Gist v. State

• Decision Date: 19 May 1987
• Docket Number: No. 86-87,86-87
• Citation: 737 P.2d 336
• Parties: Steve Louis GIST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 336

737 P.2d 336

Steve Louis GIST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-87.

Supreme Court of Wyoming.

May 19, 1987.

Leonard D. Munker, Public Defender, Julie D. Naylor, Appellate Counsel, Wyoming Public Defender Program; Gerald M. Gallivan, Director, and Loyd E. Smith, Student Intern, Wyoming Defender Aid Program, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Mary B. Guthrie, John W. Renneisen, Senior Asst. Attys. Gen., and Gregory A. Phillips, Legal Intern, for appellee.

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

THOMAS, Justice.

In this appeal from the denial of successive motions for a new trial, Steve Louis Gist poses two issues. The first is whether the trial court erred in denying a motion for a new trial based upon newly discovered evidence, the testimony of Gist's brother, Roger, that he in fact had committed the offense of which Gist was convicted. After that motion was denied, a second motion for a new trial was presented based upon ineffective assistance of counsel. The gravamen of this contention was the manner in which the brother's potential testimony was dealt with at the time of Gist's trial. In the clear light of the standards relating to newly discovered evidence, the trial court did not err in denying the first motion for a new trial. We conclude, however, that the trial court did err in denying the second motion for a new trial, and we reverse and remand with instructions that the court vacate Gist's conviction and grant him a new trial.

In the Brief of Appellant, the issues are said to be:

"I. Whether the trial court's denial of appellant's motion for a new trial based upon newly discovered evidence constituted an abuse of discretion?

"II. Whether appellant was denied effective assistance of counsel as guaranteed by the Sixth Amendment?"

The State of Wyoming in its Brief of Appellee says that the issues are:

"I. Whether the trial court abused its discretion by denying appellant's motion for a new trial based on newly discovered evidence.

"II. Whether the appellant received effective assistance of counsel as guaranteed by the Sixth Amendment."

Gist was charged by a grand jury indictment with delivering, or possessing with intent to deliver, marihuana in violation of §§ 35-7-1031(a) and 35-7-1014(d)(xiii), W.S.1977. ¹ At his arraignment, Gist requested court-appointed counsel, and the public defender's office was appointed to represent him. At the pre-trial conference, no witnesses in behalf of Gist were listed, but he did reserve the right to testify himself. He responded negatively to a request by the state for a notice of alibi.

Gist's brother, Roger Gist, was indicted by the same grand jury. He had been a fugitive, but two days before Gist's trial the brother was returned to Campbell County and lodged in the jail. The day immediately preceding the trial the brother appeared in court, entered pleas of not guilty to the several counts of the indictment against him and requested the assistance of counsel. The record is equivocal as to whether the public defender's office then was appointed, but certainly, there was every reason to believe that the public defender's office would be appointed. Among the counts to which the brother entered a plea of not guilty was one relating to the same transaction out of which the charges against Gist arose.

At his trial the following day, Gist presented no evidence. It was his theory that it was his brother, Roger Gist, and not he who delivered the marihuana to the undercover officer. The only testimony the jury heard was that of the undercover officer. He testified that Steve delivered the marihuana to him, but he also testified that the brother, Roger, was responsible for arranging the sale of the marihuana and contacted him to advise of the possible availability of the marihuana for sale. The officer further testified that Roger requested him to follow Roger to the house where the brothers lived. It was Roger who took him into the kitchen and showed him sample baggies of marihuana. At that time, Steve Gist was outside the residence and had to be summoned to produce the marihuana after the undercover officer had agreed to purchase it. This was necessary because Roger told him that Steve had hidden the marihuana, and Roger did not know where to find it. When summoned, Steve came into the kitchen, talked to Roger privately, went into a back bedroom and returned to inform the officer that one ounce of marihuana was available for sale. The deal was struck, and Steve told the officer to put the money on the kitchen window sill. Gist's attorney relied solely on cross-examination and argument in an attempt to demonstrate that the officer could have been mistaken as to the identity of the person who actually delivered the marihuana. The jury then returned a verdict of guilty upon which Steve Gist was sentenced.

