COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70985 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) LELAND EDWARDS ) ) Defendant-Appellant ) Date of Announcement of Decision OCTOBER 16, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-230603 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender WINSTON GRAYS, Assistant JEAN M. GALLAGHER, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 Cleveland, Ohio 44123-1569 2 JAMES M. PORTER, P.J.: Defendant-appellant Leland Edwards appeals from his convictions following a jury trial in 1989 for rape (R.C. 2907.02), kidnapping (R.C. 2905.01) and felonious assault (R.C. 2903.11). Defendant contends the trial court abused its discretion in denying a motion for a new trial based on recanted testimony of the victim and the exclusion of evidence to show that the victim was threatened with prosecution for perjury of her original testimony at trial. We find no error and affirm. On July 31, 1988, defendant went to the home of the victim, Tracie Kern, looking for Tracie's sister to see if she wanted to have a drink to celebrate the defendant's birthday. Because the sister was not there, defendant asked Tracie if she wanted to accompany him. Tracie agreed and the two proceeded to defendant's friend's house. After visiting the friend, defendant stated he wanted to stop by his apartment to wait for a package. In the parking lot of defendant's apartment, the couple ran into Maurice Gee who was delivering pizzas. After conversing with Maurice, Tracie and the defendant entered his apartment after first stopping at a neighbor's apartment to inquire if the defendant could use the phone. While in defendant's apartment, the two drank some wine and renewed acquaintances. When the conversation became sexual in nature, Ms. Kern expressed her desire to go home and left the apartment to find a telephone to call for a ride. The defendant 3 followed her and said he would take her home, so the two returned to his apartment. Once inside the apartment, defendant locked the door and pinned Tracie against the wall. She attempted to push him off and a fight ensued. During the struggle, defendant wrapped a bed sheet around Tracie's neck, bit her shoulder, pulled her shirt off, used her bra to strangle her, bit her nipple, pulled her skirt up, ripped her under garments, and vaginally raped her. Throughout the sexual assault, the defendant hit and slapped the victim who was resisting and screaming for help. During the attack, a person or persons knocked on the door and window inquiring as to what was going on. Ms. Kern was screaming for help and that she was being raped. The defendant finally opened the door for a female neighbor, later identified as Rochelle Mathews. The victim seized the opportunity to run out of the apartment and to seek refuge and assistance in Ms. Mathews' apartment. Ms. Mathews called for assistance from her neighbor, Jameal, who appeared at Ms. Mathews' apartment with the victim's shirt. Ms. Mathews called the police and an ambulance transported Ms. Kern to Huron Road Hospital where a rape kit was prepared. Maurice Gee testified that he knew both the defendant and victim. After he got off work, Gee went to the defendant's apartment and knocked on the window. The defendant replied that he was busy and to come back later. During the time Gee was outside of the defendant's apartment, he heard Tracie hollering that she 4 was being raped and sounds of blows being issued. Gee left the apartment and returned some time later when he heard Tracie crying. When Gee returned a third time, police were on the scene and both Tracie and the defendant were gone. During the evening, Rochelle Mathews, defendant's neighbor, heard a woman screaming for help and that she was being raped. Ms. Mathews went into the hallway where she observed other neighbors gathered due to the commotion coming from the defendant's apartment. The witness went to defendant's apartment and asked him what he was doing, to which he replied to come back later. She returned to her apartment and called Jameal and explained he should come over because the defendant was beating someone. Ms. Mathews returned to the defendant's apartment a second time. This time the defendant opened the door. Ms. Mathews observed the defendant standing behind the door, without a shirt on. She also saw Tracie standing in the apartment with bruises on her face wearing a skirt, sandals and a bra. This sight scared the witness and she ran back to her own apartment followed by Tracie, who knocked on her door, screaming for help. Ms. Mathews let Tracie in and called Jameal again to come over. Ms. Mathews testified that Tracie had a black eye, her nose was bleeding, she was complaining about her pelvis hurting, and had a bite on her back and scratches all over her neck. Jameal arrived and attempted to calm Tracie down. He then left and returned with Tracie's shirt. Ms. Mathews called the police and an ambulance. 