[Cite as State v. Imani, 2013-Ohio-2082.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :      Hon. Patricia A. Delaney, J.
                                            :      Hon. Craig R. Baldwin, J.
-vs-                                        :
                                            :
SEKOU IMANI                                 :      Case No. 2013 AP 01 0008
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 2007 CR 4 0145




JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  May 21, 2013




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

MICHAEL J. ERNEST                                  SEKOU IMANI, PRO SE
125 East High Avenue                               N.C.I. #A575-988
New Philadelphia, OH 44663                         15708 McConnelsville Road
                                                   Caldwell, OH 43724
Tuscarawas County, Case No. 2013 AP 01 0008                                             2

Farmer, P.J.

       {¶1}    On April 17, 2007, the Tuscarawas County Grand Jury indicted appellant,

Sekou Imani, on four counts of trafficking in drugs (powder and crack cocaine) in

violation of R.C. 2925.03. Said charges arose from four drugs buys from appellant by a

confidential informant.

       {¶2}    A jury trial commenced on April 17, 2008. The jury found appellant guilty

as charged. By judgment entry filed May 14, 2008, the trial court sentenced appellant to

an aggregate term of sixteen years in prison.

       {¶3}    On June 12, 2008, appellant filed an appeal.     This court affirmed the

convictions. State v. Imani, 5th Dist. No. 2008 AP 06 0043, 2009-Ohio-5717.

       {¶4}    On February 15, 2012, appellant filed a motion to resentence.          By

judgment entry filed March 15, 2012, the trial court denied the motion. Appellant filed a

notice of appeal on April 19, 2012 which was dismissed as having been untimely filed.

       {¶5}    On October 31, 2012, appellant filed a motion for leave to file a delayed

motion for new trial. By judgment entry filed January 4, 2013, the trial court denied the

motion.

       {¶6}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶7}    "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW

TRIAL UPON PROSECUTORIAL MISCONDUCT, THE KNOWING USE OF FALSE

EVIDENCE AND/OR FALSE TESTIMONY."
Tuscarawas County, Case No. 2013 AP 01 0008                                               3


                                             II

       {¶8}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW

TRIAL UPON NEWLY DISCOVERED EVIDENCE."

                                            I, II

       {¶9}   Appellant claims the trial court erred in denying his motion for leave to file

a delayed motion for new trial based upon newly discovered evidence which exposed

prosecutorial misconduct. We disagree.

       {¶10} Crim.R. 33 governs new trial.          Subsections (A)(6) and (B) state the

following:



              A new trial may be granted on motion of the defendant for any of

       the following causes affecting materially his substantial rights:

              (6) When new evidence material to the defense is discovered which

       the defendant could not with reasonable diligence have discovered and

       produced at the trial. When a motion for a new trial is made upon the

       ground of newly discovered evidence, the defendant must produce at the

       hearing on the motion, in support thereof, the affidavits of the witnesses by

       whom such evidence is expected to be given, and if time is required by the

       defendant to procure such affidavits, the court may postpone the hearing

       of the motion for such length of time as is reasonable under all the

       circumstances of the case.        The prosecuting attorney may produce

       affidavits or other evidence to impeach the affidavits of such witnesses.
Tuscarawas County, Case No. 2013 AP 01 0008                                         4


             ***Motions for new trial on account of newly discovered evidence

      shall be filed within one hundred twenty days after the day upon which the

      verdict was rendered, or the decision of the court where trial by jury has

      been waived. If it is made to appear by clear and convincing proof that the

      defendant was unavoidably prevented from the discovery of the evidence

      upon which he must rely, such motion shall be filed within seven days

      from an order of the court finding that he was unavoidably prevented from

      discovering the evidence within the one hundred twenty day period.



      {¶11} In State v. Petro, 148 Ohio St. 505 (1947), syllabus, the Supreme Court of

Ohio held the following:



             To warrant the granting of a motion for a new trial in a criminal

      case, based on the ground of newly discovered evidence, it must be

      shown that the new evidence (1) discloses a strong probability that it will

      change the result if a new trial is granted, (2) has been discovered since

      the trial, (3) is such as could not in the exercise of due diligence have

      been discovered before the trial, (4) is material to the issues, (5) is not

      merely cumulative to former evidence, and (6) does not merely impeach or

      contradict the former evidence. (State v. Lopa, 96 Ohio St. 410, 117 N.E.

      319, approved and followed.)
Tuscarawas County, Case No. 2013 AP 01 0008                                             5


         {¶12} "A motion for new trial pursuant to Crim.R. 33(B) is addressed to the

sound discretion of the trial court, and will not be disturbed on appeal absent an abuse

of discretion."    State v. Schiebel, 55 Ohio St.3d 71 (1990), paragraph one of the

syllabus. An abuse of discretion standard also applies to motions for leave to file a

delayed motion for new trial. State v. Pinkerman, 88 Ohio App.3d 158 (4th Dist. 1993).

