[Cite as State v. Warren, 2017-Ohio-853.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :  C.A. CASE NO. 26979
                                                  :
 v.                                               :  T.C. NO. 94CR3533
                                                  :
 RAYMOND WARREN                                   :  (Criminal appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                             ...........

                                            OPINION

                Rendered on the ___10th __ day of _____March_____, 2017.

                                             ...........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JOANNA FEIGENBAUM, Atty. Reg. No. 0087717, Assistant State Public Defender, 250
East Broad Street, Suite 1400, Columbus, Ohio 43215
      Attorney for Defendant-Appellant

                                            .............

DONOVAN, J.

        {¶ 1} This matter is before the court on the January 11, 2016 Notice of Appeal of

Raymond Karl Allen Warren. Warren appeals from the trial court’s December 15, 2015

“Decision, Order and Entry Overruling Motion for Leave to File Motion for New Trial.” On

April 4, 1995, following a trial by jury, Warren was found guilty of murder with an

accompanying firearm specification. He was sentenced to 15 years to life on the murder
                                                                                      -2-


charge and to an additional consecutive three years on the firearm specification.

       {¶ 2} This Court affirmed Warren’s conviction on appeal in State v. Warren, 2d

Dist. Montgomery No. 15202, 1996 WL 612858 (Oct. 25, 1996), noting therein that the

State’s evidence at trial established the following:

              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”
                                                                               -3-


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.
                                                                               -4-


       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
                                                                                            -5-


       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, *1-2.

       {¶ 3} On January 9, 2002, Warren filed a pro se “Motion to Receive Copy of Trial

Transcripts,” attached to which is Warren’s December 29, 2001 affidavit which provides,

in part, that he “respectfully moves this Honorable court to provide for him a copy of his

trial transcripts in that the defendant is moving for a new trial having obtained newly

discovered evidence.” Warren’s supporting affidavit provides in part: “I have received

a signed affidavit from one of the states [sic] key witnesses stating that he lied at trial and

that [sic] I am presently preparing a motion for a new trial.” Warren asserted that the

“transcripts requested are vital to my preparation for a new trial,” and that the “[s]igned
                                                                                       -6-


affidavit and statement of the states [sic] witness is hereby attached to this motion as

exhibit (A).” Attached to Warren’s affidavit is what appears to be the affidavit of Chante

Hunt, dated October 26, 1999. It provides as follows:

             I give this statement of my own free will. I was ask by Allan [sic

      throughout] (Raymond Warren) attorney to give a true account of what

      happen [sic] in the summer of 1994 when Allan was charged with the

      murder of that man that ran into the house on S. Kilmer. I gave testimony

      in court, but that testimony was false. I lied because I was told that if I

      didn’t say that Allan shot that man that I would be charged with the murder

      of the man. I was scared of what could be done to me. Hell they had Allan

      down there for something he nothing [sic] to do with, and I didn’t want to be

      in his shoes. I tried to not come to court, but the police came and arrested

      me and made me come. So now I’m glad that I have a chance to set this

      wrong right.

             On the night the man was killed Me [sic] and Antonio went to Allan

      [sic] house to get his scooter. We were taking it to Antonio’s house to fix a

      flat tire. When we got there I went in to get something to drink. Allan got

      the Scooter, and gave me a pop and some chips and we left his house

      headed for Antonio’s.     When we reached half way up the block a car

      pulled up, and ask us if we had some dope. Allan said we don’t mess with

      that s***. Antonio cursed them out and we kept going after they pulled off.

      When we reached about half way between Kilmer and Dennison on

      Lakeview. [sic] We heard some shots and we All [sic] took off running
                                                                                      -7-


      towards Antonio’s house. When we got there we set on the porch for a

      minute to make sure some [sic] wasn’t shooting at us. After awhile [sic] we

      started fixing Allan’s scooter. Once we got done fixing the scooter I went

      to the corner of S. Kilmer and Lakeview to check out what looked like a fire.

      Allan went to the gas station to gate [sic] some gas. I think Antonio went

      in the house. When I got to the fire there was a car ran into a house [sic].

             That’s what happen [sic].     Allan didn’t kill anyone, and I know

      because he was with me and Antonio when we did here [sic] shots.

      {¶ 4} The State opposed the motion, and the court overruled Warren’s motion on

January 23, 2002, noting that Warren “has already unsuccessfully appealed his conviction

and sentence.”

      {¶ 5} On November 19, 2013, Warren filed a pro se “Motion for a hearing on

Criminal Rule 33 A-2 Newly discovered evidence.” Therein he asserted in part that at

his trial, “Antonio Johnson and Chante Hunt lied on the witness stand due to fear from

threats made by detectives to be charged with the murder if they did not state that

Raymond K. A. Warren” murdered Simpson. Attached to the motion is the “Affidavit of

Antonio Johnson,” dated August 18, 2008, which provides as follows:

             1. I was a witness for the prosecution in the 1994 criminal trial of

      Raymond Karl Allen Warren.

             2.   I wish to recant my testimony regarding the whereabouts of

      Raymond Warren. When we heard the gunshots, Raymond was walking

      with me, pushing a broken moped to my house. At trial, I testified that

      Raymond was not with me. This testimony was false. The police told me
                                                                                       -8-


      if I didn’t testify against Raymond, I could be charged with a crime. I was

      young and scared of what they could do to me.

             3. I also wish to recant my testimony regarding statements made

      by Raymond Warren. Raymond never confessed committing this murder

      to me. At trial, I testified that Raymond confessed committing this murder

      to me. This testimony was also false, for the same reason outlined in

      paragraph 2.

             4. The truth is, on the night of the murder, Raymond, Chante Hunt

      and I were pushing a moped from Raymond’s house to my house. When

      we heard the gunshots, all three of us ran to my house. Raymond could

      not have shot this person, because Raymond was with Chante and me

      when we heard the gunshots.

      {¶ 6} Also attached is the August 13, 2008 “Affidavit of Antonio ‘Johnson’

Robinson” (hereinafter, “Antonio”), which provides as follows:

             1) That I am the person named above and that I am at least 18

      years of age and of sound body and mind.

             2)   That I testified at a Probable Cause hearing in Montgomery

      County Juvenile Court in connection with a criminal case, No. 94-5770 on

      behalf of the District Attorney.

             3) At the time that I gave testimony I was a minor child 14 years of

      age.

             4) That after I testified at the Probable Cause hearing, I testified at

      the criminal trial of Raymond K. Warren in the Montgomery County
                                                                              -9-


Common Pleas Court in Case No. 94-CR-3533.

      5) On or about July 20, 1994, I was questioned by a Detective

Burke who threatened to charge me with the death of Windell [sic] Scott

Simpson.

      6) On or about August 11, 1994, I was arrested in my backyard by

two detectives who took me to the Safety Building in downtown without

notifying my parents who were home at the time.

      7) I was placed in a room where I was once again questioned and

threatened with being charged with Mr. Simpson’s death by Detective Engle

and his partner.

      8) The detectives offered to release me if I agreed to place blame

for Mr. Simpson’s death on Raymond K. Warren.

      9)    I agreed to their offer out of fear of being charged with Mr.

Simpson’s death and because I was told I could not go home unless I

agreed to do so.

      10) At the time, I was given a statement that was prepared by one

of the detectives and told to read it aloud while they video taped [sic] me

doing so.

      11) The statement I read was not written or prepared by myself and

was totally fabricated by the detectives then present.

      12) On or about October 4, 1994, I testified at the Probable Cause

hearing and gave the same false testimony that I had been provided by the

detectives on August 11, 1994.
                                                                               -10-


       13) On or about March 13, 1995, I testified against Raymond K.

Warren at a trial in Montgomery County Common Pleas Court where I

recited false testimony provided to me by the detectives.

       14) The aforementioned testimony, as well as the testimony I gave

at the Probable Cause hearing was false and was given out of fear that the

detectives would make good on their threats to charge me in connection

with the death of Windell [sic] Scott Simpson.

       15) The following testimony is a true account of the events that took

place on or about July 9th of 1994.

       16) On or about July 9, 1994, Raymond Warren asked me to help

fix a flat tire on his motor scooter.

       17) Myself, Chante Hunt, and Raymond Warren agreed to bring the

scooter to my house at 804 Dennison Avenue to be repaired.

       18) I rode my own scooter from my home to Raymond Warren’s

home on South Kilmer Avenue while Chante Hunt and Raymond Warren

followed on foot in order that we might retrieve Raymond Warren’s scooter.

       19) The three of us arrived at Raymond Warren’s house where I

waited on the front porch while Chante Hunt and Raymond Warren went

inside the home to retrieve the scooter.

       20) Upon retrieval of the scooter, the three of us proceeded to walk

down South Kilmer in the direction of Lakeview Avenue in order to return to

my house on Dennison Avenue.

       21) During this time I pushed my scooter while the rear wheel flat
                                                                            -11-


tire on Raymond Warren’s scooter required that both he and Chante Hunt

lift up the rear of Raymond Warren’s scooter as they pushed it.

       22) At some point while we were walking down South Kilmer, a car

pulled alongside [sic] us headed in the opposite direction and the driver

inquired if any of us had any drugs.

       23) I responded by swearing at the driver and calling them dope

fiends, while Raymond Warren responded by telling the occupant(s) that we

did not mess with that stuff.

       24)   The car pulled away, traveling down South Kilmer in the

opposite direction as were travelling.

       25) We continued towards Lakeview Avenue on foot pushing the

scooters.

       26) When we reached Lakeview Avenue and between Dennison

Avenue and South Kilmer Avenue in which we stood in reference to being

on Lakeview, we heard what sounded like gunfire.

       27) The three of us began to run to my house at the corner of

Dennison and Lakeview Avenues.

       28) We arrived at my home with our scooters in a matter of seconds

after we heard the sounds of gunfire.

       29) Once we realized that no one appeared to be shooting at us,

we began repairing the flat tire on Raymond Warren’s scooter.

       30)   Myself and Raymond Warren worked on the scooter while

Chante Hunt talked with my brother and father at the picnic bench on the
                                                                                             -12-


       front lawn of my house where we were working or repairing the flat tire.

