[Cite as State v. Keith, 192 Ohio App.3d 231, 2011-Ohio-407.]




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




The STATE OF OHIO,

        APPELLEE,                                               CASE NO. 3-10-19

        v.

KEITH,                                                          OPINION

        APPELLANT.




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

                                          Judgment Affirmed

                                Date of Decision: January 31, 2011




APPEARANCES:

        Clifford J. Murphy, for appellee.

        Tyson Fleming and Rachel Troutman, for appellant.



        ROGERS, P.J.
Case No. 3-10-19



       {¶ 1} Defendant-appellant, Kevin Keith, appeals the judgment of the Court of

Common Pleas of Crawford County denying his motion for leave to file a delayed motion

for a new trial, as well as the underlying motion for a new trial. On appeal, Keith argues

that the trial court erred when it abused its discretion in denying his motion without

holding a hearing, when it evaluated and denied his motion under the wrong standards for

a new trial, when it applied the doctrine of res judicata to his claims, and when it failed to

rule on his claims under Arizona v. Youngblood (1988), 488 U.S. 51. Based upon the

following, we affirm the judgment of the trial court.

       {¶ 2} In February 1994, the Crawford County Grand Jury indicted Keith on three

counts of aggravated murder in violation of R.C. 2929.02, with capital-offense

specifications, and on three counts of attempted aggravated murder in violation of R.C.

2903.01 and 2923.02, felonies of the first degree. The indictment arose from an event

during which Marichell D. Chatman, her seven-year-old daughter, Marchae D. Chatman,

her cousins, Quanita M. Reeves and Quinton M. Reeves, her aunt, Linda Chatman, and

Richard Warren were shot in Marichell’s apartment. Marichell, Marchae, and Linda died

as a result of the shooting, and Quanita, Quinton, and Richard were seriously injured.

       {¶ 3} In March 1994, Keith entered a plea of not guilty to all counts in the

indictment.

       {¶ 4} In May 1994, Keith filed a notice of alibi. Additionally, the case proceeded

to a jury trial, at which the jury convicted Keith on all six counts of the indictment as


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charged and recommended the death penalty for the aggravated-murder convictions. At

trial, evidence was presented that approximately eight hours after the shooting, victim

Richard Warren, while recovering in the hospital, wrote the name “Kevin” on a piece of

paper and thereafter selected Keith from a photo array; that investigators recovered 24

bullet casings from the scene of the shooting, which had all been fired from the same

gun; and that investigators discovered another matched bullet casing at the entrance to the

General Electric plant in Bucyrus, where Keith had picked up his girlfriend after the

shooting.

       {¶ 5} In June 1994, the trial court sentenced Keith to death on the aggravated-

murder convictions and to a 7-to-25-year prison term on each of the convictions for

attempted aggravated murder, to be served consecutively. Subsequently, Keith appealed

his conviction and sentence.

       {¶ 6} In April 1996, this court affirmed Keith’s conviction and sentence, State v.

Keith, 3d Dist. No. 3-94-14, 1996 WL 156710, and also issued a separate opinion

regarding Keith’s death sentence in conformity with R.C. 2929.05(A). State v. Keith, 3d

Dist. No. 3-94-14, 1996 WL 156716. Subsequently, Keith appealed to the Supreme

Court of Ohio.

       {¶ 7} In September 1996, while his direct appeal was pending, Keith filed his

first petition for postconviction relief in the trial court, alleging that he had been denied




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effective assistance of counsel and attaching numerous exhibits that were not part of the

trial record.

       {¶ 8} In December 1996, Keith filed a supplemental petition for postconviction

relief, in which he alleged ineffective assistance of counsel and requested an evidentiary

hearing.

       {¶ 9} In October 1997, the Supreme Court of Ohio unanimously affirmed Keith’s

conviction. State v. Keith (1997), 79 Ohio St.3d 514, reconsideration denied (1997), 80

Ohio St.3d 1450, certiorari denied (1998), 523 U.S. 1063.

       {¶ 10} In February 1998, the trial court denied Keith’s first petition for

postconviction relief, without granting an evidentiary hearing, in a 16-page opinion in

which it addressed all of his arguments, as well as each of his attached exhibits.

       {¶ 11} In March 1998, Keith appealed the trial court’s denial of his first petition

for postconviction relief.

       {¶ 12} In August 1998, this court affirmed the trial court’s denial of Keith’s first

petition for postconviction relief. State v. Keith, 3d Dist. No. 3-98-05, 1998 WL 487044.

       {¶ 13} In September 1999, Keith filed a habeas corpus petition in the United States

District Court, presenting eight grounds for relief.

       {¶ 14} In June 2001, the United States District Court denied Keith’s petition for

habeas corpus. Thereafter, Keith appealed the denial and sought a certificate of

appealability.



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         {¶ 15} In March 2003, the United States Court of Appeals granted a certificate of

appealability on six of Keith’s grounds for relief.

         {¶ 16} In August 2004, Keith filed a second petition for postconviction relief with

the trial court.

         {¶ 17} In July 2006, the United States Court of Appeals denied Keith’s writ of

habeas corpus. Keith v. Mitchell (C.A.6, 2006), 455 F.3d 662, petition for rehearing

denied en banc (C.A.6, 2006), 466 F.3d 540, certiorari denied (2007), 549 U.S. 1308.

         {¶ 18} In February 2007, the trial court dismissed Keith’s second petition for

postconviction relief.1

         {¶ 19} In March 2007, Keith appealed the trial court’s dismissal of his second

petition for postconviction relief to this court.

         {¶ 20} In August 2007, while his appeal to this court was pending, Keith filed a

motion for leave to file a delayed motion for new trial and a motion for a new trial in the

trial court, as well as a motion to reopen his direct appeal pursuant to App.R. 26(B) with

this court, which this court denied.

         {¶ 21} In February 2008, this court affirmed the trial court’s denial of Keith’s

second petition for postconviction relief. State v. Keith, 176 Ohio App.3d 260, 2008-

Ohio-741. Thereafter, Keith appealed this court’s denial to the Supreme Court of Ohio.



1
  The lengthy delay between Keith’s second petition for postconviction relief and the trial court’s judgment entry
resulted from a stipulation between Keith and the state that the state petition should be suspended pending a decision
by the United States Court of Appeals on the writ of habeas corpus.


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       {¶ 22} In March 2008, Keith filed a motion for an evidentiary hearing for his

motion for new trial.

       {¶ 23} In April 2008, the Supreme Court of Ohio affirmed this court’s denial of

Keith’s August 2007 motion to reopen pursuant to App.R. 26(B). State v. Keith, 119

Ohio St.3d 161, 2008-Ohio-3866.

       {¶ 24} In July 2008, the trial court denied Keith’s motion for leave to file a

delayed motion for new trial, motion for evidentiary hearing, motion for new trial, and all

ancillary motions. Thereafter, Keith appealed the trial court’s denial of his motions to

this court.

       {¶ 25} In December 2008, this court affirmed the trial court’s judgment denying

his motions. State v. Keith, 3d Dist. No. 3-08-15, 2008-Ohio-6187.

       {¶ 26} In May 2010, Keith filed a motion for leave to file a delayed motion for a

new trial pursuant to Crim.R. 33(B), arguing that the state had improperly suppressed

evidence, causing him to be unavoidably prevented from discovering the evidence upon

which he relied, and that the state violated his constitutional rights when it failed to

disclose evidence favorable to him. Specifically, Keith argued that pending litigation in

an unrelated suit against the Bucyrus Police Department revealed that a phone call made

by witness Nurse John Foor to the police department stating that victim Richard Warren

had written the name “Keith” on a piece of paper never occurred and that a bullet casing

allegedly found by witness Farnella Graham near the General Electric plant, where Keith



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had picked up his girlfriend following the shooting, was not actually found at that

location.

       {¶ 27} Concerning the phone call, Keith argued that Lieutenant John Beal of the

Bucyrus Police Department testified that he took the phone call from Nurse Foor at 5:00

a.m.; that a public records request had been made to obtain a record of the phone call, but

Lieutenant Beal responded that “[t]he recorded phone call from Nurse Foor was not

copied for the prosecution or the defense at that time,” that the recording had been

destroyed, and that there was no daily phone log documenting incoming calls; that the

city of Bucyrus had since been sued in an unrelated case for the police department’s

destruction of the recordings of the police department’s phone calls in State ex rel. Davila

v. Bucyrus, case No. 09 CV 0303; that, due to the Davila case, Keith’s counsel became

aware of the existence of contemporaneous radio logs, which recorded information about

the police department’s phone calls; and that there was no 5:00 a.m. phone call evidenced

on the radio log, despite Lieutenant Beal’s and Nurse Foor’s testimony.

