The Akron Legal News

Man convicted of nightclub murder has appeal denied

ANNIE YAMSON
Special to the Legal News
Published: February 10, 2016

In the 8th District Court of Appeals, a panel of three judges recently ruled that a Cleveland man was not entitled to a new trial simply because he presented new evidence that contradicted trial testimony.

The defendant, Anthony Conner, appealed from the judgment of the Cuyahoga County Court of Common Pleas, which denied his motion for a new trial without a hearing.

In his appellate brief, Conner contended he was denied due process of law because he presented evidence of actual innocence.

“Finding no merit to his appeal, we affirm the judgment of the trial court,” Judge Mary Boyle wrote in the opinion she authored on behalf of the appellate panel.

Conner was convicted of aggravated murder, murder and felonious assault in January 2013 for the death of Damon Woodard.

Case summary states that the case arose out of a fight that broke out at the Sirrah House nightclub on the night of Aug. 20, 2012.

At trial, Officer Nikolai Przybylski testified that “at least a hundred” people were “all over the place” when he arrived on the scene.

Once the crowd began to clear, he observed a black male wearing jeans and a long-sleeved, red plaid shirt — later determined to be Conner — standing over another black male who was lying on the ground.

Despite the number of people still on the scene, Przybylski said that he had a clear view of Conner when he pulled a gun out of his waistband and started shooting in the direction of a group of officers.

Przybylski testified that the area was well lit and he “was able to see the shooter’s face and identify the gun as a .45-caliber, two-tone black and chrome or black and silver handgun.”

A chase ensued, during which Przybylski observed Conner crouch down near a car and then “pop back up” and start running again.

Eventually, officers apprehended Conner. He was unarmed and gunshot residue tests came back negative for residue on his hands or clothes.

But investigators did find a gun that matched Przybylski’s description where Conner had crouched down during the foot chase.

That gun was matched to shell casings found near Woodard’s body and a bullet recovered from his knee, but no fingerprints were found on the weapon.

A witness at the scene, Marquis Hollowell, identified Conner as the shooter while Conner was seated in a police cruiser.

When it came to his time on the witness stand, however, Hollowell claimed he could remember nothing from the night of the incident and he did not positively identify Conner in court.

Ultimately, a jury convicted Conner of the murder and felonious assault charges and of shooting a firearm on or near a prohibited premises and having a weapon under disability.

The trial court imposed a sentence of 30 years to life for aggravated murder.

Court records state that Conner’s convictions and sentence were affirmed on direct appeal and, in 2014, his application to reopen his appeal was denied.

Then, in January of last year, Conner moved for leave to file a motion for a new trial asserting newly discovered evidence.

In support, he included the affidavits of Dillen Alston, Anthony Wooten and Muhammad Grant, all of whom claimed that they saw a light skinned, black male dressed in all white shooting another man and running with a gun.

Each affidavit also contained statements that the witness saw Conner in a red, plaid shirt, running from police, unarmed.

After reviewing the affidavits, the trial court denied Conner’s request for leave to file a motion for a new trial without holding an evidentiary hearing, leading to his most recent appeal.

“Conner’s motion for a new trial was filed two years after the jury returned a guilty verdict against him,” Boyle wrote.

Even though Conner did not explain the delay, the court of appeals held that it was likely he was unaware of the existence of the new witnesses until they came forward voluntarily.

Nonetheless, it ruled that he did not meet the criteria to be granted a new trial.

“In this case, the state presented evidence at trial that three police officers saw Conner shooting a gun,” Boyle wrote. “One officer even described the gun that he saw Conner shooting.”

The appellate panel made note of the fact that the gun was found where Conner was observed to have crouched down and that it matched spent shell casings at the scene and a bullet recovered from the victim.

“This evidence is overwhelming,” Boyle wrote.

The statements contained in the affidavits submitted by Conner, however, simply contradicted what the officers testified to, and “evidence that merely contradicts former evidence is not sufficient under Crim.R. 33,” according to the court of appeals.

“Further, based on the police officers’ testimony, even if Conner was granted a new trial, there is not a strong probability that it will change the result if a new trial is granted,” Boyle wrote.

The appellate panel also noted that the same judge who presided over Conner’s trial also considered his motion for leave to file a motion for a new trial — meaning she was intimately familiar with the evidence and did not need to hold an evidentiary hearing.

“Thus, we cannot say that the trial court abused its discretion in denying Conner’s motion without an evidentiary hearing,” Boyle concluded.

The judgment of the Cuyahoga County court was affirmed with Presiding Judge Eileen A. Gallagher and Judge Frank Celebrezze concurring.

The case is cited State v. Conner, 2016-Ohio-301.

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