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State v. Reed

Court of Appeals of Ohio, Second District, Montgomery

August 16, 2019

STATE OF OHIO Plaintiff-Appellee
v.
RASHAAN O. REED Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2001-CR-4126

          MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          RASHAAN O. REED, #A415-481, Defendant-Appellant, Pro Se

          OPINION

          FROELICH, J.

         {¶ 1} Rashaan O. Reed, pro se, appeals from a judgment of the Montgomery County Court of Common Pleas, which denied his motion for leave to file a delayed motion for a new trial. For the following reasons, the trial court's judgment will be affirmed.

         I. Procedural History

         {¶ 2} In 2002, Reed was found guilty by a jury of murder with a firearm specification and of tampering with evidence in connection with the death of Joseph Smith. The trial court sentenced him to 15 years to life for the murder and two years in prison for tampering with evidence, to be served consecutively to each other and to another sentence in a Miami County case (Miami C.P. No. 2000-CR-440). In addition, the trial court sentenced Reed to three years of incarceration for the firearm specification, to be served consecutively to and prior to the definite sentence. Reed's aggregate sentence in the Montgomery County case was 20 years to life in prison.

         {¶ 3} Reed appealed from his convictions, raising three assignments of error. His first assignment of error claimed that the trial court committed prejudicial error by (1) precluding him from offering testimony that he was not present when or where the victim was killed (alibi testimony), (2) sustaining objections to questions offered to attack and to impeach the credibility of the State's witnesses, and (3) denying him the opportunity to impeach the testimony of Stacy Young, a State's witness, with prior inconsistent statements. His second and third assignments of error claimed that his convictions were against the manifest weight of the evidence and that the trial court improperly denied his Crim.R. 29 motion. We rejected each of Reed's arguments and affirmed his convictions. State v. Reed, 155 Ohio App.3d 435, 2003-Ohio-6536, 801 N.E.2d 862 (2d Dist.) (Reed I).

         {¶ 4} In August 2008, Reed filed a pro se motion to vacate his convictions. The basis for his motion was that the indictment failed to include the mens rea for his offenses. The trial court denied the motion. Reed appealed, but the appeal was later dismissed due to his failure to timely file a brief. State v. Reed, 2d Dist. Montgomery No. 23802 (Sept. 8, 2010) (Reed II).

         {¶ 5} In September 2010, Reed, pro se, moved for leave to file a motion for a new trial and filed a motion for a new trial, claiming that his sentence was void under State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. The trial court denied his motions, but resentenced Reed to correct the imposition of post-release control and an error in the judgment entry. Reed did not appeal.

         {¶ 6} In May 2014, Reed, pro se, filed a motion for leave to file a delayed motion for a new trial, claiming that another individual, Patron Steele, committed the murder and that several State's witnesses (Michael Shoemaker, Stacy Young, and Peter Holloway) lied when they testified that they did not receive any consideration or leniency from the State in exchange for their testimony. Reed withdrew the motion, with the court's consent, in July 2014.

         {¶ 7} On October 7, 2014, Reed filed a pro se motion for leave to file a motion for a new trial, alleging misconduct by the prosecutor and two of the State's witnesses, Shoemaker and Holloway. Reed argued that Shoemaker and Holloway received leniency and the dismissal of charges in exchange for their testimony at Reed's trial, but that both witnesses testified - and the prosecutor argued to the trial court - that neither man received any promises from the State. Reed asserted that he was prejudiced by Shoemaker's and Holloway's "false and perjured" testimony, which the prosecutor failed to correct. Reed further claimed that he was unavoidably prevented from filing a timely motion due to ineffective assistance of trial counsel and the prohibition on hybrid representation.