              31) After we finished repairing the flat tire, I retired inside of my

       house.

              32) Raymond Warren informed me that he was going to the gas

       station on the corner of Germantown and Dennison in order to get gas

       before returning home.

              33)    At no time during that or any other day have I witnessed

       Raymond Warren possessing a gun or shooting anyone.

              34) Further affiant sayeth naught.

Finally, the October 26, 1999 affidavit of Chante Hunt is attached to Warren’s motion.

       {¶ 7} The State opposed the motion on January 21, 2014. On January 30, 2014,

the trial court issued a “Decision, Order and Entry Overruling Motion for Leave to File

Motion for New Trial,” construing Warren’s motion “as seeking leave to file a motion for

new trial.” The court concluded “that Defendant has failed to meet his burden of proving

by clear and convincing evidence that he was unavoidably prevented from discovering

the evidence upon which he relies in support of his Motion for New Trial.” The court

found that the “eighteen year delay between Warren’s conviction and his motion, and the

fourteen year delay after obtaining Hunter’s [sic] affidavit, and the five year delay after

obtaining Johnson Robinson’s is not a reasonable period to delay the filing of said

motion.”   Warren appealed the trial court’s decision, and this Court reversed and

remanded the matter, concluding 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. See State v. York, 2d Dist. Greene No. 99-CA-54, 2000 WL 192433
                                                                                       -13-

(Feb. 18, 2000).” State v. Warren, 2d Dist. Montgomery No. 26112, 2015-Ohio-36, ¶ 15.

      {¶ 8} On March 3, 2014, counsel from the Ohio Public Defender’s Office filed, on

Warren’s behalf, a “Motion for Appointment of the Office of the Ohio Public Defender as

Counsel.” The motion provides in part that “[e]ffective counsel is required in collateral

proceedings to both investigate and litigate constitutional claims based on evidence

outside the record.” The motion provides in part as follows:

             Although the Ohio Innocence Project (OIP) obtained the Robinson

      Affidavits approximately five years ago, the OIP never filed a pleading on

      Mr. Warren’s behalf and are now precluded from representing Mr. Warren

      based on the assertion of their ineffectiveness in the post-conviction review

      process.    Mr. Warren, as attested by the accompanying Affidavit of

      Indigency, is unable to retain counsel and thus requests the services of

      counsel.    The Office of the Ohio Public Defender has reviewed Mr.

      Warren’s motion for a new trial, and finds it to be meritorious. Accordingly,

      this Court should appoint the Ohio Public Defender as counsel.

      {¶ 9} On January 12, 2015, the trial court issued a “Notice to File Reply

Memorandum,” which provides: “Consistent with the Decision of the Second District

Court of Appeals rendered on January 9, 2015, Defendant, Raymond Warren, is hereby

given notice that he shall file any reply memorandum to the State’s Memorandum in

Opposition to his Motion for Leave within ten days of the Date of this Notice. The court

shall deem Defendant’s Motion for Leave to File Motion for New Trial to be ripe on January

24, 2015.” On January 13, 2015, counsel for Warren from the Office of the Ohio Public

Defender sought a 30-day extension to reply, and on January 16, 2015, the court
                                                                                        -14-


overruled in part and sustained in part the motion for an extension. The court concluded

as follows: “Defendant shall have fourteen days from the date of this Order to file any

reply memorandum. The court finds any request for a thirty day extension of time to be

unreasonable, as counsel represented Defendant in his recent direct appeal * * *.”

       {¶ 10} On January 29, 2015, Warren filed “Defendant Raymond Warren’s Motion

for Leave to Amend and Supplement his Motion for Leave to File a Motion for New Trial.”

Attached to the motion is Hunt’s above affidavit. Also attached is the Affidavit of Marcia

Dukes, dated January 15, 2015, which provides that she worked on Warren’s case in her

capacity as a criminal investigator in the Office of the Ohio Public Defender, and that she

interviewed Hunt on March 18, 2004. Dukes averred that in the course of the interview,

“Chante Hunt affirmed his 1999 affidavit and stated that he lied during Raymond Warren’s

trial because he was scared of the police.” Dukes further averred that she “never located

or spoke to Antonio Johnson.” She attached her “write-up of my interview of Chante

Hunt” to her affidavit.

       {¶ 11} Also attached is the January 21, 2015 “Affidavit of Antonio Robinson,” which

provides:

                1.   My name is Antonio Robinson.     I used to go by the name

       Antonio Johnson.

                2. I testified in Raymond Karl Allen Warren’s trial. I know him as

       Allen.

                3. My testimony during Allen’s trial was a lie. He was with me at

       the time we heard shots, and he never confessed to me that he killed Mr.

       Simpson. He could not have been the shooter.
                                                                                      -15-


             4.   After Allen’s trial, I did not come forward and tell the truth

      because I was scared. I feared I would be charged with perjury.

             5. Before 2004, I did not know that Allen or anyone in his family was

      looking for me. In 2004, I saw Allen’s brother, who I knew as Doughboy,

      and realized that I should tell the truth and clear my conscience. I admitted

      to Doughboy that I lied during Allen’s trial.    I am not sure if I wrote a

      statement down, or if I just told Doughboy I lied.

             6. Doughboy died in 2007. From December 2004 to November

      2007, I was incarcerated. During that time, I did not know that Allen’s

      family was looking for me.

             7.   In 2008, after I got out of the penitentiary, I signed two

      statements. The contents of those affidavits are accurate and true.

             8. On December 31, 2013, two men who said they worked for the

      Montgomery County Prosecutor’s Office interviewed me about Allen’s case.

      I have read the affidavit that Gary Ware wrote after my interview. His

      affidavit is a true and accurate account of what I told the investigators.

             9. I am still scared of being charged with perjury today. However,

      I know that coming forward and telling the truth is the right thing to do

      because Allen did not kill that man and I want everyone to understand that

      Allen is innocent.

      {¶ 12} Also attached is the August 13, 2008 “Affidavit of Antonio ‘Johnson’

Robinson,” and the August 18, 2008 “Affidavit of Antonio Johnson,” as set forth above.

Warren attached the January 14, 2014 affidavit of Gary Ware, which provides that he has
                                                                                      -16-


been employed by the Montgomery County Prosecutor’s Office as an investigator since

1982.    Ware averred that he and Tom Shaw interviewed Antonio at his residence on

December 31, 2013. According to Ware, Antonio advised him that “he recalled signing

a document on August 13, 2008 and another document on August 18, 2008 in which he

recanted his testimony from his 1994 statements in Case # 1994-CR-3533.               He

examined the signatures on both documents and stated he had signed them but he had

not read them.”     Ware averred that when he asked Antonio why he signed the

documents, Antonio told him that Warren’s “mother approached him as he was leaving

for work and told him she needed him to sign them for her son as she was trying to get

him home.” Ware averred that Antonio told him no one else was present when he signed

the documents and that “he had no idea how the notary seal and signature of a Notary

Public appeared on the documents.” According to Ware, Antonio “stated that he did lie on

the witness stand and that Raymond Warren was not the shooter. He stated he was

intimidated by the police because he was just a kid at the time.” Finally, Ware averred

that Antonio advised him that “he has not seen Raymond Warren since 1994 and he has

not spoken to or corresponded with him in any manner. * * * He further advised he has

not seen Chante Hunt for several years.”

        {¶ 13} Warren asserted that since his trial, “new scientific evidence has emerged

which undermines the gunshot residue evidence that was presented at [his] trial,” and he

attached a copy of the following: Wright, et al., Summary of the FBI Laboratory’s Gunshot

Residue Symposium, May 31-June 3, 2005, Forensic Science Communications (July

2006) Vol. 8, No. 3. The article contains the following conclusion:

              At the conclusion of the symposium, several topics remained open
                                                                                        -17-


      for further discussion: namely the use of time limits in case-acceptance

      criteria and how to standardize the language used to report the presence of

      GSR particles.    Topics such as these are often dictated by individual

      laboratory policies, as well as the circumstances of a particular case.

      Therefore, it is unlikely that universal guidelines and terminology will evolve

      for the GSR community in these areas.

             Some important topics were not discussed because of time

      limitations, specifically airborne particles and elemental contributions from

      different ammunitions. However, the limitations of GSR examinations were

      unanimously recognized, such that the use of qualifying statements in report

      writing and testimony was discussed in detail.        It is expected that the

      language of qualifiers will continue to develop in order to provide juries with

      a sound basis to evaluate the conclusions reached through GSR analyses.

      Research is also continuing in the area of retention and contamination or

      transfer. It is hoped that these studies will be more readily available to the

      GSR community in the future through the use of internet list serves and

      forums such as this one.

      {¶ 14} Warren also attached a copy of Chante Hunt’s October 8, 1998 Judgment

Entry of Conviction for possession of cocaine, which reflects that Hunt received a

mandatory three-year sentence. Also attached to the motion is the affidavit of Larry

Vancant II, which provides that he is employed by the Office of the Ohio Public Defender,

and that he has served as the “Investigator for the Ohio Public Defender’s Wrongful

Conviction Project” since December of 2012. Vancant averred that in the course of his
                                                                                          -18-


employment he was asked to locate Hunt, and that from “July 14, 2014, through the

present, I have attempted to locate Chante Hunt. During that time, I have made over a

dozen trips to either Dayton or Cincinnati to find Chante. I have visited addresses listed

for Chante, his family, and his associates.” Vancant asserted that his “attempts to find

and speak to Chante Hunt have been unsuccessful.”

       {¶ 15} Warren attached “Offender Information Details” for Antonio from the Ohio

Department of Rehabilitation and Correction showing that Antonio was incarcerated in

2004-2007.    He also attached the January 26, 2015 affidavit of Mary Miller, which

provides that she is Warren’s mother, and that her “two sons, Eric and Alexander, hired

Dayton Attorney Jay Carter to represent [Warren] in challenging his conviction.”

