[Cite as State v. Keith, 2017-Ohio-5488.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                              CRAWFORD COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 3-17-01

        v.

KEVIN A. KEITH,                                            OPINION

        DEFENDANT-APPELLANT.




                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 94-CR-0042

                                       Judgment Affirmed

                              Date of Decision:   June 26, 2017




APPEARANCES:

        Rachel Troutman and Zachary M. Swisher for Appellant

        Matthew E. Crall and Robert J. Kidd for Appellee
Case No. 3-17-01


SHAW, J.

       {¶1} Defendant-appellant, Kevin Keith (“Keith”), brings this appeal from the

January 13, 2017, judgment of the Crawford County Common Pleas Court denying

Keith’s “Motion for Leave to File Delayed Motion for New Trial Based on Newly

Discovered Evidence.”

                          Facts and Procedural History

       {¶2} In February of 1994 Keith was indicted for three counts of Aggravated

Murder with capital-offense specifications and three counts of Attempted

Aggravated Murder. Following a two-week jury trial, Keith was found guilty of all

counts against him. The jury recommended, and the trial court imposed, a death

sentence for each of the Aggravated Murder counts. This Court affirmed the

convictions and sentence in State v. Keith, 3d Dist. Crawford No. 1996 WL 156710.

The Supreme Court of Ohio then reviewed and affirmed the convictions and

sentence in State v. Keith, 79 Ohio St.3d 514 (1997).

       {¶3} In the Supreme Court of Ohio’s opinion affirming Keith’s convictions

and sentence, the following facts were presented, which we quote from at length to

provide context for the current appeal.

            On the evening of February 13, 1994, Marichell Chatman,
       her seven-year-old daughter, Marchae, and Richard Warren,
       who had been living with Marichell and Marchae for several
       weeks, were at Marichell’s apartment in the Bucyrus Estates. At
       the time, Marichell was babysitting her young cousins, Quanita
       and Quinton Reeves. At approximately 8:45 p.m., Marichell’s

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      aunt, Linda Chatman, arrived at the apartment to pick up
      Quanita and Quinton, Linda’s niece and nephew.

           A few minutes after Linda arrived, Warren, momentarily
      diverted from a basketball game he was watching on television,
      noticed a man standing outside the apartment door. Although the
      man began to walk away without knocking, Warren opened the
      door. The man turned and asked for Linda.

           While Linda went outside and spoke with the man, Marichell
      told Warren the man’s full name. Although Warren could recall
      only the first name, Kevin, he later identified appellant as the man
      at the door. Marichell also mentioned that Kevin had been
      involved in a big drug bust.

            After a short time, Linda and appellant returned to the
      apartment, where appellant and Warren had a brief
      conversation. According to Warren, appellant appeared to have
      his turtleneck shirt pulled up over the bottom part of his face and
      even drank a glass of water through it.

           After drinking the glass of water, appellant pulled a nine-
      millimeter handgun from a plastic bag he carried and ordered
      everyone to lie on the floor. Appellant repeatedly scolded
      Marichell for using his first name when she asked what he was
      doing and why. Despite Marichell’s pleas with appellant on
      behalf of the children, appellant placed the gun to her head. After
      ordering Marichell to be quiet, appellant said, “Well, you should
      have thought about this before your brother started ratting on
      people.” Marichell responded, “Well, my brother didn’t rat on
      anybody and even if he did, we didn't have anything to do with
      it.” Testimony at trial confirmed that Marichell’s brother, Rudel
      Chatman, was a police informant in a drug investigation involving
      appellant. According to the presentence report, the month prior
      to the murders, appellant was charged with several counts of




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         aggravated trafficking.1

               Next, Warren heard a gunshot but was forced to turn away
         when a bullet struck him in the jaw. Warren heard ten to twelve
         additional shots, two more striking him in the back. After he
         heard the apartment door close, Warren ran out of the
         apartment, across a snow-covered field to Ike’s Restaurant,
         yelling for help. Four or five more shots were fired, one striking
         him in the buttocks and knocking him down. Warren was able to
         get up and obtain help from the restaurant.

              Another Bucyrus Estates resident, Nancy Smathers, heard
         several popping noises at approximately 9:00 p.m. As she looked
         out her front door, Smathers saw a large, stocky black man run
         to the parking lot and get into a light-colored, medium-sized car.
         As the car sped away, it slid on the icy driveway and into a
         snowbank. When the driver got out of the car, Smathers noticed
         that the car’s dome light and the light around the license plate did
         not work. The driver rocked the car back and forth for nearly
         five minutes before he was able to free the car from the snowbank.
         Several weeks later, Smathers informed Bucyrus Police Captain
         Michael Corwin that, after seeing appellant on television, she was
         ninety percent sure appellant was the man she had seen that night.

