[Cite as State v. Bass, 2014-Ohio-2915.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :

v.                                                 :                  No. 13AP-1052
                                                                    (C.P.C. No. 01CR-6524)
James D. Bass,                                     :
                                                                   (REGULAR CALENDAR)
                 Defendant-Appellant.              :


                                           D E C I S I O N

                                       Rendered on June 30, 2014


                 Ron O'Brien, Prosecuting Attorney, Laura Swisher and
                 Barbara A. Farnbacher, for appellee.

                 Carpenter Lipps & Leland LLP, and Kort Gatterdam, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} Defendant-appellant, James D. Bass, is appealing from the trial court's
ruling on his motion for leave to file a motion for new trial. His assignment of error reads:
                 THE TRIAL COURT ERRED IN DENYING BASS'S MOTION
                 FOR LEAVE TO FILE A MOTION FOR NEW TRIAL.

        {¶ 2} Miles Davis was shot and killed in the early morning hours of September 11,
1999 at the Shell gas station located on Lockbourne Road on the south side of Columbus.
There were dozens of people in and around the gas station when the shooting occurred.
        {¶ 3} There is no doubt that Bass was present at the scene of the homicide. He
was found lying in some bushes nearby with a gunshot wound to his leg. He now
acknowledges having fired a gun that night, but claims he shot into the air, not at the
No. 13AP-1052                                                                              2


victim. Initially, however, Bass denied to police that he had a gun that night. Bass
claimed that he heard 10 to 11 gunshots, but none were from a gun he had fired.
       {¶ 4} Later, after police had received a report Bass was the shooter, Bass
acknowledged that the gun he had was a TEC-9. The bullet which killed Davis was
consistent with a TEC-9, but ballistics testing could not establish that the TEC-9 Bass had
was the murder weapon.        Similarly, the type of ammunition in Bass's TEC-9 was
consistent with the projectile which killed the victim, but Bass's ammunition could not be
identified as matching the projectile.
       {¶ 5} In 2000 and 2001, shortly after the shooting, Bass worked as an informant
for Columbus police giving information and helping to gather evidence about drug
trafficking and gang activity in the Columbus area. He even went to the point of wearing a
body wire in controlled drug buys. Due to fears for Bass's safety, the prosecutor's office
made a tape of a deposition of Bass that would be used as evidence should Bass become
unavailable to testify. The tape of Bass unfortunately made it out of the prosecutor's
office, was copied, and was made available for sale in various record stores and other
places around Columbus. This heightened concerns for the safety of Bass and even for his
family. As a result, the State took steps to protect him as he was now widely known as
someone who was working with the police. (Tr. Vol. I, 74.)
       {¶ 6} Bass was indicted on November 2, 2001 and charged with the murder of
Davis. Between the time of the shooting and the indictment, Bass's information had led to
many gang members being arrested, especially members of the Deuce-Deuce Bloods, a
gang with which Bass had been affiliated. Bass now argues that his cooperation with the
State had a chilling effect on his ability to mount an effective defense to the murder
charge. No one from the neighborhood would provide evidence to support his claims of
innocence; and no witnesses would make themselves available to Bass's investigator to be
interviewed.
       {¶ 7} Bass argues that key witnesses at his trial lied in retaliation for his being an
informant. Bass asserts that some witnesses, including Anthony Forrest, initially would
have testified more favorably on behalf of Bass but then testified against him after it
became publicly known that Bass was an informant. (Tr. Vol. I, 70.)
No. 13AP-1052                                                                             3


         {¶ 8} Bass went to trial and was convicted by a jury. On April 24, 2002, he was
sentenced to a total of 18 years to life for murder with a firearm specification. He pursued
an initial appeal before this court and we affirmed his conviction.
         {¶ 9} Bass did not pursue an appeal to the Supreme Court of Ohio in the time
allowed. His later effort to pursue an appeal to that court was disallowed.
         {¶ 10} Bass now is attempting to pursue a motion for a new trial, claiming he was
wrongly convicted and that one or more of the State's witnesses perjured themselves
when they testified against him.
         {¶ 11} Crim. R. 33 sets forth the requirements the defendant must follow for a new
trial:
               (A) Grounds. 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) Motion for new trial; form, time. Application for a
               new trial shall be made by motion which, except for the
               cause of newly discovered evidence, shall be filed within
               fourteen days after the verdict was rendered, or the decision
               of the court where a trial by jury has been waived, unless it is
               made to appear by clear and convincing proof that the
               defendant was unavoidably prevented from filing his motion
               for a new trial, in which case the motion shall be filed within
               seven days from the order of the court finding that the
               defendant was unavoidably prevented from filing such
               motion within the time provided herein.

