[Cite as State v. Minifee, 2024-Ohio-64.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112521 v. :
BRANDON MINIFEE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: January 11, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-07-498906-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Owen Knapp and Alan F. Dowling, Assistant Prosecuting Attorneys, for appellee.
Kimberly Kendall Corral and Gabrielle M. Ploplis, for appellant.
LISA B. FORBES, J.:
Brandon Minifee (“Minifee”) appeals the trial court’s journal entry
denying his motion for leave to file a motion for new trial. After reviewing the facts
of the case and pertinent law, we reverse the trial court’s decision. I. Facts and Procedural History
On December 14, 2007, Minifee was found guilty of felony murder
with firearm specifications, two counts of felonious assault with firearm
specifications, and having a weapon while under disability related to the killing of
Ronald Pierce (“Pierce”). The court sentenced Minifee to an aggregate term of 19-
years-to-life in prison. In 2009, this court affirmed in part and reversed in part
Minifee’s convictions and prison sentence. State v. Minifee, 8th Dist. Cuyahoga
No. 91017, 2009-Ohio-3089, (“Minifee I”). Specifically, this court found that
Minifee’s felony-murder conviction and two felonious-assault convictions should
have merged into one allied offense for sentencing purposes under R.C. 2941.25.
Minifee I at ¶ 106, 113. This court remanded the case to the trial court “for further
proceedings consistent with [the] opinion” in Minifee I.1 Minifee I at ¶ 115. This
remand order contemplated a resentencing hearing for merger of allied offenses.
See State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 13
1 Our review of the record shows that the court did not hold a resentencing hearing
in accordance with Minifee I’s mandate. We note that, in 2013, this court released State v. Minifee, 8th Dist. Cuyahoga No. 99780, 2013-Ohio-5132 (“Minifee II”), in which the trial court was again instructed to resentence Minifee pursuant to the mandate in Minifee I. Minifee II at ¶ 3.
This case is remanded to the trial court for a third time to resentence Minifee. We note that, on August 9, 2011, the state filed a “notice of election of allied offenses and request for hearing on order of remand,” in which it elected to proceed to resentencing on Minifee’s felony-murder conviction. We further note that “[w]hen an inferior tribunal refuses to follow the mandate of [a] superior one, mandamus or prohibition may lie.” State ex rel. Gallagher v. Collier-Williams, 8th Dist. Cuyahoga No. 111229, 2022-Ohio- 1177, ¶ 13. See also State ex rel. Heck v. Kessler, 72 Ohio St.3d 98, 100, 647 N.E.2d 792 (1995) (“[I]n Ohio, it is recognized that a writ of mandamus is an appropriate remedy to require a lower court to comply with an appellate court’s mandate directed to that court.”). (“[F]or an allied-offenses sentencing error[,] the appellate court’s remand requires
the trial court to conduct a new sentencing hearing.”).
Pertinent to this appeal, on August 5, 2021, and on October 4, 2021,
Minifee filed motions for leave to file a motion for a new trial based on newly
discovered evidence. This court will address Minifee’s motions together. Attached
to the motions are three affidavits. In one of the affidavits, Patricia Gunn (“Gunn”),
who testified at Minifee’s trial, recanted her testimony that “[s]he did not see Pierce
shooting a gun.” Instead she claimed that she saw Pierce had a firearm and shot at
Minifee “three times” before Minifee “might have shot back” at Pierce. We find that
Gunn’s affidavit is dispositive of this appeal and limit our discussion accordingly.
On February 16, 2023, the trial court denied Minifee’s motions for
new trial. The next day, the court issued findings of fact and conclusions of law,
which include the following as related to Gunn’s affidavit: “Minifee provided no date
specific information as to when he actually learned about * * * Gunn’s recantation
to counsel * * *.” Therefore, the trial court concluded, the “over 13[-]year delay was
wholly unreasonable.”
It is from this order that Minifee appeals, raising, verbatim, these five
assignments of error for our review:
I. The trial court abused its discretion wholly ignored the Supreme Court decision of State v. Bethel, instead holding that a defendant must establish that he filed his motion for leave within a reasonable time after discovering the evidence relief upon to support the motion for new trial. II. The trial court abused its discretion when it confused the delay standard set forth in R.C. 2953.23 with the delay standard Criminal Rule 33 which only requirs the defendant to establish he was unavoidably prevented from discovering the evidence on which he relies within 120 of his conviction.
III. The trial court abused its discretion when it inferred, based on no facts, that Minifee could have discovered the information in Patricia Gunn, Dennis White, and Dameian Webber
IV. The trial court abused its discretion when it determined that Minifee was not unavoidably delayed from discovering information which the state did not disclose in violation of appellant Minifees 4th and 15th amendment rights.
V. The trial court abused its discretion in failing to hold an evidentiary hearing.
II. Law and Analysis
Appellate courts review the denial of leave to file a motion for a new
trial for an abuse of discretion. State v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981, ¶ 13
(8th Dist.). An abuse of discretion ‘“connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.”’ Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). The
Ohio Supreme Court recently explained that an abuse of discretion “involves more
than a difference of opinion.” State v. Weaver, Slip Opinion No. 2022-Ohio-4371,
¶ 24. That is, a trial court’s judgment that is “profoundly and wholly violative of fact
and reason” constitutes an abuse of discretion. Id.
