State v. Hale

2023 Ohio 3626

Opinion

[Cite as State v. Hale, 2023-Ohio-3626.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112163 v. :

DELANO HALE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: October 5, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-04-454857-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Sarah E. Hutnik, Assistant Prosecuting Attorney, for appellee.

Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for appellant.

EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Delano Hale (“Hale”), appeals from the trial

court’s denial of his “motion for leave to file a delayed motion for new trial, with memorandum in support and all exhibits.” He raises the following assignments of

error for review:

1. The trial court abused its discretion in denying appellant leave to file a delayed motion for new trial.

2. The trial court abused its discretion in failing to address appellant’s petition for postconviction relief.

{¶ 2} After careful review of the record and relevant case law, we affirm in

part, reverse in part, and remand the matter to the trial court for further proceedings

consistent with this opinion.

I. Procedural and Factual History

A. Hale’s Conviction and Direct Appeal

{¶ 3} On July 28, 2004, Hale was indicted for aggravated murder, with felony

murder death specifications, aggravated robbery, tampering with evidence, and

having a weapon while under disability, all in connection with the death of Douglas

Green (“Green”). The relevant facts supporting the indictment are as follows:

In 2003, Hale was released from prison after serving 12 years of a sentence for aggravated robbery and carrying a concealed weapon. At first, he lived with his father, but left in February 2004. That same month, he obtained a telemarketing job with a base pay of $ 7.64 per hour. On March 9, 2004, Hale told his sister Lashayla that he had a gun.

By June 2004, Hale was in financial difficulty. His bank account had a negative balance during all of June 2004. On June 8, he moved into Room 260 of the Lake Erie Lodge, a motel in Euclid. He initially rented the room for a week. He renewed his stay for another week on June 15, renewed for a single night on June 22, and checked out on June 23.

On June 23, 2004, an employee of the lodge found a human corpse wrapped in plastic garbage bags in Room 231, a vacant room being used for storage. He notified the management, who summoned the police. The body was identified as that of Douglas Green, a local voice teacher, professional singer, and music producer.

An autopsy disclosed that Green had been shot four times in the right side of the head. Two shots went into Green’s right ear, one entered his skull directly behind the ear, and one entered about two and one-half inches behind the ear. Three of the four shots entered Green’s brain. Any one of these three wounds would have immediately stopped any voluntary movement on Green’s part. Three of the wounds were contact wounds, meaning that the shots were fired from no more than an inch away. Gunshot residue was found on Green’s right hand, but not his left, an indication that Green’s right hand was in close proximity to the gun when it was fired.

Green’s bank statement shows that at 12:07 p.m. on June 22, 2004, a person using Green’s Visa card made a $ 55.15 purchase at a Giant Eagle store in Willoughby Hills. Giant Eagle records show that the purchaser bought garbage bags, cleaning supplies, beer, and cigarettes in that transaction. Green did not smoke or drink beer. The purchaser also used a Giant Eagle discount card registered to Hale’s sister and deceased mother.

Hale’s friend James Hull saw Hale driving a[n] Explorer SUV on two occasions after Green’s murder, including on June 23, 2004, when Hull helped Hale move out of the lodge. Hull later identified photographs of Green’s SUV as the one Hale had been driving.

On June 28, 2004, at 2:30 p.m., Detective Sergeant Robert Pestak of the Euclid police found Hale inside Green’s Ford Explorer SUV, parked near Hale’s workplace in Cleveland. Pestak, supported by Cleveland police units, arrested Hale.

When told that he was being arrested for Green’s murder, Hale said, “I didn’t kill anybody.” Sergeant Pestak administered Miranda warnings to Hale. While being led to a cruiser, Hale again said, “I didn’t kill anybody.”

Hale was taken to the Euclid police station and placed in a cell. After approximately five hours, Hale was removed from the cell and brought to the detective bureau. There, Detective Sergeant James Baird [(“Det. Baird”)] completed a personal-information form on Hale and presented it to Hale for his signature. Hale signed the form using his left hand, but Baird noted that Hale had difficulty writing with that hand. Baird then administered Miranda warnings to Hale. Hale signed a Miranda waiver form, and this time, Hale used his right hand. Baird proceeded to interrogate Hale. During the interrogation, Baird told Hale that Green “was possibly bisexual” and that “if this was a case of self-defense, then that would be understandable if he felt that Mr. Green had attacked him.”

Hale wrote out and signed a four-page statement. In his statement, Hale claimed that he had met Green in May 2004 when Green, identifying himself as a record producer, asked Hale whether he had considered singing professionally and gave Hale his cell-phone number. According to Hale, he later called Green, and Green agreed to go to Hale’s motel room to hear him sing.

According to Hale, they had arranged to meet at the Underground Railroad, a bar near the lodge. Hale claimed that he and Green had met at the Underground Railroad on Monday, June 21, 2004. (However, according to the owner of the Underground Railroad, that establishment was closed on Mondays.) They then went to Hale’s room. According to Hale, Green had a small gun in his shoulder bag and displayed it to Hale as they entered the room.

Hale claimed that he sang for Green, then went to the bathroom. Hale claimed that when he returned, he found Green lying on the bed, nude. Hale told Green to leave. According to Hale, Green grabbed Hale’s wrists and “laid his head on [Hale’s] crotch” while making “slurping” noises.

Hale claimed that he then freed his right hand, reached into Green’s bag, pulled out the gun, held it to Green’s head, and cocked it. According to Hale, Green said, “It isn’t loaded, so why don’t you give me some of that dick.”

Hale fired. Green “reeled back,” but still gripped Hale’s left wrist, according to Hale. Hale cocked the gun and fired again. He then backed away from Green, took some bullets from Green’s bag, and reloaded. According to Hale, Green then tried to stand up. Hale fired “once or twice” more.

According to Hale, he considered calling an ambulance or the police, but decided not to after he “thought about * * * [his] record” and “the life [he] was attempting to build.” Instead, he disposed of the gun and Green’s belongings. Then he went out to buy cleaning supplies to clean up Green’s blood, using Green’s credit card because Hale’s “funds were low.” The next day, he wrapped Green’s body in garbage bags, also purchased with Green’s credit card, and dragged the body to a storage room.

State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 4-17 (“Hale

I”).

{¶ 4} “At trial, the defense claimed that Hale’s killing of Green constituted

lawful self-defense because Green had attempted to rape Hale.” Id. at ¶ 36.

Ultimately, the jury rejected Hale’s defense and found him guilty of all counts and

specifications. On July 18, 2005, the trial court adopted the jury’s unanimous

recommendation and sentenced Hale to death on the aggravated-murder offense,

and an aggregate 13-year prison term on the remaining convictions.

{¶ 5} On July 15, 2008, Hale’s conviction and sentence were affirmed by the

Ohio Supreme Court. Hale I.

B. Postconviction Proceedings in State Court

{¶ 6} While his direct appeal was pending before the Ohio Supreme Court,

Hale filed a petition for postconviction relief, raising 19 grounds for relief. Following

a substantial delay, the trial court dismissed Hale’s petition on September 24, 2015.

