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State v. Morris

Court of Appeals of Ohio, Second District, Montgomery

March 31, 2017

STATE OF OHIO Plaintiff-Appellee
D'ALCAPONE A. MORRIS Defendant-Appellant

         Criminal Appeal from Common Pleas Court, Trial Court Case No. 2009-CR-2159/1

          MATHIAS H. HECK, JR., ANDREW T. FRENCH, Atty., Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          BRYAN K. PENICK, Atty., MATTHEW G. BRUCE, Atty., Attorneys for Defendant-Appellant


          WELBAUM, J.

         {¶ 1} Defendant-Appellant, D'Alcapone Morris, appeals from two trial court decisions. In Case No. 26949, Morris appeals from a decision overruling his motion for new trial, and in Case No. 26960, he appeals from a decision overruling his motion for production of documents. Because the cases involve the same underlying criminal convictions, we have consolidated the appeals.

         {¶ 2} After reviewing the record, we conclude that the trial court did not err in overruling both motions. Accordingly, the judgments of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 3} In April 2010, Morris was convicted of several charges, including murder, aggravated robbery, aggravated burglary, and a firearm specification, and was sentenced to a total of 35 years to life in prison. We affirmed the convictions and sentences on January 6, 2012. See State v. Morris, 2d Dist. Montgomery No. 24034, 2012-Ohio-22. Morris did not appeal further to the Supreme Court of Ohio.

         {¶ 4} The charges against Morris arose from events that occurred on the evening of June 2 and into the early morning hours of June 3, 2009, when an individual named Richard Pogue was murdered at a residence on Kingsley Avenue in Dayton, Ohio. According to our opinion:

The State's evidence at trial established that on June 3, 2009, Morris and a companion, Michael Guy, arranged to have a female, Nichelle White, drive them to purchase marijuana from an individual named Richard Pogue. Upon arriving at Pogue's residence, they discovered that he did not have the marijuana. Pogue agreed, however, to accompany them to the home of Javon Buckman, who had marijuana available. White drove the three men to Buckman's house on Kingsley Avenue. Once there, Buckman would allow only two of them to enter. As a result, Pogue and Guy went inside while Morris stayed outside.
Inside the house, Buckman handed Guy some marijuana. Instead of paying, Guy pulled out a revolver he earlier had obtained from Morris and ordered Buckman and Pogue to the floor. As that was happening, Morris entered through the side door, punched Buckman and Pogue in their faces, took the revolver from Guy, and declared that Buckman and Pogue were about to die. With Guy standing in front of him and Morris standing behind him, Buckman heard Morris cock the revolver and fire a single shot. Guy and Morris then rifled through Buckman's pockets before fleeing the scene in White's waiting car. Pogue died as a result of a point-blank gunshot wound to his back. During their investigation, police identified Guy and Morris as suspects. They first located Guy, who led them to White. They later found Morris hiding under insulation in the attic of his girlfriend's house.
Morris testified at trial and admitted being at Buckman's house with Guy and Pogue on the night in question. He admitted bringing a revolver with him but denied knowing about a robbery. According to Morris, he entered the house after hearing or seeing commotion inside and saw Guy brandishing the gun. He testified that he was attempting to get the gun from Guy when it "went off."

(Footnote omitted.) Morris at ¶ 2-4.

         {¶ 5} As was noted, Morris was convicted of all charges in April 2010, and his convictions were affirmed in January 2012. On September 10, 2015, Morris filed a motion for leave to file a delayed motion for new trial. In the motion, Morris asserted that Joshua Davis, another inmate at Ross Correctional Institution, had overheard him discussing his case in August 2015. Davis (who was previously unknown to Morris) indicated that on the night of the murder, he was going to Buckman's house to buy marijuana. While Davis was walking toward the house, he heard a gunshot and saw two African-American males running out of the door. As Davis was leaving, he heard another shot and saw another African-American male stumbling out the other door of the house, at which point Davis stated that "he got his ass out of there." Case No. 26949, Doc. #14, p. 2. According to Morris, Davis was willing to sign an affidavit. However, no affidavit was attached to the motion. Morris also did not attach his own affidavit, nor did he attach any other documents.

         {¶ 6} Based on this alleged evidence, Morris argued that if another shot occurred after he left the house, reasonable doubt about his guilt existed and would warrant a new trial. In a supplemental pleading filed on October 6, 2015, Morris also alleged that Pogue was shot in the chest, that more than one shot was fired, that the coroner's report had been changed, and that more than one bullet was submitted for testing. The State did not file responses to Morris's motion or his supplemental pleading.

         {¶ 7} On November 12, 2015, the trial court overruled the motion for leave to file a motion for new trial. The court concluded that Morris had not been unavoidably prevented from discovering the evidence, and that he had made nothing more than ...

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