[Cite as State v. Hill, 2019-Ohio-365.]



                             IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO




STATE OF OHIO,                            :          APPEAL NO. C-180114
                                                     TRIAL NO. B-9103654
          Plaintiff-Appellee,             :

        vs.                               :              O P I N I O N.

GENESIS HILL,                             :

          Defendant-Appellant.            :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause
                          Remanded

Date of Judgment Entry on Appeal: February 6, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Chief Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and William Gallagher, for Defendant-Appellant.
                   OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Defendant-appellant Genesis Hill appeals the Hamilton County

Common Pleas Court’s judgment overruling his Crim.R. 33 motion for a new trial.

We reverse the judgment in part upon our determination that the court abused its

discretion in overruling the motion without first conducting an evidentiary hearing

on the Brady and actual-innocence claims presented in the motion.

       {¶2}   In 1991, Hill was convicted upon jury verdicts finding him guilty of

aggravated burglary in violation of R.C. 2911.11, kidnapping in violation of R.C.

2905.01, and two counts of aggravated murder in violation of R.C. 2903.01. The

aggravated-murder charges were accompanied by death-penalty specifications

charging that the offenses had been committed during an aggravated burglary and

during a kidnapping. For the aggravated murders, the trial court imposed death

sentences.

       {¶3}   Hill’s convictions were affirmed on direct appeal. State v. Hill, 1st

Dist. Hamilton Nos. C-910916 and C-940487, 1994 WL 721580 (Dec. 21, 1994), aff'd,

75 Ohio St.3d 195, 661 N.E.2d 1068 (1996), cert. denied, 519 U.S. 895, 117 S.Ct. 241,

136 L.Ed.2d 170 (1996). In postconviction petitions filed in 1996, 2000, and 2009,

he unsuccessfully challenged his convictions on grounds unrelated to his new-trial

grounds. State v. Hill, 1st Dist. Hamilton No. C-100554, 2011 WL 3477183 (Aug. 10,

2011), appeals not accepted, 132 Ohio St.3d 1513, 2012-Ohio-4021, 974 N.E.2d 112;

State v. Hill, 1st Dist. Hamilton No. C-030384 (Dec. 21, 2003), appeals not allowed,

102 Ohio St.3d 1448, 2004-Ohio-2263, 808 N.E.2d 398; State v. Hill, 1st Dist.

Hamilton No. C-961052, 1997 WL 727587 (Nov. 21, 1997), appeal not allowed, 81

Ohio St.3d 1468, 690 N.E.2d 1288 (1998). And in 2016, he was denied the relief




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sought in his 1998 petition for a writ of habeas corpus. See Hill v. Mitchell, 842 F.3d

910, 918 (6th Cir.2016), cert. denied, 138 S.Ct. 82 (2017).

       {¶4}     In 2017, Hill moved for leave to file a motion for a new trial on the

grounds of prosecutorial misconduct, actual innocence, and ineffective assistance of

trial counsel, based on allegedly impeaching and exculpatory newly discovered

evidence and evidence not disclosed in discovery. The common pleas court granted

leave, considered Hill’s proposed new-trial motion on its merits, and upon the

motion and the state’s response, overruled the motion.

       {¶5}      In this appeal, Hill advances a single assignment of error challenging

the overruling of his new-trial motion without an evidentiary hearing. The challenge

is well taken in part.

                                          The Trial

       {¶6}     The charges against Hill arose in connection with the death of Domika

Dudley, the six-month-old daughter of Hill and Teresa Dudley. Domika resided with

Dudley and her family in the city of Cincinnati. Although Hill and Dudley had an on-

going relationship, Hill resided separately from Dudley and Domika, in a house

down the street. On June 1, 1991, just past midnight, Dudley woke up to find Domika

missing from her home. On June 2, police found her body in a vacant lot behind

Hill’s house.

       {¶7}     Guilt-phase evidence.          During the guilt phase of Hill’s trial,

Dudley’s neighbors testified that in the days leading up to Domika’s death, they had

overheard Hill arguing with Dudley about child support.          Dudley’s friend and

neighbor, Barbara Janson, testified that during that argument, she had heard Hill

declare that he would “kill that little bitch before he paid anything.” Hill, 75 Ohio

St.3d at 196, 661 N.E.2d 1068. Dudley, on cross-examination, confirmed that Hill

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had resisted the idea of paying child support, and she asserted that Hill “didn’t really

like” Domika.    But Dudley denied that Hill had “ever threaten[ed],” or “even

suggested,” that he would “hurt [Domika] like that.”

       {¶8}   On the afternoon of May 31, Hill and Dudley were again seen arguing

in Hill’s yard. That night, Dudley put Domika to bed and, leaving the hallway light

on, retired to another room. The only access to Dudley’s apartment was through her

building’s front entrance; the building’s back yard was surrounded by an eight-to-

nine-foot wall. Between 11:00 p.m. and midnight, neighbors saw Hill enter, but not

exit, through the building’s front entrance. Shortly after midnight, Dudley awoke to

discover the light bulb in the hallway fixture unscrewed and Domika missing.

       {¶9}   Dudley went to Hill’s home to ask about Domika. Hill was not there,

but appeared shortly thereafter. He denied knowing where Domika was and did not

participate in a neighborhood search for her conducted by the police. To those

present, Hill appeared unconcerned about Domika’s absence, and he was

“snickering” and “grinning” as Dudley talked to the police. Id.

       {¶10} The search continued. On June 1, at around 5:45 a.m., Dudley, in the

company of Hill’s aunt, found on the floor of Hill’s garage a barrette that was

“identical” to a barrette that Dudley had placed in Domika’s hair before putting her

to bed. Id.

       {¶11} On the afternoon of June 2, police found Domika’s body in the

overgrown vacant lot behind Hill’s garage. She had not been there on June 1, when

police first searched the lot. She was found in an SMA® baby-formula box, wrapped

in a plastic shopping bag, three plastic trash bags, and black electrical tape. Her

head was also wrapped in a man’s shirt that Dudley and Janson told police “look[ed]




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like” a shirt that Hill owned. Id. She was wearing only a diaper, and she had two

barrettes in her hair.

       {¶12} Hill resided with his aunt and uncle. The baby-formula box in which

Domika was found was similar to one that Hill’s aunt had placed in a trash pile next

to their garage. The box bore batch numbers matching an SMA® can from his aunt’s

pantry, and it had been in the trash pile on June 1, but not on June 2. His uncle was

unable to find black electrical tape that he kept in a tool box at his home. The last

trash bag wrapped around Domika had, in the opinion of a forensics expert,

previously been directly attached to a trash bag found in the kitchen in Hill’s

apartment. And the police found Hill’s right thumb print on the lightbulb in the

hallway light fixture near where Dudley and Domika had slept at their home.

       {¶13} The autopsy performed by Dr. Amy Martin revealed that “Domika died

as a result of three skull fractures, and she had been dead for more than twelve

hours. Either a strong, blunt force had struck her head, or her head had been

crushed. She might have been injured in a fall, but it seems only if another force had

hit her during or after the fall.” Id.

