State v. Buehner

2021 Ohio 4435

• Court: Ohio Court of Appeals
• Decided: December 16, 2021
• Docket: 109699
• Status: Published

Opinion

[Cite as State v. Buehner, 2021-Ohio-4435.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109699 v. :

MICHAEL BUEHNER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: December 16, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-02-417994-ZA

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.

Randazzo Law, L.L.C., and Russell A. Randazzo, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Michael Buehner (“Buehner”), appeals from the

trial court’s judgment denying his motion for new trial. He raises the following

assignments of error for review: 1. The trial court erred in denying Mr. Buehner’s motion for new trial. Crim.R. 33(A)(2) and (6); Fifth and Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, [10 L.Ed.2d 215] (1963); State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988); State v. Glover, 2016-Ohio-2833 (8th Dist.).

2. The trial court erred in holding that Mr. Buehner failed to demonstrate a Brady violation. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, [10 L.Ed.2d 215] (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 [31 L.Ed.2d 104] (1972); State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988); State v. Glover, 2016-Ohio-2833 (8th Dist.).

3. The trial court abused its discretion by failing to follow the court of appeals remand and in effect reversing the Court of Appeals decision of November 1, 2018.

4. The trial court abused its discretion by holding the State of Ohio did not withhold properly discoverable evidence.

5. The trial court abused its discretion by holding the evidence withheld from defendant in advance of his trial was not material.

6. The trial court erred when it summarily dismissed in one sentence Mr. Buehner’s Napue claim that the State of Ohio utilized false testimony.

After careful review of the record and case law, we affirm in part,

reverse in part, and remand the case to the trial court for a new trial.

I. Procedural and Factual History

In July 2002, a jury found Buehner guilty of two counts of murder and

one count of attempted murder in connection with the shooting death of Jerry Saunders (“Saunders”).1 He was sentenced to an aggregate prison term of 18 years

to life.

At trial, the prosecution presented testimony indicating that on May 24,

2001, Buehner shot and killed Saunders during a drug transaction. According to the

prosecution, Buehner, who is a white male, arrived at the scene of the shooting in a

black pickup truck. He was sitting in the middle passenger’s seat and was

accompanied by an unidentified black male who was sitting in the passenger’s seat

and Randy Price (“Price”), a white male, who was driving the pickup truck.

During the course of the police investigation, detectives interviewed

and obtained a detailed description of all three occupants of the black pickup truck

from Lawone Edwards (“Edwards”), who was selling drugs with Saunders at the

time of the shooting. Edwards identified Price in a photo array as the driver of the

black pickup truck. When shown a different photo array containing Buehner’s

photograph, however, Edwards could not confidently identify Buehner as the

shooter and asked the detectives to perform a physical lineup. Price subsequently

implicated Buehner as the person who shot Saunders. Buehner was arrested, and,

after viewing another lineup, Edwards identified him as the shooter.2

Approximately 12 years later, a family friend of Buehner made a public-

records request to the Cleveland Police Department concerning any and all police

1 This court reversed the attempted murder conviction because of insufficient evidence. See State v. Buehner, 8th Dist. Cuyahoga No. 81722, 2003-Ohio-3348, ¶ 29 (“Buehner I”). 2 See Buehner I for a complete discussion of the facts supporting Buehner’s

convictions. reports related to Saunders’s homicide investigation. The Cleveland Police

Department produced over 30 reports in response to the request, including a report

detailing the eyewitness account of Debbie Anderson, a.k.a. Debbie Powell

(“Anderson”). This report, dated September 27, 2001, summarizes the police

interview of Anderson, who expressed that “the occupants of the black pickup truck

were all black males.” She described the shooter as “a light complexed [sic] black

male * * * hair in braided hairstyle, slim build, 5′10″, in mid 20s.”

The reports also included the witness statements of Tierra Edwards

(“Tierra”), Antoine Edwards (“Antoine”), and Gail Jenkins (“Jenkins”). The

statement provided by Antoine did not provide significant information relating to

the suspects’ identities. In contrast, Tierra reported that she observed three

individuals in the black truck. She identified the driver of the truck as a white male

and the passenger of the truck as a black male. However, Tierra indicated that she

“did not get a good look at the middle passenger in the truck.” Jenkins also reported

that she saw three suspects: a white driver of the truck and two black passengers.

Significantly, Jenkins expressed that she observed the white male driving the truck

brandish a gun and “fire two shots at the victim.”

After receiving the police records, Buehner, pro se and through

different attorneys, filed several motions for leave to file a motion for a new trial and

for postconviction relief. Collectively, the motions argued that Buehner’s

constitutional right to due process was violated by the state’s failure to produce the

statements of Anderson, Jenkins, and others in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He asserted that despite the state’s

indication during the discovery process that “[n]o exculpatory material [wa]s

available to or in the possession of the Prosecuting Attorney,” Anderson’s statement

contained exculpatory evidence because Anderson told police that the shooter and

the other two individuals in the truck were black whereas Buehner is white. Buehner

also asserted that inconsistencies in the statements provided by Jenkins and Tierra

would have cast doubt on the testimony of Edwards and Price, who identified

Buehner as the shooter at trial. Alternatively, Buehner argued that if the exculpatory

materials were provided to the defense team during the discovery process, the

defense team was ineffective for failing to present the evidence to the jury.

In August 2017, the trial court denied Buehner’s motions for leave to

file a motion for a new trial and for postconviction relief, stating, in relevant part:

Defendant has failed to demonstrate by clear and convincing proof that he was unavoidably prevented from discovery of the potential testimony of the witness, Debbie Anderson, as alleged by Defendant. Defendant’s trial attorneys had knowledge of the existence of the witness and Defendant has not provided clear and convincing proof that the summary was not provided in discovery, not that the trial attorneys could not have learned of the existence of her statement without reasonable diligence. Significantly, missing from the trial attorneys’ affidavit was an affirmative assertion that the police summary had not been provided in discovery. Likewise, the police summary of Ms. Anderson’s oral statements is not new evidence because Defendant was not unavoidably prevented from discovering the facts relied on in the petition and motion. Furthermore, there is not clear and convincing evidence that Defendant would have been found not guilty but for the alleged failure to provide the police summary[.] In November 2018, this court reversed the trial court’s judgment,

finding the undisclosed witness statements of Anderson and Jenkins were

exculpatory and that Buehner was unavoidably prevented from discovering the

evidence at issue. State v. Buehner, 8th Dist. Cuyahoga No. 106319, 2018-Ohio-

4432, ¶ 32 (“Buehner II”). Accordingly, the matter was remanded for a hearing “to

consider Buehner’s motion for new trial and whether the newly discovered evidence

is material under Brady, 373 U.S. 83, 84, 83 S.Ct. 1194, 10 L.Ed.2d 215.” Id. at ¶ 33.

