State v. Houston

• Docket Number: 112689
• Decision Date: 26 October 2023
• Citation: 2023 Ohio 3888
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. CARDELL HOUSTON, Defendant-Appellant.
• Court: Ohio Court of Appeals

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2023-Ohio-3888

STATE OF OHIO, Plaintiff-Appellee, v. CARDELL HOUSTON, Defendant-Appellant.

No. 112689

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 26, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611762-A

JUDGMENT AFFIRMED.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Gregory Ochocki, Assistant Prosecuting Attorney for appellee.

G. Michael Goins and Lawrence R. Floyd, for appellant.

JOURNAL ENTRY AND OPINION

MICHAEL JOHN RYAN, JUDGE

{¶ 1} Defendant-appellant, Cardell Houston, appeals the trial court's denial of his motion for leave to file a motion for a new trial. For the reasons that follow, we affirm.

{¶ 2} In 2016, Houston was charged with aggravated murder, pursuant to R.C. 2903.01(A)(1); two counts of murder, pursuant to R.C. 2903.02(A) and (B); two counts of felonious assault, pursuant to R.C. 2903.11(A)(1) and (2); and one count of having weapons while under disability, pursuant to RC. 2923.13(A)(2). The aggravated murder, murder, and felonious assault charges had attendant one- and three-year firearm specifications. The case proceeded to a bench trial.

{¶ 3} At the conclusion of trial, the trial court found Houston not guilty of aggravated murder but guilty of two counts of murder and two counts of felonious assault. The court nolled the having weapons while under disability count. At sentencing, the trial court merged all four counts as allied offenses and the state elected to proceed to sentencing on the charge of murder, pursuant to R.C. 2903.11(A)(1). The court imposed a prison term of 15 years to life to be served consecutive to a three-year firearm specification. The court also ordered Houston's sentence for murder to be served consecutively to his sentences in four unrelated cases: Case Nos. CR-603783, CR-604546, CR-604979, and CR-607747.

{¶ 4} Houston appealed his conviction in this case and in Case No. CR-604546. As to this case, he argued, in part, that he received ineffective assistance of counsel based on the failure to object to the use of DNA technology.

{¶5} The following factual history was set forth in Houston's direct appeal:

On November 20, 2015, William Barnes, Jr. was shot and killed in his car on West 104th Street near Western Avenue in Cleveland, Ohio. Surveillance video from two nearby homes captured the incident and showed that at approximately 2:06 p.m. a blue Chevy Trailblazer appeared and parked on West 104th Street near Western Avenue.

Three minutes later Barnes appeared in a Hyundai Sonata and parked behind the Trailblazer. About one minute later a black male exited the Trailblazer and entered the front passenger seat of Barnes' vehicle. Just under two minutes later, a second black male exited the Trailblazer and entered the rear passenger seat of Barnes' automobile. Less than a minute thereafter flashes of light were visible inside the rear passenger compartment of the Sonata; the front passenger exited the vehicle and seconds later the right rear passenger exited the vehicle as well. The surveillance video showed that after exiting, the rear passenger placed his left hand on the roof of the Sonata just above the right rear passenger door while leaning with his right arm extended back into the passenger compartment of the vehicle. A neighbor witnessed the shooting and testified to seeing two shots fired through an open door of Barnes' vehicle from the passenger side of the vehicle. The posture of the right rear passenger in the video was consistent with this testimony. That passenger then turned to flee back to the Trailblazer and an object consistent with the appearance of a firearm could be seen in his right hand. Nine-millimeter shell casings were later recovered by police from both inside the Sonata and on the sidewalk near the passenger side of the vehicle.

The two persons fled in the Trailblazer and shortly thereafter Barnes' Sonata slowly rolled forward into a van parked in front of it. Neighbors who heard, and saw, part of the shooting called 911 and Barnes was found shot and hunched over in the driver seat of the Sonata. He was transported to MetroHealth hospital where he was ultimately pronounced dead.

An autopsy was performed, and Dr. Erica Armstrong testified that Barnes had sustained five gunshot wounds. Three gunshot wounds were to Barnes' back right shoulder, the upper portion of his back on the right side and his lower right back. Dr. Armstrong detailed the path of those gunshots as back to front and right to left through Barnes' body. The direction of these wounds was consistent with the state's theory at trial that Barnes was shot by the passenger in the right rear seat of his vehicle.

Investigating detectives swabbed the roof of Barnes' car where the surveillance video reflected the shooter touching the vehicle and the Cuyahoga County Medical Examiner's Office linked the major component of the mixture of DNA obtained from those swabs to Cardell Houston. A forensic scientist testified at trial that, to a reasonable degree of scientific certainty, in the absence of an identical twin, Cardell Houston was the source of the major DNA component obtained from the roof of Barnes' car where the shooter had placed his hand.

State v. Houston, 8th Dist. Cuyahoga Nos. 106470 and 106055, 2018-Ohio-3043, ¶ 3-6. This court affirmed Houston's conviction and sentencing in this case but vacated his sentence in CR-604546. Id. at ¶ 7.

{¶ 6} In September 2018, Houston filed a postconviction petition claiming he was denied effective assistance of trial counsel based on his attorney's alleged failure to investigate scientific evidence, including DNA evidence. The trial court denied his petition without a hearing. Houston appealed the court's decision and this court affirmed, finding that his attorney's decision to rely on cross-examination of the state's DNA expert, rather than retaining its own DNA expert, is not ineffective assistance of counsel. State v. Houston, 8th Dist. Cuyahoga No. 108156, 2019-Ohio-4787, ¶ 13, citing State v. Blevins, 8th Dist. Cuyahoga No. 106115, 2018-Ohio-3583, citing State v. Nicholas, 66 Ohio St.3d 431, 613 N.E.2d 225 (1993).

{¶ 7} This court determined that Houston's claim - that his counsel was ineffective for failing to explore potential issues with DNA evidence - had already been rejected in his direct appeal and, further, Houston had failed to show prejudice. Houston 2019-Ohio-4787, at id., citing Houston, 2018-Ohio-3043, at ¶ 22 and Houston 2019-Ohio-4787, at ¶ 14. The Ohio Supreme Court denied Houston's discretionary appeal. State v. Houston, 158 Ohio St.3d 1436, 2020-Ohio-877, 141 N.E.3d 249. Houston filed an application to reopen his appeal, which this court denied. State v. Houston, 8th Dist. Cuyahoga No. 108156, 2022-Ohio-1660.

{¶ 8} On February 3, 2023, Houston moved for leave to file a motion for new trial pursuant to Crim.R. 33. Houston claimed that the state failed to disclose evidence favorable to him, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Houston argued that the state failed to turn over the disciplinary history of a nontestifying witness, former Cleveland Police Detective Rhonda Gray. In his motion for leave, Houston claimed the defense could have used Gray's disciplinary history to impeach her trial testimony.^[1] In April 2023, the trial court denied Houston's motion without a hearing.

{¶ 9} Houston appealed and raises two assignments of error, which we combine for review:

I. The trial court abused its discretion and violated appellant's due process rights, when it denied appellant's motion for leave, finding appellant failed to show by clear and convincing evidence he was unavoidably prevented from discovering the evidence that appellant introduced in his motion for new trial, when the evidence on its face demonstrated such unavoidableness.

II. The trial court abused its discretion, when it denied appellant's motion for leave to file motion for new trial without conducting an evidentiary hearing as appellant submitted documentation that on its face supported appellant's claim that he was unavoidably prevented from discovering said evidence earlier.

{¶ 10} In his assignments of error, Houston claims that the trial court erred when it denied his motion for leave to file a motion for new trial because he was unavoidably prevented from timely discovering the evidence that was the basis of his motion for a new trial. He also claims that the trial court should have held a hearing on his motion because he submitted documentation to support his claim.

{¶ 11} We review the denial of a motion for leave to file a delayed motion for new trial for an abuse of discretion. State v. Hill, 8th Dist. Cuyahoga No. 108250, 2020-Ohio-102, ¶ 13, citing State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983. An abuse of discretion occurs when a court exercises "its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority." Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

{¶ 12} Crim.R. 33 provides that a new trial may be granted on motion of the defendant where new evidence materially affects the defendant's substantial rights and satisfies the following:

When new evidence material to the defense is discovered[,] which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court

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