       {¶ 28} Concerning the bullet casing, Keith argued that at trial, the state linked him

to the murders because he had picked up his girlfriend at the General Electric plant at

11:00 p.m. on the night of the murders; that at trial, a police officer testified that he was

dispatched to an address “right across the street from General Electric,” where a witness

stated she found a bullet casing on the sidewalk in front of her house; and that the newly




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discovered radio logs, however, indicate that the witness stated she found the casing “in

the McDonald’s area,” which was over one mile away from the General Electric plant.

       {¶ 29} Keith concluded that because the Bucyrus Police Department destroyed the

recordings of the station’s phone calls, and because Lieutenant Beal maintained that there

was no daily phone log that documented incoming calls, he was unavoidably prevented

from discovering the evidence regarding Nurse Foor’s phone call and the phone call

regarding the bullet casing; that he learned of the existence of the radio logs only due to

the proceedings in the Davila case; and that the state misled him and failed to disclose

this evidence that was favorable to him.

       {¶ 30} Contemporaneously, Keith filed an underlying motion for a new trial based

on newly discovered evidence pursuant to Crim.R. 33(A)(6), setting forth the same

argument as in his motion for leave to file a delayed motion for a new trial. However,

Keith additionally argued that because the state allegedly suppressed evidence favorable

to his defense, he needed only to demonstrate that the evidence was material to his case,

citing State v. Johnston (1988), 39 Ohio St.3d 48, 60 (“ ‘the usual standards for new trial

are not controlling because “the fact that such evidence was available to the prosecution

and not submitted to the defense places it in a different category than if it had simply

been discovered from a neutral source after trial” ’ ”). Keith contended that, accordingly,

he did not need to demonstrate “the usual standards,” or that the newly discovered

evidence probably would have resulted in acquittal.



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       {¶ 31} Thereafter, the state filed a motion in opposition to Keith’s motion for leave

to file a delayed motion for a new trial, as well as the underlying motion for a new trial.

The state argued that Keith’s motions indicated that he had been in possession of the

information at issue since 2007 and had not explained why the claims were not subject to

res judicata in his successive new trial motion; that the information, at best, could only be

used for impeachment purposes, as both witnesses at issue testified at trial; and that the

information was not material and was a corollary matter as both witnesses testified at

trial, Nurse Foor testifying that he contacted the police department and informed them

that Warren had written “Kevin” on a piece of paper, and Farnella Graham testifying that

she discovered a bullet casing on the sidewalk in front of her house, across the street from

the General Electric plant, and that her daughter had called the police department.

       {¶ 32} In August 2010, the trial court denied Keith’s motion for leave, as well as

the underlying motion for a new trial in a thorough 15-page judgment entry. The trial

court noted the extensive history of the case, emphasizing that many courts and judges

had evaluated the evidence in the case and had concluded that the evidence strongly

supported Keith’s guilt and the jury’s verdict. Additionally, the trial court found that

Keith’s claims regarding Nurse Foor’s testimony were “remote and collateral to the plain

fact that Richard Warren, although shot once in the jaw, twice in the back, and finally

once in the buttocks, survived to testify in court and to positively identify Kevin Keith.”

Further, the trial court stated that 25 bullet casings were recovered; that experts testified



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that all 25 bullet casings were fired from the same weapon; that all of the bullet casings

were recovered at or near the location of the shootings, except for one; that the one

remaining bullet casing was discovered near the entrance to the General Electric plant in

Bucyrus; that the Bucyrus Police Department radio log included an entry reading “1221

S. Walnut. Woman found casing. Thinks she may have picked it up in the McDonald’s

area”; that, at trial, Officer John Seif testified that Farnella Graham told him, face to face,

that she recovered the casing “on the sidewalk that morning”; that, at trial, Farnella

Graham testified that she found the casing on the sidewalk in front of her house the

morning of February 14 while cleaning fast-food litter from her front walk, that she lived

across the street from the General Electric plant, and that her daughter had called the

police about the casing; that the bullet was linked to Keith because he had picked up his

girlfriend at the General Electric plant on the evening of February 13; and that the

discrepancy in the log concerning the location of the casing was likely explained by

Farnella Graham’s testimony at trial that she initially assumed that the fast-food litter she

found by the casing was from McDonald’s, but then noticed it was from Wendy’s.

