COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72892 STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND ALVIN KING : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT : JUNE 4, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas Case No. CR-248490 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Steven A. Dever, Esq. Assistant Prosecutor The Justice Center 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 For defendant-appellant: Michael A. Partlow, Esq. Morganstern MacAdams & Devito 400 Burgess Building 1406 West Sixth Street Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, J.: Alvin King, defendant-appellant, appeals from the judgment of Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-248490, in which the trial court denied defendant-appellant's motion for new trial pursuant to Crim.R. 33 without conducting an evidentiary hearing. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. On September 5, 1990, defendant-appellant was convicted by a jury of aggravated murder, attempted murder and aggravated robbery with attendant felony murder and firearm specifications. A mitigation hearing was conducted after which defendant-appellant was sentenced to a term of life imprisonment with parole eligibility after serving thirty years to be served consecutively to one three-year term of actual incarceration for a firearm specification. The aggravated murder convictions were merged into one count as were all the firearm specifications. Defendant- appellant was also sentenced to serve two terms of ten to twenty- five years on the remaining attempted murder and aggravated robbery offenses to be served concurrently to the aggravated murder sentence. Defendant-appellant's conviction was affirmed by this court on direct appeal in State v. King (Feb. 25, 1993), Cuyahoga App. No. 61040, unreported. In its opinion, this court set forth the factual and procedural basis for the convictions. Essentially, the evidence demonstrated that defendant-appellant and co-defendant Charles -3- Outlaw shot Leon Glenn and Tony Ross in a parked van during a purported drug transaction and stole $28,000.00 in cash from the victims. Tony Ross died two days later as a result of a gunshot wound to his head. Defendant-appellant maintained that, while he was part of the purported drug transaction, he was not involved in the shootings or robbery. Defendant-appellant maintained that he had left the van looking for his drug supplier and, when he returned, the van and its occupants had gone. Defendant-appellant maintained further that he took the $28,000.00, which he had in his possession for purchase of drugs, and eventually proceeded to his girlfriend's home where he spent the night. Defendant-appellant testified that he had placed the money in his car that night but when he returned the next morning, the money was missing. Subsequent to this court's denial of defendant-appellant's direct appeal, defense counsel received information that co- defendant Charles Outlaw, who had been tried separately from defendant-appellant, was now willing to confess that he had shot both Leon Glenn and Tony Ross and defendant-appellant had not been present when the shooting occurred. On April 26, 1994, Outlaw executed a written affidavit to that effect. Outlaw's affidavit provided in pertinent part: *** 4. That when Alvin King left the van to complete the drug transaction for the final time, Leon Glenn and Tony Ross became extremely agitated when Alvin King did not return to the van with the cocaine or their money in a reasonable amount of time. -4- 5. That Leon Glenn and Tony Ross both told me that they would kill me if Alvin King did not return to the van soon thereafter. 6. That Tony Ross pulled a gun out of his clothing and, in defense of my life, we struggled for it and I got control of it. Tony Ross kept trying to get the gun back from me and I shot him. 7. That after shooting Tony Ross, I quickly moved towards the sliding door of the van at which time I noticed Leon Glenn moving to retrieve a weapon and in what I perceived to be in defense of my life, I shot Leon Glenn. 8. That I shot both Tony Ross and Leon Glenn because both men had threatened my life. I did, in fact, fear for my safety and life and both men actually attempted to draw weapons (firearms) with which to cause me physical harm. 9. That after the shooting incident in the van, I left the van and went to a friend's house nearby. 10. That Alvin King was not present at the time I shot both Tony Ross and Leon Glenn, nor did Alvin King participate in and/or assist me in any way in the shooting incident described herein. 11. That I informed various people of Alvin King's innocence concerning the shooting incident described herein, one of which was Attorney Charles K. Webster who represented Alvin King at his trial. 12. That I informed Attorney Webster of Alvin King's innocence, in relation to the shooting incident described herein, prior to Alvin King's trial. 13. That on the advice of my attorney, Jerry Milano, I would not testify at Alvin King's trial, nor would I give any further statements concerning the shooting incident described herein; this because King's trial preceded my own. * * * Similarly, defendant-appellant's trial counsel executed and submitted an affidavit in which he confirmed that he had spoken with Charles Outlaw prior to defendant-appellant's trial. Defense counsel maintained further that, while Outlaw did indicate that -5- defendant-appellant was not involved in the shooting, he did not, at any time, implicate himself in the shootings. Outlaw also indicated that he would invoke his Fifth Amendment Right not to testify if he were called as a witness at defendant-appellant's trial. On January 25, 1995, defendant-appellant filed a motion for a new trial pursuant to Crim.R. 33. Defendant-appellant also requested a hearing on the motion. The motion for new trial was based upon the attached affidavit of Charles Outlaw in which he maintained that he had shot the two individuals in question in self-defense. Defendant-appellant also submitted a supplemental memorandum in support of the motion to which the aforementioned affidavit of defense counsel was attached. The record reflects that on June 25, 1996, and March 20, 1997, respectively, the trial court scheduled two hearings on the motion. On June 23, 1997, the trial court denied defendant-appellant's motion for a new trial. On July 22, 1997, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. The instant appeal follows. Defendant-appellant's first assignment of error states: I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, TO THE PREJUDICE OF THE APPELLANT, BY DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL PURSUANT TO CRIMINAL RULE 33. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, TO THE PREJUDICE OF THE APPELLANT, BY FAILING TO GRANT THE APPELLANT AN EVIDENTIARY HEARING CONCERNING HIS MOTION FOR A NEW TRIAL. -6- Having a common basis in both law and fact, this court shall consider defendant-appellant's first and second assignments of error simultaneously. Defendant-appellant argues, through his combined assignments of error, that the trial court abused its discretion by denying his motion for a new trial. It is defendant-appellant's position that, in this case, the affidavit of co-defendant Charles Outlaw in which he admits to shooting Glenn and Ross in self-defense and exonerates defendant-appellant, would clearly alter the result if a new trial were conducted. Defendant-appellant argues further that, in light of the fact that Outlaw was unavailable to testify at trial given his intention to assert his Fifth Amendment privilege against self-incrimination, his affidavit clearly constitutes newly discovered evidence pursuant to Crim.R. 33. At a minimum, defendant-appellant maintains that he presented sufficient evidence to necessitate that an evidentiary hearing be conducted. Crim.R. 33, which governs a motion for a new trial, provides 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: * * * (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 therefore, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavit, the court may -7- postpone the hearing of the motion for such length of time as is reasonable under the circumstance of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses. A trial court's decision to grant or deny a motion for a new trial is not reversible on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St. 3d 71, 564 N. E. 2d 54, syllabus. An abuse of discretion exists where the record demonstrates that the trial court's attitude is unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St. 3d 410, 413, 575 N. E. 2d 167; State v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N. E. 2d 144. The decision to grant a motion for a new trial is an extraordinary measure which should be used only when the evidence presented weighs heavily in favor of the moving party. State v. Otten (1986), 33 Ohio App. 3d 339, 340, 515 N. E. 2d 1009; State v. Moore (Feb. 19,1998), Cuyahoga App. No. 71995, unreported. In State v. Petro (1947), 148 Ohio St. 505, 76 N. E. 2d 370, syllabus, the Ohio Supreme Court set forth the criteria that must be established in order for a trial court to grant a motion for a new trial in a criminal case based upon newly discovered evidence. The defendant must demonstrate that the new evidence: (1) is likely to change the result if a new trial is granted; (2) was discovered after trial; (3) could not in the exercise of due diligence have been discovered before trial; (4) is material to the issues; (5) is not merely cumulative to the former evidence; and (6) does not merely impeach or contradict the former evidence. Id. -8- In this case, a review of the affidavit of Charles Outlaw demonstrates that the newly discovered evidence set forth therein does not satisfy the necessary requirements to warrant the granting of a new trial. First, it is not clear that Outlaw's testimony, if presented, would have changed the result of a new trial given the testimony of one of the victims, Leon Glenn. Mr. Glenn testified during defendant-appellant's trial that he observed defendant- appellant fire a weapon at his head causing a gunshot wound to his face, then reach into the van and take approximately $28,000.00 and flee the scene. (T. 157-159). It is also undisputed from the record that Tony Ross, who was also shot in the van, died two days later as a result of head wounds sustained during the commission of the aggravated robbery. Secondly, the evidence presented through Outlaw's affidavit merely impeaches or contradicts former evidence presented in the case, namely the testimony of the surviving victim, Leon Glenn, as well as the testimony of Shawn Ward who was also in the van at the time of the shootings. (T. 110). For the foregoing reasons, it is apparent that the trial court did not abuse its discretion by denying defendant-appellant's motion for a new trial based upon newly discovered evidence. Defendant-appellant's first assignment of error is not well taken. Regarding defendant-appellant's second assignment of error, it is well established that a trial court has broad discretion to determine whether it is necessary to hold an evidentiary hearing on a motion for a new trial. State v. Smith (1986), 30 Ohio App. 3d 138, 139; Toledo v. Stuart (1983), 11 Ohio App. 3d 292. Given the -9- stated deficiencies in defendant-appellant's newly discovered evidence, it is clear that the trial court did not abuse its discretion in failing to conduct an evidentiary hearing on defendant-appellant's motion for a new trial. Defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -10- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. JOSEPH J. NAHRA, P.J., AND JOHN T. PATTON, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .