1N TI-IE SUPREME COURT OF OHIO

STATE OF OHIO

Appellee

-vs-

CHRISTOPHER TUCKER

Appellant

On Appeal from theCuyahoga County Courtof Appeals, EighthAppellate District Courtof AppealsCA: 98685

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MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT CHRISTOPHER TUCKER

ROBERT L. TOBIK, ESQ.Cuyahoga County Public DefenderBY: ERIKA CUNLIFFE, ESQ. (COUNSEL OF RECORD)#r 0074480Assistant Public Defender310 Lakeside AvenueSuite 200Cleveland, OH 44113(216) 443-7583(216) 443-3632 FAX

COUNSEL FOR APPELLANT CHRISTOPHER TUCKER

TIMOTHY J. MCGINTY, ESQ.Cuyahoga County ProsecutorTlie Justice Center - 9P` Floor1200 Ontario StreetCleveland, OH 44113(216) 443-7800

COU-NSEL FOR APPELLEE, TI-IE STATE OF OHIO F. b ^ ..;

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TABLE OF CONTENTS

PAGES

WHY TIIIS IS A FELONY CASE OF PUBLIC OR GREAT GENERAL INTERESTAND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ..... .................1

STATEMENT OF THE CASE AND FACTS ................... ............................ ....................2

LAW AND ARGUMENT . ................................................................................................>.6Proposition of Law I:IN THE EVENT A COURT ALLOWS AN EVIDENTIARI' HEARING ON THE APETITION F`OR POST CONVICTION RELIEF, THE CO URT VIOLATESPETITIONER'S RIGHTS TO DUF PROCESS PY_NARROWING THE HEARING'SSCC)PE SO 7HA7' THE PETITIONER IS _7VOT PERh1ITTED TO PRESENT EVIDENCESUPPORTIVG THF_. CREDIBILITY OF THE EVIDENC'E TO WHICH THE HEARI_NG ISA17DRESSED .. ................................................................................................. .. . ..........7

Proposition of Law II:THE TRIAL COUR7` VIOLA2'ES PETITIONER'S RIGI-IT TO DUE PROCESS WHENITDENIES RELIEF NOTWITHSTANDING THE PRESEN7ATION OF NEW EVIDENCEWHICH PROVIDED CREDIBILE SUPPORT FOR HIS LONGSTANDING ALIBI.... 12

CONCLUSION ............... ,;.......................;., ...... .........13

SERVICE .......................................................................................... ... . .... .......13

APPENDIX

Jourrzal Entry Denying Defendant's Post Conviction ..................,..................... ..............A1Journal Entry Appointing the Public Defender on Appeal .......... ....................;.............A2Opinion: Eighth District Court of Appeals

State v. Cha•istopher Tucker CA. 98685, 2013 Ohio 2527, June August 18, 2011...,A3

WHY THIS IS A FELONY CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES ASUBSTANTIAL COlVSTITUTIONAL QUESTION

Chris Tucker was convicted of Aggravated Murder in 2003 based solely on the testimony

of two eyewitnesses. Tucker has always maintained that he did not commit the murder, and that

he was inside the bar when the shooting happened outside of it. Tn the wake of his conviction,

information canle to light that 1) substantiated Tucker's claim at trial; and 2) called into question

the reliability and/or credibility of the prosecution's identification evidence. Mr. Tucker filed

numerous pro se petitions for post-conviction relief and motions for a new trial seeking to

present this evidence - without success.

On November 6, 2008, however, the Eighth District remanded the case for an evidentiary

hearing in liglzt of information provided by D.R., a previously unavailable and undiscovered

witness. If deemed credible, this new evidence demonstrated that it was impossible for Mr.

Tucker to have participated in the 2003 aggravated murder with which he was charged and

convicted. State v. Tucker, Cuyahoga App. No. 90799, 2008 Ohio 5746. Specifically addressing

the new evidence, the Eiglith District observed:

D.R.'s affidavit is competent and obviously more than marginally significant, as it castsserious doubt about the validity of Tucker's conviction. In light of D.R.'s affidavit,which supports Fussell's affidavit recanting his testimony ... we find that the trial courtabused its discretion in finding that Tucker had not demonstrated adequate grounds forpostconviction relief...

Id. at T133 (internal quotations omitted). Accordingly, the Eighth District concluded that Mr.

Tucker's petition raised "a serious due process claim that needs resolution by a hearing." Id. at

5.

On remand, counsel was appointed to assist Mr. Tucker with his litigation. In accordance

with their professional obligations, counsel reviewed the record and undertook a full

2

reinvestigation of Tucker's case. That investigation unearthed a great deal of evidence, some of

which was newly discovered. Other pieces of evidence, however, should have been discovered

but were not due to lapses by trial counsel or by the prosecution's failure to disclose it. In any

event, when counsel submitted the evidence, in support of Tucker's claim, the court refused to

consider any of it. Accordingly, on April 16, 2012, when the hearing took place, it was

unjustifiably limited to D.R.'s testimony exclusively. Petitioner was not allowed to present

evidence that lent credibility to her account.

Not surprisingly, in the wake of the hearing, the judge issued an order rejecting D.R.'s

account, characterizing it as "internally inconsistent" with the statement Mr. Tucker gave to

police; inconsistent with her own affidavit; and "cumulative to the evidence addressed at trial."

(JE, Jun 21, 2012, p. 6) The Eighth District affirmed, confirming that D.R.'s account was not

credible. These findings are simply false- they have no record support. Moreover, it was neither

necessary nor proper for the court to consider D.R.'s account in isolation. There was evidence

available to support it. What the trial court and the Eighth District did here was invoke

procedural sophistry to obfuscate the very truth-finding process that an evidentiaiy hearing is

supposed to foster.

This Court needs to take this case to establish that when a petitioner, who maintains that

he is wrongfully accused, is finally afforded an evidentiary hearing to address his constitutional

challenges, the court is not permitted to arbitrarily and unfairly restrict petitioner's ability to

present the evidence that supports those claims.

3

STATEME?NT OF THE CASE AND FACTS

On May 28, 2003, a Cuyahoga County grand jury issued a two count indictment charging

Christopher Tucker with aggravated murder and having a weapon under disability, along with a

three year firearm specification. The charges stemmed from the May 22, 2003 shooting of

"I'imothy Austin, which occurred on the sidewalk in front of Whatley's Bar on Euclid Boulevard

in East Cleveland. Christopher Tucker was at Whatley's that night drinking with several friends.

Although he denied involvement in the shootirlg, Chris Tucker was charged with the crinle. The

charges were based on inforrnation provided to police by a single alleged eyewitness named

Joseph Fussell, who claimed to have witnessed the incident frozn the other side of the street.

When the matter went to trial in August of 2003, the police had also located another

witness, Nikia Beal, who had been with Austin when he was shot.

The evidence demonstrated that Mr. Tucker and Timothy Austin were among many

patrons in Whatley's Bar on the night of the i:ncident. Both had accompanied different groups of

friend to the drinking establishment. Austin and Ms. Beal left the bar sometime around 1:00 an1.

While the couple stood on the sidewalk in front of the bar, Mr. Austin was approached by a man

who shot him at least six times. Both Fussell and Beal testified at trial that Mr. Tucker was the

man who approached Timothy Austin and shot him.

Mr. Tucker countered that he was inside Whatley's when the shooting occurred and that

he had nothing to do with it. According to Tucker, he had gone to the bar with friends that night

and was still inside when the shots were fired. Stefan King and Lehandro Hill, two of Tucker's

friends, confirmed that Mr. Tucker was in VJhatley's that evening when everyone heard the

shots. Nevertheless, a jury found Mr. Tucker guilty of aggravated murder.

4

The court imposed a sentence of 23 years to life imprisonment. Tucker's convictions

were affrzned on direct appeal. Statc v. Tucker, Cuyahoga App. No. 83419, 2004 Ohio 5380.