According to Miller’s affidavit, Carter “located * * * Hunt and obtained an affidavit from him

in 1999. In the affidavit, Chante admitted that he lied in [Warren’s] trial and that [Warren]

was innocent.” Miller averred that once her sons could no longer afford to pay Carter,

he “stopped working on [Warren’s] case and never filed anything for him.” Miller averred

that over “the years, my family and I have tried to find Antonio. My son Alexander spoke

to him in 2004, but Antonio did not write a statement.” Miller stated that she found

Antonio in 2008, and that at that time he “signed two affidavits admitting that he lied in

[Warren’s] trial and that [Warren] is innocent.”

       {¶ 16} Warren attached the January 21, 2015 affidavit of Robert L. Lane, which

provides that he was employed by the Ohio Office of the Public Defender from 1981 to

2011. Lane averred that Warren “initially wrote to the Office of the Ohio Public Defender,

seeking assistance, on May 11, 2003. Intake Attorney John Fenlon responded to that

letter and the case was then assigned to me.” Lane attached Fenlon’s May 30, 2003
                                                                                         -19-


letter as well as copies of correspondence between him and Warren from 2003-2004.

Lane stated that Warren in his initial letter “included the 1999 affidavit of witness Chante

Hunt.    In his initial letter and in subsequent letters, Mr. Warren proclaimed his

innocence.” Lane stated that his office located Hunt when he was incarcerated, and that

he directed Dukes to interview him in the Montgomery County Jail, at which time Hunt

“affirmed his 1999 recantation.” Lane stated that he was unable to find Antonio. Lane

averred as follows:

              ***

              13. On May 12, 2004, I sent a letter to Mr. Warren informing him

        that his case with the Office of the Ohio Public Defender would be closed.

        I explained to Mr. Warren that a new trial motion based only on Mr. Hunt’s

        affidavit, without a recantation from Antonio Johnson and in light of the

        gunshot residue tests that were administered to Mr. Warren’s hands, would

        likely be unsuccessful.

              14. My opinion was based on my years of experience working on

        criminal appeals and post-conviction litigation. I stand behind my opinion;

        based on my experience, I believe that it was necessary for Mr. Warren to

        obtain the recantations of both Mr. Hunt and Mr. Johnson for him to have a

        chance of success in a motion for new trial.

              15. I informed Mr. Warren that his chances for success may change

        if Antonio Johnson were to come forward and recant, and that he should

        write to me if he heard from Antonio Johnson.

        {¶ 17} Fenlon’s May 30, 2003 letter to Warren provides in part: “A second issue
                                                                                          -20-


arises. Chante Hunt’s affidavit was signed three years ago. A court may find the delay

in utilizing the affidavit grounds alone to dismiss a motion for new trial. * * *.” The letter

further provides: “Thus, while the rule provides for motions based upon new evidence,

you must demonstrate grounds for delay. Hunt’s affidavit is three years old. Please

explain the delay in seeking a new trial given you have had the Hunt affidavit for three

years. The State will be sure to ask.” Finally, the letter provides: “Also, you indicate

that Antonio Johnson has also recanted. If so, has he prepared an affidavit? The court

of appeals decision affirming your conviction states that Johnson’s testimony

corroborated Hunt’s. Thus, either testimony would by itself defeat any motion for new

trial.”

          {¶ 18} Warren attached the December 1, 2014 Affidavit of Attorney Jennifer

Paschen Bergeron, which provides that she is an Assistant Academic Advisor and Staff

Attorney at the Ohio Innocence Project in Cincinnati (“OIP”), which “is a non-profit

organization that operates through the University of Cincinnati College of Law.” Bergeron

averred that “[e]ach spring students apply for positions as OIP fellows” to assist OIP

attorneys. According to Bergeron, in “2008, [Warren] wrote to the OIP requesting that OIP

review his case. During the investigation of Mr. Warren’s case, the OIP received two

affidavits from Antonio Johnson * * *.” Bergeron averred that “Johnson’s affidavits are

quite similar to an affidavit provided to Mr. Warren in 1999 by Chante Hunt.” She averred

that based upon “the recantations by the State’s key witnesses and Mr. Warren’s adamant

protestation of innocence throughout this case, Mr. Warren’s case is the type of case that

OIP might agree to accept and pursue in court.” Bergeron averred that “after receiving

[Antonio’s] affidavits and without apparent authorization, in September 2009, the Fellows
                                                                                     -21-


working Mr. Warren’s case closed and improperly filed the case file.” Bergeron further

averred that Warren’s “case file was rediscovered in November 2010, and Mr. Warren’s

case file was reopened in January 2011.      Once the file was reopened, OIP began

investigating the potential invalidated science claim surrounding the gunshot residue

evidence used against Mr. Warren at his trial.” Bergeron averred as follows:

             6. During the process of working on Mr. Warren’s case again, the

      OIP became aware of an incident in 2012, unrelated to this case, in which

      Mr. Warren was involved. Based on that incident - not the evidence in his

      murder case – the OIP determined that it was not able to represent Mr.

      Warren in court. The OIP communicated with Mr. Warren regarding this

      reason. Around the same time, a private attorney who had previously

      worked as an assistant prosecutor, Kim Haliburton Murphy, contacted the

      OIP expressing an interest in working on an OIP case. With Mr. Warren’s

      permission, the OIP asked Ms. Murphy if she would be interested in taking

      over Mr. Warren’s case. Ms. Murphy agreed to consider the case.          The

      Fellows working on the case as well as myself communicated with Ms.

      Murphy numerous times, including an in-person meeting at our office in

      Cincinnati, to share documents and discuss the case.             It is my

      understanding that Ms. Murphy and Mr. Warren eventually entered into a

      formalized attorney-client relationship wherein Ms. Murphy agreed to assist

      Mr. Warren’s effort to obtain post-conviction relief.     OIP closed Mr.

      Warren’s case in 2013.

             7. In February 2014, Mr. Warren contacted OIP again. At that
                                                                                        -22-


        time, Mr. Warren informed OIP that out of frustration [he] had filed a pro se

        motion for new trial. He inquired whether OIP could assist him with the

        current appeal. At that time, OIP reached out to the Ohio Public Defender’s

        Office to see if they could assist Mr. Warren with this appeal.

        {¶ 19} Warren also attached the January 15, 2015 affidavit of Joseph

Bodenhamer, who averred that he is employed by the Office of the Ohio Public Defender

and serves as the Director of the Office of the Ohio Public Defender’s Wrongful Conviction

Project. According to Bodenhamer, on “March 21, 2013, our office received the Wrongful

Conviction Project Questionnaire, which serves as an application for assistance,” from

Warren. He averred that Warren advised that he was represented by the OIP, and that

he later learned that Warren was represented by Murphy.                   Since Warren was

represented by counsel, Bodenhamer averred that his case with the Wrongful Conviction

Project was closed on April 9, 2013. He attached a copy of the “close letter” to his

affidavit.

        {¶ 20} Warren attached a copy of correspondence from Murphy, dated February

13, 2014, which provides in part as follows:

               As we discussed when we met last spring, my knowledge of criminal

        law and post-conviction relief is practically non-existent, and I was very

        hopeful that Rick Ketcham would be able to assist me more than his health

        has allowed. I know that you are frustrated with the length of the process in

        your case, and I feel that you should be in the hands of counsel who not

        only have the time but the specialized knowledge to be of assistance to you.

               Accordingly, neither Rick nor I will be your counsel in this matter.
                                                                                      -23-


      {¶ 21} Finally, Warren attached the January 18, 2015 Affidavit of Attorney Richard

Scott Ketcham to his motion, which provides in part:

             ***

             4. My ex-wife is attorney Kim Halliburton Murphy.

             5.    In the spring of 2013, Kim Halliburton Murphy asked that I

      accompany her to visit a new client of hers, Raymond Warren, in the

      correctional institution in which he was housed. Kim wanted to know my

      thoughts on Mr. Warren’s case.

             6. It was never my understanding that I would be co-counsel on Mr.

      Warren’s case or that I would be assisting Kim Halliburton Murphy in any

      way beyond that initial visit.

             7. After the initial visit with Mr. Warren, Kim Halliburton Murphy

      never mentioned his case to me again.

      {¶ 22} On January 29, 2015, “Defendant Raymond Warren’s Reply to the State

of Ohio’s Memorandum in Opposition to Defendant’s Motion for Leave to File a Motion

for New Trial” was filed. On February 27, 2015, the “State’s Response to Warren’s Reply

to the State’s Memorandum in Opposition to Warren’s Motion for Leave to File a Motion

for New Trial and Warren’s Motion for Leave to Amend and Supplement his Motion for

Leave to File a Motion for New Trial” was filed. Finally, on March 5, 2015 Warren replied

to the State’s response. On May 18, 2015, the trial court sustained Warren’s motion to

amend. On May 20, 2015 “Defendant Raymond Warren’s Amended and Supplemented

Motion for Leave to file a Motion for New Trial” was filed with all of the above exhibits

attached.
                                                                                         -24-


       {¶ 23} Warren asserted that since his trial, he “has discovered new evidence that

undermines his conviction and proves his actual innocence,” in reliance upon the

recantation of Hunt and Johnson.        He further argued that new scientific evidence

undermines the gunshot residue test applied to him. Warren asserted that he was

unavoidably prevented from discovering the evidence, and that he was entitled to a

hearing.   Regarding the recantations, Warren asserted that although he “knew that

Chante and Antonio testified falsely at trial, he had no reason to know they would recant

until they came forward. Nothing on the face of the affidavits leads to the conclusion that

Mr. Warren could have obtained the recantations sooner.”            He asserted that his

“incarceration, coupled with his lack of an attorney or investigator, inhibited him from

finding the new evidence quickly.” Warren argued that experienced “attorneys and

investigators have had difficulty finding [Hunt]; thus it is reasonable that Mr. Warren, who

was incarcerated and lacked resources, could not find [Hunt] on his own prior to 1999.”

Regarding Antonio, Warren asserted that he was “incarcerated from 2004-2007 and thus

inaccessible, and he started going by the last name ‘Robinson’ rather than ‘Johnson,’

making it difficult to locate him. * * * He was released from prison in November 2007, and

shortly thereafter, Mr. Warren’s mother located him and obtained his recantation.”