       {¶ 33} The trial court then enumerated the following findings of fact and

conclusions of law:

            1. Notwithstanding repeated collateral attacks upon the capital
       convictions of Kevin Keith, the evidence of his guilt beyond a reasonable
       doubt is compelling, persuasive and overwhelming.

             2. The defendant has failed to establish, by any standard of proof,
       that the so-called newly discovered evidence regarding Nurse John Foor


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        would produce a strong probability for a change in the jury verdict of
        guilty.

             3. The issue of whether Nurse John Foor did or did not telephone
        BPD [Bucyrus Police Department] on a date and time certain is only
        remotely material to the issues in this case, and unlikely to impact the
        credibility of the witness Richard Warren.

             4. The issue of whether Nurse John Foor did or did not telephone
        the BPD on a date and time certain does not impeach or contradict Richard
        Warren’s identification of the Defendant, much less does it contradict the
        constellation of evidence, both direct and circumstantial, connecting Kevin
        Keith to the events in question.

             5. The issue of John Foor’s testimony has been so thoroughly
        explored and dissected as to be foreclosed and resolved as res judicata.
        This most recent issue appears to have been known to Keith’s attorneys for
        more than a year.

              6. The Defendant has failed to establish, by any standard of proof,
        that the so-called newly discovered evidence regarding State’s Exhibit 43
        [the bullet casing] and the police log would produce a strong probability for
        a change in the jury verdict of guilty.

              7. The police log, regarding the discovery of State’s Exhibit 43, on
        its face, merely contradicts the testimony of Farnella Graham; however, the
        log entry is patently erroneous and unworthy of belief.

              8. The combination of both direct and circumstantial evidence in
        this case supports the finding that even were this court to grant a motion for
        new trial, the result—a verdict of guilty—would remain the same.

        {¶ 34} It is from this judgment that Keith appeals, presenting the following

assignments of error for our review.2

                                      Assignment of Error No. I


2
 In September 2010, Governor Ted Strickland granted clemency to Keith, commuting his death sentence to life
without parole.


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              The trial court abused its discretion in denying appellant’s motion
       for leave to file a motion for new trial and for failing to hold a hearing.

                                 Assignment of Error No. II

              The trial court erred in evaluating and denying appellant’s motion
       for new trial under the wrong standards for new trial, when the newly
       discovered evidence was available to the prosecution and not submitted to
       the defense.

                                Assignment of Error No. III

              The trial court erred in applying the doctrine of res judicata to
       appellant’s claims.

                                Assignment of Error No. IV

             The trial court erred in failing to rule on appellant’s claimed [sic]
       under Arizona v. Youngblood.

                            Assignments of Error Nos. I and II

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

discretion when it denied his motion for leave to file a motion for a new trial and failed to

hold a hearing on the motion. Specifically, Keith contends that he was entitled to file his

motion for a new trial because he was unavoidably prevented from discovering certain

evidence relied upon in his motion for a new trial. The state responds that Keith failed to

meet his burden under Crim.R. 33 because he failed to file his motion within 120 days of

the jury’s verdict and failed to demonstrate by clear and convincing proof that he was

unavoidably prevented from filing a motion for a new trial, as evidence demonstrated that

Keith obtained the radio log at issue in 2007; that Nurse John Foor testified at trial that he



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called the police department; that Lieutenant Beal testified at trial, corroborating Foor’s

testimony; and that, consequently, the radio log was not material evidence. Further, the

state responds that because Farnella Graham testified at trial that she located the bullet

casing across the street from the General Electric plant, and Officer Seif testified at trial,

corroborating her testimony, the radio log was not material evidence.

       {¶ 36} In his second assignment of error, Keith argues that the trial court erred in

evaluating and denying his motion for a new trial under the wrong standards, given that

the newly discovered evidence was available to the prosecution and not submitted to the

defense. Specifically, Keith contends that he presented a claim under Brady v. Maryland

(1963), 373 U.S. 83, which was not subject to the usual standard for a motion for a new

trial, and that the trial court should not have weighed the sufficiency of the evidence but

should have considered the evidence in the aggregate. The state responds that Brady

requires a “reasonable probability” of a different outcome with the exculpatory evidence,

or an “undermined confidence in the trial result obtained without exculpatory evidence,”

which Keith failed to demonstrate.

