State v. Burke, 88-263-C

• Decision Date: 15 June 1989
• Docket Number: No. 88-263-C,88-263-C
• Citation: 559 A.2d 1062
• Court: Rhode Island Supreme Court
• Parties: STATE v. William BURKE et al. A.

Page 1062

559 A.2d 1062

STATE v. William BURKE et al.

No. 88-263-C.A.

Supreme Court of Rhode Island.

June 15, 1989.

James E. O'Neil, Atty. Gen., Annie Goldberg, Jeffrey Greer, Asst. Attys. Gen., for plaintiff.

Paula Rosin, Barbara Hurst, Asst. Public Defenders, Daniel V. McKinnon, McKinnon & Harwood, Pawtucket, for defendant.

OPINION

MURRAY, Justice.

William Burke and Kelly Crosby, the defendants, appeal from a Superior Court decision denying their motions for a new trial on the grounds of newly discovered evidence. The defendants' first trial ended in the declaration of a mistrial. At the conclusion of their second trial, a Superior Court jury returned guilty verdicts against both the defendants on seven counts of robbery and one count of assault with intent to rob. The jury also found Burke guilty of carrying an unlicensed pistol. At the defendants' first trial in September of 1984, certain articles of clothing allegedly worn by Crosby during the robbery were available for admission in evidence against both the defendants. This evidence, found near the crime scene, consisted of a discarded nylon stocking, a pair of blue jeans, an orange toque, a red bandanna, and a gray hooded sweatshirt. At the time of the second trial in June of 1985, however, this tangible evidence apparently could not be located. Consequently, previously taken black-and-white photographs of the lost items were admitted in evidence at trial without objection. Once tried and convicted, the defendants moved for a new trial. The trial justice denied their motions on October 4, 1985, and the defendants appealed.

Approximately one month later, during the pendency of defendants' appeal, the state notified both defendants that the physical evidence had been located by the Cumberland police "on October 31, 1985 while they were transferring evidence to a new evidence locker, buried under some other evidence." After an inspection of the various items, Burke and Crosby both moved for a new trial, each resting their motions on newly discovered evidence. On March 26, 1987, this court remanded the matter to the Superior Court for the limited purpose of allowing defendants to present such motions to a justice of that court while we specifically retained defendants' direct appeal on our May 1987 argument calendar. Thereafter we affirmed defendants' convictions in State v. Burke, 529 A.2d 621 (R.I.1987). Each defendant then requested a hearing on his motion for a new trial in the Superior Court. The trial justice who presided over defendants' second trial heard and denied both motions. It is the denial of these motions that Burke and Crosby appeal.

This court has set forth on numerous occasions the standard for granting a motion for a new trial based on newly discovered evidence. See, e.g., State v. Brown, 528 A.2d 1098, 1104 (R.I.1987); State v. Bassett, 447 A.2d 371, 375 (R.I.1982); State v. Carsetti, 111 R.I. 642, 650-51, 306 A.2d 166, 171 (1973). To serve as a proper basis for a new trial, the evidence must be either newly discovered or newly available since trial. State v. Tavares, 461 A.2d 390, 392 (R.I.1983). We have further stated that the "evidence, even if otherwise qualifying as newly discovered [or newly available], will not be new trial entitling if merely impeaching or cumulative or if of such a nature as would not in all probability change the verdict at a new trial." State v. Benoit, 117 R.I. 69, 81, 363 A.2d 207, 214 (1976). Only when the trial justice misconceives or overlooks material evidence or otherwise clearly errs will this court disturb a decision denying a motion for a new trial. State v. Tooher, 542 A.2d 1084, 1087 (R.I.1988).

The trial justice in the instant case found that the evidence would be, at most, cumulative and impeaching. Even conceding that the evidence was in fact newly discovered, he emphatically concluded that it "would not under any stretch of any reasonable imagination probably change the...