On remand, the trial court scheduled a hearing to determine the

materiality of Anderson’s and Jenkins’s statements pursuant to this court’s mandate

in Buehner, 8th Dist. Cuyahoga No. 106319, 2018-Ohio-4432. However, the state

moved to expand the scope of the hearing to allow witnesses to explain where the

alleged exculpatory evidence had been maintained and whether it was

communicated to the defense team. Buehner opposed the motion but also raised

claims that additional exculpatory evidence, not addressed in Buehner II, had been

withheld. Specifically, Buehner argued that this additional evidence, including the

statement of Wilhelmina Mason (“Mason”) dated July 3, 2001, further supported

his claims for a new trial.

The trial court granted the motion to expand the scope of the hearing

in part. In the judgment entry partially granting the motion, the court explained

that there has not been an evidentiary hearing with respect to any of the exculpatory

evidence and Buehner’s “latest allegations require an evidentiary hearing.”

Therefore, the trial court ordered that Buehner “may bring public evidence bearing on all exculpatory evidence, discovery of same to defendant and its materiality in

defendant’s conviction.”

The matter proceeded to a hearing on November 25, 2019. At the

Brady hearing, defense counsel presented the testimony of Anderson, who verified

that on September 27, 2001, she provided a statement to investigating detectives

concerning the May 24, 2001, shooting death of Saunders. Consistent with the

statements set forth in the police report, marked defendant’s exhibit A, Anderson

testified that during the early hours of May 24, 2001, she was lying on her bed when

she heard a commotion outside. Anderson stated that when she looked outside her

bedroom window to assess the situation, she observed “two young black guys

running.” (Tr. 14.) She explained:

[T]hey ran through my yard. And when ─ as they was running, the black man got out the car and shot this kid. * * *

So we called the police and the police came. And we told the police it was four black guys got out a black truck and shot this kid.

(Tr. 14.)

Throughout her testimony, Anderson continuously stated that the

shooter was black. She explained: “Wasn’t no white guy there. They all black.” (Tr.

27.) Anderson described the shooter as “a light complexed [sic] black male * * * hair

in braided hairstyle, slim build, 5′10″, in mid 20’s.” (Tr. 22, defendant’s exhibit A.)

In addition, Anderson described another suspect from the truck “as a darker

complexed [sic] black male, medium build, 5′3″ in height, low haircut, wearing glasses and white suit.” (Defendant’s exhibit A.) Thus, Anderson maintained that

Buehner was not the shooter who killed Saunders. (Tr. 17.)

In this regard, Anderson’s testimony was consistent with her

statement to the investigating detectives, wherein she

was also adamant concerning the fact the occupants of the black pickup truck were all black males and everyone on the street, especially at the corner house, knew who these individuals were.

(Defendant’s exhibit A.) Anderson further expressed that “[s]he could only offer the

fact everyone was saying the individuals were white males in order not to tell who

actually did the shooting.” (Tr. 16, defendant’s exhibit A.)

On cross-examination, Anderson verified that she was not wearing her

prescription eyeglasses when she observed the shooting. (Tr. 21.) Anderson did not

recall what her prescription strength was in May 2001, but she stated that she did

not need her glasses to identify the suspects’ race. (Tr. 28.) Moreover, Anderson

denied drinking alcohol prior to making her statement to the detectives despite the

notation in the report that “it was also apparent this female [Anderson] was under

the influence of alcohol at the time of our arrival.”

Detective Sahir Hasan (“Det. Hasan”) testified that at the time of the

incident he was employed by the Cleveland Division of Police and was assigned as

the lead detective in this case. Det. Hasan testified that he responded to the crime

scene on the night of May 24, 2001, with Detective Gary Garisek (“Det. Garisek”).

(Tr. 71.) In his report of the original investigation dated May 24, 2001, Det. Hasan

noted that there were three individual suspects in a black or dark blue pickup truck: one white male, one black male with a “very light complexion,” and one black male

with a “dark complexion.” (Tr. 72, defendant’s exhibit I.) According to Det. Hasan’s

report, Brenda Dennis (“Dennis”), the victim’s sister, told police that the shooter was

an albino black male with dyed orange hair, and the driver of the truck was a white

male. (Defendant’s exhibit I.)

Det. Hasan confirmed that during the course of the investigation,

detectives performed documented interviews with Tierra, Antoine, Jenkins, and

Anderson. (Defendant’s exhibit J.) In relevant part, Det. Hasan agreed that a

witness identifying a different race of a potential suspect is a very important aspect

of a criminal investigation. However, he maintained that Anderson’s statement was

not consistent with “other viable information as to the suspects and the vehicles

involved in this incident.” (Tr. 90.) In part, this “viable information” included

information provided by a confidential informant who linked Buehner and Price to

the shooting.

Det. Hasan also verified the witness statement of Mason taken on July

3, 2001. While investigating a black GMC pickup truck believed to be involved in

another homicide, detectives discovered that the black GMC pickup truck was

registered to Mason. Det. Hasan explained that because the truck matched the

description of the vehicle involved in Saunder’s death, the detectives went to

Mason’s house to question her about the vehicle. In her police statement, marked

defendant’s exhibit H, Mason stated that black GMC pickup truck actually belonged

to Robert “Sonny” Allen (“Sonny”), whom she described as a “light complexed [sic] black male * * * 5′10″ to 6′0″ * * * nice hair in braids * * * 50 to 52 years old * * * .”

Mason acknowledged that she obtained license plates for the vehicle on Sonny’s

behalf because he did not have a valid driver’s license. (Defendant’s exhibit H.)

Relevant to this appeal, Mason notified the police that she had been

confronted by Edwards about the black GMC pickup truck because “the truck looked

exactly like the one that was used when Worm [Jerry Saunders] was killed.”

