[Cite as State v. Buehner, 2018-Ohio-3668.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 106319




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 MICHAEL BUEHNER
                                                    DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                 Case No. CR-02-417994-ZA

        BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 13, 2018
[Cite as State v. Buehner, 2018-Ohio-3668.]
ATTORNEY FOR APPELLANT

Russell A. Randazzo
55 Public Square, Suite 2100
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY:    Daniel T. Van
       Amy Venesile
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Buehner, 2018-Ohio-3668.]
EILEEN T. GALLAGHER, J.:

        {¶1} Defendant-appellant, Michael Buehner, appeals the denial of his amended

motions for leave to file a motion for new trial and for postconviction relief. He raises

the following five assignments of error:

        1. The trial court abused its discretion when it failed to hold a hearing on
        Buehner’s motion for leave to file a motion for new trial when the record
        and circumstances supported Buehner’s claims that he was unavoidably
        prevented from discovering the new evidence in violation of the United
        States Constitution, the Constitution of the state of Ohio, Brady v.
        Maryland, 373 U.S. 83, 97, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State
        v. Johnston, 39 Ohio St.3d 48, 60, 529 N.E.2d 898 (1988).

        2. The trial court abused its discretion when it failed to grant Buehner’s
        motion for leave to file a motion for new trial or hold a hearing when
        Buehner established the state failed to disclose material exculpatory
        evidence in violation of his right to due process under the Ohio Constitution
        and the Constitution of the United States of America.

        3. The trial court abused its discretion when it failed to grant Buehner’s
        motion for leave to file a motion for new trial or hold a hearing when
        Buehner established by clear and convincing evidence that he was
        unavoidably prevented from discovering the exculpatory evidence within
        120 days of his conviction in violation of the United States Constitution and
        the Ohio Constitution, Crim.R. 33(B) and State v. Parker, 178 Ohio App.3d
        574, 2008-Ohio-5178, 899 N.E.2d 183 (2d Dist.).

        4. The trial court abused its discretion when it failed to grant Buehner’s
        postconviction petition where the record showed Buehner was unavoidably
        prevented from the discovery of exculpatory evidence and but for the
        withholding of this evidence, no reasonable factfinder would have found
        Buehner guilty. Sixth, Eighth, and Fourteenth Amendments to the United
        States Constitution; Article I, Sections 9, 10, and 16 of the Ohio
        Constitution; State v. Gondor, 112 Ohio St.3d 377, [2006-Ohio-6679, ]860
        N.E.2d 77 [(2006)].
        5. Alternatively, the trial court abused its discretion when it failed to grant
        Buehner’s motion for leave to file a motion for new trial or hold a hearing
        when Buehner established the ineffectiveness of counsel by failing to call as
       a witness, Anderson, who contradicts the only purported eyewitness
       testimony from two parties who received reduced sentences for cooperation
       with state.

       {¶2} We find merit to the appeal, reverse the trial court’s judgment, and remand

the case to the trial court to consider Buehner’s motion for new trial.

                            I. Facts and Procedural History

       {¶3} In July 2002, a jury found Buehner guilty of two counts of murder and one

count of attempted murder in connection with the shooting death of Jerry Saunders on

May 24, 2001. Lawone Edwards testified at trial that shortly before the shooting, he and

Saunders were selling crack cocaine to passing motorists near the corner of Marah

Avenue and East 93rd Street in Cleveland when a black pickup truck stopped, and a black

male passenger asked about buying $100.00 worth of crack cocaine.            Edwards and

Saunders climbed into the bed of the truck that traveled a short distance before stopping

near a home located at 9520 Marah Avenue.

       {¶4} Edwards stood five or six feet in front of the truck to act as a lookout while

Saunders approached the truck’s passenger side door.            Edwards testified that the

unidentified black passenger exited the truck and told Saunders to deal with the man in

the “middle” seat of the cab. The driver remained seated and did not participate in the

conversation between Saunders and the middle passenger.            According to Edwards,

Saunders asked the man to show him the money before turning over the crack. The man

pulled out a gun and replied, “Here’s your money right here.” Saunders turned and

started running, but the man shot him, and Saunders fell to the ground. Edwards testified
that when the “shooter” turned and pointed the gun at him, he ran through several

backyards and hid under a parked car in a driveway several houses away.