               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
No. 13AP-1052                                                                            4


              was unavoidably prevented from discovering the evidence
              within the one hundred twenty day period.

       {¶ 12} We have previously summarized the conditions an appellant must meet in
order to be entitled to leave to file a delayed motion for new trial:
              To obtain leave to file a motion for new trial based upon
              prosecutorial misconduct, appellant must demonstrate "by
              clear and convincing proof" that he was "unavoidably
              prevented" from filing the motion within the 14-day time
              period. Crim.R. 33(B). To obtain leave to file a motion for a
              new trial based on newly discovered evidence, appellant
              must demonstrate by "clear and convincing proof" that he
              was "unavoidably prevented" from discovering the evidence
              relied upon to support the motion within the 120-day time
              period. '[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. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 9, quoting State v.
Walden, 19 Ohio App.3d 141, 145-46 (10th Dist.1984).
       {¶ 13} We review a court's denial of a motion for leave to file a delayed motion for
new trial under an abuse of discretion standard. State v. Townsend, 10th Dist. No. 08AP-
371, 2008-Ohio-6518. "The term 'abuse of discretion' connotes more than an error of law
or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An abuse of
discretion connotes more than an error of judgment; it implies a decision that is arbitrary
or capricious, one that is without a reasonable basis or clearly wrong. Pembaur v. Leis, 1
Ohio St.3d 89 (1982); In re Ghali, 83 Ohio App.3d 460 (10th Dist.1992).
       {¶ 14} Counsel centers their arguments around the following issue: "When the
State's failure to disclose exculpatory evidence is the reason the defendant was unable to
timely file a motion for new trial, a due process analysis must be applied on whether the
defendant was unavoidably prevented from discovering the new evidence; the state must
not benefit form its failure to disclose." (Appellant brief, at IV.)
No. 13AP-1052                                                                              5


       {¶ 15} Bass argues in his brief what exculpatory evidence he was unavoidably
prevented from discovering, which would be filed with his motion for new trial if the court
grants him leave to do so.
       {¶ 16} Darrell Farr was a witness for the State testifying that he saw Bass shoot
Davis. (Tr. Vol III, 213.) Farr was arrested as part of the September 2001 gang sweep
that netted most of the Deuce-Deuce Bloods. (Tr. Vol. III, 223.) Bass asserts that Farr
agreed to provide an affidavit recanting his trial testimony for the new trial motion.
Martin Yant, a private investigator for Bass, claims that Farr stated he (Farr) was not
present at the Davis shooting. Farr claimed he perjured himself to get a better deal in his
own criminal case. Farr stated he was willing to sign an affidavit that he did not witness
the shooting. (R. 253, exhibit F.) Farr was shot and killed in August 2010 before he
signed any affidavit. Farr likewise would not be available to testify from this point
onward, either at a hearing on a motion for new trial or at a new trial.
       {¶ 17} A reading of Farr's trial testimony strains credibility; including claims that
he did not know what a .380 caliber revolver is or that he did not know that Bass was an
informant until Farr was on the witness stand at Bass's trial. Also Farr claimed he did not
know that Miles Davis was a member of the Southfield Crips, a street gang and rival of the
Deuce-Deuce Bloods. (Tr. Vol. III, 233-34.) Eddie Cartharn, who did not testify at trial
but witnessed the shooting, claimed in a 2011 affidavit that Farr admitted that he was not
at the gas station when the shooting occurred and testified against Bass to cut a better
deal for himself. (R. 253, exhibit P.) If true, Farr's testimony as to all the key points was
perjury. Farr's statements to Yant and to Cartharn might well not be admissible as
evidence in subsequent proceedings.
       {¶ 18} Kendle Mardis was identified with the Deuce-Deuce Blood gang of which
Bass was affiliated. (Tr. Vol. I, at 58.) After the September 2001 gang sweep, Mardis
gave information that led Columbus Police to ask Bass about his TEC-9 which was
suspected as the murder weapon. (R. 253, exhibit B.) Mardis told police that Bass was
responsible for the murder, that after Bass was shot in the leg, Bass and two other people
arrived by car at Mardis's after hours place. (R. 253, exhibit B.) Mardis told the police
that Bass gave him his TEC-9 to clean and told Mardis to keep the gun for him before
going to the hospital. Id. This story by Mardis was factually unlikely as Bass was found by
No. 13AP-1052                                                                                 6