Post-Conviction Litigation

On April 22, 2004, Mr. Tucker, actingpro se, filed a Petition for Post Conviction Relief

in the Court of Common Pleas and a Motion for the Appointment of Counsel. He was initially

granted a hearing, but another judge took over the case docket, reconsidered the hearing grant

and dismissed the petition.7 On August 2, 2007, Mr. Tucker filed a successor petition for post-

conviction relief and a motion for leave to file a motion for new trial, based evidence provided

by a new witness, identified as D.R - specifically that 'I'ucker was still in the bar at the time of

Timothy Austin's murder. The lower court judge summarily dismissed those pleadings, but

Eighth District overruled that decision and remanded the matter for an evidentiary hearing in

November of 2008. Before the hearing, the trial court issued the following order concerning its

scope:

THE SCOPE OF THE HEARING WILL BE AS TO THOSE ISSUES IN DEFENDANT'S SECONDMOTION FOR POST CONVICTION RELIEF NOT THE SAME ISSUES PREVIOUSLY DECIDEDBY THE COURT AND AFFIRMED BY THE COURT OF APPEALS, DEFENDANT MAYINTRODUCE EVlDENCE FOR THE LIMITED PURPOSE TO CORROBORATE THEINFORMATION D.R. PROIIIDED,

(JE, February 18, 2009) (einphasis added). In accordance with the parameters set forth in this

order, Mr. Tucker's appointed counsel prepared for the upcoming hearing by investigating the

matter with the pu:rpose of developing evidence to corroborate D.R.'s account.

That effort located four occurrence witnesses - John Blue, Arthur Storey, Khaalis Miller,

and Joe M:cLemore. The information all four provided undercut the eyewitnesses' testimony at

trial. A further interview with Joseph Fussell expanded upon and clarified his previous

` An appeal was not initially taken from that decision, but, on November, 12, 2010, the EighthDistrict allowed one to proceed. The summ:ary dismissal was affirmed on August 18, 2011. This

5

recantation. Maria Zaragoza, a psychologist and professor at Kent State University reviewed the

case file, iNikia Beal's statements to police, and Beal's trial testimony and noted that several factors

should have called the reliability of her eyewitness identification into question. Lastly, Mr. Tucker,

who has consistently proclaimed his innocence, took and passed a polygraph test to that eff-ect.

In motions filed before the hearing, counsel submitted that evidence and asked to present

it along with D.R.'s testimony. On April 13 2012, the court issued an order stating that the scope

of the hearing would address "Petitioner's motion for post-conviction relief and/or motion for

new trial filed August 2, 2007, only." (JE, April 13, 2012, p. 3) (emphasis in original),2

According to the court the new evidence was barred from consideration as res judicata; its

submission was untimely, and it failed to meet the standards under Crim.R. 33(A)(6). (Id. at p. 4)

Evidentiary Hearing

Before the hearing, the court confirmed that its scope would be limited to "D.R.'s

testimony alone and that [the court would] not be considering any [other] material. .., submitted

.." The court then accepted the various submissions Tucker's counsel had provided as a proffer

of what they would demonstrate in support of Tucker's claims, had the court allowed them to

present it.

D.R. testified that she became involved as a witness in this case after seeing Tucker's

photograph in a flier posted at a bar she was patronizing. The flier talked about a shooting that

had occurred at Whatley's bar and noted that the man in the photograph had been wrongf-ully

convicted of the shooting. (Defendant's Ex. A) D.R. remembered that she had been at Whatley's

Court subsequently denied leave to appeal from that decision.2 The August 2, 2007 successor petition was also apro se document. Due to the court's order,even tllough Mr. Tucker was represented by counsel at the hearing, they were forced to litigatethe matter as if they were not lawyers. Specifically, their efforts were circumscribed by adocument their client prepared approximately four years before they be became involved withthe case.

6

when that shooting had occurred. She had arrived at Whatley's around midnight, expecting to

meet her cousin, Shante Maxwell, there. She had been sitting at the bar for about an hour when

she heard shots fired outside. At that point all or most of the patrons quickly exited the

establishment, her cousin never came. D.R. noticed Tucker sitting at the bar that same night.

Tucker initially caught her attention because he was sitting in fxont of a tabletop video game she

was interested in playing.

Wlien Tucker stood up and walked past her, D.R. asked if he was done with the game, he

responded that he was just going over to the juke box and planned to return. Later, D.R. asked

Tucker to play a song for her. He walked by her more than once over the next hour or so. One

reason D.R. focused her attention on 'Tucker was because she thought him attractive. She had

only one drink while she was at the bar and had not ordered a second before the shooting

occurred.

Several years later, when D.R. saw the flier with Tucker's photograph, his face, along

with the name of the bar, brouglzt her memory back to the incident. D.R. was certain that Tucker

was inside the bar when the shooting happened outside. At the hearing, D.R. testified that the

patrons left the bar in the wake of the shooting. When she followed Tucker and others out on to

the street, D.R. noticed that he had donned a blue Cleveland Indian's jacket. In Tucker's post

arrest statement to police he described the clothes had had worn on the night of the shooting and

told them he was wearing a blue Phat Farm Jacket.

The court denied post-conviction relief and the Eighth District affirmed concluding that

the hearing was properly limited to just the single witness, and that the court's conclusion that

D.R. was "an incredible witness is supported by competent and credible evidence." State v.

Tzicker, 8"' Dist. No. 98685, 2013-Ohio-2527, ^¶ 39 & 45.

7

Mr. Tucker now seeks leave of this C;ourt to appeal that decision.

LAW AND ARGUMENT

Proposition of Law I:

IN TFIE EVENT A COIIRT ALL0 YTjS AN EVIDENTIAR Y HEARI_tVG OiV THE APETITION FOR POST CONVICTION RELIEF, THE COURT VIOLATESPETITIONER'S RIIGHTS TO DUE PROCESS BY NARROWING THE HEARING'SSCOPE SO THAT THE PE TITIONER IS NOT PERMITTED TO PRESENT EVIDEtN'CESLrPf'ORTING THE CREDIBILITY OF THE EVIDENCE TO YVHICH THE HEARING ISADDRESSED.

Chris Tucker did not shoot Timothy Austin. When it ordered an evidentiary liearirzg to

proceed on Mr. Tucker's successor petition for post-conviction relief/motion for new trial, the

Eighth District did so after concluding that the pleadings, based, as they were, on an affidavit of

a credible new witness, cast serious doubt on the validity of Tucker's aggravated murder

conviction. The court also took note of two critical things: 1) the fact that "the two eyewitnesses

who testified against Tucker at trial, and upon whose testimony this court relied in affirming

Tucker's conviction, have arguably recanted their testimony;" and 2) the judge who presided

over the trial "heard the testimony of the two eyewitnesses" and, faced with the possible

recantations, "concluded that the evidence was credible enough to warrant a hearing" only to be

overruled by his successor judge. State v. Tucker, 2008 Ohio 4092,^¶ 9-13, and'^ 29.

Accordingly, the court resolved that a reasonable factfinder could have found Tucker not

guilty of murder if D.R. had testified at trial that Tucker was inside the bar at the time of the

shootings. Id. atT^ 29. In reaching this conclusion, the court considered D,R,'s affidavit within

the context of the entire case. Specifically, it noted that D.R.'s affidavit "supports Fussell's

affidavit recanting his testimony." Id. at ¶ 33.

Nevertheless, at the evidentiary hearing that followed the aforementioned decision, the

trial court insisted on viewing D.R.'s in isolation. By limiting testimony at the evidentiary

8

hearing to that of D.R., but refusing to allow Tucker to provide any evidence corroborating her

account, the trial court necessarily weakened the evidence she provided. After all, when she

testified, her credibility, and the reliability of her account, was undoubtedly in play -- the

prosecutor's cross examination covers some 40 pages of transcript - all in an attempt to impugn

her credibility. Yet Tucker was forbidden from using the tools he had available to counter that

assault.

The court's decision to limit this hearing's scope also pitted D.R.'s testimony against the

evidence at trial as if nothing had developed since to undermine it: as if Joseph Fussell hadn't

finally admitted to himself, and everyone else, that he was too high on PCP that night to have

seen anything; as if new counsel hadn't been appointed, reinvestigated the case from top to

bottom, and torn the prosecution's original theory of the case from its roots. At a minimum, the

court should have admitted any evidence impacting on D.R.'s credibility, including any

information addressing the current status of the eyewitness accounts. Without that information,

there wras no way to cogently evaluate D.R.'s impact on the overall case.

