Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Warren

Court of Appeals of Ohio, Second District, Montgomery

August 30, 2019

STATE OF OHIO Plaintiff-Appellee
v.
RAYMOND WARREN Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 1994-CR-3533

          MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          JOANNA L. SANCHEZ, Atty. and PATRICK T. CLARK, Atty. Attorneys for Defendant-Appellant

          OPINION

          WELBAUM, J.

         {¶ 1} Defendant-appellant, Raymond Warren, appeals from the order of the Montgomery County Court of Common Pleas overruling his motion for leave to file a motion for new trial. Specifically, Warren contends that the trial court abused its discretion in finding that: (1) the evidence on which his motion for leave was based was not new evidence that he was unavoidably prevented from discovering; and (2) the delay in filing his motion for leave was unreasonable. Warren also contends that, at the evidentiary hearing on his motion for leave, the trial court abused its discretion by excluding expert testimony regarding psychological pressures that lead to delayed recantations in adolescents. Warren further contends that the trial court abused its discretion in overruling his motion for public records under R.C. 149.43(B)(8). For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On April 4, 1995, a jury found Warren guilty of one count of murder with an accompanying firearm specification. The trial court sentenced Warren to 15 years to life in prison on the murder charge and three additional years in prison on the firearm specification. In issuing its sentencing decision, the trial court ordered the three-year sentence for the firearm specification to be served consecutive and prior to the indefinite term of prison that Warren received for murder, making his total prison sentence 18 years to life. Warren thereafter appealed from his conviction, which this court affirmed in State v. Warren, 2d Dist. Montgomery No. 15202, 1996 WL 612858 (Oct. 25, 1996) (Warren I ").

         {¶ 3} In Warren I, this court found that the evidence at trial established the following facts.

Shortly after midnight on July 10, 1994, Wendell Scott Simpson was shot three times in his automobile on Kilmer Street in Dayton. Moments later, his automobile crashed into the porch of a house on Kilmer. Simpson died as a result of his gunshot wounds.
Police officers who responded to the scene of the crash received information from a resident of Kilmer Street that Simpson had been seen talking with three young black men on mopeds shortly before the shooting. Approximately an hour after police officers had arrived at the scene, Warren drove down Kilmer Street toward the accident on a moped. Because Warren matched the general description of the young men who were last seen talking with Simpson, Sergeant Larry Grossnickle stopped Warren and asked him if he would be willing to answer some questions. Warren agreed. After answering questions briefly at the scene, Warren was taken to the police station to make a statement.
At the police station, a police evidence technician administered an atomic absorption test ("AA test") on Warren's hands to detect the presence of antimony and barium. The presence of these two uncommon substances on one's hands indicates a high probability that the person has fired a gun, has handled a gun which was fired, or has been "down range" of a weapon which was fired within the previous two to four hours. The police later learned that Warren's right palm had tested positive on the AA test for both substances.
Warren was also interviewed at the police station by Detective Doyle Burke. Warren told Burke that he and two of his friends, whom he identified only as "Tony" and "Chante," had been walking up Kilmer pushing a moped at around midnight on July 10. Warren stated that a green car had pulled up to them and that the driver had asked about purchasing drugs. "Tony" responded that they did not sell drugs, and the group proceeded up the street. According to Warren, the young men heard gunshots and a crash a few minutes later. Warren was released after making his statement.
Approximately one month after the shooting, police identified and located the two young men who had been with Warren on July 10. "Tony" was identified as Antonio Johnson, and "Chante" was identified as Chante Hunt. Johnson and Hunt each testified at trial that, as they walked up Kilmer Street with Warren on July 10, Warren stopped to talk with a man in a green car after the man called out to him. The two men testified that they had heard shots as they proceeded up the street without Warren, and that Warren had later admitted to them, individually, that he had shot the man in the car. According to Johnson, Warren shot Simpson because Simpson had tried to give him fake money for the second time. Johnson and Hunt also testified that they had each seen Warren with a gun the day before the shooting, and Johnson identified that weapon as a .380 automatic.
Andre Wright and Stanley Williams were the first people to stop at the accident scene the night of July 10. Wright and Williams had been driving in a gold or brown car. Wright testified that they had seen Simpson's car "running" on the porch of a house as they drove down Kilmer Street, and that Simpson had been hanging out the window waving his arm. Wright and Williams turned their car around after they had passed the house, parked, and approached the car. By this time, Wright testified that Simpson was no longer moving. Wright reached into the car and put it in park. When the engine continued to race, Wright approached the car again and turned off the engine. Like Warren, Wright and Williams were interviewed extensively by police officers the night of the shooting.
The police recovered three spent shell casings in and around Simpson's car. A ballistics expert determined that the shell casings were from .380 caliber bullets and that all three had been fired from the same gun. On the seat of the car, police also found a bundle of fake three-dollar bills wrapped in a couple of real dollar bills.
The defense presented two witnesses, Patricia and John Moreland, who lived in the neighborhood where the shooting occurred and knew Warren prior to the shooting. Patricia Moreland testified that she had heard two gunshots as she returned to her house from a friend's house around midnight on July 10. She testified that she had seen Warren on Randolph Street around the time the shots were fired and that she had seen the green car "speeding" on Kilmer, Lakeview and Adelite Streets. Mrs. Moreland further testified that she had heard the shots, but had not seen Simpson get shot, and that there was no one in the vicinity of Simpson's car when the shots were fired. Mrs. Moreland did not see anyone else on Kilmer Street. Mrs. Moreland stated that she ran into her house when the shots were fired and did not see or hear the car crash.
John Moreland stated that his wife had returned home around 11:00 or 11:30 on July 9, and that she was at home when they heard a loud crash outside. He also testified that he had seen two men drive by the accident in a brown car, turn around, and park across the street from the house into which the car had crashed. He testified that he had watched these men approach the green car several times and reach inside. He said that the men had not appeared to be helping the driver, that it looked as if they had been searching for something, and that they had reached down by the driver's feet.

