State v. Brown

[Cite as State v. Brown, 2026-Ohio-3796.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY STATE OF OHIO, CASE NO. 2026-T-0030 Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas FELIX O. BROWN, JR., Trial Court No. 1995 CR 00127 Defendant-Appellant. OPINION AND JUDGMENT ENTRY Decided: September 28, 2026 Judgment: Affirmed Dennis Watkins, Trumbull County Prosecutor, and Charles L. Morrow, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee). Felix O. Brown, Jr., pro se, PID# A312-676, Grafton Correctional Institution, 2500 South Avon Belden Road, Grafton, OH 44044 (Defendant-Appellant). EUGENE A. LUCCI, J. {¶1} Appellant, Felix O. Brown, Jr., appeals from the judgment of the Trumbull County Court of Common Pleas, denying his motion for leave to file a motion for a new trial. Mr. Brown contends he is entitled to a new trial. We affirm the trial court. {¶2} The following facts, which are, at the least, indirectly important to this court’s resolution of the underlying matter, are taken from this court’s affirmance of Mr. Brown’s original appeal, released in March 2000. On February 24, 1995, appellant placed a 911 call reporting that he and his fiancée had been robbed and his fiancée had been shot in the head. Captain Charles Wilson, Patrolman  Mike Wilson, and Patrolman George Kanicledis responded to the call and proceeded to apartment 278 in the Cedars of Eastwood complex in Niles, Ohio. When they arrived at the scene, appellant yelled from inside the apartment that he needed help and told the officers to kick in the door. Captain Wilson kicked in the door and found appellant attempting to give mouth-to-mouth resuscitation to Monica Brandon. The officers pulled appellant off Monica and paramedics rushed her to the hospital, where she died shortly thereafter. Appellant told the officers that someone named James had robbed them and that two shots had been fired. After Captain Wilson found a .380 caliber gun and a .380 caliber spent shell casing on the bed, Patrolman Wilson told appellant that he would have to go to the police station because he was a material witness. Patrolman Wilson read the Miranda warnings to appellant in the hallway of his apartment and took him to the Niles Police Department. Detective Dixon also responded to the 911 call and collected the evidence that the other officers had found. When Patrolmen Wilson and Kanicledis arrived at the police station, they re-read the Miranda warnings to appellant, and Patrolman Wilson told him that he would have to take a paraffin test to determine if he had fired a gun. Appellant responded that the test would be positive because he had fired his gun the day before. After Detective Dixon returned from appellant’s apartment, he read appellant his Miranda rights for a third time, notified appellant that he was under arrest, and asked appellant if he wanted to make a statement. Appellant gave a statement recorded by Detective Dixon claiming that Monica had accidentally shot herself during an argument. According to appellant’s statement, Monica became jealous because she suspected that appellant was involved with another woman. As she stated, “I love you. I love you and no one else is going to have you,” she picked up the gun and appellant grabbed her hand with the gun in it. The gun fired into the air, and when the gun fired a second time, the slide split appellant’s right hand and the bullet hit Monica in the head. After appellant gave his statement, he signed a waiver of rights form. On March 16, 1995, appellant was indicted by the Trumbull County Grand Jury on one count of murder with a firearm specification and one count of having weapons while under disability. On June 16, 1995, appellant filed a motion to suppress evidence, which was denied by the trial court. In PAGE 2 OF 12 Case No. 2026-T-0030  September of 1995, appellant was tried before a jury, which returned a verdict of guilty on both counts in the indictment. State v. Brown, 2000 WL 522339, *1 (11th Dist. Mar. 31, 2000). {¶3} Mr. Brown was ultimately sentenced to a prison term of 18 years to life. Mr. Brown appealed the decision to the Supreme Court of Ohio. The Court declined jurisdiction to accept the appeal. State v. Brown, 89 Ohio St.3d 1455 (2000). {¶4} Mr. Brown filed various post-conviction motions which were denied by the trial court and affirmed by this court. See State v. Brown, 2012-Ohio-4465 (11th Dist.), appeal not accepted, 2013-Ohio-902; State v. Brown, 2017-Ohio-4241 (11th Dist.), appeal not accepted, 2018-Ohio-365; State v. Brown, 2024-Ohio-792 (11th Dist.), appeal not accepted, 2024-Ohio-2927. {¶5} In February 2026, Mr. Brown sought leave to file a motion for new trial based upon alleged newly discovered material evidence. In his motion, Mr. Brown claimed that the evidence could have been used to attack the credibility of or impeach the (then) Summit County Coroner, Dr. William Cox, who performed the autopsy of the victim. The alleged new materials included a March 12, 1997 “Report