This court affirmed the trial court’s judgement in State v. Hale, 8th Dist. Cuyahoga

No. 103654, 2016-Ohio-5837, ¶ 49 (“Hale II”).

{¶ 7} On January 11, 2017, Hale filed a “combined motion for leave to file a

motion for new mitigation trial pursuant to criminal rule 33 and R.C. 2953.21.” Hale

argued that the Ohio death penalty scheme was unconstitutional. On September 10,

2018, the trial court denied Hale’s combined motion. This court affirmed the trial court’s judgment in State v. Hale, 8th Dist. Cuyahoga No. 107782, 2019-Ohio-1890

(“Hale III”).

C. Postconviction Proceedings in Federal Court

{¶ 8} In 2008, and again in 2017, Hale filed petitions for writs of certiorari

with the U.S. Supreme Court, which were denied. Hale v. Ohio, 556 U.S. 1168, 129

S.Ct. 1906, 173 L.Ed.2d 106 (2009); Hale v. Ohio, 138 S.Ct. 1269, 200 L.Ed.2d 424

(2018).

{¶ 9} On October 10, 2018, Hale filed a petition for a writ of habeas corpus in

the Northern District of Ohio, Eastern Division, pursuant to 28 U.S.C. 2254. In

relevant part, Hale argued that the trial court’s jury-selection procedures, which

excluded persons convicted of felonies from the jury pool, violated his Sixth

Amendment right to a jury from a fair cross-section of his community and his

Fourteenth Amendment rights to due process and equal protection. Hale also raised

various ineffective assistance of counsel claims based on defense counsel’s alleged

failure t0 (1) hire experts in forensic pathology, bloodstain pattern analysis, forensic

psychiatry, sexual abuse, and trauma; (2) discover Green’s alleged suicidal condition

before his murder; and (3) obtain parole and prison records. Finally, Hale claimed

that the prosecution failed to disclose material exculpatory and impeachment

evidence, violating his due process rights under Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963).

{¶ 10} The motion was denied on March 31, 2021. Hale v. Shoop, N.D. Ohio

1:18-cv-504, 2021 U.S. Dist. LEXIS 61953 (Mar. 31, 2021). His request for reconsideration was denied on March 1, 2022. Hale v. Shoop, N.D. Ohio 1:18-cv-

504, 2022 U.S. Dist. LEXIS 36135 (Mar. 1, 2022).

D. Hale’s Latest Motion for Leave to File a Delayed Motion for New Trial

{¶ 11} On August 1, 2022, Hale filed a motion for leave to file a delayed

motion for new trial pursuant to Crim.R. 33(B) based on newly discovered evidence.

Hale argued that “due to improper suppression by the state, as well as facts

reasonably unknown to him, [he] was ‘unavoidably prevented from discovering the

evidence’ upon which he relies until well after 120 days had elapsed.” He contends

that the evidence attached to his motion for leave demonstrates that the state

unconstitutionally (1) withheld exculpatory or impeaching evidence at the time of

trial; (2) relied on “junk science” in securing his convictions and death sentence; and

(3) systematically excluded people with felony convictions, “which disproportionally

impacted black men, from petit and grand juries, including his own.”

{¶ 12} Within the motion for leave, Hale identified a collection of documents

that were allegedly not turned over to defense counsel prior to trial. These

documents included (1) Hale’s Ohio Adult Parole Authority records (Exhibit A-1);

(2) a supplemental police report completed by Det. Baird on June 24, 2004, (Exhibit

A-2); (3) handwritten notes taken by an unknown member of law enforcement

regarding a voicemail the victim left with his daughter (Exhibit A-16); (4) notes

taken by an unknown member of law enforcement regarding a phone interview with

the victim’s friend, Ricardo Cuffari (“Cuffari”) (Exhibit A-3); and (5) notes taken by Det. Michael Grida of the Euclid Police Department regarding a statement made by

a friend of Green, acknowledging that he had “known about Green’s sexuality for a

long time.” (Exhibit A-17.) Hale’s motion also relied on new expert reports authored

by forensic pathologist, Dr. James Filkins (“Dr. Filkins”) (Exhibit A-13) and

bloodstain spatter analysis expert, T. Paulette Sutton (“Sutton”) (Exhibit A-14).

Finally, Hale relied on an advisory opinion issued by the Ohio Attorney General in

2006, and the testimony adduced during an unrelated trial in 2011, indicating that

the Cuyahoga County Court of Common Pleas was “systematically excluding

otherwise eligible jurors with felony convictions from its jury venire.” (Exhibits A-4,

A-5, A-6, A-8.)

{¶ 13} On August 29, 2022, the state filed a brief in opposition, arguing Hale

failed to demonstrate by clear and convincing evidence that he was unavoidably

prevented from discovering the evidence supporting his motion for leave. The state

maintained that Hale could not demonstrate that he “(1) had no knowledge of the

existence of the evidence or grounds supporting the motion for a new trial, and (2)

was unavoidably prevented, while exercising reasonable diligence, from learning of

these grounds within the statutorily prescribed time [by Crim.R. 33].”

{¶ 14} On October 25, 2022, the trial court summarily denied Hale’s motion

for leave without a hearing.

{¶ 15} Hale now appeals from the trial court’s judgment. II. Law and Analysis

A. Leave to File Motion for New Trial

{¶ 16} In the first assignment of error, Hale argues the trial court abused its

discretion by denying his motion for leave to file a motion for new trial without a

hearing. Hale contends that leave should have been granted because the exhibits

attached to his motion established that he was unavoidably prevented from

discovering the evidence supporting his proposed motion for new trial. He explains

his position as follows:

Hale did not know the basis of his new trial motion existed at the time of his trial, nor in the 120-day period following trial. First, Hale was unavoidably prevented from discovering the favorable police and parole records since the state suppressed them. Second, the trial counsel’s failure to adequately investigate explains and excuses Hale’s failure to discover the forensic evidence demonstrating his capital convictions and sentence are based on fundamentally flawed and incomplete testimony. Third, as the federal court concluded, “Hale was not at fault for failing to develop sooner his fair-cross-section and equal-protection claims relating to Cuyahoga County’s jury-selection process (Doc. Nos. 13-8 - 13-15). The factual predicate of these claims was not apparent or readily available to Hale or his counsel at trial or before his post-conviction proceedings.”

{¶ 17} We review the denial of a motion for leave to file a delayed motion for

new trial for an abuse of discretion. State v. Hill, 8th Dist. Cuyahoga No. 108250,

2020-Ohio-102, ¶ 13, citing State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-

Ohio-6983, discretionary appeal not allowed, 152 Ohio St.3d 1411, 2018-Ohio-723,

92 N.E.3d 881. This includes any decision granting or denying an evidentiary

hearing. State v. Johnson, 8th Dist. Cuyahoga No. 109084, 2020-Ohio-3371, ¶ 14,

citing State v. Bonnell, 8th Dist. Cuyahoga No. 108209, 2019-Ohio-5342, ¶ 37, citing State v. Hill, 8th Dist. Cuyahoga No. 102083, 2015-Ohio-1652, ¶ 16. An abuse of

discretion occurs when a court exercises “its judgment, in an unwarranted way, in

regard to a matter over which it has discretionary authority.” Johnson v. Abdullah,

166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

{¶ 18} Crim.R. 33 provides that a new trial may be granted on motion of the

defendant where new evidence materially affects the defendant’s substantial rights

and satisfies the following:

When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.

