Opinion
No. 27020
Decided February 3, 1971.
Criminal procedure — Application for new trial — Newly discovered evidence — R.C. 2945.80 — Discretion of trial court — Duties of defendant — Proffer of evidence — Good faith — Witness' statement that testimony at trial perjured.
1. R.C. 2945.80, as amended, relative to application for leave to file motion for new trial on account of newly discovered evidence, does not in any way restrict or limit the broad discretion invested in the trial court, on such an application, to resort to any legally acceptable evidence, be it oral testimony under oath, affidavit, or deposition.
2. Upon application for leave to file a motion for new trial in a criminal case, defendant must set forth the allegedly newly discovered evidence for the court to determine first, whether it is new evidence, second, whether it is newly discovered evidence which defendant was unavoidably prevented from discovering within 120 days after verdict, and third, whether there is reasonable probability that such evidence is based on fact and is not being proffered in bad faith.
3. Generally, a court will not grant a new trial on statements made by a witness after a criminal trial tending to show that his testimony at the trial was perjured, even though such after statements were made under oath.
Mr. Herbert M. Jacobson, for plaintiff.
Mr. Walter H. Porter, for defendant, Willie Hall, Jr.
Mr. Robert M. Brown, for defendant, Robert Leslie Goode, Jr.
Pursuant to R.C. 2945.80 defendants, Hall and Goode, through counsel, have filed applications for leave to file motions for new trials based on allegedly newly discovered evidence which defendants Hall and Goode claim they were unavoidably prevented from discovering within 120 days after the rendition of the verdicts against them in two separate trials, which applications were filed by Goode, through counsel, on July 14, 1969, and by Hall, through counsel, on December 29, 1969. The verdicts of guilty against Goode and Hall were rendered on October 30, 1967, and January 23, 1968, respectively.
Defendants' separate applications for leave to file motions for new trial are governed by the following provisions of R.C. 2945.80:
"Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days following the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If 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, such motion shall be filed within three days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period."
The italicized portion of the above quoted paragraph of R.C. 2945.80 was an addition to the section effective November 1, 1965. Said portion requires each defendant to show by clear and convincing proof that he was unavoidably prevented from discovering within the period of 120 days following the verdicts of guilty the alleged new evidence upon which he relies as a basis for the filing of a motion for new trial.
Although this section does not prevent defendants from making such showing on the hearing on the motion for new trial, should the same be granted, nevertheless, defendants are mandatorily required to make such showing on their applications for leave to file motions for new trial.
The application filed by counsel for Goode is supported by a letter written by defendant, James Edward Thornton, Jr., who testified against both Goode and Hall in their separate trials, which letter is dated May 1, 1969, and received by Goode's then counsel, Walter Rice, several days later. The pertinent parts of the letter read:
"This is considering Goode's case. When I was brought to the city jail I was given a statement made out saying that Good was there at a given time and date.
"I past the signing of the statement but they gave impending violence upon my person if I did not sign the statement and see that it will be like but for me to get the chair.
"Instinct came into play. I did sign the statement. This is what implicated Good and nothing more.
"I was imprudent at the time and did not no what I was doing and had I known this he or I would not be here now.
"I am saying this because I thought it would be of some help. I'll say this this I can ashore you that Good was not at the sean."
Pursuant to the above letter counsel (Robert M. Brown) went to the Ohio State Penitentiary on June 11, 1969, to talk to Thornton and to secure his statement in affidavit form setting forth in essence the statements he made in his letter. Thornton signed and swore to the affidavit, which reads as follows:
"When I (James Edward Thornton) was brought to the City Jail I was given a statement made out saying that Goode was there at a given time and date.
"2. I did not want to sign the statement but they threatened violence upon my person if I did not sign the statement.
"3. In order to protect myself I signed the statement. This is what implicated Goode and nothing more.
"4. I did not know what I was doing at the time I signed this statement.
"5. I am saying this because I thought it might be of some help.
"He, Good was not involved in any way.
"6. I'll say this I can assure you that Goode was not at the scene."
