State v. Thomas

• Decision Date: 10 March 1995
• Docket Number: No. 70872,70872
• Citation: 891 P.2d 417,257 Kan. 228
• Parties: STATE of Kansas, Appellee, v. David G. THOMAS, Appellant.
• Court: Kansas Supreme Court

Page 417

891 P.2d 417

257 Kan. 228

STATE of Kansas, Appellee, v. David G. THOMAS, Appellant.

No. 70872.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. A defendant who files a motion for a new trial based on alleged newly discovered evidence has no automatic right to a full evidentiary hearing.

2. New trials on grounds of newly discovered evidence are not favored, and such motions are to be viewed with caution.

3. The appellate standard for reviewing a trial court's order under K.S.A. 22-3501(1) on a motion for new trial based on newly discovered evidence is abuse of discretion, regardless of whether a full hearing with live testimony is held. Under the abuse of discretion standard, if a reasonable person could agree with the trial court's decision it will not be disturbed on appeal.

4. The credibility of evidence offered to support a motion for new trial based on newly discovered evidence is to be determined by the trial court, regardless of whether a full evidentiary hearing is held.

Benjamin C. Wood, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Doyle Baker, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

SIX, Justice:

This is a newly discovered evidence case. David G. Thomas was convicted of first-degree murder in October 1991. We affirmed his conviction in State v. Thomas, 252 Kan. 564, 847 P.2d 1219 (1993). Thomas later moved for a new trial, alleging that three witnesses previously unknown to him now claim they saw someone else commit the murder for which he was convicted. The district court reviewed one affidavit and two written statements of the three witnesses, heard arguments of counsel, and denied the motion.

Thomas contends that the district court abused its discretion by reaching contradictory conclusions of law in explaining its ruling and by apparently finding the new witnesses' statements to lack credibility without observing their testimony. He requests a new trial, or, in the alternative, a full evidentiary hearing on his motion for a new trial.

The appellate standard of review of an order denying a motion for a new trial under K.S.A. 22-3501(1) is generally limited to whether the trial court abused its discretion. State v. Hall, 252 Kan. 669, 671, 847 P.2d 1288 (1993). Under the abuse of discretion standard, if a reasonable person could agree with the trial court's decision, it will not be disturbed on appeal. See State v. Massey, 242 Kan. 252, 264, 747 P.2d 802 (1987).

Our jurisdiction is under K.S.A.1994 Supp. 22-3601(b)(1) (Thomas was convicted of a class A felony). We find no abuse of discretion and affirm.

Facts

The facts underlying Thomas' conviction are set forth in our opinion in State v. Thomas, 252 Kan. at 566-67, 847 P.2d 1219. Thomas borrowed a .22-caliber rifle on March 25, 1991, from Stan and Joy Austin, telling them that he was going hunting. The next evening Thomas and two acquaintances drove to the north side of Wichita. Thomas stopped the car, pulled the rifle from the car, and began chasing the victim, Veotis Richmond. Thomas' two acquaintances, who stayed behind, heard two or three gunshots. When Thomas returned, he said that the man had sold him "bad drugs." At the Austins' house Thomas wiped off the .22 rifle and returned it, stating he did not want his fingerprints on the gun. Richmond's body was found the next day. An autopsy revealed that Richmond died of a single gunshot to the back of his head. A firearms expert testified that the bullet recovered from the victim was a .22, fired from the rifle that Thomas borrowed from the Austins.

Thomas' defense at trial was that someone else killed Richmond. He attempted to introduce evidence that a man named Roger Tucker had been angry with Richmond on the day of the shooting and was looking for him. Thomas' only evidence concerning Tucker and Richmond was double hearsay and was not admitted as substantive evidence. There were no witnesses in Thomas' defense claiming to have seen the Richmond murder.

Almost two years after his conviction, three persons came forward claiming to know from their own observations that Thomas did not kill Richmond. Two of the three new witnesses, Tuggle and Roberts, were fellow inmates of Thomas in the El Dorado Correctional Facility. The third witness, Beans, was an inmate in the Hutchinson Correctional Facility.