               When medical personnel arrived at the Bucyrus Estates
         apartment, Linda and Marichell Chatman were dead, having
         suffered multiple gunshot wounds, including fatal wounds to the
         neck or head. All three children initially survived the attack.
         However, Marchae’s two gunshot wounds to her back proved
         fatal. The Reeves children each sustained two bullet wounds and
         serious injuries.

              Approximately eight hours after the shootings, Warren was
         recovering from surgery at a Columbus hospital. During a

1
  Although the Supreme Court of Ohio only cites the presentence report as indicating that the month prior to
the murders Keith was charged with several counts of aggravated trafficking, there was testimony about this
issue during the trial itself for the jury to consider. Lieutenant David Dayne of the Galion Police Department
testified that Rudell Chatman, Marichell’s brother, worked with police on a “covert drug operation[]”
regarding Keith, which resulted in a series of indictments, including four counts of “trafficking” against
Keith. (Trial Tr. at 589-90). According to Dayne, Keith was “out on bond” on those trafficking charges at
the time of the murders in this case. (Id. at 590).

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      postoperative interview with a nurse, Warren wrote “Kevin” on
      a piece of paper as the name of his assailant. Later that day,
      Bucyrus Police Captain John Stanley had two telephone
      conversations with Warren. During the second conversation,
      Stanley mentioned three or four possible last names for Kevin. At
      trial, Stanley could only recall that he mentioned the names Kevin
      Thomas and Kevin Keith. Warren stated that he was seventy-five
      percent sure the name he heard from Marichell was Kevin Keith.
      When shown a photo array of six suspects, Warren chose
      appellant’s picture and told police he was ninety-five percent sure
      that appellant was the murderer.

           Investigators recovered a total of twenty-four cartridge
      casings from the crime scene area, which had all been fired from
      the same gun. In addition to those, investigators recovered a
      casing found on the sidewalk across from the entrance to a
      General Electric plant. On the night of the murders, appellant
      picked up his girlfriend, Melanie Davison, from work at the
      entrance to the General Electric plant where the casing was
      found.

            At the snowbank where Smathers witnessed the getaway car
      slide, investigators made a cast of the tire tread and of the
      indentation in the snowbank made by the car’s front license plate
      number—“043.” The indentation from the license plate matched
      the last three numbers of a 1982 Oldsmobile Omega seized from
      Melanie Davison shortly after she visited appellant in jail, under
      the pseudonym of Sherry Brown, a few weeks after the murders.

           The Oldsmobile was registered to Alton Davison, Melanie’s
      grandfather, and was also regularly used by Melanie. Davison
      had put four new tires on the Omega six months prior to the
      murders. Davison estimated that by February 1994, the new tires
      had been driven less than 3,000 miles without any problems or
      need for replacement. Although the cast taken of the tire tread at
      the crime scene did not match tires found on the Oldsmobile
      Omega one month later, the cast did match the tread of the tires
      purchased by Alton Davison as shown on the tire’s sales



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Case No. 3-17-01


         brochures.2 Additionally, the tires found on the Oldsmobile
         Omega had been manufactured in January 1994 and showed a
         minimal amount of wear.3

         ***

         After a two-week trial, a jury found appellant guilty of all counts.

State v. Keith, 79 Ohio St.3d 514, 514-517. (1997)

