State v. Watson

• Decision Date: 17 February 1998
• Docket Number: No. CA97-07-145,CA97-07-145
• Citation: 126 Ohio App.3d 316,710 N.E.2d 340
• Parties: The STATE of Ohio, Appellee, v. WATSON, Appellant. *
• Court: Ohio Court of Appeals

Page 316

126 Ohio App.3d 316

710 N.E.2d 340

The STATE of Ohio, Appellee, v. WATSON, Appellant. ^*

No. CA97-07-145.

Court of Appeals of Ohio,

Twelfth District, Butler County.

Decided Feb. 17, 1998.

John F. Holcomb, Butler County Prosecuting Attorney, Robert N. Piper III and Daniel G. Eichel, Assistant Prosecuting Attorneys, Hamilton, for appellee.

David H. Bodiker, Ohio Public Defender, Kevin L. Fahey and Thomas R. Wetterer, Assistant Public Defenders, Columbus, for appellant.

WILLIAM W. YOUNG, Presiding Judge.

Defendant-appellant, Kevin Watson, appeals a decision by the Butler County Court of Common Pleas on June 25, 1997, which dismissed his petition for postconviction relief. We affirm.

We have previously detailed the facts of appellant's case as follows:

"On the evening of June 3, 1987, Eli Mast and Krista Toney were checking lottery receipts at Mast's New and Used Furniture Store located at 427 South Second Street in Hamilton, Ohio. Two juveniles, Marlon Moon, age fifteen, and Willie Prater, age sixteen, were in the rear of the store playing video games. At approximately 7:30 p.m., a black man entered the store carrying a gym bag and a twelve-gauge shotgun. The man ordered Mast to lie face down on the floor. He then threw the gym bag at Toney and told her to fill it with money. Moon and Prater ran into a back room, apparently unnoticed by the assailant. As Toney filled the gym bag with money, the assailant placed the shotgun at the back of Mast's head and fired once, killing Mast instantly. He then pointed the gun at Toney and threatened to kill her before running out of the store." State v. Watson (Mar. 31, 1989), Butler App. No. CA88-02-014, unreported, at 1-2, 1989 WL 30739.

Moon, Prater, and Toney all positively identified appellant as the man they saw in the store in statements made both before and during the trial. Id. at 6. Toney recognized that appellant was the assailant because appellant had stayed at her house the previous night with her stepbrother Rodney Henderson. Id. at 7.

On October 31, 1987, appellant was adjudged guilty by a jury in the Butler County Court of Common Pleas of one count of aggravated murder in violation of R.C. 2903.01(B), with the specification that the offense was committed by appellant, acting as the principal offender, while he was committing or attempting to commit aggravated robbery, R.C. 2911.01(A)(1), and with the specification that appellant had a firearm on or about his person or under his control while committing the offense. R.C. 2941.141. Appellant was also convicted of aggravated robbery in violation of R.C. 2911.01(A)(1), with the specification that he had a firearm on or about his person or under his control while committing the offense. R.C. 2941.141. See State v. Watson (Mar. 31, 1989), Butler App. No. CA88-02-014, unreported. The jury recommended that appellant be sentenced to death, the trial court accepted the recommendation, and on November 12, 1987, sentenced appellant to death. Id. at 4.

Appellant presented seven assignments of error to this court in his direct appeal. We overruled all seven assignments of error and affirmed the trial court's judgment. Id. Appellant appealed his case to the Ohio Supreme Court, which found that a death sentence was an inappropriate penalty, and remanded the cause to the trial court for the imposition of a life sentence. State v. Watson (1991), 61 Ohio St.3d 1, 572 N.E.2d 97. On remand, the trial court imposed a sentence of life imprisonment with eligibility for parole after thirty years for the aggravated murder conviction, to be served consecutively with the terms of incarceration imposed for the aggravated robbery conviction and the firearm specification. State v. Watson (1992), 76 Ohio App.3d 258, 260, 601 N.E.2d 230, 232. Appellant appealed the trial court's sentence to this court, and we affirmed the judgment of the trial court. Id. A motion for leave to appeal to the Supreme Court of Ohio was overruled in State v. Watson (1992), 65 Ohio St.3d 1421, 598 N.E.2d 1172.