New Evidence

Accord.ingly, the lower court's constriction of Mr. Tucker's evidentiary hearing was not

only illogical but, it violated the letter and spirit of order remanding the case. The court even

mandated the appointment of counsel to assist Mr. Tucker with the hearing. In the wake of that

appointment, and in accordance with their professional duties, counsel investigated Mr. Tucker's

case. That investigation unearthed new evidence that supported D.R.'s account. The new

evidence also undermined the validity of the original prosecution, the State's theory of what

precipitated the shooting, and the evidence allegedly underpinning it. Counsel were prepared to

9

present this evidence following L7.:R.'s testimony to demonstrate that her account was credible.

Had they been able to do so, those witnesses would have testified as follows:

Joseph Fussell: Mr. Fussell was a critical prosecution witness, who first recanted his

testimony in 2004, claiming he had mistakenly identified Fussell as Austin's shooter. More

recently, Fussell has explained that he had been high on PCP when the shooting happened, and

ducked behind a car after the first shot. He believes he was wrong in identifying Tucker. Fussell

only thought Tucker had done the shooting because as the gunfire smoke cleared afterward,

Fussell saw Tucker walking calmly to his car.

Khaalis Miller: Mr. Miller was with Fussell when the shooting happened.3 Miller

confirms Fussell's recollection that tl-ie two were high on PCP that night. Miller also recalled,

that it was dark at the time, and both men were on the other side of the street from the bar, and

ducked for cover when the shooting started. Miller would testify that neither he nor Fussell

would have been able to see the shooter from where they took cover during the shooting.

John Blue: Mr. Blue was standing outside and across the street from Whatley's bar

during the shooting. Blue would testiiy that he saw 2 or 3 people approach and shoot Austin

before driving away in a green Chevrolet Blazer;

Arthur Storev: Mr. Storey would testify that while standing outside of Whatley's bar, he

heard three men arguing near the front of the bar and then saw one of the men pull a gun and

shoot it. Mr. Storey described this man as very tall, heavy set, with his hair braided in comrows.

Mr. Storey would testify that the man looked nothing like Mr. "1'ucker.

$ That Miller was with Fussell during the shooting is confirmed by the trial transcript, whereFussell testified that he was with his cousin "Colese Miller" by the gas station across from thebar that night. (Tr. 242)

10

Joe McLenZore: Mr. McLeniore was tending bar at Whatley's that night. McLemore

witnessed the shooting. He would testify that the shooter had brown skin and was taller than

Tiznothy Austin -':VIr. Tucker is not brown skinned and shorter than Timothy Austin. Before the

shooting, Mr. McLemore saw the shooter walk across the street from the bar, retrieve a gun from

a car, return to the sidewalk in front of the bar where Austin was standing, and shoot him.

According to McLemore, he provided this information to the police and identified the man he

believed was the shooter on the aftenloon following the shooting - the man he identified was not

Mr. 'I'ucker.

Marza7aragoza, Ph.D.: Dr. Zaragoza is a professor of psychology at Kent State

University and an expert in interrogation tactics and how they impact memory. She has reviewed

eyewitness testimony in this case and would testify to their reliability based upon scientifically

verifiable circumstances,

Keith Lowry: Mr. Lowry is a Certified Polygraph Examiner with Security & Polygraph

Consultants, Inc. Mr. Lowry would testify that he conducted a polygraph examination on Mr.

Tucker on June 22, 2010. That examination followed a lengthy interview during which several

specific issue questions related. to the Timothy Austin shooting were formulated. Mr. Lowry

conducted the test on a Stoelting Ultrascribe Model No. 8033-2882 polygraph, generating four

charts. Mr. Tucker denied involvement in the Austin shooting and in Mr. Lowry's professional

opinion, Tucker was truthful.

This evidence was admissible at a post-conviction/post-trial evidentiary hearing. An

evidentiary hearing must encompass all relevant issues and allow for the presentation of all

relevant evidence if it is to meet the requirements of due process to which the petitioner is

11

entitled. State v. Srrnlin, 69 Ohio St. 3d 105, 107, 1994-Ohio-508 (1994); Chrzmbers v.

Mississippi, 410 U.S. 284, 302 (1973).

'1'he U.S. Supreme Court has stressed that, in collateral litigation context, the court should

consider "all the evidence, old and new, incriminating and exculpatory, without regard to

whether it would necessarily be admitted under "rules of admissibility that would govern at

trial." House v. Bell, 547 U.S. 518, 538 (2006); quoting Schlup v. Delo, 513 U.S. 298, 327-328

(1995). See, accord, State v. Wright, 67 Ohio App.3d 827, 831-32 (2"d District 1990)

(Evidentiary hearing should be comprehensive, the trial court must afford the movant an

opportunity to present evidence in support of the motion and affidavit before electing whether to

grant or to deny the motion on the full record before it, including evidence considered at the past

trial).

The only limitation on such evidence should be its reliability. Schlup, 513 U.S. at 328.

Accordingly, the question before the trial court in Mr. Tucker's case should have been - based

on all the reliable evidence before it - How would reasonable properly instructed jurors have

resolved the case had they been made aware of the previously unavailable evidence? Schlup,

513 U.S. at 329; accord. Souter v. Jones 395 F.3d 577 (6`n Cir. 2005) (due process and actual

innocence claims should be resolved based on all the new reliable evidence available). See, also

State v. Barnes, 7 Ohio App. 3d 83 ( 1982); Ohio R. Evid. 101(A) (R.C. 2953.21 does not bar the

use of hearsay)

The new evidence was also improperly characterized in admissible under the res judicatta

doctrine. The evidentiary hearing established that, had D.R. been called as a witness at trial, she

would have testified that Mr. Tucker was inside the bar at the time of the shooting. That account

would have corroborated the testimony of Mr. Tucker and two friends who were there with him

12

that night. None of this new evidence could have been properly characterized as resjudicata.

See, Wright, supra at 831; the doctrine of resjudicata ". .. is not to be applied so rigidly as to

defeat the ends of justice or so as to work an injustice." Washburn v. Senff, Stark

App.No.2002CA00393, 2003-Ohio-4379, ¶ 16, quoting Bauer v. Huntington Nat: Bank (Feb.

10, 2000), Franklin App. No. 99AP-347. Moreover, this Court has made it clear that where a

post-conviction cause of action is supported by evidence theretofore outside the record, the issue

is not subject to the doctrine of res judicata. State v. .S'mith, 17 Ohio St. 3d 98 (1985).

Proposition of Law II.

THE TRIAL COURT VIOLA TES PE7'ITIONER `S RIGHT TO DUE PROCESS WHEN ITDENIES RELIEI{' NO1,WITHSTANDING THE 1'RESENTA IION OF NEW EVIDENCEWHIC'H PROVIDED CREDIBLE SUPPORT FOR HIS LONGSTAIVDING ALIBI.

This Court should also accept jurisdiction over this appeal because D.R.'s testimony

provided credible support for Tucker's alibi, and the court's findings to the contrary were

unsupported. The court rejected the idea that D.R.'s account would have impacted Mr. Tucker's

trial because - 1) The court was troubled by D.R.'s inability to identify a (more recent)

photograph of Tucker that had been appended to his successor pro se petition for post-conviction

relief along with her affidavit (filed on August 2, 2007); 2) Her testimony was inconsistent with

Mr. Tucker's statement to police regarding the jacket he wore that night; 3) D.R.'s testimony was

inconsistent with her own affidavit; and 4) The evidence she provided was cumulative.

None of these findings accurately state the record, nor do they justify rejecting the

witness's testimony on credibility grounds. The independent nature of D.R.'s involvement in

this matter clearly renders her account credible, far from cumulative -- and likely decisive.