In order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

         {¶13} Appellant filed his motion for leave on October 31, 2012, 1,654 days after

the jury rendered its verdicts on April 21, 2008.

         {¶14} On September 4, 2012, appellant wrote to the Tuscarawas County

Prosecutor's Office and requested specific information, including "copies of the

confidential informant's arrest records and the terms of the confidential informant's plea

agreement that she made with Coshocton County which led to her involvement in this

case."     Appellant's October 31, 2012 Motion for Leave under Procedural History.

Appellant received a response from the prosecutor's office which is attached to his

motion as Exhibit No. 4. In the letter to appellant, Assistant Prosecutor Michael Ernest

stated the following:



               3. The Confidential Informant did not have any prior felony

         convictions at the time of your trial. She appears to have been arrested in

         September, 2005, in Coshocton County for Trafficking in Drugs. These

         charges were dismissed in July, 2006. I have contacted the Coshocton
Tuscarawas County, Case No. 2013 AP 01 0008                                            6


      County Prosecutor's Office regarding any plea agreements.            I was

      informed that there wasn't a plea agreement. Likewise, this office does

      not have any record of a plea agreement in Coshocton County that you

      referenced in your letter.



      {¶15} Appellant claims this letter constitutes "newly discovered evidence." The

basis of appellant's motion therefore, as set forth in his motion for leave, was newly

discovered evidence of prosecutorial misconduct regarding the confidential informant

(Lisa Haas) who allegedly was involved in a criminal proceeding in Coshocton County:



             Without Lisa Haas testimony, there is no evidence to have carried

      the case to the jury.        Lisa Haas credibility as a witness was a (sic)

      important issue in this case, and evidence of any understanding or

      agreement as to the future prosecution would have been relevant to her

      credibility and the jury was entitled to know of it. The State knew in its

      investigation of this case that Lisa Haas did not have pending charges in

      Coshocton County, that there was no plea agreement reached for her

      testimony in this case. The prosecutor failed to correct the testimony of

      Lisa Haas and Det. Scott Ballentine when he knew them both to be

      incorrect and misleading. The misleading effect upon the jury is no less

      diminished by the fact the witness did not know he or she was testifying

      falsely. The prosecutor had an obligation at this point of the proceedings

      to correct that testimony. To then make use of this testimony, albeit not
Tuscarawas County, Case No. 2013 AP 01 0008                                              7


       necessarily perjured, when the true facts were known to the prosecutor for

       the specific purpose of strengthening the state's case by impressing upon

       the jurors an inference favorable to the state is as offensive as using

       perjured testimony to the same end. The ultimate effect is to mislead the

       jury. When such occurs the defendant's right to a fair trial is seriously

       jeopardized.

              ***

              This is not a case of mistake or accident, this is a case where the

       Prosecuting Attorney David Hipp bluntly, with purpose and reckless

       disregard for the truth and to violate Mr. Imani's right to a fair trial. The

       prosecution had Two years to investigate this case before going to trial

       and any claim that it did not know that the charges in Coshocton County

       were dismissed Two years prior to going to trial in this case, would be

       without merit.

              Additionally, not only did the Prosecuting Attorney David Hipp use

       false evidence and/or testimony in seeking a conviction, in his closing

       arguments, he imposed personal knowledge and vouched for the

       truthfulness of its primary witness, Lisa Haas, knowing she lied under oath

       and to the jury.



       {¶16} Tuscarawas County Sheriff's Detective Scott Ballentine testified Lisa Haas

was a confidential informant that he obtained through the Coshocton County Sheriff's

Office. T. at 58. Detective Ballentine explained, "[t]hey contacted us a little more than a
Tuscarawas County, Case No. 2013 AP 01 0008                                        8


year ago and said that she had evidently some charges down there. There wasn't really

anything that she could do for them in Coshocton County and she indicated that she

could make some buys in Newcomerstown from a gentleman by the name of Sekou

Imani."   As to any deals made for her assistance, Detective Ballentine testified as

follows (T. at 58-59):



              Q. Now, to your knowledge, did Lisa Haas have any pending

       criminal charges in Coshocton County?

              A. She did.

              Q. All right. Do you know, were there any (inaudible) made to her

       that should she cooperate, provide assistance in the investigation,

       something would happen to those charges?

              A. It was my understanding that if she cooperated, that she would

       either face reduced charges or no charges.

              Q. All right. She was obviously getting something for helping you

       out?

