State v. Shelton

205 S.E.2d 316 (1974)

21 N.C. App. 662

STATE of North Carolina v. John Wayne SHELTON.

No. 7417SC389.

Court of Appeals of North Carolina.

June 5, 1974.

Certiorari Denied August 30, 1974.

*317 Atty. Gen. Robert Morgan by Associate Atty. Archie W. Anders, Raleigh, for the State.

Smith, Carrington, Patterson, Follin & Curtis by J. David James, Greensboro, for defendant appellant.

Certiorari Denied by Supreme Court August 30, 1974.

CAMPBELL, Judge.

Defendant contends that the trial court erred in denying his motion for new trial on the basis of newly discovered evidence. Appeal does not lie from a refusal to grant a new trial for newly discovered evidence. State v. Gordon, 15 N.C.App. 241, 189 S.E.2d 550 (1972). We have, *318 however, treated defendant's appeal as a petition for certiorari, which is allowed.

G.S. § 15-174 reads as follows:

"The courts may grant new trials in criminal cases when the defendant is found guilty, under the same rules and regulations as in civil cases."

G.S. 1A-1, Rule 59(a), in pertinent part reads:

"A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: * * * * * * (4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligency, have discovered and produced at the trial;"

A motion for new trial on the grounds of newly discovered evidence is addressed to the sound discretion of the trial court and is not subject to review absent a showing of an abuse of discretion. State v. Blalock, 13 N.C.App. 711, 187 S.E.2d 404 (1972); 7 Strong, N.C. Index 2d, Trial, § 49, p. 366. The trial court's refusal to consider the second affidavit was correct. The second affidavit was filed after the trial court had already ruled on defendant's motion. Rule 59(c) of the Rules of Civil Procedure provides:

"(c) Time for serving affidavits.When a motion for new trial is based upon affidavits they shall be served with the motion. . . ."

The case of State v. Casey, 201 N.C. 620, 161 S.E. 81 (1931), sets out the prerequisites for cases involving motions for new trials on the grounds of newly discovered evidence as follows:

"1. That the witness or witnesses will give the newly discovered evidence. (Citations omitted). 2. That such newly discovered evidence is probably true. (Citations omitted). 3. That it is competent, material and relevant. (Citations omitted). 4. That due diligence was used and proper means were employed to procure the testimony at the trial. (Citations omitted). 5. That the newly discovered evidence is not merely cumulative. (Citations omitted). 6. That it does not tend only to contradict a former witness or to impeach or discredit him. (Citations omitted). 7. That it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail. (Citations omitted)."

The issue here is whether the affidavit of Ernest Dale Smith, codefendant with John Wayne Shelton, tends only to contradict, impeach, or discredit Eddie Ray Spivey. Many jurisdictions refuse to hold that a trial judge abuses his discretion in denying a motion for new trial for newly discovered evidence on the basis of the recantation of a witness. Such testimony is exceedingly unreliable, and it is the duty of the trial court to deny the motion for new trial where it is not satisfied that such testimony is true, especially where the recantation involves a confession of perjury or where there is a repudiation of the recantation. See annotations at 33 A.L.R. 550, 74 A.L.R. 757, 158 A.L.R. 1062, and 51 A. L.R.3d 907. See, also, State v. Ellers, 234 N.C. 42, 65 S.E.2d 503 (1951); State v. Roddy, 253 N.C. 574, 117 S.E.2d 401 (1960); State v. Blalock, supra; State v. Chambers, 14 N.C.App. 249, 188 S.E.2d 54 (1972); and State v. Bynum, 20 N.C.App. 177, 201 S.E.2d 93 (1973). If recantations of witnesses are suspect, so are post-trial statements by convicted codefendants. It would appear that the trial court was not, *319 as State v. Casey, supra, requires, convinced that the new evidence was "probably true".

It would also appear that the affidavit of Ernest Dale Smith would tend merely to contradict or impeach the testimony of Eddie Ray Spivey. The jury has already passed on the credibility of Eddie Ray Spivey, which was strenuously attacked at the trial. We can find no abuse of discretion. The order denying defendant's motion is affirmed.

Affirmed.

MORRIS and VAUGHN, JJ., concur.