Opinion
No. CR 77-161
Opinion delivered October 24, 1977 [Supplemental Opinion on Denial of Rehearing December 12, 1977.]
1. CRIMINAL PROCEDURE — DISCLOSURE TO DEFENDANT — PROSECUTING ATTORNEY'S OBLIGATIONS. — Rule 17.1(d), Ark. Rules of Crim. Proc., requires the prosecuting attorney, upon discovering material or information within his knowledge, possession or control which tends to negate a defendant's guilt or reduce his punishment to promptly disclose that information to defense counsel. 2. CRIMINAL. PROCEDURE — MOTION FOR NEW TRIAL — FAILURE OF PROSECUTOR TO DISCLOSE INFORMATION AS GROUND. — Where appellant filed a motion for a new trial on the ground that the prosecuting attorney failed to disclose information in his "possession" which would have greatly assisted the defendant in preparing a defense, the only statutory ground on which the court could have granted the motion was the discovery of important evidence by appellant in his favor after the verdict. [Ark. Stat. Ann. 43-2203 (Repl. 1964).] 3. APPEAL ERROR — REFUSAL TO GRANT MOTION FOR NEW TRIAL BASED ON SUPPRESSION OF EVIDENCE — DILIGENCE OF DEFENDANT CRITICAL TO INQUIRY. — In considering whether there was an abuse of discretion in refusing to grant a motion for new trial based on suppression of evidence or newly discovered evidence, the diligence of the defendant in discovering the testimony and the probable effect of the testimony at the trial is critical to the inquiry. 4. CRIMINAL PROCEDURE — GRANTING OF NEW TRIAL. — DISCRETIONARY WITH COURT. — The matter of granting or denying a new trial lies within the sound judicial discretion of the trial judge whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the defendant. 5. CRIMINAL PROCEDURE — GROUNDS FOR NEW TRIAL — NEWLY DISCOVERED EVIDENCE NOT FAVORED AS GROUND. — Newly discovered evidence is one of the least favored grounds for a new trial. 6. CRIMINAL PROCEDURE — MOTION FOR NEW TRIAL — REFUSAL TO GRANT NOT ABUSE OF DISCRETION UNDER CIRCUMSTANCES. — The appellate court cannot say that the trial court abused its discretion or that there was any violation of the requirements of due process of law in the court's refusal to grant a new trial because of the prosecutor's failure to submit to appellant a copy of a witness's affidavit, where the affidavit disclosed only slight potential support for appellant's version of the altercation which led to his being charged with assault and battery, and where it is uncertain whether the testimony of the witness would have had a material impact on the result of the trial, particularly in view of the fact that appellant had been furnished the name of the witness by the state a year before trial and the witness was present at trial but was not called to testify. 7. CRIMINAL PROCEDURE — ORAL MOTION FOR HEARING REGARDING CHANGE IN TESTIMONY — DENIAL NOT ABUSE OF DISCRETION. — Where there was sufficient testimony to sustain the appellant's conviction without the testimony of either of the prosecuting witnesses, the appellate court cannot say that the trial court abused its discretion in denying appellant a hearing on his oral motion that one of the prosecuting witnesses was present and would change his testimony.
Appeal from Madison Circuit Court, W. H. Enfield, Judge; affirmed.
Adams, Covington Younes, by: J. Scott Covington, for appellant.
Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
This appeal was taken from the order of the circuit court denying appellant's motion for new trial. We find no abuse of discretion and affirm the trial court's order.