       {¶14} The state also presented the testimony of a Cincinnati bus driver who,

while driving his route on the evening of June 2, overheard a crying, upset young

man say to another man that “he could not believe what he had done to a little baby,”

and that “he thought he might get the chair for it.” Id. at 197. The driver contacted

the police the next day, after he heard a news report about Domika’s death. The

driver identified Hill in a photo array as the man who had been crying on the bus, but

could not identify him at trial. The driver stated that he had just caught “a quick

glance as [the man] was leaving the bus,” that he had selected Hill’s photo from the

array “more based on a size and a height than * * * distinguishable characteristics,”



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and that “[i]f an officer had not said that I had picked that one out, I may not have

had any faith that I picked out the correct one.”

       {¶15} The defense presented testimony by Hill and his friends and relatives

concerning the events of May 31. Defense witnesses asserted that Dudley had not

been a good mother and had been aggressive toward Hill during their argument that

afternoon. The witnesses stated that there had been only two trash bags in Hill’s

kitchen, and that Dudley had had access to the bags. And they suggested that she

might have “planted” the barrette in Hill’s garage. Id.

       {¶16} Finally, Hill, in his narrative testimony, admitted that he had, at

around 11:00 p.m. on May 31, been in the hallway outside Dudley’s door and

unscrewed the light bulb. He said that he had “whistled” at Dudley’s bedroom door,

but when she did not respond, he had left the building as he had entered it, through

the front entrance, and had returned to “the business” of drinking with his friends.

Id. With his testimony, the Ohio Supreme Court concluded, Hill had “implicitly

denied taking Domika, but he did not explicitly do so,” and the state’s “[c]ross-

examination had revealed discrepancies between his testimony and his statements to

police and two mental health professionals.” Id.

       {¶17} The jury returned verdicts finding Hill guilty of aggravated burglary,

kidnapping, and aggravated murder, along with the death-penalty specifications.

       {¶18} Penalty-phase evidence. Evidence adduced during the penalty

phase of Hill’s trial revealed that Hill had been born on June 7, 1971, to a mother who

suffered from serious depression and chronic emotional problems and a father who

had spent time in prison and contributed little to Hill’s support or upbringing. Hill’s

family was very poor, and he grew up in an extremely poor and drug-infested

neighborhood, with a lot of “negative influences” and “temptations.” Id. at 197-198.



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       {¶19} In opening statements during the penalty phase, defense counsel

conceded that Hill had a juvenile record for arson, burglary, resisting arrest, and

tampering with a coin machine. The defense also presented testimony by family

members to Hill’s prior involvement with gangs and experience with drug-trafficking

to support himself, “to have things,” and “to survive.” Id. at 198.

       {¶20} Hill had always struggled academically, and he left school after the

eighth grade. He started using drugs and alcohol at 14. At 16, he had “problems with

serious depression, and wrote suicide notes.” Id. At 17, a psychiatric evaluation

found that he suffered from “major depression with psychotic features” and had

experienced auditory hallucinations. Id. But a psychologist who evaluated Hill in

June 1991 found that he was “of average intelligence with the capacity to develop job

skills and educate himself,” and that he was “rational and intelligent, had no mental

disease or defect, and was not suffering from major depression.” Id.

       {¶21} Family members also testified concerning Hill’s character, describing

him as “kind,” “sweet,” “gentle,” “loving, caring,” helpful, and a “good,” “very nice,”

and “very outgoing” person, who “treats people very well.” Id. at 197-198. Others

described the difficult environment in which he had been raised and expressed their

love and understanding for him. His juvenile case worker described him as “likable”

and “respectable,” although easily “intimidated.” Id.

       {¶22} In his unsworn statement, Hill again neither admitted nor denied

killing Domika. He said, “I feel hurt. Growing up was hard. A lot of things wasn’t

right for me,” and “[I] struggled to survive.” And he stated that he was “sorry that

you all have to be here,” “sorry that the baby [was] gone,” and “sorry for the family.”

Id. at 198.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} At the sentencing hearing conducted after the jury had recommended

the death penalty, Hill told the court that he was “sorry you have to judge me. * * *

[I] just hope and pray that you can spare my life.” Id. Hill’s juvenile probation

officer also spoke on his behalf. Although Hill had asked her not to, the probation

officer told the court that Hill had told her that he “did not brutally nor intentionally

kill that baby,” and that “it was an accident.” Id.

       {¶24} The trial court, upon the jury’s recommendation, imposed for the

aggravated murders sentences of death.

                                 The Direct Appeal

       {¶25} In affirming Hill’s convictions in the direct appeal, the Ohio Supreme

Court characterized the evidence of guilt as “compelling” and concluded that the

evidence “adequately proved Hill’s guilt” of the offenses. Id. at 212, 205. Relevant

to the matters presented by Hill’s new-trial motion, the court determined that the

evidence supported the jury’s finding that Hill had killed Domika:

       Two witnesses identified Hill as entering Teresa’s yard within fifteen

       minutes of Domika’s disappearance. They did not see him leave. Hill

       admitted he was there, and his thumbprint on the unlit hall light bulb

       confirmed this. Domika’s body was found in a vacant lot behind his

       garage. Hill’s shirt and trash bags from his apartment were wrapped

       around her body. She had been stuffed in a carton, which had been

       earlier discarded near Hill’s garage. Her barrette was found on Hill’s

       garage floor. Finally, a disinterested bus driver reported that, on the

       day Domika was found dead, Hill said that he would “get the chair” for

       what he had done to a baby.

Id. at 205.



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       {¶26} The court also specifically rejected Hill’s argument, in support of his

challenge to the legal sufficiency of the evidence, that “no proof exists that he

purposefully killed Domika.” Id. at 206. The court concluded that the jury could

reasonably have found that Hill had acted purposefully based on the evidence

presented at trial concerning “Domika’s injuries and Hill’s declared intentions”:

       Domika died as a result of multiple blunt force or blunt impacts to her

       head. Her three skull fractures could not have been caused by a simple

       fall. Violent shaking, in addition to blunt trauma, may have

       contributed to her death, but the coroner concluded Domika died as a

       result of homicide, not accident. Hill had vowed never to pay child

       support and to “kill that little bitch” first.

Id.

       {¶27} The court’s independent sentence evaluation led it to conclude that

Hill’s death sentences were appropriate. The court accorded some weight to Hill’s

history and background. Of the R.C. 2929.04(B)(1) through (6) mitigating factors,

the court found only Hill’s youth applicable, see R.C. 2929.04(B)(4), and neither

discussed nor accorded weight to the degree of Hill’s participation in the offenses or

in the acts that led to Domika’s death. See R.C. 2929.04(B)(6). The court also

considered, but gave no weight to other factors contemplated by R.C. 2929.04(B)(7),

including remorse, mental problems, and residual doubt. Id. at 213-214.

                           The Habeas Corpus Petition

       {¶28} Beginning in 1998, Hill also sought relief from his convictions by filing

with the United States District Court for the Southern District of Ohio a petition for a

writ of habeas corpus. The petition, as originally conceived and as subsequently

amended, sought relief on grounds including prosecutorial misconduct in failing to



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disclose favorable evidence in discovery, in violation of the fair-trial guarantee of the

Due Process Clause of the Fourteenth Amendment to the United States Constitution

and the United States Supreme Court’s decision in Brady v. Maryland, 373 U.S. 87,

83 S.Ct. 1194, 10 L.Ed.2d 104 (1972). In 2006, the district court denied the petition.

Hill v. Mitchell, S.D.Ohio No. 1:98-cv-452, 2006 WL 2807017 (Sept. 27, 2006).