Crim.R. 33(A)(6).

{¶ 19} Crim.R. 33(B) provides that a motion for new trial based on newly

discovered evidence must be filed within 120 days after a verdict is rendered. A

defendant who fails to file a motion for new trial within the prescribed timeframe

must seek leave from the trial court to file a delayed motion for new trial. Hale, 8th

Dist. Cuyahoga No. 107782, 2019-Ohio-1890, at ¶ 9, citing State v. Bryan, 8th Dist.

Cuyahoga No. 105774, 2018-Ohio-1190.

{¶ 20} To obtain leave, Crim.R. 33(B) requires the defendant to demonstrate

by clear and convincing proof that he or she was unavoidably prevented from filing the motion for a new trial. Significantly, “[w]hen a defendant seeks leave to file a

motion for a new trial under Crim.R. 33(B), the trial court may not consider the

merits of the proposed motion for a new trial until after it grants the motion for

leave.” State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 30,

citing State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41,

citing State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio-1080, ¶ 14. “The

sole question before the trial court when considering whether to grant leave is

whether the defendant has established by clear and convincing proof that he was

unavoidably prevented from discovering the evidence on which he seeks to base the

motion for a new trial.” Id.

[A] party is unavoidably prevented from filing a motion for a new trial if the party had no knowledge of the existence of the ground supporting the motion * * * and could not have learned of the existence of that ground within the time prescribed for filing the motion * * * in the exercise of reasonable diligence.

State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).

{¶ 21} In turn, “clear and convincing proof” is defined as “‘that measure or

degree of proof [that] is more than a mere “preponderance of the evidence,” but not

to the extent of such certainty as is required “beyond a reasonable doubt” * * * and

which will produce in the mind of the trier of facts a firm belief or conviction as to

the facts sought to be established.’” State v. Gray, 8th Dist. Cuyahoga No. 107394,

2019-Ohio-1638, ¶ 12, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118

(1954), paragraph three of the syllabus. {¶ 22} In Bethel, the Ohio Supreme Court examined the scope of the

“unavoidably prevented” requirement in Crim.R. 33(B) to determine whether the

rule imposes a reasonable time requirement. The Bethel Court noted that,

historically, appellate courts have concluded that a defendant must file a motion for

leave within a reasonable period of time after discovering the new evidence. Id. at

¶ 53. The court, however, applied “general principles of statutory construction” and

determined that the rules do not authorize or support the “creation of a reasonable-

time filing requirement” under Crim.R. 33(B). Id. at ¶ 54-55. Bethel clarified that

Crim.R. 33(B) “does not establish a time frame in which a defendant must seek leave

to file a motion for a new trial based on the discovery of new evidence.” Id. at ¶ 55.

{¶ 23} In this case, Hale was convicted in 2005 and he filed his motion for

leave in August 2022, well beyond Crim.R. 33(B)’s 120-day time limit. Thus, to

obtain leave to file a motion for new trial, Hale was required to establish, by clear

and convincing evidence, that he was “‘unavoidably prevented from the discovery of

the evidence upon which he must rely.’” Bethel at ¶ 53, quoting Crim.R. 33(B).

{¶ 24} With the foregoing standards in mind, we separately address the

evidentiary materials supporting Hale’s motion for leave.

1. Hale’s Parole Records

{¶ 25} In his motion for leave, Hale argued that he was unavoidably

prevented from discovering certain parole records due to the state’s suppression of

favorable evidence. He alleged that the evidence was not discovered until October 2, 2018, despite his numerous requests for the state to produce all relevant

documents during the discovery process in 2004.

{¶ 26} In this case, the documents attached to Hale’s motion for leave

demonstrate that on November 8, 2004, Det. Grida sought a subpoena requiring the

Ohio Adult Parole Authority to produce Hale’s parole records. The subpoena

requested “any and all information, as to [Hale’s] reporting, living arrangements,

and employment as well as any other information within the persons file.”

Collectively, the parole records sent to the police department establish that (1) Hale

had been in compliance with the terms of his parole since his release from prison on

unrelated charges in December 2003, (2) Hale reported to his parole officer that he

was living at the Lake Erie Lodge, Room 260, for a period of time before Green’s

murder, and (3) Hale received positive reviews during his imprisonment. Hale

asserts that the parole records were exculpatory and could have been used to

impeach the state’s evidence that he “selected [the] hotel room as part of a scheme

to execute and rob Green.” Hale further contends that the parole records were

relevant to the highly contested issue of mitigation during the sentencing phase of

his trial.

{¶ 27} After careful review of the exhibits attached to Hale’s motion for leave,

we are unable to conclude by clear and convincing evidence that Hale was

unavoidably prevented from discovering the parole records stemming from his

prior, unrelated convictions. Without delving into the relevance of the parole

records, we find Hale had independent knowledge of the information contained within the documents and, therefore, could have discovered and produced the

records at trial had reasonable diligence been exercised. Hale actively participated

in the meetings with his supervising parole officer and was aware of the factors

supporting his release from custody in 2003. Under these circumstances, we find

the trial court did not abuse its discretion in determining that Hale was not entitled

to leave to file a motion for new trial based upon his discovery of certain parole

records in 2018.

2. Newly Obtained Expert Reports

{¶ 28} Hale’s motion for leave further suggests that he was unavoidably

prevented from discovering the expert opinions of Dr. Filkins, a forensic pathologist,

and Sutton, a bloodstain-pattern analyst. Hale contends that “trial counsel’s failure

to adequately investigate explains and excuses [his] failure to discover the new

evidence within the 120-day post-trial deadline imposed by Crim.R. 33(B).”

{¶ 29} In this case, the issue of self-defense was highly contested at Hale’s

trial. Now, approximately 18 years following his convictions, Hale is attempting to

introduce the expert reports of Dr. Filkins and Sutton in an effort to undermine the

state’s theory that Green was “executed” or killed “execution style.” Relevant to this

appeal, Dr. Filkins summarized his opinion as follows:

[I]n this case there are plausible, medically based explanations supporting Mr. Hale’s version of events. Based on the material I reviewed, nothing in Mr. Hale’s written statement is directly contradicted by the medical evidence in this case.

{¶ 30} In turn, Sutton rendered the following relevant opinions based on her

review of the trial evidence (1) there is not sufficient evidence to conclude that the bloodstain discovered on the lower portion of the headboard in Hale’s hotel room

was produced as the result of a gunshot; (2) the most probable causative mechanism

of the single stain on the headboard was some activity or activities that took place

after the gunshots; (3) there is no scientifically reliable means to determine where

the single stain of blood on the headboard originated from in this case; and (4) the

finding of gunshot primer residue on the right hand of Green does not provide any

information as to the posture of Green at the time the shot was fired, i.e., “whether

in a defense posture, an offensive posture, or a neutral posture.” (Exhibit A-14, pgs.

14-15.)