The motion for new trial was based upon the sole ground that the prosecuting attorney failed to disclose information in his "possession" which would have greatly assisted the defendant in preparing a defense. No specific allegations of fact were contained in the motion, but an affidavit attached to the motion was made a part of the motion. The gist of the affidavit by Gary Fultz was that he was an eyewitness to events leading up to an altercation outside Dale Ladd's house trailer between appellant Newberry and one Dewey Middleton out of which arose one of the charges of first degree assault and second degree battery on which appellant was found guilty, and was subpoenaed by the state as a witness, but not called to testify; that this altercation took place outside of the trailer; and that Linda Durland, a witness on behalf of the state, could not have seen what took place, because she had gone into the bathroom of the trailer with him, when appellant, after having struck Ladd with his fists, invited Ladd outside. Fultz also stated that no one inside the trailer could have observed what went on outside. Middleton had testified that he had been struck by Newberry when he was trying to take a rifle away from Newberry. Linda Durland had not testified that she had seen the alleged assault and battery on Middleton. Other witnesses on behalf of the state had said that Middleton was struck by Newberry, after the latter had come back inside the trailer.
As to the charge of first degree assault and second degree battery on Dale Ladd, of which appellant was also found guilty, the principal conflict between the affidavit of Fultz and the testimony of the witnesses was that appellant used his fists, not the butt of his rifle, in striking Ladd inside the trailer.
Although appellant argues that Fultz would have corroborated appellant's own story that he struck Middleton in self-defense when he was trying to quiet the disturbance from a drinking party in the trailer, in our view, the affidavit of Fultz disclosed slight potential support for Newberry's version. It could only be concluded from the Fultz affidavit that those inside the trailer could not have seen any assault on Middleton. To say the least, even Fultz made appellant the aggressor as to Ladd while they were inside the trailer.
Appellant contends that the prosecuting attorney's action violated Rule 17.1(d), Arkansas Rules of Criminal Procedure. That subdivision requires the prosecuting attorney, upon discovering material or information within his knowledge, possession or control which tends to negate a defendant's guilt or reduce his punishment to promptly disclose that information to defense counsel. This rule is an extension of the mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Commentary to Article V, Arkansas Rules of Criminal Procedure.
The only statutory ground on which the court could have granted a motion for new trial on the facts relied upon by appellant was the discovery of important evidence in his favor by appellant after the verdict. Ark. Stat. Ann. 43-2203 (Repl. 1964). The rule relied upon by appellant does not expand the grounds for a new trial or change the rules governing either the trial court action or appellate review.
We have heretofore recognized the analogy between a motion for a new trial based on suppression of evidence and one based on newly discovered evidence and the applicability of rules governing the latter to both. Murchison v. State, 249 Ark. 861 462 S.W.2d 853. Critical to the inquiry are the diligence of the defendant in discovering the testimony and the probable effect of the testimony at the trial. Murchison v. State, supra. It is quite true that Rule 17.1(d) had not been adopted at the time of our decision in Murchison, but we did consider DR 7-103b of the Code of Professional Responsibility, which had been adopted by this court and which imposes the same responsibility upon a prosecuting attorney as that imposed by the rule in very similar language. There we said that we must view all the circumstances and determine whether the violation of such a rule has, alone or in conjunction with other factors, so effectively deprived an accused of a fair trial as to violate due process of law.
Assuming that the prosecuting attorney did know that Fultz would testify exactly as he stated he would in his affidavit the matter of granting or denying a new trial lies within the sound -judicial discretion of the trial judge whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the defendant. Harvey v. State, 261 Ark. 47, 545 S.W.2d 913. Newly discovered evidence is one of the least favored grounds for a new trial. Gross v. State, 242 Ark. 142, 412 S.W.2d 279.
The record discloses that the list of witnesses to be subpoenaed by the state was supplied to defense counsel by the prosecuting attorney approximately one year prior to the trial. It included the name of Fultz. It is also clear that Fultz was subpoenaed and was present at the time of the trial. Under these circumstances we cannot say that the court abused its discretion in denying a new trial on the grounds alleged, particularly in view of the fact that we are unable to say that the testimony of Fultz would have had a material impact on the result of the trial. We cannot say that the action taken under these circumstances constituted any violation of the requirements of due process of law.
