Keith Wiggins v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

KEITH WIGGINS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-776

JUNE 8, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

SEVENTH DIVISION,

(NO. CR2001-1906),

HON. BARRY SIMS, JUDGE

AFFIRMED

Sam Bird, Judge

On November 13, 2001, appellant Keith Wiggins was convicted in a bench trial of first-degree battery and possession of a firearm by certain persons. A judgment and conviction order was entered against him on April 15, 2002. Wiggins filed a notice of appeal on April 22, 2002, and thereafter filed briefs with this court. On April 9, 2003, Wiggins also filed with this court a "Request for Leave to File Motion for New Trial with the Trial Court" based on newly discovered evidence, which we granted. Wiggins subsequently filed a motion for a new trial, which the trial court denied, and he now appeals. Wiggins's sole point on appeal is that the trial court erred in denying his motion for a new trial. We affirm.

At trial prior to his convictions, Wiggins testified that on April 5, 2001, he became involved in an altercation with Lashonda Williams's brother, Demetrius Weston, outside of Williams's apartment-building residence. Wiggins admitted that, during the altercation, he had a gun and "shot down to keep [Weston] off of [him]." Other witnesses also testified about the incident. Specifically, Lanesha Weston, Demetrius Weston's cousin, testified that she saw Wiggins with a gun and that she saw him shoot Demetrius. In addition, Demetrius testified that Wiggins had a gun and that Wiggins shot him.

Lashonda Williams (now Lashonda Phillips) testified that, after she saw Wiggins shoot toward the ground, she noticed that her cousin, Sidney Rancifer, was in the breezeway by her apartment and that he "had like a little rod or something" in his hands. She said that she could not see the object because it was dark. After Wiggins appealed his conviction in April 2002, Phillips recanted this testimony. Wiggins requested leave from this court to file a motion for a new trial with the trial court while his appeal was still pending, and we granted his request.

Wiggins's motion for a new trial raised the following arguments: (1) that the State failed to comply with Rule 17.1 of the Arkansas Rules of Criminal Procedure by failing to provide records of criminal convictions of persons called as witnesses by the prosecution; and (2) that Wiggins had discovered "further exculpatory evidence" that "would have been crucial" to his defense. The trial court initially denied the motion without a hearing, finding that Wiggins had failed to provide sufficient evidence to show that a new trial was warranted. The court later set aside the denial order and allowed Wiggins to proffer testimony in support of his motion.

Wiggins proffered testimony from Lashonda Phillips that, during the shooting incident, she actually saw her cousin, Sidney Rancifer, holding an object that was "like a baseball bat" and that he was holding it "two or three feet over his head." She further stated that he held the object in a threatening position as though he were going to hit someone with it. She said that she had lied about this during the trial because her mother had told her not to tell the truth. After allowing the proffer, the trial court again denied Wiggins's motion for a new trial. Wiggins then filed a motion for reconsideration, claiming that Phillips's new testimony "would have likely resulted in a different outcome had the same been presented at trial." The motion for reconsideration was denied; Wiggins later filed another motion for a new trial, which the court also denied.

The decision whether to grant or deny a new trial lies within the sound discretion of the trial court, and this court will reverse that decision only if there is a manifest abuse of discretion. Jones v. State, 355 Ark. 316, 136 S.W.3d 774 (2003). A trial court's factual determinations on a motion for a new trial will not be reversed unless clearly erroneous, and the issue of witness credibility is for the trial judge to weigh and assess. Id. We have long held that newly discovered evidence is one of the least favored grounds to justify a new trial. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003) (citations omitted). To prevail, an appellant must demonstrate that the new evidence would have impacted the outcome of the case and that due diligence was exercised in trying to discover the evidence. Miles v. State, 59 Ark. App. 97, 954 S.W.2d 286 (1997).

In Cooper v. State, 246 Ark. 368, 376, 438 S.W.2d 681, 685 (1969), our supreme court stated as follows:

Impeaching testimony is not sufficient grounds for granting a new trial on the basis of newly discovered evidence. Philyaw v. State, 224 Ark. 859, 277 S.W.2d 484. Even if it could be said that there was a recantation on the part of a witness, it is the duty of the trial court to deny a new trial where it is not satisfied that the recanting testimony is true, especially where it involves a confession of perjury. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case including the testimony of the witnesses submitted on the motion for new trial. The answer lies largely within the discretion of the trial court. Clayton v. State, 186 Ark. 713, 55 S.W.2d 88.

Wiggins argues that the recantation by Lashonda Williams (Phillips) was central to his claim of self-defense and, thus, contends that a new trial should have been granted based on newly discovered evidence. Our supreme court has indeed recognized that a new trial should be granted in cases where the evidence would be insufficient to support appellant's conviction without perjured testimony. See Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991) (finding that defendant was entitled to new trial in light of newly discovered evidence that undercover narcotics officer whose testimony formed majority of evidence against defendant had given perjured testimony as to her relationship with the defendant and may have lied about buying drugs from the defendant); Bussey v. State, 69 Ark. 545, 64 S.W. 268 (1901) (where defendant's conviction for rape rested almost entirely on the testimony of the prosecuting witness, who afterwards made a retraction under oath, it was error to refuse a new trial on grounds of newly discovered evidence). However, in Bennett, supra, our supreme court also said that a new trial will not be granted because of perjury on an immaterial issue, or on a collateral issue, nor generally where the false testimony may be eliminated without depriving the verdict of sufficient evidentiary support.

In the case at bar, there was clearly other evidence to support Wiggins's conviction, even without Phillips's allegedly false testimony. Both Lanesha Weston and Demetrius Weston testified at trial that Wiggins had a gun and shot Demetrius, and the trial court was free to believe this testimony. It is within the province of the trial court to determine the credibility of witnesses. Flowers v. State, ___ Ark. ___, ___ S.W.3d ___ (May 5, 2005).

Furthermore, it was within the trial court's discretion to discredit Phillips's recanting testimony, especially in light of the fact that she admitted to lying during trial. Even assuming that her new testimony was true, we cannot say that it would have impacted the outcome of the case; the mere fact that she lied is clearly insufficient grounds for a new trial. We therefore hold that the trial court did not abuse its discretion in denying Wiggins's motion for a new trial.

Affirmed.

Griffen and Vaught, JJ., agree.