[Cite as State v. Imani, 2013-Ohio-2082.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : SEKOU IMANI : Case No. 2013 AP 01 0008 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2007 CR 4 0145
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL J. ERNEST SEKOU IMANI, PRO SE 125 East High Avenue N.C.I. #A575-988 New Philadelphia, OH 44663 15708 McConnelsville Road Caldwell, OH 43724 Tuscarawas County, Case No. 2013 AP 01 0008 2
Farmer, P.J.
{¶1} On April 17, 2007, the Tuscarawas County Grand Jury indicted appellant,
Sekou Imani, on four counts of trafficking in drugs (powder and crack cocaine) in
violation of R.C. 2925.03. Said charges arose from four drugs buys from appellant by a
confidential informant.
{¶2} A jury trial commenced on April 17, 2008. The jury found appellant guilty
as charged. By judgment entry filed May 14, 2008, the trial court sentenced appellant to
an aggregate term of sixteen years in prison.
{¶3} On June 12, 2008, appellant filed an appeal. This court affirmed the
convictions. State v. Imani, 5th Dist. No. 2008 AP 06 0043, 2009-Ohio-5717.
{¶4} On February 15, 2012, appellant filed a motion to resentence. By
judgment entry filed March 15, 2012, the trial court denied the motion. Appellant filed a
notice of appeal on April 19, 2012 which was dismissed as having been untimely filed.
{¶5} On October 31, 2012, appellant filed a motion for leave to file a delayed
motion for new trial. By judgment entry filed January 4, 2013, the trial court denied the
motion.
{¶6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW
TRIAL UPON PROSECUTORIAL MISCONDUCT, THE KNOWING USE OF FALSE
EVIDENCE AND/OR FALSE TESTIMONY." Tuscarawas County, Case No. 2013 AP 01 0008 3
II
{¶8} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW
TRIAL UPON NEWLY DISCOVERED EVIDENCE."
I, II
{¶9} Appellant claims the trial court erred in denying his motion for leave to file
a delayed motion for new trial based upon newly discovered evidence which exposed
prosecutorial misconduct. We disagree.
{¶10} Crim.R. 33 governs new trial. Subsections (A)(6) and (B) state the
following:
A new trial may be granted on motion of the defendant for any of
the following causes affecting materially his substantial rights:
(6) 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. Tuscarawas County, Case No. 2013 AP 01 0008 4
***Motions for new trial on account of newly discovered evidence
shall be filed within one hundred twenty days after the day upon which the
verdict was rendered, or the decision of the court where trial by jury has
been waived. If it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the evidence
upon which he must rely, such motion shall be filed within seven days
from an order of the court finding that he was unavoidably prevented from
discovering the evidence within the one hundred twenty day period.
{¶11} In State v. Petro, 148 Ohio St. 505 (1947), syllabus, the Supreme Court of
Ohio held the following:
To warrant the granting of a motion for a new trial in a criminal
case, based on the ground of newly discovered evidence, it must be
shown that the new evidence (1) discloses a strong probability that it will
change the result if a new trial is granted, (2) has been discovered since
the trial, (3) is such as could not in the exercise of due diligence have
been discovered before the trial, (4) is material to the issues, (5) is not
merely cumulative to former evidence, and (6) does not merely impeach or
contradict the former evidence. (State v. Lopa, 96 Ohio St. 410, 117 N.E.
319, approved and followed.) Tuscarawas County, Case No. 2013 AP 01 0008 5
{¶12} "A motion for new trial pursuant to Crim.R. 33(B) is addressed to the
sound discretion of the trial court, and will not be disturbed on appeal absent an abuse
of discretion." State v. Schiebel, 55 Ohio St.3d 71 (1990), paragraph one of the
syllabus. An abuse of discretion standard also applies to motions for leave to file a
delayed motion for new trial. State v. Pinkerman, 88 Ohio App.3d 158 (4th Dist. 1993).
In order to find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶13} Appellant filed his motion for leave on October 31, 2012, 1,654 days after
the jury rendered its verdicts on April 21, 2008.
{¶14} On September 4, 2012, appellant wrote to the Tuscarawas County
Prosecutor's Office and requested specific information, including "copies of the
confidential informant's arrest records and the terms of the confidential informant's plea
agreement that she made with Coshocton County which led to her involvement in this
case." Appellant's October 31, 2012 Motion for Leave under Procedural History.
