State v. Condon

¶1 dissenting.

¶2 {¶ 29} Because I would affirm the trial court’s judgment, I respectfully dissent from the majority’s opinion.

¶3 {¶ 30} The majority relies on a decision from the Eleventh Circuit Court of Appeals to support its proposition that evidence from a co-defendant that was unavailable at trial because the co-defendant had invoked his privilege against self-incrimination is “newly discovered” evidence. But, as noted above, this is the minority view. The majority of the circuit courts, distinguishing between “newly discovered” and “newly available” evidence, adopt the view that when a co-defendant has invoked his privilege against self-incrimination at trial and subsequently comes forward to offer testimony exculpating the defendant, the evidence is not newly discovered if the defendant was aware of this potential testimony at trial. 1 Additionally, the courts that adopt this view note that testimony from a *33 co-defendant who has already been sentenced is untrustworthy and suspect. 2 I agree with this view.

¶4 {¶ 31} Here Condon maintains that he first became aware that Dr. Tobias took the photographs involving Perry Melton when, in the course of a civil action filed last year, Dr. Tobias submitted an affidavit admitting as much. But there is no evidence to support this assertion. It does not seem reasonable that Condon did not discover this information during his trial or within 120 days following his conviction when the same firm represented both him and Dr. Tobias. Further, it is reasonable to presume that Condon knew which photographs he had taken and which ones he had not. In fact, during his trial he implied that he had not taken the photograph of Melton. If he had not taken that photograph, he most likely knew who had, since Dr. Tobias was the only other person, according to the evidence, who had access to the morgue and Condon’s studio, where the photographs were found.

¶5 {¶ 32} Because Condon did not establish that he was unaware of Dr. Tobias’s testimony at trial or that he was prevented from discovering that evidence within 120 days following his conviction, Dr. Tobias’s admission was not newly discovered evidence as contemplated by Crim.R. 33(B), and the trial court did not act unreasonably in denying Condon’s motion for leave to file a motion for a new trial.

¶6 {¶ 33} As an aside, I disagree with the majority that Dr. Tobias’s testimony is more reliable than the average co-defendant implicating himself to exonerate someone else. Dr. Tobias was acquitted of the charge involving the photographs of Perry Melton and, thus, is not subject to any further criminal liability, similar to other co-defendants. Further, although there is a civil suit pending against him, he potentially faces little or no civil liability because, based on his affidavit, he took the pictures of Melton in the course of his employment, which potentially grants him immunity from any civil liability.