On September 16, 1996, appellant filed a petition for postconviction relief pursuant to R.C. 2953.21 and requested an evidentiary hearing. Appellant presented three causes of action and argued that the judgments against him were void or voidable because (1) he did not receive effective assistance of counsel, (2) the prosecution suppressed evidence favorable to him, and (3) it is unconstitutional to sentence an innocent man to prison for life. The trial court held that the first two causes of action should be dismissed without an evidentiary hearing because there was no reasonable probability that the result of the trial would have been different, and held that the third cause of action failed "to constitute sufficient operative facts to support a claim for postconviction relief on constitutional grounds." Appellant appeals this decision and presents five assignments of error.

Assignment of Error No. 1:

"The trial court erred in applying res judicata to two of appellant's causes of action in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution."

Appellant claims that res judicata cannot be applied to bar his cause of action because it is supported by evidence outside the record. However in appellant's brief, he fails to discuss the evidence, fails to detail why this evidence could not have been presented at appellant's trial, fails to explain how this evidence would have affected the outcome of the trial, fails to state how the trial court's actions denied appellant's right to due process, and further fails to detail why the evidence raised sufficient questions of fact to entitle him to an evidentiary hearing.

Although appellant cites case law to support his conclusion that res judicata should not be applied to deny a postconviction petition supported by evidence outside the record, appellant fails to apply the case law to the facts of this case and instead uses only conclusory statements to support his assignment of error. According to App.R. 12(A)(2):

"The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A)."

App.R. 16(A)(7) states that appellant shall include in his brief "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary."

An appellate court may rely upon App.R. 12(A) in overruling or disregarding an assignment of error because of "the lack of briefing" on the assignment of error. Hawley v. Ritley (1988), 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392-393. It is not the duty of an appellate court to search the record for evidence to support an appellant's argument as to any alleged error. State v. McGuire (Apr. 15, 1996), Preble App. No. CA95-01-001, unreported, at 40, 1996 WL 174609, affirmed (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112. "An appellate court is not a performing bear, required to dance to each and every tune played on an appeal." Id., following State v. Lorraine (Feb. 23, 1996), Trumbull App. No. 95-T-5196, unreported, at 9, 1996 WL 207676.

Accordingly, we find that appellant has failed to comply with App.R. 16(A) because he fails to present "reasons in support of the contentions" and for his "lack of briefing" on his assignment of error. Appellant's first assignment of error is overruled based upon App.R. 12(A)(2).

Assignment of Error No. 2:

"In evaluating the Brady material, the trial court erred in requiring appellant to show a reasonable probability of a different outcome had the material been turned over at trial, in violation of the Fourteenth Amendment to the United States Constitution."

Appellant claims that the trial court erred in following the existing standard concerning review of the prosecution's obligation to turn over exculpatory evidence to defense counsel, which is outlined in Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215, 218-219. The trial court stated in its opinion:

"Under Brady, the prosecution's duty is to provide the accused with 'material' evidence, see United States v. Agurs (1976), 427 U.S. 97, 106 [96 S.Ct. 2392, 2398-2399, 49 L.Ed.2d 342, 351]. Evidence is deemed 'material' only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; a 'reasonable probability' is a probability sufficient to undermine confidence in the outcome. United States v. Bagley [(1985)], 473 U.S. at 682 [105 S.Ct. 3375 at 3383-3384, 87 L.Ed.2d 481 at 494]."

Appellant urges us to adopt the following different standard:

"Once a petitioner has demonstrated that the state had exculpatory evidence in its hands at the time of trial which it failed to turn over to defense counsel, the burden should shift to the State to show that its misbehavior did not result in prejudice to the defendant. And the standard the State should have to meet should be the highest one possible: proof 'beyond a reasonable doubt that the withheld evidence would not have affected the outcome of the trial.' "

Although appellant urges us to adopt a standard different from the one used in Brady and Bagley, we are bound by the decisions of the United States Supreme Court. The United States Supreme Court has stated that "[t]he [United States] Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues." Pennekamp v. Florida (1946), 328...