Counsel for defendant Hall received a similar letter from Thornton in late April 1969, which letter, together with the affidavit of one of his trial counsel read as follows:
"I James E. Thornton Jr. makes this statement of my own free will and without fear or outside influence. I hope to rectify or try to make right, what is been said.
"The Dayton prosecutor and detectives of the Dayton police department forced me to make accusations, sign statements Willie Hall Jr. and Roger Lesley Goode Jr. was not at the sene of the crime.
"The Dayton police told me in this crime that I will do as I was told. They said that Hall and Good was the men they wanted for this crime and if I did not help them they would see that I would get the electric chair. At this time I did not know one thing about law.
"This is to let you know where they stand."
"Walter A. Porter, being first duly cautioned and sworn, deposes and says that he is one of counsel for defendant, Willie Hall, Jr.; that in April, 1969, this affiant received a letter by regular mail from James Edward Thornton, a Xerox copy of which is attached to this affidavit; that it was not until this time, namely, April of 1969, that counsel was aware that Thornton did admit that he had given false testimony at the trial of defendant, Willie Hall, Jr."
These two letters and the affidavit of Thornton constitute a purported recantation by him of his testimony given at considerable length and in detail (175 pages) at the trials of both Goode and Hall and of a taped statement given to Dayton police involving both Goode and Hall in the commission of the offense of first degree murder in the attempted perpetration of a robbery.
Counsel for the state has filed two memoranda together with two affidavits of police officers which impeach and disprove Thornton's letters and affidavit, the latter, dated December 17, 1970, having attached thereto a transcription of a complete taped oral statement made by Thornton to the police after he was placed under arrest, which was not introduced in evidence in either trial, but was played back during a recess in the Goode trial in the hearing of the court and counsel for the state and the defendant Goode.
Counsel for Goode filed on December 21, 1970, a motion to strike the memoranda and affidavits of the state claiming that the state filed such memoranda and affidavits pursuant to the provisions of R.C. 2945.79 (F) permitting supporting affidavits and impeaching counter affidavits on a hearing on a motion for a new trial based on newly discovered evidence, whereas no such provision appears in R.C. 2945.80, which defines the requirements of proof on an application for leave to file a motion for new trial.
In other words, Goode claims the state is strictly confined to a determination of the issues set forth in the last two sentences of said section as amended in 1965, to wit, first, whether or not the proposed evidence is new evidence and newly discovered evidence, and second, whether or not defendants, Goode and Hall, through counsel, have been unavoidably prevented from the discovery of such evidence for more than 120 days following the dates the verdicts were rendered.
Although the amended portion of said section makes no reference to the procedure and the evidential means to be used on an application for leave to file a motion for a new trial, it is clear that the broad discretion invested in the trial court to resort to any legally acceptable evidence, be it oral testimony under oath, affidavits or depositions, has not in any way been restricted or limited by the language at the beginning of the last sentence of said section, to wit, "If 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." Consequently, within the limits of the issues which the court has a right to consider at the preliminary stage of asking leave to file such motion, it is clear that both defendants and the state have a right to prevent evidence for and against the applications of defendants through counsel. The principal claims set forth in the memoranda and affidavits of the state opposing the applications of defendants in that the proposed evidence to be offered on a motion for a new trial, if leave to file same is granted, is that the statements made by Thornton in his letters, and the affidavit in the Goode case, are patently untrue and made in bad faith, without regard to the requirements of new or newly discovered evidence or the clear and convincing proof required by R.C. 2945.80.
We believe the trial court has a very broad discretion to determine whether a defendant in a criminal case should be granted leave to file a motion for a new trial after 120 days following verdict, under the provisions of the last two sentences of R.C. 2945.80, as amended in 1965. It is obvious that such defendant or his counsel must set forth the allegedly newly discovered evidence for the court to determine first, whether it is new evidence, second, whether it is newly discovered evidence which the defendants were unavoidably prevented from discovering within 120 days after verdict, and third, incidental to the above two findings, whether there is a reasonable probability that such evidence is based upon fact and is not being proffered in bad faith. If the facts submitted to the court by affidavit and otherwise, both in favor of and against said applications, clearly indicate that the proffered newly discovered evidence is untrue, then the court in the exercise of its discretion has the right to deny the application on the grounds that it is not offered in good faith.
