State v. Cannon , 2021 Ohio 4198 ( 2021 )


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  • [Cite as State v. Cannon, 
    2021-Ohio-4198
    .]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    STATE OF OHIO,                               :       APPEAL NO. C-210131
    TRIAL NO. B-9507633
    Plaintiff-Appellee,                :
    vs.                                  :            O P I N I O N.
    DEREK CANNON,                                :
    Defendant-Appellant.               :
    Criminal Appeal From: Hamilton County Court of Common Pleas
    Judgment Appealed From Is: Affirmed
    Date of Judgment Entry on Appeal: December 1, 2021
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
    Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Ohio Innocence Project and Donald Caster, for Defendant-Appellant.
    OHIO FIRST DISTRICT COURT OF APPEALS
    WINKLER, Judge.
    {¶1}   Defendant-appellant Derek Cannon appeals the Hamilton County
    Common Pleas Court’s judgment denying his Crim.R. 33(A)(6) motion for a new trial
    on the ground of newly discovered evidence. We affirm the court’s judgment.
    {¶2}   Cannon was convicted in 1996 of aggravated murder for the death of
    fellow inmate Darrell Depina during the 1993 riot at the Southern Ohio Correctional
    Facility in Lucasville, Ohio. He unsuccessfully challenged his conviction on direct
    appeal and in postconviction motions filed in 1996, 1998, and 2009. See State v.
    Cannon, 1st Dist. Hamilton No. C-950710, 
    1997 WL 78596
     (Feb. 26, 1997), appeal
    not allowed, 
    81 Ohio St.3d 1523
    , 
    692 N.E.2d 1024
     (1998); State v. Cannon, 1st Dist.
    Hamilton No. C-980389 (Mar. 10, 1999); State v. Cannon, 1st Dist. Hamilton No. C-
    090907 (Jan. 12, 2010).
    {¶3}   In 2018, Cannon moved under Crim.R. 33(B) for leave to file a Crim.R.
    33(A)(6) motion for a new trial on the ground of newly discovered evidence. On
    appeal from the denial of the motion for leave, we reversed and remanded for a
    hearing on the matter of leave. State v. Cannon, 1st Dist. Hamilton No. C-180474,
    