         {¶4} Following the Supreme Court of Ohio’s affirmance of Keith’s

convictions and his sentence in 1997, Keith filed numerous post-conviction

petitions, habeas corpus petitions, and motions for a new trial, which included

motions for a new trial based on “newly discovered evidence.” All of Keith’s

arguments have been analyzed and repeatedly rejected by the courts reviewing

them, whether State or Federal.4


2
  Michelle Yezzo, whose testimony is primarily at issue in this appeal, testified that the partial tire imprint
was similar to the tire markings in the brochure.
3
  We would add that testimony at trial indicated that the seized vehicle’s dome light did not work and that
the license plate light did not work either, corroborating the testimony of Smathers.
4
  This Court provided a history of Keith’s various attempts to overturn his conviction up to 2011 in State v.
Keith, 3d Dist. Crawford No. 3-10-19, 2011-Ohio-407. The following is a brief summary of that history.
Keith filed his first petition for post-conviction relief in 1998, which was denied and the denial was affirmed
on appeal. State v. Keith, 3d Dist. No. 3-98-05, 1998 WL 487044. In 1999 Keith filed a habeas corpus
petition in a federal district court presenting eight grounds for relief, which was denied in 2001. That habeas
petition was appealed and denied on appeal by the Sixth Circuit. Keith v. Mitchell, 455 F.3d 662 (C.A.6,
2006). In 2004 Keith filed a second petition for postconviction relief, which was denied, appealed to this
Court, and the denial was affirmed. In 2007, Keith filed a motion for leave to file a delayed motion for new
trial, which was denied, and he also filed a motion to reopen his direct appeal which was denied and affirmed
by the Supreme Court of Ohio. State v. Keith, 119 Ohio St.3d 161, 2008-Ohio-3866. In 2008 Keith filed a
motion for an evidentiary hearing for his motion for new trial, which was denied and affirmed on appeal.
State v. Keith, 3d Dist. Crawford No. 3-08-15, 2008-Ohio-6187. In 2009 the Sixth Circuit Court of Appeals
denied Keith’s request to have a second habeas corpus petition considered. Keith v. Bobby, 551 F.3d 555
(2009). In May of 2010, Keith filed another motion for leave to file a delayed motion for a new trial arguing
that the State had improperly suppressed evidence. The trial court denied that motion and it was affirmed by
this Court on appeal. State v. Keith, 3d Dist. Crawford No. 3-10-19, 2011-Ohio-407. In March of 2014, it
appears that Keith filed another Habeas petition in United States District Court, which was transferred to the
Sixth Circuit Court of Appeals due to being a successive petition. See Keith v. LaRose, N.D. Ohio, 2014 WL
1369655.

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Case No. 3-17-01


        {¶5} After the exhaustion of his appeals, Keith was scheduled to be executed

on September 15, 2010. However, on September 2, 2010, Keith’s sentence of death

was “commuted to a term of life in prison without the possibility of parole” by then-

Governor Ted Strickland.5 (Doc. 232).

        {¶6} After Keith’s sentence was commuted to life in prison, Keith filed

multiple, additional motions for a new trial, one of which was denied and one which

was dismissed.

        {¶7} On October 28, 2016, Keith filed another motion titled, “Motion for

Leave to File Delayed Motion for New Trial Based on Newly Discovered

Evidence,” which is the primary subject of the current appeal. (Doc. No. 263). In

his “Motion for Leave,” Keith argued that he had obtained the personnel file of the

State’s forensic expert, G. Michelle Yezzo, which had not been provided to him in

discovery prior to his trial. Keith contended that Yezzo’s personnel file contained

statements dating back to 1989 which indicated that some of Yezzo’s coworkers felt

she was mentally unstable, that Yezzo had used racial slurs, that Yezzo had a

reputation among her coworkers for “stretch[ing] the truth to satisfy a department,”

and that Yezzo’s coworkers thought that her findings and conclusions regarding




5
  We would note that in his brief, Keith states that Governor Strickland commuted his sentence to a life
sentence, “citing doubts about Keith’s guilt as his reasoning for the commutation.” (Appt.’s Br. at 1).
Nowhere in the Warrant of Commutation of Sentence, which is included in the record, does Strickland cite
“doubts” specifically about Keith’s “guilt.”

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Case No. 3-17-01


evidence “may be suspect.”6 Keith claimed that Yezzo’s testimony was critical in

convicting him by linking him to the car that fled the murder scene that got stuck in

the snow as witnessed by Smathers. Keith argued that the information contained in

Yezzo’s personnel file would have been significant impeachment evidence of the

State’s forensic expert.

        {¶8} Keith contended that he had no knowledge of the information contained

in Yezzo’s personnel file until 2016, that he certainly was not provided Yezzo’s

personnel file prior to his trial by the State, and that the State had not provided the

personnel file at any time since. Further, Keith argued that BCI initially denied a

public records request filed by Keith’s counsel regarding Yezzo in 2009, though

that request did not seek Yezzo’s personnel file. Keith did eventually obtain the

records he sought in the 2009 public records request, though not Yezzo’s personnel

file because it was not requested; nevertheless, Keith speculated that access to

Yezzo’s personnel file would have been denied like his original 2009 public records

request, establishing that he was unavoidably prevented from obtaining Yezzo’s

personnel records.

        {¶9} Keith supported his “Motion for Leave” by citing a separate trial court

case, State v. Parsons, Huron No. CR930098, wherein the Huron County Common

Pleas Court granted a defendant leave to file a motion for a new trial on the basis of


6
 Daniel L. Chilton, “Assistant Superintendent,” catalogued the complaints of Yezzo’s peers from a meeting
of the “Mircro Section,” and wrote them in a memo to Paul Ferrara, the Superintendent on May 11, 1989.

