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State v. Ambartsoumov

Court of Appeals of Ohio, Tenth District

July 11, 2013

State of Ohio, Plaintiff-Appellee,
v.
Garri Ambartsoumov, Defendant-Appellant. State of Ohio, Plaintiff-Appellee,
v.
Eldar Z. Veliev, Defendant-Appellant.

APPEALS from the Franklin County Court of Common Pleas, C.P.C. No. 08CR-07-5039, C.P.C. No. 08CR-07-5040, C.P.C. No. 09CR-03-1753.

Ron O'Brien, Prosecuting Attorney, and Sheryl L. Pritchard, for appellee.

Keith A. Yeazel, for appellants.

DECISION

PER CURIAM.

{¶ 1} In these consolidated appeals, defendants-appellants, Eldar Z. Veliev and Garri Ambartsoumov, challenge judgments of the Franklin County Court of Common Pleas denying their amended motions for leave to file a delayed motion for new trial.

{¶ 2} On July 11, 2008, appellants were each indicted on one count of felonious assault, in violation of R.C. 2903.11. On March 24, 2009, appellants were each indicted on one count of attempted murder, in violation of R.C. 2923.02. The indictments arose out of an incident occurring May 17, 2008, in which two individuals, Tigran Safaryan and Arut Koulian, received knife wound injuries outside a Columbus restaurant, Hawa Russia, a Russian club located on East Dublin Granville Road, Columbus.

{¶ 3} Appellants were jointly tried before a jury beginning August 24, 2009. Following deliberations, the jury returned verdicts finding appellant Veliev (individually "Veliev") guilty of felonious assault and attempted murder, while the jury found appellant Ambartsoumov (individually "Ambartsoumov") guilty of felonious assault.

{¶ 4} Both appellants filed appeals from their convictions. In State v. Ambartsoumov, 10th Dist. No. 09AP-1054, 2010-Ohio-6293, this court affirmed Ambartsoumov's conviction; this court affirmed Veliev's convictions in State v. Veliev, 10th Dist. No. 09AP-1059, 2010-Ohio-6348. Appellants appealed their convictions, and the Supreme Court of Ohio declined to grant discretionary review. See State v. Ambartsoumov, 128 Ohio St.3d 1461, 2011-Ohio-1829; State v. Veliev, 128 Ohio St.3d 1461, 2011-Ohio-1829.

{¶ 5} On March 17, 2011, appellants filed applications for reopening, pursuant to App.R. 26(B), alleging ineffective assistance of appellate counsel. This court subsequently denied appellants' applications for reopening. Appellants appealed from this court's decisions, and the Supreme Court declined to accept the appeals. See State v. Ambartsoumov, 131 Ohio St.3d 1486, 2012-Ohio-1143; State v. Veliev, 131 Ohio St.3d 1542, 2012-Ohio-2025.

{¶ 6} On April 18, 2012, Veliev filed motions in common pleas case Nos. 08CR-5040 and 09CR-1753 for leave to file a delayed motion for new trial, alleging he had discovered new evidence indicating that several individuals, other than himself and co-defendant Ambartsoumov, had committed the offenses. Ambartsoumov filed an identical motion with the trial court in common pleas case No. 08CR-5039. Attached to the motions were various affidavits, including those of Irina Stevens, Artur Melkumov, and Irina Melkumov, who each stated they had witnessed the incident. One of these individuals, Artur Melkumov, stated he was interviewed by a police officer at the restaurant following the incident and that he "told the police [he] did not see anything" because he was afraid of retaliation, but that he "decided to come forward now because Eldar did not cut Arut." The other two individuals, Irina Stevens and Irina Melkumov, averred in their affidavits that they witnessed the incident but did not come forward sooner because of fear of retaliation. Also attached to Veliev's motions was his own affidavit, as well as the affidavits of Ambartsoumov, Steven Palmer (Veliev's trial counsel), and Samuel Shamansky (Ambartsoumov's trial counsel). Ambartsoumov's motion also included his own affidavit, as well as the affidavits of Veliev, Palmer, and Shamansky.

{¶ 7} The state filed responses to appellants' motions, arguing that all three witnesses were on the state's trial witness list and, therefore, they were known to defense counsel at the time of trial. Appellants filed amended motions for leave, arguing that, if disclosure had occurred, appellants' former trial counsel must have rendered ineffective assistance of counsel for failing to investigate and/or call those witnesses to testify. Appellants further argued that the state must have committed a Brady [v. Maryland, 373 U.S. 83 (1963)] violation by hiding exculpatory witnesses. By entries filed September 12 and October 9, 2012, the trial court denied appellants' amended motions for leave to file a delayed motion for new trial.

{¶ 8} On appeal, appellants set forth the following identical two assignments of error for this court's review:

FIRST ASSIGNMENT OF ERROR:
The trial court erred in denying defendant's motions for leave to file a delayed ...

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