In view of the foregoing, the motion of defendant Goode, through counsel, to strike the memoranda of counsel for the prosecution, filed December 9, 1970, and expanded December 17, 1970, together with the affidavits and transcript attached thereto, is overruled.
Since the state has the right to proffer affidavits disproving or impeaching Thornton's statements in his two letters and the affidavit in the Goode case, the court in determining the good faith of Thornton and of the two defendants, finds the following:
First, the affidavits of Sergeants Newby and Cline incorporating Thornton's complete taped statement after they had fully explained to him his rights and he had signed a waiver thereof, and 175 pages of his testimony on direct and cross-examination in the Goode and Hall trials, and the fact that Thornton and his counsel did not file a motion or utilize any other procedure to suppress his taped or any other statement, proves indisputably that Thornton never signed any written statement, although he signed two waivers of rights, one under an assumed name; further, that no written statement was contrived or concocted by Sergeants Newby and Cline, or any other member of the police force; further, there is nothing whatsoever in the transcription of his taped statement or during his extensive cross-examination in the two trials or in any other hearing before this court to indicate that he signed any written statement or gave the taped statement as a result of threats of violence or going to the electric chair if he did not co-operate.
The remaining statements in Thornton's two letters and affidavit in the Goode case are to the effect that when he signed the statement (or made the taped statement) he did not know any law and did not know what he was doing; further, that Goode and Hall were not involved and were not at the scene of the crime. Further, in the Hall case, that he made the statement of his own free will and without fear or outside influence. These remaining statements were in the form of declarations as to his subjective mental processes and were bare conclusions (that Goode and Hall were not involved), which conclusions are completely disproven by Thornton's detailed account in the taped statement and his testimony in the two trials which accounts are, with the exception of a few details, entirely consistent with each other, and which accounts could not have been concocted, memorized and repeated three times at widely separated intervals by Thornton without irreconcilable conflict in the accounts.
Thornton's police statement, and his testimony (175 pages) at the two trials, shows specifically that Goode and Hall were involved in the attempted perpetration of the robbery as they are referred to by him as "Ticky" and "June Bug" several times, which nicknames were used and referred to independently by other witnesses and by which nicknames they were generally known. Thornton's taped statement discloses the subject matter of conversation between him and the others involved in the attempted holdup, including "Ticky" and "June Bug," knowledge of numerous details of the planning and the procedure decided upon and followed in the attempted commission of the robbery, including descriptions of the guns used, clothing, face or head covering, the kind of car, Hall ("June Bug") being shot in the leg as the four men were retreating from the bar, the ensuing flight or get away, and other details such as identification of the photographs of "Ticky," "June Bug" and Pegler, and the statement made by "June Bug" to Thornton in a Germantown Street pool room some time after the attempted robbery.
Second, that the evidence proffered by defendants Goode and Hall, through counsel, constituting a recantation of Thornton's taped statement and his testimony in the two trials and an admission that Thornton perjured himself, is not new evidence which falls within the meaning of newly discovered evidence as used in R.C. 2945.80, but is merely impeaching or contradicting evidence. See State v. Petro (1947), 148 Ohio St. 505, which held that new evidence is not evidence which merely impeaches or contradicts former evidence. See also cases cited in Annotation in 158 A.L.R. 1062 et seq., which generally hold that courts will not grant a new trial on statements made by a witness after a criminal trial tending to show that his testimony at trial was perjured, even though such after statements were made under oath.
Third, neither defendant, Goode or Hall, has made any showing that he was unavoidably prevented from discovery of the information or evidence proffered by Thornton through his two letters and an affidavit within 120 days after their respective verdicts were rendered. In this connection, the court takes judicial notice of the fact that Goode, Hall and Thornton are all committed to the Ohio State Penitentiary.
The applications of defendants Goode and Hall for leave to file motions for new trials herein, on the grounds of newly discovered evidence which they were unavoidably prevented from discovering within 120 days after the rendition of the verdicts, are overruled.
This decision shall operate as an entry and order of the court.
Applications overruled.