         {¶ 8} On November 24, 2014, the trial court overruled the motion for leave to file a motion for new trial on several grounds. The trial court rejected Reed's contention that he was unavoidably prevented from filing a timely Crim.R. 33 motion, and it concluded that trial counsel did not file a motion for a new trial because there was "no good ground for it." The court stated, "The evidence did not establish that Shoemaker and Holloway had lied when they testified they received no consideration for their testimony in Reed's Montgomery County case. The evidence indicated that Holloway and Shoemaker may have received consideration for their testimony in the Miami County case, but they did not receive any for the Montgomery County case." The trial court concluded that Reed provided no evidence that Holloway and Shoemaker gave false testimony.

         {¶ 9} The trial court further denied Reed's motion on res judicata grounds. The trial court reasoned that Reed could have raised on direct appeal or in a petition for postconviction relief any issue he had related to the trial court's ruling at trial with respect to the prosecutor's agreements with Holloway and Shoemaker. And the trial court held that, as a successive motion, res judicata barred Reed's motion for a new trial.

         {¶ 10} Finally, the trial court rejected Reed's argument that his trial counsel rendered ineffective assistance by failing to file a timely motion for a new trial. The court found no evidence that Reed's trial counsel had acted deficiently, and held that there was no indication that a new trial would have been granted had counsel filed such a motion.

         {¶ 11} We affirmed the trial court's judgment. State v. Reed, 2d Dist. Montgomery No. 26529, 2015-Ohio-3051 (Reed III). We concluded, in part, that Reed did not establish that his trial counsel was ineffective for failing to file a motion for a new trial. We noted that "[t]rial counsel was aware of the issue surrounding whether Holloway and Shoemaker had received any promises or benefits from the State in exchange for their testimony," and further that, "[h]aving made a record of the issue during trial, defense counsel reasonably could have determined that any issue surrounding Holloway's and Shoemaker's testimony was preserved for direct appeal." Id. at ¶ 23-24. We further concluded that, "in the absence of additional evidence that these witnesses provided false testimony or that the prosecutor suborned perjury, defense counsel could have reasonably concluded that there was little likelihood of success if raised in a motion for new trial." Id. at ¶ 24.

         {¶ 12} We also agreed with the trial court that res judicata barred Reed's motion. We reasoned:

As stated above, the issue of Holloway and Shoemaker's plea agreements with the State was raised in the trial court, and the trial court's decision limiting cross-examination on that issue could have been raised on direct appeal. On appeal, Reed raised several evidentiary matters, including that the trial court erred in excluding alibi evidence, sustaining objections to questions offered to impeach the credibility of certain State's witnesses, and in denying Reed the opportunity to impeach the testimony of Stacy Young with prior inconsistent statements. Reed did not appeal the trial court's rulings regarding Holloway and Shoemaker.
In addition, Reed previously filed a motion for a new trial, pursuant to Crim.R. 33. That motion was directed to the trial court's imposition of post-release control and errors in the judgment entry. Reed did not raise the alleged false testimony of Holloway or Shoemaker at that time, either. He cannot seek to raise those issues now.

Id. at ¶ 27-28.

         {¶ 13} On November 28, 2018, Reed filed another motion for leave to file a delayed motion for a new trial. Reed claimed that he had newly discovered evidence consisting of plea agreements and other documents from the Miami County cases concerning the State's witnesses in this case; Reed provided an affidavit and 27 exhibits to support his motion. Reed asserted in his motion that he was unavoidably prevented from discovering his new evidence, because the State withheld the alleged exculpatory evidence and disavowed its existence.

         {¶ 14} The State opposed the motion, claiming that the exhibits were not new evidence, that Reed had failed to establish that he was unavoidably prevented from raising his claims in a timely manner, and that his claims were barred by res judicata. The State asked that Reed's motion be denied without a hearing.

         {¶ 15} On January 3, 2019, the trial court denied Reed's motion. The court reasoned:

A review of the evidentiary materials does not disclose that various witnesses for the state at Defendant's trial were subject to impeachment for receiving consideration in a Miami County, Ohio case for their testimony in this Montgomery County case. The record does not indicate that an agreement was entered ...

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