(Defendant’s exhibit H.) In fact, Mason expressed to the detectives that “she had a

feeling about the truck being the one involved in [Saunders’s] homicide since

hearing about it and being asked by Robert Allen to obtain the plates.” According to

Mason, Edwards stated that he saw “the black truck” immediately after Saunders

was shot and that Sonny and an individual identified as “Victor” were inside the

truck. Mason described Victor as a “skinny * * * dark complexed [sic] black male.”

Edwards also stated that he observed “one of the white males” in the truck brandish

a gun and shoot Saunders. (Defendant’s exhibit H.)

Det. Hasan admitted that Sonny was never questioned or taken into

custody. He further conceded that the statements Edwards allegedly made to Mason

were inconsistent with the statements Edwards provided to the investigating

detectives. However, Det. Hasan testified that it was the position of the investigating

detectives that the black truck linked to Mason and Sonny was not involved in

Saunders’s shooting. (Tr. 98.)

Det. Hasan was also questioned at length about Dennis and her

involvement in the investigation into her brother’s death. Det. Hasan confirmed that during the pendency of this case, Dennis frequently provided detectives with

information she gathered from potential witnesses in her neighborhood. In a

statement dated May 10, 2002, approximately one month before Buehner’s trial,

Dennis identified Eric Grant (“Grant”), also known as “Country,” as a possible

murder suspect. (Tr. 85-86, defendant’s exhibit L.) Dennis described Grant as “a

black male, medium build 5′7″ tall, brown skin, and clean cut.” Det. Hasan

confirmed that police attempted to locate Grant, but they never found him, and

there was no further investigation into that lead. (Tr. 87.)

Criminal defense attorney, James Kersey (hereinafter “trial counsel

1”) testified that he and defense attorney, Thomas Gill (hereinafter “trial counsel 2”)

(now deceased) (collectively the “defense team”) represented Buehner at trial in

2002. At the onset of his testimony, trial counsel 1 acknowledged that he had lost

Buehner’s case file in or about 2014 and, therefore, did not have access to the notes

he took during the pendency of discovery in this case. Nevertheless, trial counsel 1

testified that, in accordance with his common practice, he requested discovery from

the state, including (1) a written list of the names and addresses of all witnesses

whom the prosecuting attorney intended to call at trial, and (2) “all evidence

favorable to the defendant pursuant to Civ.R. 16(B)(1)(f).” In its response, the state

identified 15 nonpolice witnesses by name and address, including Anderson,

Jenkins, Antoine, and Tierra. However, certain witnesses, namely Det. Garisek,

Mason, Grant, Sonny, and ballistics expert, Victor Kovacic, were not identified as

potential state witnesses. In addition, the state indicated that “[n]o exculpatory material [wa]s available to or in the possession of the Prosecuting Attorney.”

(Defendant’s exhibit O.) Trial counsel 1 expressed that he interpreted the discovery

response as an indication from the state that “there was nothing that was favorable

to the defendant to exonerate him from the alleged crime.” (Tr. 118.)

Despite the state’s initial discovery response, trial counsel 1

subsequently filed two separate motions requesting the state to disclose specific

exculpatory evidence, including any “evidence which may be used to impeach a

witness/es * * * [including], but not exclusively, inconsistent statements of witnesses

or between witnesses,” and any “statements of all persons who were observed to

have been near, in, or made observations with respect to persons who were near [the

scene] on [May 24, 2001] including but not limited to * * * Debbie Anderson; * * *

Gail Jenkins; * * * Tierra Edwards; * * * [and] Antoine Edwards.” (Defendant’s

exhibits Q and R.) When asked if he received anything in response to these motions,

trial counsel 1 stated, “I don’t think so.” (Tr. 121.) He maintained, however, that he

would have recalled receiving exculpatory evidence from the state.

With respect to Anderson, trial counsel 1 conceded that trial counsel 2

attempted to contact her on more than one occasion. However, Anderson indicated

that she knew nothing about Saunders’s murder and that she did not want to get

involved. Accordingly, the defense team decided not to pursue Anderson or

subpoena her for trial because they had no knowledge of the exculpatory statement

she made to police, and the state indicated there was no exculpatory evidence. (Tr.

122-124.) Trial counsel 1 testified that he first saw Anderson’s statement after Buehner sought leave to file a motion for new trial in 2014. (Tr. 124, 130.) He

explained: “I was surprised to see it, to tell the truth.” (Tr. 124.) Trial counsel 1

testified that had he known about Anderson’s statements, he would have

subpoenaed her for trial because she identified the shooter as a black male, whereas

Buehner is white. (Tr. 125.) In the opinion of trial counsel 1, identifying a suspect

of a different race than the defendant’s race is absolutely “material.” (Tr. 125.)

Trial counsel 1 also testified that he was never provided with Mason’s

statement before trial. (Tr. 126.) Trial counsel 1 explained that he did not interview

or subpoena Mason for trial because he did not know she existed; she was not on the

state’s witness list, and 1rial counsel 1 had “never read the content of her statement.”

(Tr. 126.) Trial counsel 1 testified that had he known that Edwards had told Mason

that Sonny and Victor were in the black truck immediately after the shooting, he

would have used Mason’s statement to impeach Edwards at trial. (Tr. 127, 132.)

Trial counsel 1 further stated that he would have subpoenaed Mason to testify at

Buehner’s trial if he had known about her.

Former state prosecutor, Richard Bombik (hereinafter the “trial

prosecutor”), confirmed that he tried the case against Buehner in 2002, and actively

participated in the discovery phase of trial. The trial prosecutor was questioned at

length regarding the strength of the state’s case and the evidence used to support

Buehner’s convictions. Given the lack of forensic and physical evidence linking

Buehner to the shooting, the trial prosecutor acknowledged that the state’s case relied heavily on the testimony provided by Price and Edwards, despite contested

issues relating to their credibility as witnesses.

The trial prosecutor was also questioned about his discovery practices

and his specific recollection of disclosures to the defense team in this case. The trial

prosecutor expressed that although he did not permit the defense team to handle or

make copies of relevant documents in the days of “closed discovery,” he would read

the substance of each document aloud during pretrials and allow defense attorneys

to take notes.

Relevant to this appeal, the trial prosecutor confirmed that he

indicated in the state’s response to discovery requests, and again at the onset of the

jury trial, that “no exculpatory material [wa]s available to or in the possession of the

prosecuting attorney.” The trial prosecutor also testified that he prepared a witness

list containing individuals he deemed germane to the case. The trial prosecutor did

not dispute that Mason was never identified as a witness to Buehner’s defense team.

(Tr. 178, 182.) He also admitted that Det. Garisek was not identified as a witness

and that he should have been disclosed to the defense. (Tr. 178-180.) Lastly, the

trial prosecutor conceded that he had never seen Dennis’s May 10, 2002 statement

related to Grant, the black male whom Dennis indicated was a potential suspect.

Because he never saw the statement, he admitted that he never could have read the

content of it to the defense team in advance of trial. (Tr. 227.)

With respect to Anderson, Jenkins, and Tierra, the trial prosecutor

testified that he had no reason to believe that he did not disclose all exculpatory evidence to the defense team in accordance with his common practices. However,

the trial prosecutor admitted that he had no specific recollection of reading these

witness statements to the defense team, stating “No, I don’t have a specific

recollection, no I don’t.” (Tr. 273.) The trial prosecutor further admitted that he did

not “attach a lot of significance” to Anderson’s statement because (1) she did not

contact the police on her own, (2) she was under the influence of alcohol at the time

she gave her statement to the police, and (3) her statement contradicts the detailed

testimony of Price and Edwards. Thus, the trial prosecutor opined that he did not

believe “anybody can reach a conclusion that there weren’t two white people

involved in this crime. I don’t see how you possibly reach that conclusion.” (Tr.

220.) The trial prosecutor reached this conclusion despite acknowledging that his

own initial investigation report, dated May 24, 2001, listed the suspects as being

“one white male and two black males.” (Tr. 241, defendant’s exhibit I.)

In an order dated April 16, 2020, the trial court denied Buehner’s

motion for new trial. In relevant part, the court concluded that no exculpatory

evidence had been withheld from the defense, no exculpatory evidence existed,

Buehner’s trial counsel was not ineffective for failing to utilize evidence at trial, and

the state did not elicit false testimony. The trial court also found that “[e]ven if some

indication exists that information was not disclosed, its materiality to the outcome

of this trial is doubtful.” (Opinion and order dated April 16, 2020.)

Buehner now appeals from the trial court’ judgment. II. Law and Analysis

A. Scope of Remand

For the purposes of clarity, we address Buehner’s assignments of error

out of order. In his third assignment of error, Buehner argues the trial court erred

by expanding the scope of this court’s remand. Buehner contends that by expanding

the scope of the remand hearing, “the trial court did not follow the mandate of [this

court] and reverse the previous findings [made on appeal] to obtain an unjust

result.” For the reasons that follow, we are unpersuaded by Buehner’s

characterization of the court’s prehearing judgment.

As set forth above, this court previously reversed the trial court’s

August 2017 judgment and remanded the case to the trial court “to consider

Buehner’s motion for new trial and whether the newly discovered evidence is

material under Brady, 373 U.S. 83, 84, 83 S.Ct. 1194, 10 L.Ed.2d 215.” Buehner II,

8th Dist. Cuyahoga No. 106319, 2018-Ohio-4432, at ¶ 33. Although this court

determined that Anderson’s and Jenkins’s statements regarding the race of the

shooter were (1) not disclosed to the defense team, and (2) exculpatory, we are

unable to conclude that the trial court erred by permitting the parties to present

expansive evidence regarding “all exculpatory evidence, discovery of the same to

defendant, and its materiality in defendant’s conviction[s].”

Buehner correctly states that the law-of-the-case doctrine provides

that “the decision of a reviewing court in a case remains the law of that case on the

legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels” and “the doctrine functions to compel trial courts to follow the

mandates of reviewing courts.” Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410

(1984). As it pertains to the scope of the hearing on remand in this case, however,

testimony concerning the criminal investigation and the subsequent discovery

process was relevant to the determination of whether the disputed evidence was

material. Moreover, Buehner also raised new claims of previously undisclosed

evidence on remand, which were not part of this court’s prior decision, but are

relevant to deciding whether the suppression of exculpatory evidence warrants a

new trial. Given the trial court’s prior resolution of Buehner’s motions without a

hearing, we agree that it was proper to allow the detectives and attorneys associated

with the case to provide context to the existing record. Accordingly, we find the trial

court was justified in expanding the scope of the hearing on remand to consider

these issues.

The third assignment of error is overruled.

B. Material Evidence

In the first, second, fourth, and fifth assignments of error, Buehner

argues the trial court erred in finding that he failed to establish a Brady violation.

In the fourth assignment of error, Buehner asserts the trial court erred in finding

that the state did not withhold evidence. We discuss these assigned errors together

because they are all related to Buehner’s alleged Brady violation.

Pursuant to the United States Supreme Court’s decision in Brady,

“the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” Id., 373

U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Therefore, in order to establish a due

process violation under Brady, the defendant must demonstrate that (1) favorable

evidence, either exculpatory or impeaching; (2) was willfully or inadvertently

withheld by the state; and (3) the defendant was prejudiced thereby. Banks v.

Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004), citing Strickler

v. Greene, 527 U.S. 263, 281-282, 119 S.Ct.1936, 144 L.Ed.2d 286 (1999).

Exculpatory evidence is defined as evidence favorable to the accused,

which “‘if disclosed and used effectively, * * * may make the difference between

conviction and acquittal.’” State v. Newell, 8th Dist. Cuyahoga No. 106584, 2019-

Ohio-976, ¶ 36, quoting State v. Braun, 8th Dist. Cuyahoga No. 91131, 2009-Ohio-

4875, ¶ 70, citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87

L.Ed.2d 481 (1985). See also State v. Glover, 2016-Ohio-2833, 64 N.E.3d 442, ¶ 41

(8th Dist.) (“Exculpatory evidence is evidence that would tend to exculpate a

defendant of guilt or reduce a defendant’s penalty. This is the ‘favorable’ evidence

contemplated under Brady and its progeny, which also includes impeachment

evidence bearing on the credibility of the state’s witnesses.”).

In turn, “evidence is considered material ‘if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.’” State v. Royster, 2d Dist. Montgomery No.

26378, 2015-Ohio-625, ¶ 16, quoting Bagley at 682. “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different

verdict with the evidence,’ only that the likelihood of a different result is great

enough to ‘undermine * * * confidence in the outcome of the trial.’” Lemons v. State,

8th Dist. Cuyahoga No. 109188, 2020-Ohio-5619, ¶ 65, quoting Kyles v. Whitley,

514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

Furthermore, a court should consider the cumulative effect of all

nondisclosures in determining whether reversal is required. Glover at ¶ 34, citing

Kyles at 419. “‘Whereas each bit of omitted evidence standing alone may not be

sufficiently material to justify a new trial, the net effect, however, may warrant a new

trial.’” Id., quoting State v. Larkins, 8th Dist. Cuyahoga No. 82325, 2003-Ohio-

5928, ¶ 33. However, a reviewing court may dismiss an alleged Brady violation

where favorable evidence was suppressed “‘where the admissible evidence

comprises overwhelming proof of the defendant’s guilt.’” Id. at ¶ 45, quoting State

v. Campbell, 4th Dist. Adams No. 13CA969, 2014-Ohio-3860, ¶ 19.

The prosecution’s duty to disclose favorable evidence is not dependent

upon a request from the accused, and even an inadvertent failure to disclose may

constitute a violation. See United States v. Agurs, 427 U.S. 97, 107, 110, 96 S.Ct.

2392, 49 L.Ed.2d 342 (1976). “The term ‘suppression’ does not describe merely

overt or purposeful acts on the part of the prosecutor; sins of omission are equally

within Brady’s scope.” U.S. v. Price, 566 F.3d 900, 907 (9th Cir.2009). The

prosecution is responsible for disclosing not only what is in the prosecutor’s case

file, but any information known to the prosecutor or any investigating officers or members of the prosecution team. “[T]he individual prosecutor has a duty to learn

of any favorable evidence known to the others acting on the government’s behalf in

the case, including the police.” Kyles, 514 U.S. at 437, 115 S.Ct. 1555, 131 L.Ed.2d

490 (1995). However, no Brady violation occurs when the undisclosed evidence is

cumulative to evidence already known by the defense at the time of trial. See State

v. Cook, 1st Dist. Hamilton No. C-950090, 1995 Ohio App. LEXIS 5768, 3 (Dec. 29,

1995). There is also no Brady violation “if the evidence that was allegedly withheld

is merely cumulative to evidence presented at trial.” State v. Bonilla, 2d Dist.

Greene No. 2008 CA 68, 2009-Ohio-4784, ¶ 26.

The defendant bears the burden of demonstrating that a Brady

violation rises to the level of a denial of due process. Glover, 2016-Ohio-2833, 64

N.E.3d 442, at ¶ 35. Whether a Brady violation is material is a question of law

subject to de novo review. Id. “Under a de novo standard of review, we give no

deference to a trial court’s decision.” Brownlee v. Cleveland Clinic Found., 8th Dist.

Cuyahoga No. 97707, 2012-Ohio-2212, ¶ 9, citing Akron v. Frazier, 142 Ohio App.3d

718, 721, 756 N.E.2d 1258 (9th Dist.2001).

On appeal, Buehner argues the trial court ignored credible evidence

in order to reach the conclusion that he failed to establish a Brady violation.

Buehner contends the evidence presented at the Brady hearing unquestionably

demonstrates that the state failed to disclose relevant and favorable evidence to the

defense team prior to trial, including (1) the police statements made by Anderson,

Jenkins, Tierra, and Mason; (2) information relating to Det. Garisek’s involvement in the investigation; and (3) the identification of a potential third suspect. Thus,

Buehner asserts that viewing the material exculpatory evidence together, and in

conjunction with “the weakness of the [s]tate of Ohio’s case against [him],” “there is

no plausible way the trial court could properly reach the conclusion that [his]

constitutional rights were not violated.”

In contrast, the state maintains that the record conclusively

establishes that it did not suppress the oral statements made by Anderson, Jenkins,

Tierra, or Antoine. The state contends that the testimony presented at the Brady

hearing demonstrated that (1) these individuals were named in the witness list, (2)

the subject statements were provided to the prosecutor’s office, (3) the statements

were within the state’s file, and (4) it was the prosecutor’s common practice to read

each statement contained in the case file to the defense during the discovery process.

With respect to Mason and information relating to Sonny, the state suggests that

based on the questions posed by the defense team during the underlying trial, it can

logically be inferred that information regarding Sonny and the black truck registered

to Mason were disclosed to the defense team during pretrial proceedings.

The state further asserts that the allegedly exculpatory evidence was

not material in light of the overwhelming evidence supporting Buehner’s guilt. The

state notes that codefendant Price, who is a white male, admitted his involvement in

the shooting and provided a detailed accounting of the events as they unfolded. In

addition, Edwards, an eyewitness to the shooting and the preceding events, consistently identified Buehner as the shooter throughout the pretrial and trial

process.

Before addressing the foregoing arguments, we preliminarily reject

Buehner’s unfounded and repeated assertions that the trial court arbitrarily reached

a “predetermined outcome” prior to assessing the testimony presented at the Brady

hearing. As exhibited by the thoroughness of the trial court’s decision, it is evident

the trial court diligently considered the arguments posed by the parties, carefully

weighed the credibility of the witnesses, and provided Buehner with a full and fair

opportunity to litigate his motion for new trial. Although this court departs from

several of the conclusions reached by the trial court, the record refutes all allegations

of bias levied against the court during the pendency of this case.

We now turn to the merits of Buehner’s Brady claims. For the

purposes of this appeal, our inquiry will focus exclusively on the allegedly

undisclosed statements of Anderson, Jenkins, and Mason. As discussed further

below, Buehner has repeatedly challenged the credibility of evidence placing him at

the scene on the night of the shooting. In our view, the statements provided by

Anderson, Jenkins, and Mason are directly relevant to the contested issue of

identity, including specific information regarding the race, gender, and description

of the alleged shooter, as well as information relating to the truck used to facilitate

the crime. The remaining evidence disputed at the Brady hearing, while relevant, required speculation about other potential leads or otherwise did not dispositively

address the issue of identity.3

Consistent with our prior holding in Buehner II, we find the

statements made by Anderson and Jenkins during the early stages of the police

investigation were exculpatory. As discussed, evidence is exculpatory when it is

“favorable to an accused.” Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963). In this case, there has been much debate regarding the race of the

individuals inside the black truck at the time of the shooting. In addition, the

defense has suggested that the gun used to fatally shoot Saunders was fired from the

driver’s seat of the vehicle, a position alleged to have been occupied by Price.

In this regard, the statements of Anderson and Jenkins provided

essential information regarding the descriptions of the perpetrators and the location

of the shooter inside the black truck. If believed, Anderson’s statement suggests that

a black male was responsible for Saunders’s death. Buehner II, 8th Dist. Cuyahoga

No. 106319, 2018-Ohio-4432, at ¶ 26. Similarly, Jenkins’s statement, if believed,

suggests that the individuals sitting in the middle and passenger seats of the black

truck were black males. In addition, Jenkins’s testimony expressed that the white

male sitting in the driver’s seat of the black truck was the person responsible for

3 Buehner further argued that the state’s failure to produce an expert report from its ballistics expert before trial warrants a new trial. However, as noted by Buehner in his appellate brief, the state’s ballistics expert, Victor Kovacic, testified at trial that he conducted ballistics testing on evidence collected from the crime scene on the second day of trial. Therefore, Buehner knew about the state’s failure to provide the expert report when he filed the direct appeal of his conviction, and it is not newly discovered evidence within the meaning of Crim.R. 33. shooting Saunders. Such information would undoubtedly been favorable to

Buehner and his efforts to discredit the state’s witnesses while corroborating his own

alibi.

We recognize that the statements provided by Anderson, Jenkins, and

Tierra varied from each other in certain aspects. We are also aware that Price, a

white male, accepted responsibility for his role in the events. Significantly, however,

the statements provided by Anderson and Jenkins do not place a gun in the hands

of a white male sitting in the middle passenger’s seat of the black truck. The

statements were inconsistent with, and in some instances contradictory to, the

testimony presented by the state’s primary witnesses, Price and Edwards. Under

these circumstances, we find Anderson’s and Jenkins’s statements constituted

exculpatory evidence that should have been produced during the discovery process.

We further find the information set forth in the statement provided by

Mason was favorable evidence that should have been disclosed to the defense team.

Throughout these proceedings, there has been much debate regarding the identity

of the third perpetrator and the make, model, and ownership of the black truck used

during the shooting. Edwards testified that the truck was a “black, GMC small body

pickup,” whereas Price testified that the truck was a “regular-sized” Dodge Ram

pickup. (Trial tr. 476, 635.). Locating and analyzing the truck was certainly

important to the investigation because it may have provided a direct link to the

perpetrators. Although Det. Hasan testified that the detectives discovered a truck

believed to be involved in the shooting, the trial prosecutor confirmed that the prosecution could not confirm the identity of the truck used in the incident. (Tr.

209-210.)

Here, Mason expressed in her statement to detectives that Edwards

“confronted” her about a 1993 black GMC pickup truck that was registered under

her name because the truck “looked exactly like the one used when [Saunders] was

killed.” He also informed Mason that “he saw the black truck immediately after the

shooting with [Sonny] and Victor inside.” The record reflects that in response to

Mason’s statement, the detectives interviewed Edwards and confronted him about

Mason’s truck and Sonny’s potential involvement in the shooting. In a statement,

dated July 24, 2001, Edwards expressed to the detectives that Sonny “was not the

black male inside the black colored truck that night and had no involvement in this

case.” (Defendant’s exhibit Y.) Edwards conceded that Sonny did have a truck

similar to the one used in the shooting but that Sonny’s truck was in worse condition.

The state suggests that Mason’s statement was not exculpatory

because Edwards later clarified that Sonny and the black GMC pickup truck were

not involved in the shooting. We disagree. Viewing Mason’s statement in its

entirety, a reasonable person could conclude that Edwards confronted Mason

because he believed her vehicle was used in the shooting death of Saunders.

Edwards’s use of the phrase, “the black truck,” when referring to the vehicle he

observed Sonny inside “immediately” after the shooting is relevant. In addition,

Mason indicated that the confrontation caused her to believe that the black GMC

pickup truck was the vehicle “involved in [Saunders]’s homicide.” At the very least, Mason’s statement could be used to impeach Edwards’s July 24, 2001 statement and

his testimony at trial that Sonny was not the third, unidentified male inside the truck

on the night of the shooting. For these reasons, trial counsel 1 testified that had he

known of Mason’s existence and her statement to police that Robert “Sonny” Allen

was a potential suspect in Saunders’s death, he would have subpoenaed her to testify

at trial. (Tr. 128.)

Having determined that the foregoing statements contained favorable

information to the defense, we now turn to the highly contested issue of whether

these statements were disclosed during the closed discovery process utilized in 2001.

In addressing this issue, we begin by acknowledging the

professionalism of the attorneys involved in Buehner’s prosecution and defense, as

well as the credibility of these witnesses to the extent their testimony relied on their

memory and common practices. Unfortunately, however, the passage of time, the

defense team’s inability to locate their case file, and the nature of the discovery

process used at the time of pretrial discovery in this case has created an untenable

situation where the trial court was left to rely on speculative statements and

accounts of what the trial prosecutor and trial counsel 1 believed they would have

done under normal circumstances. During the Brady hearing, both the trial

prosecutor and trial counsel 1 demonstrated, albeit justifiably, the inability to have

specific recollections of critical issues. For instance, the trial prosecutor did not

dispute that he had no specific recollections concerning the disclosure of the statements provided by Anderson, Jenkins, and Mason. (Tr. 183-184, 226-227, 272-

273.) He stated:

Q: You also don’t have any specific recollection of the day that any of those reports would have been read to anyone?

A: No, I don’t have a specific recollection, no I don’t. No.

(New trial tr. 273.) In turn, the state demonstrated that trial counsel 1 could not

specifically recall other aspects of the case, including specific testimony and

evidence presented at trial, the basis of specific questions posed on cross-

examination, or the information that prompted him to file additional discovery

requests. (Tr. 130-131, 142-144.)

Despite their faded memories, however, the trial prosecutor maintains

that he had no reason to believe he would not have disclosed the statements

pursuant to his common practice of meticulously reading each statement to counsel;

while trial counsel 1 emphatically claims that he would have utilized these

statements in his defense had they been disclosed because they directly addressed

contested issues concerning the identity of the shooter. (Tr. 124-131.)

Without questioning the truthfulness of the testimony presented at

trial, or the good faith efforts pursued by all parties during the discovery process, it

is imperative to focus on the objective, verifiable information in the record. As this

court stated in Buehner II, there is no dispute that the state indicated in its discovery

requests that “[n]o exculpatory material [wa]s available to or in the possession of

the prosecuting attorney.” Buehner II, 8th Dist. Cuyahoga No. 106319, 2018-Ohio-

4432, at ¶ 23. It is equally uncontested that trial counsel 1 subsequently filed motions requesting the statements of all persons who were believed to have

information regarding the shooting, including Anderson and Jenkins. At the Brady

hearing, trial counsel 1 did not recall receiving a response to this discovery request,

but confirmed that he “never received from the state of Ohio any exculpatory

evidence.” (Tr. 121-122.) Trial counsel 1 further explained that he only filed the

additional discovery requests for specific exculpatory evidence in order to “lock [the

state] into” its initial response “on the file that indicate[d] that there [wa]s no

exculpatory evidence.” (Tr. 122.)

In its written opinion, the trial court determined that trial counsel 1’s

motion for specific exculpatory information, marked defendant’s exhibit R,

contained language that “infers knowledge of the information from Jenkins and

Tierra” through discovery. In support of its position, the trial court cited a

paragraph from the motion, which states, in relevant part:

Based on pre-trial disclosures by the state of Ohio and investigation by the defense it was discovered that a number of persons were arrested and interviewed within 48 hours of the shooting. Also, statements were allegedly made suggesting that Randy Price was present and the perpetrator of the offense. In addition, witnesses supposedly made observations about persons in the car.

When confronted with the statement contained in the discovery

motion, trial counsel 1 indicated that the motion was referring to information drawn

from the known statements made by Price and Edwards. (Tr. 151-153.) More

significantly, however, the nature of the request demonstrates, without speculating,

that the defense team had not yet been provided with any specific statements regarding other potential eyewitnesses as of the time of the filing. At the very most,

the motion demonstrated that that the defense learned that individuals listed on the

state witness list may have made statements helpful to the defense through their

own independent investigation, but the content of those statements were not

disclosed by the state. Trial counsel 1 explained that if he had information relating

to favorable statements from a specific witness, he would have listed that person by

name in the motion. (Tr. 155.) Under these circumstances, we cannot join the trial

court’s conclusion that the language contained in the discovery motion illustrated

the state’s disclosure of relevant statements.

We acknowledge that Anderson and Jenkins were named in the

witness list disclosed to the defense team. However, this did not relieve the state of

its obligation to disclose their exculpatory statements particularly where, as here,

those statements were specifically requested during the discovery phase of trial. See

State v. Johnston, 39 Ohio St.3d 48, 61, 529 N.E.2d 898 (1988), fn. 22. Trial counsel

1 explained that because the state indicated “on numerous occasions” that there was

no exculpatory evidence, he had no reasonable expectation that any witnesses had

made exculpatory statements. (Tr. 130.) And, unlike Anderson and Jenkins, the

state concedes that Mason was not listed on the witness list provided during

discovery. (Tr. 183.) As such, trial counsel 1 testified that he was completely

unaware of Mason’s existence as a witness and, therefore, could not have reviewed

her statement or contacted her prior to Buehner’s trial. (Tr. 126.) Consistent with our prior decision, we reiterate that the objective facts

in this record support the conclusion that “Buehner had no knowledge of the

exculpatory information contained in the undisclosed police reports. Nor did he

have any reason to believe that the police reports contained improperly suppressed

exculpatory evidence because the state represented that no exculpatory evidence

existed.” Buehner II, 8th Dist. Cuyahoga No. 106319, 2018-Ohio-4432, at ¶ 30.

Deferring to the need to uphold the constitutional protections afforded to criminal

defendants and in the absence of specific recollections or documentary evidence to

establish clear disclosures, we decline to reject Buehner’s Brady claims based on the

state’s reliance on probabilities or assumptions. Accordingly, we find competent,

credible evidence supports a finding that the state failed to disclose to the defense

exculpatory evidence contained in Anderson, Jenkins, and Mason’s statements. We,

therefore, find that the trial court erred in concluding that no exculpatory evidence

was withheld from Buehner in advance of his trial.

Finally, having reviewed the evidence alleged to have been

suppressed, we conclude that there is a reasonable probability that the outcome of

the trial would have been different had the evidence been disclosed to the defense.

As discussed, the state argues that the suppressed statements are not

material because they cannot overcome or diminish the collective persuasiveness of

the state’s evidence at trial. Specifically, the state notes that (1) Price, a white male,

accepted responsibility for his role in the shooting; (2) Edwards, an eyewitness to

the shooting, identified Buehner as the shooter; and (3) Henry Harris (“Harris”), an unbiased witness, observed two white males and one black male in the black truck

used by the perpetrators. The state further challenges the credibility of the allegedly

exculpatory evidence, arguing the descriptions provided in the disputed statements

were inconsistent with other witness accounts and evidence presented at trial. The

trial court agreed, finding Anderson, Jenkins, and Mason would not have been

useful witnesses to the defense.

We disagree with the state’s assessment of the exculpatory evidence

as well as the strength of its own case. In this case, the state’s prosecution of Buehner

relied primarily on the identification testimony of Price and Edwards, as well as the

description of the perpetrators provided by Harris. There was no physical or

forensic evidence connecting Buehner to the shooting or the truck used during the

commission of the crime. Thus, information concerning the descriptions and

identities of the three individuals located within the black truck was critical. The

statements provided by Anderson and Jenkins went to the heart of these issues and

provided descriptions of the event as it unfolded without bias and from a different

vantage point. Moreover, Mason’s statement provides insight into Edwards’s state

of mind and his potential suspicions concerning the shooter in the days following

Saunders’s death. While Edwards subsequently attempted to clarify his statements

to Mason by specifically stating that Sonny and the black GMC pickup truck were

not involved in the shooting, Mason’s statement could certainly be used to impeach

or discredit Edwards testimony as the statement, taken on its face, gives the impression that their conversation caused Mason to develop “a feeling” that her

vehicle and, in turn, Sonny, were involved in the shooting. (Defendant’s exhibit H.)

With respect to Price and Edwards, the record reflects that several

jurors were initially hesitant to accept their testimony as true, presumably based on

their criminal histories and the considerations provided by the state in exchange for

their testimony.4 During deliberations, the jury foreperson gave the judge a note,

which stated, in relevant part:

We are unable to arrive at any conclusion. Two of the members of our jury do not accept the testimony of either Edwards or Randy Price that Michael Buehner was involved in the shooting. Based on their past history and their activities and character[,] they do not believe the testimony of [Edwards] or [Price] that Michael Buehner was in the truck or participated in the shooting. We have had three hours of discussion on this issue and there has been no change in the opinion of these two jurors.