Pursuant to Crim.R. 33(A)(6), a “new trial may be granted on motion
of the defendant * * * [w]hen new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and
produced at the trial.” Under Crim.R. 33(B), motions for a new trial based on “newly
discovered evidence” shall be filed within 120 days from the day the verdict was
rendered. There is an exception to this 120-day rule: “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” the day the court grants the motion for leave to file a motion for a
new trial. Crim.R. 33(B).
The Ohio Supreme Court has explained “clear and convincing” proof
as follows: “that measure or degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be established.
It is intermediate, being more than a mere preponderance, but not to the extent of
such certainty as is required beyond a reasonable doubt * * *. It does not mean clear
and unequivocal.” (Emphasis sic.) Cross v. Ledford, 161 Ohio St. 469, 477, 120
N.E.2d 118 (1954).
Ohio courts have cited with approval the Tenth District’s explanation
of “unavoidably prevented”: “a party is unavoidably prevented from filing a motion
for new trial if the party had no knowledge of the existence of the ground supporting
the motion for new trial and could not have learned of the existence of that ground
within the time prescribed for filing the motion for new trial in the exercise of
reasonable diligence.” State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). See also State v. Glover, 2016-Ohio-2833, 64 N.E.3d 442,
¶ 27 (8th Dist.) (citing Walden with approval).
Recently, the Ohio Supreme Court determined 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.” State v. Bethel, 167
Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 55. Bethel rejected the notion
that “it was within the trial court’s discretion to deny Bethel’s motion for leave based
on Bethel’s failure to file the motion within a reasonable time after discovering” the
new evidence. Id. at ¶ 58.
Upon review, we find that the trial court erred when it denied
Minifee’s motion for leave based, in part, on the “wholly unreasonable” delay
between “discovering” the new evidence and filing the motion, as well as Minifee’s
failure to provide “date specific information as to when he actually learned about
* * * Gunn’s recantation * * *.” Under Bethel and Crim.R. 33(B), these are not proper
reasons to deny a motion for leave to file a motion for new trial.
Comparing Gunn’s affidavit to her testimony at Minifee’s trial, we
find the affidavit presents new evidence. Gunn states the following in her affidavit
pertinent to Minifee’s argument that he should be granted leave to file a motion for
a new trial: Gunn saw the Pierce shooting from her bedroom window. Her house is
across the street from where the shooting took place. “My window overlooks the
street and I could see across the street. * * * I saw the whole thing.” Pierce got out
of a car and walked across the street toward a truck. Minifee was “right at the back of the truck looking at” Pierce. Pierce said, “[Y]ou waiting on me?” Minifee did not
say anything. Pierce pulled out a gun. Pierce “fired his gun. He just started shooting
at [Minifee]. I think he shot three times. I heard more gun shots, I think [Minifee]
might have shot back. I didn’t see him. I just saw sparks.” Pierce said he was “hit,”
put his gun in “the mailbox,” and ran back to his porch.
Gunn’s affidavit states that Pierce “fired that gun first.” According to
Gunn, she and Minifee “didn’t get along.”
This was not a murder. [Minifee] was just shooting in self defense. [Pierce] was shooting at him first. I feel guilty about how I testified. I was just so mad at [Minifee] back then. It bothers me, it really bothers me real bad that he has done so much time. I know what I saw and I know in my heart he didn’t want to do that. It bothers me. I know [Minifee] didn’t murder [Pierce] because I know what I saw. I know my testimony at trial wasn’t all of what I saw. I had so much anger at Minifee back then and it just came out that way. I need to do the right thing now and tell what [I] saw. These are the facts.
Gunn’s testimony at Minifee’s 2007 bench trial was described as
follows in Minifee I regarding what she saw and heard from her second-story
bedroom window:
[S]he heard a car pull up and then a car door slam. She looked out her window again and “heard [Pierce] say * * * you waiting on me.” She explained that when Pierce said that, he was “headed up the steps” to his porch. And then, “the gunshot started, just boom, boom, boom.” She said the shots came from behind a black truck parked * * * between the truck and a red car. She could not see the shooter, but saw a man come out from where the shots had come. She watched him walk toward East 70th Street and then saw him take his black “hoodie” off. When he did, she saw that the man was [Minifee]. She said she could see him “real good” under the street light. * * * She did not see Pierce shooting a gun.
*** On cross-examination, Gunn agreed that she did not tell the police that she saw Minifee shoot Pierce on the night of the murder. When asked why, she said that nobody asked her. She told Pierce’s mother three or four days later and then called the police.
Minifee I at ¶ 12, 14.
