State v. Noriega

• Decision Date: 15 June 1967
• Docket Number: CA-CR,No. 2,2
• Parties: The STATE of Arizona, Appellee, v. Richard Rivera NORIEGA, Appellant. 94.
• Court: Arizona Court of Appeals

Page 459

429 P.2d 459

5 Ariz.App. 572

The STATE of Arizona, Appellee, v. Richard Rivera NORIEGA, Appellant.

No. 2 CA-CR 94.

Court of Appeals of Arizona.

June 15, 1967.

Darrell F. Smith, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

S. Jeffrey Minker, Tucson, for appellant.

KRUCKER, Judge.

This case is presently pending in this Court on the defendant's appeal from a conviction of obstructing justice. No briefs have been filed because the defendant has filed a motion for remand to the Superior Court to enable him to move for a new trial on the ground of newly discovered evidence.

Appended to the motion for remand are two affidavits. The affidavit of a potential witness, Mr. Padilla, who was not available at the time of trial, sets forth the substance of the testimony he would give were a new trial ordered. The affidavit of appellate counsel is to the effect that Mr. Padilla was not subpoenaed as a witness at the trial commencing October 13, 1966, and was out of the state from October 9, 1966, until sometime in December 1966. Subsequent to the filing of the notice of appeal, Mr. Padilla sought out the defendant's appellate counsel and volunteered the information set forth in his affidavit.

The defendant correctly maintains that the trial court is without jurisdiction to entertain his motion for a new trial. The filing of the notice of appeal divested the trial court of jurisdiction to act except in furtherance of the appeal. Application of Lopez, 97 Ariz. 328, 400 P.2d 325 (1965); Eyman v. Cumbo, 99 Ariz. 8, 405 P.2d 889 (1965). Without presenting authority for his motion, the defendant has requested this court to simultaneously relinquish and retain its jurisdiction, i.e., remand the case for presentation of a motion for a new trial and retain the appeal in a state of suspension pending the outcome of the proceedings on remand. The State's response does not challenge the procedural propriety of the defendant's motion, but merely challenges the sufficiency of the 'newly discovered evidence'.

Rule 310, Arizona Rules of Criminal Procedure, 17 A.R.S., provides in pertinent part:

'The court shall grant a new trial if any of the following grounds is established:

'3. That new and material evidence, which if introduced at the trial would probably have changed the verdict or the finding of the court, is discovered which the defendant could not with reasonable diligence have discovered and produced upon the trial.'

Rule 308, Arizona Rules of Criminal Procedure, 17 A.R.S., provides:

'A motion for a new trial may be made only within three days after the rendition of the verdict or the finding of the court, unless the ground of the motion is newly discovered evidence as provided in Rule 310, in which event the motion may be made within one year after the rendition of the verdict or the finding of the court, or at a later time if the court for good cause permits.'

Thus we see that there is no question as to the timeliness of a motion for a new trial, if the motion to remand were granted.

Our rules of civil procedure make no specific provision for a 'motion to remand'. However, an appellate court may, in a proper case, grant a motion to remand a case to the lower court to enable an appellant to move for a new trial based on newly discovered evidence, after taking of an appeal. 5B C.J.S. Appeal and Error § 1836 h; State ex rel. Thompson v. Babcock, 145 Mont. 592, 403 P.2d 605 (1965); Weisberg v. Koprowski, 17 N.J. 362, 111 A.2d 481 (1955); State v. Nicks, 131 Mont. 567, 312 P.2d 519 (1957); Ketola v. St. Paul City Railway Company, 245 Minn. 583, 72 N.W.2d 370 (1955).

In the federal court system, the trial court is permitted to entertain a motion for a new trial on the ground of newly discovered evidence prior to remand. Rule 33, Federal Rules of Criminal Procedure, 18 U.S.C., (as amended 1966), provides, in part:

'* * * A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case.'

The old federal rule, Rule 2(3), required remand by the appellate court before the trial court might entertain a motion for a new trial. As pointed out in the case of Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952):

'In criminal cases, therefore, the procedure is that, when a trial is sought because of newly discovered evidence in a case pending in the appellate court, a motion for the new trial is made in the District Court, and the District Court may then deny the motion or indicate that it will grant the motion. If that court indicates that it is inclined to grant the motion, a motion for remand is made in the appellate court.'

It appears to be fairly well-established procedure in the federal courts that when a case is on appeal, the district court may certify that if the case is remanded, a new trial will be granted, and then the appellate court will comply by remanding the case. See United States v. Comulada, 340 F.2d 449 (2d Cir. 1965), cert. denied 380 U.S. 978, 85 S.Ct. 1343, 14 L.Ed.2d 272 (1965); Richardson v. United States, 360 F.2d 366 (5th Cir. 1966); United States v. Smith, 331 F.2d 145 (9th Cir. 1964). As pointed out in the Richardson case, supra, 360 F.2d at page 368:

'By necessary implication, Rule 33 of Federal Rules of Criminal Procedure confers jurisdiction upon the trial court to hear a motion for a new trial on the ground of newly discovered evidence while the case is on appeal from the judgment of conviction. * * * Thus, the trial court had jurisdiction to hear the motion. With respect to the power to act upon the motion, such rule expressly precludes the granting of such a motion absent remand by the appellate court; * * *.'

According to the Smith case, supra, consideration of the appeal is held in abeyance until the trial court certifies to the appellate court whether it will grant the motion if the case is remanded for a ruling on the motion. From a practical standpoint, the federal procedure has much to recommend it. An absolute remand for purposes of allowing a trial court to entertain a motion for a new trial in situations where the motion would be denied would serve no useful purpose. However, regardless of the procedure followed, we must pass upon the sufficiency of the evidence presented in support of the motion. See State v. Babcock, supra; Heald v. United States, 175 F.2d 878 (10th Cir. 1949); Smith v. United States, 109 U.S.App.D.C. 28, 283 F.2d 607 (1960); Evans v. United States, 122 F.2d 461 (10th Cir. 1941); Isgrig v. United States, 109 F.2d 131 (4th Cir. 1940); State v. Clamp, 225 S.C. 89, 80 S.E.2d 918 (1954). As stated in Ketola v. St. Paul City Railway Company, supra: ¹

'In determining whether a motion to remand should be granted, our inquiry is limited to whether the showing made is of such nature that the moving party ought to have the opportunity to present the motion to the trial court. * * * We are not passing on the merits, and the granting of this motion is not a suggestion as to what result should follow below. The trial court will proceed as usual in the ordinary case under the applicable rules.'

The evidence at the trial disclosed that a disturbance occurred at a bar on South 12th Avenue in Tucson, Arizona, on June 25, 1966. A police officer summoned there radioed for assistance upon his arrival at the bar. A crowd was gathered outside watching two fellows who were preparing to fight. Another officer, who arrived at the scene in response to the summons for assistance, testified that he walked through the crowd telling them to 'break it up.' One of the fight participants was the defendant. The officer further testified that someone in the crowd yelled: 'The cops,'; that both fight participants looked at him; that he was wearing his police uniform; that the defendant struck the other antagonist; whereupon the officer grabbed the defendant and told him that he was under arrest. The defendant then turned around, said something to the officer which he couldn't remember, jerked his shoulder from the officer's grasp and struck him in the face with his fist.

The officer stated that he was wearing eyeglasses and the blow shattered a lens and broke the temple. The glasses, in this condition, were introduced into evidence, and the officer testified that they had been intact prior to the blow. He went on:

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