Dick v. State

• Citation: 248 Ga. 898,287 S.E.2d 11
• Decision Date: 09 February 1982
• Docket Number: No. 38103,38103
• Parties: Dennis DICK v. STATE.
• Court: Supreme Court of Georgia

Page 11

287 S.E.2d 11

248 Ga. 898

Dennis DICK v. STATE.

No. 38103.

Supreme Court of Georgia.

Feb. 9, 1982.

Thomas J. McHugh, Fayetteville, for Dennis Dick.

Jeff C. Wayne, Dist. Atty., Gainesville, Michael J. Bowers, Atty. Gen., for the State.

HILL, Presiding Justice.

The defendant, Dennis Dick, was convicted in 1979 of the murder and armed robbery of O. C. (Red) Rider. His convictions and death sentence for murder and life sentence for armed robbery were affirmed by this court in Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980), cert. denied, 451 U.S. 976, 101 S.Ct. 2059, 68 L.Ed.2d 357.

On September 17, 1981, the defendant filed an extraordinary motion for new trial based on newly discovered evidence. The motion recited in conclusory fashion that the evidence was material, not merely cumulative or impeaching in nature and had only been recently acquired, that there was no want of diligence in acquiring it sooner, and that it would probably produce a different result in the case. The motion itself did not state what the new evidence was.

An affidavit from the defendant's attorney accompanied the motion. The affidavit stated that the attorney had agreed to represent the defendant on July 20, 1981, that on July 21, 1981, he was provided with a copy of a letter from Billy Webster, a co-conspirator, which "indicates" that the defendant had been "involuntarily drugged" on the night of the crimes, and that Webster had left the state and his whereabouts had only recently been discovered. ¹ The copy of the letter from Webster was not attached to the affidavit.

The trial court refused to issue a rule nisi and denied the motion without a hearing. The defendant appeals this summary denial and the only question for our determination is whether the defendant's pleadings (the motion and the affidavit) were sufficient to require the trial court to hold a hearing on the merits of the motion.

1. At the outset, we note that there is a distinction between a motion for new trial and an extraordinary motion for new trial. A motion for new trial is one made "within 30 days of the entry of the judgment on the verdict, or entry of the judgment where the case was tried without a jury." Code Ann. § 70-301. An extraordinary motion for new trial is one made after the time for filing a motion for new trial has expired. See Code Ann. §§ 70-301, 70-303. ²

"Extraordinary motions for a new trial are not favored, and a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground." Wallace v. State, 205 Ga. 751(2), 55 S.E.2d 145 (1949). Accord Music v. State, 244 Ga. 832, 833, 262 S.E.2d 128 (1979). Thus, although we have held that under our Code the trial court is required to hold a hearing on a motion for new trial, Shockley v. State, 230 Ga. 869, 199 S.E.2d 791 (1973); Foster v. State, 230 Ga. 870, 199 S.E.2d 790 (1973), we have also held that an extraordinary motion for new trial which fails to show any merit may be denied without the necessity of a hearing. Fulford v. State, 222 Ga. 846, 847, 152 S.E.2d 854 (1967); Harris v. Roan, 119 Ga. 379(5), 46 S.E. 433 (1903); see also Sinkfield v. State, 232 Ga. 892, 209 S.E.2d 188 (1974). Rubenstein v. U. S., 227 F.2d 638 (10th Cir. 1955), cert. denied, 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed. 858, cited by the defendant for the proposition that it is error to refuse a hearing on a motion based on newly discovered evidence, dealt with a motion which alleged facts sufficient to state a claim for relief and, therefore, is inapposite.

There being no statutory requirements as to extraordinary motions for new trial (see footnote 1), the procedural requirements for such motions are the product of case law. These procedural requirements have not been modified by the notice pleading provisions of the Civil Practice Act, Code Ann. § 81A-108, because the CPA is not applicable to criminal cases. See Jordan v. State, 247 Ga. 328, 331, 276 S.E.2d 224 (1980). Therefore, if the pleadings in an extraordinary motion for new trial in a criminal case do not contain a statement of facts sufficient to authorize that the motion be granted if the facts developed at the hearing warrant such relief, it is not error for the trial court to refuse to conduct a hearing on the extraordinary motion.

The requirements for granting an extraordinary motion for new trial are clear. "On [an extraordinary] motion for a new trial based on newly discovered evidence, it is incumbent on the movant to satisfy the court: (1) that the newly discovered evidence has come to his knowledge since the trial; (2) that want of due diligence was not the reason that the evidence was not acquired sooner; (3) that the evidence was so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credit of a witness. Bell v. State, [227 Ga. 800, 805, 183 S.E.2d 357 (1971) ]; Timberlake v. State, 246 Ga. 488, 491, 271 S.E.2d 792 (1980)." Tanner v. State, 247 Ga. 438, 443, 276 S.E.2d 627 (1981). "Implicit in these six requirements is that the newly discovered evidence must be admissible as evidence." Timberlake v. State, supra, 246 Ga. at 491, 271 S.E.2d 792. An extraordinary motion for new trial and its accompanying affidavits must set forth facts satisfying these requirements; conclusions of counsel will not suffice. The defendant's pleadings in this case do not show facts satisfying the first, second, third or fifth requirements, or the overriding requirement that the newly discovered evidence be admissible.

We consider the first and second requirements together in this case. The attorney's affidavit states that he was provided with the Webster letter on July 21, 1981, the day after he agreed to represent the defendant. That affidavit does not contain a copy of the letter and does not set forth the date of the letter or the name of the addressee. So far as the motion and affidavit show on their face, the letter may have been known to the defendant or his previous counsel for a considerable period of time. More importantly, there is no affidavit from the defendant saying when he first learned he was "involuntarily drugged". A "mere assertion that the evidence could not have been discovered by ordinary diligence is insufficient." (Cits. omitted.) Timberlake v. State, supra, 246 Ga. at 492, 271 S.E.2d 792.

The third requirement is not satisfied by conclusions of counsel. While voluntary intoxication is not an excuse for criminal acts, involuntary intoxication is a defense if the defendant did not have sufficient mental capacity to distinguish between right and wrong. Code § 26-704. The evidence showed that the defendant had been drinking on the night of the crimes (246 Ga. at 697-698, 271 S.E.2d 792). Defendant's defense at trial was prolonged voluntary drunkenness causing insanity (246 Ga. at 702-703, 271 S.E.2d 792). Yet his confession and testimony at trial showed that he recalled commission of the crimes. He has failed to show on this record how the alleged consumption of drugs without his knowledge affected his voluntary behavior or would probably produce a different verdict.

The defendant's attorney's statement by affidavit that "said Billy Webster has left...