Appellant received a response from the prosecutor's office which is attached to his
motion as Exhibit No. 4. In the letter to appellant, Assistant Prosecutor Michael Ernest
stated the following:
3. The Confidential Informant did not have any prior felony
convictions at the time of your trial. She appears to have been arrested in
September, 2005, in Coshocton County for Trafficking in Drugs. These
charges were dismissed in July, 2006. I have contacted the Coshocton Tuscarawas County, Case No. 2013 AP 01 0008 6
County Prosecutor's Office regarding any plea agreements. I was
informed that there wasn't a plea agreement. Likewise, this office does
not have any record of a plea agreement in Coshocton County that you
referenced in your letter.
{¶15} Appellant claims this letter constitutes "newly discovered evidence." The
basis of appellant's motion therefore, as set forth in his motion for leave, was newly
discovered evidence of prosecutorial misconduct regarding the confidential informant
(Lisa Haas) who allegedly was involved in a criminal proceeding in Coshocton County:
Without Lisa Haas testimony, there is no evidence to have carried
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[Cite as State v. Imani, 2013-Ohio-2082.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : SEKOU IMANI : Case No. 2013 AP 01 0008 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2007 CR 4 0145
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL J. ERNEST SEKOU IMANI, PRO SE 125 East High Avenue N.C.I. #A575-988 New Philadelphia, OH 44663 15708 McConnelsville Road Caldwell, OH 43724 Tuscarawas County, Case No. 2013 AP 01 0008 2
Farmer, P.J.
{¶1} On April 17, 2007, the Tuscarawas County Grand Jury indicted appellant,
Sekou Imani, on four counts of trafficking in drugs (powder and crack cocaine) in
violation of R.C. 2925.03. Said charges arose from four drugs buys from appellant by a
confidential informant.
{¶2} A jury trial commenced on April 17, 2008. The jury found appellant guilty
as charged. By judgment entry filed May 14, 2008, the trial court sentenced appellant to
an aggregate term of sixteen years in prison.
{¶3} On June 12, 2008, appellant filed an appeal. This court affirmed the
convictions. State v. Imani, 5th Dist. No. 2008 AP 06 0043, 2009-Ohio-5717.
{¶4} On February 15, 2012, appellant filed a motion to resentence. By
judgment entry filed March 15, 2012, the trial court denied the motion. Appellant filed a
notice of appeal on April 19, 2012 which was dismissed as having been untimely filed.
{¶5} On October 31, 2012, appellant filed a motion for leave to file a delayed
motion for new trial. By judgment entry filed January 4, 2013, the trial court denied the
motion.
{¶6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW
TRIAL UPON PROSECUTORIAL MISCONDUCT, THE KNOWING USE OF FALSE
EVIDENCE AND/OR FALSE TESTIMONY." Tuscarawas County, Case No. 2013 AP 01 0008 3
II
{¶8} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW
TRIAL UPON NEWLY DISCOVERED EVIDENCE."
I, II
{¶9} Appellant claims the trial court erred in denying his motion for leave to file
a delayed motion for new trial based upon newly discovered evidence which exposed
prosecutorial misconduct. We disagree.
{¶10} Crim.R. 33 governs new trial. Subsections (A)(6) and (B) state the
following:
A new trial may be granted on motion of the defendant for any of
the following causes affecting materially his substantial rights:
(6) 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. Tuscarawas County, Case No. 2013 AP 01 0008 4
***Motions for new trial on account of newly discovered evidence
shall be filed within one hundred twenty days after the day upon which the
verdict was rendered, or the decision of the court where trial by jury has
been waived. If it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the evidence
upon which he must rely, such motion shall be filed within seven days
from an order of the court finding that he was unavoidably prevented from
discovering the evidence within the one hundred twenty day period.
{¶11} In State v. Petro, 148 Ohio St. 505 (1947), syllabus, the Supreme Court of
Ohio held the following:
To warrant the granting of a motion for a new trial in a criminal
case, based on the ground of newly discovered evidence, it must be
shown that the new evidence (1) discloses a strong probability that it will
change the result if a new trial is granted, (2) has been discovered since
the trial, (3) is such as could not in the exercise of due diligence have
been discovered before the trial, (4) is material to the issues, (5) is not
merely cumulative to former evidence, and (6) does not merely impeach or
contradict the former evidence. (State v. Lopa, 96 Ohio St. 410, 117 N.E.