Warren I, 2d Dist. Montgomery No. 15202, 1996 WL 612858 at *1-2.

         Warren II

         {¶ 4} On November 19, 2013, 17 years after this court's decision in Warren I, Warren filed a pro se motion captioned "Motion for Hearing of Criminal Rule 33A-2 Newly Discovered Evidence." In the motion, Warren requested a hearing on newly discovered evidence that Warren believed warranted a new trial. Warren identified the newly discovered evidence as an affidavit executed by Chante Hunt in October 1999 recanting his trial testimony, as well as two affidavits executed by Antonio Johnson in August 2008 wherein he also recanted his trial testimony. All three affidavits were attached to Warren's motion. In the affidavits, Chante and Antonio averred that Warren did not kill Simpson and that they had told the police otherwise out of fear of being charged with Simpson's murder. Both Chante and Antonio also averred that the police threatened to charge them with the murder if they did not testify against Warren.

         {¶ 5} In ruling on Warren's motion, the trial court interpreted the motion as seeking leave to file a motion for new trial. On January 30, 2014, the trial court overruled the motion on grounds that more than 120 days had elapsed since Warren's trial concluded and because Warren had failed to prove by clear and convincing evidence that he was unavoidably prevented from discovering the recantation evidence on which the motion was based.

         {¶ 6} Warren appealed from the trial court's decision, and on January 9, 2015, this court concluded that "the trial court erred when it overruled his motion for leave to file a motion for new trial before allowing Warren his allotted time to file a reply memorandum." State v. Warren, 2d Dist. Montgomery No. 26112, 2015-Ohio-36, ¶ 15 ("Warren II"). This court therefore reversed and remanded the matter back to the trial court for further proceedings.

         Warren III

         {¶ 7} Following the remand in Warren II, with the assistance of a public defender, Warren moved to amend and supplement his motion for leave to file a motion for new trial. The trial court granted said leave and Warren thereafter filed an "Amended and Supplemented Motion for Leave to File a Motion for New Trial" on May 20, 2015. In the amended and supplemented motion for leave, Warren again argued that Chante and Antonio's recantations were newly discovered evidence that warranted a new trial. Warren also argued that a new trial was warranted based on new scientific evidence that undermined the AA test that was performed on his hands to check for the presence of gunshot residue. Warren argued that his incarceration, lack of resources, and the unavailability of the recanting witnesses prevented him from discovering the new evidence sooner and that he should be granted leave to file a motion for new trial beyond the 120-day deadline set forth in Crim.R. 33(B).

         {¶ 8} In support of his amended and supplemented motion for leave, Warren attached several exhibits. The exhibits included the affidavits executed by Chante and Antonio that were attached to his previous motion. Warren also included an additional affidavit executed by Antonio on January 21, 2015. In that affidavit, Antonio averred that he did not tell the truth after Warren's trial because he feared that he would be charged with perjury. Warren also attached an F.B.I. "Forensic Science Communications" research article on gunshot residue ("GSR") that was published in July 2006.