“A witness’s recantation of testimony can be newly discovered
evidence if the court finds the new testimony credible and if the new testimony
would materially affect the outcome of the trial.” State v. Gray, 8th Dist. Cuyahoga
No. 92646, 2010-Ohio-11, ¶ 29. At trial, Gunn testified that Minifee was the sole
shooter, and she did not see Pierce fire a gun. In her affidavit, Gunn stated that, not
only did Pierce fire a gun, he shot at Minifee before Minifee “might have shot back.”
Gunn’s affidavit amounts to a recantation of her trial testimony, which may be a
proper reason to grant a new trial to Minifee should he be granted leave to file his
motion.
In following the Crim.R. 33(B) test for granting leave to file a motion
for a new trial, the next step in the analysis is to determine whether there is “clear
and convincing proof that the defendant was unavoidably prevented from”
discovering Gunn’s recantation.
In State v. Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-
Ohio-4468, ¶ 18-20, the court provided context for analyzing leave to file a motion
for a new trial based on a trial witness’s recantation:
The case law has not provided a clear guidance as to what is required of an appellant in order to show unavoidable delay, when the newly discovered evidence is a recantation of trial testimony. Some courts have held that a defendant is entitled to an evidentiary hearing on the issue of unavoidable delay if the defendant’s motion for leave includes documents that “on their face” support the defendant’s claim that he was unavoidably prevented from timely discovering the evidence. State v. McConnell, 170 Ohio App.3d 800, 2007 Ohio 1181, 869 N.E.2d 77 (2d Dist.2007); State v. York, 2d Dist. No. 99-CA-54, 2000 Ohio App. LEXIS 550 (Feb. 8, 2000). In these Second District cases, the appellant presented a recanting affidavit from a trial witness, and the court held that because the affidavit on its face supported a claim of unavoidable delay, the appellant would be entitled to a hearing on the issue of unavoidable delay.
Following these cases, therefore, it would appear that the trial court, before denying the motion for leave to file a delayed motion, should have held a hearing to determine whether there is unavoidable delay in the motion for a new trial filed by an appellant in the position of Mr. Alexander, who presented a recanting affidavit showing the witness decided to recant his testimony beyond the 120-day period. As such, an appellant would have no control over the time when the witness decided to “do the right thing,” and thus could not have learned of the existence, even in the exercise of reasonable diligence, [of] the affidavit * * *.
As to what type of evidence is required to show unavoidable delay, at least one court suggested that the appellant should present the following evidence for the trial court’s consideration: “when or why the affiants decided to recant their trial testimony, whether appellant played a role in that decision, or whether and at what point appellant learned of their willingness to come forward with the new testimony.” [State v.] Peals, [6th Dist. Lucas No. L-10-1035, 2010-Ohio-5893, ¶] 24.
Alexander, like the vast majority of cases analyzing leave to file a
motion for a new trial based on trial witness recantation, was decided prior to Bethel,
167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470. As explained previously,
Bethel eliminated the oft-used consideration of whether the motion for leave was
filed within a “reasonable time” from the time the defendant “discovered” the new
evidence. Therefore, the trial court, as well as this court, should not consider whether Minifee filed his motion for leave within a “reasonable time” after
discovering the new evidence.
Having established that “reasonable time” after discovery of the new
evidence is no longer an appropriate consideration, courts are left with not much to
go on regarding witness recantation other than assessing whether the affidavit
establishes, on its face, that the defendant was unavoidably prevented from
discovering the evidence within 120 days of the verdict. Gunn avers in her affidavit
that she “need[s] to do the right thing now * * *”; she “had so much anger at
[Minifee] back then * * *”; and she “feel[s] guilty about how [defense counsel]
testified.” Gunn’s affidavit, on its face, shows why she decided to recant in 2021.
Nothing suggests that Minifee played any role in Gunn’s decision to recant. In fact,
in Minifee’s motion for leave, his defense counsel stated that Gunn “had contact with
[her] on another matter.” It is worth noting that Minifee has been incarcerated since
this shooting occurred in 2007 and has had limited resources to investigate the
possibility that the state’s only eyewitness to the shooting — who, incidentally, did
not get along with Minifee and was “angry” at him when she testified against him —
would one day change her mind.
Gunn’s statements in her affidavit, coupled with the fact the she was
subject to cross-examination at Minifee’s trial, establish, by clear and convincing
proof, that Minifee was unavoidably prevented from “discovering,” within 120 days
from his trial, that Gunn would recant her testimony. Additionally, we are mindful that this case concerns leave to file a
motion. It does not concern, at least yet, the merits of whether Minifee is entitled to
a new trial. See, e.g., State v. Tiedjen, 8th Dist. Cuyahoga No. 106794, 2019-Ohio-
2430, ¶ 41 (citations omitted) (“Specifically, the trial court’s analysis improperly
‘conflates two distinct issues’ by resolving the motion for leave based on the merits
of whether the appellant is entitled to a new trial rather than addressing the
threshold issue of whether appellant was unavoidably prevented from discovering
new evidence.’”). The credibility of Gunn’s statements does not factor into whether
Minifee should be granted leave to file a motion for a new trial, and we leave that
question for another day.