319, approved and followed.) Tuscarawas County, Case No. 2013 AP 01 0008 5
{¶12} "A motion for new trial pursuant to Crim.R. 33(B) is addressed to the
sound discretion of the trial court, and will not be disturbed on appeal absent an abuse
of discretion." State v. Schiebel, 55 Ohio St.3d 71 (1990), paragraph one of the
syllabus. An abuse of discretion standard also applies to motions for leave to file a
delayed motion for new trial. State v. Pinkerman, 88 Ohio App.3d 158 (4th Dist. 1993).
In order to find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶13} Appellant filed his motion for leave on October 31, 2012, 1,654 days after
the jury rendered its verdicts on April 21, 2008.
{¶14} On September 4, 2012, appellant wrote to the Tuscarawas County
Prosecutor's Office and requested specific information, including "copies of the
confidential informant's arrest records and the terms of the confidential informant's plea
agreement that she made with Coshocton County which led to her involvement in this
case." Appellant's October 31, 2012 Motion for Leave under Procedural History.
Appellant received a response from the prosecutor's office which is attached to his
motion as Exhibit No. 4. In the letter to appellant, Assistant Prosecutor Michael Ernest
stated the following:
3. The Confidential Informant did not have any prior felony
convictions at the time of your trial. She appears to have been arrested in
September, 2005, in Coshocton County for Trafficking in Drugs. These
charges were dismissed in July, 2006. I have contacted the Coshocton Tuscarawas County, Case No. 2013 AP 01 0008 6
County Prosecutor's Office regarding any plea agreements. I was
informed that there wasn't a plea agreement. Likewise, this office does
not have any record of a plea agreement in Coshocton County that you
referenced in your letter.
{¶15} Appellant claims this letter constitutes "newly discovered evidence." The
basis of appellant's motion therefore, as set forth in his motion for leave, was newly
discovered evidence of prosecutorial misconduct regarding the confidential informant
(Lisa Haas) who allegedly was involved in a criminal proceeding in Coshocton County:
Without Lisa Haas testimony, there is no evidence to have carried
the case to the jury. Lisa Haas credibility as a witness was a (sic)
important issue in this case, and evidence of any understanding or
agreement as to the future prosecution would have been relevant to her
credibility and the jury was entitled to know of it. The State knew in its
investigation of this case that Lisa Haas did not have pending charges in
Coshocton County, that there was no plea agreement reached for her
testimony in this case. The prosecutor failed to correct the testimony of
Lisa Haas and Det. Scott Ballentine when he knew them both to be
incorrect and misleading. The misleading effect upon the jury is no less
diminished by the fact the witness did not know he or she was testifying
falsely. The prosecutor had an obligation at this point of the proceedings
to correct that testimony. To then make use of this testimony, albeit not Tuscarawas County, Case No. 2013 AP 01 0008 7
necessarily perjured, when the true facts were known to the prosecutor for
the specific purpose of strengthening the state's case by impressing upon
the jurors an inference favorable to the state is as offensive as using
perjured testimony to the same end. The ultimate effect is to mislead the
jury. When such occurs the defendant's right to a fair trial is seriously
jeopardized.
***
This is not a case of mistake or accident, this is a case where the
Prosecuting Attorney David Hipp bluntly, with purpose and reckless
disregard for the truth and to violate Mr. Imani's right to a fair trial. The
prosecution had Two years to investigate this case before going to trial
and any claim that it did not know that the charges in Coshocton County
were dismissed Two years prior to going to trial in this case, would be
without merit.
Additionally, not only did the Prosecuting Attorney David Hipp use
false evidence and/or testimony in seeking a conviction, in his closing
arguments, he imposed personal knowledge and vouched for the
truthfulness of its primary witness, Lisa Haas, knowing she lied under oath
and to the jury.
{¶16} Tuscarawas County Sheriff's Detective Scott Ballentine testified Lisa Haas
was a confidential informant that he obtained through the Coshocton County Sheriff's
Office. T. at 58. Detective Ballentine explained, "[t]hey contacted us a little more than a Tuscarawas County, Case No. 2013 AP 01 0008 8
year ago and said that she had evidently some charges down there. There wasn't really
anything that she could do for them in Coshocton County and she indicated that she
could make some buys in Newcomerstown from a gentleman by the name of Sekou
Imani." As to any deals made for her assistance, Detective Ballentine testified as
follows (T. at 58-59):
Q. Now, to your knowledge, did Lisa Haas have any pending
criminal charges in Coshocton County?
A. She did.
Q. All right. Do you know, were there any (inaudible) made to her
that should she cooperate, provide assistance in the investigation,
something would happen to those charges?
A. It was my understanding that if she cooperated, that she would
either face reduced charges or no charges.
Q. All right. She was obviously getting something for helping you
out?
