IN THE COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71004 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES K. STANSBERRY : :: DATE OF ANNOUNCEMENT OF DECISION OCTOBER 9, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-173311 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: ERIKA RITT (#0067009) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID H. BODIKER (#0016590) TIMI TOWNSEND (#0028413) Assistant State Public Defenders OHIO PUBLIC DEFENDERS COMMISSION 8 East Long Street - 11th Floor Columbus, Ohio 43215-2998 SPELLACY, J.: Defendant-appellant James K. Stansberry ( appellant ) appeals 2 from the denial of his motion for leave to file a motion for new trial. Appellant assigns the following errors for review: . THE TRIAL COURT ERRED WHEN IT IMPROPERLY DENIED APPELLANT'S MOTION FOR LEAVE TO FILE A MOTION FOR NEW TRIAL PURSUANT TO CRIM.R. 33(B), THEREBY DENYING APPELLANT HIS STATE AND FEDERAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. . THE TRIAL COURT DENIED APPELLANT HIS STATE AND FEDERAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT IMPROPERLY DENIED APPELLANT A NEW TRIAL PURSUANT TO CRIM.R. 33(A)(2) AND CRIM.R. 33(A)(6). Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On December 20, 1975, Martha Koepp was robbed and murdered while she worked at the 7-Eleven store on East 185th Street in Cleveland. Appellant and co-defendant Glenn Davenport were convicted of the aggravated murder of Koepp and for aggravated robbery in 1982. This court affirmed appellant's conviction but reversed Davenport's conviction for aggravated robbery. State v. Davenport and Stansberry (Sept. 29, 1983), Cuyahoga App. Nos. 46164, 46216, unreported. Davenport was tried and convicted for perjury based upon his alibi testimony during the trial. That conviction was overturned by this court upon appeal. State v. Davenport(Jan. 17, 1985), Cuyahoga App. No. 48198, unreported. In 1984, another co-defendant, Kenneth Koren, was tried and convicted for aggravated robbery and involuntary manslaughter. On July 10, 1984, appellant and Davenport filed for leave to 3 file a motion for new trial. Appellant argued evidence that was presented during the trial of Koren constituted new evidence entitling him to a new trial. The evidence consisted of a police report indicating that only Koren and his girlfriend were involved in the robbery and murder. There also was testimony that numerous police reports existed which were created over several years of investigation which were not made available to appellant and Davenport during their trial. These reports indicated the police investigated other tips and suspects regarding the murder, including the victim's boyfriend, some unknown black youths seen driving on East 222nd Street without their lights on near the time of the offense, and other patrons of the store. Additionally, one of the state's witnesses, Debra Zentack, admitted at Koren's trial to having been convicted of falsification of a police report. Appellant and Davenport also averred another of the state's witnesses, Roger Burress, had lied about when he had last seen Koren during their trial. The trial court held a hearing on the motion. It was denied because the attorney representing appellant and Davenport for the motion was the counsel of record for Koren. The trial court found a conflict of interest existed and excluded that attorney from representing Davenport and appellant. Davenport refiled his motion for new trial in 1985. It was ruled upon in 1992 when the trial court granted the motion. Upon being granted a new trial, Davenport entered a plea of guilty to involuntary manslaughter and received a sentence of seven to twenty-five years. He went before 4 the parole board and was released. On May 28, 1990, appellant filed a motion for post-conviction relief on the grounds of due process and ineffective assistance of counsel. On February 6, 1992, appellant filed a motion to stay the post-conviction relief proceedings in order to request public records to support his case. In 1995, appellant received information that Koren had exculpated appellant during an interview with an Eastlake police detective. On November 20, 1995, appellant filed a motion for a further stay of the post-conviction proceedings. The trial court stayed the proceedings until March 18, 1996. On February 22, 1996, appellant obtained affidavits from Koren and Roger Burress. Koren stated that he was present when Martha Koepp was killed and that the perpetrator was an unknown Hell's Angel. He averred that neither appellant nor Davenport was there. Burress had testified at appellant and Davenport's trial that Koren, Davenport, and appellant visited him right after the murder and that Koren admitted the three were responsible. In his affidavit, Burress recanted his testimony. Burress stated that his testimony was the result of police threats to charge him in Koepp's murder and because of promises of leniency in another unrelated case. On March 15, 1996, appellant filed a motion for a new trial pursuant to Crim.R. 33(A)(2) for prosecutorial and witness misconduct and Crim.R. 33(A)(6) for newly discovered evidence. The Crim.R. 33(A)(2) claim was based on a 1982 oral statement by Koren, Zentack's conviction for falsification, evidence Zentack and two 5 other witnesses were motivated to testify falsely in hopes of collecting a reward, evidence Burress originally only implicated Koren and gave perjured testimony due to police threats and to receive leniency in another case, and evidence from police reports which contradicted