       {¶5} In early June 2001, Edwards was arrested in connection with unrelated drug

offenses.   Detective Sahir Hasan, a homicide detective with the Cleveland Police

Department, interviewed Edwards while he was in custody and obtained a detailed

description of the three occupants of the black pickup truck. Edwards reported that both

the driver and the “shooter” were white, and the third passenger was black. Edwards

testified that he also told police that the shooter had tattoos on his arms and some sort of

mark or scar by his right eye, which was consistent with Buehner’s appearance.

However, these details were not memorialized in the police reports.

       {¶6} Detective Hasan learned from other police personnel that Buehner and

another individual, Randy Price, were suspects in the shooting. Detective Hasan showed

Edwards a photo array of seven white men, and Edwards immediately identified Price as

the driver of the black pickup. When asked whether Edwards also identified Buehner

from another photo array, Edwards explained that he “recognized the guy in the middle,”

but wanted to see him in person to be sure the identification was correct.

       {¶7} In November 2001, Price’s girlfriend, Sherry Taylor, told Detective Hasan

that Price admitted to being involved in the shooting. Taylor’s report to police, dated

December 4, 2001, states, in relevant part:

       RANDY stated one night while he was at home, MIKE called and told him
       to come over because he wanted him to go for a ride. RANDY stated he
       went over to MIKE’S * * *. MIKE said he got ripped off on a drug deal
       and he was going to take care of the guy that ripped him off. RANDY told
       her MIKE had got ripped off for some bad WET * * *.1

       MIKE and his girlfriend JEANIE were fighting when RANDY got there
       and didn’t want them to leave, so she took the plates off MIKE’S truck
       thinking they wouldn’t leave without plates. RANDY AND MIKE left
       anyway, with RANDY driving MIKE’S truck. Once in the neighborhood
       where the guy lived, they found him and MIKE shot him after having words
       with the guy. RANDY stated MIKE called out to him and then said, “Look
       * * * Look * * * I SHOOT [sic] HIM.” As the male laid on the ground
       moving around MIKE shot him again and told the guy to just lay there.

       Once back in the truck[,] they went back to MIKE’S house and put the
       truck into the garage. MIKE was high and freaking out. Afterwards,
       RANDY AND MIKE went back outside and cleaned the truck up. MIKE
       made JEANIE pack her bags. RANDY, MIKE and JEANIE went to
       DEERFIELD in B[E]RLIN LAKE for a few days until things cooled off. *
       **

       {¶8} Price was subsequently arrested in connection with Saunder’s murder, and

Edwards positively identified Price in a physical lineup as the driver of the pickup truck.

Price was later charged with two counts of aggravated murder with firearm and death

penalty specifications. He was also charged with one count of attempted aggravated

murder and one count of aggravated robbery, each with firearm specifications.

       {¶9} Price admitted to police that he was the driver of the black pickup truck

involved in the shooting, but claimed that Buehner was the shooter.          Buehner was

subsequently arrested, and Edwards positively identified him as the shooter in a physical

lineup. As a result, Buehner was charged with two counts aggravated murder with


       1 Wet typically refers to a marijuana cigarette dipped in PCP or
formaldehyde.
firearm and death penalty specifications.      He was also charged with one count of

attempted aggravated murder and aggravated robbery, each with firearm specifications.

Price later pleaded guilty to one count of involuntary manslaughter and one count of

aggravated robbery in exchange for his testimony at Buehner’s trial.

       {¶10} Price testified that he drove Buehner’s black pickup truck on the night of

May 24, 2001 to buy some “wet.” Before buying the drugs, they stopped and picked up a

black man, who gave Price directions to Marah Avenue. Price testified that the black

man, whom Price had never seen before, entered the passenger side of the van and sat

next to Buehner, who sat in the middle seat next to Price.

       {¶11} Price testified that they met two black men, later identified as Edwards and

Saunders, who were selling drugs on Marah Avenue. The unidentified black man exited

the truck to allow Buehner to deal directly with Saunders. Meanwhile, Edwards stood a

short distance from the driver’s side of the truck. Price testified that as he was talking to

Edwards, he heard someone say: “He’s got a gun.” Price explained:

       A: When I looked, I seen fire from the gun.

       *   *   *

       Q: Where was the gun?

       A: In Mike’s hand.