and Recommendation in the Matter of William A. Cox, M.D.” prepared by the State Medical Board of Ohio (“Board”). The report related to Dr. Cox’s use of the Summit County Coroner’s Office for his private medical practice. {¶6} The record indicates the investigation began months after the autopsy of the victim (in February 1995) and after Mr. Brown’s trial (commencing in late September 1995). Specifically, the information attached to Mr. Brown’s motion for leave demonstrates that Dr. Cox was notified on August 14, 1996, that the Board “intended to PAGE 3 OF 12 Case No. 2026-T-0030 determine whether to discipline his certificate to practice medicine and surgery in the State of Ohio” for matters occurring on or about March 1996. {¶7} Mr. Brown maintained the Trumbull County Prosecutor’s Office (“TCPO”) was aware that Dr. Cox allegedly misused the Summit County Coroner’s Office to perform autopsies. Specifically, Mr. Brown claimed that the TCPO “knew on or about April 30, 1995” that Dr. Cox could not use the Summit County Coroner’s Office for private practice. The motion did not indicate how TCPO was aware of the alleged misfeasance or how the allegations could have impacted Dr. Cox’s findings and conclusions relating to the February 1995 autopsy of the victim. {¶8} Mr. Brown also asserted, in the underlying motion, that Dr. Cox perjured himself when he testified he left “SUMA” (sic) rather than testifying that he was terminated because of a merger. Again, Mr. Brown’s filing did not indicate how this alleged perjury somehow undermined Dr. Cox’s professional testimony regarding the autopsy. {¶9} The trial court rejected Mr. Brown’s contentions and, in March 2026, denied his motion. This appeal follows. He assigns the following errors: [1.] The trial court erred as a matter of law – in violation of appellant’s right to due process under the Fifth, Sixth and Fourteenth Amendments of the United States and Article I; Section 16 of the Ohio Constitution – in overruling appellant’s motion for leave to file a motion for a new trial instanter by determining that defendant failed to show through clear and convincing evidence that he was unavoidably prevented from moving for a new trial within the time specified in Crim.R. 33(B); where, therein, appellant presented prima facie evidence that the State’s suppressed the evidence – Brady/Napue material – involving Dr. William Cox’s private practice medicine, in which appellant’s new trial is based. (Sic throughout). [2.] The trial court erred as a matter of law – in violation of appellant’s right to due process under the Fifth, Sixth, and PAGE 4 OF 12 Case No. 2026-T-0030  Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Ohio Constitution, – in overruling appellant’s motion for leave to file a motion for a new trial instanter by determining that defendant failed to show through clear and convincing evidence that he was unavoidably prevented from moving for a new trial within the time specified in Crim.R. 33(B); where, therein, appellant presented prima facie evidence that the State’s suppressed the evidence – Brady/Napue material – Dr. William Cox’s termination from SUMMA, in which appellant’s new trial motion is based. (Sic throughout). {¶10} The alleged errors, as they present similar substantive issues, shall be addressed together. {¶11} Under Crim.R. 33, a defendant seeking a new trial must establish that the new evidence: “(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.” State v. Grad, 2024-Ohio-5710, ¶ 38 (plurality opinion), quoting State v. Petro, 148 Ohio St. 505 (1947), syllabus. When the motion is filed more than 120 days after the trial ended, the defendant is further required to show “‘by clear and convincing proof that [he] was unavoidably prevented from the discovery of the evidence upon which he must rely,’ Crim.R. 33(B); see also State v. Parker, . . . 2008-Ohio-5178, . . . ¶ 16 (2d Dist.), quoting State v. Walden, 19 Ohio App.3d 141, 145-146 (10th Dist. 1984) . . . .” Grad at ¶ 38. {¶12} In State v. Vinson, 2017-Ohio-5641, ¶ 18 (11th Dist.) (plurality opinion), this court pointed out three options that are available to the trial court when a criminal defendant files a motion for leave for new trial. Initially, if the trial court determines the PAGE 5 OF 12 Case No. 2026-T-0030 documents in support of the motion on their face do not demonstrate the movant was unavoidably prevented from discovering the evidence, it may either overrule the motion or hold a hearing. See State v. McConnell, 2007-Ohio-1181, ¶ 19 (2d Dist.). Second, where a trial court concludes the documents submitted clearly and convincingly show that the defendant was unavoidably prevented from discovering the evidence, the court must grant the motion for leave and allow the motion for new trial to be filed. See Crim.R. 33(B). Finally, if the trial court determines the documents on their face “support [the defendant’s] claim that he was unavoidably prevented from timely discovering the evidence, the trial court