After Steve Gist's trial, Roger Gist negotiated a plea bargain with the prosecuting attorney which resulted in the dismissal of the charge against him which arose out of the same transaction which was the basis for Steve Gist's conviction. Roger Gist then confessed that it was he and not Steve who had delivered this particular marihuana to the undercover officer. Steve Gist then moved for a new trial on the basis of newly discovered evidence. He alleged that the new evidence consisted of "testimony, in the form of a confession, of the defendant's brother, Roger Gist, that he was the person, not the Defendant, that arranged the deal and actually delivered the marihuana * * *." The same motion for a new trial recited:

" * * * Roger Gist was arraigned before this Court on the 18th of September, 1985, one day before the trial in this matter, at which time he entered a plea of not guilty to several counts of a Grand Jury Indictment. One of the counts to which Roger Gist pled not guilty included one count of aiding and abetting the same delivery of marijuana with which the Defendant was charged and ultimately convicted.

" * * * Due to an apparent conflict of interest, Roger Gist could not be interviewed regarding the case by the Attorney for the Defendant, Steven Gist, on the evening of September 18, 1985, as no attorney had been appointed to represent Roger Gist by the Public Defender's Office."

At the hearing on this first motion for a new trial, Roger Gist testified that it was he and not Steve who was responsible for the delivery of the marihuana to the undercover agent. The agent testified at the same hearing and reiterated his earlier testimony that Steve and not Roger made the delivery. The court denied this motion for a new trial because Steve Gist or his attorney knew of the role of Roger Gist in the marihuana transaction, and the court concluded that under those circumstances the testimony could not be newly discovered. This ruling is the basis for Gist's first contention of error.

In Opie v. State, Wyo., 422 P.2d 84, 85 (1967), this court articulated the criteria for granting a new trial on the basis of newly discovered evidence in this way:

" * * * [I]t is incumbent on a party who asks for a new trial on the grounds of newly discovered evidence to satisfy the court: (1) That the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is so material that it would probably produce a different verdict, if the new trial were granted; and (4) that it is not cumulative, viz., speaking to facts in relation to which there was evidence at the trial." (Citations omitted.)

We held in Grable v. State, Wyo., 664 P.2d 531 (1983), that the decision as to whether to grant or deny a motion for new trial based upon newly discovered evidence is one within the discretion of the trial court, and its ruling will not be reversed unless an abuse of discretion is shown. The test for an abuse of discretion is whether the trial court could reasonably conclude as it did. Grable v. State, supra, Martinez v. State, Wyo., 611 P.2d 831 (1980), clarified by Duffy v. State, Wyo., 730 P.2d 754 (1986).

In this instance, the Opie test was applied by the trial court which concluded:

" * * * The defendant has failed to show that there is any newly discovered evidence, that could not have been discovered, through due diligence, prior to trial of this matter."

The record indicates that it was reasonable for the district court to form this conclusion. The evidence claimed to be newly discovered was Roger's testimony. The defense of the case on behalf of Steve makes it clear that Steve's counsel was advised of the proposition that Roger not Steve was responsible for the delivery. Counsel also knew that Roger was in jail in Gillette. Counsel, for reasons which will be discussed later, concluded not to attempt to produce Roger as a witness, but under these circumstances the fact that Roger's specific testimony was not disclosed until after the trial does not make this newly discovered evidence. Frias v. State, Wyo., 722 P.2d 135 (1986); Salaz v. State, Wyo., 561 P.2d 238 (1977); United States v. Maestas, 523 F.2d 316 (10th Cir.1975); Baca v. United States, 312 F.2d 510 (10th Cir.1962), cert. denied, 373 U.S. 952, 83 S.Ct. 1682, 10 L.Ed.2d 706 (1963); and cases cited in 24 C.J.S. Criminal Law § 1454 at 178-181 (1961).

Since the information about Roger's potential testimony did not come to the knowledge of Steve or his attorney until after the trial, but at least the potential was known before the trial, the first ground of the test articulated in Opie v. State, supra, was not satisfied. All of the factors must be present in order to justify the granting of a motion for new trial based on newly discovered evidence pursuant to Rule 34, W.R.Cr.P. "If one of those grounds is not satisfied then there has not been an error of law committed by the court under the circumstances, and no...