Opie v. State

• Decision Date: 09 January 1967
• Docket Number: No. 3516,3516
• Citation: 422 P.2d 84
• Parties: Jeremiah OPIE, also known as Jerry Opie, Appellant (Petitioner below), v. STATE of Wyoming, Appellee (Respondent below).
• Court: Wyoming Supreme Court

Page 84

422 P.2d 84

Jeremiah OPIE, also known as Jerry Opie, Appellant (Petitioner below), v. STATE of Wyoming, Appellee (Respondent below).

No. 3516.

Supreme Court of Wyoming.

Jan. 9, 1967.

C. L. Bates, Rawlins, for appellant.

Dean W. Borthwick, Deputy Atty. Gen., Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Jeremiah Opie was convicted in the District Court of Sweetwater County of first degree murder for the killing of his wife. The jury fixed the penalty at life imprisonment. This court affirmed the judgment and sentence which resulted from the jury's verdict in Opie v. State, Wyo., 389 P.2d 684.

More than a year after affirmance defendant filed a petition in the District Court of Sweetwater County for a new trial, alleging newly discovered evidence which could not with reasonable diligence have been discovered and produced at his trial. The matter was heard by District Judge C. Stuart Brown, who denied the motion. Defendant-petitioner has appealed.

Counsel for petitioner seems to recognize that it is within the sound discretion of the trial court to grant or refuse a motion for new trial based on the discovery of new evidence; and that the action of such court cannot be challenged except for an abuse of discretion. See People v. Jefferson, 47 Cal.2d 438, 303 P.2d 1024, 1029, certiorari denied 352 U.S. 1029, 77 S.Ct. 597, 1 L.Ed.2d 600; and State v. Bentine, 66 Wyo. 222, 208 P.2d 291, 296. Our question, then, is not whether the district court would have been justified in granting a new trial, but whether it was erroneous for it not to grant a new trial.

Also, appellant's counsel makes it clear he is cognizant of the general rule that it 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. United States v. Johnson, 7 Cir., 142 F.2d 588, 592, certiorari dismissed 323 U.S. 806, 65 S.Ct. 264, 89 L.Ed. 643. ¹ See also People v. Beard, 46 Cal.2d 278, 294 P.2d 29, 31.

It is significant to note that petitioner's attorney claims to have made an extensive investigation of facts upon which the motion for new trial is predicated. He recites the purpose of the investigation was to review the transcript of the coroner's inquest and the transcript of the actual trial with the intent to 'evaluate' same. One of the principal findings claimed from this investigation was that the physical evidence introduced at the trial was not 'properly evaluated' at the trial.

Such approach in defendant's effort for a new trial suggests the motion is not based on newly discovered evidence in the sense of something observed, as distinguished from inferences and opinions formed as a result of what witnesses observed. It is stated in 32 C.J.S. Evidence § 546(1), p. 111, where a person testifies to what he observes, hears, or smells, it is a statement of fact and not a conclusion.

Petitioner purports to have newly discovered opinion evidence but not newly discovered fact evidence. Hence, we are presented with the question as to whether a convicted felon can take the old facts as testified to at his trial by witnesses who saw, heard, or smelled and obtain a new trial by showing that he can now produce expert opinions contradicting expert opinions testified to at his trial, with respect to those inferences and conclusions which can reasonably be drawn from the facts testified to.

Appellant fails to cite authority for the affirmative of this proposition. 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. State v. Gordon, 208 Or. 455, 302 P.2d 214, 218; State v. Luttrell, 28 N.M. 393, 212 P. 739, 741; Phillips v. State, Okl.Crim., 267 P.2d 167, 174; State v. Wilson, 38 Wash.2d 593, 231 P.2d 288, 303, certiorari denied 342 U.S. 855, 72 S.Ct. 81, 96 L.Ed. 644, certiorari denied 343 U.S. 950, 72 S.Ct. 1044, 96 L.Ed. 1352.

We are inclined to believe, if appellant's theory were sanctioned, it would open the doors to endless requests for new trials in all kinds of cases. Nevertheless, we will not at this time say it is impossible to have circumstances where a court might see fit to grant a new trial because of newly discovered expert opinions on previously known facts. Instead, we will rest our decision on the proposition that the trial court in this instance was amply justified in refusing defendant's request, and its ruling was not erroneous for abuse of discretion.

On the basis of evidence adduced at the hearing on defendant's petition for new trial, counsel for defendant contends he has new evidence which:

1. Will dispute expert testimony offered at the trial, to the effect that the gun which killed defendant's wife was fired from a distance of 18 inches to three and one-half feet, and show instead that this distance was from one-half inch to one and one-half inches; and

2. Will dispute expert testimony offered at the trial, that the gun was not unsafe and had a normal trigger pull, and show instead that the gun was an unsafe weapon with a trigger pull of approximately two and one-half pounds.

Gun's Distance From Victim

At his trial, the defendant claimed his wife had possession of defendant's gun and was about to commit suicide; that he attempted to take the gun from her; and that it was discharged as they struggled over it, while deceased still had hold of it. Testimony and pictures offered at the trial tended to show the wound was clean with no evidence of powder burns around the edges and no evidence of deep powder burns. Experts at the trial claimed such would have been present if the muzzle of the gun had been within 18 inches of decedent's face. There was testimony that the face did have black peppery marks of unburned powder on it-apparently over an extensive area-which indicated, according to ballistic experts testifying at the trial, the muzzle was within a distance of approximately three and one-half feet.

It is contended on behalf of appellant that since his trial and appeal, ballistic experts have been found who will testify and demonstrate from experiments that, based on the pictures and testimony introduced at defendant's trial, it is their opinion the muzzle of the gun could not have been less than one-half inch or more than one and one-half inches from decedent's face when the weapon was discharged.

We set forth in our former opinion, at 389 P.2d 686, that witnesses testified to the condition of Mrs. Opie's face, saying there was an absence of powder burns or smoke which would be expected to be present if the muzzle had been within real close proximity to the face (like less than 18 inches). However, as above noted there was testimony that her face did have small particles of unburned...