Finally, Warren asserted that the “studies and scientific developments related to GSR did

not take place until after his conviction. * * * Until the FBI Symposium in 2005 and

subsequent report in 2006, the scientific community had not reached a consensus on the

issues related to GSR and they were not widely publicized.”

       {¶ 24} Warren further asserted that after “discovering the new exonerating

evidence, Mr. Warren made diligent efforts to present it to this Court.” Warren asserted
                                                                                       -25-


that “the State suffered no burden,” and that he “had no incentive to ‘bide his time’ and

delay presenting the new evidence; he claims actual innocence and his only hope of relief

is to present his new evidence.” Warren asserted that his “delay is due to early advice

he received from counsel, limitations encountered as a pro se litigant, and failure of

counsel.” Warren asserted as follows:

             Since his conviction, Mr. Warren has relied on the assistance of

      attorneys. He understandably believed that it was better to have attorneys

      litigate his case rather than attempt to do so on his own, with limited legal

      knowledge and resources. It was reasonable for him to rely on the advice

      of Attorney Lane and to seek Antonio’s recantation before filing a motion for

      new trial. And once he obtained the recantation, he relied on the OIP and

      Attorney Murphy to effectively represent him.        The OIP and Attorney

      Murphy failed him. Since his conviction in 1995, Mr. Warren had diligently

      challenged his conviction by investigating his case, filing pro se motions,

      and seeking and relying on the assistance of counsel.

      {¶ 25} Warren asserted that the State recently disclosed new evidence pursuant

to its Brady obligations. Warren asserted that investigators for the State interviewed

Antonio on December 31, 2013, and Warren argued as follows:

             * * * Antonio’s recent statement to the State’s investigators shows

      that (1) Antonio is reliable; (2) Antonio’s recantation has remained

      consistent for nearly six years; (3) Antonio testified falsely in Mr. Warren’s

      trial; (4) Antonio knows that Mr. Warren was not the shooter; (5) Antonio

      has not communicated with Mr. Warren since 1994; (6) Antonio is willing to
                                                                                        -26-


       recant to representatives of the State, despite the State’s authority to bring

       perjury charges against him. * * *

              Further, a recantation made to a law-enforcement officer, or similarly

       situated individual, is more reliable than a statement made to a defendant’s

       family member. * * *

              ***

              * * * In light of the material differences between Antonio’s 2008

       affidavits and his statement to State investigators, Investigator Ware’s

       affidavit constitutes evidence that must be disclosed pursuant to Brady.

       The State met its Brady obligations by disclosing the affidavit on January

       21, 2014.

Warren asserted that based upon the State’s disclosure, “this Court should hold a hearing

to determine whether Mr. Warren is entitled to a new trial.”

       {¶ 26} Finally, Warren asserted that he “has presented new evidence that

undermines all of the evidence presented against him in his trial.” Citing his exhibits as

well as testimony at his trial, Warren asserted as follows:

              Antonio and Chante’s recantations are reliable. When they gave

       statements to police and testified in Mr. Warren’s trial, Chante and Antonio

       were young boys who were questioned under stressful and intimidating

       circumstances. * * * Then age 14, Antonio was unexpectedly approached

       by multiple police officers in two police cars. * * * He was taken from his

       yard, without being able to tell his parents, and was told he could go home

       only after he gave a statement.        Similarly, Chante was approached
                                                                                  -27-


unexpectedly early one morning. * * * Both Chante and Antonio were told

that if they did not implicate Mr. Warren, they would be charged with murder.

Scared, Antonio made a statement. * * * Chante signed a statement written

by police.

       During his trial, it was evident that neither boy wanted to testify

against Mr. Warren.      On the day they were to testify, despite being

subpoenaed, neither boy appeared. * * * The next day, police picked up

both boys and held them at the police department prior to testifying.

Antonio then testified that he told the police what they wanted to hear. * *

* In his testimony, Chante could not recall significant details, including that

he had allegedly seen Mr. Warren with a gun the day before the shooting

and that Mr. Warren confessed to him, until his recollection was refreshed

with the statement written by the police.

       As adults, Antonio and Chante have recanted.            They have no

motivation to do so other than to clear their consciences. * * * They do not

have contact with Mr. Warren, and thus he has not pressured them to

recant. * * * And both men have recanted despite the negative

consequences – perjury charges – which may befall them. Significantly,

Antonio’s and Chante’s recantations are consistent with one another. * * *

       Aside from the testimony of Antonio and Chante and the GSR

“evidence,” there was no other evidence - direct or circumstantial – against

Mr. Warren that the State presented at his trial. There was, however,

evidence that implicated at least two other suspects.       Immediately after
                                                                                       -28-


      Mr. Simpson was shot, at least two men, with no reason to be in the

      neighborhood, parked their car across from Mr. Simpson’s, approached his

      car, and reached inside. * * * A witness actually observed three men exit

      the car, but one disappeared before the police arrived. * * * Their car had

      fresh damage, and when police searched Simpson’s car, his keys and

      wallet were missing, supporting the conclusion that the men took them. * *

      * The two remaining men were taken to the police station but were not

      fingerprinted or tested for GSR. * * *

             In light of Antonio’s and Chante’s recantations, the invalidated GSR

      evidence presented at his trial, and evidence implicating other suspects, Mr.

      Warren is entitled to relief.

      {¶ 27} On July 7, 2015, the “State’s Motion Contra Warren’s Amended and

Supplemented Motion for Leave to File a Motion for New Trial” was filed. On July 13,

2015, “Defendant Raymond Warren’s Reply to the State’s Motion Contra Warren’s

Amended and Supplemental Motion for Leave to File a Motion for New Trial” was filed.

      {¶ 28} In its Decision overruling Warren’s motion for leave to file motion for new

trial, the trial court noted that the motion is premised upon Antonio’s affidavits, dated

August 18 and 13, 2008, as well as “what would appear to be an affidavit of Chante Hunt

dated October 6, 1999.” The court noted that there “is no affidavit of Defendant Warren

included with the Motion nor filed contemporaneously with the Motion, or any

amendments thereto,” but the court noted the affidavit filed by Warren on January 9, 2002,

attached to his Motion to Receive Copy of Trial Transcripts.       The court noted that

Warren’s affidavit was dated December 29, 2001. The court further noted that attached
                                                                                       -29-


to “Warren’s Motion dated January 9, 2002 was the affidavit of Chante Hunt dated

October 26, 1999 * * *. The record also reveals that Defendant was represented by an

attorney, Kenneth J. Rexford, associated with a motion that he filed on October 28,

2009.”1

       {¶ 29} The court reviewed the trial testimony of Gary Shaffer, a forensic chemist

at the Miami Valley Regional Crime Laboratory regarding the analysis of gunshot residue

found on Warren’s hand, and it noted that “Shaffer was subjected to vigorous cross-

examination by Warren’s trial counsel. Particularly, Shaffer admitted to defense counsel

that he could not determine if Warren had actually fired a weapon. Shaffer also admitted

that people can come into contact with antimony and barium sufficient to have an effect

on the testing.”   The court noted that defense counsel “also elicited from Shaffer

testimony that a variety of substances, including grease and lubricating oils contain

barium and fireworks may be a source of antimony.”

       {¶ 30} The court reviewed Antonio’s and Chante’s testimony at trial, and reviewed

the affidavits of Dukes, Miller, Lane, and Bergeron. The court noted that a “private

attorney, Kim Murphy, expressed an interest in working on Warren’s case, although she

did not follow through with her representation.”

       {¶ 31} The court noted as follows:

              Warren claims that new scientific evidence undermining the gunshot

       residue test warrants leave to file a motion for a new trial. He claims that

       environmental contamination from police sources can taint the results of a


1
 The record reflects that Rexford filed a “Motion of the Defense to Correct Status of Void
Sentencing Entry,” and on December 18, 2009 the trial court issued a nunc pro tunc entry
reflecting that Warren was found guilty as a result of a trial by jury.
                                                                                -30-


gunshot residue test. To suggest that Warren has new evidence that he

was unavoidably prevented from obtaining regarding AA testing belies the

evidence and cross-examination of his counsel at trial. At trial, Defendant’s

counsel cross-examined evidence technician, Steven Tobias, Crime Lab

Analyst, Tim Duerr, and forensic chemist, Gary Shaffer, about the gunshot

residue or AA test procedure and results, as well as concerns about gunshot

residue. The witnesses testified that barium and antimony can be found in

nature and described the various sources of the particles in nature. It is

clear from the trial transcript that Defendant’s trial counsel was aware of

concerns associated with AA testing in 1994 and attempted to undermine

the credibility of the evidence presented at trial. The trial testimony also

made clear that the elements sought in the AA testing occurred in nature,

and could have been present in the materials associated with Warren

working on the minibike he was fixing at or near the time of Simpson’s death.

       Based on the foregoing, the court finds that Defendant has failed to

present clear and convincing evidence that he was unavoidably prevented

from discovering the evidence upon which he relies in support of his Motion

for Leave to File Motion for New Trial. Warren has failed to prove that

Johnson and Hunt’s testimony, and the evidence relating to AA testing could

not, in the exercise of reasonable diligence, have been discovered within

the statutory time period for filing a motion for a new trial. While Warren

claims that he was unaware of the information associated with Hunt and

Johnson’s recantations, and AA testing, he has failed to address why he
                                                                                -31-


was unavoidably prevented from discovering that information in the

exercise of due diligence.

       Even assuming Defendant was unavoidably prevented from

discovering the evidence upon which he relies, his motion was not filed

within a reasonable period of time after the discovery of the evidence.