5 Cleveland Police Officer Maureen Fellows testified that she answered the call of a woman being raped on the date in question. The officer observed bruises on Tracie's eye and scratches on her neck. Joseph Serowick, a serologist from the Cleveland Police Scientific Investigation Unit, testified that he tested the victim's blue panties and a skirt which tested positive for semen. The victim's shirt and bra tested positive for blood. The defendant testified on his own behalf that the sex with Tracie was by mutual consent after drinking and smoking cocaine together. Defendant claimed that the victim's injuries were the result of a fight when she tried to leave with defendant's $400 which he retrieved. On cross-examination, the defendant denied Maurice Gee ever came to his apartment. The defendant had no reasonable explanation as to how semen was on Ms. Kern's skirt, since they were supposedly undressed when they had sex. Nor could he explain how blood was on her bra, if Ms. Kern had all of her clothes on when the fight ensued. After a jury trial in October 1989, defendant was convicted of four counts. On October 12, 1989, the trial court granted a post- verdict acquittal on count four (gross sexual imposition) and sentenced defendant to concurrent terms of twelve to twenty-five years on count one (rape); ten to twenty-five years on count two (kidnapping);and eight to fifteen years on count three (felonious assault). 6 On direct appeal, this Court affirmed defendant's convictions in State v. Edwards (July 3, 1991), Cuyahoga App. No. 58783, unreported. On September 1, 1992, we denied defendant's motion to file a delayed appeal to the Ohio Supreme Court. Defendant was instructed to refer his request to the Ohio Supreme Court. On June 14, 1993, defendant, represented by attorney Michael Troy Watson, filed a motion for new trial based on newly discovered evidence. The basis for the allegation of newly discovered evidence was an affidavit signed May 15, 1993 by Tracie Kern (aka Currant), the victim, recanting her original trial testimony. On October 12, 1993, Ms. Kern signed another affidavit (Ex. A- 1), stating in summary, as follows: she maintained that the statements contained in her affidavit dated May 15, 1993 were false; Pawnee Taylor, defendant's mother, contacted Ms. Kern by phone approximately eight months following the trial asking her to recant her trial testimony; Ms. Kern refused; Mrs. Taylor contacted Ms. Kern again in 1991; again, Ms. Kern refused to change her testimony; in April 1993, Ivory Welch contacted Ms. Kern and stated that Ms. Taylor was willing to pay Ms. Kern if she agreed to recant; Ms. Kern refused; Mr. Welch called several times, but it was only during the conversation in May 1993 when Ms. Kern was in need of money, that she agreed to recant for $3,000; Ms. Kern was given $400 up front and a verbal agreement was reached for $100 per month thereafter; Ms. Kern signed the affidavit without reading it, per Mr. Welch's instructions, and was given a copy; after reading its contents, Ms. Kern protested to no avail; Ms. Kern then 7 contacted the prosecutor and told him what had transpired; Ms. Kern then gave another affidavit to the prosecutor's office on October 12, 1993 stating the above, and maintaining she had told the truth at trial. On February 24, 1994, Attorney Michael Troy Watson withdrew as counsel of record, defendant was found to be indigent and Attorney David Doughten was assigned to represent him. On March 25, 1994, after conferring with the defendant and other defense witnesses, Attorney Doughten informed the court that the motion for new trial filed by Attorney Watson had not been filed properly pursuant to Crim.R. 33. In addition, Attorney Doughten stated to the court that he would not be a party to any fraud on the court, and refused to handle the motion for new trial. At the court's suggestion, the defendant withdrew his motion. However, Attorney Watson renewed his motion for leave to file the motion for new trial on July 20, 1994, which was granted. On October 6, 1995, a hearing on the motion for new trial commenced. During that hearing, counsel attempted to introduce videotaped statements of two witnesses who were unable to attend the hearing. The