       {¶29} In December 2007, pursuant to a public-records request, Hill

discovered a police report that had been prepared by the first police officer to

respond on the night Domika went missing, but had not been provided in discovery.

In September 2010, the district court compelled the state to disclose all documents

contained in the “prosecutor’s file.” Hill v. Mitchell, S.D.Ohio No. 1:98-CV-452, 2010

WL 3894202, *10 (Sept. 30, 2010). In 2011, Hill moved for reconsideration of the

court’s finding that his Brady claim had been procedurally defaulted and for a

finding that the police report established cause and prejudice to excuse the

procedural bar. In 2012, the district court granted reconsideration.

       {¶30} Hill also moved to expand the record to include a transcript of

Dudley’s grand jury testimony, which the state had disclosed in October 2010. The

district court granted expansion of the record to include Dudley’s grand jury

testimony as further evidence in support of Hill’s Brady claim. Hill v. Mitchell, S.D.

Ohio No. 1:98-cv-452, 2013 WL 1345831 (Mar. 29, 2013).

       {¶31} Hill did not request, and the district court did not conduct, an

evidentiary hearing on Hill’s habeas petition. In March 2013, the district court

granted a conditional writ of habeas corpus based upon the state’s failure to disclose

the police report and directed the state to either release Hill or grant him a new trial.

       {¶32} In December 2016, the United States Court of Appeals for the Sixth

Circuit reversed the district court’s decision and remanded for entry of an order



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denying Hill’s petition. Hill, 842 F.3d 910. In its decision, the Sixth Circuit split on

the dispositive question whether Hill’s Brady claim was time-barred. The Sixth

Circuit held that the district court had abused its discretion in reconsidering and

amending the claim, when the claim was time-barred under the Antiterrorism and

Effective Death Penalty Act, 28 U.S.C. 2254(d), because Hill had failed to bring the

new evidence to the district court’s attention within one year from its discovery.

Judge McKeague authored the lead opinion filed in the case, and Judge Batchelder

concurred in its holding. Chief Judge Cole dissented. Hill, 842 F.3d at 925-926

(McKeague, J.), 948-950 (Batchelder, J., concurring), and 956-959 (Cole, C.J.,

dissenting).

       {¶33} The panel also split on the question whether Hill’s Brady claim, if

timely presented, would have succeeded on the merits. All agreed that the state, in

failing to disclose in discovery the police report and Dudley’s grand jury testimony,

had “suppressed * * * potentially * * * favorable” evidence, at least in terms of

impeaching Dudley’s credibility. See id. at 926 and 933 (McKeague, J.) and 952

(Cole, C.J., dissenting). But Judge McKeague concluded that Brady’s materiality

standard was not satisfied by the “ambiguous comments in the police report” or by

testimony by Dudley to the grand jury “that was not precisely consistent with her

trial testimony.” In his assessment, the undisclosed evidence itself was “of marginal,

speculative significance.” And because the district court had failed to conduct an

evidentiary hearing, the value of that evidence remained “speculative,” whether for

purposes of impeaching Dudley’s credibility or leading to other evidence that was

sufficiently exculpatory or impeaching as to undermine confidence in the trial’s

outcome. Id. at 927-928 (McKeague, J.).




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       {¶34} Judge Batchelder and Chief Judge Cole concluded to the contrary.

Judge Batchelder, in her concurring opinion, simply stated her “belie[f] [that] the

withheld police report satisfies the [Brady] standard for materiality of impeachment

evidence.” Id. at 948 (Batchelder, J., concurring). Chief Judge Cole, in his dissent,

concluded that both the police report and the grand jury testimony met the

materiality standard, upon consideration of the “cumulative effect” of the withheld

evidence and application of the United States Supreme Court’s most recent

statement of the standard. Id. at 951-952, quoting Kyles v. Whitley, 514 U.S. 419,

421, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), and citing Wearry v. Cain, 565 U.S. 73,

136 S.Ct. 1002, 1006, 194 L.Ed.2d 78 (2016) (holding that “[e]vidence qualifies as

material when there is any reasonable likelihood it could have affected the judgment

of the jury”). In his assessment, the police report, which, “in no roundabout way,

suggests that Dudley was a potential suspect in the state’s murder investigation,” and

the grand jury testimony, which “shows that the discovery of Domika’s barrette, a

critical event, was uncertain in Dudley’s mind,” were “material because they build up

Hill’s defense, provide a compelling means to undermine the state’s most powerful

witness, and thus call into question the reliability of the jury’s verdict * * * [because]

the state’s remaining circumstantial evidence is not ‘strong enough to sustain

confidence’ in [that] verdict.” Id. at 954-955, quoting Smith v. Cain, ___ U.S. ___,

132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012).

       {¶35} Hill appealed the Sixth Circuit’s decision to the United States Supreme

Court. The Supreme Court denied certiorari. Hill v. Mitchell, 138 S.Ct. 82, 199

L.Ed.2d 53 (2017).




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                               The New-Trial Motion

       {¶36} Four months after the Sixth Circuit’s decision, Hill sought, and was

granted, leave by the common pleas court to move for a new trial. In his new-trial

motion, Hill sought a new guilt-phase and/or penalty-phase trial under Crim.R.

33(A)(2) and (A)(6), based not just on the Brady material that had been the subject of

his habeas proceeding, but also on newly discovered evidence. Specifically, he alleged

that he had been denied a fair trial by prosecutorial misconduct in withholding from

the defense the police report and Dudley’s grand jury testimony, and that that

wrongfully withheld evidence, along with other newly discovered evidence contained

in a 2016 affidavit made by Dr. Amy Martin concerning the manner of Domika’s

death and the 2011 affidavits of Mesha Daniels and Alexis Davenport implicating

Dudley in disposing of Domika’s body, demonstrated his actual innocence of

aggravated murder and his trial counsel’s ineffectiveness in presenting his defense.

       {¶37} In this appeal, Hill contends that the common pleas court abused its

discretion in overruling his new-trial motion and in declining to conduct an

evidentiary hearing on the motion. In defense of the court’s judgment overruling the

motion, the state argues that res judicata barred Hill’s Brady claim, that his new-

trial grounds were not timely asserted, and that the motion did not satisfy the

standards for a new trial.

                             Res Judicata Inapplicable.

       {¶38} The state asserts that under the doctrine of res judicata, the Sixth

Circuit’s decision in Hill’s habeas corpus case operated to bar the Brady claim

presented in his new-trial motion. We disagree.

       {¶39} The Sixth Circuit denied Hill habeas relief based not upon the merits of

his Brady claim, but upon his failure to timely assert the claim. And while two of the



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three opinions filed with the decision included lengthy discussions concerning the

merits of the claim, two of the three judges who decided the case concluded that the

claim, had it been timely asserted, would have succeeded on the merits. Accordingly,

no aspect of the related doctrines of res judicata, issue preclusion, or law of the case

could be said to apply to preclude the common pleas court from considering on the

merits, or granting relief, based on the Brady claim presented by Hill in his new-trial

motion.

                      New-Trial Grounds Not Time-Barred

       {¶40} The state also argues in defense of the judgment overruling the new-trial

motion that the grounds for relief presented in the motion were time-barred under

Crim.R. 33(B). App.R. 3(C) precludes the state from advancing this argument in this

appeal.