Warren argues that he lacked an attorney, resources, or an investigator,

and has limited education, coupled with his incarceration, thereby

supporting his claim that he was unavoidably discovering [sic] the evidence

he has presented in support of his claim. Warren’s arguments do not serve

to excuse the untimely filing of the motion. Nothing in Crim. R. 33 supports

Warren’s conclusion. While Warren believed that he needed counsel to

adequately present his motion for leave to file for new trial, he appeared to

have no difficulty filing other motions on his own. Warren’s lack of counsel

does not excuse his delay in filing his Motion for Leave. In addition, the

record does not support Warren’s claims. Repeatedly since the time of his

conviction, an attorney has either entered an appearance herein and filed a

motion on behalf of Warren [sic]. Furthermore, the affidavits supplied by

Warren demonstrate that he has repeatedly had counsel at his disposal,

either through the State Public Defender’s Office or the Ohio Innocence

Project, since at least 1999 when Warren was represented by Attorney Jay

Carter.   Defendant attempts to conflate the issues with superfluous

concerns, none of which address the crux of the matter – whether there is

newly discovered evidence, and whether Warren was unavoidably
                                                                                    -32-


prevented from discovering that evidence, and filing his motion in a timely

manner.

       Warren failed to present the court with the newly discovered

evidence within a reasonable period of time.            Contrary to Warren’s

assertions, his incarceration, lack of resources, and the alleged

unavailability of the recanting witnesses did not prevent him from

discovering the new evidence sooner. Warren has known about all of the

affidavits since as early as 1999 and as late as 2008. He was capable of

contacting attorneys, filing other motions, and was even advised by the

State Public Defender’s Office to file the Motion for Leave on his own, yet

Warren chose to sit on Hunt’s affidavit for 14 years and Johnson’s affidavits

for approximately 5 years, prior to filing his Motion for Leave. Crim.R. 33

does not contemplate a Defendant filing a Motion for Leave or Motion for

New Trial only when the evidence is in a perfect state. Instead, Crim.R. 33

provides a threshold for the filing of a motion for new trial or motion for leave

when the evidence is discovered, and then contemplates a period for

additional evidence to be obtained prior to hearing. Warren could not sit

on the new evidence in the hope that witnesses would no longer be

available or no longer recall the events clearly, or that evidence might

disappear or no longer be available. * * *

       Furthermore, the other affidavits supplied by Warren, particularly

those of his mother and attorneys who have assisted him since his

conviction, are not newly discovered evidence that support his Motion for
                                                                                        -33-


      Leave, but instead represent efforts to explain why Warren did not file his

      Motion prior to late 2013. The court finds that, under the circumstances,

      the excuses for Warren’s delay in the filing of his Motion for Leave are not

      adequate. The affidavits, while they tell a story of Warren’s efforts, do not

      excuse the staggering delay between obtaining the evidence that could

      support a motion for new trial, and the filing of his Motion for Leave.

             The court finds that Warren has failed to demonstrate that he filed

      his Motion for Leave within a reasonable time under the circumstances and

      that he has not adequately explained the reason for his delay. Warren has

      known about all of the substantive evidence upon which he relies since, at

      the latest, 2008, and at the earliest 1999.         Warren has offered no

      reasonable explanation for the delay in the filing of his Motion.

             The court further finds that since Warren failed to show that he was

      unavoidably prevented from timely filing his Motion, he is not entitled to an

      evidentiary hearing on that Motion.

      {¶ 32} Because we find it to be dispositive in the instant case, we will first address

Warren’s second assignment of error as follows:

      {¶ 33} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

HOLD A HEARING ON WARREN’S MOTION FOR LEAVE TO FILE A MOTION FOR

NEW TRIAL WHEN THE RECORD AND CIRCUMSTANCES SUPPORTED WARREN’S

CLAIM THAT HE WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE

EVIDENCE AT ISSUE, AND THE DELAY IN FILING THE MATERIAL WAS

REASONABLE UNDER THE CIRCUMSTANCES.”
                                                                                          -34-


       {¶ 34} In his second assignment, Warren contends that the trial court abused its

discretion when it failed to hold a hearing in order to determine whether he was

unavoidably prevented from timely discovering the evidence in support of his motion for

leave to file a motion for new trial, and whether the delay in filing said evidence was

reasonable under the circumstances.          Specifically, Warren asserts that he “has

submitted evidence which, on its face, demonstrates that he was unavoidably prevented

from discovering the new evidence which supports his motion.”

       {¶ 35} Regarding a hearing on his motion, Warren asserts that this “Court’s

precedent is clear: Where a defendant submits documents which on their face support

his claim that he was unavoidably prevented from timely discovering the evidence, the

trial court must hold a hearing on his motion for leave to file a motion for new trial.”

Warren argues that the “evidence established that it was not until 1999 and 2004,

respectively, when Hunt and [Antonio] finally admitted they lied. * * * After 2005, [Antonio]

could not be found again and did not execute an affidavit until 2008.” He asserts that he

“submitted additional evidence which demonstrates, on its face, his diligent efforts and

the difficulty he encountered locating Hunt and [Antonio] due to lack of resources, the

witness’ incarceration and [Antonio’s] name change. * * * An affidavit from a State

investigator further established that [Antonio] had not communicated with Warren since

1994.” Finally, Warren argues that the Report of the FBI Symposium “establishes that it

was not until several years after Warren’s conviction when the new scientific evidence

became available,” and “the report was not published until 2006.” Warren argues that

“the studies cited in the report regarding appropriate testing methodology and GSR

particle categorization, morphology, false positives from environmental sources, and
                                                                                        -35-


contamination largely did not occur until years after Warren’s conviction.”

       {¶ 36} The State responds that “Warren filed his motion for new trial based upon

newly discovered evidence twelve years after he had knowledge of Hunt’s recantation

and five years after he had knowledge of Antonio’s recantation.” The State asserts that

Hunt and Antonio were subjected to rigorous cross-examination, leading “to the

conclusion that Warren questioned their veracity and impetus for testifying against him at

trial.” The State argues that to “suggest that Warren has new evidence that he was

unavoidably prevented from obtaining regarding atomic absorption testing belies that

evidence and cross-examination of his trial counsel.” The State directs our attention to

the defense counsel’s cross-examination of Officer Tobias, Duerr, and Shaffer, and the

State argues that a “review of the cross-examination reveals that Warren’s trial counsel

was aware of concerns associated with atomic absorption testing in 1994 and attempted

to undermine the credibility of the evidence presented at trial.” According to the State,

the “trial testimony made clear that the elements sought in the atomic absorption testing

occurred in nature, and could have been present in the materials associated with Warren

working on the scooter he was working on near the time of the shooting.”

       {¶ 37} The State asserts that Warren’s delay in filing his motion was not

reasonable under the circumstances, and that while “Warren believed that he needed

counsel to adequately present his motion for leave to file a motion for new trial, a review

of the docket reveals that he had no difficulty filing motions on his own. Warren’s lack of

counsel does not excuse his delay in filing his motion for leave to file a motion for new

trial.” The State asserts as follows:

              * * * Furthermore, the affidavits supplied by Warren in support of his
                                                                                  -36-


motion for leave demonstrate that he has repeatedly had counsel at his

disposal, through Attorney Jay Carter, the State Public Defender’s Office or

the [OIP]. Additionally, in a letter dated May 12, 2004, Lane, an Assistant

State Public Defender, advised Warren, “If you wish to file a motion for new

trial, or any other legal action, you will have to do so on your own behalf, or

obtain other counsel.”

{¶ 38} Crim.R. 33 provides:

       (A) 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.

       (B) * * *

       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 * * *. 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.

{¶ 39} As this Court this previously noted:

       “In order to be able to file a motion for a new trial based on newly
                                                                                          -37-


       discovered evidence, beyond the one hundred and twenty days prescribed

       in the above rule, a petitioner must first file a motion for leave, showing by

       ‘clear and convincing proof that he has been unavoidably prevented from

       filing a motion in a timely fashion.’ ” State v. Morgan, 3d Dist. Shelby App.

       No. 17-05-26, 2006-Ohio-145. “[A] party is unavoidably prevented from

       filing a motion for new trial if the party had no knowledge of the existence of

       the ground supporting the motion for new trial and could not have learned

       of the existence of that ground within the time prescribed for filing the motion

       for new trial in the exercise of reasonable diligence.” State v. Walden

       (1984), 19 Ohio App.3d 141, 145-146, 19 OBR 230, 483 N.E.2d 859.

State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d Dist.).

“Crim.R. 33 motion are post-trial motions. Therefore, they are governed by Crim.R. 47,

which provides that the motion ‘shall state with particularity the grounds upon which it is

made . . .’ ” York, 2000 WL 192433, *3 (Grady, J. dissenting).

       {¶ 40} “ ‘Clear and convincing proof’ is that ‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’ State v.

Schiebel (1990), 55 Ohio St.3d 71, 74, citing Cross v. Ledford (1954), 161 Ohio St. 469,

paragraph three of the syllabus.” State v. McConnell, 2d Dist. Montgomery No. 24315,

2011-Ohio-5555, ¶ 14. As this Court further noted in McConnell, ¶ 15:

              “A trial court must first determine if a defendant has met his burden

       of establishing by clear and convincing proof that he was unavoidably

       prevented from filing his motion for a new trial within the statutory limits. If

       that burden has been met but there has been an undue delay in filing the
                                                                                       -38-


      motion after the evidence was discovered, the trial court must determine if

      that delay was reasonable under the circumstances or that the defendant

      has adequately explained the reason for the delay.” State v. Stansberry

      (Oct. 9, 1997), Cuyahoga App. No. 71004 [1997 WL 626063]. See, also,

      State v. Kimbrough, Cuyahoga App. No. 84863, 2005–Ohio–1320, at ¶ 17;

      State v. Newell, Cuyahoga App. No. 84525, 2004–Ohio–6917; State v.

      Valentine, Portage App. No.2002–P–0052, 2003–Ohio–2838, at ¶ 9; State

      v. York (April 6, 2001), Greene App. No. 2000 CA 70 [2001 WL 332019].

      {¶ 41} As this Court has further noted:

             * * * If the defendant submits documents that on their face support

      his claim that he was unavoidably prevented from timely discovering the

      evidence, the trial court must hold a hearing to determine whether there was

      unavoidable delay. State v. Wright (1990), 67 Ohio App.3d 827, 828, 588

      N.E.2d 930 [(2d Dist.)]. In the hearing, the court must determine if there is

      clear and convincing proof of unavoidable delay.

State v. York, 2d Dist. Greene No. 99-CA-54, 2000 WL 192433, *2 (Feb. 18, 2000).

      {¶ 42} “If it is not found that the defendant was unavoidably prevented from

discovering the new evidence or from filing his motion for a new trial, the trial court is

precluded from considering the untimely motion. State v. Wilson, 2d Dist. Montgomery

No. 17515, 1999 WL 173551, *1 (Mar. 31, 1999).” State v. Warren, 2d Dist. Montgomery

No. 26112, 2015-Ohio-36, ¶ 13.

      {¶ 43} As this Court noted in McConnell, ¶ 18:

             The essence of Crim.R. 33 is that collateral attacks on the validity of
                                                                                         -39-


       trial proceedings must be made close in time to the proceeding to ensure

       that any issue raised may be given full and fair consideration. The rule

       equally protects both the finality of verdicts and principles of judicial

       economy. Delays in presenting evidence once discovered undermine the

       []overall objective of the criminal rules in providing the [“]speedy and sure

       administration of justice, simplicity in procedure, and the elimination of

       unjustifiable [* * *] delay.” [State v. Barnes, 12th Dist. Clermont No. CA99-

       06-057, 1999 WL 1271665, *2 (Dec. 30, 1999).] Allowing a defendant to

       drag the process out while the evidence and the recollections of witnesses

       become increasingly stale defies the very purpose of the criminal rules.

       Similarly, once leave has been given, the promised evidence must be

       presented or the opportunity lost. Any other result would defeat the purpose

       of the rule intended to ensure that cases are decided on the best evidence

       available and that any defect in judgment is swiftly identified and swiftly

       remedied.

       {¶ 44} “The trial court’s determination of a Crim.R.33 motion is reviewed under an

abuse-of-discretion standard. * * *.” McConnell, ¶ 16. “ ‘ “Abuse of discretion” has been

defined as an attitude that is unreasonable, arbitrary or unconscionable. It is to be

expected that most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.’ (Citations

omitted.) State v. Mitchell, 2014-Ohio-5070, 21 N.E.3d 1124, ¶ 13 (2d Dist.).” State v.

Lam, 2015-Ohio-4293, 46 N.E.3d 138, ¶ 72 (2d Dist.).

       {¶ 45} Since Warren filed his motion several years after the verdict was rendered
                                                                                          -40-


in his case, he was required to demonstrate that he was unavoidably prevented from

timely discovering the evidence upon which he relies. In other words, he must

demonstrate that he had no knowledge of the evidence and could not have learned of its

existence within the statutory time period.

       {¶ 46} In our view, the instant appeal does not involve the denial of a motion for a

new trial, or even whether he should have been granted a hearing on his motion for a

new trial. Rather, it asks only whether he should have been granted a hearing to attempt

to convince the trial court that he was (1) “unavoidably prevented” from filing his motion

for a new trial within 120 days of his conviction and (2) if so, whether his motion was filed

within a “reasonable period of time” after discovery of the alleged new evidence. That

is, the issue here is whether he should have had a hearing on his request to be permitted

to file leave to file a motion for a new trial.

       {¶ 47} The following represents a general chronology of Warren’s attempts to have

a determination of whether he should be permitted to file a motion for a new trial:

       Oct 25, 1996           Conviction affirmed on direct appeal.

       1999                   Warren’s mother hires a private attorney (Carter).

       Oct 26, 1999           Hunt provides an affidavit to Warren’s attorney,

                              recanting his trial testimony; Warren’s attorney does

                              not file a motion for a new trial.

       Jan 9, 2002            Warren files a pro se motion for trial transcript and

                              includes an Oct 26, 1999 affidavit of Hunt recanting his

                              trial testimony.

       Jan 23, 2002           Motion denied because of his previous direct appeal.
                                                                            -41-


May 11, 2003   Warren writes to the Ohio Public Defender (including

               Hunt’s affidavit) seeking assistance; intake Attorney

               Fenlon responds and the case is assigned to Ohio

               Public Defender Attorney Lane.            Subsequently,

               Lane’s investigator locates Hunt in jail, who affirms his

               recantation. Lane is unable to find Johnson.

May 12, 2004   Ohio Public Defender sends a letter to Warren closing

               his case, because no affidavit from Johnson.         The

               letter advises Warren to find new attorney or file pro se.

2004           Johnson acknowledges false testimony to Warren’s

               brother.   Johnson becomes incarcerated under the

               name Robinson and Warren’s brother dies.

July 2006      Report from 2005 FBI symposium concludes that

               existing GSR testing procedures are flawed.

Nov 2007       Johnson/Robinson is released from prison and recants

               to Warren’s mother.

Aug 13, 2008   Johnson/Robinson signs an affidavit, recanting his

               testimony at the juvenile court probable cause hearing

               and describing his interrogations by the police

Aug 18, 2008   Johnson/Robinson signs an affidavit, which recants his

               trial testimony.

2008           Warren contacts the Ohio Innocence Project (OIP).

Sept 2009      OIP case is closed by two Fellows (students) without
                                                                            -42-


               authorization.

Oct 28, 2009   Private attorney Rexford moves “to correct status of

               void sentencing entry.”

Dec 14, 2009   Trial court renders a decision stating that it shall issue

               a nunc pro tunc entry to “cure the defect in the prior

               sentencing entry, which failed to set forth that

               defendant was found guilty as a result of a jury trial.”

Dec 18, 2009   Trial court files Termination Entry (nunc pro tunc Apr 4,

               1995) stating that defendant had been found “guilty by

               a jury * * *.”

Jan 2011       OIP discovers and reopens file.

2012           OIP decides not to represent Warren because of an

               unrelated conflict and transfers case to private attorney

               Murphy, who meets with Warren.

Mar 21, 2013   Ohio Public Defender receives “wrongful conviction

               questionnaire” from Warren which “serves as an

               application for assistance.”

Apr 9, 2013    Wrongful Conviction Project (OPD) closes case,

               because Warren is represented by other counsel.

Nov 19, 2013   Warren files a pro se motion for hearing with newly

               discovered evidence including Hunt’s 1999 affidavit

               and Johnson’s Aug 13 and 18, 2008 affidavits.

Dec 31, 2013   Johnson interviewed by prosecutor’s investigator and
                                                                           -43-


               reaffirms recantation affidavit.

Jan 30, 2014   Motion for hearing with newly discovered evidence (of

               Nov 19, 2013) denied because Warren was not

               “unavoidably       prevented”      from     discovering

               recantations.

Feb 13, 2014   Attorney Murphy writes Warren saying she will no

               longer represent him, because she does not have the

               “specialized knowledge” to be of assistance.

Feb 2014       Warren writes OIP saying he has filed pro se “out of

               frustration”; OIP “reaches out” to the Ohio Public

               Defender.

Mar 3, 2014    Ohio Public Defender moves for appointment as

               counsel for Warren; states OIP had Johnson/Robinson

               affidavits for 5 years, but never filed motion and that

               OIP is now precluded from representing Warren

               because of the “assertion of their ineffectiveness in the

               post-conviction review process.”

Jan 9, 2015    Court of Appeals reverses trial court’s Jan 30, 2014

               ruling because Warren did not have opportunity to

               respond.

Jan 29, 2015   Ohio Public Defender files a motion for leave to file

               together with affidavits of Johnson/Robinson (from

               2008 and 2015), Hunt (from 1999), and prosecutor’s
                                                                                            -44-


                               investigator (from 2014).

          Dec 15, 2015         Trial court denies, without a hearing, the Jan 30, 2014

                               motion for leave to file motion for new trial.

          {¶ 48} A trial court has three options when a defendant files a motion for leave to

file a motion for new trial. See State v. Trimble, 2015-Ohio-942, 30 N.E.3d 222, ¶ 16 (11th

Dist.).     First, if the trial court determines the documents submitted clearly and

convincingly demonstrate the movant 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. See Crim.R. 33(B). Second, if the trial court determines the submitted documents

appear to “support [the movant's] claim that he was unavoidably prevented from timely

discovering the evidence, the trial court must hold a hearing to determine whether there

* * * is clear and convincing proof of unavoidable delay.” State v. York, 2d Dist. Greene

No. 99–CA–54, 2000 WL 192433, *2 (Feb. 18, 2000), citing State v. Wright, 67 Ohio

App.3d 827, 828, 588 N.E.2d 930 (2d Dist.1990). Finally, if it determines the documents

in support of the motion, on their face, demonstrate that the movant was unavoidably

prevented from discovering the evidence, it is within the trial court's discretion to either

sustain the motion or hold an evidentiary hearing. See State v. McConnell, 170 Ohio

App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d Dist.).

          {¶ 49} The Eleventh District Court of Appeals has held that a trial court abuses its

discretion when it fails to, at the very least, grant a hearing to a defendant who waited five

years after receiving recantation affidavits before filing his motion for leave to file a motion

for new trial. State v. Bentley, 2016-Ohio-3290, 66 N.E.3d 180, ¶ 13 (11th Dist.). “[T]he

trial court abused its discretion by not finding that appellant was unavoidably prevented
                                                                                          -45-


from timely discovering the new evidence or, at the very least, by not holding a hearing

on the issue. See [State v.] Alexander, [11th Dist. Trumbull No. 2011–T–0120, 2012-

Ohio-4468], at ¶ 21 (further recognizing that ‘requiring a hearing * * * whenever an

appellant produces a recanting affidavit after 120 days places additional burdens on the

trial courts, * * * [but] is necessary so that a genuine recantation that could be outcome

determinative is not foreclosed only because the recanting witness decides to “do the

right thing” belatedly’).” Id.

       {¶ 50} Additionally, “Crim.R.33 does not set forth any specific time strictures as to

when a motion for new trial may be filed after unavoidable prevention has been found.

However, ‘case law has adopted a reasonableness standard.’ ” Bentley, ¶ 15,

quoting State v. Griffith, 11th Dist. Trumbull No. 2005–T–0038, 2006-Ohio-2935, 2006

WL 1585435, ¶ 15.       “As a result, a trial court may require a party to file his Crim.R.