trial court denied admission of this evidence on the State's objection due to failure to notify the State and failure to allow the State to cross-examine the witnesses. (Oct. 6, 1995 Tr. at 3-4). At the hearing on October 6, 1995, Quemire Thornton, defendant's aunt, testified that she knew the victim's reputation in the neighborhood to be that of a strawberry, a euphemism used 8 to describe a person who exchanges sex for drugs. Ms. Thornton testified she called the victim and the victim denied being raped, but stated defendant had slapped her around. (Oct. 6, 1995 Tr. at 30-35). Maurice Gee, the pizza delivery man who testified at the original trial, also testified at the October 6th hearing. He stated that he had been contacted by someone from Attorney Watson's office; that he did not witness the rape, nor did he now recall Ms. Kern's assault. On cross-examination, it was elicited that Mr. Gee's hearing testimony was consistent with his trial testimony, as he never testified that he saw a rape or assault and could not recall what he heard or what he saw. (Oct. 6, 1995 Tr. at 48-54). The hearing was continued following Mr. Gee's testimony. On December 19, 1995, the new trial hearing resumed. Attorney Watson again argued for admission of the videotape statements of two witnesses what were not subject to cross-examination by the State. The State again objected based on failure to adequately notify the State of the time of the deposition. The trial court denied admission of the videotapes based on failure to arrange an agreed upon time to have the State present. Pawnee Taylor, defendant's mother, testified that Ms. Kern stated that she and defendant had a confrontation and she was going to fix him for putting his hands on her. The witness testified that Ms. Kern stated that she and defendant had a fight about money, had consensual sex, and she was upset that she had not received any money from Victims of Crime Compensation. Ms. Taylor 9 additionally testified that Ms. Kern had told other people in the neighborhood that she had not been raped. (Dec. 19, 1995 Tr. at 27, 34-35). On cross-examination, the defendant's mother admitted that she had given the victim, Tracie Kern, money by way of an investigator, Ivory Welch, in exchange for an affidavit from the victim recanting her trial testimony. It was further elicited that the witness had told defendant's previous attorneys back in 1988, prior to trial, that Ms. Kern allegedly had stated she had not been raped. On re-direct, Pawnee Taylor testified that the victim instructed her what to put in the affidavit of May 13, 1993, and Ms. Taylor obliged; that this information (the alleged fact that a rape had occurred) had been provided to the State prior to the affidavit of May 15, 1993; that Ms. Kern told her that the reason she recanted the recantation by way of the affidavit of October 12, 1993 was due to threats from the prosecutor of being placed in jail. (Dec. 19, 1995 Tr. at 40-49). Defendant Edwards testified that while incarcerated for the instant offenses, he notified the prosecutor by letter that the victim wanted to change her testimony that she had not been raped, kidnaped or feloniously assaulted. This information was discovered by defendant approximately 18 months to two years following his conviction. The affidavit was obtained from Ms. Kern in 1993 and it was immediately forwarded to the trial court. Defendant testified that after the December 1995 hearing, he spoke to Tracie Kern, she was aware that he wanted her to appear in the trial court 10 for the motion for new trial hearing, but was in fear of the prosecutor. (Jan. 16, 1996 Tr. at 20-29). On February 16, 1996 the new trial hearing resumed and Ms. Kern was in attendance. Defense counsel requested a voir dire of Ms. Kern concerning the prosecutor's contacts with her. The trial court questioned Ms. Kern concerning her trial testimony. Ms. Kern testified that the prosecutor told her to tell the truth and advised her of the possible questions she may be asked during the instant hearing. (Feb. 16, 1996 Tr. at 48). Ms. Kern testified that: (1) she never made any of the statements contained in the recanting affidavit of May 15, 1993; (2) the statements were already written in the affidavit when presented for her signature by Ivory Welch; (3) she was not allowed to read the entire affidavit prior to signing; (4) she read the May 13, 1993 affidavit after Mr. Welch left her a copy; (5) she contacted Prosecutor Grays and gave another affidavit after she realized she did not agree with the statements in the affidavit of May 13, 1993. Prosecutor Grays did not inform her of the possible legal ramifications of giving the October 12, 1993 affidavit. Everything in the October 12, 1993 affidavit was true and the statements on the May 13, 1993 affidavit were lies. Ms. Kern denied speaking to anyone about the defendant's conviction and stated that anyone who said she had was lying. Further, Ms. Kern denied telling anyone that the rape had not occurred. (Feb. 16, 1996 Tr. 50-98). 