Keser v. State

737 P.2d 756, 1987 Wyo. LEXIS 454

• Court: Wyoming Supreme Court
• Decided: June 2, 1987
• Docket: 86-167
• Status: Published

Opinions

CARDINE, Justice.

After a jury trial in county court, appellant Randy Keser was convicted of reckless driving, § 31-5-229, W.S.1977, reckless endangering, § 6-2-504, W.S.1977, destruction of property, § 6-3-201(b)(i), W.S.1977, and cruelty to animals, § 6-3-203(a)(ii), W.S.1977. The single issue on appeal is whether the district court erred in affirming the county court’s denial of his motion for new trial.

We affirm.

On November 9, 1984, a criminal information was filed charging appellant Randy Keser with the four offenses described above. An affidavit of a member of the Natrona County sheriff’s office, filed in support of the information, contained the following statements:

“2. That your Affiant was informed by one Joseph Joslyn, Jr. and one Allan J. Franklin that on September 3, 1984, at approximately 4:00 p.m. they were walking on the southbound side of Cole Creek Road approximately 150 feet south of Jade Road, which is located in Natrona County, Wyoming; that one late 1960’s to early 1970’s medium yellow vehicle with loud pipes was heading northbound on Cole Creek Road and approached towards them, Joseph Jr. and Allan; that said vehicle crossed the centerline and struck and killed a six (6) month old black, white and sandy mix shepard, named Zeus, which belonged to one Joseph Joslyn, Sr.; that said vehicle nearly hit said Joseph Jr. and said Allan, coming within two or three feet of them.

“3. That your Affiant was informed by said Allan J. Franklin that the driver of the aforesaid Oldsmobile vehicle, laughed after striking and killing said shepard mix with said vehicle.

“4. That your Affiant was informed by said Joseph Joslyn, Jr. and said Allan J. Franklin that one Randy Keser was the driver of the aforesaid Oldsmobile vehicle.”

Appellant waived arraignment, entered a plea of not guilty and demanded a jury trial.

At trial the prosecution relied heavily on the testimony of the two eyewitnesses, Allan J. Franklin, age 13, and Joseph Joslyn, Jr., age 14. Allan Franklin testified that he and Joseph Joslyn, Jr., were walking along Cole Creek Road when a car of “cream color” with a “tannish-like roof” struck Joseph’s dog; that he observed the driver of the car; and that he knew appellant was the driver because he saw his sideburns and the cap he usually wore. He also testified that he had previously seen appellant driving the car around town and that it was now broken down and sitting in appellant’s yard. On cross-examination, Allan stated that his father and appellant did not get along very well; that his father had filed a criminal complaint charging appellant with battery in 1984; and that the charge was dismissed two months later. Defense counsel showed Allan a photograph of a gold-colored vehicle which was later identified by appellant as a broken down car sitting in his yard. Allan said that the car in the photograph was not the car that hit the dog. He identified appellant in court and said that he was “positive” that appellant was the person who ran over the dog.

Joseph Joslyn, Jr. testified that the car that struck the dog was a “yellowish cream color with a black roof”; that he saw the car strike the dog; that he was three feet from the car when it struck the dog; that he felt endangered; that he did not see the driver at all; and that he had seen and ridden in the car before. On cross-examination, he said that he did not know if appellant ran over the dog, but he recognized the ear. He said he was not sure whether the car in the photograph was the car that ran over the dog, but the color was right. Finally, he testified that Allan Franklin’s dad had “talked to him” about appellant and that Mr. Franklin “doesn’t like him.”

After the prosecution concluded its case, appellant took the stand. He testified that he owned the car in the photograph and that it had not been running since February of 1984. Appellant insisted that he was in Rock Springs on the Labor Day weekend when the incident occurred and that he did not run over the dog.

Appellant’s neighbor testified that the vehicle in the photograph had been parked in appellant’s yard for over a year and that he last saw it run in February or March of 1984. Another witness testified that appellant and his wife were with her in Rock Springs when the incident occurred and that they did not leave Rock Springs until September 4, the day after the dog was killed.

The jury found appellant guilty on all counts. After the trial, appellant interviewed two young boys, Domenick and Joshua Rittenhouse, who were friends of the two boys who testified for the prosecution. The Rittenhouse boys told appellant that one of the prosecution witnesses, Joseph Joslyn, Jr., had told them that he did not see who ran over his dog. On March 20, 1986, Mr. Keser filed a motion for new trial, alleging that he had discovered new evidence which showed that the prosecution witnesses committed perjury and that they had not witnessed the killing of the dog.

In support of his motion for new trial, appellant filed an affidavit of his trial counsel, who made the following statements:

“1. That he was the attorney for the Defendant in the above-entitled action.

“2. That he was not aware of the potential testimony of Domenick Rittenhouse and Joshua Rittenhouse, two friends of the chief prosecution witnesses, until, after the trial of the above-entitled action.

“3. That the information regarding the Rittenhouses was discovered by the Defendant himself after the trial held April 25,1985, by interviewing the members of his neighborhood on Cole Creek Road and neither the Defendant nor counsel for the Defendant to the best of Affi-ant’s knowledge had any information that there were witnesses [who] would testify that the chief prosecutor’s witnesses had perjured themselves.

“4. That your Affiant made an appointment with the Rittenhouses after the trial and they failed to show up and your Affiant understands that shortly thereafter the Rittenhouses moved.”

Appellant also filed affidavits of Domenick and Joshua Rittenhouse. Domenick Ritten-house stated:

“4. That your Affiant was a neighbor and close personal friend of Joe Joslyn whose family owned a dog.