the testimony of a police detective. The Crim.R. 33(A)(6) claim was based on Koren's affidavit and evidence from Koren's 1984 trial based on the testimony of Zentack. On June 13, 1996, the trial court denied appellant's motion without hearing. Appellant has appealed from that ruling. On October 23, 1996, the trial court denied appellant's petition for post-conviction relief. That ruling is the subject of a separate appeal before this court. II. In his first assignment of error, appellant contends the trial court erred by denying appellant's motion for leave to file a motion for new trial pursuant to Crim.R. 33(B) as being untimely filed. Appellant's position is that once he has shown he was unavoidably prevented from filing a motion for new trial within the statutory time limits by clear and convincing evidence, he may file his motion at any point and that there are no additional time limits. A Crim.R. 33(A)(2) motion for new trial on the basis of misconduct by the jury, prosecuting attorney, or witness for the state must be filed within fourteen days after the verdict was rendered. A Crim.R. 33(A)(6) motion for new trial due to newly 6 discovered evidence must be filed within one-hundred twenty days after the verdict was rendered. If a defendant does not file a motion for a new trial within these limits, the defendant must show by clear and convincing proof that he or she was unavoidably prevented from filing the motion within the time limits permitted. Crim.R. 33(B). Crim.R. 33 allows a trial court to entertain a motion for a new trial. The allowance or denial of a motion for a new trial is within the competence and discretion of the trial judge. The trial court's decision will not be disturbed absent a showing of an abuse of discretion. State v. Hill (1992), 64 Ohio St.3d 313, 333. Crim.R. 33 does not place any time restriction on when a defendant may file a motion for new trial once unavoidable prevention has been found. See State v. Kiraly (1977), 56 Ohio App.2d 37, 56. However, the dangers of allowing a defendant to delay for literally years before offering his or her exculpatory evidence is readily apparent from the instant case. Some of appellant's evidence in support of his motion for a new trial seeks to cast doubts upon the testimony of two of the state's witnesses. Debra Zentack testified at trial that appellant confessed his involvement in the crime to the then fourteen-year old Zentack two or three days after the murder. She met Davenport in a bar in 1981 or 1982. Zentack questioned Davenport about the shooting. He agreed with the version of events appellant had related to Zentack. Zentack's testimony regarding the conversation in the bar was supported by the testimony of her boyfriend, Gerry 7 Strong. Appellant is now attempting to question both witnesses' veracity and motivation. Most of the evidence appellant uses to support his contention came out during Koren's trial in 1984. Appellant argued this evidence in his 1984 motion for a new trial. Therefore, appellant knew of this evidence twelve years before he filed the motion now before this court. The other evidence was discovered in police reports which appellant obtained in 1992 and 1993. These witnesses now are deceased. If appellant would have presented the evidence shortly after he became aware of its existence, both of these witnesses would have been available to testify in a new trial. The state would be hampered in presenting its case against appellant due to appellant's delay. Similarly, most of the other evidence appellant relies upon to support his motion for a new trial was available to appellant either in 1984 or by 1993. Yet appellant's motion was not filed until 1996. In State v. Nicholson (May 1, 1997), Cuyahoga App. No. 70916, unreported, this court reversed the grant of a new trial due to, in part, the delay of the defendant in filing his motion for four years after discovering his evidence. Without some standard of reasonableness in filing a motion for leave to file a motion for new trial, a defendant could wait before filing his motion in the hope that witnesses would be unavailable or no longer remember the events clearly, if at all, or that evidence might disappear. The burden to the state to retry the case might be too great with the passage of time. A defendant may not bide his time in the hope of receiving a new trial at which most of the evidence against him is 8 no longer available. A trial court must first determine if a defendant has met his burden of establishing by clear and convincing proof that he was unavoidably prevented from filing his motion for a new trial within the statutory time limits. If that burden has been met but there has been an undue delay in filing the motion after the evidence was discovered, the trial court must determine if that delay was reasonable under the circumstances or that the defendant has adequately explained the reason for the delay. That determination is subject to a review by an abuse of discretion standard. Apparently in the instant case, the trial court determined that appellant did not file his motion for leave in a reasonable amount of time after the evidence was discovered. The trial court did consider the recanted testimony. That evidence came to light shortly before the motion was filed. It was the only evidence which was filed in a timely fashion by appellant. The trial court was correct in restricting its review to this evidence as the rest was not timely brought to the trial court's attention. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant argues the trial court abused its discretion when it denied appellant a new trial pursuant to Crim.R. 33(A)(2) and Crim.R. 33(A)(6). Appellant contends the trial court failed to use a due process analysis of his arguments of prosecutorial misconduct, failed to assess the cumulative effect of the evidence which was not disclosed to 9 appellant before his trial, and failed to hold a hearing. The only evidence to consider in this assignment of error is the affidavits of Burress and Koren. Where a defendant seeks a new trial based upon the recanted testimony of a witness, the trial court is called upon to determine the credibility of that witness. Recantation by a significant witness does not, as a matter of law, entitle the defendant to a new trial. That determination is left to the sound discretion of the trial court and will not be overturned upon appeal except for clear and manifest abuse. State v. Curnutt (1948), 84 Ohio App. 101. After all, a witness prone to changing his or her testimony is looked upon with the utmost suspicion and must be viewed with strict scrutiny. State v. Bradley (1995), 101 Ohio App.3d 752. The trial court must make two determinations when faced with recanted testimony: (1) which of the contradictory testimony offered by that 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. Toledo v. Easterling (1985), 26 Ohio App.3d 59. Koren testified at his trial that he was not present at the time Koepp was murdered but had bought narcotics from her earlier in the night. In his affidavit filed in support of appellant's motion for new trial, Koren avers he was present when Koepp was killed. In the transcript of Koren's interview with an Eastlake police detective, Koren stated that an unknown Hell's Angel biker was responsible for the robbery and murder. Neither appellant nor 10 Davenport was present at the store when the crime was committed. Burress also filed an affidavit in which he stated that Koren came to Burress's home after the killing. Koren was not with appellant and Davenport as Burress had testified to at the various trials. Koren confessed to Burress that he had robbed and shot Koepp. Burress averred that the reason he implicated appellant and Davenport was because the police showed Burress a statement supposedly made by Davenport which said Burress was involved in the murder along with Koren. Additionally, the police told Burress he would be charged with the crime if he did not cooperate. The police said Burress would receive probation in another case if he testified against appellant and Davenport. Koren and Burress contradict each other. Koren blames the murder on an unknown third-party while Burress claims Koren admitted his sole responsibility for the crime. Koren is now recanting the testimony he gave at his own trial. His current version of the events of the early morning hours of December 20, 1975, is not supported by Burress's affidavit. The trial court determined Koren's recanted testimony was not credible. That ruling was not an abuse of discretion. Burress blames his allegedly perjured trial testimony on police threats to charge Burress with the crime and the police offer to secure a sentence of probation for Burress in another unrelated case. The affidavit of an investigator filed in support of appellant's motion for new trial states that the prosecutors 11 were aware of the deal Burress received in exchange for his testimony and that the prosecutors threatened to revoke that deal if Burress did not testify that appellant was involved in the Koepp murder. Claims of prosecutorial misconduct pursuant to Crim.R. 33(A)(2) are reviewed pursuant to a due process analysis. A determination must be made as to whether the defendant's substantial rights were materially affected such that the defendant was denied a fair trial. State v. Johnston (1988), 39 Ohio St.3d 48, 59. When it is alleged that the prosecutor knowingly used perjured testimony or should have known of the perjury, a conviction will be set aside if there is any reasonable likelihood that the perjured testimony affected the judgment of the jury. United States v. Agurs (1976), 427 U.S. 97, 103. However, before a due process analysis is undertaken, a trial court must determine whether the witness's claims of prosecutorial misconduct are valid. It is for the trial court to determine which of the contradictory testimony is credible. Toledo, supra. If the trial court does not believe the recanted testimony, then that decision is reviewed pursuant to an abuse of discretion standard. Burress testified at two later trials, Koren's murder trial and Davenport's perjury trial, and essentially testified as he had at appellant's trial. At that time, Burress had been sentenced on the unrelated case and was no longer under any supposed threat of being charged in Koepp's murder. The trial court did not give any credence to the recanted testimony of Burress. That decision was 12 not an abuse of discretion. Because the trial court made the determination that Burress's affidavit that he committed perjury was not credible, there was no need to proceed to a due process analysis. Appellant's second assignment is overruled. Judgment affirmed. 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 appeal 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. 13 JOHN T. PATTON, P.J. and ROBERT E. HOLMES, J.* CONCUR. (Robert E. Holmes, Retired LEO M. SPELLACY Justice of The Ohio Supreme JUDGE Court, Sitting by Assignment) N.B. This 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(B) 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 .