11 The new trial hearing was continued on March 28, 1996, at which time the second deposition of Bessie DeBerry, taken February 23, 1996, was offered and received in evidence without objection. (March 28, 1996 Tr. at 10-12). Ms. DeBerry testified that, while sitting on her porch, she overheard Ms. Kern tell another girl walking down the street that "I wasn't raped. *** I was just in it to get the money." (DeBerry Dep. at 9). In its opinion overrulinh the motion for a new trial, the trial court found that "[t]he deposition of Bessie DeBerry lacked substantial definiteness ***." (Judgment Entry, June 14, 1996). On July 15, 1996, defendant filed an appeal of the denial for a new trial to this Court. We will address Assignments of Error I and II together as they both address the issue of recantation as grounds for a new trial. I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED A MOTION FOR A NEW TRIAL. II. THE TRIAL COURT ERRED WHEN IT EXCLUDED RELEVANT EVIDENCE OFFERED TO PROVE THAT MS. KERNS [SIC] RECANTED HER RECANTATION BECAUSE SHE WAS THREATENED WITH PROSECUTION FOR HER PERJURY AT MR. EDWARDS' TRIAL. This appeal presents the issue whether the trial court abused its discretion in denying defendant's motion for a new trial on a claim of newly discovered evidence. The new evidence is alleged to be the May 15, 1993 affidavit of the victim recanting her original trial testimony that she was raped and assaulted by defendant. This case has the unusual twist that the affidavit recanting the original testimony was subsequently retracted or recanted by a second affidavit (October 12, 1993) and the testimony 12 of the victim at the February 16, 1996 hearing in which she stuck to her original trial testimony that she was raped and assaulted. Upon consideration of the whole record, we find no abuse of discretion in the trial court's denial of a motion for a new trial. Crim.R. 33(A)states in pertinent part as follows: RULE 33. New Trial (A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: (1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial; (2) Misconduct of the jury, prosecuting attorney, or the witness 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. *** As a general rule, a motion for a new trial is granted where the defendant shows that he was unavoidably prevented from discovering the evidence which is the basis of the motion during the course of trial. State v. Pinkerman (1993), 88 Ohio App.3d 158; Sta te v. Gray (April 13, 1995), Cuyahoga App. No. 67574, unreported. The evidence must have been the type that would have produced a different result at trial. Furthermore, the Ohio Supreme Court has held: 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 13 that the new evidence (1) discloses a strong possibility 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, syllabus. A motion for new trial pursuant to Crim.R. 33(B) is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, syllabus. An abuse of discretion connotes that the court's attitude was unreasonable, arbitrary or unconscionable. State v. Gray, supra; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Defendant maintains the May 15, 1995 affidavit of the victim recanting her trial testimony warrants a new trial. On the issue of whether recanted testimony warrants a new trial, it has been held: Where a new trial is sought upon the ground that a witness subsequently stated that he gave perjured testimony, the question is, when did the witness tell the truth? Recantation by an important witness of his or her testimony at the trial does not necessarily, or as a matter of law, entitle the defendant to a new trial. The determination of such matters rests in the sound discretion of the trial court, whose action will not be set aside except for clear and manifest abuse. State v. Pirman (1994), 94 Ohio App.3d 203, citing State v. Curnutt (1948), 84 Ohio App. 101; Gray, supra; and State v. Walker (1995), 101 Ohio App.3d 433, 435. 