Appellant also belatedly complains in his reply brief that the trial court abused its discretion in denying him a hearing on his motion on his attorney's oral statement that one of the prosecuting witnesses was present and would change his testimony, without stating in what respects. No written motion was filed on this ground. Recanting testimony is treated as newly discovered evidence and its exceeding unreliability, especially where it involves a confession of perjury, has been recognized. Clayton v. State, 186 Ark. 713, 55 S.W.2d 88. In this instance, there was sufficient testimony to sustain the conviction without the testimony of either Ladd or Middleton and the trial judge heard and observed all the witnesses at the trial. In such circumstances, we cannot say that there was any abuse of the trial court's discretion. See Puterbaugh v. State, 217 Ark. 686, 232 S.W.2d 984; Roath v. State, 185 Ark. 1039, 50 S.W.2d 985; Brown v. State, 143 Ark. 523, 222 S.W. 377. At any rate, on the record here, we find no abuse of discretion in this regard.
Since we find no abuse of the trial court's discretion, the judgment is affirmed.
We agree. HARRIS, C.J., and HOLT and ROY, JJ.
Supplemental Opinion on Denial of Rehearing delivered December 12, 1977
1. CRIMINAL PROCEDURE — MOTION FOR NEW TRIAL — COURTS REFUSAL TO ALLOW WITNESS TO TESTIFY, JUSTIFICATION FOR. — Where no written motion for new trial was filed on the basis that the trial court abused its discretion by refusing to allow a witness to testify at the hearing on the motion, and where the only suggestion that any reliance was placed on this ground in the trial court was in appellant's attorney's remark at the conclusion of his opening statement at the hearing that the witness would change his testimony concerning what occurred, there was no abuse of discretion in the trial court's refusal to allow the witness to testify. 2. CRIMINAL PROCEDURE — MOTION FOR NEW TRIAL — STATUTORY REQUIREMENTS RULES. — A trial court did not abuse its discretion in refusing to allow a witness to recant his testimony at a hearing on appellant's oral motion for new trial, where appellant had not complied with Rule 36.22, Ark. Rules of Crim. Proc. (1976), requiring the filing of a motion for new trial including a statement that the movant believes the action to be meritorious and that it is not offered for the purpose of delay; with Ark. Stat. Ann. 43-2203 (Repl. 1964), requiring that the motion set out the grounds for new trial; and/or with Ark. Stat. Ann. 43-2704 (Supp. 1975), requiring that the motion be served on a representative of the prosecuting attorney. 3. CRIMINAL PROCEDURE — GROUNDS FOR NEW TRIAL — STATUTORY GROUNDS UNAFFECTED BY RULES. Ark. Stat. Ann. 43-2203 (Repl. 1964), setting out the grounds for new trial, remains unaffected by the Rules of Criminal Procedure. 4. CRIMINAL PROCEDURE MOTION FOR NEW TRIAL — COPY MUST BE SERVED ON REPRESENTATIVE OF PROSECUTING ATTORNEY. — Rule 36.22, Rules of Crim. Proc. (1976), incorporates a part of Ark. Stat. Ann. 43-2704 (Supp. 1975), but does not eliminate the requirement of that statute that a motion for new trial must be served upon a representative of the prosecuting attorney, the purpose being to give him an opportunity to prepare to resist the motion. 5. CRIMINAL PROCEDURE — MOTION FOR NEW TRIAL — RULES GOVERNING MOTION FOR NEW TRIAL ON SUPPRESSION OF EVIDENCE APPLICABLE TO MOTION ON NEWLY DISCOVERED EVIDENCE. — A motion for new trial on suppression of evidence is analogous to one on newly discovered evidence, and rules governing the latter are applicable to the former. 6. TRIAL — MOTION FOR NEW TRIAL — DILIGENCE OF MOVANT ESSENTIAL. — Where a party moves for a new trial, due diligence of the moving party is essential, and denial of a motion for new trial is not an abuse of discretion where the movant has not used reasonable diligence to discover the evidence before trial. 7. CRIMINAL PROCEDURE — DISCLOSURE OF WITNESSES — PURPOSE OF REQUIREMENT TO DISCLOSE. — The purpose of requiring the state to disclose the names of witnesses is to permit a defendant to acquaint himself with the facts known by the witnesses and their probable testimony, and where appellant had more than a year within which to do this, he is in no position to charge an abuse of discretion on the part of the trial court in denial of a new trial for suppression of the testimony of a witness whose name was disclosed without having shown any effort on his part to discover the testimony of the witness.
