State v. Barber

• Decision Date: 30 March 1982
• Citation: 3 Ohio App.3d 445,3 OBR 524,445 N.E.2d 1146
• Parties: , 3 O.B.R. 524 The STATE of Ohio, Appellee, v. BARBER, Appellant.
• Court: Ohio Court of Appeals

Page 445

3 Ohio App.3d 445

445 N.E.2d 1146, 3 O.B.R. 524

The STATE of Ohio, Appellee, v. BARBER, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

March 30, 1982.

Syllabus by the Court

1. Where testimony offered as newly discovered evidence warranting a new trial amounts to a confession of the commission of the crime of which the movant was convicted, which, if believed, would lead to the conviction of the witness and the exoneration of the person convicted at trial, the fact that such a confession exists may itself be regarded as newly discovered evidence, even though the evidence recited during the course of the confession was duplicated at trial.

2. However, where the witness' acceptance of criminal responsibility does not serve to exonerate or exclude the defendant from responsibility, the trial court does not abuse its discretion in finding that the additional testimony is merely cumulative of former evidence, since such testimony cannot be said to disclose a strong probability that it will change the result in the event of a new trial.

Michael Miller, Pros. Atty., and Karen L. Martin, Columbus, for appellee.

Robert M. Krivoshey, Columbus, for appellant.

NORRIS, Judge.

Defendant-appellant, Drenda Barber, appeals from her conviction for felonious assault following a jury trial in the Court of Common Pleas of Franklin County. The issues raised by the appeal are whether her conviction was against the manifest weight of the evidence, and, whether the trial court erred in overruling her motion for a new trial which was proffered on the ground of newly discovered evidence.

Carl Fisher discovered that some firearms had been stolen from his residence, and, believing that they had been taken by James Garner, went to Garner's residence where he became involved in an altercation with Garner's father. The next day, Fisher was sitting on his porch when James Garner and his brother Edgar walked by. Edgar was holding a large piece of concrete, and, apparently believing that he was threatened by Edgar, Fisher left his porch armed with a pistol and approached the brothers. He was shot three times, sustaining wounds to his head, arm, and finger.

The testimony concerning the shooting was sometimes confusing and contradictory. Fisher testified that six shots were fired--the three that hit him were fired by defendant, the sister of the Garner brothers who had come upon the scene, one by himself after he was shot, and the balance by James Garner after Fisher was shot.

Fisher's daughter, Cynthia, testified that defendant had a gun and shot her father; that James Garner had a gun but did not fire it; and that defendant fired three shots and her father fired one. Crystal Fisher, another daughter of the victim, testified that defendant shot her father; that she heard five shots; and that James Garner fired at her father. Lilly Watson, a neighbor of the Fishers, testified that she heard four shots; that defendant shot Fisher; and that James Garner had a gun but that she did not see him fire it.

Louise Garner, defendant's sister, testified for the defense that defendant had no gun; that she heard four shots; and that Fisher was shot by her brother, James. James Garner was called as a defense witness but refused to testify, contending that his testimony might be incriminating. Defendant testified that she did not have a gun, and that her brother, James, shot Fisher.

Following her conviction, defendant submitted a motion for a new trial, contending that she had discovered new evidence material to her defense, and attached to her motion an affidavit from James Garner. The affidavit included these statements:

"1) On May 8, 1981 I became involved in an altercation with Mr. Carl Fisher.

"2) At that time, after I saw him with a gun pointed at my brother Edgar and I saw him fire a shot at Edgar, a friend gave me his pistol.

"3) I fired three times at Mr. Fisher.

"4) The gun discharged two shots but jammed the third time I pulled the trigger.

"5) At no time did my sister Drenda Barber have a gun or fire a shot."

At the hearing on the motion, James Garner waived his Fifth Amendment right not to testify, and testified in a manner consistent with his affidavit. In addition, he said that he fired at Fisher from behind the wall of a house without looking at Fisher, and that he did not know if the shots had hit Fisher. At the conclusion of Garner's testimony, the trial judge made these comments:

"The Court: Well, the testimony in the case, there was no dispute at least four shots were fired on the date of the incident and there may have been as many as six shots fired. * * * This witness under oath has testified that he fired twice, attempted to fire the third time, but the gun jammed. The victim discharged his weapon one time. So, that leaves one more shot, at least, and perhaps two more shots to be unaccounted for by someone.

"The only other two persons that were even suspected * * * [were] * * * the defendant in this case and perhaps her sister. The testimony was clear from the prosecution witnesses that Drenda Barger [sic ] did have a weapon. No one was quite sure whether her sister had a weapon or not, although her sister denied it, having a weapon.

"The fact that Mr. Garner now has testified that he fired two shots at the victim is not new evidence. That was testified to during the course of the trial by both the defendant and her sister. The jury had that evidence before it and shows [sic ] apparently not to believe it."

The trial court then overruled the motion for a new trial, finding that Garner's testimony did not constitute newly discovered evidence, but, instead, was cumulative to evidence introduced at trial. The court then ordered that James Garner be charged with felonious assault.

Defendant raises two assignments of error:

"1) The Court erred in overruling Defendant's Motion for a New Trial.

"2) That the judgment and finding by the trial Court is against the manifest weight of the evidence."

The portion of Crim.R. 33 relied upon by defendant in her motion for a new trial, reads as follows:

"(A) Grounds. 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. * * * "

A ruling on a motion for a new trial on the ground of newly discovered evidence is within the discretion of the trial court, and, in the absence of a clear showing of abuse of that discretion, the ruling will not be disturbed on appeal. State v. Williams (1975), 43 Ohio St.2d 88, 330 N.E.2d 891 , paragraph two of the syllabus. To warrant the granting of a motion for a new trial in a criminal case,...