       Q: Can you describe the gun?

       A: Black nine millimeter handgun.

       Q: When you saw the gun in Mike’s hand, where was Mike at the time?
       A: Like halfway behind the door, you know, holding on to the door and shooting.

(Tr. 594.)

       {¶12} According to Price, after Saunders fell to the ground, Buehner walked over

to him, touched him, and stated: “I killed him Randy, I think I killed him.”          (Tr.

598-599.)    After the shooting, when Price and Buehner had returned the truck to

Buehner’s garage, Buehner told Price that he shot Saunders because Saunders sold him

$450.00 of fake “wet” earlier that day. (Tr. 604.) Buehner also cleaned the truck and

sold the gun used in the shooting. (Tr. 623.) Price, Buehner, and Buehner’s girlfriend,

Jeanie, went to Price’s camper in Deerfield, Ohio the day after the shooting. (Tr. 615.)

In later discussions, Buehner told Price not to worry about getting caught because there

were no license plates on the truck at the time of the shooting.

       {¶13} Buehner, through counsel, made several pretrial discovery requests,

including requests for any exculpatory evidence. In its response, the state identified 15

nonpolice witnesses by name and address, including Debbie Anderson, Gail Jenkins,

Antoine Edwards, and Tierra Edwards. The state also indicated in response to discovery

that “[n]o exculpatory material [wa]s available to or in the possession of the Prosecuting

Attorney.” Nevertheless, after receiving the state’s discovery responses, Buehner’s trial

counsel filed two motions requesting production of any “statements of all persons who

were observed to have been near, in, or made observations with respect to persons who

were near 9520 Marah Avenue, Cleveland, Ohio on 24 May 2001 including but not
limited to * * * Debbie Anderson * * * Gail Jenkins, * * * Tierra Edwards * * * [and]

Antoine Edwards.” Buehner maintains the state never produced statements from any of

these witnesses despite this request.

       {¶14} Buehner only called one defense witness at trial. His grandmother, Victoria

Thomas, testified that Buehner was sleeping in her home on East 123rd Street in

Cleveland at the time Saunders was shot and killed. Although two jurors were initially

hesitant to accept Edwards and Price’s testimony as true, the jury ultimately found

Buehner guilty of two counts of murder with firearm specifications and one count of

attempted murder. 2     The court merged the two murder convictions and sentenced

Buehner to 18 years to life in prison.

       {¶15} In the spring of 2014, a family friend of Buehner made a public records

request to the Cleveland Police Department concerning any and all police reports related

to the Saunders homicide investigation. The Cleveland Police Department produced

over 30 reports in response to the request, including a report detailing the eyewitness

account of Debbie Anderson. This report, dated September 27, 2001, summarizes the

police interview of Anderson, who described the shooter as “light complexed [sic], hair in

braided hairstyle, slim build, 5’10”, in mid 20s.”




       2 This court reversed the attempted murder conviction due to insufficient
evidence. See State v. Buehner, 8th Dist. Cuyahoga No. 81722, 2003-Ohio-3348, ¶
29.
       {¶16} The reports also included previously undisclosed witness statements of

Tierra Edwards, Antoine Edwards, and Gail Jenkins. In Tierra Edwards’s statement, she

described the driver of the truck as white and one of the passengers as black, but she told

police she “did not get a good look at the middle passenger in the truck.” Gail Jenkins

reported that she saw three suspects: a white driver of the truck and two black passengers.

 Antoine Edwards told police that he left the scene shortly before the shooting and thus

did not provide any details regarding the suspects.

       {¶17}        After receiving the police records, Buehner, pro se and through two

different attorneys, filed several motions for leave to file a motion for a new trial and for

postconviction relief, arguing his constitutional right to due process was violated by the

state’s failure to produce the statements of Debbie Anderson, Gail Jenkins, Tierra

Edwards, and Antoine Edwards.          He asserted that Anderson’s statement contained

exculpatory evidence because Anderson told police that the shooter and the other two

individuals in the truck were black whereas Buehner is white. Buehner also asserted that

inconsistencies in the statements of Gail Jenkins, Tierra Edwards, and Antoine Edwards

would have cast doubt on the testimony of the witnesses who identified Buehner as the

shooter at trial.