Minifee’s first assignment of error is sustained. The remaining
assignments of error are rendered moot pursuant to App.R. 12(A)(1)(c).
Judgment reversed. Case remanded to the trial court to allow Minifee
to file a motion for a new trial, upon which the court should conduct a hearing
pursuant to Crim.R. 33(A)(6). Also, as noted previously in this opinion, case
remanded to the trial court for resentencing.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing 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.
LISA B. FORBES, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., DISSENTING:
Application of Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192
N.E.3d 470, and State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d
513, is creating a bright-line rule that all defendants must be granted leave to file a
belated motion for new trial when the defendant is able to present any alleged
recantation of trial testimony. The Ohio Supreme Court had an opportunity to
provide clarity on reviewing a motion for leave to file a belated motion for new trial
but was unable to do so. This bright-line application of Bethel and Hatton that is
developing runs roughshod over how courts have traditionally defined and analyzed
newly discovered recantation evidence. Neither Bethel nor Hatton altered the
totality of that analysis. Accordingly, I respectfully dissent. I would affirm the
decision of the trial court.
This case boils down to the fact that Minifee believes his felony-
murder conviction, based on the undisputed fact that the death of Pierce occurred as
a proximate result of the felonious assault Minifee committed against Pierce, should
be called into question because a trial witness now claims that a shootout occurred after Minifee confronted and threatened Pierce’s life at his home. That recanted
testimony, even assuming the truth of it, is immaterial to the outcome of trial.
Throughout trial, the state conceded that a shootout occurred between Pierce and
Minifee after Minifee threatened Pierce’s life on at least two occasions immediately
preceding the shooting. There is nothing new here, and therefore, the recantation
cannot be deemed to be newly discovered evidence that Minifee was “unavoidably
prevented” from timely discovering under the applicable standard. See Gray, 8th
Dist. Cuyahoga No. 92646, 2010-Ohio-11, at ¶ 29, citing State v. Burke, 10th Dist.
Franklin No. 06AP-686, 2007-Ohio-1810, ¶ 18.
Further, Minifee presented affidavits attached to his motion for leave
that confirmed the jury’s verdict including, for the first time against his own interest,
direct evidence that he possessed the same caliber weapon that fired the lethal shot.
There is no need for further expenditure of judicial resources in this matter.
The result of this case aptly demonstrates that there is no longer any
gatekeeping function with respect to reviewing a motion for leave to file a motion for
new trial when that motion involves an alleged recantation of trial testimony. As the
majority concludes, the recantation is necessarily newly discovered evidence since
the defendant would never be able to present that affidavit until the witness decides
to recant. I believe this bright-line rule goes too far and strays from the applicable
standards. Under Minifee’s theory, leave to file a belated motion for new trial is
perfunctory because he was able to muster one affidavit recanting some trial
testimony and courts are unable to review the credibility of the affidavit until after granting leave. Because leave is required before a belated motion for a new trial may
be filed, courts must be able to review whether the evidence submitted is even
material to the outcome of trial in order to preserve some semblance of discretion
with respect to the request for leave. Gray at ¶ 29. To conclude otherwise in cases
involving alleged recantations renders the motion for leave to file a belated motion
for new trial to be a perfunctory act of no importance. Crim.R. 33 requires a
convicted offender to seek leave before filing a belated motion for new trial. That
leave requirement must have meaning.
Recantations are not necessarily newly discovered information just
because the recantation belatedly occurred. This case is emblematic of this point.
Gunn’s recantation in this case is best defined as a new twist on old evidence —
Minifee was always aware of her perjured testimony and several times tried to prove
that point through trial and postconviction proceedings. Thus, although Gunn’s
recantation is newly available, the subject matter of the recantation is not newly
discovered evidence. Generally, under Crim.R. 33, just because a defendant is
finally able to prove something over time, does not make that proof newly discovered
evidence per se, solely because of when it was obtained. State v. Lenard, 8th Dist.
Cuyahoga Nos. 112283 and 112966, 2023-Ohio-4529, ¶ 13, citing State v. Jackson,
8th Dist. Cuyahoga No. 108241, 2019-Ohio-4893, ¶ 20, and State v. Cashin, 10th
Dist. Franklin No. 17AP-338, 2017-Ohio-9289. Although some recantations will
truly be considered newly discovered evidence, as defined as evidence materially affecting the outcome of trial, courts cannot create a bright-line rule establishing
that all recantations necessarily meet that standard.
Under Crim.R. 33, “[t]he 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.” Hatton, 169 Ohio
St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, at ¶ 30, citing Bethel 167 Ohio St.3d
362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 41. The weight, or credibility, of the
evidence presented can only be considered in resolving the motion for new trial itself.
Id. Thus, a motion for leave must demonstrate two things: (1) that the defendant has
obtained what constitutes newly discovered evidence; and (2) that he was
“unavoidably prevented” from timely discovering that evidence. Minifee has not
demonstrated either factor.