       {¶ 37} Motions for a new trial are governed by Crim.R. 33(A), which provides:

              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. When a motion for a new trial is made upon the


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      ground of newly discovered evidence, the defendant must produce at the
      hearing on the motion, in support thereof, the affidavits of the witnesses by
      whom such evidence is expected to be given, and if time is required by the
      defendant to procure such affidavits, the court may postpone the hearing of
      the motion for such length of time as is reasonable under all the
      circumstances of the case. The prosecuting attorney may produce affidavits
      or other evidence to impeach the affidavits of such witnesses.

      {¶ 38} Additionally, Crim.R. 33(B) sets forth timing requirements for new trial

motions and provides:

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

      {¶ 39} Accordingly, a party may not seek a new trial on the basis of newly

discovered evidence after the 120-day time limit unless he can demonstrate that he was

unavoidably prevented from discovering the new evidence within the time limit. App.R.

33(B). “A party is ‘unavoidably prevented’ from filing a motion for a new trial if the

party had no knowledge of the existence of the ground supporting the motion and could



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not have learned of that existence within the time prescribed for filing the motion in the

exercise of reasonable diligence.” State v. Lee, 10th Dist. No. 05AP-229, 2005-Ohio-

6374, ¶8.

       {¶ 40} In order to be able to file a motion for a new trial based on newly

discovered evidence beyond the 120 days prescribed in the above rule, a petitioner must

first file a motion for leave, showing by “‘clear and convincing proof that he has been

unavoidably prevented from filing a motion in a timely fashion.’” State v. Graham, 3d

Dist. No. 5-05-13, 2006-Ohio-352, ¶10, quoting State v. Neace (Mar. 1, 2000), 3d Dist.

No. 10-99-07, 2000 WL 228921. The standard of clear and convincing evidence used in

Crim.R. 33(B) means “that measure or degree of proof which is more than a mere

‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the

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

Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus.

       {¶ 41} Generally, a trial court’s decision to deny a motion for a new trial will not

be disturbed on appeal absent an abuse of discretion. State v. Ray, 3d Dist. No. 14-05-39,

2006-Ohio-5640, ¶53, citing State v. Farley, 10th Dist. No. 03AP-555, 2004-Ohio-1781,

¶6-7. However, in cases where the appellant has alleged that the prosecution suppressed

evidence, the appellate court does not review under the abuse-of-discretion standard but

is required to conduct a due process analysis to determine “whether a defendant’s



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substantial rights have been materially affected.” State v. Johnston (1988), 39 Ohio St.3d

48, 59.     In cases where the appellant has alleged that the prosecution suppressed

evidence, he is not subject to the usual burden required to obtain a new trial—

demonstrating that the newly discovered evidence probably would have resulted in

acquittal. Id. at 60, citing United States v. Agurs (1976), 427 U.S. 97, 111.

         {¶ 42} A prosecutor’s suppression of evidence favorable to an accused violates

due process rights where the evidence is material to guilt or punishment. Brady, 373 U.S.

at 87.    However, “[i]n order to constitute a violation of due process, the evidence

withheld from Defendant must be (1) favorable to the defendant and (2) material to guilt

or innocence.” State v. Coleman, 2d Dist. Nos. 04CA43, 04CA44, 2005-Ohio-3874, ¶36,

citing Brady. Accordingly, the Supreme Court of Ohio has held that “the key issue in a

case where exculpatory evidence is alleged to have been withheld is whether the evidence

is material.” Johnston, 39 Ohio St.3d at 60. “ ‘[E]vidence is “material” only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different; a ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.’” State v. Jackson, 107 Ohio St.3d

53, 2005-Ohio-5981, ¶129, quoting United States v. Bagley (1985), 473 U.S. 667, 682.

Finally, the United States Supreme Court has held that “[t]he mere possibility that an

item of undisclosed information might have helped the defense, or might have affected




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the outcome of the trial, does not establish “materiality” in the constitutional sense.”

Agurs, 427 U.S. at 109-110.

       {¶ 43} Here, we find that Keith’s argument fails under the due process analysis, as

he has failed to demonstrate materiality. Thus, we need not determine whether he was

unavoidably prevented from filing his motion in a timely fashion or whether he

demonstrated that the state suppressed the radio log.