{¶ 31} Despite Hale’s suggestion to the contrary, a defendant cannot claim

that evidence was undiscoverable merely because the defendant or his defense

counsel made no effort to obtain the evidence sooner. State v. Jackson, 8th Dist.

Cuyahoga No. 108241, 2019-Ohio-4893, ¶ 20, citing State v. Cashin, 10th Dist.

Franklin No. 17AP-338, 2017-Ohio-9289. As recognized by this court:

It is the duty of the criminal defendant and his [or her] trial counsel to make a serious effort, on their own, to discover potential, favorable evidence. State v. Williams, 8th Dist. Cuyahoga No. 99136, 2013-Ohio- 1905, ¶ 9. Claims that evidence was undiscoverable simply because the defense did not take the necessary steps earlier to obtain the evidence do not satisfy the requisite standard [under Crim.R. 33]. State v. Anderson, 10th Dist. Franklin No. 12AP-133, 2012-Ohio-4733, ¶ 14; see also State v. Golden, 10th Dist. Franklin No. 09AP-1004, 2010-Ohio- 4438, ¶ 15.

State v. Collins, 8th Dist. Cuyahoga No. 108486, 2020-Ohio-918, ¶ 45. To hold

otherwise, would permit a convicted defendant to perpetually “‘ferret out new expert

witnesses to re-examine the evidence with the hope of obtaining a different result.’” See State v. Oneil, 11th Dist. Portage No. 2022-P-0030, 2023-Ohio-1089, ¶ 24,

quoting State v. Thompson, 2d Dist. Montgomery No. 25016, 2012-Ohio-4862, ¶ 12.

{¶ 32} Applying the foregoing, we find the evidence supporting Hale’s

motion for leave does not, on its face, support Hale’s claim that he was unavoidably

prevented from discovering the evidence contained in the expert reports. Beyond

conclusory statements, Hale fails to explain why neither he nor his trial counsel

could not have timely discovered the allegedly new evidence at an earlier point in

time. Hale and his counsel also were on notice that issues relating to gunshot

residue and blood splatter were relevant to his defense, and general information on

these topics was readily available. Furthermore, Hale’s motion fails to recognize the

significant distinction between newly discovered evidence and newly presented

evidence. See State v. McClain, 5th Dist. Guernsey No. 2019 CA 0024, 2020-Ohio-

2833, ¶ 11. Here, the opinions and affidavits of Dr. Filkins and Sutton are not based

on any new information or scientific research. Rather, the experts merely

reexamined the evidence presented at trial and offered alternative theories to those

raised by the state at trial. Under these circumstances, we find the trial court did

not abuse its discretion in denying Hale’s motion for leave to file a motion for a new

trial to the extent the motion relies on the newly commissioned expert reports.

3. Alleged Brady Violations

{¶ 33} Next, Hale argued that, due to the state’s suppression of evidence, he

was unavoidably prevented from discovering certain supplemental police reports

and notes that contain information concerning Green’s sexuality and his state of mind in the days before his death. Hale alleged that the evidence was material and

could have been used by defense counsel at trial to (1) explain Green’s behavior

during his encounter with Hale, (2) explain why Green may have had a gun in his

possession on the day of the altercation, (3) support his statement to the police about

the attempted sexual assault, and (4) impeach the state’s evidence that “gave the

jury the erroneous impression that Green was not bisexual or otherwise attracted to

men.” Hale maintained that he “could not have reasonably known that the state had

failed to turn over such important exculpatory or impeaching evidence, [thus]

establishing that this evidence was not previously available within 120 days of the

verdict.”

{¶ 34} In Brady v. Maryland, the Supreme Court of the United States

recognized that the prosecution has an affirmative duty to disclose evidence that is

favorable to the accused and material to the accused’s guilt or punishment. 373 U.S.

83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also Kyles v. Whitley, 514 U.S. 419,

432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). That “duty encompasses impeachment

evidence as well as exculpatory evidence,” and “it encompasses evidence ‘known

only to police investigators and not to the prosecutor.’” Strickler v. Greene, 527 U.S.

263, 280-281, 286, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), quoting Kyles at 438.

The Brady rule applies regardless of whether evidence is suppressed by the state

willfully or inadvertently. Id. at 282.

{¶ 35} Thus, in order to establish a due-process violation under Brady, the

defendant must demonstrate that “(1) the prosecution failed to disclose evidence upon request; (2) the evidence was favorable to the defendant; and (3) the evidence

was material.” State v. Goney, 2d Dist. Greene No. 2017-CA-43, 2018-Ohio-2115,

¶ 66. Evidence is favorable to the accused when it is exculpatory or impeaching.

State v. McNeal, Slip Opinion No. 2022-Ohio-2703, ¶ 20, citing Strickler at 281-

282.

“Favorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Kyles [v. Whitley, 514 U.S. 419,] at 433, [115 S.Ct. 1555, 131 L.Ed.2d. 490 (1995)], quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A different result is reasonably probable “when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Id. at 434, quoting Bagley at 678.

McNeal at ¶ 20.

{¶ 36} However, as it relates to a motion for leave to file a delayed motion for

new trial, the Ohio Supreme Court has clarified that “‘criminal defendants have no

duty to “scavenge for hints of undisclosed Brady material.”’” Id. at ¶ 23, quoting

Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 24, quoting Banks

v. Dretke, 540 U.S. 668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Thus,

contrary to the state’s contention that Hale failed to exercise reasonable diligence in

obtaining the police reports and notes, the Ohio Supreme Court has clarified that

“[a] defendant seeking to assert a Brady claim * * * is not required to show that he

could not have discovered suppressed evidence by exercising reasonable diligence.”

Bethel at ¶ 25. Accordingly, a defendant satisfies the “unavoidably prevented” requirement for a Brady claim by establishing that the prosecution suppressed the

evidence on which the defendant relies. Id. at ¶ 25.

{¶ 37} After careful consideration, we find Hale has made a prima facie

showing that the state, either willingly or inadvertently, suppressed evidence upon

which the Brady claims rely. In this case, Hale’s motion incorporates various

reports and notes that were completed by members of the Euclid Police Department

during the investigation into Green’s death. The records contain relevant

information relating to Green’s profession, his personal life, and his state-of-mind

in the days leading to his death. Most significantly, the motion for leave is supported

by the affidavits of Hale’s former trial counsel, Jillian Davis, Esq. (“Davis”), and

former postconviction counsel, Rachel Troutman, Esq. (“Troutman”).

{¶ 38} In relevant part, Davis averred that she “did not recall receiving police

reports or police notes” during the discovery process leading up to Hale’s trial.

