COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69076 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JAMES KITZLER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 1, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-270789. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Thomas Conway Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: David L. Doughten, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103-1125 SWEENEY, JAMES D., P.J.: Defendant-appellant James J. Kitzler appeals from the denial of his March 30, 1995 motion for a new trial. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the appellant was previously convicted of the 1991 aggravated murder of his wife with a firearm. This conviction was affirmed by this court. See State v. Kitzler (March 23, 1995), Cuyahoga App. No. 65866, unreported. On March 30, 1995, with leave of court having been previously granted on January 6, 1995, appellant filed his motion for new 1 trial pursuant to Crim.R. 33(A)(2) and (6) , arguing that a new 1 Crim.R. 33(A)(2) and (6) provide in pertinent part: (A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: * * * (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state; * * * (6) 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, ***. R.C. 2945.79(B) and (F) correspond with the Criminal Rule provisions. - 3 - trial was warranted as a result of prosecutor misconduct and newly discovered evidence as follows: (1) the prosecution did not provide to the defense pursuant to Crim.R. 16(B)(1)(e) the felony criminal record of the victim's father, William Lowery, who testified on behalf of the prosecution; (2) William Lowery lied during his testimony when he stated that a psychology book was found by the victim's family in the appellant's dresser drawer approximately one week after the murder, when he actually found the book approximately six months after the murder and one week after the appellant filed his change of plea from Not Guilty to Not Guilty By Reason of Insanity; and, (3) the prosecution failed to provide to the defense this material exculpatory evidence concerning the actual date of the finding of the book in violation of Crim.R. 16(B)(1)(f). No exhibits or affidavits were attached to 2 this motion or its brief in support. On April 6, 1995, the prosecution filed a brief in opposition to the motion for a new trial. The motion for a new trial was heard on April 26, 1995. On April 27, 1995, the trial court issued its Findings of Fact and 2 Crim.R. 33(C) provides in pertinent part: (C) Affidavits required. The causes enumerated in subsection (A)(2) ... must be sustained by affidavit showing their truth, and may be controverted by affidavit. (Emphasis added.) R.C. 2945.81 corresponds to Crim.R. 33(C). - 4 - Conclusions of Law relative to the motion for a new trial, providing the following in pertinent part: * * * The Court has examined the issues raised by the Defendant which amount to an alleged failure of the State of Ohio to provide the defense with the criminal record of a key prosecution witness and the alleged failure of the State to provide the defense with exculpatory evidence, to-wit: the date of actual discovery of a psychiatric textbook alleged to have been found in the bedroom of the Defendant. There is no question that the State is required to disclose the criminal record of any witnesses it intends to call at trial pursuant to the mandates of Criminal Rule 16. The question now becomes: To what extent was the Defendant prejudiced as a result of the non- disclosure and inability to effectively cross- examine the witness on that basis? Upon review of the transcript of the witness' testimony as well as the arguments of the prosecution the Court finds that this particular witness' testimony was neither essential nor material to the State's case against Mr. Kitzler's defense of insanity. The chief thrust of the State's case was based upon the expert testimony of the psychiatrists who claimed that the Defendant was malingering; that he was not insane at the time of the act. These opinions, together with other evidence tending to prove the Defendant's appreciation of the wrongfulness of his acts, were sufficient to support a jury verdict. For the foregoing reasons, the Court finds that the Defendant's Motion of (sic) a New Trial is not well-taken and is therefore overruled. * * * Journal Vol. 1391, page 767. - 5 - This timely appeal from the denial of the motion for a new trial presents the following sole assignment of error: THE PROSECUTOR'S FAILURE TO ABIDE WITH THE RULES OF DISCOVERY DEPRIVED THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL. The standard of review relative to appellant's claim of prosecutorial misconduct [Crim.R. 33(A)(2)] in not disclosing the felony criminal record of a State's witness is whether the non- disclosure was material to the finding of guilt based upon the totality of the record and whether there is a reasonable likelihood that the undisclosed material would have affected the guilty verdict, thereby preventing the defendant from having a fair trial; If yes, then reversal is warranted. State v. Johnston (1988), 39 Ohio St.3d 48, 60; State v. Staten (1984), 14 Ohio App.3d 78, leave to appeal to the Supreme Court of Ohio overruled on September 12, 1984 (case No. 84-845). Additionally, this court noted in State v. White (August 5, 1993), Cuyahoga App. No. 62366, unreported, at 4, citing State v. Schiebel (1990), 55 Ohio St.3d 71, paragraph one of the syllabus, that a "ruling on a motion for a new trial rests within the sound discretion of the trial court and absent a clear showing of an abuse of discretion the ruling will not be reversed on appeal." In the present case, appellant argues that his defense was prejudiced by the misconduct of the prosecution in failing to disclose the victim's father's felony criminal record. Considering the totality of the record from the trial which overwhelmingly - 6 - demonstrates the guilt of the defendant-appellant, and our belief that this criminal record is only tangentially relevant and material to the defendant-appellant's guilt, we do not conclude that the outcome of the trial would have been different but for that piece of evidence. Accordingly, the trial court did not abuse its discretion in denying a new trial on the grounds of prosecutorial misconduct in the discovery phase of the case. The following standard of review for a motion for a new trial based on newly discovered evidence [Crim.R. 33(A)(6)] was provided in State v. King (1989), 63 Ohio App.3d 183, 191: To warrant the granting of a motion for new trial in a criminal case based upon the ground of newly discovered evidence, it must be shown that the 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. State v. Petro (1947), 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370, at the syllabus; State v. Lopa (1917), 96 Ohio St. 410, 117 N.E. 319, approved and followed. As previously stated, appellant argues that a new trial was warranted due to the misrepresentation of the actual date of the victim's family having found the psychiatric book in the defendant- appellant's bedroom. In reviewing the trial court testimony and the rebuttal testimony in particular, we note that the defendant- appellant was examined separately by two psychologists on separate dates during the summer of 1992 and was determined to have been - 7 - sane at the time of the offense and was feigning mental illness at the time of the examinations. Other witnesses testified that the defendant-appellant's actions appeared normal, deliberative, and calculating prior to, and at the time of, the offense. Even if the actual date of the finding of the book had been given to the jury, we do not believe that the defendant-appellant has demonstrated a strong possibility that the outcome of the trial would have been different. The jury still could have inferred from the testimony that the defendant-appellant was sane at the time of the offense and was attempting to feign mental illness to support his insanity defense at trial. Accordingly, the trial court did not abuse its discretion in denying the motion for a new trial. Assignment overruled. Judgment affirmed. - 8 - 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. JAMES M. PORTER, J., and JOSEPH J. NAHRA, J., CONCUR. JAMES D. SWEENEY PRESIDING 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 .