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Case No. 3-17-01


the State’s failure to disclose Yezzo’s personnel file in a 1993 murder case. Later,

the same trial court actually granted the defendant a new trial based on the State’s

failure to disclose Yezzo’s personnel file and the impeachment evidence contained

therein. In doing so, the Huron County Common Pleas Court found that Yezzo’s

testimony was “important and significant in establishing [a specific] tool as the

murder weapon and ultimately securing a conviction for the State.” (Doc. No. 265,

Ex. 17). According to the Huron County Common Pleas Court’s entry, Parsons was

only charged with murder over 10 years after the actual murder of his wife, and the

trial court speculated that the cold case was perhaps only pursued on the basis of

Yezzo’s forensic findings linking the perceived murder weapon to Parsons. (Id.) In

this case, Keith contended that his situation was similar to Parsons, arguing that

Yezzo’s testimony was critical in convicting him, and that at the very least his

“Motion for Leave” should be granted.

       {¶10} In the exhibits Keith included with his “Motion for Leave,” Keith

attached the affidavit of Lee Fisher, who was Ohio’s Attorney General from 1991-

1995. Fisher’s affidavit stated that had he known in 1994 what he knows now

regarding Yezzo’s personnel file he “would not have permitted Ms. Yezzo to

provide testimony against Kevin Keith. I also would have ordered the submitted

evidence to be reanalyzed by a separate analyst.” (Doc. No. 265, Ex. 3, p.3).




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Case No. 3-17-01


         {¶11} By way of context regarding Yezzo’s testimony during Keith’s trial

specifically, Yezzo testified via a trial deposition that was read into the record.7

Yezzo’s testimony indicated that she had been at BCI for over 17 years, that she had

testified over 200 times in 49 counties in Ohio and that she had been qualified as an

expert in prior cases. Specifically regarding this case, Yezzo testified that she was

able to identify the numbers “043” in the region of the purported license plate area

from impressions the license plate left in the snow bank when the vehicle was stuck,

and that the numbers from the plate were in an area similarly placed to what they

would be on the vehicle linked to Keith. Yezzo also testified that the tire tracks left

at the scene were similar in tread pattern to the pattern in a tire brochure that had

been submitted to her. Other witnesses were used to establish that the tires had been

recently changed on the vehicle linked to Keith.

         {¶12} However, it is also important to note that on cross-examination Yezzo

indicated that she could not state with certainty that the license plate from the vehicle

linked to Keith was the one that made the impression in the snow. In fact, Yezzo

acknowledged that defense counsel had a list of numerous vehicles containing the



7
  At oral argument, Keith’s attorneys insinuated that a trial deposition was used because Yezzo was on
administrative leave from BCI for the issues specific to this case, such as her work performance. This is not
accurate. The record indicates that Yezzo was placed on leave “to explore allegations of threatening
statements that [Yezzo] made regarding an employee or employees of the Bureau of Criminal Identification
& Investigation.” Yezzo’s personnel file details these purported threats, which Yezzo addressed and her
responses were contained in the record. There is absolutely no indication that Yezzo was placed on leave for
the allegations now being raised regarding substandard work or for falsifying documents to satisfy law
enforcement.

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Case No. 3-17-01


sequential digits “043” from Richland and Crawford Counties alone.             This

supported the theory put forth by Keith’s trial counsel to the jury that there were

several other potential suspects, including Bruce Melton and Rodney Melton who

had access to a car that had the sequential digits “043” in it.

       {¶13} Yezzo also testified on cross-examination that she analyzed sweepings

taken from the vehicle linked to Keith, and found no fibers inside connecting it to

the murders. As to the tire tread similarities, Yezzo testified that she could only

state that the tread pattern from the impression left in the snow was “similar” to

those provided to her in a brochure because she only had a partial tread design from

the print. (Yezzo Depo. Tr. at 23). Finally, defense counsel was able to get Yezzo

to acknowledge that Keith’s footwear, which had been obtained when Keith was

later arrested, did not match the prints left at the scene.

       {¶14} On the same date that he filed his “Motion for Leave,” Keith also filed

a document titled, “Motion for New Trial Based on Newly Discovered Evidence

and/or Post-Conviction Relief Under Ohio Rev. Code § 2953.23.” In the motion

Keith argued more specifically that Yezzo’s testimony was critically important in

convicting him and that it was thus essential to have the “newly discovered

evidence” to impeach Yezzo pursuant to Brady v. Maryland, 373 U.S. 83 (1963),

and the State did not provide the file. Separately, Keith made essentially the same




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Case No. 3-17-01


arguments in the context of a successive petition for post-conviction relief under

R.C. 2953.23.

       {¶15} On October 31, 2016, the trial court filed an entry determining that

Keith’s actual “Motion for New Trial” was file-stamped erroneously by the clerk of

courts, as it could not have been deemed to be filed until the court granted leave.