(Davis affidavit at ¶ 4.) Davis later clarified that the disputed reports and notes

attached to Hale’s motion for leave were “never previously disclosed to [her].” (Id.

at ¶ 6.) Troutman similarly averred that she “did not come across any of these

documents while reviewing the files of [Hale’s] trial attorneys” while assigned to

Hale’s postconviction case in 2005. Finally, Davis and Troutman each averred that

they believed the suppressed police reports and notes constituted Brady evidence

that could have been used to impeach state witnesses at the time of trial. (Id. at ¶ 8,

10, 12; Troutman affidavit at ¶ 6, 12, 15.) As articulated by Davis: I was not aware of any of the evidence or documents discussed in the above paragraphs * * * before Hale’s federal habeas counsel shared it with me. This information would have changed the direction of our investigation by opening up new investigative leads. More importantly, I could have and would have directly used each of these pieces of evidence in the two phases of Hale’s trial as described above. This evidence would have supported the self-defense argument, and countered the state’s theory that Hale calculated a scheme to set Green up to execute and rob him. I believe this information likely would have tipped the scales such that the jury would not have convicted Hale of aggravated murder, or would have chosen a life sentence instead of a death sentence.

(Davis affidavit at ¶ 19.)

{¶ 39} Troutman echoed Davis’s sentiments, stating:

No member of law enforcement or the prosecution ever shared the above information with me during my representation of [Hale]. I learned of it for the first time when Hale’s counsel shared it with me in 2022. I would have wanted to know all of the information contained in these withheld documents. Had these documents, or their contents, been known to me at the time I filed [Hale’s] postconviction petition, I would have used the information to raise new claims and support the claims I did raise. Individually, and collectively, these documents undermine the state’s theory at trial, support [Hale’s] explanation of events, and would have helped the mitigation presentation and made it less likely the jury would have convicted or chosen the death penalty. Because this is a case with a single aggravating factor, I believe the additional information contained in these documents could have changed the outcome at trial.

(Troutman affidavit at ¶ 22.)

{¶ 40} As previously stated, the sole issue before the trial court in this case

was whether leave to move for a new trial should be granted to Hale because he was

unavoidably prevented from timely moving for a new trial due to the state’s

suppression of evidence. See Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192

N.E.3d 470, at ¶ 41 (“until a trial court grants leave to file a motion for a new trial, the motion for a new trial is not properly before the court”). Consistent with the

Ohio Supreme Court’s discussion in Bethel, we find the affidavits attached to Hale’s

motion for leave were sufficient to prove that Hale was unaware of the undisclosed

documents at the time of his trial or within 120 days of his verdict. Bethel at ¶ 27-

29 (“Two of Bethel’s former attorneys provided affidavits stating that Bethel and his

legal team did not know about Summary 86 before Bethel’s trial. The state provides

no support for its claim that these affidavits were insufficient or that Bethel needed

additional evidence to prove that he was unaware of the report before trial.”).

{¶ 41} We reiterate that Hale was not required to prove the merits of his

Brady claims at this stage of the proceedings. See State v. Phillips, 2017-Ohio-7164,

95 N.E.3d 1017, ¶ 23 (8th Dist.) (“Although the state argues on appeal that no Brady

violation actually occurred, its argument puts the proverbial cart before the horse.

The proper place for that discussion is the new trial motion itself — if the court

grants leave to file the motion.”). Rather, he “was required to establish only that he

was unavoidably prevented from discovering the evidence on which he seeks to base

his motion.” Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, at ¶ 33.

Whether Hale’s newly discovered evidence satisfies the remaining elements of the

standards set forth in Brady and State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370

(1947), syllabus, including whether the suppressed evidence is material, remains for

the trial court to decide when adjudicating the motion for a new trial itself. Thus, we express no opinion on whether Hale should ultimately prevail on the merits of

his motion for a new trial.1

4. Jury-Selection Procedures

{¶ 42} Finally, Hale argued in his motion for leave that he was unavoidably

prevented from discovering evidence of “systematic jury composition issues” in the

Cuyahoga County Common Pleas Court. Specifically, Hale alleged that the common

pleas court in this county arbitrarily and unlawfully excluded “otherwise eligible

jurors with felony convictions from its jury venire, resulting in an unlawful and

underrepresented jury pool.” Hale further asserted that he was prevented from

raising this claim at the time of his trial or within 120 days of his verdict because the

facts underlying the claim were not readily available to him until his federal habeas

counsel discovered them in 2018.

{¶ 43} Mindful that the merits of Hale’s jury-selection claim are not properly

before this court, we find the federal district court’s discussion in Hale v. Shoop,

N.D. Ohio No. 1:18-cv-504, 2021 U.S. Dist. LEXIS 61953 (Mar. 31, 2021), to be

1 In his federal habeas proceedings, Hale attempted to raise analogous Brady claims and filed a motion to expand the record to include the newly discovered evidence supporting his claims. Shoop, N.D. Ohio 1:18-cv-504, 2021 U.S. Dist. LEXIS 61953, 302- 312 (Mar. 31, 2021). In resolving the Brady claims, however, the federal court did not review the merits of the claims. The court’s discussion, while relevant to the resolution of Hale’s proposed motion for new trial on remand, was limited to the determination that Hale’s Brady claims were procedurally defaulted and barred from habeas consideration. We further note that in holding Hale’s Brady claims were procedurally barred, the federal court did not consider the U.S. Supreme Court’s holding in Banks v. Dretke, 540 U.S. 668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). persuasive in this matter. In Shoop, the district court discussed the availability of

the evidence supporting Hale’s present jury-selection claim, stating:

Hale was not at fault for failing to develop sooner his fair-cross-section and equal-protection claims relating to Cuyahoga County’s jury- selection process (Doc. Nos. 13-8 - 13-15). The factual predicate of these claims was not apparent or readily available to Hale or his counsel at trial or before his post-conviction proceedings. See Ambrose, 684 F.3d at 645-46 (“to suggest that an effective defense attorney must investigate the jury assembly process in every case conditioned upon his client’s loss of the right is unnecessary and wasteful”) (internal citation and quotation marks omitted).

Id. at 340-341.2

{¶ 44} Consistent with the findings of the federal court, we find Hale

established by clear and convincing evidence that he was unavoidably prevented

from discovering evidence of the jury-selection practices in this county within the

time period provided by Crim.R. 33(B).

5. Discussion of “Futility” in Bethel

{¶ 45} In reaching the foregoing conclusions, we recognize that in Bethel the

Ohio Supreme Court discussed the futility of the defendant’s underlying motion for

new trial when determining whether or not the lower court erred in denying the

defendant leave pursuant to Crim.R. 33(B). Specifically, the Bethel Court concluded

it “would be an exercise in futility” to proceed with a hearing on the motion for new

2 While relevant to future considerations, the federal court’s discussion of Hale’s jury-selection claims in Shoop did not address or otherwise resolve Hale’s present arguments concerning alleged violations of R.C. 2967.16(C)(1) and the Ohio Constitution. trial because the proposed “Brady claim, which is the basis of his motion, is without

merit.” Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 59.

{¶ 46} In Bethel, however, the court only contemplated the merits of the

proposed motion for new trial because earlier in the same decision the court was

required to assess the merits of identical claims raised in the defendant’s separately

filed successive petition for postconviction relief. There, the court concluded that

although the defendant was unavoidably prevented from discovering the evidence

supporting his Brady claims, he could not satisfy the second requirement of R.C.

R.C. 2953.23(A)(1), which required him to demonstrate, by clear and convincing

evidence, that no reasonable factfinder would have found him guilty or eligible for

the death sentence but for the constitutional error at trial. Id at ¶ 40.

