State v. Condon, C-030621.

Citation808 NE 2d 912,157 Ohio App.3d 26
Decision Date23 April 2004
Docket NumberNo. C-030621.,C-030621.
PartiesThe STATE of Ohio, Appellee, v. CONDON, Appellant.
CourtUnited States Court of Appeals (Ohio)

Michael K. Allen, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for appellee.

Sirkin, Pinales, Mezibov & Schwartz LLP, H. Louis Sirkin, Cincinnati and Jennifer M. Kinsley, for appellant.

DOAN, Presiding Judge.

{¶ 1} Defendant-appellant, Thomas Condon, was convicted of eight counts of gross abuse of a corpse pursuant to R.C. 2927.01(B). We affirmed his convictions, see State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696, and the Ohio Supreme Court refused to accept the case for review. See State v. Condon, 99 Ohio St.3d 1546, 2003-Ohio-4671, 795 N.E.2d 684.

{¶ 2} The convictions were the result of Condon's using corpses in the Hamilton County Morgue as models for his photographic art without official permission or the consent of the deceased individuals' families. Count five related to a photograph of the body of Perry Melton. Police discovered this photograph during the execution of a search warrant at Condon's photographic studio. At trial, the state alleged that Condon had aided and abetted an unknown principal in posing and photographing the corpse.

{¶ 3} Approximately a year and a half after his convictions, Condon filed a motion for leave to file a motion for a new trial based upon newly discovered evidence. Along with the motion, he submitted an affidavit by Dr. Jonathan Tobias that had been filed in a related civil suit in federal district court. Tobias, a deputy county coroner, had been Condon's co-defendant at trial. He had invoked his Fifth Amendment privilege against self-incrimination and had refused to testify.

{¶ 4} The jury had acquitted Tobias of most of the charges against him, including the charge relating to the Melton photograph, and had convicted him of only two. Eventually, this court reversed those two convictions. We held that the state had presented insufficient evidence to support them, and we ordered Tobias to be discharged. See State v. Tobias, 1st Dist. No. C-020261, 2003-Ohio-2336, 2003 WL 21034555.

{¶ 5} In the affidavit, Tobias indicated that he had taken photographs of bodies in the ordinary course of business at the coroner's office. He stated, "On the evening of November 9, 2000, I took one photo of the body of Perry Melton while it was housed in the Hamilton County Morgue. * * * I believed that I was going to be the pathologist performing the autopsy the next day on Perry Melton, and, for that reason, I wanted to view the body before I left that evening. I also was interested in having for my files a photograph of Mr. Melton's unique injuries. I took only one photograph of Mr. Melton because I had only one exposure remaining in the roll of film. Condon was not with me when I took the picture of Mr. Melton. To my knowledge, Condon was not present on November 9, 2000.

{¶ 6} "The next day, November 10, 2000, when I arrived at the Coroner's Office to report to duty, I learned that Dr. Pfalzgraf already had conducted the autopsy of Perry Melton. As such, I was not involved in taking any further photographs of Mr. Melton's body. * * * To the best of my knowledge, Condon never came in contact with or viewed the body of Perry Melton while it was in the morgue. To my knowledge, Condon was never even there on the days on which Mr. Melton's body was held at the morgue."

{¶ 7} He further stated that, as part of his duties, he had taken photographs of several death scenes. He added, "I developed the film that I had shot into negatives. I took the negatives to Condon's studio in order to develop these negatives into prints myself. I had been permitted by Condon to use his lab in order to make prints. I had used his studio to develop the one photograph I took of the body of Perry Melton * * *. I had not given any undeveloped negatives to Condon to keep; I simply left them there until I found the time to use Condon's equipment to make prints."

{¶ 8} The trial court held that Condon had not shown clearly and convincingly that the evidence was newly discovered and that it could not have been discovered through the exercise of reasonable diligence before or during the trial. Therefore, the court denied Condon's motion without an evidentiary hearing. This appeal followed.

{¶ 9} In his sole assignment of error, Condon contends that the trial court erred in denying his motion for leave to file a motion for a new trial. He contends that he showed that he had discovered new and material evidence that was unavailable to him at trial. This assignment of error is well taken.

{¶ 10} Crim.R. 33(B) provides that if a defendant fails to file a motion for a new trial within 120 days of the jury's verdict, he or she must seek leave from the trial court to file a delayed motion. To obtain leave, the defendant must show by clear and convincing proof that he or she was unavoidably prevented from discovering the evidence within the 120 days. State v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-5517, 778 N.E.2d 605, ¶ 26-27. Clear and convincing proof is that which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 18 OBR 419, 481 N.E.2d 613; Lordi, supra, at ¶ 26.

{¶ 11} If leave is granted, the decision whether to grant a motion for a new trial lies within the trial court's discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54, paragraph one of the syllabus; State v. Campbell, 1st Dist. No. C-020822, 2003-Ohio-7149, 2003 WL 23022038, ¶ 16. This court has held that a Crim.R. 33 motion for a new trial based on newly discovered evidence must meet the test set forth in State v. Petro (1947), 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370, syllabus. State v. Larkin (1996), 111 Ohio App.3d 516, 523, 676 N.E.2d 906; State v. White, 1st Dist. No. C-020645, 2003-Ohio-3825, 2003 WL 21673330, ¶ 8.

{¶ 12} In Petro, the Supreme Court held that a court may grant a motion for a new trial based upon newly discovered evidence if the movant shows 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) could not in the exercise of due diligence have been discovered before 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. Petro, supra, at syllabus.

{¶ 13} The question presented in this case is whether evidence from a co-defendant that was unavailable at trial because the co-defendant had invoked his privilege against self-incrimination constituted newly discovered evidence. We hold that it did.

{¶ 14} In State v. Barber (1982), 3 Ohio App.3d 445, 3 OBR 524, 445 N.E.2d 1146, the issue was whether the defendant had shot the victim during an altercation involving several people or whether someone else had fired the shots. The defendant testified that she did not have a gun and that her brother, James Garner, had shot the victim. When called as a witness by the defense at trial, Garner refused to testify and invoked the privilege against self-incrimination.

{¶ 15} Following her conviction, the defendant filed a motion for a new trial. She also filed an affidavit by Garner, in which he admitted to shooting the victim. At a hearing on the motion, Garner waived his rights and testified that he had fired at the victim.

{¶ 16} The court held that Garner's affidavit and testimony constituted newly discovered evidence that could not, in the exercise of due diligence, have been discovered before the trial. It stated, "Garner's testimony clearly is material to the issue of defendant's guilt. While it may be argued that the testimony was not newly discovered evidence in the sense that it may have been known about at the time of trial, it clearly was not available due to Garner's refusal to waive his constitutional rights. * * * It was newly discovered in the sense that Garner's agreement to testify was discovered after the trial. By calling Garner as a witness at the trial, defense counsel exercised reasonable diligence in attempting to produce his testimony." (Citation omitted.) Id. at 447, 3 OBR 524, 445 N.E.2d 1146.

{¶ 17} Similarly, in the federal court system, the Eleventh Circuit Court of Appeals has consistently held that the "newly discovered" language of Fed.R.Crim.P. 33 encompasses evidence that was "unavailable." United States v. Montilla-Rivera (C.A.1, 1997), 115 F.3d 1060, 1066. The court went on to state, "There seems little distinction between evidence which a defendant could not present because he did not know of it and evidence which he could not present because the witness was unavailable despite exercising due diligence." Id.

{¶ 18} We agree with the reasoning of these two cases. See, also, State v. Abi-Sarkis (1988), 41 Ohio App.3d 333, 342, 535 N.E.2d 745. We are aware that they represent a minority view. See United States v. Glover (C.A.6, 1994), 21 F.3d 133, 138-139; United States v. Reyes-Alvarado (C.A.9, 1992), 963 F.2d 1184, 1188; United States v. Garcia (July 14, 2003), S.D.N.Y. No. 99 CR 258(LAP), 2003 WL 21650106; Annotation (2004), 44 A.L.R.Fed. 13. Nevertheless, we believe that fundamental fairness and the interests of justice support the minority view.

{¶ 19} "Whether evidence was unavailable to an accused at trial is, to some extent, to be determined by whether the source of the evidence was available for examination or cross-examination by an accused sic counsel at trial." State v. Wright (1990), 67 Ohio App.3d 827, 832, 588 N.E.2d 930. It makes little difference if a defendant knows about the testimony of a witness who exercises his or her right not to testify because the...

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