The trial court then ordered a briefing schedule for the State to respond to Keith’s

“Motion for Leave” and for Keith to reply in support of his motion.

       {¶16} Subsequently the State filed its brief in response to Keith’s “Motion

for Leave.” The State argued Yezzo’s personnel records were not required pursuant

to Brady because the State was not aware of Yezzo’s records, the State did not have

them, and that in any event Yezzo’s personnel records were not material to Keith’s

trial. The State argued that the portions Keith cited from Yezzo’s personnel file

calling her unstable, her conclusions unreliable, and questioning her integrity were

actually from a summary of complaints made by Yezzo’s coworkers during a union

action, not any of her superiors. The State argued that there was no indication that

any disciplinary action or other internal adjudication was ever taken against Yezzo

on these issues or that the opinions of Yezzo’s coworkers were the opinions of the

BCI administration. In fact, the State argued that Yezzo’s personnel file contained

yearly reports with almost universally positive performance reviews. Moreover, the

State argued that the evidence in Yezzo’s personnel files would not have been


                                       -12-
Case No. 3-17-01


admissible at trial regardless as the pertinent documents contained improper hearsay

within hearsay and improper character evidence.

       {¶17} Furthermore, as to the testimony provided by Yezzo at trial more

specifically, the State argued that a layman could clearly see the imprint of the

license plate numbers “043” that were imprinted in the snowbank in this case and

that a police officer actually stated this himself at trial separate from Yezzo’s

testimony, meaning that Yezzo added almost nothing with regard to the license plate

number. As to the tire imprint, the State argued that Yezzo merely testified that the

tire tracks were similar to tires that had purportedly been on the car at one time and

that a separate witness testified that the tires had been changed without the

permission of the owner.

       {¶18} Finally, the State argued that Keith was required to clearly and

convincingly show that he was unavoidably prevented from discovering the new

evidence and he could not do so here. However, the State argued that even if Keith

could show he was unavoidably prevented from discovering Yezzo’s personnel file,

the evidence against Keith was simply overwhelming in this case, particularly given

the eyewitness testimony.

       {¶19} On November 21, 2016, Keith filed a reply memorandum in support

of his “Motion for Leave.” Separately, Keith also filed a “Motion to Supplement

Motion for Leave to File Delayed Motion for New Trial and Successor Petition for


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Case No. 3-17-01


Post-Conviction Relief Under R.C. § 2953.23.” In his “Motion to Supplement,”

Keith argued that in a separate case in 2003, not involving Keith, there was a public

records request for Yezzo’s personnel files and the response to that request did not

include the most damaging information against Yezzo from her personnel file.

Keith argued that this further proved he was unavoidably prevented from

discovering the information in Yezzo’s personnel file. Keith also specifically noted

that leave of court was not required to file a successive petition for post-conviction

relief, “thus it is unclear what is the effect of those claims on this Court’s October

31, 2016 ruling,” which had determined that Keith’s “Motion for New Trial” was

improperly file-stamped by the clerk of courts. (Doc. No. 270, fn. 1).

       {¶20} On January 13, 2017, the trial court issued a 13-page judgment entry

on the matter denying Keith’s “Motion for Leave.” In its entry, the trial court

summarized the parties’ arguments, the applicable legal standards, Yezzo’s

testimony, and then conducted an analysis of the matter. In its analysis, the trial

court also noted that Yezzo was subject to cross-examination during her trial

deposition, wherein defense counsel could have explored her qualifications,

deficiencies and disciplinary actions. The trial court noted that even though defense

counsel did not probe these areas, it did not mean the information was unavailable

to the defense.




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Case No. 3-17-01


       {¶21} The trial court also determined that the information contained in

Yezzo’s personnel file was available through a public records request, that defense

counsel made a request for public records in 2009 but did not include Yezzo’s

personnel file at that time, and that defense counsel failed to show the information

was unavailable at the time of trial.

       {¶22} The trial court concluded by determining that Keith had to show by

clear and convincing evidence that the information in Yezzo’s personnel file was

unavailable to him with the exercise of reasonable diligence and he had failed to

meet that standard as the information in Yezzo’s personnel file could have been

obtained through cross-examination or a public records request. Keith’s “Motion

for Leave” was thus denied. Keith then filed an appeal of the denial of his “Motion

for Leave” with this Court, asserting the following assignments of error for our

review.

                            Assignment of Error No. 1
       The trial court erred in denying appellant’s motion for leave to
       file a new trial motion based on newly discovered evidence.

                           Assignment of Error No. 2
       The trial court erred in holding that Keith failed to demonstrate
       a Brady violation.

