Grable v. State

• Decision Date: 08 June 1983
• Docket Number: No. 5833,5833
• Citation: 664 P.2d 531
• Parties: William Allen GRABLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 531

664 P.2d 531

William Allen GRABLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5833.

Supreme Court of Wyoming.

June 8, 1983.

James H. Barrett and Charles J. Szlenker of Trierweiler, Bayless, Barrett & McCartney, Cheyenne, Ed Parks of Boyd & Parks, Tulsa Okl., and Thomas E. Salisbury, Sand Springs, Okl., for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Sharon A. Lyman, Sr. Asst. Atty. Gen., for appellee.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

THOMAS, Justice.

This appeal is taken from an order having the effect of denying the appellant's motion for a new trial in a criminal case. The motion for a new trial was premised on the ground of newly discovered evidence as set forth in Rule 34, W.R.Cr.P. ¹ The newly discovered evidence relied upon was testimony by a doctor who was the employer and supervisor of another doctor. This latter individual had written a letter stating that a key prosecution witness could not attend the appellant's trial because the witness "was under active medical treatment and unable to travel for the foreseeable future." Grable v. State, Wyo., 649 P.2d 663, 672 (1982). The doctor on whose testimony the appellant relies testified that the medical records of the witness did not substantiate his unavailability at the time of appellant's trial. Appellant asserts that the district court abused its discretion in denying the motion for a new trial. We conclude that the appellant has not sustained his burden of demonstrating an abuse of discretion by the district court. We shall affirm the denial of the motion for a new trial.

While arguing vigorously and at length that the witness was not unavailable as the district court ruled at trial, the appellant does recognize that that issue was determined by this court's opinion in Grable v. State, supra. Even so, appellant poses the issue in this appeal as follows:

"The trial court erred in overruling Appellant's Motion for New Trial based upon the newly discovered evidence which proved that the medical excuse for Mark Hart's failure to appear at trial was false and that therefore his prior trial testimony should not have been admitted as to do so violated both the hearsay rule and the Sixth Amendment right to confrontation."

Appellant does treat substantially in his brief and argument with the latter phrase of his statement of the issue involving the violation of the hearsay rule and the Sixth Amendment right to confrontation.

The State of Wyoming, as appellee, presents the following statement of issues:

"1. WHETHER THE COURT SHOULD HAVE GRANTED A NEW TRIAL SO THAT THE JURY COULD CONSIDER THE NEW EVIDENCE AS BEARING UPON THE CREDIBILITY OF MARK HART.

"2. WHETHER, BASED UPON THE NEW EVIDENCE, THE COURT SHOULD HAVE FOUND THAT MARK HART IN FACT HAD BEEN AN AVAILABLE WITNESS AND SHOULD THEN HAVE GRANTED A NEW TRIAL."

This statement of the issues more closely approaches the essence of the questions that this court must determine. We decide such cases on a standard of abuse of discretion by the district court. That standard invokes other rules, but it still is the essential question in an appeal from a denial of a motion for a new trial.

The pertinent rules of law which control the disposition of this case can be briefly stated. In Wyoming, we have said that it is clearly within the sound discretion of a district court to either grant or deny a motion for a new trial based upon newly discovered evidence, and the ruling by the district court will not be a basis for reversal of the conviction unless there is affirmatively shown an abuse of discretion by the district court. Seigert v. State, Wyo., 634 P.2d 323 (1981); Daellenbach v. State Wyo., 562 P.2d 679 (1977); Jones v. State, Wyo., 568 P.2d 837 (1977); Flaim v. State, Wyo., 488 P.2d 153 (1971); Ballinger v. State, Wyo., 437 P.2d 305 (1968); Opie v. State, Wyo., 422 P.2d 84 (1967); and Espy v. State, 54 Wyo. 291, 92 P.2d 549 (1939). In Martinez v. State, Wyo., 611 P.2d 831, 838 (1980), this court said:

"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. [Citations.] * * * "

We note that the source of Rule 34, W.R.Cr.P., is Rule 33 of the Federal Rules of Criminal Procedure. Under the federal rule the courts of the United States have invoked in cases involving a motion for a new trial based upon grounds of newly discovered evidence the so-called "Berry Rule," articulated in Berry v. State, 10 Ga. 511 (1851). E.g., United States v. Jackson, 579 F.2d 553 (10th Cir.1978), cert. denied Allen v. United States, 439 U.S. 981, 99 S.Ct. 569, 58 L.Ed.2d 652 (1978). See Wright, Federal Practice and Procedure: Criminal 2d § 557 (1982). The requirements then are said to be that:

" * * * The newly discovered evidence must be more than impeaching or cumulative; it must be material to the issues involved; it must be such as would probably produce an acquittal; and a new trial is not warranted by evidence which, with reasonable diligence, could have been discovered and produced at trial. * * * " United States v. Allen, 554 F.2d 398, 403 (10th Cir.1977), cert. denied 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977).

To the same effect is the statement of the rule in Wright, Federal Practice and Procedure: Criminal 2d § 557, p. 315 (1982), and the cases there cited in the footnotes. The substantial identity of the federal rule to the rule of this court is marked, and federal authorities on this issue are highly persuasive. The foregoing precedents from our court, and those others upon which we shall rely, we find to be consistent with federal law.

This court has not deviated from its identification of the grounds for obtaining a new trial based upon newly discovered evidence. Paraphrased, these are said to be:

1. The evidence must have come to the defendant's knowledge since the trial.

2. It must not have been owing to want of due diligence on the part of the defendant that it did not come to his knowledge sooner.

3. The newly discovered evidence must be so material that it would probably produce a different verdict if the new trial were granted.

4. The newly discovered evidence is not cumulative, viz., speaking of facts in relation to which there was evidence at the trial. Seigert v. State, supra; Salaz v. State, Wyo., 561 P.2d 238 (1977); Opie v. State, supra.

In applying these several tests this court also has made specific statements which are pertinent in resolving this appeal. We know that an application for a new trial must be denied when it does not appear that the alleged newly discovered evidence would produce a different verdict. Flaim v. State, supra; Kennedy v. State, Wyo., 470 P.2d 372 (1970), reh. denied 474 P.2d 127 (1970), cert. denied 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218 (1971); and Opie v. State, supra. This court also has said:

" * * * The Wyoming Supreme Court has previously held that a new trial will not be granted on the grounds of newly discovered evidence where the evidence is to impeach a witness. John B. Roden, Jr., Inc. v. Davis, 460 P.2d 209 (Wyo.1969). New evidence which only impeaches a witness or contradicts evidence produced at the trial is not sufficient to grant a new trial." Salaz v. State, supra, at 243.

This rule has been stated another way by this court in the following language " * * * On the other hand, there is respectable authority for the rule that a new trial will not be granted for newly discovered evidence, when the alleged newly discovered evidence is merely cumulative or when it is merely impeaching or contradictory of the former evidence. [Citations.]" Opie v. State, supra, at 86.

It is against these principles of law that we must test the appellant's contention that the district court abused its discretion in denying his motion for a new trial. This is the appellant's third appearance before this court in connection with the same or related charges. In Grable v. State, Wyo., 601 P.2d 1001 (1979), his conviction on two counts of forgery and three counts of conspiracy were reversed because the trial judge referred to certain witnesses as "co-conspirators" and refused to permit the alleged co-conspirator witnesses to explain their reasons for pleading guilty to charges which were connected with the charges against the appellant. The appellant then was retried and in Grable v. State, Wyo., 649 P.2d 663 (1982), this court affirmed convictions on two counts of forgery and one count of a conspiracy to commit forgery. Following that affirmance and the denial of a petition for rehearing which was filed by the appellant in this court, the case was returned on mandate to the district court.

The appellant then filed a motion for new trial pursuant to Rule 34, W.R.Cr.P. The motion relied upon two claims of newly discovered evidence. The first was testimony of one Don Enslow, which appellant alleged would absolve him of any participation in the crimes of which he was convicted. This aspect of the appellant's motion for a new trial has not been pursued in this appeal. The second area of newly discovered evidence was information from a medical doctor who had examined the records kept by the doctor by whom the court had been advised that a key witness was not available for appellant's second trial because he was under medical treatment. The information from the doctor was to the effect that the illness of the witness was not supported by the medical records relating to the witness. It is this newly discovered evidence which is the focal point of this appeal from the denial in open court of the appellant's motion for a new trial....