14 Newly discovered evidence which purportedly recants testimony given at trial is looked upon with the utmost suspicion. State v. Germany (Sept. 30, 1993), Cuyahoga App. No. 63568, unreported, citing United States v. Lewis (C.A.6, 1964), 338 F.2d 137, 139, quoting United States v. Trouche (C.A.2, 1954), 213 F.2d 401, 403. Thus, a motion for a new trial should only be granted when the court is reasonably well satisfied that the trial testimony given by a material witness was false. Id. Defendant argues that the victim's affidavit of May 15, 1993, recanting her trial testimony is the one that should be believed, thus requiring a new trial. Defendant states that there was no financial consideration given for that affidavit and thus it was given freely. This ignores the testimony of Pawnee Taylor, defendant's mother, who testified that she gave money to Ivory Welch to give to Ms. Kern. This argument is entitled to little or no weight because it is extremely unlikely that defendant's mother gave the money without a quid pro quo, i.e., the recantation. Defendant further argues in support of his assignment of error that Ms. Kern retracted her recantation out of fear of the prosecutor. He supports this argument through his own self-serving testimony as well as that of his mother. Ms. Kern's explanation for giving the recantation of the recantation affidavit dated October 12, 1993 was due to the fact that defendant's mother, Mrs. Taylor, failed to give Ms. Kern all of the money she was promised, once Mrs. Taylor had the affidavit 15 dated May 15, 1993, recanting her trial testimony. It had nothing to do with any alleged threats by the State. Ms. Kern's explanations for both affidavits are far more plausible than those of the defendant. It should be noted that Ms. Kern subjected herself to criminal charges for accepting a bribe to change her trial testimony. Nevertheless, she readily admitted her crime, after realizing she had been scammed by defendant's operatives. Defendant contends that the trial evidence merely corroborated Ms. Kern's injuries and the rape. The victim's testimony was the best evidence corroborating the crimes beyond a reasonable doubt. Ms. Kern testified that defendant punched her, bit her and raped her. She shouted for help. This testimony was corroborated at trial by Mrs. Mathews and Mr. Gee who heard her screaming for help and that she was being raped. Mathews observed Ms. Kern's injuries soon after the attack. Mr. Gee testified at trial that he heard sounds like blows being issued coming from defendant's apartment. Mr. Gee's post-trial testimony was not inconsistent with that given at trial. The unusual set of circumstances presented by this case was primarily for the trial court to judge. He presided at the original trial and gave defendant repeated opportunities through four new trial evidentiary hearings to present his best case for a new trial. The trial judge was uniquely situated to determine who was telling the truth here and which recantation rang true. We 16 find no abuse of discretion in overruling the motion for a new trial. Defendant further argues that exclusion of testimony by Pawnee Taylor and defendant alleging that Ms. Kern recanted her recantation out of fear of prosecution prejudiced defendant thereby requiring a new hearing on the motion for new trial. This is without merit. The testimony defendant states was not admitted by the trial court, was, in fact, admitted. (Jan. 16, 1996 Tr. at 35- 36; Dec. 19, 1995 Tr. at 46-47). Pursuant to Evid.R. 103 [E]rror may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected and *** in case the ruling was one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Defendant failed to demonstrate that the exclusion of certain testimony relating to allegations that Ms. Kern feared prosecution affected one of his substantial rights. As stated previously, Ms. Kern testified at length that she did not fear the prosecutor and that she understood she could be charged with a crime if her testimony at the hearing warranted it. Ms. Kern nevertheless testified that she accepted a bribe to change her testimony, evidence of a crime. Moreover, the excluded evidence merely attacked Ms. Kern's credibility. Evidence which attacks a witness' credibility or impairs the reliability of a witness does not require the granting 17 of a new trial. State v. Tijerina (1994), 99 Ohio App.3d 7; State v. Barber (1982), 3 Ohio App.3d 445. The trial court did not err by excluding the evidence in question and thus a new hearing is not required. This assignment of error is overruled. Judgment affirmed. 18 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 Court of Common Pleas 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. DYKE, J., and ROCCO, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .