Clark v. State, 68641

• Decision Date: 25 September 1984
• Docket Number: No. 68641,68641
• Citation: 322 S.E.2d 913,172 Ga.App. 239
• Parties: CLARK v. The STATE.
• Court: Georgia Court of Appeals

Page 913

322 S.E.2d 913

172 Ga.App. 239

CLARK v. The STATE.

No. 68641.

Court of Appeals of Georgia.

Sept. 25, 1984.

Sammy D. Price, Carrollton, for appellant.

Arthur E. Mallory III, Dist. Atty., James M. Garcia, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was convicted of the armed robbery of a pharmacy, and his conviction was affirmed on appeal. Clark v. State, 159 Ga.App. 136, 282 S.E.2d 752 (1981), cert. vacated 249 Ga. 18, 287 S.E.2d 523 (1982). The instant appeal is taken from the denial of appellant's extraordinary motion for new trial based upon allegations of newly discovered evidence.

The evidence alleged to be "newly discovered" resulted from an offer of a reward advertised in a local newspaper subsequent to appellant's conviction. A woman answered the advertisement and was paid $300 for providing certain information. At the hearing on appellant's motion, the woman stated that a person named Phillips told her that Larry "Cotton" Ernest had committed the armed robbery in question. Phillips gave an affidavit wherein he swore that "Cotton" Ernest and Hugh High told him that they had committed the robbery. Two other witnesses were located, each of whom testified that Ernest had stated that he robbed the pharmacy. The witnesses further testified that Ernest possessed a quantity of various drugs of the types which had been stolen during the robbery. There was also testimony concerning the facial resemblance between appellant and Ernest, and photographs of the two were included in the record. After considering this newly discovered evidence, the trial court denied appellant's extraordinary motion for new trial on the ground that such of the new evidence as would be admissible was not likely to produce a different verdict.

1. "Extraordinary motions for new trial are not favored, [cit.], and it is incumbent on the party making such a motion to satisfy the trial court as to each of the following six requirements: (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. [Cits.] In addition, the trial court's denial of such a motion will not be reversed absent an abuse of discretion. [Cits.]" Bowden v. State, 250 Ga. 185, 186, 296 S.E.2d 576 (1982).

Appellant first enumerates as error the trial court's ruling that much of the evidence submitted in support of his motion was hearsay which would be inadmissible at a new trial. Although appellant concedes that the testimony of his witnesses concerning Ernest's confessions to them constitutes hearsay, appellant nonetheless contends strenuously that such evidence should be admissible.

In Timberlake v. State, 246 Ga. 488, 492, 271 S.E.2d 792 (1980), the Supreme Court held: "It is the long-standing rule in this state that declarations to third persons against the declarant's penal interest, to the effect that the declarant, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused at his trial, [cits.], or to procure a new trial on the basis of newly discovered evidence. [Cit.] ... [I]f such admissions were allowed as evidence upon the trial of the accused, a person could subvert the ends of justice by admitting the crime to others and then absenting himself."

Accordingly, the trial court did not err in ruling that the hearsay evidence offered by appellant was not admissible and should not be considered in its determination of whether a new trial should be granted.

2. Appellant asserts that the trial court erred in ruling that the newly discovered evidence presented by appellant was not sufficient to establish the probability of a verdict of acquittal at a new trial.

"It is proper for the trial judge and this court, in passing upon a ground of a motion for new trial based on newly discovered evidence, to consider those portions of...