       {¶41} A Crim.R. 33(A)(6) motion for a new trial on the ground of newly

discovered evidence must be filed either within 120 days of the return of the verdict or

within seven days after leave to file a new-trial motion has been granted, and leave may

be granted only upon “clear and convincing proof that the defendant [had been]

unavoidably prevented from [timely] discovering the evidence.” A motion for a new

trial on other grounds must be filed either within 14 days of the return of the verdict or

within seven days after the granting of leave, and leave may be granted only upon “clear

and convincing proof that the defendant [had been] unavoidably prevented from

[timely] filing [his new-trial] motion.” Crim.R. 33(B).

       {¶42} The common pleas court granted Hill leave under Crim.R. 33(B) to move

for a new trial under Crim.R. 33(A)(2) and (A)(6). Implicit in that judgment was the

court’s determination that Hill had satisfied Crim.R. 33(B) by providing clear and

convincing proof that he had been unavoidably prevented from timely discovering the

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evidence upon which his newly-discovered-evidence claims depended and unavoidably

prevented from timely moving for a new trial based on his prosecutorial-misconduct

claim. The court then considered and entered a final judgment overruling Hill’s new-

trial motion “on the merits.”

       {¶43} From that judgment, Hill filed this appeal. The state did not cross-

appeal, but nevertheless, in defense of that judgment, assails the court’s determination

in granting leave, that the new-trial motion was timely filed under Crim.R. 33(B).

       {¶44} App.R. 3(C) provides,

       (1) Cross Appeal Required. A person who intends to defend a

       judgment or order against an appeal taken by an appellant and who

       also seeks to change the judgment or order or, in the event the

       judgment or order may be reversed or modified, an interlocutory

       ruling merged into the judgment or order, shall file a notice of cross

       appeal within the time allowed by App.R. 4.

       (2) Cross Appeal and Cross-Assignment of Error Not Required. A

       person who intends to defend a judgment or order appealed by an

       appellant on a ground other than that relied on by the trial court but

       who does not seek to change the judgment or order is not required to

       file a notice of cross appeal or to raise a cross-assignment of error.

       {¶45} An “interlocutory order” is defined as “[a]n order that relates to some

intermediate matter in the case; any order other than a final order.” Black’s Law

Dictionary (10th Ed.2014), order. The principle underlying App.R. 3(C)(1) is that all

interlocutory orders are “merged” into the final judgment or order entered in the case,

and thus “a party cannot accept a final judgment or order and at the same time attack


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an interlocutory ruling merged into it.” 1992 Staff Note, App.R. 3. As the United

States Supreme Court explained in Greenlaw v. United States, 554 U.S. 237, 128 S.Ct.

2559, 171 L.Ed.2d 399 (2008), “[t]he cross-appeal rule * * * is both informed by, and

illustrative of, the party presentation principle,” under which “an appellate court may

not alter a judgment to benefit a nonappealing party.” Id. at 245-246.

       {¶46} The common pleas court’s order granting Hill leave under Crim.R. 33(B)

to move for a new trial constituted an interlocutory order. That interlocutory order was

adverse to the state, and it merged into the court’s final, appealable order overruling the

new-trial motion “on the merits.” In this appeal, the state defends the overruling of the

new-trial motion by seeking to change the court’s adverse interlocutory ruling granting

leave. App.R. 3(C) requires that change to be sought in a timely-filed cross-appeal.

Because the state did not file a cross-appeal, the common pleas court’s determination in

granting leave—that the new-trial claims were timely asserted under Crim.R. 33(B)—is

unassailable in this appeal. And our review is confined to the court’s judgment overruling

the new-trial motion on the merits. See, e.g., State v. Dibble, 2017-Ohio-9321, 92 N.E.3d

893 (10th Dist.), appeal allowed, 153 Ohio St.3d 1432, 2018-Ohio-2639, 101 N.E.3d

464, ¶ 19-24 (appeal allowed on an unrelated proposition of law); State v. Oke, 6th

Dist. Wood No. WD-04-083, 2005-Ohio-6525, ¶ 54 (holding in appeals challenging the

overruling of motions to suppress, that App.R. 3(C)(1) required the state to cross-

appeal to challenge the trial court’s interlocutory findings of probable cause and

standing).

                        Evidentiary Hearing Warranted

       {¶47} We conclude that the common pleas court abused its discretion in

declining to conduct an evidentiary hearing on the Brady and actual-innocence




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grounds presented in Hill’s new-trial motion. For that reason, we reverse the court’s

judgment overruling the motion.

       {¶48} The theory of the state’s case against Hill was that he had broken into

Dudley’s home, kidnapped Domika, and murdered her to avoid paying child support.

The evidence of Hill’s culpability in Domika’s death was largely circumstantial.

Dudley’s testimony at trial was critical to proving the alleged criminal acts and

motive.

       {¶49} The defense at trial focused almost entirely on undermining Dudley’s

credibility by suggesting that she had been responsible for Domika’s death and that

she had lied to divert law enforcement’s attention from herself to Hill. See Hill, 75

Ohio St.3d at 197, 661 N.E.2d 1068 (noting that “[a]t trial, numerous * * * [d]efense

witnesses suggested * * * that [Dudley] was not a good mother; that she had been

aggressive towards Hill on May 31; that she had access to the trash bags in Hill’s

kitchen; and that she may have ‘planted’ the barrette on the garage floor.”).

       {¶50} The police report. In support of his new-trial motion, Hill offered

the “Cincinnati Police Preliminary Investigation Report” prepared by the first police

officer on the scene after Dudley had called to report Domika missing. The officer

testified at trial that around 12:15 a.m. on June 1, he had arrived at Dudley’s house in

response to a dispatch concerning “family trouble” and found Dudley and her mother

“on the ground crying.” When Dudley told him that “her baby was missing,” he and

another officer searched Dudley’s house and the area, including the alley, behind her

house. At Dudley’s urging, the officers went to Hill’s house and spoke with his family

and then with him. He denied taking Domika or being at Dudley’s house that night,

and he acted “[n]onchalant, like” and “[un]concerned” about her disappearance.




                                          17
                   OHIO FIRST DISTRICT COURT OF APPEALS



With Hill’s consent, the officers searched Hill’s bedroom for, and there found under a

pile of clothes, the T-shirt and shorts that “witnesses said he had changed from.”

       {¶51} The next morning, the officer prepared his report. In describing the

search conducted and the physical evidence located, references to Hill as “the

suspect” had been crossed out and “the father” substituted. And the officer indicated

that a “suspect” could not “be identified” because “[n]o one saw the father with the

baby.” In response to the question whether persons interviewed needed to be “re-

contact[ed],” the officer directed investigators to “[f]ollow up” with the neighbors

who had seen Hill enter Dudley’s building, “on [the] question [of] how much time the

mother spends with the child and how many different people does she let watch her.”

In response to the question, “Do you believe that this case could be solved with some

additional investigative time?” the officer circled “YES” and wrote, “Investigate why

the mother ran from police and asked for the police to check the alley behind the

house (several times).” The report also included these additional comments:

       Received radio run regarding family trouble. When we arrived Mother

       and Grandmother were lying on ground crying. The mother then told

       us she thinks the father took the baby. We searched the house and

       surrounding area. Notified Lieutenant, we then went to father’s house.

