State v. Serna
| Decision Date | 12 March 1991 |
| Docket Number | No. CR-89-0341-AP,CR-89-0341-AP |
| Citation | 167 Ariz. 373,807 P.2d 1109 |
| Parties | STATE of Arizona, Appellee, v. John A. SERNA, Appellant. |
| Court | Arizona Supreme Court |
The facts are set out in detail in our earlier opinion upholding defendant's conviction and sentence for first degree murder. See State v. Serna, 163 Ariz. 260, 787 P.2d 1056 (1990). We recount them only briefly here.
Defendant was an inmate at the Perryville prison and was charged with first degree murder after the body of a fellow inmate, Pat Chavarria, was discovered in the prison laundry room. Chavarria had been beaten to death with an eighteen-inch metal bar. Defendant's first trial resulted in a hung jury. A second jury convicted defendant of first degree murder and the trial court sentenced him to death. We affirmed both the conviction and sentence on direct, automatic appeal.
In the meantime, defendant filed a motion to vacate the judgment pursuant to 17 A.R.S. Ariz.R.Crim.P. 24.2 and 32.1, alleging the existence of newly discovered evidence justifying relief. In support of the motion, defendant argued that the newly discovered testimony of several inmates would show that another inmate, Tony Apodaca, was the murderer. Apodaca had testified for the state at the earlier trials. The trial judge conducted an extensive evidentiary hearing to hear and evaluate the newly proffered evidence. After doing so, he denied the motion to vacate judgment. Defendant appealed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and -4033, and Ariz. Const. art. VI, § 5(3).
Whether the trial judge abused his discretion in denying defendant's motion to vacate judgment.
Motions for new trials based on newly discovered evidence are disfavored, and we grant them cautiously. State v. Schantz, 102 Ariz. 212, 214, 427 P.2d 530, 532 (1967). Absent an abuse of discretion, we will not disturb a trial judge's determination that a new trial for newly discovered evidence is not necessary. State v. Fisher, 141 Ariz. 227, 251, 686 P.2d 750, 774, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984).
To warrant post-conviction relief based on newly discovered evidence, the material presented must meet five requirements: (1) the motion must show that the evidence relied on is, in fact, newly discovered; (2) the motion must allege facts from which the court can infer due diligence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) the evidence must be material to the issue involved; and (5) it must be evidence which, if introduced, would probably change the verdict if a new trial were ordered. See 17 A.R.S. R.Crim.Proc. 24.2(a)(2), 32.1(e); State v. Jeffers, 135 Ariz. 404, 426, 661 P.2d 1105, 1127, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983); State v. Salinas, 129 Ariz. 364, 367-68, 631 P.2d 519, 522-23 (1981).
Defendant's essential argument is that the trial court must accept newly discovered testimony at face value and that only a new jury may assess its credibility. This argument misconceives the trial judge's role in considering a motion to vacate based on newly discovered evidence.
In evaluating the motion in this case, the trial court found that the evidence was newly discovered; that defense counsel had exercised due diligence; that the evidence, although much of it was merely impeaching of Apodaca, was not merely cumulative; and that the evidence was material. However, the court found lacking the crucial requirement that the evidence, if introduced, probably would have changed the verdict. Part of the trial judge's evaluation of the evidence is as follows:
I have considered the testimony of all the witnesses who testified and I find that their credibility is greatly lacking--and I am not saying that Tony Apodaca is credible either in and of himself.
. . . . .
As far as the witnesses who testified, Mr. Johnson, I found him to be totally incredible. He stated the victim was a black man. [The victim was Hispanic.] I simply did not believe Tony Deen's testimony. It was contrary to the evidence at trial, both physical and testimonial,....
. . . . .
As far as Mr. Nickerson, his testimony was virtually all over the wall. I found him to be totally incredible.
So that left with--with us Mr. Paredes [Peritez] who really didn't say anything opposite as to what Mr. Apodaca testified to.
. . . . .
Mr. Stinson and Mr. Perez, their testimony on its face may be more credible than the other ones, however, I didn't find their testimony to be credible.
I found serious inconsistencies in their testimony. I don't know what their motives are. I can't really find out what their motives are for giving different stories to I & I and different stories in court.
... and I simply cannot find that their testimony would result in the acquittal of the defendant--probably result in the acquittal of the defendant.
Because defendant's motion to vacate relies on witnesses willing to testify at a new trial, those witnesses must appear worthy of belief to the trial judge hearing the motion. 17 A.R.S. R.Crim.P. 24.2(a)(2), 32.1(e); Jeffers, 135 Ariz. at 426, 661 P.2d at 1127; Salinas, 129 Ariz. at...
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...in the denial of Henry's new trial motion alleging that the verdicts were against the weight of the evidence. State v. Serna, 167 Ariz. 373, 374, 807 P.2d 1109, 1110 (1991) (abuse of discretion standard). The facts outlined above, viewed in a light most favorable to sustaining the verdicts,......
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