    2019-Ohio-3941
    .
    {¶4}   On remand, the common pleas court effectively granted leave when it
    conducted an evidentiary hearing on the January 2020 motion from which this appeal
    derives, seeking a new trial under Crim.R. 33(A)(6) on the ground of newly discovered
    evidence. Following the hearing, the common pleas court denied a new trial.
    {¶5}   In this appeal, Cannon presents a single assignment of error
    challenging the denial of his new-trial motion. We find no merit to that challenge.
    The Trial
    {¶6}   Darrell Depina was one of several inmates who was deemed a “snitch”
    and beaten to death by a “death squad” of fellow inmates during rioting at Lucasville
    prison. An autopsy showed his cause of death to be skull fractures and a brain injury
    from two “heavy injuries” to the head.
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    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶7}   State’s witnesses testified to seeing Cannon with the “death squad” in
    the “snitch” section of the prison, with a weapon in his hand, beating Depina about
    the head and body. A witness also testified that Cannon had later confessed to
    having struck someone in the head. Cannon took the stand in his own defense and
    denied entering the area of the prison where the murders had taken place. Other
    defense witnesses corroborated his testimony.
    {¶8}   In rebuttal, the state offered the testimony of jailhouse informant
    Dwayne Buckley. Buckley testified that he had met Cannon in the Hamilton County
    Justice Center while serving as a porter in Cannon’s pod, that they had discussed the
    Lucasville riot, and that Cannon had confessed to being part of a group who had
    tortured and killed “a guard” and shanked a “white guy” in another cell. Buckley
    stated that Cannon had declared that he would “beat” the charges and avenge himself
    on any “snitches” who had implicated him. And Buckley stated that he had reported
    Cannon’s confession to law enforcement because he feared for his safety and the
    safety of others after an argument between the two had escalated into threats by
    Cannon against Buckley and his family.
    {¶9}   In surrebuttal, Cannon testified that any contact with Buckley had
    been in the presence of two corrections officers. And Cannon denied threatening
    Buckley or confessing to Buckley that he had tortured and murdered a corrections
    officer.
    The Motion for a New Trial
    {¶10} In his 2020 motion for a new trial, Cannon argued that newly
    discovered evidence demonstrated a strong probability of a different outcome if a
    new trial were granted. He supported the motion by reference to evidence outside
    the record that had been presented on his motion for leave to file a new-trial motion.
    {¶11} That evidence included affidavits made by Buckley in April 2017 and
    May 2018.         In his 2017 affidavit, Buckley averred that his trial testimony that
    “Cannon had confessed to [him] that he had murdered the guard * * * was not true.”
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    OHIO FIRST DISTRICT COURT OF APPEALS
    Buckley also stated that he did not remember Cannon threatening him, and that he
    had testified against Cannon because law enforcement presented him with “[a]n
    opportunity to get back at Cannon” for an altercation between the two, by “offer[ing]
    [him] in exchange for [his statement] * * * some sort of minor incentive, maybe a few
    days off of [his] sentence.” Buckley further stated that, after his release from jail, he
    ignored a subpoena to testify, but a detective came to his place of work, told him he
    “had to testify,” and drove him to court. Buckley asserted that after his testimony, a
    state’s attorney had “said [his] testimony sealed their case against Cannon.” And
    Buckley insisted that he had made his affidavit not under threat or compulsion, but “to
    make things right and prevent this from further weighing on [his] conscience.”
    {¶12} But in his 2018 affidavit, offered by the state in opposition to Cannon’s
    motion for leave, Buckley retracted his 2017 affidavit.       He averred that he had
    testified truthfully at trial, and that his 2017 affidavit had been false and the product
    of threats against his mother and against his brother’s son, who was incarcerated
    with Cannon at the time.
    {¶13} Buckley’s brother responded to Buckley’s May 2018 retraction of his
    2017 affidavit with an affidavit made in June 2018. Buckley’s brother denied that he,
    his son, or his mother had been threatened in connection with Cannon’s case.
    {¶14} Cannon also offered an affidavit made in 1996 by a state’s witness,
    recanting his trial testimony that he had seen Cannon in the prison with a weapon in
    his hand. The witness asserted that he had provided false testimony as part of a plea
    arrangement that allowed him to avoid death-eligible charges and plead guilty to
    felonious assault.
    {¶15} An affidavit was also provided by a private investigator engaged by the
    Ohio Innocence Project in late 2016 to locate and interview Buckley after he had
    expressed to family members regret about his testimony at Cannon’s trial. The
    investigator averred that, in interviews beginning in January 2017 that culminated in
    the making of his April 2017 affidavit, Buckley said that he had been “coached” on his
    4
    OHIO FIRST DISTRICT COURT OF APPEALS
    statement to police, that that statement had been prompted by “pressure on his
    family that ‘turned into something else,’ ” and that his reward had been early release.
    {¶16} At the hearing conducted on the new-trial motion, Buckley was put on
    the stand. But he invoked his privilege against self-incrimination, and the state
    declined to grant him immunity.        The parties stipulated to the authenticity of
    Buckley’s 2017 affidavit and a video of him signing the affidavit, and the common
    pleas court admitted those exhibits. The parties further stipulated that the recanting
    state’s witness would have testified consistent with his 1996 affidavit.
    {¶17} The common pleas court also “accepted” Buckley’s 2018 affidavit “as
    part of the record.” Concerning the “veracity” of that affidavit, the defense called the
    Ohio Innocence Project’s private investigator, Buckley’s brother and nephew, and the
    notary for Buckley’s 2018 affidavit. The notary testified that Buckley had signed the
    2018 affidavit. The private investigator testified that she had contacted Buckley by
    phone in January 2017, after locating him through his brother, and had met with him
    in February and secured his affidavit in April. She further stated that Buckley’s
    family members had been present when he signed the affidavit and had expressed
    fears about a perjury charge for Buckley, but not physical threats by Cannon.
    Buckley’s brother and nephew testified that no family member had been threatened
    by Cannon.
    No Abuse of Discretion
    {¶18} In this appeal, Cannon presents a single assignment of error
    challenging the denial of his motion for a new trial. We find no merit to this
    challenge.
    {¶19} A new trial may be granted under Crim.R. 33(A)(6) on the ground that
    “new evidence material to the defense is discovered, which the defendant could not
    with reasonable diligence have discovered and produced at trial.” To prevail on a
    Crim.R. 33(A)(6) motion for a new trial on the ground of newly discovered evidence,
    the movant must demonstrate that the evidence “(1) discloses a strong probability
    5
    OHIO FIRST DISTRICT COURT OF APPEALS
    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. Petro, 
    148 Ohio St. 505
    , 
    76 N.E.2d 370
     (1947), syllabus.
    {¶20} A motion for a new trial is directed to the sound discretion of the trial
    court, and the court’s decision will not be reversed on appeal in an absence of an
    abuse of that discretion. See State v. Williams, 
    43 Ohio St.2d 88
    , 
    330 N.E.2d 891
    (1975), paragraph two of the syllabus. An abuse of discretion “implies that the
    court’s attitude [was] unreasonable, arbitrary or unconscionable.” State v. Adams,
    