A. Facts
The facts were thoroughly presented in Minifee’s direct appeal,
Minifee I at ¶ 4-31. It suffices for the purposes of this postconviction proceeding that
Minifee and Pierce were involved in a day-long, ongoing feud regarding Minifee’s
belief that Pierce owed $200 for drugs Pierce had taken. Various witnesses heard
the two arguing around Pierce’s home throughout the day. At one point, the two
were on Pierce’s porch and Minifee brandished a firearm and threatened Pierce:
“I’m not playing with you, man, I’m going to kill you. I want my money or my shit.”
Id. at ¶ 11. That incident was deescalated by Pierce leaving. Evidently, Minifee remained at Pierce’s home. Importantly for the current procedural posture of this
case, Dennis White was present and confirmed that series of events.
Gunn lived across the street. She too witnessed the argument
escalating between Minifee and Pierce throughout the day, including Minifee’s
threat on Pierce’s porch. A while later, Gunn heard a car pull up, and she heard
Pierce say, “[Y]ou punk mother-fu***, you waiting on me.” She explained that when
Pierce said that, he was “headed up the steps” to his porch. And then, “the
gunshot[s] started, just boom, boom, boom.” She said the shots came from behind
a black truck parked on Quimby Avenue between the truck and a red car. She could
not see the shooter but saw a man come out from where the shots had come. She
watched him walk toward East 70th Street and then saw him take his black “hoodie”
off. When he did, she saw that the man was Minifee, also known as “Cheezy.” She
said she could see him “real good” under the street light. Gunn said he was wearing
a black “hoodie” with white “stripes or something” on it. She did not see Pierce
shooting a gun. Id. at ¶ 12.
Upon cross-examination, Gunn confirmed that she never saw Pierce
with a weapon. Gunn did not mention to anyone that her son, Dameian Webber,
may have been present, but she told the jury he was her son. In her testimony, Gunn
testified extensively to her history and relationship with Minifee, including an
incident in which she was convicted for shooting at Minifee. Gunn’s alleged perjury
regarding Pierce’s possession of a firearm formed the basis of Minifee’s 2008 petition for postconviction relief based on a statement from Webber in a 2008
affidavit. That petition was overruled.
Nevertheless, there was evidence of a shootout between Pierce and
Minifee, as the state even conceded during its closing argument at trial. According
to the state, it did not matter whether Pierce fired the first shots or not; the
altercation was created by Minifee threatening Pierce’s life, and Pierce died as a
result of that altercation.
The evidence at trial also supported the state’s trial theory that a
shootout occurred. The red car near where Minifee was located according to trial
testimony had bullet defects in the front, driver-side tire. That location was where
Gunn saw what appeared to be shots being fired toward Pierce’s home by someone
she later identified as Minifee. Police officers recovered several 9 mm shell casings
ejected from a semiautomatic handgun around the home, but Pierce was shot with
a .38- or .357-caliber handgun, which is typically a revolver and does not
automatically expel the shell casings after the weapon is discharged. Pierce was shot
in the leg while standing on the steps of his porch, with the bullet entering his thigh
in an upward trajectory according to the coroner’s testimony. That in part
corroborated Gunn’s trial testimony to seeing Pierce being shot as he stood on the
top step of the stairs to his porch and matched blood stains photographed after the
fact. After being shot, Pierce pounded on the front door and his girlfriend dragged
him inside, where he died from blood loss. The bullet pierced his femoral artery. Forensic testing, introduced at trial, indicated that Pierce had
gunshot residue on his left hand, but there were no metallic deposits consistent with
his actually holding a firearm. It is unclear whether Pierce is left- or right-handed.
Shahid Saifullah, who had known Minifee for years, spoke with him
while both were incarcerated. His testimony was that
he saw Minifee in the “holding area.” He said they talked for about one- and-a-half hours. Saifullah asked Minifee what happened. He said that Minifee told him that Pierce shot at him first. According to Saifullah, Minifee also told him that he would not have shot at Pierce if Pierce had not shot at him. Minifee further explained to Saifullah that he had left some crack cocaine in an abandoned house across the street from Pierce’s house. Minifee said he left for a short time; when he came back, the drugs were gone. A girl in the neighborhood told Minifee that she had bought crack cocaine from Pierce. Minifee saw the girl’s crack cocaine and identified it as the drugs he had left in the abandoned house. Minifee then went to Pierce and demanded that Pierce give him the “stuff” or $200.
On cross-examination, Saifullah said that the “first information on the street” was that “four guys with black hoodies came from behind the house, and attempted to rob [Pierce].” Saifullah stated that he heard at least 25 shots.
Minifee I at ¶ 25-26.
In his motion for leave to file a belated motion for new trial, Minifee
presented three affidavits.
In the first affidavit, Webber, who is Gunn’s son, claims to have been
on Gunn’s front porch when the shooting occurred. In his affidavit, Webber claims
to have seen Pierce “hop out of the car and ask [Minifee] ‘are you looking for me’ or
‘are you waiting on me,’ something like that. I heard like four gunshots, pop pop pop pop. I saw the gun in [Pierce’s] hands, he was shooting toward [Minifee].”
Webber claims Minifee never fired or possessed a weapon.