       Gave consent to search. During search found nothing. Notified CIS[,]

       they responded and had the Mother, Grandmother, and father come

       down for Question[.] CIS interviewed the above.

       The father[’]s sister * * * states the mother is very irresponsible and

       was with her family most of the day without the baby.




                                          18
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶52} Dudley’s grand jury testimony.               Hill also supported his new-

trial motion with Dudley’s grand jury testimony concerning her discovery of

Domika’s barrette on the floor of Hill’s garage.

       {¶53} Before the grand jury, Dudley testified that she had placed three

barrettes in Domika’s hair, and that in searching for Domika, “we went down there

that morning, me, Denise and Ranisha,” and “[t]hey started looking in the garage

and I was standing outside the garage. And I looked down. There was a barrette

right there * * * I was like, there, that is her barrette right there. Ranisha looked up,

picked it up and gave it to me.” Dudley explained, “Ranisha’s last name * * * [is] Hill.

That is his cousin.”

       {¶54} At trial, Dudley testified,

       Me, Barbie, and Pam * * * went down [to Hill’s house], and Ruby was

       standing outside, and Denise. Then Denise give me a shirt and I set

       down there. And they say, “We help [you] look for her, if you want [us]

       to.” Denise and Ronessa, they had helped me look for her that night.

       * * * [W]e started looking in the garages. And I went down and her

       barrette was right there and I found it. They say, “You sure this is your

       baby barrette?” And I was like, “Yeah.”

Dudley then went on to confirm that she had “found a barrette in the garage at

[Hill]’s house that morning,” “just sitting there,” and that that barrette had been in

“[Domika’s] hair when she was asleep with [Dudley] that night,” after Dudley “had

did her hair earlier.” On cross-examination, she specified that she had spotted the

barrette “in the opening” of the “halfway open” garage.

       {¶55} Dudley’s neighbor Pamela Lewis testified for the state at trial. She did

not claim to be present for the search of the garage. Hill’s aunt Denise Hill and her



                                           19
                      OHIO FIRST DISTRICT COURT OF APPEALS



daughter Ronessa Hill testified for the defense at trial. They stated that they had

helped Dudley look for Domika and had been present in the garage when the barrette

was found.

       {¶56} Affidavits of Davenport and Daniels.                     Hill additionally

supported his actual-innocence and ineffective-counsel claims with other newly

discovered evidence contained in the affidavits of Alexis Davenport and her daughter

Mesha Daniels. Davenport and Daniels stated that they were not acquainted with

Hill or his family. They lived across the street from Dudley and her family in 1991,

and they observed from their porch events that transpired there on the day before

Domika was found. Davenport and Daniels declared that if they had been called to

testify at Hill’s trial, they would have testified consistent with the averments of their

affidavits.

       {¶57} In her affidavit, Daniels averred,

       Around the time when the baby was missing, I witnessed [Dudley] and

       Barbara Janson, her next door neighbor and best friend, * * * carrying

       a brown Similac box down the street. Each of them held one side of

       the box. They were walking on their side of the road in the direction of

       Mulberry Street [where Hill lived].

       After [Dudley and Janson] walked down the road, [Dudley’s] mother,

       Debra Dudley, came outside her house and was screaming and sobbing

       very loud. I remember her saying, “I can’t believe she did that to my

       baby.”   [Dudley’s mother] was hysterical and laying next to the

       driveway. [Dudley’s] brother came outside and walked [their mother]

       back inside.




                                           20
                       OHIO FIRST DISTRICT COURT OF APPEALS



        I saw [Dudley and Janson] walk back up the road * * *. They were no

        longer carrying the box.

        {¶58} In her affidavit, Davenport echoed the opinions of others that Dudley’s

care for Domika had been “poor,” and that Domika bore the physical signs of that

care.   According to Davenport, when she scolded Dudley about the care given

Domika and offered to take the child, Dudley said, “[G]o ahead.” Concerning the day

before Domika was found, Davenport averred,

        Although I don’t remember exactly when, I do recall [Dudley’s]

        mother, Debra Dudley, came outside her house and was screaming and

        sobbing very loud. I remember her saying, “I can’t believe she did that

        to my baby.” [Dudley’s mother] was hysterical and was talking out

        loud to herself. [Dudley’s] brother came outside and walked [her]

        back inside.

        Five to ten minutes [later], [Dudley] walked out of the house with

        Barbara Janson, her close friend and next door neighbor.         Unlike

        Debra Dudley, [Dudley and Janson] were both very calm.

        I also noticed that [Dudley and Janson] were carrying a brown Similac

        box down the street. Each of them held one side of the box. They were

        walking on my side of the road in the direction of Mulberry Street.

        After [Dudley and Janson] were out of sight, [Dudley’s mother] came

        outside again and was crying. I heard her scream “my baby is gone.”

        Around 15 minutes [after they left with the box], [Dudley and Janson]

        walked back up the road * * *. They were no longer carrying the box

        that I had seen them carry before. * * * [They] separated and went

        into their own homes.



                                          21
                    OHIO FIRST DISTRICT COURT OF APPEALS



       A few minutes later, * * * I was sitting on my front porch and [Janson]

       walked up, alone, to talk. [Janson] told me that Domika * * * was

       dead. [Janson] was not sad or hysterical at all. Her demeanor was like

       she felt like it was important to tell somebody this news.              I was

       surprised and [Janson] walked away before I asked her any questions.

       This was the day before Domika was found in a box by the Cincinnati

       police.

       {¶59} Davenport and Daniels stated that the police investigating Domika’s

death “asked a lot of questions of the men who regularly hung out with [Dudley].”

The police interviewed Davenport’s husband, and he testified at trial to his and

Davenport’s concerns, in the weeks preceding Domika’s death, about “how she was

treated by her mother.” Neither the police nor defense counsel spoke with Daniels or

Davenport. Nevertheless, Davenport averred, she had gone to the courthouse with

her husband, prepared and willing to testify, but “the judge did not let [her].” The

trial court’s alleged exclusion of Davenport is not reflected in the record.

       {¶60} Thereafter, no one on behalf of either law enforcement or Hill spoke to

Davenport or Daniels until spring 2011, when they met with an investigator and a

lawyer for the federal public defender. Shown a photograph of the box Domika had

been found in, Davenport and Daniels both stated that the box in the photo “look[ed]

like” the box they had seen Dudley and Janson carrying.

       {¶61} Dr. Martin’s affidavit. Hill also supported his actual-innocence

claim with the 2016 affidavit of Dr. Amy Martin, a forensic pathologist who, as

deputy coroner, had performed the autopsy on Domika. At trial, Dr. Martin testified

that Domika’s skull fractures were to “two different areas, so there’s impact in both

the front of the head and the back of the head, * * * [and thus] more consistent with *



                                           22
                     OHIO FIRST DISTRICT COURT OF APPEALS



* * two separate impacts or blows.” The degree of force necessary to cause those

fractures would, in Dr. Martin’s opinion, be “considerable.” In her opinion, the

fractures were not caused by “violent[] shaking” or “a fall from a height of six feet.”

In her “experience,” “fractures like that are caused by very forceful blows, either

direct blows to the head” or, because Domika’s skull fractures “line up pretty well,”

“[a]nother possibility could be a crush type injury, where the head of the deceased

was crushed between two hard surfaces.”            Concerning the cause of death, Dr.