It is quite possible that other jurors would have joined in their disbelief

had Mason’s statement been used to impeach Edwards testimony concerning Sonny

and the truck used during the incident and had Anderson testified that the suspects

involved in the shooting were all black. Interestingly, Anderson’s description of the

4 Price pleaded guilty to one count of involuntary manslaughter and one count of aggravated robbery in exchange for his testimony at Buehner’s trial.

Edwards testified at trial that he was not promised any considerations from the state in exchange for his testimony in this case. (Trial tr. 555.) In the motion for new trial, however, Buehner noted that Edwards (1) “only provided his statement [linking Buehner to the shooting] after communicating with various other individuals [in his neighborhood] and while he was arrested on outstanding warrants,” and (2) “appears to have received a lessened sentence for his pending [drug trafficking] cases as a result of his testimony in this case.” shooter is consistent with Mason’s description of Sonny, i.e. a 5′10″, black male, with

a light complexion, and braided hair.

We recognize that the eyewitness account provided by Jenkins was

inconsistent with the statement provided by Anderson in some aspects. However,

Jenkins’s testimony that the white male sitting in the driver’s seat of the black truck

was the shooter may have provided the jury with a further basis to question Price’s

testimony and his motive to incriminate another individual. In addition, there is no

dispute that, similar to Harris, the statements provided by Anderson, Jenkins, and

Mason were made without bias and without incentives to fabricate. Presented with

numerous accounts regarding the race, description, and location of the shooter in

the black truck, a jury would have had ample information before it to question

whether the state proved its case beyond a reasonable doubt. The fact that the

statements provided by Anderson, Jenkins, and Harris were inconsistent with each

other in a number of respects is not harmful to Buehner’s position, as the

discrepancies in the statements only serve to diminish the certainty of the shooter’s

identity and his location inside the black truck.

Lastly, we find it would be inappropriate to speculate, based on the

information available at this time, that the statement provided by Anderson “could

have been easily impeached.” (Opinion and order dated April 16, 2020, p. 17.) In

this case, Anderson admitted that she was not wearing prescription eyeglasses when

she witnessed the murder, but she testified that she did not need them to see

suspects’ races. Although detectives claimed she was intoxicated when they arrived at her home, unannounced, to take her statement, there was nothing to suggest that

she was incoherent or that the alcohol she consumed affected her memory.

Moreover, unlike Edwards and Price, the only eyewitnesses to actually testify at

Buehner’s trial, she had no apparent motive to lie about her observations.

The trial court further concluded that Anderson lacked credibility

because she claimed she told police at the scene that someone involved in the

shooting was also present, but they ignored her. The trial court found this statement

unbelievable. However, Edwards testified that he returned to the scene and walked

by Saunders’s body when police were arriving at the scene. (Trial tr. 491-492.) It is

possible that if Anderson had been provided a photo array of Edwards, she would

have identified him as the person she observed at the scene after the shooting.

Therefore, we find no reason to dismiss her testimony for lack of credibility,

particularly since she had no apparent reason to lie.

Given the seriousness of the crimes involved, the nature of the

evidence used to convict Buehner, and the passage of time between the jury trial and

the Brady hearing, this case undoubtedly presents difficult questions of fact and

issues of law. However, considering the significance of the evidence suppressed, we

find that our confidence in the jury’s verdict is sufficiently undermined. We find a

reasonable probability exists that the jury would have reached a different decision if

the exculpatory evidence had been known at trial. As such, we find the state’s failure

to disclose the statements of Anderson, Jenkins, and Mason constituted separate

and distinct Brady violations that deprived Buehner of his right to due process. Accordingly, the trial court erred by denying Buehner’s motion for a new trial based

on its determination that Buehner failed to establish a Brady violation. Buehner’s

first, second, fourth, and fifth assignments of error are overruled.

C. Buehner’s Napue Claim

In the sixth assignment of error, Buehner argues the trial court erred

when it summarily dismissed his claim that the state utilized false testimony in

violation of Illinois v. Napue, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

Where a prosecutor knowingly uses perjured testimony, or fails to

correct what he subsequently learns was perjury, the falsehood is deemed material

for Brady purposes “if there is any reasonable likelihood that the false testimony

could have affected the judgment of the jury.”

To establish a Napue claim, a defendant must show that (1) testimony

was false, (2) the testimony was material, and (3) the prosecution knew it was false.

Coe v. Bell, 161 F.3d 320, 343 (6th Cir.1998). “The burden is on the defendants to

show that the testimony was actually perjured, and mere inconsistencies in

testimony by government witnesses do not establish knowing use of false

testimony.” Id. See also State v. Iacona, 93 Ohio St.3d 83, 97, 752 N.E.2d 937

(2001). As previously stated, a false statement is material for Brady purposes “‘if

the false testimony could * * * in any reasonable likelihood have affected the

judgment of the jury * * *.’” Giglio, 405 U.S. at 154, 92 S.Ct. 763, 31 L.Ed.2d 104,

quoting Napue at 271. On appeal, Buehner contends the state knew that Edwards provided

perjured testimony at his trial. In this case, Edwards testified at trial that even

though he was on probation for drug trafficking at the time of Saunders’s murder,

he was also selling crack cocaine at that time. Buehner asserts that because Edwards

was never found in violation of his probation and was never charged with new drug

charges even though Edwards told police he was selling drugs at the time of the

shooting, the state must have known he would offer false testimony at Buehner’s

trial.

However, there is no evidence establishing that Edwards offered

perjured testimony or that the prosecutors knew he would offer perjured testimony.

Here, Edwards was thoroughly cross-examined about his extensive involvement in

drug trafficking and his prior and pending criminal cases. Although there were

issues that affected Edward’s credibility as a state’s witness, including his criminal

history, there is no indication that Edwards provided false testimony merely because

he admitted to engaging in illegal activities with Saunders on the night of the

shooting. Therefore, Buehner has failed to establish a Napue claim.

The sixth assignment of error is overruled.

The trial court’s judgment is affirmed in part, reversed in part. We

remand the case to the trial court for a new trial.

It is ordered that appellee and appellant share costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to the common pleas court to carry

this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR