State v. Larkin, C-950666

• Decision Date: 05 June 1996
• Docket Number: No. C-950666,C-950666
• Parties: The STATE of Ohio, Appellant, v. LARKIN, Appellee.
• Court: Ohio Court of Appeals

Page 516

111 Ohio App.3d 516

676 N.E.2d 906

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

No. C-950666.

Court of Appeals of Ohio First District, Hamilton County.

Decided June 5, 1996.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaefer, Assistant Prosecuting Attorney, Cincinnati, for appellant.

Timothy Smith and Kenneth L. Lawson, Cincinnati, for appellee.

PER CURIAM.

The state of Ohio brings this appeal, pursuant to leave granted by this court, from the judgment of the trial court granting the motion of the defendant-appellee, Michael M. Larkin, for a new trial following his conviction for aggravated murder. In its sole assignment of error, the state argues that the trial court erred by granting the motion on the basis of newly discovered evidence when that evidence failed to meet the requirements of State v. Petro (1947), 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370. For the reasons that follow, we agree with the state and thus reverse.

I

Larkin was found guilty after a bench trial on May 31, 1995. Prior to sentencing, on June 13, 1995, Larkin filed a motion for a new trial under Crim.R. 33. A reading of the motion discloses three separate grounds: (1) newly discovered evidence, (2) insufficient evidence, and (3) denial of his right to a jury trial because his trial counsel had incorrectly counseled him that a bench trial would necessarily result in his acquittal. The affidavits of Rosalind Stewart, Robert Williams, and Vanessa Barham were filed to support the motion for a new trial.

Larkin was sentenced on June 22, 1995, to a term of twenty years to life, plus three years on a firearm specification. On July 13, 1995, however, the trial court granted Larkin's Crim.R. 33 motion for a new trial. Subsequently, on July 18, 1995, the state filed a motion to disqualify Larkin's trial counsel ¹ and requested that the trial court reconsider its decision granting Larkin a new trial. On July 24, 1995, the trial court, although denying the state's motion to disqualify Larkin's trial counsel, vacated its previous order granting Larkin a new trial and reassigned the matter to a visiting judge for a hearing. ²

On August 8, 1995, a hearing on the motion for a new trial began before the visiting judge. At the outset of the hearing, Larkin's counsel challenged the jurisdiction of the visiting judge and further argued that it was "imperative" that the original trial judge consider the motion because he was the person in the best position to gauge the impact of the newly discovered evidence upon that which was presented at trial. These objections were overruled.

Inexplicably, neither the state nor Larkin introduced a transcript of the trial at the hearing. Instead, Larkin's trial counsel summarized the trial evidence from the witness stand. On the day following the hearing, the visiting judge announced his decision from the bench to grant the motion for a new trial based upon his finding that Larkin had presented new material evidence which could not, with reasonable diligence, have been discovered and produced at trial. On August 18, 1995, an entry granting Larkin's Crim.R. 33 motion was journalized.

II

Before we address the state's sole assignment of error, it is necessary first to consider the argument raised by Larkin that the original trial judge lacked the authority to reconsider and vacate his order granting the Crim.R. 33 motion for a new trial. Although Larkin was apparently not prejudiced by the decision to do so since the visiting judge to whom the motion was then assigned granted a new trial as well, Larkin's argument must be addressed because, if it is correct, the visiting judge's order, which is the only order appealed from, would be a nullity.

In support of his position that a trial court cannot reconsider its decision to grant a new criminal trial, Larkin cites a case from this court, Montgomery v Leach (Apr. 10, 1985), Hamilton App. No. C-840467, unreported, 1985 WL 6732, in which we affirmed the trial court's decision to vacate an earlier order granting a new trial upon the basis of fraud. See, also, Jelm v. Jelm (1951), 155 Ohio St. 226, 44 O.O. 246, 98 N.E.2d 401. Because of language in Leach emphasizing the "longstanding deep-rooted rule of law that a court has power to vacate its judgments which have been fraudulently induced," Larkin argues that a trial court lacks the same power absent a finding of fraud. We disagree.