JOHN A. FOGLEMAN, Justice. On petition for rehearing, appellant points out that he did argue in his original brief that it was a grave abuse of discretion for the trial court to refuse to allow David Dale Ladd, who was present at the hearing on the motion for new trial and allegedly wanting to recant his testimony at the trial, to testify before the motion was denied. We erroneously stated that appellant belatedly complained of this in his reply brief. We might well have disposed of this contention on the basis that assignments of error unsupported by convincing argument or authority, will not be considered unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606; Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614; Arnold v. Arnold, 261 Ark. 734, 553 S.W.2d 251.
We preferred, however, to pass upon the question raised. We still find no abuse of discretion where no written motion for new trial was filed on this basis and where the only suggestion that any reliance was placed on this ground in the trial court was in appellant's attorney's remark at the conclusion of his opening statement at the hearing on the motion that "Mr. Ladd, who testified in the case, I understand today, will in substance change his testimony concerning what occurred." Rule 36.22, Arkansas Rules of Criminal Procedure requires that a motion for new trial be filed and include a statement that the movant believes the action to be meritorious and that it is not offered for the purpose of delay. No such motion was filed. Ark. Stat. Ann. 43-2203 (Repl. 1964) setting out the grounds for new trial remains unaffected by the Rules of Criminal Procedure. Rule 36.22 incorporates a part of Ark. Stat. Ann. 43-2704 (Supp. 1975), but it does not eliminate the requirement of that statute that a motion for new trial must be served upon a representative of the prosecuting attorney. Obviously, the prosecuting attorney could have had no opportunity to prepare to resist a motion based upon recantation by Ladd. We still do not know in what respects appellant contends that Ladd would change his testimony.
In view of these circumstances and the view taken of recanting testimony as newly discovered evidence, it would be impossible for this court to hold that the trial court acted in abuse of its discretion.
Other grounds for rehearing are also without merit. Appellant complains that we misinterpreted Murchison v. State, 249 Ark. 861, 462 S.W.2d 853. He overlooks, however, the fact that we cited Murchison for the proposition that we analogize a motion for new trial on suppression of evidence with one on newly discovered evidence and apply rules governing the latter to the former. We did say that diligence of the moving party was critical to the inquiry. We have held that due diligence is an essential. Philyaw v. State, 224 Ark. 859, 277 S.W.2d 484. cert. den. 349 U.S. 967, 75 S.Ct. 901, 99 L.Ed. 1288. Denial of motions for new trial have been held not to be an abuse of discretion where the movant has not used reasonable diligence to discover the evidence before trial. Gross v. State, 242 Ark. 142, 412 S.W.2d 279; Stevenson v. State, 236 Ark. 847, 370 S.W.2d 445. In Pate v. State, 206 Ark. 693, 177 S.W.2d 933, a new trial was sought on the ground of newly discovered evidence on the allegation that a witness subpoenaed as a witness for the state, but not put on the witness stand, would have given material testimony in behalf of the defendant had he been called as a witness. We held that denial of a new trial was not error, because no reason was shown for the defendant's failure to discover the witness's knowledge of the altercation which was the basis of the prosecution on a charge of maiming.
The very purpose of requiring the state to disclose the names of witnesses is to permit a defendant to acquaint himself with the facts known by the witness and their probable testimony. Appellant had more than a year within which to do this. He is in no position to charge an abuse of discretion on the part of the trial court without having shown any effort on his part to discover the testimony of Fultz. See also, Lind v. State, 137 Ark. 92, 207 S.W. 47.
The petition for rehearing is denied.
BYRD and HOWARD, JJ., not participating.