13

CONCLUSION

For the foregoing reasons, Petitioner-Appellant Christopher 'Tucker respectfully asks this

Court to accept jurisdiction over this matter and reverse the Eighth District's decision to affirm

the lower court denial of his petition for post-conviction relief and motion for new trial.

Respectfiilly Submitted,

^- ^

ERIKA B. CUN LIFFE ^J 062'^ ^ ^- -Counsel for Appellant

CER'TIFICATE OF SERVICE

A copy of the foregoing Memorandum In Support of Jurisdiction was served upon Timothy

McGinty, Esq., Cuyahoga Counity Prosecutor, The Justice Center - 9th Floor, 1200 Ontario Street,

Cleveland, Ohio 44113 on this 5th day of August, 2013.

ERIKA B. CUI^TLIFFE ZAssistant Public Defender

CR03437731-ZA 74319009

aURT OF COMMON PLEASAHOGA COUNTY, OHIO

20tJ .IW 21 A

STATE OI~' aHIO GERP,Lt1 ir .FU R' T JUDGE EILEEN T. GALLAGHERCLERK 0F C0 TS

Plairtta^YAN3GA Co RTy CASE NO. CR 437731))vs

)

C:HRISTOPHEP. TUCKER ) FINDINGS OF FACT AND) CONCLUSIONS OF LAW

Dfendant. )

Eileen T. Gallaglter. J s

This matter came before the Court on Petitioner Tucker's petition to set aside or vacate

judgment of conviction O.R.C. §2953.21; pursuant to Crim.R. 33, newly discovered

evidence/motion for new trial and the State's brief in opposition.

On August 2, 2007, Petitioner filed for his second petition for post-conviction relieflmotion

for new trial. In his second petition, Petitioner argued that he had new evidence which contradicted

.the State's theory of the case. The "new evidence" consisted of an affidavit from D.R.' averring

that Petitioner was inside Whatley's bar at the time of the shooting.

Hearing held and present in Court were Petitioner Christopher Tucker; defense counsel Paul

Kuzanins and Erica Cunliffe; Assistant Cuyahoga County Prosecutors Kevin Filiatraut and

Katherine Mullin, and the Court Reporter. The Court considered the testimony, exhibits admitted,

credibility, files, records, and the law, and rules as follows.

Findings of Factsf

o D.R. testified that she arrived alone at Whatley's bar between 12:00 a.m. and 1:00 a.m. on

May 22, 2003. She was in the bar less than an hour before she heard gunshots. She was

there to meet her cousin for drinks and to catch-up with friends. This was her first time at

I In her affidavit "D.R." asked that her name be kept under seal and as such she will be referred to by her initialsD.R. to protect her identity.

A - 1

Whatley's bar. She testified there were 34-40 people in the bar. She did not use drugs that

evening and had ordered her first and only drink of the night when she arrived at Whatley's.

During the time from 2047 through 2009, she testified that she would socialize

approximately four times per month at bars to meet and talk to members of the opposite

sex. Her cousin never arrived that night to meet her.

* She then testified to the layout of Whatley's. The bar was in the center of the room. Drinks

were served from all sides of the bar. That night she sat at the far end of the bar from the

entrance and on the same side as the jukebox. The jukebox was located in the corner of the

room near the entrance and on the same side of the room that she was sitting on. The

Petitioner was seated near the corner of the bar, facing the front entrance and playing a

video game on the bar. There was a seat in between them; however, she could see

Petitioner's face the entire time as she was waiting to play the video game. D.R. further

testified that Petitioner walked away from the video game and she then asked if he was

done playing. He replied, no, he was going to play some music. She then joked that he

should play a song for her. Her conversation with Petitioner lasted a "split second."

* D.R. recalled she heard guzYshots fired within seconds from the time the Petitioner got up to

play the jukebox. She saw the Petitioner inside the bar walking back towards his seat at the

time of the gunshots. The bar patrons then started to rush out of the bar. D. R. testified she

remembered the Petitioner was in front of her because he wore an Indians jacket with a big

Chief Wahoo on the back. She testified she remembered tlhis because her son at the time

had a sirnilar jacket, She then stated she saw Petitioner cross the street and get into his car.

In regard to the flyer, D.R. testified that in early 2007 she saw a flyer in the Park Avenue

bar. She noticed it because she remembered the face of the male that was pictured on the

flyer. She thought the male may have passed away. Not until she read the flyer regarding

the incident at Whatley's bar did it trigger her memory to connect the picture of the male to

the events at Whatley's 'oar. She kept the flyer approximately one zmmnth before calling the

Prosecutor's Office and another listed contact attorney, Brian Moriarty.

-2-

• D.R. met with Mr. Moriarty and discussed her knowledge of the events which was

transcribed to an affidavit and attached to the flyer she provided, Petitioner's Exhibits A

and E. She identified the picture on Petitioner's Exhibit A as the individual in Whatley's

bar the night of May 22, 2003, at the time of the shooting. When shown State's Exhibit I

which was attached to Petitioner's motion, she testified she had never seen the flyer and

could not identify the person in the flyer.

• Lastly, when questioned as to why she responded to the flyerr, she testified she felt they

were a conceTned family seeking justice, requesting information for a wrongly convicted

individual, and she was concerned that the wrong persorr. was convicted. She further

testified this was important to her as her cousin was kiIled ahd she appreciated when people

spoke up regarding her cousin's case instead of holding it in.

Conclusions of Law-

A motion for a new trial is governed by Crim.R. 33, and the deci"sion to grant or deny such a

motion is within the sound discretion of the trial judge. State v. LaMar, 95 Ohio St.3d 181, 2002-

C?hio-2128, 767 N.E.2d 166, ¶82.

Motions for new trial that are based on newly discovered evidence, such as the ailegednew

evidence presented by the Petitioner, are specifically addressed in Crim.R. 33(A)(6), which

provides, in pertinent part, as follows:

LA) Grounds. A new trial may be granted on motion of the defendant for any ofthe following causes affecting materially his substantial rights:

(6) When new evidence material to the defense is discovered which thedefendant could not with reasonable diligence have discovered and produced atthe trial. When a motion for a new trial is made upon the ground of newlydiscovered evidence, the defendant must produce at the hearing on the motion, insupport thereof, the affidavits of the witnesses by whom such evidence isexpected to be given, and if time is required by the defeztdant to procure suchaffidavits, the court may postpone the hearing of the motion for such length oftime as is reasonable under all the circurnsta.nces of the case. The prosecutingattomey may produce affidavits or other evidence to impeach the affidavits ofsuch witnesses. (emphasis added)

_,,_

A trial court may grant a motion for a new trial based on newly discovered evidence-when

such evidence is material and "could not with reasonable diligence have [been] discovered and

produced at the trial" Crim,R. 33(A)(6). In order to warrant anewtriai based on newl}=.discovered

evidence, the Petitioner must show "that the new 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, 76 N.E.2d 370, at the

syllabus.

The standard for reviewing petitions for post-conviction relief. are set forth in O.R.C.

§2953.21 through §2953.23. Q.R.C. §2953.21 through §2953.23 set forth the means by which a

convicted defendant may seek to have the trial court's judgment or seritence vaca.ted or set aside.

Post-conviction relief allows a petitioner to make a collateral civil attack on his criminal conviction

by filing a petition to set aside the judgment; The statute affords relief from judgment where the

petitioner'S rights in the proceedings that result in his conviction were denied to such an extent the

conviction is rendered void or voidable under the Ohio Constitution R.C. §2953.21(A); State v.

Perry (1967), 10 Ohio St. 2d 175, paragraph four of the syllabus.

Where a petitioner offers evidence outside the record to support his claim, the evidence

must be competent, relevant, and more than marginally significant and "must advance the

petitioner's claim beyond mere hypothesis and a desire for further discovery." State v. Coleman

(Mar. 17, 1993), 1 " Dist. No. C-900811.