Police Officer Todd Schiff shot in the leg in the yard of 1483 Lockbourne Rd. near the
Shell gas station where the killing occurred right after the shooting of Davis. Bass was
taken from there to the hospital. Bass v. State, 10th Dist. No. 02AP-547, 2003-Ohio-
1642, ¶ 17.
       {¶ 19} This conversation with Mardis led police to question Bass about the TEC-9
Bass owned and could still locate. Bass argues that police suspicion of Bass as the shooter
of Davis was renewed despite the parts of Mardis's report which was fabrication.
       {¶ 20} Carlotta Butler testified against Bass at trial stating that she saw Bass fire six
or seven shots total. (R. 138, Tr. Vol. IV, at 11.) Bass argues that, initially, he identified
Butler as a witness for the defense but after her brother was arrested in the September
2001 gang sweep, she came to the police in October 2001 to give a statement against Bass.
(R. 135, Vol. I, at 59). Butler also admitted on the stand that the prosecutor was going to
talk to a judge about having her released early on her 30-day sentence for a traffic
violation. (R. 138, Tr. Vol. IV, at 4.)
       {¶ 21} At trial, ballistics expert, Mark Hardy, tested the TEC-9 that was recovered
in January 2000 after Bass helped them locate it. The gun jammed when Hardy test fired
it. (R. 138, Vol. IV, at 75.) This was consistent with Bass's story that he fired into the air
once but then the gun jammed. (R. 253, exhibit C.) Hardy also testified that the bullet
recovered from Davis's body could have been fired from the TEC-9 but there were not
enough individual characteristics to say that Bass's gun was the gun that fired the fatal
bullet. (R. 138, Vol. IV, at 78.)
       {¶ 22} Hardy also testified that the bullet that killed Davis could not have come
from another gun that discharged 9mm shell casings found at the scene of the homicide
based on rifling characteristics. (R. 138, Vol. IV, at 85-86). The fatal bullet could have
come from the gun that shot the .380 caliber ammunition casings that were found at the
scene but the bullet from the body was inconsistent with the .380 ammunition. (R. 138,
Vol. IV, at 85-86.) Bass now claims that the bullet that struck his leg and remains there
today could be safely removed and compared to the bullet that killed Davis. At present,
the projectile is still in Bass.
       {¶ 23} Anthony Forrest is Davis's cousin. Our court summarized his testimony in
the earlier appeal:
No. 13AP-1052                                                                               7


              The decedent's cousin, Anthony Forrest, testified that he saw
              Jermaine Dickerson and another person arguing. He heard
              one gunshot and ducked. Forrest did not remember seeing
              appellant at the gas station. He did not see who Dickerson
              was arguing with nor did he see anyone firing a gun, but he
              heard approximately 10 shots. Dickerson told Forrest that
              appellant shot Davis.

State v. Bass, 10th Dist. No. 02Ap-547, 2003-Ohio-1642, ¶ 29.
       {¶ 24} Jermaine Dickerson, a suspected Southfield Crip and therefore gang rival of
the Deuce-Deuce Bloods, did not testify. However, Antony Forrest's excited utterance
that Dickerson told Forrest that Bass shot Davis was admitted as evidence. Two tapes of
Dickerson were played in court at the trial. (R. 140, Vol. VI, at 5.) Defense counsel
allowed the two tapes to be played, one from September 11, 1999 and the other from
October 7, 1999, to demonstrate prior inconsistent statements made by Dickerson. The
tapes were only being offered to evaluate Dickerson's credibility. Bass claims Dickerson
was the shooter and shot both Bass in the leg and accidentally shot Davis.
       {¶ 25} Bass claims the police reports that he became aware of after a public record
request was made in 2008 corroborate many elements of his version of events that he did
not shoot Davis. A confidential police interview on April 9, 2000 stated that Davis was
shot by one of his own gang, Jermaine [Dickerson] or D.R., accidently. (R. 253, exhibit I.)
A separate confidential police report relays informant information from two different
sources that Davis was not killed by Bass and that Davis was accidently killed. (R. 253,
exhibit M.) This source of the information in the interview and report is not known.
       {¶ 26} A police interview with Willia Alexander, an elderly women who was
working at 1483 Lockbourne Road, revealed that she stated in two different interviews
that she saw Bass running through the Shell gas station as shots were still being fired, and
she stated that she saw an "Uzi" being slid across the hood of the car that Dickerson and
Davis had been driving. (R. 253, exhibit Q.) Eddie Cartharn, mentioned earlier, stated in
a March 16, 2000 police interview that he saw Dickerson shooting at a black man with
braided hair, but accidently shoot his friend "Dirt" [Davis] in the back. (R. 253, exhibit J.)
Eddie Cartharn stated in a 2011 affidavit that he saw Bass running in the other direction
of the shooting before Davis was shot. (R. 253, exhibit P.)
No. 13AP-1052                                                                                8