         {¶ 9} In addition to these attachments, Warren attached several affidavits from attorneys and investigators who had assisted him after his conviction. One of the attorneys, Robert Lane, was a public defender who averred that his office's intake attorney, John Fenlon, responded to Warren's initial request for assistance from the public defender's office in May 2003. Attached to Lane's affidavit was a May 30, 2003 letter from Fenlon advising Warren of the time limitations associated with filing a motion for new trial. In the letter, Fenlon notes that Chante's recantation affidavit is three years old and explains that "a court may find the delay in utilizing the affidavit grounds alone to dismiss a motion for new trial." Amended and Supplemented Motion for Leave to File a Motion for New Trial - Exhibit L (May 20, 2015), Montgomery County Court of Common Pleas Case No. 1994 CR 3533, p. 5-6.

         {¶ 10} On December 15, 2015, the trial court issued a decision overruling Warren's motion for leave to file a motion for new trial. The trial court found that Warren failed to demonstrate that he filed the motion within a reasonable time and that he did not adequately explain the reasons for his delay. The trial court further concluded that Warren "ha[d] known about all of the substantive evidence upon which he relie[d] since, at the latest, 2008, and at the earliest 1999." Decision, Order and Entry Overruling Motion for Leave to File Motion for New Trial (Dec. 15, 2015), p. 22-23. Therefore, the trial court found that Warren was not entitled to an evidentiary hearing on his motion for leave.

         {¶ 11} Warren thereafter appealed from the trial court's decision denying his motion for leave, and on March 10, 2017, this court determined as follows:

The record establishes that Warren did not begin receiving pieces of his newly discovered evidence which serve as the basis for his motion for leave until 1999. However, the evidence Warren received was just one recantation affidavit from only one of the State's witnesses. We note that in its decision denying Warren's motion for leave, the trial court misstated the record when it made the following finding: "Warren has known about all of the substantive evidence upon which he relies since, at the latest 2008, and at the earliest 1999." The record belies the finding made by the trial court.
Unquestionably, this is a complex and convoluted paper record. There is a legitimate argument that Warren has followed the rules and marshalled the evidence he claims would warrant a hearing on his motion for leave to file a motion for a new trial, and that he has reasonably attempted to obtain the assistance of private and public attorneys in seeking to present that evidence to the court.
In light of the foregoing, we find that the documents attached to his motion for leave, on their face, support a conclusion that he was unavoidably prevented from discovering the evidence within the time provided by the statute. Therefore, we conclude that the trial court abused its discretion when it denied Warren's motion for leave to file a motion for new trial without first conducting a hearing in order to determine whether he was unavoidably prevented from timely discovering the new evidence, and, once the evidence was obtained, whether he filed his motion within a reasonable time.

(Emphasis sic.) State v. Warren, 2017-Ohio-853, 86 N.E.3d 728, ¶ 52-54 (2d Dist.) ("Warren III").

         {¶ 12} Based on the foregoing, this court remanded the matter back to the trial court "for a hearing to determine whether Warren was unavoidably prevented from discovering the new evidence, and, once the evidence was obtained, whether he filed his motion within a reasonable time." Id. at ¶ 59.

         Motion for Public Records

         {¶ 13} On April 19, 2017, prior to the hearing ordered by this court in Warren III, Warren filed a "Motion for an Order Finding that He is Entitled to Public Records Pursuant to O.R.C. § 149.43(B)(8)." In the motion, Warren sought the records pertaining to the gunshot residue testing that was conducted on him after the shooting, as well as police investigatory records related to the death of Simpson. Warren argued that those records were necessary to support a justiciable claim. He also argued that if his trial occurred today, the public records sought would be discoverable under the current version of Crim.R. 16. Warren further argued that denying him access to the public records infringed upon his due process and equal protection rights and inhibited his ability to present a meaningful defense.

         {¶ 14} On September 13, 2017, the trial court overruled Warren's motion for public records. In overruling Warren's motion, the trial court explained that in order for Warren to be entitled to the requested records under R.C. 149.43(B)(8), he was required to demonstrate that he had a pending justiciable claim and that the records were material to the pending proceeding. The trial court, however, found that the "reports and records Warren [sought were] not new evidence and [were] not related to the issues pending before the court, that is, whether he was unavoidably prevented from timely discovering the new evidence, and, once the evidence was obtained, whether he filed his motion within a reasonable time." Decision, Order and Entry Overruling Motion for an Order Finding that Defendant is Entitled to Public Records (Sept. 13, 2017), p. 4-5. Therefore, the trial court concluded that the "records Warren [sought did] not relate to his discovery of new evidence, nor the timeliness of his motion." Id. Accordingly, the trial court held that Warren failed to establish that the requested records were material to any motion pending before the court.