                          Assignment of Error No. 3
       The trial court erred in striking the filing of Keith’s successor
       post-conviction petition and new trial motion.




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Case No. 3-17-01


                             First Assignment of Error

       {¶23} In his first assignment of error, Keith argues that the trial court abused

its discretion in denying his motion for leave to file a motion for a new trial based

on newly discovered evidence.

       {¶24} The time for filing a motion for a new trial based on newly discovered

evidence is governed by Crim.R. 33(B). It reads, in pertinent part,

       Motions for new trial on account of newly discovered evidence
       shall be filed within one hundred twenty days after the day upon
       which the verdict was rendered, or the decision of the court where
       trial by jury has been waived. If it is made to appear by clear and
       convincing proof that the defendant was unavoidably prevented
       from the discovery of the evidence upon which he must rely, such
       motion shall be filed within seven days from an order of the court
       finding that he was unavoidably prevented from discovering the
       evidence within the one hundred twenty-day period.

       {¶25} Crim.R. 33(B) has thus been interpreted as having “a two-step

procedure when a defendant seeks to file a motion for new trial outside the 120–day

deadline.” State v. Howard, 10th Dist. Franklin No. 15AP-161, 2016-Ohio-504, ¶

48. “In the first step, the defendant must demonstrate that he was unavoidably

prevented from discovering the evidence relied upon to support the motion for new

trial.” State v. Bethel, 10th Dist. No. 09AP–924, 2010-Ohio-3837, 2010 WL

3239480, ¶ 13. In the second step, if the defendant does establish unavoidable

prevention by clear and convincing evidence, the defendant must file the motion for

new trial within seven days from the trial court’s order finding unavoidable


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Case No. 3-17-01


prevention. Id., citing State v. Woodward, 10th Dist. Franklin No. 08AP–1015,

2009-Ohio-4213.

       {¶26} “A defendant demonstrates he was unavoidably prevented from

discovering the new evidence within the 120–day time period for filing a motion for

new trial when the defendant ‘had no knowledge of the evidence supporting the

motion for new trial and could not have learned of the existence of the evidence

within the time prescribed for filing such a motion through the exercise of

reasonable diligence.’ ” Howard at ¶ 49, quoting Bethel at ¶ 13, citing State v.

Berry, 10th Dist. Franklin No. 06AP–803, 2007-Ohio-2244, ¶ 19. “Clear and

convincing proof that the defendant was ‘unavoidably prevented’ from filing

‘requires more than a mere allegation that a defendant has been unavoidably

prevented from discovering the evidence he seeks to introduce as support for a new

trial.’ ” State v. Lee, 10th Dist. Franklin No. 05AP–229, 2005-Ohio-6374, ¶ 9,

quoting State v. Mathis, 134 Ohio App.3d 77, 79 (1st Dist.1999). The standard of

clear and convincing evidence has been defined by the Supreme Court of Ohio as

“proof which is more than a mere ‘preponderance of the evidence,’ but not to the

extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,

and which will produce in the mind of the trier of facts a firm belief or conviction

as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954),

paragraph three of the syllabus.


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Case No. 3-17-01


         {¶27} We review a trial court’s decision granting or denying a Crim.R. 33(B)

motion for leave to file a delayed motion for a new trial under an abuse of discretion

standard.8 Howard, supra, at ¶ 46. An abuse of discretion is a decision that implies

the court’s determination was arbitrary, unreasonable, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

         {¶28} With the preceding standards in mind, we must thus determine

whether the trial court abused its discretion in finding that Keith failed to

demonstrate by clear and convincing evidence that he was unavoidably prevented

from discovering Yezzo’s personnel file and the statements contained therein.

         {¶29} In denying Keith’s “Motion for Leave” in this case, the trial court

made two primary findings: 1) Yezzo was subject to cross-examination and Keith

could have attacked her qualifications and performance in her trial deposition in

order to learn about her, particularly on any disciplinary issues, but he chose not to

do so; and 2) Keith did not meet his burden to establish that Yezzo’s personnel file

was unavailable through a public records request.




8
  Had the trial court granted Keith leave to actually file a motion for a new trial, we would also review the
trial court’s decision on the motion for a new trial itself under an abuse of discretion standard. However, in
order to actually obtain a new trial, Keith would have to show far more than he was unavoidably detained
from discovering the evidence. He would have to show that “the new evidence (1) discloses a strong
probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is
such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the
issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the
former evidence.” State v. Petro, 148 Ohio St. 505 (1947), at syllabus. As will be discussed infra Keith
cannot establish that there was a strong possibility the evidence would change the result of his trial, and he
would have difficulty establishing multiple other provisions under Petro as well.