              A. Right.

              Q. Okay.      You understand that might give her an incentive to

       perform as you would want –

              A. Sure.

              Q. – and not necessarily as what would have actually happened?

              A. Absolutely.
Tuscarawas County, Case No. 2013 AP 01 0008                                          9


      {¶17} On cross-examination, defense counsel elicited the following testimony (T.

at 89-90):



             Q. Do you know what she was charged with in Coshocton County?

             A. I believe trafficking but I'm not sure of the severity of it.

             Q. All right. So she's charged with trafficking in Coshocton County -

             A. That's right.

             Q. – to the best of your knowledge?

             A. Au-hau.

             Q. You don't know whether she's convicted of anything?

             A. I, I'm not sure. I honestly don't know.

             Q. Is she in jail today?

             A. No.

             Q. Prison?

             A. No. To my -

             Q. So she's -

             A. To my knowledge, I believe she was incarcerated in Coshocton

      County Jail for a very short time if at all.

             Q. And she's out on the streets right now?

             A. That's correct.



      {¶18} Lisa Haas testified after she was indicted on drug charges, she

cooperated with the Coshocton County Sherriff's Office so she could avoid going to the
Tuscarawas County, Case No. 2013 AP 01 0008                                            10


penitentiary and possibly losing custody of her son. T. at 105-106. She testified, "I

have to do what I have to do and nothing's been closed as of this time" so she was

willing to cooperate or "I would have to go to the penitentiary and suffer the

consequences of others."       T. at 109.     On cross-examination, defense counsel

specifically questioned Ms. Haas on her charges and any plea deals. T. at 127-129.

Ms. Haas testified the charges were still pending and although no deal had been made,

"they said that they would work with me to maybe lessen the charges." T. at 128. Ms.

Haas admitted that was why she was cooperating and why she was in court testifying.

T. at 129.

       {¶19} It is important to note that the testimony of the witnesses was given in

April 2008, over a year after the controlled buys and some two years after the dismissal

of the drug charges against Ms. Haas.

       {¶20} Prior to the commencement of the trial, the prosecutor filed a notice of

exculpatory evidence which stated the following:



              Lisa Haas, a witness in this matter, has previously been charged

       with drug related offenses in Coshocton County.               In return for

       consideration in the handling of that case or those cases, Coshocton

       County has agreed to reduce the seriousness of the offenses or dismiss

       the criminal charges in return for her assistance in investigating other drug

       related activity. Such assistance was to include assistance to other law

       enforcement agencies in the area, including the Tuscarawas County

       Sheriff.   No consideration has been given by the Tuscarawas County
Tuscarawas County, Case No. 2013 AP 01 0008                                                   11


        Sheriff.   No consideration has been given by the Tuscarawas County

        Sheriff or the Tuscarawas County Prosecutor for any conduct which may

        have occurred in Tuscarawas County.



        {¶21} Prior to trial, appellant stated to the trial court, "I would like to see her [Lisa

Haas] record, her arrest record and her, her, and what all charges and treatment or

what all she's been involved." T. at 5. Clearly appellant was aware of Ms. Haas's

criminal issues prior to trial because he specifically requested information on the matter.

        {¶22} During her testimony, Ms. Haas explained no deal had been made, but

she had been indicted on drug charges and had agreed to cooperate with law

enforcement "to maybe lessen the charges." T. at 128. We do not find any need to go

any further in an attempt to disqualify her testimony. In fact, if the charges against Ms.

Haas were dismissed prior to her cooperation with the Tuscarawas County Sheriff's

Office, there would have been no incentive to cooperate thereby bolstering her

credibility.

        {¶23} The lack of knowledge as to the particulars of any "deal" made between

Ms. Haas and the Coshocton County Sherriff's Office did not prejudice the trial, and

such knowledge, in all probability, would not change the result if a new trial was

granted. The evidence was available prior to trial with a simple telephone call to the

authorities in Coshocton and therefore does not constitute newly discovered.

        {¶24} As for the complained of prosecutor's comments made during closing

argument, the trial court specifically informed the jury that closing arguments of counsel

are not evidence. T. at 235.
Tuscarawas County, Case No. 2013 AP 01 0008                                           12


       {¶25} Upon review, we find the trial court did not abuse its discretion in denying

appellant's motion for leave to file a delayed motion for new trial.

       {¶26} Assignments of Error I and II are denied.

       {¶27} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




                                              s/ Sheila G. Farmer________________



                                              s/ Patricia A. Delaney______________



                                              s/ Craig R. Baldwin________________

                                                              JUDGES


SGF/sg 430
[Cite as State v. Imani, 2013-Ohio-2082.]


               IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
SEKOU IMANI                                    :
                                               :
        Defendant-Appellant                    :        CASE NO. 2013 AP 01 0008




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.

Costs to appellant.




                                               s/ Sheila G. Farmer________________



                                               s/ Patricia A. Delaney______________



                                               s/ Craig R. Baldwin________________

                                                            JUDGES