must hold a hearing to determine whether there . . . is clear and convincing proof of unavoidable delay.” (Citation omitted.) State v. York, 2000 WL 192433, *2 (2d Dist. Feb. 18, 2000). {¶13} Mr. Brown argues that the State engaged in violations of Brady v. Maryland, 373 U.S. 83 (1963) as well as Napue v. Illinois, 360 U.S. 264 (1959). {¶14} “A defendant seeking to assert a Brady claim . . . is not required to show that he could not have discovered suppressed evidence by exercising reasonable diligence.” State v. Bethel, 2022-Ohio-783, ¶ 25. Rather, a defendant “may satisfy the ‘unavoidably prevented’ requirement contained in Crim.R. 33(B) . . . by establishing that the prosecution suppressed the evidence on which the defendant would rely in seeking a new trial.” State v. McNeal, 2022-Ohio-2703, ¶ 2, 17, citing Bethel at ¶ 25, 59. {¶15} “‘There are three components of a . . . Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or PAGE 6 OF 12 Case No. 2026-T-0030 inadvertently; and prejudice must have ensued.’” State v. Bell, 2022-Ohio-2335, ¶ 10 (11th Dist.), quoting Strickler v. Greene, 527 U.S. 263, 281-282 (1999). Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682 (1985). A different result is reasonably probable when the government’s evidentiary suppression undermines confidence in the outcome of the trial. Bagley at 678. State v. Little, 2025-Ohio-130, ¶ 16 (9th Dist.). {¶16} Further, if not directly similar to the Brady prejudice prong, in the context of Napue, 360 U.S. 264, “a new trial is warranted so long as the false testimony may have had an effect on the outcome of the trial—that is, if it in any reasonable likelihood could have affected the judgment of the jury.” (Cleaned up.) Glossip v. Oklahoma, 604 U.S. 226, 246 (2025). This is comparable to the harmless-error standard, requiring “the beneficiary of the constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Cleaned up.) Id.; accord Bagley at 679, fn. 9. {¶17} We review a trial court’s denial of a motion for leave to file a motion for a new trial under an abuse-of-discretion standard. Grad, 2024-Ohio-5710, at ¶ 47, citing State v. Hatton, 2022-Ohio-3991, ¶ 29. An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2010- Ohio-1900, ¶ 62 (2d Dist.), quoting Black’s Law Dictionary (8th Ed. 2004). {¶18} Mr. Brown’s argument under his first assignment of error rests upon the idea that information related to Dr. Cox’s use of the coroner’s office for private, professional work would have undermined the credibility of his testimony regarding the victim’s PAGE 7 OF 12 Case No. 2026-T-0030 autopsy. We fail to see the nexus between the allegations of professional misconduct and the conclusions rendered by Dr. Cox regarding the autopsy. {¶19} Dr. Cox testified that, as of the time of trial, in late September 1995, he had been involved in approximately 12,000 cases regarding rulings “on the manner and cause of death.” He testified he received a referral on autopsy of the victim in this matter in February 1995. He performed the autopsy and testified to his findings and conclusions. In particular, the doctor testified the victim experienced “a contact gunshot wound of the left side of the head. And what I mean by contact, is that the end of the muzzle was placed against the skin, that is contact . . . .” The doctor further explained the basis of his conclusion and testified he “did not agree with the accidental theory.” Dr. Cox stated: The reason I did not agree with [the “accidental-theory”], is that first of all, we were dealing with a contact gunshot wound to the left side of the head. In addition to that, I became aware of the fact that Mr. Brown had sustained a laceration, basically, in the web of his skin between his thumb and second finger . . . at the time of the discharge of the weapon. Now, what that was due to is that when the .380 is discharged, the slide comes back, it has a small grip to it . . . . Secondly, the grip is such a nature that it is very small. My hand would totally occupy that grip. It would be most difficult for anyone to have their hand on that grip at the same time with their finger on the trigger. If you will, when you take a look at the fact that it is a contact gunshot wound, it was my opinion, within a reasonable degree of medical certainty, that this was not an accidental death, rather, this was a homicide. {¶20} Dr. Cox also testified, without objection, to his personal experience with a similar firearm. He observed: I have a Walter PPKS, which is a .380 and, on occasion, I try to maintain current with it, which means that I will practice with it. The last time that I practiced, I committed the cardinal sin, I wasn’t paying any attention. I had my hand too far up on the grip and I received the same injury. I got a laceration between the web of my thumb and my second finger. It only has to PAGE 8 OF 12 Case No. 2026-T-0030  happen once and then you get reminded very quickly that you can’t do that with the .380. That is how I know. {¶21} Accordingly, Dr. Cox