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State v. Hill

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 16, 2020

STATE OF OHIO, Plaintiff-Appellee,
RONDELL L. HILL, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-551296-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey and Frank Romeo Zeleznikar, Assistant Prosecuting Attorneys, for appellee.

          Kimberly Kendall Corrall, for appellant


          RAYMOND C. HEADEN, J.

         {¶ 1} Defendant Rondell L. Hill ("Hill") appeals the trial court's judgment denying his motion for leave to file a delayed motion for new trial ("2018 motion for leave"). For the reasons that follow, we affirm.

          I. Factual and Procedural History

         {¶ 2} Hill was indicted on June 20, 2011, for the June 2, 2011 shooting death of Tyrone Spence ("Spence") and was charged with one count of aggravated murder in violation of R.C. 2903.01(A), with firearm specifications. The matter proceeded to a jury trial on April 4, 2012. The state argued that Spence was driven to Hill's house by Damon Taylor ("Taylor") to collect money owed to Spence by Hill. The state further argued that Hill shot Spence in the street following a verbal argument. Taylor was present when the shooting occurred and testified at trial as a state's witness. Hill was convicted on April 5, 2012, of aggravated murder, with firearm specifications, and was sentenced to 30 years to life imprisonment plus 3 years on the firearm specification.

         {¶ 3} On appeal, we found that there was insufficient evidence to establish that Hill acted with prior calculation and design and modified Hill's conviction from aggravated murder to murder and remanded the case for resentencing. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, discretionary appeal disallowed, State v. Hill, 136 Ohio St.3d 1450, 2013-Ohio-3210, 991 N.E.2d 257. Hill was resentenced on September 19, 2013, to a total of 18 years to life imprisonment.

         {¶ 4} Hill appealed from the resentencing hearing on October 13, 2013, and we affirmed. State v. Hill, 8th Dist. Cuyahoga No. 100536, 2014-Ohio-3416. Hill also filed a motion to reopen his direct appeal; that motion was denied. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2014-Ohio-3409.

         {¶ 5} Hill filed a pro se motion for leave to file a delayed motion for new trial on July 17, 2014 ("pro se motion for leave"). Hill claimed he recently obtained newly discovered exculpatory eyewitness evidence from Myles McCollum ("McCollum") that the state failed to provide at trial. Hill presented McCollum's affidavit dated April 16, 2014 ("McCollum 2014 affidavit"), that averred: (1) Hill was at the scene of the shooting, but he did not possess a weapon, and (2) Hill ran past McCollum's home while three to four gunshots were being fired. McCollum, who was incarcerated at the time of Hill's initial trial, was transported from the Richland Correctional Institution to testify regarding these observations on June 2, 2011, but he was never called to testify at Hill's trial. Hill also argued the state's failure to provide McCollum's statement constituted a Brady violation.

         {¶6} The state challenged that McCollum's testimony was always discoverable by Hill because McCollum's name was on a witness list; McCollum was subpoenaed to appear at trial; an order of transport was issued for McCollum's presence at trial; and McCollum's name was mentioned during voir dire as a potential witness. Further, Hill's statement to the police corroborated McCollum's affidavit because Hill told the police he ran past the home of his friend after the shooting started.

         {¶ 7} We found there was no evidence to demonstrate Hill lacked knowledge of McCollum's statements or that Hill could not have discovered McCollum's statements with due diligence. State v. Hill, 8th Dist. Cuyahoga No. 102083, 2015-Ohio-1652. Accordingly, we affirmed the trial court's denial of Hill's pro se motion for leave. We also found the trial court did not abuse its discretion when it failed to hold a hearing on Hill's pro se motion for leave.

         {¶ 8} On August 6, 2018, Hill, represented by counsel, filed his 2018 motion for leave alleging the discovery of newly found evidence depicted by the affidavits of McCollum, Taylor, and Christian Potts ("Potts").

         {¶ 9} Hill presented McCollum's 2014 affidavit that was attached to Hill's pro se motion for leave plus a newly executed affidavit prepared on April 27, 2018 ("McCollum 2018 affidavit"). McCollum's two affidavits essentially present the same information indicating that on the day of Spence's murder, Hill and Spence did not argue; Hill did not possess a weapon; and upon hearing gun shots, Hill ran from the scene of the shooting. The McCollum 2018 affidavit adds that McCollum did not know Spence and he never met a member of Hill's defense team.

         {¶ 10} Taylor's affidavit dated April 13, 2017, recants his trial testimony that stated (1) Hill and Spence argued on the date of the shooting, (2) Hill shot Spence, and (3) Hill put a gun in his waistband after shooting Spence. Taylor purports that the prosecutors threatened to charge him with Spence's murder unless he identified Hill as the murderer.

         {¶ 11} Potts's affidavit, executed on June 28, 2018, alleges he was present at the time of the shooting. Potts saw an unidentified black male appear from the side of an abandoned house and speak with Spence. Hill backed away from the two men - Spence and the unidentified black male - and Potts then heard gun shots. Spence fell to the ground. Hill did not have a gun. Potts does not know the name of the man who shot Spence.

         {¶ 12} On February 5, 2019, without holding a hearing, the trial court denied Hill's 2018 motion for leave. On February 27, 2019, Hill filed a timely notice of appeal, presenting the following verbatim assignments of error for our review:

Assignment of Error I: The Trial Court abused its discretion in failing to grant leave with a finding that Appellant was unavoidably prevented from receiving the discovery of the evidence upon which he relies
Assignment of Error II: The Court Abused its discretion when it failed to Grant a New Trial Motion on The Grounds of Newly Discovered Evidence
Assignment of Error III: The Trial Court Erred in Failing to Grant a New Trial Where McCollum's Cumulative Evidence Violates Brady
Assignment of Error IV: The Trial Court Abused Its Discretion in Failing to Grant Appellant a Hearing, As A Hearing on A Motion Based on Newly Discovered Evidence is Expressly Required Under Criminal Rule 33

         II. ...

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