{¶ 47} After careful consideration, we find the discussion of futility in Bethel

is limited to the unique circumstances presented in that case and is not applicable

to the issues currently before this court. At this time, Hale has not filed a

corresponding petition for postconviction relief that relied on the same evidence or

legal arguments discussed in the proposed motion for new trial. The singular issue

before the trial court, and in turn this court, concerns Crim.R. 33(B) and whether

Hale was unavoidably prevented from discovering the evidence supporting his

proposed motion for new trial. Unlike the circumstances presented in Bethel, the

parties have yet to brief the merits of Hale’s claims and whether the newly

discovered evidence was material. We decline to speculate as to the arguments that

may be raised in the future. To this point, we note that since the release of Bethel, the Ohio Supreme Court has continued to emphasize the general principle that

courts may not consider the merits of a proposed motion for new trial until leave to

file the motion is granted. Hatton, 69 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d

513, at ¶ 30, 33; McNeil, Slip Opinion No. 2022-Ohio-2703, at ¶ 1, 21.

{¶ 48} The first assignment of error is sustained in part, overruled in part.

B. Successive Petition for Postconviction Relief

{¶ 49} In the second assignment of error, Hale argues the trial court

committed reversible error by failing to address his petition for postconviction relief

pursuant to R.C. 2953.23, which was incorporated into the motion for new trial

attached to Hale motion for leave. We find no merit to Hale’s position.

{¶ 50} As discussed previously, it is undisputed that “until a trial court grants

leave to file a motion for a new trial, the motion for a new trial is not properly before

the court.” Bethel at ¶ 41, citing State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-

Ohio-1080, ¶ 14. In this case, Hale did not separately file a successive motion for

postconviction relief and, therefore, the state was not provided an opportunity to file

a brief in opposition to such a motion. Although Hale raised alternative arguments

under R.C. 2953.23 in the proposed motion for new trial attached to his motion for

leave, marked Exhibit A, the proposed motion was merely an exhibit and was not

properly before the court at the time leave was denied. Based on the procedural

posture of the appeal before us, we find the trial court had no discretion to address

the arguments raised in the proposed motion for new trial. See Hatton at ¶ 30. Accordingly, the trial court did not err in limiting its judgment to the only motion

properly before the court.

III. Conclusion

{¶ 51} Because Hale established a prima facie case that he was unavoidably

prevented from moving for a new trial within the time specified in Crim.R. 33(B)

due to the state’s suppression of the evidence and the late discovery of the jury-

selection procedures in Cuyahoga County, we find the trial court abused its

discretion in denying his motion for leave to file a delayed motion for a new trial on

these grounds. Consequently, we reverse the trial court’s judgment and remand this

case to the trial court with instructions for it to grant Hale’s motion for leave.

{¶ 52} The second assignment of error is overruled.

{¶ 53} Judgment affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.

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

KATHLEEN ANN KEOUGH, P.J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE ATTACHED OPINION)

SEAN C. GALLAGHER, J., DISSENTING:

{¶ 54} I concur with the majority’s determination that Hale was not entitled

to file a motion for a new trial to the extent his “newly discovered” evidence consisted

of his parole records predating the crime and the postconviction acquirement of

forensic-expert opinions. This evidence was available to Hale at the time of his trial

or otherwise could have been obtained with the exercise of reasonable diligence.

With respect to the remaining evidence supporting Hale’s request for leave,

however, I respectfully dissent.

{¶ 55} Crim.R. 33 provides six reasons upon which an offender may seek a

new trial: (1) irregularity in the proceedings that deprives the defendant of a fair

trial; (2) misconduct of the jury, prosecutor, or a state’s witness; (3) accident or

surprise that ordinary prudence would not have guarded against; (4) verdict is not

sustained by sufficient evidence; (5) legal error during trial; or (6) new evidence

material to the defense is discovered that could not have been discovered with

reasonable diligence in time for trial. In this case, Hale claims that there may have been irregularities in the trial based on newly discovered evidence, and additionally

he has discovered new evidence material to his defense under Crim.R. 33(A)(6).

{¶ 56} Motions for a new trial must be filed within 14 days of the verdict,

extended to 120 days if based on newly discovered evidence. Id. “[N]ewly

discovered evidence is, by definition, that ‘which the defendant could not with

reasonable diligence have discovered and produced at trial.’ ” State v. Campbell, 1st

Dist. Hamilton No. C-950746, 1997 Ohio App. LEXIS 11, 12-13 (Jan. 8, 1997). Under

the rule, a defendant who fails to timely file a motion for a new trial must seek leave

from the trial court to file a delayed motion for a new trial. State v. Dues, 8th Dist.

Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 10, citing State v. Mathis, 134 Ohio

App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999).

{¶ 57} To obtain leave, Crim.R. 33(B) requires the defendant to show clear

and convincing proof that he was unavoidably prevented from timely filing his

motion for a new trial. “[A] party is unavoidably prevented from filing a motion for

a new trial if the party had no knowledge of the existence of the ground supporting

the motion * * * and could not have learned of the existence of that ground within

the time prescribed for filing the motion * * * in the exercise of reasonable

diligence.” (Emphasis added.) State v. Walden, 19 Ohio App.3d 141, 145-146, 483

N.E.2d 859 (10th Dist.1984). A trial court’s decision with respect to a motion for a

new trial under Crim.R. 33 cannot be reversed absent an abuse of discretion. State

v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981, ¶ 13 (8th Dist.). This includes any

decision granting or denying an evidentiary hearing. State v. Johnson, 8th Dist. Cuyahoga No. 109084, 2020-Ohio-3371, ¶ 14, citing State v. Bonnell, 8th Dist.

Cuyahoga No. 108209, 2019-Ohio-5342, ¶ 37, and State v. Hill, 8th Dist. Cuyahoga

No. 102083, 2015-Ohio-1652, ¶ 16.

{¶ 58} “When a defendant seeks leave to file a motion for a new trial under

Crim.R. 33(B), the trial court may not consider the merits of the proposed motion

for a new trial until after it grants the motion for leave.” State v. Hatton, 169 Ohio

St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 30, citing State v. Bethel, 167 Ohio

St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41. “The sole question before the trial

court when considering whether to grant leave is whether the defendant has

established by clear and convincing proof that he was unavoidably prevented from

discovering the evidence on which he seeks to base the motion for a new trial.” Id.

Notwithstanding, even if the offender demonstrates the “unavoidably prevented”

prong of the analysis, that alone is insufficient to demonstrate reversible error with

the trial court’s decision denying the motion for leave. If the hearing on a motion

for new trial would be “an exercise in futility” in light of past decisions within the

same case, no reversible error over the denial of leave has occurred. Bethel at ¶ 59.3

{¶ 59} In Bethel, the Ohio Supreme Court concluded that there was no Brady

violation under the postconviction-relief analysis that the court was required to

undertake in light of the arguments presented. Id. at ¶ 20. Bethel acknowledged

under the separate Crim.R. 33 analysis that the same Brady claims should have

3 Hatton did not overrule Bethel. warranted the granting of leave to file a motion for new trial, but that act would have

been futile because the trial court, in that anticipated hearing, would have been

required to apply Bethel’s analysis on the Brady claim in light of the fact that the

offender relied on the same claim for both the postconviction relief motion and the

motion for leave to file a motion for new trial. Id. at ¶ 59. Bethel thus establishes

that appellate courts must consider the law of the case in reviewing a motion for

leave to file a motion for new trial.

