State v. Garcia

• Decision Date: 29 November 2005
• Docket Number: No. 28,537.,28,537.
• Citation: 2005 NMSC 038,125 P.3d 638
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Joe GARCIA, Defendant-Petitioner.
• Court: New Mexico Supreme Court

Page 638

125 P.3d 638

2005 NMSC 038

STATE of New Mexico, Plaintiff-Respondent, v. Joe GARCIA, Defendant-Petitioner.

No. 28,537.

Supreme Court of New Mexico.

November 29, 2005.

John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Elizabeth Blaisdell, Assistant Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Justice.

{1} A jury convicted Joe Garcia ("Defendant") of aggravated battery likely to result in death or great bodily injury, a third degree felony. Defendant filed a motion for a new trial on the grounds of newly-discovered evidence. The newly-discovered evidence consisted of photographs of the victim taken by a police officer shortly after the altercation which was the subject of the trial. Believing that the photographs would have been helpful to a jury, the district court granted Defendant a new trial. On appeal, the Court of Appeals reversed the district court's decision, concluding that the six factors needed in order to grant a new trial under State v. Volpato, 102 N.M. 383, 384-85, 696 P.2d 471, 472-73 (1985) had not been met. We granted Defendant's Petition for Certiorari and reverse the Court of Appeals. We remand the case to district court for a new trial because we do not believe the district court abused its discretion in granting the motion for a new trial.

FACTS AND PROCEDURAL HISTORY

{2} On March 8, 2002, after a heated verbal dispute involving borrowed money, the victim and Defendant got into a physical altercation. At trial, five witnesses gave varying accounts of the events. The victim and his fiancée testified that Defendant had been the first aggressor, and that the victim, who apparently suffers from rheumatoid arthritis and osteoporosis, had been physically incapable of defending himself, much less of throwing punches. They also testified that during the fight Defendant punched the victim in the face, causing him to fall down, and then repeatedly kicked him. According to the victim, Defendant kicked him in the face.

{3} Defendant and his fiancée, who is also the victim's sister, offered a slightly different version of the events. They admitted that Defendant punched the victim, exchanged blows with him on the ground, and then popped up and kicked the victim while he was still on the ground. However, Defendant and his fiancée claimed that the victim had been the first aggressor and had swung his cane at Defendant. They also claimed that the victim threatened to kill Defendant and had reached into the back of his pocket as if to pull out a gun, causing Defendant to hit and kick the victim in self-defense.

{4} The police officer who investigated the fight also testified at trial for the State. He indicated that the victim had been in shock, or at least that he had been staring and had dilated pupils. The left side of the victim's face was swollen, and the officer recalled seeing blood around the victim's mouth and on his left nostril, but no other injuries. The officer also testified about the missing photos at issue in this appeal. He testified that he had photographed the victim's facial injuries on the night of March 8, 2002, with a digital camera but had either misplaced the photo disk or had taken more photographs over them.

{5} On May 6, 2003, Defendant filed a motion for a new trial or, in the alternative, a motion to replace the felony aggravated battery conviction with a conviction for misdemeanor aggravated battery pursuant to the step-down jury instruction given at trial. In his motion, Defendant argued that the pictures — which the State had inadvertently turned over to the Clovis Public Defender along with the discovery material for another case — did not support the jury's conclusion that his actions on March 8, 2002, would likely produce death or great bodily harm. The district court granted Defendant's motion for a new trial, and the State appealed. The Court of Appeals held that the district court abused its discretion by granting the motion because the newly-discovered evidence would not change the result of the trial since: 1) the photographs depicted what the State had acknowledged and what was reflected in the medical reports, and 2) the issue was whether Defendant's actions were likely to produce great bodily harm and not whether his actions actually did produce great bodily harm. State v. Garcia, No. 24,226, p. 3 (N.M.Ct.App. Feb. 17, 2004). We granted Defendant's Petition for Certiorari and now reverse the Court of Appeals.