Martin’s opinion, to a reasonable degree of medical certainty, was that Domika had

“died as a result of blunt trauma or blunt impacts to the head.” Concerning the

manner of death, Dr. Martin admitted on cross-examination that she could not

determine from the autopsy alone whether Domika had been “intentionally killed.”

But Domika’s death certificate reflected Dr. Martin’s opinion that Domika had not

been “accidentally killed.” And that opinion, Dr. Martin stated, was “[b]ased on all of

the other evidence that was available, as well as the circumstances as to how the child

was found, the police investigation, all the evidence that was collected, gathering all

that and interpreting all that * * *.”

       {¶62} Dr. Martin’s opinion was evaluated in 2010, at the request of the state

public defender, by Dr. Dirk G. Wood, and Hill offered Dr. Wood’s affidavit in

support of his new-trial motion. Dr. Wood criticized Dr. Martin for “dismiss[ing] the

possibility that the infant’s death was accidental in nature and actually the result of a

fall.” And he found that Dr. Martin’s “contention that the death was intentional

[was] not necessarily accurate.”         In Dr. Wood’s opinion, “the lack of any prior

physical or sexual abuse indicates an accidental death rather than an intentional

homicide,” and “the injuries suffered were more likely to be fatal in this case due to

the child’s apparent underdevelopment.”



                                              23
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶63} Dr. Martin, in her 2016 affidavit, noted that Domika’s autopsy had led

her to “certif[y] * * * blunt trauma to the head” as the “cause of death” and to

“determine[]” that “homicide” had been “the manner of death.” Dr. Martin further

summarized her trial testimony:

       I did opine that the injuries could also be consistent with a crush type

       injury to the infant’s head, [and when] asked by defense counsel at

       that time if an adult falling on a child from a height of nine to ten feet

       might crush a baby skull, I answered that I was not sure, and would

       need additional information. This was not pursued further at * * *

       trial.

       I did not testify that Domika * * * was violently shaken.

       {¶64} In 2015, at the request of the federal public defender, Dr. Martin

reviewed trial testimony and the 1991 autopsy materials, photographs, and report.

She also reviewed materials that either had not been available or had not been

provided for purposes of her testimony at trial. Those materials included a transcript

of the state’s closing argument, “photographs * * * of the location * * * where Domika

[was] purported to have sustained her injury,” “statements that Mr. Hill may have

fallen off of a retaining wall and landed directly on top of Domika,” and a “small

number of relevant” “publications describing clinical presentation and neurological

findings in crush injuries to the head in children * * * [that had not been] published

at the time of * * * trial.” The new materials were attached to her affidavit.

       {¶65} Dr. Martin was “dismayed to read the [state’s] closing argument * * *

that the baby had been ‘shaken very violently[,] * * * hard enough to cause brain

damage,’ ” because “these assertions * * * were not an accurate summary of [her]

testimony.” Her “review of the autopsy materials” did not, she insisted, “change[]



                                           24
                   OHIO FIRST DISTRICT COURT OF APPEALS



[her] opinion as to the cause of death.” But her review of that and the additional

material altered the conclusions underlying her determination that Domika had not

been “accidentally killed,” and that “homicide” had been the manner of death:

       [B]ased in part on my experience as a forensic pathologist over the

       past 25 years, as well as the scientific literature now available that

       discusses more clearly the characteristics of crushing injuries to the

       head in children, I believe that Domika’s head injury is much more

       consistent with a crush injury to the head th[a]n with inflicted impacts,

       and certainly more consistent with a crush injury than with injuries

       seen in shaking or shaking/impact.

       In my opinion, Domika’s head injury is very consistent with the

       statements provided to me by Mr. Hill’s counsel * * * which suggest

       that Mr. Hill fell off the retaining wall seen in the photographs while

       holding the infant, and fell in such a way that his knee crushed

       Domika’s head. The pattern of skull fractures is very consistent with

       this type of crush injury, and much less consistent with direct blows to

       the head usually seen in abusive head trauma.

       {¶66} Defense counsel’s affidavit. Finally, Hill submitted with his

new-trial motion the 2010 affidavit of his trial counsel. Counsel averred that the

police report had not been disclosed to him in discovery, and that if it had, he would

have investigated and cross-examined state witnesses about the report’s statement

that Dudley had run from police and had repeatedly urged the police to look for

Domika in the alley.

       {¶67} Counsel further averred that the defense had contemplated a strategy

beyond inculpating Dudley and impeaching her credibility.               The defense’s



                                          25
                    OHIO FIRST DISTRICT COURT OF APPEALS



investigation had revealed “evidence indicating that [Domika’s] death * * * could

have been an accident”:

       The back yard of [Dudley’s] building * * * was elevated above the street

       by about eight or nine feet, and it was a straight drop down to the

       pavement. * * * I thought it was possible that [Hill] could have taken

       Domika from the residence, and had then accidently fallen over the

       ledge in the back yard while holding [her]. If [Hill] had landed on

       Domika after falling eight or nine feet straight down, this could have

       caused the injuries that resulted in her death.

And the state, before trial, “advised [counsel] that they would be willing to accept a

plea agreement * * * to a single count of manslaughter carrying a prison term of ten

to twenty-five years * * * [and] result[ing] in [Hill] being ineligible for the death

penalty.” Counsel urged Hill to accept the agreement; his family persuaded him to

reject the agreement.

       {¶68} Standard of review. The decision whether to grant a Crim.R. 33

motion for a new trial is discretionary and will not be reversed on appeal in the

absence of an abuse of that discretion. See State v. Williams, 43 Ohio St.2d 88, 330

N.E.2d 891 (1975), paragraph two of the syllabus.

       {¶69} Crim.R. 33(A) does not mandate an evidentiary hearing on a motion

for a new trial. But the rule plainly contemplates a hearing. State v. Gaines, 1st Dist.

Hamilton No. C-090097, 2010-Ohio-895, ¶ 4; State v. Howard, 1st Dist. Hamilton

No. C-850755, 1986 WL 7135, *3 (June 1, 1986).

       {¶70} The nature of the hearing on a new-trial motion is discretionary with

the court and depends on the circumstances. The court need not conduct a full

evidentiary hearing, when the trial record reveals the allegations of the new-trial



                                          26
                    OHIO FIRST DISTRICT COURT OF APPEALS



motion to be meritless. State v. Norton, 1st Dist. Hamilton Nos. C-840415 and C-

840896, 1985 WL 8950, *3 (July 24, 1985). The court may decide the motion in a

“paper hearing,” if the affidavit testimony submitted in support of the motion is

deemed by the court to lack credibility, upon consideration of “all relevant factors,”

including “(1) whether the judge reviewing the postconviction relief petition also

presided at the trial, (2) whether multiple affidavits contain nearly identical

language, or otherwise appear to have been drafted by the same person, (3) whether

the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the

petitioner, or otherwise interested in the success of the petitioner’s efforts, * * * (5)

whether the affidavits contradict evidence proffered by the defense at trial,” (6)

whether the affidavits are “contradicted by” the trial testimony of the affiants, and (7)

whether the affidavits are “internally inconsistent.” State v. Calhoun, 86 Ohio St.3d

279, 284-285, 714 N.E.2d 905 (1999). See Gaines at ¶ 25-26 (holding that the

Calhoun factors for assessing the credibility of affidavits submitted in an R.C.