       {¶ 27} There are many police interviews from the incident, and information from
informants, that state that Bass was not initially arguing with Dickerson.
       {¶ 28} Ron Hale gave an interview to the police on September 14, 1999, stating that
he heard the same version of events from two different individuals. Hale stated he heard
that Dickerson was arguing with James Thomas, then someone fired a gunshot after
which Dickerson shot Bass and then continued shooting, when Hale turned around
Dickerson had shot Davis. (R. 253, exhibit K.)
       {¶ 29} The same Ron Hale, in a October 7, 1999 police interview, stated that he saw
Bass fire one gunshot into the air, and observed Bass running north through the parking
lot after getting shot in the leg, and that Dickerson fired numerous shots in the direction
of Bass. (R. 253, exhibit L.) Hale also provided a lot of detailed information about the gas
station, which cars people were driving, the positions of the two gangs, even that
Dickerson was in an argument with James Thomas. Hale had driven with Bass to the gas
station, so presumably was known to Bass as a potential witness long before Bass's trial.
       {¶ 30} Bass's trial attorney, William Owen, stated in an affidavit that after
reviewing the newly discovered police reports, he believes he had never seen that
information and that he definitely would have made use of it prior to trial. (R. 267,
Affidavit of William Owen, at ¶ 4.) Owen was unable to locate his trial file to confirm that
he never had seen those reports. Id. Owen is unable to state with certainty what
discovery he did or did not have before trial with the exception of two documents that
were submitted with Bass's motion for a new trial. (R. 267, Affidavit of William Owen, at
¶ 5.) We cannot determine which two documents Owen is referring to of the many
submitted with the motion seeking leave to file a motion for a new trial, though they are
most likely the April 9, 2000 CPD confidential police interviews. (R. 253, exhibit I, M.)
       {¶ 31} Bass argues that he was entitled to the security camera footage from the
Shell gas station that the police obtained. The only information about the fate of this tape,
is that it was in the possession of an assistant prosecuting attorney on December 5, 2001,
but it was never entered into evidence at trial. (R. 253, exhibit G.) Its existence was
clearly known before the trial.
       {¶ 32} Knowing exactly what happened when rival gang members begin shooting
in a public place is a significant challenge for police and eventually for a trier of fact in a
No. 13AP-1052                                                                             9


courtroom. What is clear from the record before us is that Bass was a member of the
Deuce-Deuce Bloods and Davis was a member of the rival Southfield Crips.
         {¶ 33} Bass was found shot in the leg near where Davis was shot to death. Bass
claimed to police that he was unarmed when Davis was shot.
         {¶ 34} Later when police confronted Bass with reports that Bass was known to
carry a TEC-9, Bass admitted that he had such a firearm at the scene of the killing and he
admitted he had shot his TEC-9, but only as one of the ten or eleven gunshots heard at the
time of killing. As noted earlier, another witness claimed she saw Bass shoot several
times.
         {¶ 35} Bass denied shooting Davis and has pointed the finger at different people at
different times. Bass, soon after the shooting, aligned himself with the police and began
working as an undercover informant.
         {¶ 36} Bass apparently helped police arrest both members of his own gang and
members of the rival gang. As a result of the his police activity, few people in the
neighborhood trusted him. Certainly no one would get on a witness stand and commit
perjury to help Bass defend himself at trial. Some witnesses no doubt were tempted to
stretch the truth or even perjure themselves in payback for Bass hurting them, or their
friends and family members. This was especially so if the potential witness could help
themselves in their own cases, by pleasing the police or prosecution.
         {¶ 37} The problems with the State's case were developed at trial. The problems
with Bass's own credibility were also fully explored.
         {¶ 38} Some of the police reports put forth at trial were problematic. Bass could
well have shot Davis and then fled when shots were still being fired. Willia Alexander's
version of what happened did not fully exonerate Bass and her claims of an Uzi being
involved were unlikely. We also cannot be sure Bass was not one of the "confidential
informants" who told police other people shot Davis.
         {¶ 39} We cannot fully evaluate the claims of Eddie Cartharn as to what happened
but we also cannot know why Bass's defense team could not have known the names of him
and many of the potential witnesses at the Shell Station since Bass admittedly was at the
scene of the killing before and during the shooting.
No. 13AP-1052                                                                               10


       {¶ 40} Motions for new trial shall be filed within 120 days of the verdict of guilty.
Crim.R. 33. For a motion for a new trial to be filed outside this time window, the trial
court judge must find that the defendant was unavoidably prevented from the discovery of
the evidence upon which the defendant must rely. Id. The trial court judge here did not
so find. After a full review of the information before the trial judge, we cannot say the trial
court judge abused his discretion in coming to the decision to deny a belated motion for a
new trial.
       {¶ 41} The sole assignment of error is overruled and the judgment of the Franklin
County Court of Common Pleas is affirmed.
                                                                         Judgment affirmed.

                            BROWN and CONNOR, JJ., concur.