       {¶ 44} Initially, we reiterate this court’s prior finding that “a jury of twelve

citizens found the evidence presented sufficient to convict Keith, and this verdict has

stood the test of time and an exhaustive series of both state and federal appeals.” Keith,

2008-Ohio-6187, at ¶35.

       {¶ 45} Concerning the phone call from Nurse Foor, Keith argued that Lieutenant

Beal testified at trial that he took the phone call from Foor at 5:00 a.m., but that in newly

discovered radio logs that recorded information about the police station’s phone calls,

there was no 5:00 a.m. phone call evidenced on the radio log.            However, Keith’s

argument ignores the fact that both Beal and Foor testified at trial regarding the phone

call and were subject to cross-examination on the matter, making the mere absence of the

phone call on the station’s radio log immaterial. Further, as the trial court found, victim

Richard Warren survived the shooting and testified in court that Keith was the shooter.

In light of the preceding, we cannot find that the absence of the phone call at issue from




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the radio logs is even remotely sufficient to undermine confidence in the outcome of the

trial.

         {¶ 46} We further find the offered evidence concerning the radio log entry about

the bullet casing to be immaterial. Keith argued that testimony the state presented at trial

indicated that a bullet casing was discovered right across the street from the General

Electric plant but that the newly discovered radio logs contained an entry indicating that

the caller indicated that the casing was discovered “in the McDonald’s area,” which was

over one mile away from the General Electric plant. However, Keith’s argument again

ignores the testimony that was heard at trial on the matter. At trial, Officer John Seif

testified that Farnella Graham told him, face to face, that she recovered the casing “on the

sidewalk that morning,” and that, at trial, Farnella Graham testified that she found the

bullet casing on the sidewalk in front of her house while cleaning fast-food litter from her

front walk; that she lived across the street from the General Electric plant; and that her

daughter had called the police about the bullet casing. We agree with the trial court that

the discrepancy in the log concerning the location of the bullet casing was likely

explained by Graham’s testimony at trial that she initially assumed that the fast-food litter

she found by the bullet casing was from McDonald’s, but then noticed that it was from

Wendy’s, and that not she but her daughter called the police. In light of the clear

testimony heard at trial, as well as the obvious explanation for the discrepancy in the

radio log entry, we do not find that this evidence is even remotely sufficient to undermine



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confidence in the outcome of the trial. Consequently, we find that the trial court did not

err in overruling Keith’s motion for leave to file a motion for a new trial.

       {¶ 47} Accordingly, we overrule the first and second assignments of error.

                                Assignment of Error No. III

       {¶ 48} In his third assignment of error, Keith argues that the trial court erred in

applying the doctrine of res judicata to his claims. Specifically, Keith contends that a

trial court must grant a new trial if the defendant presents newly discovered evidence

material to his defense that could not have been discovered with reasonable diligence and

produced at trial. The state responds that Keith was aware of the issue concerning Nurse

Foor’s testimony for over one year, making his argument barred by res judicata, and,

further, that this was not the only basis on which the trial court denied Keith’s motions.

       {¶ 49} Having found in our analysis of Keith’s first and second assignments of

error that he failed to demonstrate grounds for a new trial, we find the third assignment of

error to be moot, and we decline to address it. App.R. 12(A)(1)(c).

                                Assignment of Error No. IV

       {¶ 50} In his fourth assignment of error, Keith argues that the trial court erred in

failing to rule on his claims under Arizona v. Youngblood. Specifically, Keith contends

that the trial court was required to grant a new trial because his due process rights were

violated when the police acted in bad faith and failed to preserve potentially useful

evidence. The state responds that according to the Supreme Court of Ohio’s decision in



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State v. Geeslin (2007), 116 Ohio St.3d 252, a defendant is required to establish that the

state acted in bad faith when the evidence is only potentially useful and not material and

that Keith failed to offer any rational basis for bad faith.

       {¶ 51} Having found in our analysis of Keith’s first and second assignments of

error that he failed to demonstrate grounds for a new trial, we find the fourth assignment

of error to be moot, and we decline to address it. App.R. 12(A)(1)(c).

       {¶ 52} Having found no error prejudicial to the appellant herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                         Judgment affirmed.

       PRESTON and WILLAMOWSKI, JJ., concur.




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