In the second affidavit, White, who was present and witnessed
Minifee threaten Pierce with a handgun on the porch, claims the events unfolded
quite differently. According to White, Pierce jumped out of the car, pulled a
handgun from his waistband, and proceeded to shoot himself in the groin or leg,
which remarkably differs from the coroner’s testimony regarding the bullet’s
upward trajectory and the blood evidence found at the crime scene indicating that
Pierce was shot on the steps while ascending the stairs as Gunn testified. Pierce,
according to White, climbed onto the porch, fired his weapon, went inside, and then
stepped outside once again to discharge “like three more shots.” Pierce then went
into the living room and collapsed. White claims that Pierce was internally bleeding
into his stomach, which became distended — a curious statement in light of the
coroner’s testimony establishing that the bullet traveled through Pierce’s upper
thigh coming to rest in his buttocks.
Confusingly, from Minifee’s current perspective, White then averred
that “I know Brandon [(Minifee)] didn’t murder him [(Pierce)]. The man shot
himself. Brandon [(Minifee)] had a .357 Dude [sic] had a 9 mm.” (Emphasis added.)
White seemingly confirms that Minifee had the same caliber weapon that caused
Pierce’s death on the night of the shooting, a fact of consequence the state was
unable to provide direct evidence of at trial. And finally, Minifee presented an affidavit from Gunn, in which she
purportedly admitted to providing perjured testimony at Minifee’s trial. Her
affidavit largely tracked the trial evidence about seeing shots fired from the area that
Minifee was standing (which coupled with White’s affidavit seems to confirm the
facts to support the felony-murder conviction), but she now claims that she saw
Pierce with a firearm and shooting at Minifee after getting out of the car, in direct
contradiction of her unambiguous trial testimony to the contrary. She also claims
Minifee shot back, but she did not see him actually firing the weapon (a statement
that reflects her trial testimony that she never saw Minifee shooting, only that she
saw sparks from the area where Minifee was located during the shooting). She also
now claims that Pierce was shot after getting out of the car, which was near the street
according to the trial evidence, and ran back to the porch (instead of being shot on
the top step while ascending the steps as her trial and other testimony unequivocally
established). And finally, she confirms that Minifee did indeed shoot Pierce.
Gunn claims she only testified that Pierce did not have or shoot a
firearm because she “was just so mad at [Minifee] back then.” She came forward
because of remorse, but she now claims, “I know what I saw and I know in my heart
he didn’t want to do that. I know [Minifee] didn’t murder [Pierce] because I know
what I saw.” Her statement as to knowing Minifee did not murder Pierce is not
relevant to the felony-murder charge. Minifee was convicted of causing the death of
Pierce as a proximate result of Minifee committing a felonious assault. B. Newly Discovered Evidence Analysis
As has been the standard for decades, a defendant is “unavoidably
prevented” from filing a motion for new trial if he can demonstrate that he “‘had no
knowledge of the existence of the ground’ supporting the new-trial motion and could
not have learned of the existence of that ground within the time prescribed for filing
a new-trial motion.” (Emphasis sic.) Lenard, 8th Dist. Cuyahoga Nos. 112283 and
112966, 2023-Ohio-4529, at ¶ 10, quoting State v. Conner, 8th Dist. Cuyahoga
No. 103092, 2016-Ohio-301, ¶ 21; Walden, 19 Ohio App.3d at 145-146, 483 N.E.2d
859. Under binding black-letter law, “[a] defendant cannot claim that evidence was
undiscoverable merely because the defendant or his defense counsel did not
undertake to obtain the evidence sooner.” Id., citing Jackson, 8th Dist. Cuyahoga
No. 108241, 2019-Ohio-4893, at ¶ 20, citing Cashin, 10th Dist. Franklin No. 17AP-
338, 2017-Ohio-9289.
This analysis applies equally to recanting witnesses. A defendant may
not claim that evidence was undiscoverable simply because an affidavit recanting
testimony was not obtained sooner. State v. Miller, 8th Dist. Cuyahoga No. 110571,
2022-Ohio-378, ¶ 14, (“Miller I ”) aff’d, State v. Miller, Slip Opinion No. 2023-Ohio-
3448, ¶ 1 (“Miller II”), citing State v. Fortson, 8th Dist. Cuyahoga No. 82545, 2003-
Ohio-5387, ¶ 11; see also State v. Houston, 8th Dist. Cuyahoga No. 112689, 2023-
Ohio-3888, ¶ 20 (concluding that the newly discovered disciplinary history of a
nontestifying witness was not material to the defense, and therefore, the trial court
did not err by denying the defendant leave to file a motion for new trial). Although the Ohio Supreme Court accepted Miller I for review, the court was unable to muster
a majority vote to reverse the appellate decision. Miller II at ¶ 1 (“In the absence of
four votes to reverse the judgment of the Eighth District Court of Appeals, that
judgment is affirmed.”). Miller II presented a missed opportunity to present some
clarity in this area, but Miller nonetheless remains the law of this district.
