State v. Hall, 68119

• Decision Date: 05 March 1993
• Docket Number: No. 68119,68119
• Citation: 252 Kan. 669,847 P.2d 1288
• Parties: STATE of Kansas, Appellee, v. Gary Lee HALL, Appellant.
• Court: Kansas Supreme Court

Page 1288

847 P.2d 1288

252 Kan. 669

STATE of Kansas, Appellee, v. Gary Lee HALL, Appellant.

No. 68119.

Supreme Court of Kansas.

March 5, 1993.

Syllabus by the Court

1. The granting of a new trial for newly discovered evidence is in the trial court's discretion. A new trial should not be granted unless the evidence is of such materiality that it would be likely to produce a different result upon retrial. The burden of proof is on the defendant to show that the alleged newly discovered evidence could not, with reasonable diligence, have been produced at trial.

2. Appellate review of an order denying a motion for a new trial based on newly discovered evidence is limited to whether the trial court abused its discretion.

3. K.S.A. 22-3501 provides that a motion for a new trial shall be heard and determined by the trial court within 45 days from the date it is made. The 45-day time period is a directive to the trial court; however, under the facts of this case, defendant has not shown that he was prejudiced by the court's delay in hearing and determining the motion for a new trial.

Kerry J. Granger, Hutchinson, argued the cause and was on the brief, for appellant.

John Shirley, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

SIX, Justice:

This is a criminal law newly discovered evidence case. The trial court denied Gary Lee Hall's motion for a new trial. Our jurisdiction is under K.S.A.1992 Supp. 22-3601(b)(1) (Hall was convicted of committing a class A felony).

The standard of review on the primary issue of newly discovered evidence is abuse of discretion. Taylor v. State, 251 Kan. 272, 277, 834 P.2d 1325 (1992).

We find no error and affirm.

Facts

The facts relating to Hall's conviction for the murder of Delbert Angleton appear in State v. Hall, 246 Kan. 728, 731-38, 793 P.2d 737 (1990) (Hall I ). Following our decision in Hall I, Hall requested the papers from his appellate attorney's file. Among the papers, Hall discovered a report written by Kansas Bureau of Investigation (KBI) Agent Ron Klingenberg. The Klingenberg report was written as part of an investigation into Angleton's disappearance; at the time of the report, the KBI was unaware that Angleton had been murdered. Hall contends on appeal that the report was significant because it contained statements that might have had an effect on venue or jurisdiction, that suggested a possible insurance fraud scheme, or that suggested the deceased was possibly involved in drug running. Hall states that he did not see the Klingenberg report until after the Hall I opinion was filed.

In his written statement, admitted at the hearing on the motion for a new trial, Hall asserts that his trial attorney had assured him that he would give Hall a copy of all reports before trial. According to Hall, the trial attorney did not discuss the Klingenberg report during trial preparation. Hall also states that his attorney at trial failed to ask any questions regarding the report. Hall asserts that his attorney "had clearly indicated during the trial that he did not have any of agent Klingenberg's reports." (A copy of the Hall I trial transcript has not been furnished in this appeal.)

Special Agent Alan Jones of the KBI testified at the Hall I preliminary hearing. The Klingenberg report in question was in Agent Jones' file. Hall's trial attorney copied the entire Jones file. Special Agent Bruce Mellor, the K.B.I. agent in charge of the Hall I investigation, also had a copy of the Klingenberg report in his files. Mellor's files were made available to Hall's trial counsel. Trial counsel testified that he had copies of the Klingenberg report prior to the preliminary hearing. Agent Klingenberg was present at the Hall I preliminary hearing and at trial. Hall did not call Klingenberg as a witness.

Hall filed a motion for a new trial on December 3, 1991, based upon newly discovered evidence, i.e., the Klingenberg report and a letter from Richard and Sherry DeGroat which was received by the Appellate Defender's Office on October 5, 1988, approximately a year after the Hall I jury trial. Sherry DeGroat is the sister of Lennie Hall, who was Hall's wife at the time of the Hall I trial. (Hall and Roberta, his wife at the time of Angleton's murder, were divorced in 1985. 246 Kan. at 732, 793 P.2d 737.)

The newly discovered evidence motion was heard and decided on February 4, 1992, 63 days after the motion was filed.

Newly Discovered Evidence

Hall contends that he had never seen the Klingenberg report before it was forwarded to him by the Appellate Defender's Office after we affirmed his conviction. Hall believes his trial counsel did not have the report at trial because counsel said he did not have any of Agent Klingenberg's reports. Hall summarizes statements within the report and advances an analysis of how he believes the report could be relevant to what occurred at his earlier trial. Hall's analysis concerning the impact of the report is unclear. None of the facts mentioned in the report directly absolve Hall. He suggests that the information is relevant because there were only two witnesses to the events, Hall and his ex-wife, Roberta. Roberta was granted immunity to testify against him. Hall concludes that in such a scenario, any evidence about where Angleton went, insurance fraud, or drug running could easily tip the scales in Hall's favor.

Hall observes that the DeGroats said they heard Roberta make the following statement: "Gary, if you don't do exactly what I want you to do--then I am going to make the little deal buried up the hill look like you did it." (Angleton's body had been dumped into a hole dug to bury dead cattle.) Hall I, 246 Kan. at 734, 793 P.2d 737. Hall alleges that he did not know of any witnesses to Roberta's statement until October 5, 1988.

The State emphasizes and we agree: (1) The granting of a new trial for newly discovered evidence is in the trial court's discretion; (2) a new trial should not be granted unless the evidence is of such materiality that it would be likely to produce a different result upon retrial; (3) the burden of proof is on Hall to show that the alleged newly discovered evidence could not with reasonable diligence have been produced at trial; and (4) appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. Baker v. State, 243 Kan. 1, Syl. p 7, 755 P.2d 493 (1988).

The State asserts that the KBI report and the content of the DeGroat letter could have been presented at trial: Hall was a party to the conversation described in the DeGroat letter. Hall testified at trial and could have related the DeGroat conversation to the jury. Additionally, (1) Lennie Hall was present at trial and did not testify, and (2) Hall could have called the DeGroats to the witness stand to corroborate his story regarding Roberta's alleged threat.

We agree that Hall has failed to show that the evidence could not have been produced at trial. The trial court evaluated the evidence and concluded that Hall's trial counsel had the Klingenberg report in his possession and that Hall had knowledge of the conversation discussed within the DeGroat letter. Evidence was presented at the hearing which supported ...