The Ohio Supreme Court has held that a trial court should consider all relevant factors

wher assessing the credibility of the affidavits submitted in post-conviction proceedings. Those

factors include whether the judge reviewing the post-conviction petition presided over the trial,

whether the affidavits contain identical language or appear to have been drafted by the same person,

whether the affidavits contain or rely on hearsay, whether the affiants are relatives of the petitioner

or interested in the petitioner's success, and whether the affidavits contradict evidence proffered by

the defense at trial or are inconsistent with or contradicted by the petitioner's trial testimony. State

v. Calhoun, 86 Ohio St. 3d 279,1999-flhio-102.

-4-

In summary the pivotal question is whether, based upon the testimony, exhibits, files and

records pertaining to the proceeding has the petitioner set forth "sufficient operative facts to

establish substantive grounds for relief " Calhoun, paragraph two of the syllabus.

On August 25,2003, in a trial presided over by a previous judge, ajury convicted Petitioner

of Aggravated Murder and the firearm specification. Petitioner entered a plea of no contest to the

Weapon Under Disability count. The trial court sentenced Petitioner to life in prison for

Aggravated Murder consecutive to three years for the firearm violation. The trial court also

sentenced Petitioner to a concurrent six month sentence for the Weapon Under Disability charge.

In considering the newly discovered evidence of D.R. claiming Petitioner was inside

Whatley's bar at the time of the shooting, the Court begins by looking within the four corners of

II.R.'s affidavit and her testimony. D.R. testified that she did not know Petitioner, his family, or

the victim, nor had she corresponded with Petitioner. She testified she felt coming forward was the

right thing to do as she felt the flyer reflected a concemed family seeking justice for a wrongly

convicted individual and she was concemed the wrong person was convicted.

First, the Court addresses the issue of identification. At the hearing, presented to D.R. for

identifacation purposes were two flyers that had her affidavit attached to them (State's Exhibit 1

and Petitioner's Exhibits A and E). Attached to the exhibits were different photographs of the

Petitioner. D.R. positively identified the man inside Whatley's bar at the time of the shooting as

the individual pictured in Petitioner's Exhibits A and E. When shown State's Exhibit 1 which was

the affidavit and flyer attached to Petitioner's motion for Post Relief Conviction/New Trial, she

was unable to identify the male in the photo as being in Whatley's bar that evening. She could not

state that he was the same person as in Petitioner's Exhibits A and E.

Upon review of the record, it is noted that at trial two alibi witnesses, Lehandro Hill and

Stefan King, both testified that Petitioner was with them, inside Whatley's bar at the time of the

shooting.

Because the standard is that the evidence be not "merely" cumulative, it will not be deemed

cumulative simply because part of its content was covered or duplicated by evidence produced at

trial. State v. Barber (1982),3 Ohio App.3d 445,447,445 N.E.2d 1146. However, the testimony

must contain some "additional elements which contribute significantly" to defendant's case in

-5-

order to be deemed not merely cumulative. Barber, citing State v. Rife (Oct. 9, 1980), Franklin

App. Nos. 80-AP-77 and 80-A.P-172. See, also, State v. Baker (Oct. 15, 2001), Clinton App. No.

2000-08-018; State v. yYoolev (Jan. 30, 1985), Summit App. Nos. 11620 and 11785.

Secondly, D.R. testified at the hearing that she was in direct sight of Petitioner for

approximately one hour before the shooting as she was waiting to play the video game occupied by

Petitioner. She conversed with him for a°`split second". However, when asked what he was

wearing, she placed him in a jacket that had a big "Chief Wahoo" on the back. She testified that

she remembered this because her son had a similariacket at the time. In reviewing State's Exhibit

3, the written suspect statement of Petitioner, by his own admission, on the night of the shooting he

was wearing "the blue Phat Pharm jacket" that he was arrested in. Any new testimony proffered as

to what the Petitioner was wearing must be neither impeaching nor cumulative. The Court finds

D.R.'s testimony to be internally inconsistent with Petitioner's own suspect statement.

Lastly, D.R. testified at the hearing that after the shooting she saw Petitioner cross the

street, get into his car, and assumed that he left. Upon review of her swarn testimony in the

affidavit (Petitioner's Exhibit E at line 9), she avers after the shooting she observed Petitioner

getting into his car with his friends to leave (State's Exhibit 1 and Petitioner's Exhibit E). D.R.'s

testimony at the hearing that Petitioner got into car and she assumed he left contradicts her very

own sworn testimony in her affidavit (Petitioner's Exhibit E) that Petitioner got into car with

friends to leave, thereby weakening the credibility of her testimony.

In conclusion, the Court finds the "new evidence" presented is cumulative to the evidence

addressed at trial and does not contradict the previous testimony at trial. The Court is not

persuaded that there is a strong probability that the result of a new trial would produce a different

result. I

In addition, the Court finds there are no grounds to believe that there was such a denial or

infringement of Petitioner's rights as to render the judgment void or voidable under the Ohio

Constitution or the Constitution of the United States.

..6.

Petitioner Tucker's petition to set aside or vacate judgment of conviction and motion for

new trial are denied.

IT IS SO ORDERED.

y4iw^ Date: G -^d -/,;7--Judge Eileen T. Gallag r

_7.

CERTIFICATE OF SERVICE

A copy of the foregoing Opinion was sent via regular U.S. Mail this 20th day of June,

2012, to the following:

Kevin R. Filiatraut, Esq.Katherine E. Mullin, Esq.Assistant Cuyahoga County ProsecutorsJustice Center, 9th Floor1200 Ontario StreetCleveland, OH 44113Attorneysfor State of Ohio

Paul Kuzmins, Esq.Erica Cunliffe, Esq.Cuyahoga County Public Defender's Office310 Lakeside Avenue, Suite 400Cleveland, OH 44113Attorneys for Petitioner

Christopher L. Tucker, Inmate No. 452614Trumbull Correctional Institution5701 Burnett RoadP.O. Box 901Leavittsburg, OH 44430Petitioner

^^ ^ Ag&,1-,- ,I -.wI-2'"Eileen T. Gallagher, i dge

.g.

i i^llll 1l^II lilll IIlII Ilql [IIII I^lll lilif Il^i fll! I^I^I73365287

IN TIIE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

STATE OF OHIOPlaintiff

Case No: CR-03-437731-ZA

Judge: EILEEN T GALLAGHER

CHRIS'I.'OPH TUCKERDefendant INDICT: 2y03.01 AGGRAVATIED IvIURDER W/T'IREA.RIvI

SPEC;2923.13 HAVING WEAI'ONS WI1iLE UNDERDISABILITY

JOURNAL ENTRI.'

DEFENDANT TNDIGENT; ATTORNEY PAiJT. KLT7.MINS ASSIGNED.DEFEN73ANT IN COURT. COUNSEL PAUL KUZMIN.S AND ERIKA CUNLIFFE PRESENT.PROSECUTOR(S) KEVIN FILIATRAUT AIvT3 KATHLEEN IVIULLIitiT PRESENT.COURT REPORTER KATHY KILBANE PRESENT.HEAR1NCi HELD 04f 1bI2012.SHERIF`F IS ORDERED TO TRANSPORT DEFENDANT CI-IRISTOPHER TUCKER BACK. TO LORAIN CORRECTIONALINSTITUTION. DEFENDANT IS A BLACK/MALE, DOB 6/22/1977, INMATE NO, 452614.

Q4l1 FiI2012CPSKM 04/17/2012 10:13:53

a.

^ +-^t^- j ^'-L-1

Judge Signature 04/18/2012

HEAR04/16/2012

Itf°,CE.IZ'EI? t'nR FILING04>18/2012 10:28:44

By: CLSJOGERALD E. FUERST, CLERK

A - 2Page1©f1

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Court of ppats of Obiu,^ .15aw +

^iEGEtVED FOR FILING

JUN "u Q Z013

CUYANO"vAG ^ COld4 OH PLEASSkt G411it M

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EIGHT.FI APPELLATE DISTRICTCOUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 98685

STATE OF OHIO

PLAINTIFF-APPELLEE

VS.

CHRISTOPHER TUCKER

DEFENDANT-APPELLANT

JUD+GIVIENT:AFFIR1ViED

JUN 2 0 2013

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`^.. ._J

-iminal Appeal from theCounty Court of Cammen Pl asCase No. CR-437731

BEFORE: B1ackmon^tewart, A.J., and Kilbane, J.