A. Right.
Q. Okay. You understand that might give her an incentive to
perform as you would want –
A. Sure.
Q. – and not necessarily as what would have actually happened?
A. Absolutely. Tuscarawas County, Case No. 2013 AP 01 0008 9
{¶17} On cross-examination, defense counsel elicited the following testimony (T.
at 89-90):
Q. Do you know what she was charged with in Coshocton County?
A. I believe trafficking but I'm not sure of the severity of it.
Q. All right. So she's charged with trafficking in Coshocton County -
A. That's right.
Q. – to the best of your knowledge?
A. Au-hau.
Q. You don't know whether she's convicted of anything?
A. I, I'm not sure. I honestly don't know.
Q. Is she in jail today?
A. No.
Q. Prison?
A. No. To my -
Q. So she's -
A. To my knowledge, I believe she was incarcerated in Coshocton
County Jail for a very short time if at all.
Q. And she's out on the streets right now?
A. That's correct.
{¶18} Lisa Haas testified after she was indicted on drug charges, she
cooperated with the Coshocton County Sherriff's Office so she could avoid going to the Tuscarawas County, Case No. 2013 AP 01 0008 10
penitentiary and possibly losing custody of her son. T. at 105-106. She testified, "I
have to do what I have to do and nothing's been closed as of this time" so she was
willing to cooperate or "I would have to go to the penitentiary and suffer the
consequences of others." T. at 109. On cross-examination, defense counsel
specifically questioned Ms. Haas on her charges and any plea deals. T. at 127-129.
Ms. Haas testified the charges were still pending and although no deal had been made,
"they said that they would work with me to maybe lessen the charges." T. at 128. Ms.
Haas admitted that was why she was cooperating and why she was in court testifying.
T. at 129.
{¶19} It is important to note that the testimony of the witnesses was given in
April 2008, over a year after the controlled buys and some two years after the dismissal
of the drug charges against Ms. Haas.
{¶20} Prior to the commencement of the trial, the prosecutor filed a notice of
exculpatory evidence which stated the following:
Lisa Haas, a witness in this matter, has previously been charged
with drug related offenses in Coshocton County. In return for
consideration in the handling of that case or those cases, Coshocton
County has agreed to reduce the seriousness of the offenses or dismiss
the criminal charges in return for her assistance in investigating other drug
related activity. Such assistance was to include assistance to other law
enforcement agencies in the area, including the Tuscarawas County
Sheriff. No consideration has been given by the Tuscarawas County Tuscarawas County, Case No. 2013 AP 01 0008 11
Sheriff. No consideration has been given by the Tuscarawas County
Sheriff or the Tuscarawas County Prosecutor for any conduct which may
have occurred in Tuscarawas County.
{¶21} Prior to trial, appellant stated to the trial court, "I would like to see her [Lisa
Haas] record, her arrest record and her, her, and what all charges and treatment or
what all she's been involved." T. at 5. Clearly appellant was aware of Ms. Haas's
criminal issues prior to trial because he specifically requested information on the matter.
{¶22} During her testimony, Ms. Haas explained no deal had been made, but
she had been indicted on drug charges and had agreed to cooperate with law
enforcement "to maybe lessen the charges." T. at 128. We do not find any need to go
any further in an attempt to disqualify her testimony. In fact, if the charges against Ms.
Haas were dismissed prior to her cooperation with the Tuscarawas County Sheriff's
Office, there would have been no incentive to cooperate thereby bolstering her
credibility.
{¶23} The lack of knowledge as to the particulars of any "deal" made between
Ms. Haas and the Coshocton County Sherriff's Office did not prejudice the trial, and
such knowledge, in all probability, would not change the result if a new trial was
granted. The evidence was available prior to trial with a simple telephone call to the
authorities in Coshocton and therefore does not constitute newly discovered.
{¶24} As for the complained of prosecutor's comments made during closing
argument, the trial court specifically informed the jury that closing arguments of counsel
are not evidence. T. at 235. Tuscarawas County, Case No. 2013 AP 01 0008 12
{¶25} Upon review, we find the trial court did not abuse its discretion in denying
appellant's motion for leave to file a delayed motion for new trial.
{¶26} Assignments of Error I and II are denied.
{¶27} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio
is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney______________
s/ Craig R. Baldwin________________
JUDGES
SGF/sg 430 [Cite as State v. Imani, 2013-Ohio-2082.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : SEKOU IMANI : : Defendant-Appellant : CASE NO. 2013 AP 01 0008
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.
Costs to appellant.