[Cite as State v. Gray, 2012-Ohio-2194.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97007



                                      STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                 vs.

                                           LARRY GRAY
                                               DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-487147

        BEFORE:           Cooney, J., Jones, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: May 17, 2012
ATTORNEY FOR APPELLANT

John F. Corrigan
19885 Detroit Rd., #335
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Daniel T. Van
Mark J. Mahoney
Katherine Mullin
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:

       {¶1} Defendant-appellant, Larry Gray (“Gray”), appeals the trial court’s denial of

his motion for a new trial. Finding no merit to the appeal, we affirm.

       {¶2} In January 2008, Gray was convicted of aggravated murder, with a

three-year firearm specification, and of having a weapon while under disability.    He was

sentenced to 28 years to life in prison.   Gray appealed, and his convictions were affirmed

by this court in State v. Gray, 8th Dist. No. 90981, 2009-Ohio-1782.

       {¶3} In August 2009, Gray filed a motion for a new trial on the grounds of newly

discovered evidence.     Attached to his motion was an affidavit from Brian Donan

(“Donan”), an inmate who confessed to being the shooter involved in the death of DeJuan

Harvey, the victim in Gray’s case.     The trial court denied his motion, and Gray failed to

appeal.

       {¶4} In October 2009, Gray moved again for a new trial based on the same

grounds as his previous motion but with a new affidavit to support his claim. He

submitted an affidavit in which Danuielle Love (“Love”) recanted her trial testimony and,

for the first time, alleged that Gray was not the shooter as she had previously stated.

Instead, Love’s affidavit stated that her boyfriend at the time of the incident, Adrian

Robinson, was the shooter.        The trial court denied this motion, and Gray timely

appealed. We reversed the trial court’s decision to deny his motion, finding that the trial
court abused its discretion in failing to hold a hearing on the motion.    State v. Gray, 8th

Dist. No. 94282, 2010-Ohio-5842.      The case was remanded, a hearing was held, and the

court denied Gray’s motion.

       {¶5} Gray now appeals, raising two assignments of error. He argues in his first

assignment of error that the hearing failed to comport with due process.

       {¶6} A motion for a new trial is addressed to the sound discretion of the trial

court and will be granted or denied as the justice of the case requires. State v. Schiebel,

55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one of the syllabus. We will not

reverse a lower court’s refusal to grant a new trial unless there has been an abuse of that

discretion and unless it appears that the matter asserted as a ground for a new trial

materially affects the substantial rights of the defendant. Crim.R. 33. An abuse of

discretion connotes more than an error of judgment; it implies that the trial court’s

attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶7} At the start of the hearing on Gray’s motion for a new trial, Gray’s counsel

withdrew Donan’s affidavit based on evidence that showed Donan was incarcerated at the

time of the murder.   Defense counsel proceeded based on Love’s remaining affidavit.

       {¶8} In anticipation of Love’s potentially perjuring herself on the stand, the State

inquired as to whether Love was in need of counsel.       The court informed Love that if

she were to testify as to the facts set forth in her affidavit, she would be committing

perjury by contradicting her original testimony at trial. Although Love stated that she
did not need an attorney and was prepared to testify, the trial court took a brief recess and

instructed appointed counsel to speak with Love regarding perjury.

       {¶9} Following their discussion, Love took the stand and testified that although

the signature on the affidavit was hers, she had not prepared it and did not make the

statements recanting her trial testimony.   She surmised that she had signed another piece

of paper and that someone had transposed her signature to the affidavit without her

consent.     Love reiterated her trial testimony that Gray was responsible for the death of

Harvey.

       {¶10} In addition, Erica Evans (“Evans”) testified at the hearing that she had

notarized Love’s affidavit.     However, she could not recall Love actually signing the

document in her presence.     Moreover, the State presented evidence in its brief to the trial

court that Evans was not a valid notary at the time the affidavit was signed due to a

forgery conviction.

