State v. French

262 N.W.2d 711, 200 Neb. 137, 1978 Neb. LEXIS 662

• Court: Nebraska Supreme Court
• Decided: February 22, 1978
• Docket: 41212
• Status: Published

Opinions

Spencer, J.

Appellant, Lindsay A. French, appeals from the denial of his motion for a new trial on the ground of newly discovered evidence under section 29-2101 (5), R. R. S. 1943. We affirm.

French was originally charged with four counts of delivery of a controlled substance. Two of the counts involved morning sales and two involved evening sales. Alibi evidence was adduced as to the latter. The same undercover agent, Dennis Landrie, a convicted felon, testified to all the sales. The jury convicted French on the two morning sales but returned a verdict of not guilty on the evening sales. The conviction was affirmed by this court on December 24, 1975. State v. French, 195 Neb. 88, 236 N. W. 2d 832.

Subsequent to the affirmance by this court, defendant filed a motion for a new trial on the ground of newly discovered evidence under section 29-2101 (5), R. R. S. 1943. Defendant’s motion is premised on Dennis Landrie’s involvement with one Bruce Bamford.

In support of his motion for new trial the defendant offered: (1) Transcript of preliminary hearing in the case of State v. Bruce Bamford, held on June 18, 1975, where Dennis Landrie testified at preliminary hearing that Landrie bought amphetamines and cocaine from Bamford on December 20 and 28, 1974; (2) affidavit of Bruce Bamford denying the sales on said dates; (3) affidavit of Jerry Davis that he was the individual who sold Landrie the 4,000 amphetamine tablets for which Bamford was charged; and (4) other affidavits in support of Bamford’s alibi defense as to both dates.

The trial court denied the motion for a new trial. It concluded defendant’s evidence would not be admissible in the event of a retrial herein. It further found in any event it was not of such a character as to probably result in a different verdict for the defendant.

We have repeatedly held a motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court and unless an abuse of discretion is shown its determination will not be disturbed on appeal. State v. Evans, 187 Neb. 474, 192 N. W. 2d 145 (1971).

The proposed newly discovered evidence which defendant offers as justification for a new trial consists solely of affidavits used in an attempt to discredit the testimony of witness Dennis Landrie in a subsequent preliminary hearing in another matter. That defendant was bound over to District Court after the hearing. No trial was had therein because that case was subsequently dismissed by the court on motion by the county attorney for the reason that the memory of the key and principle witness for the State had dimmed sufficiently that the likelihood of a conviction had been appreciably altered.

We have held on numerous occasions that evidence which only tends to discredit a witness who testified at trial is not sufficient to justify a new trial. State v. Wycoff, 180 Neb. 799, 146 N. W. 2d 69 (1966). In Wycoff, the conviction was based partially upon the testimony of a witness who stated that the defendant was in fact in a tavern when he claimed not to be. In support of his motion for a new trial, Wycoff produced affidavits which challenged the credibility of the witness. What we said on that occasion is dispositive of the present case: “This court, in construing this statute (§ 29-2101, R. R. S. 1943), has laid down several rules applicable to this case. A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court and unless an abuse of discretion is shown its determination will not be disturbed. * * * New cumulative evidence tendered in support of a motion for a new trial must be so potent that, by strengthening evidence already offered, a new trial would probably result in a different verdict. * * * A new trial will not ordinarily be granted for newly discovered evidence which, when produced, will merely impeach or discredit a witness who testified at the trial.”

French attacked the credibility of Landrie in his own trial. In this respect the alleged new evidence, even if we were to assume it to be admissible, would be cumulative. The jury chose to believe Landrie on two of the counts. It held for French on the other two. We affirmed that judgment over French’s argument the jury should have accepted all his evidence rather than only part of it. We held: “In jury cases, the jurors are the judges of the credibility of the witnesses and of the weight to be given their testimony and, within their province, they have the right to credit or reject the whole or any part of the testimony of a witness in the exercise of their judgment.”

In Finnern v. Bruner, 170 Neb. 170, 101 N. W. 2d 905 (1960), this court said: “The law does not, however, favor new trials on the ground of newly discovered evidence. * * * The newly discovered evidence must be of such a nature that if offered and admitted at the former trial it probably would have produced a substantial difference in result. Such evidence must be competent, material, and credible, and not merely cumulative. It must involve something other than the credibility of witnesses who testified at the former trial.”

In reviewing the record, we cannot say the trial judge abused his discretion in holding the evidence, even if admissible, would not be so potent as to probably result in a different verdict. The burden was on defendant to show the alleged newly discovered evidence was of such substantial nature that if it had been received in the original trial, it would probably have changed the result. No such showing was made. The trial court, after a full hearing, came to the conclusion that the defendant’s motion for a new trial was not meritorious. We cannot say he was wrong in this conclusion.

The judgment is affirmed.

Affirmed.