The Ohio Rules of Criminal Procedure do not specifically authorize a trial court to vacate an earlier order granting a new trial. However, Crim.R. 57(B) provides that "if no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules of criminal procedure, and shall look to the rules of civil procedure and to the applicable law if no rule of criminal procedure exists." Confronted with this same issue, the court in State v. Groves (Dec. 23, 1991), Warren App. No. CA91-02-014, unreported, 1991 WL 274317, relying in part upon our decision in Leach, concluded that "a trial judge, who has the discretion to determine whether or not a new trial should be granted, should be free to change the ruling if upon further and more mature deliberation, the judge concludes that justice so requires."

In the most lengthy discussion of this issue that we have found, the court in United States v. Smith (C.A.3, 1946), 156 F.2d 642, noted that Fed.R.Crim.P. 33, like its Ohio counterpart, does not cast any light upon the power of the trial court to reconsider its action in denying or granting a motion for a new trial. The court in Smith, however, concluded upon examination of the decided cases from state courts that "the weight of authority is in favor of such power, provided it is exercised within the term." Id. at 644. See, also, Commonwealth v. Miller (1838), 6 Dana 315, 36 Ky. 315; Gonzales v. State (1897), 38 Tex.Crim. 62, 41 S.W. 605; Johnson v. State (1908), 1 Okla.Crim. 321, 97 P. 1059, 18 Ann.Cas. 300; State v. Luft (1919), 104 Kan. 353, 179 P. 553; People v. Cimino (1914), 163 A.D. 217, 147 N.Y.S. 1079; Hefton v. State (1934), 206 Ind. 663, 190 N.E. 847; Dimmel v. State (1935), 128 Neb. 191, 258 N.W. 271; and People v. Beath (1936), 277 Mich. 473, 269 N.W. 238.

We hold, therefore, that the original trial judge did have the authority to reconsider and, upon more mature reflection, to vacate his original decision granting Larkin a new trial.

III

In its sole assignment of error, the state argues that the newly discovered evidence upon which the visiting judge ultimately granted Larkin's motion for a new trial fails to meet the six-part test contained in the syllabus of State v. Petro supra, 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370. According to the syllabus of Petro:

"To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown 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) 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."

Before addressing the merits of this argument, we must consider the truncated record upon which the Crim.R. 33 motion was ultimately decided. For reasons which are unclear, the parties apparently ³ agreed that a summary of the trial testimony by Larkin's trial counsel, not a transcript of the proceedings, would form the record upon which the visiting judge was to gauge the impact of the new evidence.

The state of the record in this case is more than just a curiosity because this court is necessarily bound by the record that was before the trial court in making its decision. See, generally, State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus. Our review of the new evidence must, therefore, be filtered through the same limited presentation of the trial evidence that was deemed appropriate by the parties and the trial court--the verbal summary of Larkin's trial counsel as subject to the state's cross-examination. While we are constrained to review the trial evidence from this limited perspective, nothing in this decision should be read to endorse what we perceive as an unnecessary and unwarranted circumcision of the record for the purposes of determining the materiality of new evidence presented in a motion for a new trial under Crim.R. 33.

As summarized by Larkin's trial counsel, Larkin was convicted largely upon the testimony of Shawanna Ogletree, an eyewitness to the slaying. Ogletree was the girlfriend of the victim, Paul Saturday. The two were together in her apartment at night when there occurred a knock on the door. Ogletree went to the door, peered out the peephole, and saw two men. Although she later claimed to have recognized the two men at the time as Larkin and Rodney Dyson, with ski masks pulled up to reveal their faces, Ogletree testified that she asked the men to identify themselves, which they did with the names "Larry" and "Lamont." According to Ogletree's testimony, when Saturday then asked her who was at the door, she answered that it was "Larry" and "Lamont."

The two individuals then came through the door. Ogletree testified that she scratched the face of one of the assailants. The assailants then shot Saturday to death, one of them asking, "Where is my money?" or words to that effect. After the assailants left, Ogletree called 911. Asked by the 911 operator if she saw who committed the murder, Ogletree responded that she did not and that it was two "boys" with masks on. Moreover, because she had a "three-way" telephone, Ogletree was then able to "click over" to call her mother's house. In that conversation,...