    62 Ohio St.2d 151
    , 157, 
    404 N.E.2d 144
     (1980). An “unreasonable” decision is a
    decision that is not supported by “a sound reasoning process.” AAAA Ents., Inc. v.
    River Place Community Urban Redevelopment Corp., 
    50 Ohio St.3d 157
    , 161, 
    553 N.E.2d 597
     (1990).
    {¶21} We note at the outset that, in the direct appeal, Cannon assigned as
    error the balance struck by the jury in weighing the evidence adduced at trial. In
    overruling that assignment of error, this court did not rely on Buckley’s trial
    testimony.   We acknowledged that that there were “inconsistencies among the
    various witnesses’ testimony,” and that due to “the nature of this case, the credibility
    of a number of witnesses on both sides was certainly suspect, a fact of which the jury
    was assuredly aware.”     But based on our review of the testimony provided by
    witnesses other than Buckley, we found “nothing in the record [to] indicate[] that the
    jury lost its way when it chose to believe the state’s witnesses rather than Cannon
    and his witnesses.” And we found “more than substantial evidence upon which the
    jury could reasonably conclude that all of the elements of aggravated murder had
    been proven beyond a reasonable doubt.” Cannon, 1st Dist. Hamilton No. C-950710,
    
    1997 WL 78596
    , at *1-3.
    6
    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶22} Buckley’s 2017 affidavit recanted his trial testimony that Cannon had
    confessed to being part of a group who had tortured and killed “a guard” and then
    gone to “another cell and pulled a white guy out and shanked him.” In its entry
    denying a new trial, the common pleas court noted that the “shanked” “white guy”
    was never identified, by Buckley or otherwise, as the inmate whom Cannon was
    convicted of murdering, Darrell Depina.       Nor could such an identification have
    credibly been made, when Depina died of skull fractures and a brain injury from two
    “heavy injuries” to the head.
    {¶23} In deciding the new-trial motion, the court did not discount the
    credibility of Buckley’s affidavit or consider his 2018 retraction of his 2017
    recantation. Instead, applying the Petro analysis, the court denied a new trial upon
    its finding that Buckley’s 2017 recantation would not create the possibility of a
    different outcome if a new trial were granted. That finding was not demonstrably the
    product of an arbitrary or unconscionable attitude and was supported by a sound
    reasoning process.
    Affirmed
    {¶24} We, therefore, hold that the common pleas court did not abuse its
    discretion in denying Cannon’s Crim.R. 33(A)(6) motion for a new trial.
    Accordingly, we overrule the assignment of error and affirm the court’s judgment.
    Judgment affirmed.
    CROUSE, P.J., and MYERS, J., concur.
    Please note:
    The court has recorded its own entry on the date of the release of this opinion.
    7
    

Document Info

Docket Number: C-210131

Citation Numbers: 2021 Ohio 4198

Judges: Winkler

Filed Date: 11/30/2021

Precedential Status: Precedential

Modified Date: 12/1/2021