RELEASED AND JOURNALIZED: June 20, 2013

A - 3

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ATTORNEYS FOR APPELLANT

Robert L. TobikChief Public Defender

Erika B. CunliffeAssistant Public Defender310 Lakeside AvenueSuite 200Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE0Timothy J. McGintyCuyahoga County Prosecutor

By: Katherine MullinAssistant County Prosecutor8th Floor Justice Center1200 Ontario StreetCleveland, Ohio 44113

FILED AND JOURNALIZEDPER APA,R. 22(C)

JtIN 2 0 2013

CUYAkl4GA CQLtNTY CLERKOF ,'Hfi CqVRf OF APPEALS8Y Deputy

PATRICIA ANN B71AC:KMON, J.:

{¶].} Appellant Christopher Tucker appeals the trial court's denial of his

petition for postconviction relief and motion for new trial and assigns the

following errors for our review:

1. The trial court violated Mr. Tucker's constitutional rightto due process and violated this court's order on rentand bysignificantly narrowing the scope ofhis eva.dentiary hearing.

H. The trial court violated Mr. Tucker's right to due processwhen it denied relief and a new trial notwithstanding thepresentation of new evidence which provided crediblesupport for his longstanding alibi.

{'^2} Having reviewed the record and pertinent law, we affirm the trial

court's decision. The apposite facts follow.

FaCts

{¶3) Tucker was convicted of aggravated murder for the shooting death

of Timothy Austin on May 22, 2003, outside Whatley's. Lounge in Cleveland,

Ohio. At trial,Nikga Beal and Joseph Fussell were the only witnesses to identify

Tucker as the shooter. Beal was with Austin at the bar. She testified that she

noticed Tucker inside the bar because he had been staring at her. When she and

Austin walked outside the bar she heard gunshots and saw Austin fall to the

ground. She stated she was looking at Tucker while he shot Austin and that he

did not stop shooting until he was out of bullets. According to Beal, the area of

the shooting was well lit by street lights. On her way home, someone told her

the shooter's name was Christopher Tucker. She searched his name on the

internet and found a photograph that matched the man she saw shoot Austin.

She did not immediately go to police out of fear of retaliation. About a month

after the shooting the police came to her apartment to question her.

M0 Fussell testified at trial that he had attended high school with

Tucker. He saw Tucker at the bar and gave him a hug. Fussell then left to buy

a cigar from the gas station across the street. He heard gunshots and saw

Tucker shooting Austin. Fussell waited to contact officers until the next day out

of fear. Although he knew Tucker, he could not recall his name. He identified

Tucker after looking at photographs in a mug shot book.

{¶M At trial, Tucker maintained he was inside the bar during the

shooting and presented witnesses,.who were also his friends, in support of his

alibi. One of his friends, Lahondra Hill, originally told police that Tucker was

outside when the shootings occurred but later changed his testiznony at trial.

Tucker's other friend, Stefan King, did not provide police with a statement.

However, he testified at trial that Tucker was inside the bar. Tucker admitted

that he knew Austin and that Austin had carjacked him in 1996 and had never

apologized.

{¶6} Austin was in prison from 1996 until a month prior to the shooting.

Tucker had just been released from prison two days prior to the shooting.

Therefore, Tucker had seen Austin for the first time since the carjacking at

Whatley's bar.

{¶ 7} The jury found. Tucker guilty of aggravated murder and a firearm

specification. The trial court sentenced him to three years for the firearm

specification to be served consecutive to life in prison for the aggravated

murder.' Tucker filed an appeal, and we affirmed his conviction. State v.

7jucker, 8th Dist. 1tiTo. 83419, 2004-Qhio-5380 ("Tucker I").

{¶8) Thereafter, Tucker filed a petition for postconviction relaef on April

24, 2004, arguing, among other things, that he was told that Nikia Beal had

stated after the trial that she did not see the shooter because she ran once she

heard the gunshots. He contended he could provide affidavits of people attesting

to Beal's recantation; however, he failed to attach any evidence regarding her

recantation to the petition.

{¶9} Tucker also filed a motion for a new trial on August 2, 2004, in

which he argued that a new trial was warranted because Joseph Fussell had

recanted. Attached to his motion was an affidavit from. Fussell simply stating,

"what I said I saw last year in May at Whatley's Bar is not what I really saw.

I was mistaken. It was not Christopher Tucker."'

{^ 10} The trial court concluded that Tucker's petition for postconvictzon

relief was untimely and that the recantation of one witness when two witnesses

'Tucher also entered a plea of no contest to a charge of having a weapon whileunder disability and was sentenced to six months for the charge.

'The trial court granted a hearing regarding Fussell's recantation only.However, the judge that granted the hearing was replaced due to a lost election. Thestate filed a motion for reconsideration with the successor judge regarding the grantingof the hearing, which the trial court granted.

identified Tucker as the killer was insufficient to grant a new trial. Instead of

immediately filing an appeal to this court, Tucker waited until June 2, 2000, to

file a motion for a delayed appeal, which vve denied. State u, Tucker, 8th Dist.

No. 88254 (July 6, 2006) ("Tucker II").

{¶ 11} On August 2, 2007, Tucker filed a second petition for postconviction

relief and a motion for a new trial. In support of these motions, he presented an

affidavit from D.R.,' who stated that Tucker was inside the bar at the time the

shooting took place outside the bar. D.R. stated that she did not know Tucker

or his family, but was a neutral observer. The trial court denied the motions

without a hearing. Tucker appealed the trial court's denial of the motions. This

court agreed that the trial court should have conducted a hearing regarding

D.R.'s affidavit, but also held that Tucker's attempt to appeal the denial of his

first petition for postconviction relief and motion for new trial were barred by res

judicata because we had d:enied his delayed appeal in Tucker II. State v. Tucker,

8th Dist. No. 90799, 2008-Ohio•5748 ("Tucker III"}.

{¶12} Prior to the court conducting the hearing on remand, Tucker again

attempted to appeal from the trial court's denial of his first petition for

postconviction relief and motion for a new trial that he attempted to appeal in

Tucker II. He argued his appeal was timely filed because he was never served

'In court proceedings below, this witness asked to not be publicly identified;therefore, in accordance with these wishes, we identify the witness by initials.

with notice of the trial court's judgment. This court agreed and considered

Tucker's appeal.

IT, 13} We held that the trial court correctly denied. Tucker's first petition

because he failed to attach an affidavit in support of his contention that Beal had

stated that she could not identify the shooter. We also held the trial court did

not err by denying Tucker's motion for a new trial based on Fussell's recantation

because it was untimely filed. We also held that because of Beal's testimony

identifying Tucker as the shooter, Fussell's affidavit vvould not have changed the

result of the trial. We remanded the matter for the trial court to conduct the

hearing ordered in Tucker 1I1. State u. Tucker, 8th Dist. No. 95556, 2021-Ohio-

4092 (`°Tucker IV').

I¶14) Prior to the court conducting the evidentiary hearing, and prior to

this court's ruling in Tucker IV, Tucker filed several motions in an attempt to

expand the scope of the evidence to be considered at the hearing to include

evidence that corroborated D.R.'s affidavit. He attempted to include affidavits

by John Blue, Arthur Storey, Khaalis Miller, and Joe McLemore, who he

contended were four new witnesses that either placed Tucker inside the bar at

the time of the shooting, or saw someone other than Tucker commit the shooting.

He also attempted to include a more expanded affidavit by Joseph Fussell, a

polygraph test Tucker successfully passed seven years after his conviction, and

the report of an expert regarding the reliability of Beal's eyewitness testimony.

{¶15} The trial court initially allowed some expanded evidence in, but

stated that the scope may change after the appellate court issued its decision in

Tucker IV. After Tucker IV, the trial court limited the scope of the hearing to

"Petitioner's motion for postconviction relief andior motion for new trial filed

August 2, 2007, on.l ." Journal Entry, April 13, 2012 (Emphasis sic.) The court

contended Tucker's motion for leave to supplement the motion for new trial,

amendment or supplement to motion for leave to file supplement to motion for

new trial, and petitioner's prehearing submission and response were "barred by

res judicata, untimely, and the alleged new evidence fails to meet the standard

in Criminal Rule 33(A)(6) as well as the requirements held by the Supreme

Court of Ohio in State v.1'etro (1947), 148 Ohio St. 505, 76 N.E.2d. 370." Journal

Entry, April 13, 2012,

{¶ 16} On April 16, 2012, the trial court conducted the evidentiary hearing

at which D.R. testified in support of her affidavit. According to D.R,, she

contacted authorities in response to a flier she saw posted with Tucker's

photograph in January 2007. The flier was posted by Tucker's family, who

requested information from anyone that was at Whatley's Lounge the night of

the murder and contended Tucker was a wrongly convicted man. D.R. kept the

flyer for about a month prior to contacting Tucker's attorney listed on the flier.

D,R. testified that she did not know Tucker or his family and that she only

contacted Tucker's attorney because she felt it was the right thing to do.

{¶ 17} D.R. recognized Tucker from the photo because she was at Whatley's

Bar the night in question. She claimed that Tucker was sitting near her playing

a video game that she wanted to play. At one point, Tucker got up and she asked

him if he was finished with the game. He responded he was not finished but was

going to the juke box. She jokingly told him to play a song for her. According to

D.R., as Tucker was returning from the juke box, shots were fired outside the

bar. She stated that the people inside the bar rushed outside. She recalled

Tucker was in front of her when exiting the bar because he was wearing a jacket

with a Chief Wahoo logo on the back.

{¶18} The trial court concluded that D.R.'s testimony was merely

cumulative evidence because Tucker had two alibi witnesses that testified that

D.R. was inside the bar at the time of the shooting. The court also found

problems with D.R.'s identification of Tucker. The court noted D.R. had only

spoken with Tucker for a "split second" and had stated that'f`ucker was wearing

a Chief Wahoo jacket, when the evidence indicated he was wearing a blue Phat

Pharm jacket. In her affidavit, D.R. also stated that she saw Tucker get into a

car with his friends and leave, while at the hearing she stated she saw Tucker

get into his car and "assumed" he left.

(¶ 19) Finally, the court concluded that D.R.'s identification was suspect

because although she identified Tucker from the flier photograph, she could not

identify Tucker from a more recent photograph that she referenced in her

affidavzt. The trial court, therefore, denied Tucker's petition to set aside or

vacate judgment of conviction and motion for new trial.

Scope cafEv.identiary Hear4n

{¶20} In his first assigned error, Tucker argues that the trial court erred

by limiting the evidentiary hearing to D.R.'s testimony. Tucker contends our

remand was more expansive in Tucker III because we found that D.R.'s

testimony was corroborated by the "arguable" recantation of the two material

witnesses at trial, Beal and Fussell; therefore, the trial court should have

considered evidence that corroborated D.R.'s affidavit.

{¶21} When the trial court considered the scope of the evidentiary hearing,

it could not ignore this court's decision in Tucker IV. Although Tucker III relied

on the fact that the only two eyewitnesses to the crime "arguably" recanted,

Tucker IV completely removed any reliance by the trial court on the possible

recantation of the two witnesses when considering D.R.'s affidavit. Thus,

although this court considered Beal's and Fussell's recantations when finding

the court erred by not conducting an evidentiary hearing regarding D.R.'s

affidavit, these considerations were eliminated by ou.r decision in Tucker IV.

IT22} As we stated, Tucker's counsel conducted extensive discovery after

the remand in Tucker Ill. He recanvassed the neighborhood of the bar almost

eight years after the shooting and re-interviewed witnesses; he took a polygraph

test; and obtained an expert witness to refute Beal's testimony. The discovery

wnrm^r -------------

broadened the scope of the evidentiary hearing to include aR issues as to

Tucker's innocence and was not limited to D.R.'s affidavit.

{¶23} Moreover, as the trial court held, the motions containing the

additional evidence were untimely filed and barred by res judicata. His motion

for a new trial and petition for postconviction relie£based on the affidavit of John

Blue were filed on November 18, 2009, six years after Tucker's conviction. The

suppleraental motions to these motions were filed several months prior to the

hearing, almost nine years after his conviction.

{1[24} Pursuant to R.C. 2953.23(A), a court may not entertain an untimely

petition unless defendant initially demonstrates either (1) he was unavoidably

prevented from discovering facts necessary for the claim for relief, or (2) the

United States Supreme Court recognized a new federal or state right that

applies retroactively to persons :in defendant's situation. R.C. 2953.23(A)(1)(a).

{¶25} Likewise, Crim.R. 33(B) provides that motions for a new trial on

account of newly-discovered evidence shall be filed within one hundred twenty

days after the day upon which the verdict was rendered or from the trial court's

decision unless "it is made to appear by clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence upon

which he must rely." Thus, an untimely motion for new tr.ial based on newly

discovered evidence must show, by clear and convincing proof, that the

defendant was "unavoidably prevented" from discovering the new evidence.

State v. Fortson, 8th Dist. No. 82545, 2903-()hio-5387, 110. Thus, both rules -

required Tucker to show he was unavoidably prevented from discovering the

following evidence:

Joseph Fussell

{T26} Tucker attempted to present a more detailed affidavit by Fussell

recanting his testimony. However, Tucker had already attempted to raise

Fussell's recantation in his prior petition and motion for new trial, which this

court in Tuc.ker IV held was untimely filed. Tucker's refiling of Fussell's

affidavit does not rectify the timeliness problem because Tucker has failed to

show he was unavoidably prevented from discovering the facts in Fussell's new

affidavit> Moreover, because Fussell's recantation had been raised and

considered in Tucker IV, res judicata bars Tucker's attempt to again raise it.

K sha Carter and K:haalxs Miller

(¶27) Tucker submitted the affidavits of his girlfriend, Keysha Carter and

Fussell's cousin, Khaalis Miller, in an attempt to bolster Fussell's affidavit.

However, as we stated, because we have already determined that Fussell's

affidavit was untimely, the trial court correctly excluded this testimony that was

barred by res judicata. Moreover, Fussell testified at trial that he was with his

cousin Khaalis Miller at the time of th:e shooting; therefore, counsel could have

called Miller for questioning at trial.

John Blue

{¶ 2$} Tucker sought to present the affidavit of John Blue, a known drug

adcl.ict with a lengthy felony record. In his affidavit, Blue stated he did not know

the victim or Tucker. He averred that he saw two men shoot the victim.

{¶29} Blue was a witness that Tucker was avsiare of at the time of trial as

indicated by the fact his attorney asked Detective Marche about Blue. Blue was

also listed on the detective's area canvass list as one of the witnesses. The list

contains Blue's address and social security number and states that Blue told

detectives, "he'juet heard several shots and a vehicle screech off." At trial,

Detective Marche testified he provided a copy of the area canvass list to defense

counsel. Therefore, Tucker has failed to show he was unavoidably prevented

from discovering the facts contained in Blue's affidavit. Tucker's delay in.

obtaining an affidavit from a known possible witness does not provide grounds

that he was unavoidably prevented from obtaining the evidence. State v.

Muntaser, 8th Dist. No. 84951, 2005-Ohio-130.

Arthur Storev N

{¶30} Tucker sought to present the affidavit by Arthur Storey, who was

an inmate with Tucker. Storey stated that he was at the bar that night to

conduct a drug deal. He said he saw a'ddark-skinned man pulled out a black

gun. * * * He was about 6' 3"/6'4" heavy set with corn rows (braids) with a black

hoodie sweat shirt." He claimed the man was with a shorter man, with dark

skin, a beard, and braids. He stated the two men were arguing with a third

man. When he saw the gun, he ran around the corner and heard gunshots

seconds later. He stated he knew Tucker, and none of the men he saw was

Tucker. He claimed he did not give a statement to police the night of the murder

because he was in possession of drugs.

