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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
rf^ f•" ^.rf /-^ i'. 1fr,
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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i
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.
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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