states that "no shoes" were taken from defendant at the time of his booking does not contradict PCR Exhibit 10. The exhibits do not indicate that the jacket and shoes were taken from anyone other than defendant and forensic evidence linked the jacket and shoes to the crimes. Defendant's arguments relating to records of the investigation of other persons in connection with the crimes likewise lack merit. It is well established that the prosecution is not required to disclose information concerning the investigation, existence, or identity of any other unnamed, uncharged suspects during the course of discovery under Crim.R. 16 or in a subsequent R.C. 149.43 public records mandamus action. See State of Ohio ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420. This court of appeals previously reached this same - 11 - conclusion in this particular case, State of Ohio ex rel. Williams v. Cleveland, supra, and defendant did not appeal from this ruling. Defendant's belated attempt to characterize the failure to disclose any such information as a Brady violation or as a deprivation of effective counsel lacks merit. Under the circumstances, defendant was not deprived of effective representation and the alleged exculpatory evidence, individually and cumulatively, is not sufficient to undermine confidence in defendant's conviction and warrant post-conviction relief. Accordingly, defendant's fifth and sixth assignments of error are overruled. III. Defendant's eighth assignment of error challenges the trial court's rejection of his claims based on an affidavit of his cousin Kevin Samuels, who testified for the prosecution at trial. Samuels was one of a number of defendant's friends and relatives whose testimony placed defendant at the scene of the crime. Samuels' affidavit, filed with his fifth PCR Petition approximately nine years after the killing and trial, states that Samuels was coerced to testify by the police. The alleged coercion was comprised of (1) a threat by police to confiscate his house (apparently because he admittedly smoked marijuana there the evening of the killing), (2) a statement that he could be compelled by court order to testify, and (3) an appeal to his conscience to testify against defendant. - 12 - Defendant's two-paragraph argument contends that the state committed misconduct by threatening Samuels and that trial counsel was ineffective because he did not cross-examine Samuels concerning the threats. Based on our review, defendant has failed to show the trial court improperly rejected these claims. Samuels' affidavit did not raise sufficient grounds for relief. Notably absent from Samuel's affidavit is any claim that he gave false testimony at trial. Samuels simply argues that he was coerced to testify, but does not contend that he was coerced to provide false testimony at trial. Witnesses are frequently "coerced" to testify through the use of subpoenas and there is no evidence to support defendant's claim that the state improperly coerced Samuels to testify falsely. Despite approximately nine intervening years, Samuel's affidavit does not recant his trial testimony, state how his testimony would have been different without the alleged coercion, show how his testimony was "unreliable," or indicate what further cross-examination would have elicited at trial. It should be noted that, even when witnesses recant their testimony, affidavits of relatives drafted by persons other than the affiant years after a conviction, without any explanation for the delay, do not compel relief and may be rejected without a hearing. State v. Moore, supra. Defendant has not presented any evidence that he was unaware, or unable to discover, the alleged coercion from his cousin Samuels prior to trial. Under the - 13 - circumstances, there is no basis to conclude that the prosecution committed misconduct, trial counsel was deficient, or any prejudice resulted from failing to question Samuels about the alleged coercion. Samuels was not the only witness who testified that defendant was at the victim's house the evening of the killing; none of these belatedly raised issues would change the result of defendant's trial. Accordingly, defendant's eighth assignment of error is overruled. IV. Defendant's remaining five assignments of error raise various procedural issues. Defendant argues the trial court improperly (1) applied the doctrine of res judicata, (2) deprived him of an evidentiary hearing, (3) refused to permit discovery, and (4) adopted findings of fact and conclusions of law submitted by the prosecution. Finally, defendant's eleventh assignment of error argues that a motion panel of this court of appeals improperly denied his motion to supplement the record. Defendant's first assignment of error complains that the trial court granted a motion to dismiss his fifth PCR Petition, rather than for summary judgment, on the grounds of res judicata. The Ninth District persuasively rejected this precise argument and held that res judicata may be raised in the context of a PCR Petition by a motion to dismiss, rather than for summary judgment. State v. Greer (Oct. 28, 1992), Summit App. No. 15217, unreported, at 3-5. Moreover, any error concerning the manner in - 14 - which the defense of res judicata was raised was harmless beyond a reasonable doubt because res judicata precluded defendant's claims as set forth above. As a result, defendant's first assignment of error is overruled. Defendant's second assignment of error