JURISDICTION

{6} The State cites State v. Conn, 115 N.M. 99, 100, 847 P.2d 744, 745 (1993) for the proposition that our review on certiorari in this case is inappropriate, and specifically that "our jurisdiction in certiorari cases does not encompass weighing or reviewing the resolution of factual issues by the Court of Appeals." In Conn, the State asked us to review a Court of Appeals decision holding that a district court had abused its discretion in admitting evidence of an assault conviction in a criminal sexual contact with a minor case. The defendant had pled guilty to the assault nine years and eight months before the trial. Id. at 101, 847 P.2d 746. There, because we were being asked to examine a question of fact regarding a district court's exercise of discretion on an evidentiary issue, we held that "it is not within the purview of our jurisdiction on certiorari to resolve mere factual conflicts between the district court of this State and the Court of Appeals." Id. In this case, however, we are being asked to review a district court's decision to grant a new trial on the basis of newly-discovered evidence. While the facts of the case constituted a part of the district court's consideration in granting a new trial, the district court's decision remained a legal one. State v. Ashley, 1997-NMSC-049, ¶ 9, 124 N.M. 1, 946 P.2d 205. Conn does not preclude our review of whether the Court of Appeals erred in concluding that the district court abused its discretion in evaluating the effect of the newly-discovered evidence.

MOTION FOR A NEW TRIAL

{7} The general rule is that we will not disturb a trial court's exercise of discretion in denying or granting a motion for a new trial unless there is a manifest abuse of discretion. State v. Romero, 42 N.M. 364, 370, 78 P.2d 1112, 1116 (1938). Because "the function of passing upon motions for new trial on newly discovered evidence belongs naturally and peculiarly, although not exclusively, to the trial court," id., "[t]he discretion of a trial court is not to be lightly interfered with as to the granting of a motion for new trial." State v. Fuentes, 67 N.M. 31, 33, 351 P.2d 209, 210 (1960).

{8} A motion for a new trial on grounds of newly-discovered evidence will not be granted unless the newly-discovered evidence fulfills all of the following requirements:

1) it will probably change the result if a new trial is granted; 2) it must have been discovered since the trial; 3) it could not have been discovered before the trial by the exercise of due diligence; 4) it must be material; 5) it must not be merely cumulative; and 6) it must not be merely impeaching or contradictory.

Volpato, 102 N.M. at 384-85, 696 P.2d at 472-73. The State does not contest that the color photographs were discovered after trial, that they could not have been discovered before trial by the exercise of due diligence, or that they are material. However, the State argues that the color photographs of the victim's face would not change the result if a new trial were granted, and that the photographs are merely cumulative, or impeaching and contradictory. We disagree and we answer each of these arguments in turn.

WE DEFER TO THE DISTRICT COURT JUDGE'S FINDING THAT THE PHOTOGRAPHS WOULD PROBABLY CHANGE THE RESULT IF A NEW TRIAL WERE GRANTED

{9} "The probability of the new evidence changing a verdict is a question addressed to the sound discretion of the trial court." State v. Desnoyers, 2002-NMSC-031, ¶ 26, 132 N.M. 756, 55 P.3d 968 (citations and quotations omitted), abrogated on other grounds by State v. Forbes, 2005-NMSC-027, ¶ 6, 138 N.M. 264, 119 P.3d 144. In ordering a new trial, the district court made the following written findings:

(1) The defendant did not have photographs that would have been helpful to the jury until after the trial; (2) The lack of those photos were not objected to at trial, nor was a mistrial requested because of the belief that the photographs had been lost; (3) The photographs were in the custody of defense counsel the entire time, having been mislabeled by the police department as another case; (4) The photographs show only minor injuries to the victim; and (5) Defendant had a copy of all medical reports from the victim at the time of trial.

The State argues that the statement "defendant did not have photographs that would have been helpful to the jury until after the trial" does not rise to a finding that the photographs would probably change the result if a new trial were granted. After all, according to the State, the prosecutor's argument had not been that Defendant's actions actually caused great bodily harm, but that his actions were likely to cause great bodily harm. However, before announcing his decision to grant the new trial, the district court judge stated:

Whether the pictures were available or not, it's arguable that that description of that act would meet the elements of the aggravated battery charge, acting in a way that would likely result in death or great bodily harm, whether it happened or not. However, the pictures, it would have been helpful for the jury to have seen these pictures. There's no doubt about that ... I think the pictures are significantly important, that they should have been presented to the jury. I'm not going to determine as a matter of law that Mr. Garcia be convicted of the...