         {¶ 15} In reaching its decision, it was also significant to the trial court that "the documents Warren [sought were] records that existed before his trial and which his counsel would have been provided prior to his trial." Id. at 5. The trial court noted that the "pending version of Crim.R. 16 has been in place in Montgomery County, pursuant to Local Rule, since long before Warren's original trial, and there is a long history of full and open discovery, by Local Rule, in Montgomery County, many years before Rule 16 of the Ohio Rules of Criminal Procedure was amended in 2010." Id. The trial court further noted that, in 1993, "Montgomery County Loc.R. 3.03 was enacted, which provided that the prosecutor must furnish the defendant with all police reports and all witness statements, and far exceeded the mandates of Crim.R. 16 in effect at the time." Id.

         Evidentiary Hearing

         {¶ 16} After the trial court overruled Warren's motion for public records, the trial court held a three-day hearing on Warren's motion for leave to file a motion for new trial as ordered by this court in Warren III. At the start of the hearing, the trial court clarified that the purpose of the hearing was not to try a motion for new trial, but rather to try a motion for leave to file a motion for new trial, for which the burden of proof was on Warren. In an attempt to satisfy his burden, Warren testified on his own behalf and called ten witnesses. The witnesses included mechanical engineer and firearms consultant John Nixon, psychiatrist Dr. Scott Bresler, attorney Jay Carter, criminal investigator Marcia Dukes, attorney Jennifer Bergeron, attorney Carl Goraleski, attorney Carrie Wood, Ohio Public Defender employee Joseph Bodenhamer, attorney Kim Murphy, and attorney Kenneth Rexford. Each witness testified as follows.

         1. John Nixon

         {¶ 17} John Nixon testified that he is a mechanical engineer and firearms consultant who is board certified by the International Board of Forensic Engineering Sciences. Nixon testified that he was contacted by the Ohio Public Defenders' Office to review Warren's case regarding the AA testing performed on Warren's hands for GSR. In conducting his review, Nixon testified that he read the trial testimony of Gary Schaffer-the Miami Valley Regional Crime Laboratory chemist who was called by the State to testify on subject of GSR testing at Warren's 1994 trial.

         {¶ 18} Nixon thereafter testified that AA testing was primarily used in the 1990s. Nixon opined that the only conclusion that can be drawn from AA testing is whether the elements of lead, barium, and antimony are present in the samples, not the source of those elements. Nixon also testified that:

[T]here has been a lot of research in this particular area, and I concluded that there were lots of opportunities for the Defendant to become contaminated with substances which may show what would be indicative of gunshot residue which actually weren't. And that would have been from the Defendant was said to have been working on a motor scooter the same day. He was also transferred to a police station in a police car, and then interviewed in a police station before his hands were sampled. And all of those are potential sources of contamination.

Hearing Trans. p. 19.

         {¶ 19} According to Nixon, "in the mid to late '90s there were questions asked and it was realized that there were better ways to do the [GSR] analysis[.]" Id. at p. 27-28. Nixon explained that "the SEM/EDS technique was the way that was recommended, and the FBI first started using [SEM/EDS] in the mid to late '90s." Id. at 28. When asked if the AA technique was currently in use, Nixon responded, "I've only encountered one case recently where someone used an AA*** test kit, but they didn't have it analyzed." Id. at 28. Nixon testified that the "SEM/EDS technique is much better for identifying what you have there, and people are using that for probably ten years or more, but even that is being phased out because of the issues of contamination." Id. at 29. Nixon also testified that in 2006, the F.B.I. abandoned the SEM/EDS technique, noting that while "the information you get is a lot greater the SEM/EDS test, "still doesn't tell you if those particles came from contamination or if they were from a gunshot at the scene of the incident." Id. at 31.

         {¶ 20} Nixon further provided the following information about AA and SEM/EDS testing during his cross-examination:

Q. And you yourself testified earlier, sir, that police cars may be a haven for particulates and gunshot residue due to the nature of firearms being prevalent in a cruiser and things of that nature. So what my question to you, in fairness, is again, neither test is going to help resolve the issue as to whether somebody actually fired a weapon, and that's why they're not used in court.
A. Yes. Yes, that's correct.
Q. In fact, you have to - - you said yourself the FBI abandoned these tests and do not rely on them at all to determine whether ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.