State v. Graggs, 22AP-170

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMcGRATH, J.
Citation2022 Ohio 3407
PartiesState of Ohio, Plaintiff-Appellee, v. John Q. Graggs, Defendant-Appellant.
Docket Number22AP-170
Decision Date27 September 2022

2022-Ohio-3407

State of Ohio, Plaintiff-Appellee,
v.

John Q. Graggs, Defendant-Appellant.

No. 22AP-170

Court of Appeals of Ohio, Tenth District

September 27, 2022


APPEAL from the Franklin County Court of Common Pleas No. 08CR-1098

On brief:

[Janet A. Grubb, First Assistant Prosecuting Attorney], and Kimberly M. Bond, for appellee.

On brief:

John Q. Graggs, pro se.

DECISION

McGRATH, J.

{¶ 1} Defendant-appellant, John Q. Graggs, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for leave to file a motion for new trial.

{¶ 2} On February 15, 2008, appellant was indicted on one count of aggravated robbery, in violation of R.C. 2911.01, one count of kidnapping, in violation of R.C. 2905.01, one count of murder, in violation of R.C. 2903.02, and two counts of aggravated murder, in violation of R.C. 2903.01. The charges arose out of the shooting death of Fred Brock ("Brock") on January 8, 2008. The matter was tried before a jury beginning January 13, 2009.

{¶ 3} In State v. Graggs, 10th Dist. No. 10AP-249, 2010-Ohio-5716 ("Graggs II "), this court provided the following summary of the relevant facts of the case as follows. In

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2008, Marcus Jones ("Jones") leased an apartment on East Main Street from which he and a friend, Jessie Lanier ("Lanier"), "ran a drug trafficking operation, selling bricks of cocaine for approximately $28,000 each." Id. at ¶ 3. Approximately three days prior to the shooting, "Jones hired Brock, a friend of Lanier's, to help guard the cocaine and money kept in the apartment." Id.

{¶ 4} On the evening of January 8, 2008, Jones and his cousin Dominic attended a local high school basketball game, while Brock and Lanier remained in the apartment. Later, Lanier "joined the two men at the game." Id. at ¶ 4. After the game, at approximately 8:30 p.m., "Jones and his cousin drove to Jones' father's house." Id. At "[a]round 9:00 p.m., Jones received a call from Lanier telling him to return to his apartment." Id. Jones and his cousin arrived at the apartment at approximately 9:15 p.m. but "Lanier was not there." Id. However, about two minutes later, Lanier and a female arrived at the apartment. The three men entered the residence "and found Brock lying face-down on the floor inside the apartment; he had been handcuffed and fatally shot in the back. The apartment had been ransacked; $35,000 in cash and Lanier's revolver were missing." Id.

{¶ 5} Over "the next 15 minutes or so, Jones and Lanier cleared the apartment of items related to their drug trafficking operation, including $17,000 in cash hidden under the mattress in the bedroom." Id. at ¶ 5. Jones and Lanier took items out to Lanier's car, and Lanier "then drove away." Id. Jones and his cousin then went to a nearby recreation center and Jones called his father. At approximately 9:45 p.m., "Jones' father met the two men at the recreation center and urged them to call the police." Id. Jones and his cousin returned to the apartment and called 911.

{¶ 6} At approximately 9:54 p.m., police responded to the 911 call. Evidence collected by investigators at the scene "included the torn-off fingertip of a green latex glove found underneath Brock's body; the glove fingertip contained appellant's DNA." Id. at ¶ 6. During a subsequent search of appellant's residence, investigators recovered a "revolver and a green latex glove similar to the glove fingertip found at the scene." Id. It was later determined that the revolver was "not * * * the one that had fired any of the bullets recovered from the crime scene." Id.

{ 7} At the time of the events, appellant "was employed full-time earning $16.36 per hour." Id. at ¶ 7. Appellant "lived in a separate household from his wife and had difficulty paying his bills, including his car payment. However, on January 9, 2008, the day

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after Brock's murder, appellant spent over $5,200 in cash at a local jewelry store," and on January 14, 2008, "he made a $2,900 payment on his car loan." Id.

{¶ 8} Appellant was arrested on February 6, 2008, and "told police that he knew Brock, but had not seen him in ten years"; appellant "also stated that he had never been to Jones' apartment and did not even know where it was located." Id. at ¶ 8.

{¶ 9} The parties entered into a stipulation at trial that, "on January 8, 2008, appellant made three calls between 7:42 and 7:43 p.m. from his cell phone in the vicinity of a cell tower one-half mile from Jones' apartment and made two calls on his cell phone between 8:54 and 8:57 p.m. in the vicinity of a cell tower near his home." Id. at ¶ 9.

{¶ 10} At the close of its case, plaintiff-appellee, State of Ohio, dismissed the murder count; appellant "presented no witnesses or evidence." Id. at ¶ 10. Following deliberations, the jury returned verdicts finding appellant guilty of aggravated robbery, kidnapping, and aggravated murder (both counts). The trial court merged the aggravated murder counts for purposes of sentencing. By judgment entry filed March 4, 2009, the trial court sentenced appellant to eight years for aggravated robbery, eight years for kidnapping, and life without parole as to Count 5 (aggravated murder), with the sentences to run concurrently.

{¶ 11} Appellant filed a direct appeal from the judgment, challenging his convictions as not supported by sufficient evidence and as against the manifest weight of the evidence. Appellant also raised a claim of ineffective assistance of counsel. In State v. Graggs, 10th Dist. No. 09AP-339, 2009-Ohio-5975 ("Graggs I"), this court affirmed the judgment of the trial court.

{¶ 12} On November 10, 2009, appellant filed a pro se petition for post-conviction relief, raising claims of ineffective assistance of counsel. By entry filed February 16, 2010, the trial court denied appellant's petition, finding the claims were barred by res judicata or were without merit. Appellant appealed the trial court's denial of his petition. In Graggs II, this court affirmed the judgment of the trial court. Appellant filed a motion for reconsideration, which this court denied.

{¶ 13} On August 8, 2013, appellant filed a motion for leave to file a motion for new trial, asserting newly discovered evidence. Attached to appellant's motion was the affidavit of Kelvin Bridges, an inmate at the Correctional Reception Center ("CRC") in Orient. Bridges averred that, on the evening of January 8, 2008, he was in Lanier's apartment to

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purchase cocaine and Lanier had questioned Brock about whether "he had been in the packages of cocaine," suggesting that "the information provided by Bridges demonstrated a motive for Lanier to kill Brock." State v. Graggs, 10th Dist. No. 13AP-852, 2014-Ohio-1195, ¶ 3 ("Graggs III "). The trial court, by entry filed September 24, 2013, denied appellant's motion for leave to file a motion for new trial, and appellant appealed that judgment. In Graggs III, this court affirmed the judgment of the trial court, and we later denied appellant's application for reconsideration.

{¶ 14} On March 24, 2015, appellant filed a second motion for leave to file a motion for new trial based on newly discovered evidence. In support of his motion, appellant attached the affidavit of Jamal Sealy, "another" inmate at CRC, who averred that, in June 2008, Lanier "confided in him that he killed Brock." State v. Graggs, 10th Dist. No. 15AP-480, 2015-Ohio-3990, ¶ 5 ("Graggs IV"). Sealy further averred he "did not discover appellant had been convicted of murdering Brock until October 2014." Id. Sealy stated that he told appellant about this conversation after he became aware they were both incarcerated at the same facility.

{¶ 15} On April 8, 2015, the trial court denied appellant's motion. In Graggs IV, this court affirmed the judgment of the trial court, holding in part that the affidavit filed by appellant in support of his motion did not disclose a strong probability that it would change the result if a new trial was granted. Appellant filed an application for reconsideration, which this court denied.

{¶ 16} On July 14, 2016, appellant filed a third motion for leave to file a motion for new trial based on newly discovered evidence. Attached to the motion was the affidavit of Michael Shepard who averred that he was in Lanier's apartment on the evening of January 8, 2008, and that he was in the bathroom when he heard shots fired. Shepard stated that he first told appellant about the events in 2016 while they were both incarcerated at the same facility. By entry filed August 1, 2016, the trial court denied appellant's motion for leave.

{¶ 17} On August 2, 2016, appellant filed another motion for leave to file a motion for new trial based on newly discovered evidence. The trial court denied that motion by entry filed August 4, 2016. Following an appeal, this court affirmed the judgment of the trial court in State v. Graggs, 10th Dist. No. 16AP-611, 2017-Ohio-4454 ("Graggs V").

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{¶ 18} On January 22, 2018, appellant filed a "successive" petition for postconviction relief. By entry filed April 11, 2018, the trial court denied appellant's successive petition, and appellant appealed that judgment. In State v. Graggs, 10th Dist. No. 18AP-491, 2019-Ohio-361 ("Graggs VI "), this court reversed the judgment of the trial court on the basis that it denied the petition without considering the affidavit of Albert Mullins who stated in his affidavit that he had collected used latex gloves from his worksite job (working with appellant) and had taken them to the apartment where Brock had been shot to be reused. Following this court's remand, the trial court issued a journal entry denying appellant's successive petition for post-conviction relief, and appellant appealed that judgment. In State v. Graggs, 10th Dist. No. 19AP-173, 2019-Ohio-4694 ("Graggs VIII"), this court affirmed the judgment of the trial court.

{¶ 19} On November 20, 2018,...

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