       {¶18} The trial court denied Buehner’s motions for leave to file a motion for a new

trial and for postconviction relief without a hearing. In its journal entry denying the

motions, the court stated, in relevant part:
[Cite as State v. Buehner, 2018-Ohio-3668.]
        Defendant has failed to demonstrate by clear and convincing proof that he
        was unavoidably prevented from discover[ing] the potential testimony of
        the witness, Debbie Anderson, as alleged by defendant. Defendant’s trial
        attorneys had knowledge of the existence of the witness and defendant has
        not provided clear and convincing proof [that] the summary was not
        provided in discovery, no[r] that the trial attorneys could not have learned
        of the existence of her statement with reasonable diligence. Likewise the
        police summary of Ms. Anderson’s oral statements is not new evidence
        because defendant was not unavoidably prevented from discovering the
        facts relied on in the petition and motion. Furthermore, there is not clear
        and convincing evidence that defendant would have been found not guilty
        but for the alleged failure to provide the police summary, and because his
        petition for postconviction relief is untimely and pursuant to R.C. 2953.23,
        the court lacks jurisdiction to grant the relief sought.

Buehner now appeals the trial court’s judgment.

                                         I. Law and Analysis

                                      A. Motion for New Trial

        {¶19} In the first three assignments of error, Buehner argues the trial court abused

its discretion in denying his motion for leave to file a motion for new trial without holding

a hearing when (1) he was unavoidably prevented from discovering the undisclosed

witness statements of Debbie Anderson, Tierra Edwards, Antoine Edwards, and Gail

Jenkins prior to trial, (2) the state failed to disclose the exculpatory evidence contained in

the undisclosed witness statements prior to trial in violation of Brady, 373 U.S. 83, 87, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (3) he was unavoidably prevented from

discovering the undisclosed witness statements within 120 days of his conviction. We

discuss these assigned errors together because they are closely related.
[Cite as State v. Buehner, 2018-Ohio-3668.]
        {¶20} A trial court’s decision on a Crim.R. 33 motion for a new trial will not be

reversed absent an abuse of discretion. State v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981,

¶ 13 (8th Dist.). We also review the decision on whether to hold a hearing on the motion

for new trial for an abuse of discretion. Id. at ¶ 24. A trial court abuses its discretion if

its decision is unreasonable, arbitrary, or unconscionable.     AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990).

        {¶21} Crim.R. 33 provides that a motion for new trial based upon newly

discovered evidence must be filed within 120 days after the verdict was rendered unless

the defendant demonstrates by clear and convincing proof that he was unavoidably

prevented from discovering the new evidence within the 120-day period. Crim.R. 33(B).

 Thus, in order to obtain a new trial based on new evidence more than 120 days after the

verdict, a defendant must first file a motion for leave, showing by clear and convincing

proof that he was unavoidably prevented from filing the motion within the rule’s 120-day

limitations period. State v. Glover, 2016-Ohio-2833, 64 N.E.3d 442, ¶ 27 (8th Dist.).

        {¶22} A party is “unavoidably prevented” from discovering the new evidence if

the party had no knowledge of the existence of newly claimed evidence and could not

have learned of its existence within the time prescribed by the rule with the exercise of

reasonable diligence. Id. If the trial court finds that the documents submitted in support

of a motion for leave to file a motion for new trial clearly and convincingly demonstrate

that the defendant was unavoidably prevented from discovering the evidence, “‘the court
must grant the motion for leave and allow the motion for new trial to be filed.’” Id. at ¶

28, quoting State v. Trimble, 2015-Ohio-942, 30 N.E.3d 222, ¶ 16 (11th Dist.).

       {¶23} Buehner argues he was unavoidably prevented from discovering the

existence and content of the police report containing Anderson’s statement because the

state indicated in response to discovery requests that “[n]o exculpatory material [wa]s

available to or in the possession of the prosecuting attorney.” The state, on the other

hand, argues that Anderson’s statement is not “newly discovered evidence” because the

state identified Anderson as a witness in its witness list, and Buehner’s trial counsel could

have interviewed Anderson in preparation for trial.         The state also identified Gail

Jenkins, Tierra Edwards, and Antoine Edwards on its witness list.