complains that the trial court did not conduct a hearing on his fifth PCR Petition. It is well established, however, that PCR Petitions are subject to dismissal without a hearing if the petition and supporting evidentiary documents do not contain sufficient operative facts which, if true, would establish substantive grounds for relief. State v. Sowell, supra at 682; State v. Armstrong (1988), 56 Ohio App.3d 105. For the reasons set forth above in connection with each of defendant's specific claims, defendant's second assignment of error is overruled. Defendant's third assignment of error, that the trial court improperly denied his motion for discovery, is not supported by the facts or law. The record shows the trial court granted defendant's motion for discovery in an order journalized on September 28, 1992. Defendant did not subsequently file discovery requests of any kind. The trial court did not deny defendant's additional pro se discovery request until after the scheduled deadline to respond to the prosecution's motion to dismiss. Moreover, this court has recognized, contrary to defendant's argument, that a petitioner who avails himself of a public records request has obtained all the discovery he is entitled to - 15 - receive. State v. Apanovitch, supra, at 22-23. Under the circumstances, defendant has failed to show the trial court erred or abused its discretion concerning its discovery rulings. As a result, defendant's third assignment of error is overruled. Defendant's fourth assignment of error complains that the trial court adopted proposed findings of fact and conclusions of law submitted by the prosecution. However, parties frequently submit proposed findings, and the adoption of proposed findings does not constitute reversible error. State v. Sowell, supra at 676; cf. Civ.R. 52 and C.P. Loc.R. 19. On the contrary, the findings of fact adopted by the trial court adequately provide a meaningful basis to review its decision. As a result, defendant's fourth assignment of error is overruled. Defendant's eleventh assignment of error challenges the denial of his motion to supplement the record during the course of this appeal. However, this argument is unpersuasive for procedural and substantive reasons. First, assignments of error in a brief on appeal should be limited to final orders of the trial court. This court of appeals has specifically held that an aggrieved party may not assign as error a ruling by this court of appeals on a motion during the course of the appeal. State v. Bonnell (Oct. 5, 1989), Cuyahoga App. No. 55927, unreported at 3- 4, affirmed, State v. Bonnell (1991), 61 Ohio St.3d 179, 185- 186. Moreover, even if defendant had properly raised this argument as an application for reconsideration under App.R. - 16 - 26(A), the argument lacks merit. The record before this court, along with the case law left in the wake of defendant's convictions in this case, provides a sufficient basis to review the trial court's denial of his fifth PCR Petition. As a result, defendant's eleventh assignment of error is overruled. Accordingly, defendant's first, second, third, fourth and eleventh assignments of procedural error are overruled. Judgment affirmed. - 17 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J., and SPELLACY, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and the time period for review will begin to run. - 18 - APPENDIX I. THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA TO APPELLANT'S CLAIMS FOR RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION[S] 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT WILLIAMS [SIC] EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. T.d. 64. III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO ALLOW DISCOVERY BECAUSE THE DENIAL VIOLATED APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. T.d. 60. IV. THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE ITS OWN FINDINGS OF FACT AND CONCLUSIONS OF LAW, THUS VIOLATING APPELLANT WILLIAMS' RIGHTS UNDER THE FIFTH EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. V. THE TRIAL COURT ERRED IN DENYING APPELLANT'S THIRD, FOURTH, SEVENTH, EIGHTEENTH AND NINETEENTH CLAIMS (BRADY INFORMATION) IN VIOLATION OF APPELLANT'S [SIC] FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION[S] 2, 9, 10, AND 16 OF THE OHIO CONSTITUTION. VI. THE TRIAL COURT ERRED IN DENYING APPELLANT'S SECOND AND ELEVENTH CLAIMS FOR RELIEF (STATE'S FAILURE TO DISCLOSE OTHER SUSPECTS) IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 2, 5, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. VII. THE TRIAL COURT ERRED BECAUSE IT DENIED APPELLANT WILLIAMS' FIRST, FOURTEENTH AND FIFTEENTH CLAIMS FOR RELIEF (PERJURED TESTIMONY OF MICHAEL ANDERSON) IN VIOLATION OF HIS RIGHTS UNDER THE - 19 - FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. VIII.THE TRIAL COURT ERRED IN DENYING APPELLANT'S TENTH AND THIRTEENTH CLAIMS FOR RELIEF (THREATS OF [SIC] WITNESS KEVIN SAMUELS) IN VIOLATION OF APPELLANT'S [SIC] FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION[S] 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. IX. THE TRIAL COURT ERRED WHEN IT DENIED PETITIONER ACCESS TO STATE'S EVIDENCE IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION. X. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S FIFTH AND EIGHTH CLAIMS FOR RELIEF (INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL) IN VIOLATION OF APPELLANT'S RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. .