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       {¶30} On appeal, Keith claims that both of the trial court’s findings were

erroneous. He contends that with regard to the cross-examination of Yezzo, the

pertinent impeachment evidence was not disclosed by the State and unknown by the

defense thus cross-examination could not cure the issue, and with regard to the

public records request, Keith claimed that in other cases unrelated to Keith it had

proven difficult to obtain Yezzo’s personnel file. Further, Keith argued that a public

records request regarding Yezzo in 2009 that did not request her personnel file was

initially denied.

       {¶31} We will address the trial court’s second finding regarding Keith’s

ability to make a public records request as it is dispositive of this assignment of

error. In its entry on the matter, the trial court noted that the record did not show

that Keith’s original defense counsel attempted to obtain any information

concerning Yezzo’s personnel file prior to trial. The trial court added that Keith did

not establish by clear and convincing evidence that he could not obtain Yezzo’s

personnel file through a public records request prior to the time of his trial or within

a reasonable time thereafter. The trial court further stated that Keith seemingly

waited 15 years to request any public records regarding Yezzo and that when Keith

made a public records request in 2009, the request still did not even include Yezzo’s

personnel file. Thus the trial court determined that Keith failed to meet his burden

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


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Yezzo’s personnel file prior to 2016, as the record is devoid of any actual indication

that such an attempt was made and denied.

       {¶32} While Keith points to other cases where Yezzo’s personnel file may

have been left out of discovery or portions of Yezzo’s file may not have been

disclosed, as the trial court noted we have no true knowledge of what was sought

and what was turned over in those cases thus those cases are of very little value. In

addition, Keith cites to his own attempt to obtain public records regarding Yezzo in

2009, which was initially denied, but the denial, as stated in emails included in the

record, was based on Keith’s ongoing federal litigation. Nevertheless, Keith did

eventually obtain the records he sought. Thus none of the cases cited by Keith,

including his own 2009 attempt, establish that the trial court abused its discretion

by determining that Keith did not establish by clear and convincing evidence that

he was unavoidably prevented from obtaining Yezzo’s personnel file via a public

records request.

       {¶33} On the basis of the record before us, we cannot find that the trial court

abused its discretion. It was Keith’s burden to establish that he was unavoidably

prevented from obtaining Yezzo’s personnel file and there is simply no indication

other than pure speculation that he would have been unable to obtain Yezzo’s file

through a public records request. As we have found that the trial court did not abuse

its discretion based on the public records request issue, we need not discuss the trial


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court’s separate finding regarding cross-examination.      Therefore, Keith’s first

assignment of error is overruled.

                            Second Assignment of Error

       {¶34} In Keith’s second assignment of error, he argues that the trial court

erroneously rejected Keith’s claim of a Brady violation in this case. Brady v.

Maryland, 373 U.S. 83 (1963).

       {¶35} The Supreme Court of the United States has held that there are three

essential components of a Brady violation:        1) the State either willfully or

inadvertently suppressed evidence, 2) the evidence was favorable to the accused,

and 3) there was resulting prejudice. Strickler v. Greene, 527 U.S. 263 (1999).

       {¶36} On appeal, Keith claims that the State at least inadvertently suppressed

Yezzo’s personnel file, that Yezzo’s file contained evidence favorable to Keith as it

was impeachment evidence of a witness he characterized as “critical,” and he argues

that absent Yezzo’s testimony the evidence linking Keith to the crime was minimal.

       {¶37} The State counters by stating that even assuming the evidence was

favorable to Keith, and even assuming it had been inadvertently suppressed by the

State, the information contained in Yezzo’s personnel file would not have changed

the outcome of this case. The State maintains that the statements in Yezzo’s

personnel file that Keith argues are damaging were statements made by coworkers

and catalogued by administrators, making the statements hearsay within hearsay and


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inadmissible at trial even if they were discovered. The State also contends that Keith

could not introduce the statements anyway as they were improper character

evidence pursuant to Evid.R. 608(B).

       {¶38} In our own review of the matter, even if we assumed, without finding,

that the State inadvertently suppressed Yezzo’s personnel file, and even if we

assumed that Yezzo’s personnel file contained evidence favorable to Keith, we

absolutely could not find in the circumstances of this case that prejudice resulted

here. Keith may claim that Yezzo was a critical witness tying him to the crime, but

Yezzo provided testimony regarding a license plate number that was elicited

elsewhere such as through the testimony of Patrolman Edward Wilhite of the

Crestline Police Department and David Barnes of BCI, and she provided limited

probative testimony regarding the tires at the scene. (Tr. At 424, 478-79). In fact,

Yezzo actually provided one key piece of evidence for the defense, being that the

footprints taken from the scene did not match later-acquired footwear from Keith.