Of the three new witnesses, only Roberts executed a sworn affidavit. Roberts said he "was down on 9th Street, when I saw Roger Tucker fighting with Veotis Richmond when Roger come up with a gun and shot Veotis."

Beans, who was apparently the first of the three witnesses to contact Thomas' defense counsel, submitted a handwritten, unsworn statement. In his statement, Beans claims that he "saw Roger Tucker kill Veotis Richmond" and explains that he did not come forward at the time with his information because he was "on the run" from a parole violation and because he feared Tucker.

The third new witness, Tuggle, sent a letter to Thomas' counsel (after Thomas' motion for new trial had been filed) saying that Thomas was "convicted of a crime that he did not commit" and that Tuggle would "like to explain this to the court because I should have done this a long, long time ago."

Following a procedure similar to that described in State v. Dunn, 243 Kan. 414, 436, 758 P.2d 718 (1988), the district court conducted an initial hearing on the motion for a new trial. The trial court heard the presentation of evidence, which was limited to the written affidavit and the two letters of the witnesses, and a summation by counsel. As explained in Dunn, such preliminary inquiries allow the district court "to determine whether the claims asserted in the motion are substantial before granting a full evidentiary hearing and requiring the petitioner to be present." 243 Kan. at 436, 758 P.2d 718. The three witnesses were not subpoenaed to testify in person, and Thomas was not personally present.

After hearing arguments of counsel and reviewing the substance of the three statements, the district court denied Thomas' request for a full evidentiary hearing and denied the motion. The judge who ruled on the motion was not the same judge who presided at trial. The district court, in a written journal entry, explained that its denial was, in part, because "the testimony of these witnesses is not newly discovered evidence for purposes of K.S.A. 22-3501."

The rules governing motions for new trials based on newly discovered evidence are well established. K.S.A. 22-3501(1) provides:

"The court on motion of a defendant may grant a new trial to him if required in the interest of justice.... A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment."

The test for determining whether a new trial is warranted based on newly discovered evidence has two parts: (1) The defendant bears the burden of establishing that the newly proffered evidence is indeed "new"--that is, it could not with reasonable diligence have been produced at trial; and (2) the evidence must be of such materiality that there is a reasonable probability it would produce a different result upon retrial. Hall, 252 Kan. at 671, 847 P.2d 1288.

Alleged Inconsistency in the District Court's Ruling

Thomas first contends that the instant case should be remanded because the district court's oral ruling "defies logic." According to Thomas, the district court seemed to assume, on one hand, that Thomas' counsel could not (with reasonable diligence) have produced these new witnesses at trial, and yet it still ruled that this "is not newly discovered evidence." Thomas' confusion about the district court's ruling is understandable. The district court's conclusion that this was not "newly discovered evidence" is ambiguous. The ambiguity, however, does not justify a remand.

In an exchange between the district court and defense counsel, the court explained its "three-fold ruling": (1) An evidentiary hearing was not required to decide the motion; (2) the proffered evidence was not "newly discovered evidence"; and (3) "even if it was newly discovered evidence ... they would have run across [the evidence] with reasonable due care anyway."

The district court stated orally and in the written journal entry that the newly proffered testimony from the three new witnesses was not "newly discovered evidence." However, when asked directly whether it was ruling that defense counsel did not use due diligence in attempting to locate these witnesses at the time of trial, the district court responded, "I'm not making that ruling at all." The district court revealed its suspicion that Thomas may have known these three witnesses at the time of the trial, stating, "I mean, if you--if you knew them now, he probably ... knew them then. Your client has the burden to go through all of his list of buddies then." However, the trial court decided not to rest its ruling on grounds that the evidence could have been produced at the original trial. Instead, the court concluded, "Well I'm just going to assume that you couldn't have found it, but I'm going to rule that this is not newly discovered evidence."

The logical interpretation of the district court's ruling, considering the applicable legal standards, is that it was based on the second part of the analysis, i.e., whether the newly proffered evidence was so material as to create a reasonable probability of changing the outcome upon retrial. The district court, however, never spoke directly in terms of materiality and credibility. Therefore, Thomas contends that a remand is required. We disagree. The district court implicitly conveyed its distrust of the evidence throughout the hearing and therefore denied the motion without allowing a full evidentiary...