A. Limitations of the Arguments Presented for Review

{¶ 60} In this case, as is pertinent to my disagreement with the majority’s

decision, Hale’s claims as to demonstrating reversible error are extremely limited:

he claims that (1) the state wrongfully withheld police reports despite his trial

occurring during the period of time for which open discovery was not required; and

(2) he did not timely discover the jury venire issue although he provides no

explanation as to why he was prevented from timely discovering it.

{¶ 61} Hale’s briefing, however, is limited.

{¶ 62} With respect to the withheld police reports, Hale’s argument, in its

entirety, is limited to the claim that

Hale had filed multiple motions requesting access to all the relevant discovery before trial (see, e.g., Demand for Discovery, Cuyahoga C.P. No. CR 4548587, Aug. 9, 2004; Demand for Disclosure of Impeaching Information, Sept. 9, 2004; Demand for Disclosure of Exculpatory Evidence, Sept. 9, 2004), and for the prosecutor’s file to be sealed for appellate review (Motion for an Order, Sept. 9, 2004). Yet this evidence was never turned over and it was not independently discovered by Hale until 2018. Regardless of any specific request, the State had a duty to turn over this information. Because the State failed to turn over this evidence, Hale has established by clear and convincing evidence that he was unavoidably prevented from discovering the favorable, material parole and police records. See Bethel at ¶ 25 (“[T]he defendant satisfies the ‘unavoidably prevented’ requirement . . . by establishing that the prosecution suppressed the evidence on which the defendant relies.”).

That argument is not sufficient to establish the existence of reversible error in light

of the extensive appellate record in this case. See App.R. 16(A)(7). Hale simply

presumes that the evidence is material to his defense without elaborating as to how

it is material given the appellate history consistently rejecting his theory of

self-defense.

{¶ 63} With respect to the exclusion of felons from the venire, Hale’s claim is

limited to the fact that he personally did not discover the issue until 2018. He then

blames his trial counsel for the failure to investigate. There is a stark contrast

between being unavoidably prevented from discovering an issue and simply not

looking for it. State v. Fortson, 8th Dist. Cuyahoga No. 82545, 2003-Ohio-5387,

¶ 11. The question presented in this appeal is whether the trial court abused its

discretion in denying Hale leave to pursue a motion for new trial on the question of

excluding felons from the venire, and on this point, Hale has not argued, let alone

demonstrated, that he was prevented from discovering the publicly available

information.

{¶ 64} Based on the limited arguments presented for our review, I would

affirm without delving deeper. B. Merits of Hale’s Motion for Leave to File a Motion for New Trial

{¶ 65} As to the merits of the motion for leave, either Hale has failed to

demonstrate that he was unavoidably prevented from timely discovering the basis

of his claims for a new trial, or there is no reversible error in summarily denying the

motion for leave because a hearing on a motion for new trial would have been futile

given the impact of earlier decisions on the arguments Hale would present to the

trial court. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, does not

require trial courts to suspend their review of the appellate history when a defendant

presents the same arguments in a renewed attempt to obtain a new trial.

1. Alleged Brady Material

{¶ 66} Hale claims that supplements to the police report made during the

investigation would have permitted him to more effectively cross-examine the

state’s witnesses on their knowledge of Green’s sexuality, an issue discussed at trial,

and also would have revealed that one member of Green’s family mentioned

something that could be interpreted as demonstrating that Green had suicidal

ideations shortly before his murder.

{¶ 67} The latter claim is defective on its face. Potential evidence of a victim’s

suicidal ideations is not relevant to an offender’s conviction for murder, especially,

as is the case herein, when the offender admits to killing the victim in self-defense.

On this point, Hale cannot clearly and convincingly demonstrate that he was

unavoidably prevented from timely filing his motion for a new trial on this issue

because he could never have raised this claim in his defense — it was not material to his defense. See, e.g., State v. Bullitt, 8th Dist. Cuyahoga No. 112168, 2023-Ohio-

1899, ¶ 17 (denial of the motion for leave to file a new trial was affirmed because

although the police report contents were withheld from the defendant at trial, the

new information did not undermine the confidence in the verdict).

{¶ 68} Although Hale is attempting to claim that the suicidal ideations

demonstrate Green’s alleged possession of the firearm Hale used in his murder, such

a connection is pure speculation requiring an inference to be stacked upon another

inference: that Green’s suicidal ideations (an inference drawn from ambiguous

statements made by one potential witness) provided a potential explanation as to

why Green could have been carrying a handgun when the witnesses at trial stated

Green was not known to possess a firearm (requiring an inference that if Green

indeed had suicidal ideations, he would have committed the act with a firearm).

Even if Hale presented this information to the jury, the jury would have been

precluded from considering his conclusion. See State v. Greeno, 2021-Ohio-1372,

170 N.E.3d 1224, ¶ 32 (4th Dist.), quoting State v. Cowans, 87 Ohio St.3d 68, 78,

717 N.E.2d 298 (1999) (the jury may not draw “ ‘draw an inference based * * *

entirely upon another inference, unsupported by any additional fact or another

inference from other facts’ ”). Thus, that argument would never have been a basis

for filing a timely motion for new trial, much less can it be used to substantiate his

newfound claims.

{¶ 69} Further with respect to the police being aware of the claims

surrounding Green’s sexuality, that information solely relates to Hale’s claim that Green was sexually assaulting him, the predicate allegation of his self-defense

claims. According to Hale, the two police interviews, with witnesses who testified at

trial and were available for cross-examination, provided evidence of Green’s

sexuality to support his theory of self-defense undisclosed at trial.

{¶ 70} The Ohio Supreme Court, however, concluded that Hale’s story of

Green attempting to sexually assault him was “not worthy of belief. Hale’s version

of the shooting was both internally inconsistent and inconsistent with the evidence

at trial.” Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 266.

Having more evidence of others being aware of Green’s purported sexuality does not

add any credence to Hale’s incredible tale nor supplant the Ohio Supreme Court’s

earlier decision in this case. See also State v. Hale, 8th Dist. Cuyahoga No. 103654,

2016-Ohio-5837, ¶ 24 (concluding that “Hale’s contention that the victim provoked

the murder was refuted by the physical evidence [and moreover] the jury was

already aware that the victim had raped another man by forcefully performing oral

sex on him” such that more evidence of Green’s sexuality would not “have added to

his defense”). Conducting a hearing on the question of the additional evidence of

Green’s sexuality would be an exercise in futility in light of previous decisions

concluding that Hale’s claims supporting the claims of self-defense were

“incredible.” The trial court could not contradict those conclusions by finding Hale’s

self-defense claims now arguably credible.