       {¶24} However, after receiving the state’s discovery responses, Buehner’s trial

counsel filed a motion specifically requesting “the statements of all persons who were

observed to have been near, in, or made observations with respect to persons who were

near 9520 Marah Avenue, Cleveland, Ohio on 24 May, 2001, including but not limited to

* * * Debbie Anderson * * * Gail Jenkins, * * * Tierra Edwards * * * [and] Antoine

Edwards.” Despite this specific request for statements from these witnesses, the state

failed to produce any statements and indicated that no such statements existed.

       {¶25} The state nevertheless contends that Buehner could have made the public

records request within the 120-day period prescribed by Crim.R. 33(B), and that Buehner

has offered no explanation as to why he waited almost 12 years after his conviction to

request this information.    We think the explanation is obvious; the state informed
Buehner’s trial counsel that no exculpatory statements from Anderson or any of the

identified witnesses existed at the time of trial. Buehner would have had no reason to

believe that a request for exculpatory evidence made within 120 days after the verdict

would produce a different result from the very same request made prior to trial,

particularly since the state was required to produce the requested evidence before trial

under Crim.R. 16.3

      {¶26} Exculpatory evidence is evidence that would tend to exculpate a defendant

of guilt or reduce a defendant’s penalty. Glover, 2016-Ohio-2833, 64 N.E.3d 442, at ¶

41. Anderson told police that the shooter and the other two individuals in the truck were

black whereas Buehner is white.       If believed, Anderson’s statement suggests that

someone other than Buehner murdered Saunders.

      {¶27} Additionally, Gail Jenkins told police that although the driver of the truck

was white, the other two passengers were black, including the middle passenger. Had

Gail Jenkins testified at trial, her testimony would have contradicted Price’s and

Edwards’s testimony to the extent that they claimed there were two white perpetrators and

one black perpetrator in the black truck. Therefore, at the very least, Anderson and

      3  Crim.R. 16, in effect at the time of trial, required the prosecuting attorney
to disclose “evidence favorable to the defendant” upon the defendant’s motion.
Crim.R. 16(B)(1)(f) further stated:

      Upon motion of the defendant before trial the court shall order the
      prosecuting attorney to disclose to counsel for the defendant all
      evidence, known or which may become known to the prosecuting
      attorney, favorable to the defendant and material either to guilt or
      punishment.
Jenkins’s statements constituted exculpatory evidence that should have been produced in

pretrial discovery.

       {¶28} The state asserts there was no evidence that the prosecutor had Anderson’s,

Jenkins’s, or any other undisclosed statements in its possession prior to trial. Indeed, the

prosecutor stated on the record on the first day of trial that he was cognizant of defense

counsel’s requests for exculpatory evidence and of the state’s continuing duty to provide

exculpatory information to the defense, but that “there was nothing to give them.” (Tr.

19.) The record indicates that the state provided full discovery responses to Buehner’s

requests based on the evidence in the state’s possession, and that the undisclosed witness

statements remained in the possession of the Cleveland Police Department. Therefore,

there is no evidence that the state intentionally withheld exculpatory evidence from the

defense.

       {¶29} However, the Cleveland Police Department’s knowledge is imputed to the

state. State v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991) (“Inasmuch as the

police are a part of the state and prosecutional machinery, * * * such knowledge on the

part of a law enforcement officer must be imputed to the state.”). Therefore, even if

Anderson and the other witnesses’ statements were never turned over to the prosecutor’s

office, the state was not relieved of its obligation to disclose them.

       {¶30} Buehner had no knowledge of the exculpatory information contained in the

undisclosed police reports. Nor did he have any reason to believe that the police reports

contained improperly suppressed exculpatory evidence because the state represented that
no exculpatory evidence existed. Therefore, although Buehner’s motion for new trial

was untimely, his motion for leave to file a motion for new trial and the supporting

documents clearly and convincingly demonstrate that Buehner was avoidably prevented

from discovering the exculpatory evidence. Therefore, the trial court erred in denying

Buehner’s motion for leave to file a motion for new trial.

       {¶31} The first, second, and third assignments of error are sustained.

       {¶32} The trial court’s judgment is reversed and the case is remanded to the trial

court to consider Buehner’s motion for a new trial and whether the newly discovered

evidence is material under Brady, 373 U.S. 83, 97, 83 S.Ct. 1194, 10 L.Ed.2d 215.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
[Cite as State v. Buehner, 2018-Ohio-3668.]
        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