33 motion within a reasonable time after he discovers the evidence.” Id. The trial court

must determine whether any undue delay “was reasonable under the circumstances or

that the defendant has adequately explained the reason for the delay.” Id. This

determination is also reviewed for an abuse of discretion. Id. An abuse of discretion is the

trial court's “failure to exercise sound, reasonable, and legal decision-making.” State v.

Beechler, 2d Dist. Clark No. 09–CA–54, 2010-Ohio-1900, ¶ 62, quoting Black's Law

Dictionary 11 (8th Ed.2004).

       {¶ 51} A defendant is, therefore, entitled to a hearing on his motion for leave to file

if he “submits documents that on their face support his claim that he was unavoidably

prevented from timely discovering the evidence” at issue. State v. York, 2d Dist. Greene

No. 99-CA-54, 2000 WL 192433, *2 (Feb. 18, 2000); State v. Grissom, 2d Dist.
                                                                                          -46-

Montgomery No. 26626, 2016-Ohio-961, ¶ 17; State v. Lenoir, 2d Dist. Montgomery No.

26846, 2016-Ohio-4981, ¶ 16. Here, we find that Warren has done just that.

       {¶ 52} 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.

       {¶ 53} 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.

       {¶ 54} 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.

       {¶ 55} Warren’s second assignment of error is sustained.

       {¶ 56} Warren’s first assignment of error is as follows:
                                                                                         -47-


       {¶ 57} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

GRANT WARREN’S MOTION FOR LEAVE TO FILE A MOTION FOR NEW TRIAL

WHEN THE RECORD DEMONSTRATED BY CLEAR AND CONVINCING PROOF THAT

WARREN WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE NEW

EVIDENCE AND PRESENTED IT TO THE COURT WITHIN A REASONABLE TIME

FOLLOWING ITS DISCOVERY.”

       {¶ 58} In light of our disposition with respect to Warren’s second assignment of

error, his first assignment is rendered moot.

       {¶ 59} Having sustained Warren’s second assignment of error, the judgment of the

trial court is reversed, and this matter is remanded for a hearing to determine whether

Warren was unavoidably prevented from timely discovering the new evidence, and, once

the evidence was obtained, whether he filed his motion within a reasonable time.

                                       ..........

FROELICH, J., concurs.

WELBAUM, J., dissenting:

       {¶ 60} I very respectfully dissent. As the trial court correctly determined, Warren

failed to meet this burden, and he further failed to establish that his delay was reasonable

under the circumstances. Since the documents attached to his motion do not on their

face support a conclusion that Warren was unavoidably prevented from discovering the

evidence within the time period provided by the statute, he is not entitled to a hearing on

the motion. In my opinion the trial court did not abuse its discretion and I would overrule

both assignments of error.

       {¶ 61} Warren was found guilty of murder on April 4, 1995. As the trial court
                                                                                        -48-


noted, at trial counsel for Warren thoroughly questioned the truthfulness of Antonio and

Hunt on cross-examination, and both witnesses’ testimony arguably suggests, in part,

that they implicated Warren out of fear and coercion. Antonio was 15 years old at the time

of trial, and the following exchange occurred on cross-examination regarding Antonio’s

interaction with the police in the course of the investigation of the shooting:

                Q. And a couple detectives came up to you in the back yard, is that

       right?

                A. Yes.

                Q. Was it four detectives?

                A. Yeah.

                Q. Did they have one car or two cars?

                A. Two.

                Q. Did they walk you out of your yard to one of those police cars?

                A. Yes.

                ***

                Q. And put you in the back seat?

                A. Yeah.

                Q. Did one of the officers then sit next to you in the back seat?

                A. Yeah.

                Q. Did you have a chance before getting into that cruiser * * * to go

       in and let your mom or dad know where you were going?

                A. No, I tried to run.

                Q. You tried to run from them. * * * So they grabbed you?
                                                                               -49-


      A. Yeah.

      Q. And they brought you downtown?

      A. Yeah.

      Q. They took you to a room to talk to you?

      A. Yes.

      ***

      Q. They were telling you that it was about a murder, isn’t that right?

      A. Yes.

      Q. And that they thought you might be involved somehow, is that

what they thought?

      A. Yes.

      Q. And that’s what they said to you?

      A. Yes.

      Q. They told you that they might have to put it on you?

      A. No.

      Q. No, they didn’t say that?

      A. No.

      Q. But they told you they wanted to question you?

      A. Yes.

      Q. And they wanted to question you about Allen?

      A. They just, they really want to know who done it.

      Q. Did you not want to talk while you were downtown?

      A. I didn’t want to talk to them, no, I didn’t.
                                                                                 -50-


       Q. But you did talk?

       A. Yes.

       Q. Was that after they told you that if you didn’t talk they would hold

you down there?

       A. Yes.

       Q. That was after they told you that, right?

       A. Um hmmm.

       Q. You didn’t want to stay down there, did you?

       A. No.

       Q. You didn’t want to go to jail?

       A. No.

       Q. You were kind of scared of going to jail?

       A. Yeah.

       Q. You didn’t want that?

       A. Yes.

       Q. Okay. So you told them what they wanted to hear, correct?

       A. Yes.

{¶ 62} On recross-examination, Antonio testified as follows:

       Q. You also stated on redirect that when the police talked to you

they treated you well, is that right?

       A. Yes.

       Q. But didn’t Detective Burke tell you that they had information that

you were involved?
                                                                                    -51-


       A. Yes.

       Q. * * * And was he treating you well when he said that to you?

       A. He said it so many times.

       ***

       Q. Was Detective Burke treating you well when he said that if you

didn’t tell, that unless you put this on Allen, unless you identified Allen, they

would see about putting it on you.

       MR. SLAVENS: Objection, Your Honor.

       THE WITNESS: No.

       THE COURT: Overruled.

       BY MR. DEWAR:

       Q. You don’t remember that, sir?

       A.    He didn’t say that.

       ***

       Q. You took an oath in that transcript when you testified in Juvenile

Court, didn’t you?

       A. Yes.

       Q. You swore to God?

       A. Yes.

       Q. To tell the truth?

       A. Yes.

       Q. Whole truth?

       A. Yes.
                                                                                 -52-


       Q. Nothing but the truth?

       A. Yes.

       ***

       Q. * * *Did Detective Burke tell you that unless you put this on Allen,

unless you identified Allen, that they would see about putting it on you?

       A. They did not say that.

       Q. Didn’t say that?

       A. No.

       Q. Do you remember being asked that question in Juvenile Court

under oath?

       A. I don’t remember.

       Q. Okay. Do you have page 37 there?

       A. No.

       Q. Turn to page 37, please.

       ***

       Q. Read this correctly, question, “Didn’t he tell you that unless you

put this on Allen or unless you identified Allen, that they would see about

putting it on you?” And at the top of the page 38 your answer was, “Yes,”

isn’t that right? I read that correctly?

       A. Yes, but I don’t remember all this, man.

       Q. You don’t remember all this?

       A. No.

{¶ 63} Similarly, Hunt testified as follows on cross-examination about his
                                                                                  -53-


interaction with the police in the course of the investigation:

              Q. Do you remember what time it was that you were brought down

       to the police station?

              A. It was about, early in the morning.

              Q. Do you know if it was 6:30 a.m.?

              A. It was something like that.

              Q. You were asleep, weren’t you?

              A. Yes.

              ***

              Q. You didn’t know the police were coming, did you?

              A. No.

              ***

              Q. And there were two uniformed officers that showed up outside

       your door, weren’t they?

              A. Yes.

              Q. Then your mother woke you up?

              A. Yes.

              Q. And within in a few minutes you were in a police car downtown,

       correct?

              A. Yes.

              Q. And you were taken to a room?

              A. Yes.

              ***
                                                                           -54-


       Q. And was there, there was no one in the room when you walked

into the room, right?

       A. Right.

       Q. They left you in the room?

       A. Yes.

       Q. You were in the room for some time by yourself?

       A. Right.

       ***

       Q.    And after you were in that room by yourself, then some

detectives came in the room, didn’t they?

       A. Yes.

       Q. And they told you that they were going to talk to you about a

murder, didn’t they?

       A. Yes.

       Q. They told you that maybe they were going, they were interested

in your involvement in it?

       A. Yes.

       Q. So, this is less than an hour after you wake up in the morning

and you’re being questioned about a possible murder that they’re talking

about putting on you, right?

       A. Right.

       Q. You hadn’t had breakfast yet?

       A. No.
                                                                                           -55-


              Q. Hadn’t had anything to eat?

              A. No.

              Q. Hadn’t had anything to drink?

              A. No.

              Q. What time did you get to bed the night before?

              A. About 3:00.

       {¶ 64} The record reflects that Warren was acquainted with Antonio and Hunt

prior to trial. Antonio testified that the police officers told him that they would continue to

hold him if he refused to talk to them, and that he was scared of going to jail. He testified

that he told the officers what they wanted to hear, and his testimony suggests that he

previously testified in juvenile court that he felt coerced into implicating Warren to avoid

being charged himself.        Similarly, Hunt testified that he was questioned under

intimidating circumstances and that officers suggested that he could be implicated for

Simpson’s murder. I accordingly cannot conclude that Warren had “no knowledge” of

the evidence regarding Antonio’s and Hunt’s alleged coercion by police as reflected in

their affidavits. (Hunt subsequently averred that he “lied because I was told that if I didn’t

say that Allen shot that man that I would be charged with the murder of the man,” and

Antonio subsequently averred that the “police told me if I didn’t testify against Raymond,

I could be charged with a crime.”)

       {¶ 65} Further, even if I were to conclude that Warren was unavoidably prevented

from discovering the evidence, Warren did not file his motion for leave within a reasonable

period of time under the circumstances. Hunt’s affidavit, which Warren attached to his

pro se January 9, 2002 “Motion to Receive Copy of Trial Transcripts,” is dated October
                                                                                         -56-


26, 1999. In his January 29, 2001 affidavit, Warren averred that he “is moving for a new

trial having obtained newly discovered evidence.” In his 2002 motion, Warren indicated

that he is “presently preparing a motion for a new trial.” While Warren cites the difficulty

of preparing a motion for a new trial without a transcript, I note that in correspondence

from Warren to Lane, attached to Lane’s affidavit and dated March 19, 2004, Warren

indicated that he “received the package you sent containing the transcripts of my case.”

