Background
Cordell Hubbard was convicted in connection with the 2002 shooting death of Omar Clark and received a life sentence with parole eligibility after 28 years. The case arose from an altercation over a $20 PCP-laced cigarette. Hubbard later swore in an affidavit that he had shot Clark, while his friend, Sailor, had provided a fabricated alibi at their joint trial.
In his latest effort to challenge the conviction, Hubbard sought leave to file an untimely motion for a new trial under Crim.R. 33. He relied on a police report recounting an informant’s statement implicating Sailor as Clark’s shooter, arguing that the State had withheld exculpatory evidence and that the report affected his conviction for complicity.
The Court’s Holding
The Eighth District affirmed the denial of leave. A defendant seeking permission to file a delayed new-trial motion must prove by clear and convincing evidence that he was unavoidably prevented from discovering the evidence supporting the proposed motion. The court’s inquiry at the leave stage is limited to that question, not the merits of the proposed new-trial claim.
Hubbard did not meet that standard. The report’s assertion that Sailor had been identified as a possible principal actor reflected the State’s trial theory and information Hubbard already knew. Moreover, Hubbard had sworn that he shot Clark. Because the purportedly new evidence was within Hubbard’s knowledge at the time of trial, it was not newly discovered evidence, and he was not unavoidably prevented from discovering it.
Key Takeaways
- Leave for an untimely Crim.R. 33 new-trial motion requires clear and convincing proof that the defendant was unavoidably prevented from discovering the evidence.
- At the leave stage, courts do not decide the merits of the proposed new-trial motion.
- Evidence known to the defendant at trial is not newly discovered merely because it was not obtained or presented earlier.
Why It Matters
The decision reinforces the narrow threshold for reopening long-final criminal convictions through delayed new-trial motions. A defendant cannot use a later-obtained document to establish unavoidable prevention when its underlying information was already known at trial.