       {¶39} A thorough review of the transcripts further reveals that the primary

testimony linking Keith to the crime was from Warren and Smathers. Warren

specifically identified Keith at trial as the man who shot him. As he woke up in the

hospital after the shooting, Warren remembered the name “Kevin” as the person

who shot him. He later gave the last name “Keith” when presented with possible

last names of the shooter. Warren also recalled specific discussions on the night of


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the murder that the man who came to the house was Kevin Keith and that he had

been part of a drug bust recently, which was actually true of Keith, giving further

credibility to Warren’s identification. Then, Warren also picked Keith out of a

photo lineup. Warren was thus able to identify Keith through multiple means as the

shooter.

        {¶40} Furthermore, Nancy Smathers identified Keith at trial as the man she

saw getting stuck while trying to leave the scene. Smathers also testified that the

dome light did not work on the car Keith was driving, and that the license plate light

did not work. When the car Keith was using was seized, both of those things were

found to be true, corroborating her story, and also adding credibility to Smathers’

eyewitness identification. Smathers’ testimony alone links Keith to the car, even if

Yezzo had never testified at all in this case. Moreover, a bullet casing was found

near the area where Keith picked his girlfriend up from work that matched the bullet

casings from the crime scene.

        {¶41} Over the years in his numerous appeals and post-conviction petitions

Keith has challenged many aspects of his case and the evidence against him, but one

fact remains clear, the evidence against Keith was simply overwhelming.9 Based

on the record we cannot find that, even assuming Yezzo’s personnel file was


9
  Both at his trial and following his convictions Keith has strongly pursued the defense that another man
committed the killings, specifically Rodney Melton. That theory was presented at trial, along with multiple
other individuals the defense contended were the potential killers. Rodney Melton, along with the others,
actually testified for the jury to see and hear and the jury rejected the defense’s theories.

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suppressed, and that it contained information favorable to Keith, there is no

reasonable possibility that the information contained in Yezzo’s file would have

made any difference in the outcome of this case.10

         {¶42} For all of these reasons, Keith’s second assignment of error is

overruled.

                                      Third Assignment of Error

         {¶43} In Keith’s third assignment of error, Keith argues that the trial court

erred by “striking” the filing of Keith’s successor post-conviction petition and his

actual “Motion for New Trial.”

         {¶44} As we have found that the trial court did not abuse its discretion in

denying Keith leave to file a new trial motion, any error in striking the actual motion

itself would be moot, and we will not further address it.

         {¶45} As to Keith’s claims that the trial court improperly struck his successor

post-conviction petition at the same time his “Motion for New Trial” was stricken,

the record simply does not support this statement. The trial court’s October 31,

2016, judgment entry only states that “the Motion for New Trial * * * cannot be

deemed to have been filed until the Court grants the Defendant leave to file such




10
  Although Keith presented a case out of the Huron County Common Pleas Court that found otherwise, the
facts of that case, from what little we have available, indicate that Yezzo’s testimony was absolutely critical
in reopening a cold case and convicting the defendant. Those circumstances are not remotely present here.
Further, one of the findings of Yezzo was clearly favorable to Keith in this matter, indicating perhaps a strong
desire by defense counsel not to challenge Yezzo’s credentials.

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motion.” The trial court made no mention of the successor petition for post-

conviction relief. If we assumed that the trial court’s entry “striking” the “Motion

for New Trial” also “struck” the successor post-conviction petition and effectively

dismissed it, then the proper time to appeal that dismissal would have been within

30 days of the trial court’s October 31, 2016, judgment entry.

         {¶46} However, Keith did file a “Motion to Supplement Motion for Leave to

File Delayed Motion for New Trial and Successor Petition for Post-Conviction

Relief Under R.C. § 2953.23” after his “Motion for a New Trial” was “stricken.”

When the trial court denied Keith’s “Motion for Leave” the trial court’s judgment

entry stated only that Keith’s “Motion for Leave” was denied. The entry does not

make any final determination with regard to the “Successor Petition for Post-

Conviction Relief.” Thus there is no final judgment dismissing this issue before

this Court to review, and any argument pertaining to it is not ripe.11 Accordingly,

Keith’s third assignment of error is overruled.

                                                 Conclusion

         {¶47} For the foregoing reasons Keith’s assignments of error are overruled




11
   We note that while it appears the trial court has not officially ruled on Keith’s successor petition for post-
conviction relief, the arguments are the same as they are in the motion for a new trial, thus there is little merit
to any further proceeding on the matter.

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and the judgment of the Crawford County Common Pleas Court is affirmed.

                                                          Judgment Affirmed

PRESTON, P.J. and ZIMMERMAN, J., concur.

/jlr




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