       {¶ 66} Warren was advised by Fenlon in 2003 that the fact that Hunt’s affidavit was

three years old was problematic. While Warren relies on the multiple affidavits attached

to his amended motion to explain why he did not file the motion before late 2013, he does

not excuse the delay of many years even from 2008, when he had obtained both

witnesses’ recantations. Warren knew of one recantation since as early as 1999 and

both as late as 2008. As this Court has noted, “[t]he trial court cannot extend the time to

file a motion under Crim.R.33 other than pursuant to the conditions provided in that rule.

See Crim.R. 45(B).” McConnell, 2011-Ohio-5555, ¶ 14.

       {¶ 67} Regarding Warren’s argument that newly discovered scientific evidence

undermines the gun shot residue testing employed herein, I agree with the trial court that

it “is clear from the trial transcript that Defendant’s trial counsel was aware of concerns

associated with AA testing in 1994 and attempted to undermine the credibility of the

evidence presented at trial.” I further agree that the “trial testimony also made clear that

the elements sought in the AA testimony occurred in nature, and could have been present

in the materials associated with Warren working on the minibike he was fixing at or near

the time of Simpson’s death.”

       {¶ 68} For example, Steven Tobias testified that he was an evidence technician
                                                                                        -57-


with the Dayton Police Department, and that he performed the AA testing on Warren’s

hands, and Gary Shaffer testified that he is employed as a forensic chemist at the Miami

Valley Regional Crime Laboratory. Shaffer testified as follows:

             In this particular situation, as far as what is known as gunshot residue

      analysis, what it consists of is that when bullets or primers of bullets are

      manufactured, they, the manufacturing companies put different types of

      elements that are normally placed into the primers in order to make them

      explode and propel the bullet and so forth. Two of those elements that are

      normally placed into the primers are what is known as antimony and barium,

      which are both metals in that they’re normally not commonly encountered

      in the every day [sic] environment but they are in situations involving

      firearms.

             When a firearm is discharged, these elements are expelled from the

      weapon, if you would, in a cloud or whatever, and if an individual’s hands

      are in close proximity to this discharging weapon, or if a weapon is

      contaminated with this residue and he handles it, or if the individual is, say,

      down range from a weapon and his hands are in that area, these elements

      can be deposited on an individual’s hands.

             And what is done at a crime scene or some other opportune time is

      that hand swabbings are obtained, which basically consist of Q-tips are

      actually swabbed on an individual’s hands. Normally, they’re swabbed on

      like the right palm, the right back, the left palm and the left back, each area

      having its own set of Q-tips, and these swabs are sent to the laboratory,
                                                                                             -58-


       and what I do is to analyze these swabs to determine if they have any

       significant amounts of antimony and barium on them. If they do, I can then

       say within a reasonable scientific certainty these amounts of antimony and

       barium are consistent with those found in situations involving gunshot

       residue.

       {¶ 69} Shaffer further testified as follows:

              Antimony, both elements, antimony and barium, are trace elements,

       but antimony is normally the rarer of the two. In other words, it’s less likely

       to find antimony than it would be barium in an every day [sic] situation. In

       order for me to say that something is consistent with gunshot residues, I

       need both antimony and barium present, so by running the antimony, which

       is generally the rarer of the two, if I find no antimony, at that point I can say,

       “Well, even if there is barium, there’s no antimony, so I can’t say that this is

       gunshot residue.” So normally, I run the antimony first, and then if it has

       sufficient levels, I’ll go ahead and run the barium to see if it’s sufficient also.

       But if I do not find any antimony, normally, I don’t test for barium.

       {¶ 70} After describing the process he used to test the Q-tips, Shaffer testified as

follows:

              Well, both these elements, even though they are considered trace

       elements, they are naturally occurring in the environment. In other words,

       certain individuals, through their work or whatever, can accumulate

       quantities of antimony and barium on their hands. Normally, though, most

       people will, won’t collect. If they have any at all, they might have some
                                                                                     -59-


      antimony but they won’t have barium, or they might have barium but they

      won’t have antimony. So the reason I test for both is that it, more or less,

      since antimony and barium are known to be present in the cartridge case, I

      need to have both of them there to kind of ensure that these are at least

      consistent with gunshot residue.

      {¶ 71} Shaffer testified that Warren’s “swabs marked right palm were the only

swabs that had both antimony and barium in sufficient quantities.” According to Shaffer,

the test “reveals that his hands, the amounts of antimony and barium are consistent with

an individual who has had his hands in an environment of gunshot residue. In other

words, his hand are [sic] consistent with coming in contact with gunshot residue. How

that actual contact came about I can’t say with any scientific certainty.”       Shaffer

continued as follows:

             Several possibilities are an individual could actually fire a weapon;

      he could handle a contaminated weapon; he could be, for example, a victim

      of a shooting where someone fires a weapon and residue gets on his hands

      that way. Those are basically the main three, or even, for example, he

      could possibly handle some kind of contaminated ammunition or something,

      but to pinpoint exactly saying, “Yes, this man fired a weapon,” I can’t say

      that with any scientific certainty.

      {¶ 72} The following exchange occurred:

             Q. Are you familiar with the term, as it relates to antimony and

      barium and gunshot residue, with the term transference?

             A. Yes, sir.
                                                                                  -60-


       Q. What is that, please?

       A. Normally, the residues, say in an individual who fired a weapon

and his hand would be, if you would, contaminated with gunshot residues,

but residues normally don’t stay on an individual’s hand for a long period of

time. Normally, an individual, as long as he doesn’t wash his hands, the

residues will essentially be transferred or wiped away in say four to six hours

or something like that. These residues, when they are, for example, my

hand was contaminated and I touch this area here, it’s possible for someone

to come by and also touch that area and maybe pick some up.

       Q. What if an individual fired a gun and then later, I notice you do,

you sort of rub your hand together once in a while, would that transfer from

one location of the hand to the other location of the hand that’s being rubbed

together?

       A. Yes.

{¶ 73} The following exchange occurred on cross-examination:

       Q. * * * Although antimony is described by you as being rarer than

barium, you do agree there are occasions for people during the day to run

across either or both of those?

       A. Yes, sir.

       Q. They can run across either antimony or barium in a sufficient

quantity to have an effect on that test?

       A. Yes, sir.

       Q. And is fireworks a source of antimony?
                                                                                       -61-


               A. It is possible. I haven’t done any studies of that.

               Q. What about perhaps some pigments that be used in rubbers?

               A. I’m not aware of any, but it’s possible.

               ***

               Q. As a source of barium, do you know in your training as a chemist

      whether or not lubricating oils and grease contain barium?

               A. Some of them do, yes, sir.

               Q. What about the type of rubber compounds that would be used in

      tires?

               A. I’m not sure.

      {¶ 74} I further note the following exchange in the course of the cross-examination

of Hunt:

               Q. * * * The car crashed in the early morning hours of July 10th. I’m

      talking to you about the evening before and the afternoon before that. That

      would be July 9th. * * * You had occasion to spend time with Raymond and

      Antonio that day, didn’t you?

               A. Yes.

               Q. And at least some of the time that you were together with them

      involved the mopeds, correct, and the scooters?

               A. Right.

               Q. And the activities that day included both you and Antonio and

      Raymond working on those scooters, correct?

               A. Yeah.
                                                                                        -62-


             Q. And work included work with the tires, right?

             A. Right.

             Q. And also putting oil and grease into the scooters?

             A. Yeah.

             Q. And putting of the oil and gas into the scooters was something

      that you did, right?

             A. Yes.

             Q. And something that you saw Raymond do, didn’t you?

             A. Um hmmm.

             ***

             Q. That was something that went on during the day, correct?

             A. Correct.

             Q. Because you all were fixing on [sic] the bikes and then driving

      around through the neighborhood?

             A. Right.

             Q. That continued on even through into the evening?

             A. Right.

      {¶ 75} The above record reflects that defense counsel thoroughly cross-

examined Shaffer about potential alternative sources for any positive results for gunshot

residue, and Shaffer testified that he “can’t say * * * with any scientific certainty” that

Warren fired a weapon. Shaffer further indicated that antimony and barium “are naturally

occurring in the environment. In other words, certain individuals, through their work or

whatever, can accumulate quantities of antimony and barium on their hands.” Shaffer
                                                                                         -63-


indicated that the trace elements can further be transferred from one location to another.

He further indicated that some lubricating oils and grease contain barium, and that

fireworks may contain antimony. The record accordingly reflects that Shaffer did not

persist in any conclusion that Warren fired a weapon on the night of the shooting, and

defense counsel further adduced evidence in the course of Hunt’s cross-examination that

Warren was exposed to other potential sources of the trace elements before the shooting

while working on the scooter, namely tires, grease and oil. Finally, I note that the article

submitted by Warren does not set forth definitive guidelines for GSR testing. I conclude

that Warren’s arguments regarding newly discovered evidence of gunshot residue testing

fail.

        {¶ 76} Based upon the foregoing, I conclude that an abuse of discretion is not

demonstrated.      As noted above, even if I were to conclude that Warren had no

knowledge of and was unavoidably prevented from discovering the evidence upon which

he relies, he has not adequately explained the undue delay in filing his motion.

Accordingly, I would overrule his first assigned error.     Finally, since the documents

attached to his motion do not on their face support a conclusion that he was unavoidably

prevented from discovering the evidence within the time provided by statute, he is not

entitled to a hearing on the motion, and I would therefore overrule his second assignment

of error. I would affirm the judgment of the trial court.

        {¶ 77} I very respectfully dissent.

                                         ..........

Copies mailed to:

Michele D. Phipps
Joanna Feigenbaum
                              -64-


Hon. Mary Katherine Huffman