2953.21 postconviction proceeding apply in assessing affidavits and determining the

need for an evidentiary hearing on a Crim.R. 33(A)(6) motion for a new trial). But

the movant is entitled to an evidentiary hearing, when the motion’s allegations are

not wholly negated by the trial record, the credibility of the affidavits’ averments

cannot be wholly discounted, and the motion, on its face, demonstrates substantive

grounds for relief. Gaines at ¶ 36.

       {¶71} Brady violation. A new trial may be granted under Crim.R. 33(A)(2)

on the ground of prosecutorial misconduct. Prosecutorial misconduct in failing to

disclose, upon request, evidence “material either to guilt or to punishment” violates

the fair-trial guarantee of the Due Process Clause of the Fourteenth Amendment to

the United States Constitution. Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215.



                                           27
                     OHIO FIRST DISTRICT COURT OF APPEALS



This principle extends to wrongfully withheld evidence undermining a witness’s

credibility. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104

(1972).

          {¶72} The materiality of wrongfully withheld evidence must be determined

without regard to the good faith or bad faith of the state in withholding the evidence.

Brady at 87. And the pieces of the evidence must be evaluated “cumulative[ly],” not

each piece in isolation. Wearry, 136 S.Ct. at 1007, 194 L.Ed.2d 78, quoting Kyles,

514 U.S. at 441, 115 S.Ct. 1555, 131 L.Ed.2d 490.          To satisfy the materiality

requirement, the defendant need not demonstrate that he more likely than not would

have been acquitted had the wrongfully withheld evidence been admitted at trial.

(Internal quotation marks and brackets omitted.) Smith v. Cain, 565 U.S. 73, 75, 132

S.Ct. 627, 181 L.Ed.2d 571 (2012). The requirement is satisfied if the evidence,

considered collectively, presents “any reasonable likelihood it could have affected the

judgment of the jury.” (Internal quotation marks omitted.) Wearry at 1006.

          {¶73} Hill supported his Brady claim with the Cincinnati Police Preliminary

Investigation Report and Dudley’s grand jury testimony. The police report was

wrongly withheld. Hill’s demand for discovery gave rise to a duty on the part of the

state to provide “reports from peace officers” and “evidence favorable to [Hill] and

material to [his] guilt or punishment.” Crim.R. 16(B)(5) and (B)(6). The state, in its

response to the demand, did not provide the Cincinnati Police Preliminary

Investigation Report and claimed to “know[] of no evidence favorable to the

defendant.”     But the police report was from a peace officer, and it contained

favorable exculpatory and impeachment evidence.

          {¶74} The report shows that behavior and statements on the part of Dudley

made the reporting officer reluctant to either eliminate Dudley or label Hill as a



                                          28
                    OHIO FIRST DISTRICT COURT OF APPEALS



suspect in Domika’s disappearance and caused the officer to believe that further

inquiry was warranted into Dudley’s parenting of Domika and into why she had run

from the police and had several times directed the police to check the alley behind

the house. The defense could have used the report in cross-examining the officer and

Dudley to advance its theory of innocence, by showing that Dudley had, to an

objective observer, been as likely a suspect in Domika’s disappearance and death as

Hill. And the defense could have used the report to undermine the credibility of

Dudley, the state’s key witness.

       {¶75} Thus, the evidence contained in the police report offered in support of

the Brady claim was not wholly negated by the trial record. The report had been

wrongly withheld. And the evidence it contained would have constituted, and could

have led to, favorable impeaching or exculpatory evidence that might reasonably be

said to have affected the jury’s judgment, had it been disclosed to the defense at trial.

       {¶76} The same cannot be said for Dudley’s grand jury testimony. There is

no real inconsistency between her grand jury testimony and her trial testimony

concerning the location of the barrette found in Hill’s garage. The trial testimony of

Pamela Lewis and defense witnesses Denise and Ronessa Hill cleared up any

confusion that Dudley’s trial testimony might have created concerning who had been

present when the barrette was found and thus resolved any arguable inconsistency

with her grand jury testimony. Thus, the trial record wholly negates Hill’s assertion

that Dudley’s trial testimony varied materially from her grand jury testimony in

those regards.

       {¶77} Nevertheless, as supported by the police report, Hill’s Brady claim, on

its face, demonstrated substantive grounds for relief. Accordingly, Hill was entitled

to an evidentiary hearing on the claim.



                                           29
                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶78} Newly discovered evidence. Hill also sought a new trial on the

ground that the wrongfully withheld police report, along with other newly discovered

evidence contained in the affidavits of Davenport, Daniels, and Dr. Martin,

demonstrated his actual innocence of aggravated murder. A new trial may be granted

under Crim.R. 33(A)(6) on the ground that “new evidence material to the defense is

discovered, which the defendant could not with reasonable diligence have discovered

and produced at trial.” Thus, on his Crim.R. 33(A)(6) claim, Hill bore the burden of

proving that the evidence is “newly discovered evidence,” that is, that it had been

“discovered since the trial, [and] could not in the exercise of due diligence have been

discovered before the trial.” He must also prove that the evidence “is material to the

issues, * * * is not merely cumulative to former evidence, and * * * does not merely

impeach or contradict the former evidence.” And he must prove prejudice. State v.

Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

       {¶79} When a new trial based on newly discovered evidence is sought on

grounds other than a Brady violation, the prejudice prong of the analysis demands

proof that the newly discovered evidence “discloses a strong probability that it will

change the result if a new trial is granted.” Id. But when a new trial based on newly

discovered evidence is sought on the ground of a Brady violation, prejudice must be

determined under the standard provided for evaluating the materiality of wrongly

withheld evidence, that is, whether the evidence presents “any reasonable likelihood

it could have affected the judgment of the jury.” (Internal quotation marks omitted.)

Wearry, 136 S.Ct. at 1006, 194 L.Ed.2d 78. See State v. Carusone, 1st Dist. Hamilton

No. C-140737, 2015-Ohio-4397, ¶ 6-7.

       {¶80} Hill was convicted of aggravated murder in violation of R.C. 2903.01,

as charged in counts one and two of the indictment: count one charged that he had



                                          30
                      OHIO FIRST DISTRICT COURT OF APPEALS



purposely caused Domika’s death during an aggravated burglary; count two charged

that he had purposely caused her death during a kidnapping. See R.C. 2903.01. The

accompanying specifications charged that he had committed the murders during an

aggravated burglary and during a kidnapping.

        {¶81} In Hill’s direct appeal of his convictions, he challenged the legal

sufficiency of the evidence to demonstrate that he had “purposefully killed Domika.”

Hill, 75 Ohio St.3d at 206, 661 N.E.2d 1068. The Supreme Court rejected that

argument, concluding that “the jury could reasonably find that Hill purposefully

killed Domika,” based on Dr. Martin’s opinion testimony that the manner of death

was “homicide, not accident” and on “Hill’s declared intentions” “never to pay child

support and to ‘kill that little bitch’ first.” Id.

        {¶82} But Dr. Martin, in her affidavit, revised her 1991 opinion that the

manner of death had been purposeful “homicide, not accident.” In her opinion,

based on more recent scientific literature, Domika’s skull fractures were “much less

consistent” with “direct blows to the head usually seen in abusive head trauma” and

“very consistent” with a “crush injury” resulting from Hill “[falling] off the retaining

wall * * * while holding [Domika] * * * in such a way that his knee crushed her head.”