(¶31) The court did not err in discounting Storey's affidavit because it

lacks credibility. Storey admitted he was approached by Tucker while in prison

to provide the affidavit. Moreover, the affidavit was obtai.ned one day after this

court decided in Tucker IV that Fussell's recantation could not be considered.

See State u. Smith, 2d Dist. No. 23945, 2011-f?hio-2189, 29-21 (filing of

affidavit 22 days after Ohio Supreme Court affirmed conviction is suspiciously

timed because it was very unlikely the defendant would find new evidence

shortly after the Supreme Court affirmed the conviction.)

{¶32} Moreover, to prevail on a motion for new trial based upon newly

discovered evidence, a defendant must show that the new evidence: (1) discloses

a strong probability that the result of the tria.l would be different if a new trial

were granted; (2) has been discovered since the trial; (3) is such as could not

have been discovered before the trial through the exercise of due diligence; (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, 148

Ohio St. 505, 76 N.E.2d 370 (1947). Here, Storey admitted that he did not

actually see the shooting because he ran around the corner when he saw a gun.

Al.so, because Beal testified that she saw Tucker shoot Austin, Storey's affidavit

merely contradicts Beal's testimony.

JQsenh McLemore

{¶ 33) Tucker sought to present the affidavit of attorney Pau1. Kuzmins,

who was assigned to represent Tucker at the evidentiary hearing. According to

attorney Kuzmins's affidavit, he discovered McLemore while canvassing the

neighborhood for witnesses prior to the April 2012 hearing. Joseph McLemore

told him (1) he was the bartender the night of the murder; (2) he witnessed the

shooting; (3) saw the eventual shooter leave the bar and through the bar

window, saw him walk to a car across the street to retrieve something from the

trunk; (4) saw the man return to the front of the bar and shoot Austin; (5) that

he was taken to police station where he identified another man as the shooter

from a mug book; and, (6) that he did not personally know the shooter but

described him as "brown-skinned" and taller than the victim.

¶ 34) In his motion to admit McLemore's affidavit, Tucker maintained

that the state's failure to reveal exonerating evidence violated the dictates of

Brady u. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We

disagree a Brady violation occurred. A.8rady violation involves the post-trial

discovery of information that was known to the prosecution, but unknown to the

defense. State v. Wickline, 50 Ohio St.3d 114, 116, 552 N.E.2d 913 (1990), citing

United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

In Wickline, the alleged exculpatory records were presented during the trial;

therefore, no Brady violation occurred. Wickline at 116.

(¶35) Likewise, here Detective Marche testified at trial that he spoke to

the bartender, Joseph "MaeLimore."$ According to the detective, the bartender

was very reluctant to say anything, which was the case with all the witnesses

who the detective surmised were afraid of retaliation. The detective showed the

bartender photographs of both Tucker and Austin, and McLemore only said that

he saw both of the men in the bar but was not aware of when they left. The

detective asked him about "everybody that was in the bar" and received no

useful answers. The canvass list also stated that McLemore only told the

canvassing officer that he heard four shots.' Moreover, this canvass list was

provided to defense counsel prior to trial. Thus, because counsel was aware of

McLemore both before and during trial, the state did not commit a Brady

violation. Counsel's awareness of1VMeLemore as a witness also supports the trial

court's refusal to consider evidence that could have been obtained prior to the

trial with due diligence.

IT361 Additionally, attorney Kuzmins's affidavit consists of hearsay

because suspiciously, Tucker failed to provide an affidavit from MeLemore. His

4The spelling is different than how attorney Kuzmins spelled the name, butthere is no doubt it was the same person given the close spelling and the factMcLemore was the bartender that night.

5McLemore's name is spelled differently in the canvass list. He is listed as "JoeMcLemory," which appears to be the phonetic spelling of his name.

failure to provide an affidavit indicates McLemore may not have been truthful

with attorney Kuzmins. State v. Calhoun, 86 Ohio St.3d 279, 285, 1999-Ohio-

102, 714 N..E.2d 905 (one of the considerations in granting postconviction relief

is whether the affidavit relies upon hearsay).

Po1 ra h Test

{T37} Tucker also attempted to submit the results of his polygraph test

taken over seven years after the murder occurred. In Ohio, the results of

polygraph examinations are generallyi.nadmissible as evidence unless all parties

so stipulate. See State v, Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978),

syllabus; State v. Davis, 62 Ohio St.3d 326, 341, 581 N.E.2d 1362 (1991). Here,

there i^ no joint stipulation. More importantly, however, is the fact that Tucker

has failed to show that he was prevented from taking a polygraph prior to trial.

Thus, he has failed to demonstrate he was unavoidably prevented from

discovering this information.

Professor Maria S. Ara Lyoza Ph.D.

{¶38) Lastly, Tucker attempted to introduce the expert opinion of Professor

Aragoza, who stated that in her opinion, Nikia Beal's memory was tainted.

Tucker has failed to demonstrate that he was unavoidably prevented from the

discovery of this evidence prior to trial.

{1[39} Accordingly, we conclude the trial court did not err by refusing to

consider the above additional evidence. Allowing such evidence would have

impermissibly broadened the scope of the hearing to the consideration of evidence

that was available with due diligence at trial. Tucker's first assigned error is

overruled.

lDenial of Motion for a New Trial

{¶40) In his second assigned error, Tucker argues the trial court erred by

denying his 2007 petition for postconviction relief and motion for a new trial

because even if D.R.'s testimony was considered in isolation, she was a credible,

neutral witness.

I¶ 41} As we stated above, the decision to grant or deny a motion for a new

trial or petition for postconviction relief on the basis of newly discovered evidence

is within the sound discretion of the trial court and, absent an abuse of discretion,

that decision will not be disturbed. Also, once the trial court conducts an

evidentiary hearing relative to an appellant's postconviction petition, a reviewing

court should not overrule its findings if they are supported by competent and

credible evidence. State u. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 58, accord State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885

N.E.2d 905, ¶ 45; State v. Mitchell, 53 Ohio App,3d 117, 119, 559 N.E.2d 1370

(8th Dist, 1988).

{¶42} Because of Beal's testimony, D.R.'s testimony does not provide a

strong probability that the result will change if a new trial is granted. Petro, 148

Ohio St. 505, 76 N.E.2d 370 (1947). Beal was standing right next to the victim

when he was shot; she stated she looked at the shooter as he shot the victim; and

she immediately recognized him as the man that was staring at her inside the

bar. In fact, Tucker admitted at trial to having seen Beal inside the bar. Also,

D.R.'s testimony simply contradicts Beal's testimony; therefore, it does not

s-upport the granting of a new trial. Id. Lastly, two other witnesses testified that

D.R. was inside the bar at the time of the shooting. Thus, her testimony is

merely cumulative.

(¶43) We also conclude the trial court did not err by finding D.R. to be an

incredible witness. As the court in Gondor held, the judge presiding "at a

postconviction hearing is in a totally different position from the appellate judges.

'I'he postconvictionjudge sees and hears the live postconviction witnesses, and he

or she is therefore in a much better position to weigh their credibility than are

the appellate judges." Gondor, at T 55.

{^44} Here, the court concluded that D.R. was not credible because at the

hearing, she could positively identify Tucker from the photo on the flier but not

from another photograph that Tucker had attached to his petition for

postconviction relief that she referenced in her affidavit. She also stated that

Tucker was wearing a "Chief Wahoo" jacket, but the evidence showed he was

wearing a "blue Phat Pharm" jacket. D.R. also stated in her affidavit that she

saw Tucker leave with friends, but at the hearing she stated, "she assumed" he

left with friends.

4¶45} Based on the foregoing, we affirm the trial court's decision to deny

Tucker's postconviction petition and motion for a new trial because the trial

court's finding D.R. to be an incredible witness is supported by competent and

credible evidence. Accordingly, Tucker's second assigned error is overruled.

{¶46} 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 be sent to the Cuyahoga County Court

of Cnm'mon Pleas to carry this judgment into execution. 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.

*PATRIftIA ANN BLACKN. ON, JUDGE

MELODY J. STEWART, A.J., andMARY EILEEN KILBANE, J., CONCUR