       {¶11} Gray argues that the hearing on his motion for a new trial violated his due

process rights because Love was coerced into recanting the statements contained in her

affidavit.     Gray argues that the hearing was conducted “in an atmosphere of

intimidation.”    However, after a thorough review of the record, there is no evidence that

Love was coerced into recanting the statements contained in her affidavit.         Moreover,

there is no evidence in the record of any intimidation of Love nor of any threats made by

the State regarding the potential for perjury.
       {¶12} Although Gray offered an affidavit in which Love seemingly recanted her

original trial testimony, Love was adamant at the hearing that she was indeed truthful at

trial and that she had not prepared the affidavit Gray presented.       Newly discovered

evidence which purportedly recants testimony given at trial is looked upon with the

utmost suspicion and must be viewed with strict scrutiny. State v. Bradley, 101 Ohio

App.3d 752, 758-59, 656 N.E.2d 721 (8th Dist.1995).      See also State v. Smith, 8th Dist.

No. 78229, 2001 WL 498768 (May 10, 2001), and State v. Braun, 8th Dist. No. 95271,

2011-Ohio-1688.

       {¶13} Thus, given the trial court’s broad discretion in determining whether to grant

a new trial and the fact that the trial court heard the witnesses’ testimony in addition to

reviewing the affidavits, we find no grounds to disturb the trial court’s finding the

affidavit not credible.   Determinations of the credibility of witnesses are primarily for

the   trial court as the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), syllabus.

       {¶14} We find no evidence of coercion or threats made to Love and, thus, find no

violation of Gray’s due process rights. Furthermore, the trial court did not abuse its

discretion in denying Gray’s motion for a new trial based on the evidence submitted at the

hearing.

       {¶15} Accordingly, the first assignment of error is overruled.

       {¶16} In his second assignment of error, Gray argues that his counsel was

ineffective for failing to seek immunity for Danuielle Love at the hearing.
      {¶17} To reverse a conviction for ineffective assistance of counsel, the defendant

must prove “(1) that counsel’s performance fell below an objective standard of

reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant

resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v.

Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      {¶18} A court’s sole authority for granting immunity is regulated by R.C. 2945.44,

which provides in relevant part:

      (A) In any criminal proceeding in this state * * *, if a witness refuses to
      answer or produce information on the basis of his privilege against
      self-incrimination, the court of common pleas of the county in which the
      proceeding is being held, unless it finds that to do so would not further the
      administration of justice, shall compel the witness to answer or produce the
      information, if both of the following apply:

      (1) The prosecuting attorney of the county in which the proceedings are
      being held makes a written request to the court of common pleas to order
      the witness to answer or produce the information, notwithstanding his claim
      of privilege;

      (2) The court of common pleas informs the witness that by answering, or
      producing the information he will receive immunity under division (B) of
      this section.

      (B) If, but for this section, the witness would have been privileged to

      withhold an answer or any information given in any criminal proceeding,

      and he complies with an order under division (A) of this section compelling

      him to give an answer or to produce any information, he shall not be

      prosecuted or subjected to any criminal penalty in the courts of this state for
       or on account of any transaction or matter concerning which, in compliance

       with the order, he gave an answer or produced any information.

       {¶19} In State ex rel. Leis v. Outcalt, 1 Ohio St.3d 147, 438 N.E.2d 443 (1982), the

Ohio Supreme Court held that, under this statute, a trial court may exercise its discretion

to grant or deny immunity only when 1) the witness first refuses to answer upon a claim

of privilege against self-incrimination and 2) the prosecuting attorney makes a written

request to order the witness to testify. The Supreme Court noted that under former R.C.

2945.44, immunity could be granted upon the request of either the prosecutor or the

defendant, but “the present statute * * * clearly reflects the intent of the General

Assembly that immunity be used only as a prosecutorial tool to fulfill the government’s

need for testimony.” Id. at 149.

       {¶20} In the instant case, Love did not refuse to answer based on a claim of

privilege against self-incrimination, even after discussing with her counsel the court’s

concerns regarding perjury. Moreover, the prosecuting attorney made no written request

to order Love to testify. It is clear from the record that Love chose to testify at the

hearing of her own volition, without hesitation.

       {¶21} Thus, Gray fails to substantiate his claims for ineffective assistance of

counsel with any evidence from the record.         There is no evidence that his counsel’s

performance fell below an objective standard of reasonableness when he failed to seek

immunity for Love.

       {¶22} Accordingly, the second assignment of error is overruled.
      {¶23} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