And new evidence contained in the police report and in the affidavits of Davenport

and Daniels tend to undermine the credibility of Dudley and Janson concerning

Hill’s “declared intention[]” to kill Domika rather than pay child support.

        {¶83} Also, in reviewing Hill’s death sentences, the Supreme Court did not

discuss the R.C. 2929.04(B)(6) mitigating factor and thus accorded no weight to the

degree of Hill’s participation in the offenses or in the acts that led to Domika’s death.

But the police report and the averments of the affidavits of Davenport and Daniels




                                               31
                    OHIO FIRST DISTRICT COURT OF APPEALS



suggest that Dudley and Janson might instead have been responsible for Domika’s

death.

         {¶84} The Ohio Supreme Court in Petro provided the standard for deciding a

Crim.R. 33(A)(6) motion for a new trial based on newly discovered evidence. We

conclude that common pleas court, in applying that standard, abused its discretion,

because the evidence offered in support of Hill’s actual-innocence claim

demonstrated substantive grounds for relief.

         {¶85} The evidence submitted on the actual-innocence claim cannot be said

to be other than “newly discovered evidence” for purposes of the Petro analysis.

Petro at syllabus. As we noted, implicit in the common pleas court’s grant of leave to

file a new-trial motion was the court’s determination that Hill had been unavoidably

prevented from timely discovering the evidence upon which his newly-discovered-

evidence claims depended.       And as we determined, the court’s unavoidably-

prevented determination is, for purposes of this appeal, unassailable, because the

state did not cross-appeal. Thus, the court’s unavoidably-prevented determination is

conclusive on the issue whether, for purposes of the Petro analysis, the evidence was

“newly discovered,” that is, had been “discovered since the trial [and] could not in

the exercise of due diligence have been discovered before the trial.” Id.

         {¶86} That evidence is also “material to the issues” of Hill’s guilt or

innocence of death-eligible aggravated murder and to the credibility of the key

witnesses against him. The evidence is not “merely cumulative to,” nor does it

“merely impeach or contradict” the evidence adduced at trial. See id. And the

impeachment and exculpatory value of that evidence was such that it might fairly be

said to not only present “a reasonable likelihood it could have affected the judgment

of the jury,” Wearry, 136 S.Ct. at 1007, 194 L.Ed.2d 78, but also to “disclose[] a



                                          32
                      OHIO FIRST DISTRICT COURT OF APPEALS



strong probability that it will change the result if a new trial is granted.” Petro at

syllabus.

        {¶87} The common pleas court decided Hill’s actual-innocence claim upon

his motion and the state’s response. We conclude that, consistent with Calhoun, the

court could not have decided that claim in a “paper hearing.” Calhoun, 86 Ohio

St.3d at 284-285, 714 N.E.2d 905.

        {¶88} We note that the affidavits of Davenport and Daniels contain

averments to out-of-court statements by Dudley, Janson, and Dudley’s mother,

Debra Dudley. But the hearsay rule would not have precluded Davenport from

testifying at trial that “[Janson] told me that Domika * * * was dead,” because the

statement would not have been offered for the truth of the matter asserted. See

Evid.R. 801(C). Also, Dudley’s out-of-court statements could have been used to

impeach her at trial. See Evid.R. 616. And defense counsel could have questioned

Debra Dudley concerning her out-of-court statements, both in preparing for trial and

by calling her to testify at trial.

        {¶89} Otherwise, none of the Calhoun factors apply. The material averments

of Dr. Martin’s affidavit do not rely on hearsay. The judge reviewing the new-trial

motion had not presided at Hill’s trial. The material averments of Davenport and

Daniels were sufficiently distinct from each other that their affidavits did not appear

to have been drafted by the same person. Davenport, Daniels, and Dr. Martin were

not demonstrably interested in the success of Hill’s new-trial motion.           Their

affidavits were internally consistent, and they supported, rather than contradicted,

Hill’s defense strategy. And Dr. Martin’s affidavit contradicted her trial testimony

only to the extent that her trial testimony included her opinion that the manner of

Domika’s death had been “homicide,” while in her affidavit, she allowed for the



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possibility that the manner of death had been other than purposeful. See Calhoun,

86 Ohio St.3d at 284-285, 714 N.E.2d 905. Therefore, for purposes of determining

whether an evidentiary hearing was required, the credibility of the affidavits

submitted in support of Hill’s actual-innocence claim could not have been

discounted, and those averments must be “accepted * * * as true statements of fact.”

See Gaines, 1st Dist. Hamilton No. C-090097, 2010-Ohio-895, at ¶ 35, quoting

Calhoun, 86 Ohio St.3d at 284-285, 714 N.E.2d 905.

       {¶90} We, therefore, conclude that Hill’s actual-innocence claim, on its face,

demonstrated substantive grounds for relief.        Accordingly, we hold that he was

entitled to an evidentiary hearing on that claim.

       {¶91} Ineffective assistance of counsel. Finally, Hill sought a new

trial on the ground that he had been denied his Sixth Amendment right to the

effective assistance of counsel. His ineffective-counsel claim required proof that

counsel’s performance fell below an objective standard of reasonableness, and that

counsel’s deficient performance prejudiced him. See Strickland v. Washington, 466

U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989).

       {¶92} In support of that claim, Hill offered the affidavits of Davenport and

Daniels. And he asserted that counsel, if aware of what either woman had observed

or heard, had been constitutionally ineffective in failing to present their testimony at

trial. But nothing in the trial record or the evidence offered in support of the claim

demonstrates that counsel had been aware of Davenport or Daniels or the testimony

that they might have provided. Therefore, counsel cannot be said to have violated a

substantial duty in that regard. Accordingly, the common pleas court did not abuse

its discretion in denying a new trial on that ground.



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                   OHIO FIRST DISTRICT COURT OF APPEALS



           We Affirm in Part and Reverse and Remand in Part

       {¶93} The common pleas court did not abuse its discretion in denying

without an evidentiary hearing Hill’s claim in his new-trial motion challenging his

trial counsel’s effectiveness. Accordingly, we overrule in part the assignment of error

and affirm that portion of the court’s judgment.

       {¶94} But Hill established an entitlement to an evidentiary hearing on the

Brady and actual-innocence claims advanced in his new-trial motion. The common

pleas court’s decision to deny relief on those grounds in a “paper hearing,” rather

than a full evidentiary hearing, was thus not the product of a sound reasoning

process. We, therefore, hold that with respect to those claims, the court abused its

discretion in overruling the motion without first conducting an evidentiary hearing.

See State v. Hill, 12 Ohio St.2d 88, 232 N.E.2d 394 (1967), paragraph two of the

syllabus (holding that an abuse of discretion is more than an error of law or

judgment, but rather implies that the court's attitude was unreasonable, arbitrary, or

unconscionable); State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d

528, ¶ 14 (quoting AAAA Ents., Inc. v. River Place Community Urban Redev.

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990) to define an “unreasonable”

decision as one that lacks a sound reasoning process). Accordingly, we sustain the

assignment of error in part, reverse the court’s judgment overruling the new-trial

motion on those grounds, and remand this matter for further proceedings consistent

with law and this opinion.

               Judgment affirmed in part and reversed in part, and cause remanded.

CUNNINGHAM, P.J., MYERS and DETERS, JJ.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.

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