Best v. State, 88-70

• Court: United States State Supreme Court of Wyoming
• Citation: 769 P.2d 385
• Docket Number: No. 88-70,88-70
• Parties: Joseph Newton BEST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 21 February 1989

Page 385

769 P.2d 385 Joseph Newton BEST, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff). No. 88-70. Supreme Court of Wyoming. Feb. 21, 1989.

Page 386

Leonard D. Munker, State Public Defender, and Michael Cornia, argued, Asst. Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., John Renneisen, Deputy Atty. Gen., and Sylvia Lee Hackl, Sr. Asst. Atty. Gen., argued, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Chief Justice.

Appellant Joseph Best was convicted of attempted first degree murder of Officer Lawrence Szabo of the Wyoming Highway Patrol. He now appeals the denial of his motion for new trial based on newly discovered evidence. The newly discovered evidence upon which appellant relies consists of allegations in Szabo's complaint filed in a civil action seeking recovery of damages for personal injuries caused Szabo by appellant shooting him. This civil action was intitiated subsequent to appellant's trial. Appellant states the issues as follows:

"Did the district court abuse its discretion in denying Appellant's motion for new trial?"

"Should relaxed standards be applied since the newly discovered evidence involved perjury?"

"Did the district court abuse its discretion in failing to hold a hearing on the motion for new trial?"

Page 387

"Did the district court err in failing to state reasons and grounds for denying the motion for new trial?"

We affirm.

FACTS

The events leading to appellant's conviction are set out in Best v. State, 736 P.2d 739 (Wyo.1987). We briefly review the basic facts in order to provide a context for review of the denial of appellant's motion for new trial. Officer Szabo attempted to stop Best for speeding on the interstate. Best tried to outrun the patrolman in a lengthy high speed chase. When Best finally stopped, he got out of his car and shot Officer Szabo twice.

Best was convicted of attempted first degree murder after a jury trial. On appeal, he contended that the trial court had improperly refused to give an instruction which would allow the jury to find that he shot Officer Szabo in self-defense. Best testified that he thought the patrolman was pointing a gun at him. Officer Szabo testified with respect to the relation of his hand to his gun as follows:

"Q. Did you put your hand on it?

"A. I kept it right like at this position, down to the right side of it, and had the baton in the left hand.

"Q. So, your hand is well below your gun?

"A. Yes.

"Q. Please turn around and show to the jury where your hand was at that point in time.

"A. Just hanging natural.

* * *

* * *

"Q. Your right hand? You're sure that that was just at all times during this--I don't know what you call it--situation, below your weapon?

"A. It was in access to my weapon, but it was hanging normally to the side."

This court affirmed the trial court's refusal to give a self-defense instruction, stating that even viewing Best's testimony in the light most favorable to him, the requested instruction was not supported by competent evidence. Best, 736 P.2d at 744-47.

Szabo later filed a civil action seeking damages against, among others, the manufacturer of his holster. The essence of his claim was that his holster was defective, which prevented him from drawing his pistol. This claim still directly contradicts Best's statement that Szabo had drawn and was pointing his gun at him.

Best, however, now focuses upon whether Szabo's hand was at his holster or at his side, citing the following allegation made in the civil complaint:

"Officer Szabo immediately exited his patrol car, baton in his left hand, right hand poised on his holster for quick draw if needed."

Appellant contends that this statement constitutes a "recantation" of Szabo's trial testimony concerning the placement of his hand in relation to his gun.

Best filed a pro se motion for new trial pursuant to Rule 34, W.R.Cr.P., asserting that the testimony of Szabo concerning the proximity of his hand in relation to his gun was "the only evidence contradicting the Defendant's own testimony that he shot Larry Szabo in self-defense due to Larry Szabo's threatening manner." The district court denied the motion, and this appeal followed.

DISCUSSION I

When reviewing a trial court's denial of a motion for new trial based on newly discovered evidence, we will not reverse unless appellant affirmatively shows an abuse of discretion by the trial court. Keser v. State, 737 P.2d 756, 759 (Wyo.1987). We have defined judicial discretion as "a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or...