Before Bethel and Hatton, courts considered a witness’s recantation
as newly discovered evidence “if the court finds the new testimony credible and if the
new testimony would materially affect the outcome of the trial.” Gray, 8th Dist.
Cuyahoga No. 92646, 2010-Ohio-11, at ¶ 29, citing Burke, 10th Dist. Franklin
No. 06AP-686, 2007-Ohio-1810, at ¶ 18. However, under Bethel and Hatton, courts
may no longer assess the credibility of the evidence a defendant proffers within his
motion for leave. Thus, under that standard as altered by Bethel and Hatton, a
witness’s recantation may be deemed to be newly discovered if the testimony would
materially affect the outcome of trial. See id. Neither Bethel nor Hatton overruled
the totality of the existing standard of reviewing alleged recantations under the newly
discovered evidence inquiry. Although those cases eliminated the credibility review
from the newly discovered evidence inquiry, Bethel and Hatton did not impact the
preexisting standard that for a recantation to be considered newly discovered, the
recantation must materially affect the outcome of trial.
Under that remaining analysis, the trial court correctly determined
that Gunn’s recanted testimony is not material to the outcome at trial. The state
conceded to the jury that a shootout occurred. The entire theory of the case was that Minifee threatened Pierce’s life causing the shootout in which Pierce was fatally
wounded. Gunn’s recantation does not change or impact that theory. Gunn’s recent
recantation demonstrating what was already proven at trial cannot be deemed newly
discovered evidence.
C. “Unavoidably Prevented” Analysis
In addition, to prove the existence of newly discovered evidence, the
defendant must demonstrate that he was “unavoidably prevented” from timely
discovering the recantation. In this case, Minifee was acutely aware that Gunn
perjured herself at trial. He unsuccessfully attempted to prove that point in a petition
for postconviction relief. Tellingly, the majority does not consider the state’s claim
with respect to res judicata, again highlighting the perfunctory nature of a motion for
leave when a defendant proffers a witness’s purported recantation. As it has long
been held, “‘[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.’” Lenard, 8th Dist. Cuyahoga Nos. 112283 and 112966,
2023-Ohio-4529, at ¶ 13, citing Fortson, 8th Dist. Cuyahoga No. 82545,
2003-Ohio-5387, at ¶ 11. Permitting defendants to continually challenge trial
testimony in this fashion provides no finality to the proceeding.
Regardless, none of the affidavits presented by Minifee demonstrate
that he was unavoidably prevented from timely filing his motion for 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 for new trial and could not have learned of the existence of that ground
within the time prescribed for filing the motion for new trial in the exercise of
reasonable diligence.” Walden, 19 Ohio App.3d 141, at 146, 483 N.E.2d 859; State v.
Struckman, 1st Dist. Hamilton No. C-220658, 2023-Ohio-3582, ¶ 8; State v.
Johnson, 8th Dist. Cuyahoga Nos. 111606 and 111612, 2023-Ohio-808, ¶ 26. Minifee
has not demonstrated that he was unavoidably prevented from filing a motion for
new trial based on the affidavits presented with his motion for leave.
As the trial court concluded in this case, Minifee himself was aware of
White’s presence on the porch when Minifee threatened Pierce’s life while
displaying his handgun and should have been aware of his presence if White
witnessed the shooting given their relationship. Minifee has not explained how he
was unavoidably prevented from timely seeking testimony from White to
demonstrate the prosecutor’s trial concession that a shootout occurred between
Minifee and Pierce when Minifee was aware of his presence on the porch. White’s
affidavit likely explains that omission — White confirmed that Minifee possessed a
.357-caliber handgun, the same caliber weapon that caused Pierce’s death.
With respect to Webber’s newest affidavit, he had previously
submitted an affidavit alleging the same allegations attached to Minifee’s 2008
petition for postconviction relief; Minifee has not explained how he was unaware of
Webber’s potential testimony either. He simply presumes that he was unavoidably
prevented from obtaining the new-found evidence because Webber did not come
forward sooner. That is facially deficient. App.R. 16(A)(7). Demonstrating that a defendant was unavoidably prevented from filing a timely motion for new trial
“‘requires more than a mere allegation that a defendant has been unavoidably
prevented from discovering the evidence he seeks to introduce as support for a new
trial.’” State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 9, quoting
State v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999). A
defendant, in pursuing leave to file a motion for new trial, bears the burden of
demonstrating that he was unavoidably prevented from timely obtaining the
information. A conclusory statement to that effect is not sufficient.
And finally, the fact that Gunn now admits to perjuring herself during
Minifee’s trial is not considered newly discovered evidence per se as Minifee’s sole
argument contends. Minifee, through counsel, extensively cross-examined Gunn
regarding her relationship with Minifee, including her assault years earlier, and
asked several times whether Gunn saw Pierce with a firearm based on Minifee’s
personal knowledge of the events as they unfolded. “Generally, newly discovered
evidence that purportedly recants testimony given at trial is ‘looked upon with the
utmost caution.’” State v. Nunez, 8th Dist. Cuyahoga No. 104917, 2017-Ohio-5581,
¶ 35, quoting State v. Nash, 8th Dist. Cuyahoga No. 87635, 2006-Ohio-5925, ¶ 10.