“5. In early September of 1984, Joe Jos-lyn called me on the telephone and told me that his dog had just been run over. He said that they did not see who it was that ran the dog over, all they heard was the tires squeal, and the dog yelping.

* * * * $ *

“7. I then talked to Joe Joslyn several days after the dog was killed and asked him if they had found out anything about the dog and he said that they had found out who had killed their dog. Joe said the guy swerved to hit him and A.J. Franklin and they jumped off the road with their bikes and the guy hit their dog. I did not believe this story because he had told me on the phone after the dog was hit he didn’t know who did it. “8. On one other occasion just prior to the Court date, Joe Joslyn called me and said that he had just spoken with A.J. Franklin, who was also an acquaintance of mine and A.J. Franklin’s Dad told them what to say in Court, because he wanted to get the person that they were blaming for running over the dog.”

Joshua Rittenhouse made the following statement:

“5. I overheard A.J. Franklin telling one of his friends on the school bus that he saw a blue car going by fast on Cole Creek Road and that Joe Joslyn called him just after that and said, ‘Did you see a blue car go down the road because it hit my dog.’ ”

The county court denied appellant’s motion for new trial, concluding that the evidence contained in the affidavits merely attacked the credibility of the State’s witnesses and that under this court’s decision in Grable v. State, Wyo., 664 P.2d 531 (1983), newly discovered evidence regarding the credibility of a witness is not sufficient grounds for a new trial.¹ Appellant then appealed to the district court which affirmed the county court’s denial of the motion for new trial upon the same grounds. Appeal is now taken to this court.

In reviewing a trial court’s denial of a motion for new trial based upon newly discovered evidence, we will not reverse unless appellant affirmatively shows an abuse of discretion by the trial court. Grable v. State, supra, at 532. In Saldana v. State, Wyo., 728 P.2d 1121, 1123 (1986), we said:

“ ‘Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” Quoting from State ex rel. Carroll v. Junker, 79 Wash.2d 12, 482 P.2d 775 (1971).

Thus, an abuse of discretion occurs when a court acts in a manner which exceeds the bounds of reason under the circumstances. Martinez v. State, Wyo., 611 P.2d 831 (1980).

In order to obtain a new trial on the grounds of newly discovered evidence a defendant must establish all of the following:

1. The evidence has come to his knowledge since trial;

2. It was not owing to the want of due diligence that it did not come sooner;

3. The evidence is so material that it would probably produce a different verdict; and

4. The evidence is not cumulative. Siegert v. State, Wyo., 634 P.2d 323, 326 (1981); Opie v. State, Wyo., 422 P.2d 84, 86 (1967).

We have held that a new trial will not be granted if the defendant’s newly discovered evidence merely impeaches a witness. Grable v. State, supra; Salaz v. State, Wyo., 661 P.2d 238 (1977). Both the county court and the district court applied this rationale in disposing of this case.

There is a difference between evidence which merely goes to credibility or impeaches a witness by calling his credibility into question and evidence which is offered to show an “eyewitness” to a crime gave false identification testimony. The evidence offered by appellant in this case was impeaching; it also falls into the latter category, as it was offered to show that Allan Franklin, the only witness who claimed to see defendant commit the crime, was not present at the scene of the crime. Unlike the impeachment evidence offered in Grable v. State and Salaz v. State, supra, this evidence is so material that it would probably produce a different verdict. Thus, the district court was not correct in ruling that appellant’s motion and affidavits failed to support any ground upon which a new trial may be granted.

We have held, however, that even if a lower court’s reasoning is incorrect, its decision should not be reversed if it is sustainable on another theory. DeWald v. State, Wyo., 719 P.2d 643 (1986). We find that appellant failed to meet his burden of proving that his failure to discover the evidence before trial was not due to lack of diligence. “Whether sufficient diligence was used must ordinarily be determined from the composite knowledge and conduct of both the accused and his counsel.” 3 Wright, Federal Practice and Procedure: Criminal 2d § 557 at 327-329 (1982). In this case the affidavit of the officer describing the proposed testimony of the two witnesses was filed with the information. Appellant and his counsel knew before trial that Franklin would identify him as the driver of the car. Yet appellant conducted his own investigation only after his conviction and, by interviewing neighbors, uncovered the alleged contradictory evidence used to support his motion for new trial.

The evidence appellant now seeks to produce could as easily have been discovered before trial as after trial. It has nothing to do with poverty or wealth. It was developed by simple inquiry of a few neighbors in the sparsely populated area where this incident occurred. If we were to adopt the rule suggested by the dissent, every convicted person in every case could produce self-serving affidavits of alleged new evidence conflicting with evidence at trial (now called penury) and be entitled to an evidentiary hearing and then another trial and, after that, more affidavits, more hearings, and more trials ad infinitum. The essence of our criminal justice system is that citizens be represented by counsel and afforded one trial by a jury at which they must produce all of the evidence available and reasonably dicoverable upon which they choose to rely and that they will be bound by the result of that trial. Were it otherwise, the criminal justice system would sink into the quicksand of multiple, endless evidentiary hearings and trials with never a final disposition.

Appellant has failed to demonstrate that through the exercise of due diligence this, evidence could not have been obtained before trial. Accordingly, his motion for new trial must fail.

Affirmed.

URBIGKIT, J., filed a dissenting opinion.

1 . Appellant’s motion for new trial was decided under Rule 31, W.R.Cr.P.C.C., which is identical in substance to Rule 34, W.R.Cr.P.