testified that he had personal experience with the wound Mr. Brown suffered on his hand during the incident. {¶22} The foregoing testimony was not challenged. {¶23} On cross-examination, Dr. Cox testified he did not have a formal contract with Trumbull County to do autopsies but had been doing cases for Trumbull County for “many years.” The doctor, upon questioning, stated that a fee arrangement had been reached for his autopsies in November 1993. Dr. Cox expressly testified, however, that he would use the Summit County Coroner facilities to privately generate income. {¶24} Considering the final point, it would appear that Dr. Cox’s use of the Summit County facilities, the subject of Mr. Browns first argument, was before the jury. Moreover, the subject of the Board’s inquiry was likely a function, inter alia, of the doctor’s admission to the actions at Mr. Brown’s trial. We therefore cannot see how Mr. Brown was unavoidably prevented from inquiring into Dr. Cox’s alleged professional issues with the Board. More importantly, given Dr. Cox’s testimony and experience, there is no basis to conclude his alleged professional issues had any impact upon the jury’s verdict. Mr. Brown did not establish prejudice such that a cognizable Brady or Napue claim might survive. {¶25} Further, Mr. Brown claims that, at trial, Dr. Cox perjured himself by stating he was an associate pathologist with SUMMA, but “left” SUMMA to work full time at the Summit County Coroner’s Officer. Mr. Brown asserts the doctor was terminated from SUMMA and therefore provided perjured testimony of which the State was aware. PAGE 9 OF 12 Case No. 2026-T-0030  {¶26} Dr. Cox’s testimony that he “left” his previous position is not inconsistent with the possibility he was terminated. If he was terminated, he still “left” the same. Most importantly, Mr. Brown offers no basis how this point, even if it is valid, impacted the doctor’s substantive conclusions regarding the autopsy report. We discern no prejudice on this point. {¶27} In Brown, 2000 WL 522339, this court addressed the manifest weight of the evidence. This court highlighted Dr. Cox’s testimony, which was a subject of the jury’s evaluation. Specifically, this court noted that Mr. Brown initially advised police he and the victim were robbed and a “robber shot” the victim. Id at *9. Mr. Brown then changed his story, telling investigators that he and the victim engaged in a physical encounter during which the victim “accidentally shot herself during the struggle for the gun.” Id. {¶28} This court then pointed out that Dr. Cox testified “he did not believe that [the victim’s] death was accidental because he learned that appellant had a slide cut on his hand and [the victim], who was right-handed, died as a result of a contact gunshot wound to the left side of her head. Id. {¶29} Dr. Cox testified to his autopsy conclusions regarding the victim’s cause of death. He also testified to his belief, given the surrounding factual circumstances, that the victim’s death was no accident. He buttressed his belief and opinion by reference to qualitative facts (the dominant hand of the victim and the injuries to Mr. Brown) relating to the incident. {¶30} It is unclear how Dr. Cox’s professional issues (both the investigation or his alleged termination at SUMMA) could or would have impacted his testimony, especially where his testimony was subject to cross-examination and the jury’s role as factfinder. PAGE 10 OF 12 Case No. 2026-T-0030 Dr. Cox was not alleged to be unqualified, and he was, without objection, qualified as an expert. His alleged misuse of a public facility or his alleged fabrication regarding his “leaving” SUMMA did not impact the scientific/forensic veracity of his testimony. {¶31} Finally, we point out that the trial court determined that the evidence could not be used at trial because, “it would not be admissible as impeachment evidence” under Evid.R. 608(B). Evid.R. 608(B) provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross- examined has testified. {¶32} Under the circumstances, we need not address the merits of this point because we conclude that the evidence advanced in the motion would not have affected the substantive or material impact of Dr. Cox’s scientific testimony. In other words, even if the evidence was available, we discern no prejudice. {¶33} We accordingly conclude that Mr. Brown’s assignments of error are without merit. {¶34} The judgment of the trial court is affirmed. MATT LYNCH, P.J., ROBERT J. PATTON, J., concur. PAGE 11 OF 12 Case No. 2026-T-0030  JUDGMENT ENTRY For the reasons stated in the opinion of this court, appellant’s assignments of error are without merit. It is the judgment and order of this court that the judgment of the Trumbull County Court of Common Pleas is affirmed. Costs to be taxed against appellant. JUDGE EUGENE A. LUCCI PRESIDING JUDGE MATT LYNCH, concurs JUDGE ROBERT J. PATTON, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 12 OF 12 Case No. 2026-T-0030