An affidavit from a recanting witness testimony is “‘viewed with extreme suspicion
because the witness, by making contradictory statements, either lied at trial, or in
the current testimony, or both times.’” Id., quoting Gray, 8th Dist. Cuyahoga
No. 92646, 2010-Ohio-11, at ¶ 29. “A witness’s recantation of testimony can be
newly discovered evidence if the court finds the new testimony credible and if the new testimony would materially affect the outcome of the trial.” State v.
Woodward, 10th Dist. Franklin No. 08AP-1015, 2009-Ohio-4213, ¶ 20, citing
Burke, 10th Dist. Franklin No. 06AP-686, 2007-Ohio-1810, at ¶ 18.
As briefly discussed before, under Bethel and Hatton, courts must set
aside Gunn’s credibility issues with respect to her recantation. State v. Blanton, 171
Ohio St.3d 19, 2022-Ohio-3985, 215 N.E.3d 467, ¶ 98 (the credibility of affidavits is
not an issue to be resolved in postconviction proceedings); but see State v. Calhoun,
86 Ohio St.3d 279, 292, 714 N.E.2d 905 (1999) (the credibility of affidavits presented
in support of postconviction proceedings may be determined if the affidavits appear
frivolous on their face). Minifee, however, has not demonstrated that he was
unavoidably prevented from obtaining evidence proving Gunn’s perjury within the
stated period within which to file a timely motion for new trial.
Minifee’s sole claim is that Gunn did not recant until now, and that
should not be held against Minifee. As the Tenth District has explained, “‘[I]f a
defendant is aware of the evidence at the time of trial, then it is not newly discovered
evidence under Rule 33.’” State v. Ambartsoumov, 10th Dist. Franklin
Nos. 12AP-878, 12AP-877, 2013-Ohio-3011, ¶ 23, quoting United States v. Sims,
72 Fed.Appx. 249, 252 (6th Cir.2003). In situations in which “‘a witness who has
indicated to the defendant * * * an unwillingness to testify truthfully at trial * * * but
later supplies an affidavit exonerating the defendant of the offense, the affidavit is
merely newly available evidence, but it is not newly discovered evidence.’”
(Emphasis sic.) Id., quoting Sims; see also State v. Sawyer, 8th Dist. Cuyahoga No. 84487, 2004-Ohio-6911, ¶ 14, fn. 4. As Minifee has aptly demonstrated, White
was present on the day of the shooting and could confirm his theory that a shootout
occurred to further demonstrate Gunn’s perjury to the jury (if even necessary since
the state conceded that point at trial), but Minifee failed to exercise diligence in
obtaining White’s testimony. Although Gunn’s recantation is recent, her alleged
fabrication and the underlying fact of consequence regarding Pierce’s possession of
a firearm was known to Minifee at the time of trial and at the time of filing his
petition for postconviction relief. The trial court did not err in concluding that
Minifee was not prevented from presenting that evidence at trial.
Generally, the fact that an offender can prove something is not to say
that he was unavoidably prevented from discovering the information timely.
Minifee, throughout the trial and the 2008 postconviction
proceedings, has maintained that Gunn perjured herself by testifying that she did
not see Pierce fire a weapon at Minifee. This evidence is not new to Minifee; he was
aware of whether he was shot at or not — and in fact the state conceded at trial that
a shootout occurred and that Pierce may have shot at Minifee. Without more than
Minifee’s conclusory statement that he was unavoidably prevented from obtaining
Gunn’s affidavit within 14 days of his trial, it cannot be concluded that the trial court
abused its discretion in denying leave. As this court has continually defined the
phrase “unavoidably prevented,” Minifee cannot demonstrate the lack of knowledge
of the existence of Gunn’s testimony that demonstrated what the state argued was true at trial: Pierce had a weapon and a shootout occurred. Johnson, 8th Dist.
Cuyahoga Nos. 111606 and 111612, 2023-Ohio-808, at ¶ 26.
Minifee is asking for a bright-line rule that providing any evidence
from a recanting witness would warrant leave to file a motion for new trial and that
a trial court must be declared as a matter of law. I cannot join the majority’s
acceptance of that proposition. And further, Minifee cannot demonstrate that
Gunn’s recantation was material to the outcome of trial as required under Gray, 8th
Dist. Cuyahoga No. 92646, 2010-Ohio-11, at ¶ 29. Id., citing Burke, 10th Dist.
Franklin No. 06AP-686, 2007-Ohio-1810, at ¶ 18. This case reaches the same issues
that the Ohio Supreme Court was unable to clarify in Miller II, demonstrating a lack
of clarity with respect to Crim.R. 33 and alleged recantations. In this vacuum, the
majority pushed this district over the edge of creating a bright-line rule that all
motions for leave under Crim.R. 33 must be granted if the convicted offender is able
to muster any affidavit from a recanting witness, no matter the materiality of that
recantation.
It is from that conclusion that I respectfully dissent.