{¶ 71} In order to demonstrate entitlement to the filing of a motion for new

trial, the defendant must clearly and convincingly demonstrate that he was unavoidably prevented from filing his motion for new trial based on new evidence

material to the defense. Crim.R. 33(A)-(B). The evidence Hale identifies could

never have formed the basis of a motion for a new trial because it is not material to

his defense based on the law of this case. Remanding for a hearing on the motion

for a new trial would be futile unless the trial court disregards the appellate history.

Hatton does not require this expenditure of resources on settled arguments.

a. Exclusion of Felons from Venire

{¶ 72} And finally, with respect to the jury commission’s exclusion of felons

from jury service, Hale claims that the jury commission, at the time of his trial,

excluded all felons from jury service and that impacted the percentage of black

persons eligible to serve on the venire. Hale extensively cites the hearing transcript

from the proceedings in the criminal proceedings against Anthony Sowell4 as a basis

to demonstrate his claim. See Hale v. Shoop, N.D.Ohio No. 1:18-cv-504, 2021 U.S.

Dist. LEXIS 61953, 45 (Mar. 31, 2021) (noting there is some evidence that the jury

commission’s practice of excluding felons from the venire continues to this day) and

“What to Expect During Jury Duty” available at

https://cp.cuyahogacounty.us/court-information/jury-duty/ (last visited Sept. 21,

2023) (“You are disqualified from service if you have been convicted of a felony and

are currently on probation or are serving a community control sanction.” (Emphasis

4 Anthony Sowell was a serial killer who was convicted for murdering 11 women

and subsequently sentenced to death. See State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio- 8025, 71 N.E.3d 1034, ¶ 1-3. sic.)).5 According to the transcript in the unrelated case provided by Hale, which is

within our record, the trial court denied the motion to invalidate the venire.

{¶ 73} Notwithstanding this observation, this issue was addressed in the

federal habeas proceedings. Although Hale includes a blanket citation to certain

“state” rights implicated, his entire argument is devoted to federal law interpreting

the federal Constitution. Hale advanced these arguments to the federal trial court,

and the decision overruling the arguments was affirmed in that appeal:

Hale asserts that the exclusion of felons has a disproportionate impact upon Black men. “[R]acial groups cannot be excluded from the venire from which a jury is selected.” Holland v. Illinois, 493 U.S. 474, 478, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). Black people have been recognized as a distinctive group under the Duren test. See Lockhart v. McCree, 476 U.S. 162, 175, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Garcia-Dorantes v. Warren, 801 F.3d 584, 600 (6th Cir. 2015). Cuyahoga County excluded felons rather than Black men, however, and Hale does not offer any legal authority for his supposition that felons are a distinctive group. Reasonable jurists would not find the district court’s denial of this claim debatable or wrong.

Hale v. Shoop, 6th Cir. No. 22-3265, 2023 U.S. App. LEXIS 13645, at 7 (June 1,

2023).

{¶ 74} Hale has not clearly and convincingly demonstrated that he was

unavoidably prevented from challenging the jury commission’s alleged policy during

his trial. In fact, his sole argument is that he did not discover the issue until the

federal proceedings, but he makes no attempt to demonstrate how he was

unavoidably prevented from discovering the issue. This district has a long history of

5 Under R.C. 2961.01, no person convicted of a felony is permitted to serve on a

jury while serving any portion of their sentence. The jury commission’s statement is in compliance with state law. routinely rejecting this argument. Fortson, 8th Dist. Cuyahoga No. 82545, 2003-

Ohio-5387, at ¶ 11 (“[t]he phrases ‘unavoidably prevented’ and ‘clear and convincing

proof’ do not allow one to claim that evidence was undiscoverable simply because

affidavits were not obtained sooner”); State v. Hutton, 8th Dist. Cuyahoga No.

111432, 2022-Ohio-4509, ¶ 22; State v. Mock, 8th Dist. Cuyahoga No. 108837, 2020-

Ohio-3667, ¶ 30. (“Claims that evidence was undiscoverable simply because the

defense did not take the necessary steps earlier to obtain the evidence do not satisfy

the requisite standard.”), citing State v. Anderson, 10th Dist. Franklin No. 12AP-133,

2012-Ohio-4733, ¶ 14, and State v. Golden, 10th Dist. Franklin No. 09AP-1004,

2010-Ohio-4438, ¶ 15; State v. Hubbard, 8th Dist. Cuyahoga No. 108853, 2020-

Ohio-2726, ¶ 56.

{¶ 75} The majority’s decision undermines the steep standard for

demonstrating the necessity of a belated or successive motion for new trial and

permits defendants to simply demonstrate that they were not aware of the issue

rather than being unavoidably prevented from discovering it. Compare State v.

McFarland, 8th Dist. Cuyahoga No. 111390, 2022-Ohio-4638, ¶ 16 (recognizing the

black-letter law that an offender must present more than the simple allegation that

he did not discover the basis of the evidence he seeks to introduce to support the

motion for new trial). The defendant must demonstrate both that he had no

knowledge of the existence of the grounds for the new trial motion, and he “could not

have learned of the existence” either. Id. at ¶ 16. {¶ 76} The majority’s conclusion reduces the inquiry to the limited

demonstration that the defendant had no knowledge of the basis for the motion; the

sole argument Hale presented for our review.

{¶ 77} Hale has not demonstrated that he could not have learned of the venire

issue during his trial. In Shoop at 45, fn. 10, it was noted that Hale believed the policy

to have been in place since 1998, but nothing within Hale’s argument demonstrates

how he was unavoidably prevented from using Sowell’s unsuccessful tactical

approach during his own trial.6 The information was not new in 2011, nor even now.

It had existed since 1998 according to Hale’s own argument; although it is unclear

from the record produced whether the jury commission excluded all felons or only

those who are actively serving nonprison or nonjail sentences. His argument is

entirely based on his subjective lack of knowledge of the jury process and the fact that

policy was later challenged by another defendant.

{¶ 78} This is insufficient to demonstrate that he was unavoidably prevented

from timely raising the argument in his own trial proceedings. See McFarland at

¶ 29. “[A] party is unavoidably prevented from filing a motion for a new trial if the

party could not have learned of the existence of that ground within the time

6 Hale has not demonstrated that he was prevented from discovering the jury

commission’s alleged practice. This is unlike a situation in which the venire selection defect is latent, only discoverable through extensive investigation, and was demonstrated to affect the composition of the venire. See, e.g., Ambrose v. Booker, 684 F.3d 638, 645 (6th Cir.2012). Hale has no evidence that the composition of the venire was affected by the alleged policy at issue, nor has Hale presented evidence of any further investigations being instigated based on the questions arising from Sowell’s proceeding. prescribed for filing the motion * * * in the exercise of reasonable diligence.” Walden,

19 Ohio App.3d 141, at 145-146, 483 N.E.2d 859 (10th Dist.1984). Hale has not

demonstrated any basis to conclude that he was unavoidably prevented from

attempting Sowell’s trial strategy. He simply claims to have not been aware of the

issue until the federal proceedings. The majority’s acceptance of Hale’s argument

muddies the standard of review in this district.

C. Conclusion

{¶ 79} In light of the limited briefing presented for review and the extensive

appellate history pertaining to several of the same arguments presented in the

current motion for leave, I would affirm.