State v. Heath

212 S.E.2d 400 (1975)

25 N.C. App. 71

STATE of North Carolina v. Lionell HEATH.

No. 7426SC973.

Court of Appeals of North Carolina.

March 5, 1975.

*401 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, and Associate Atty. Wilton E. Ragland, Jr., Durham, for the State.

Hamel, Cannon & Hamel by I. Manning Huske, Charlotte, for defendant-appellant.

MARTIN, Judge.

In cross-examination of defendant, the district attorney asked, "You took a lie detector test, didn't you?" Counsel for defendant immediately interposed an objection which was properly sustained. It is argued that the question itself was sufficient to justify a new trial for it was made with the purpose of getting prejudicial matter before the jury and left them with the idea that defendant had failed a lie detector test. In State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961) the Court held that the results of a polygraph test are not admissible in evidence to establish the guilt or innocence of one accused of a crime. State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974); State v. Pope, 24 N.C.App. 217, 210 S.E.2d 267 (1974). While we strongly disapprove of the district attorney's question, we fail to see how it could have possibly affected the outcome of this case.

In his next assignment of error, defendant contends the trial court erred in denying his motion for a new trial based upon newly discovered evidence. The motion states in part:

*402 "That since said verdict was entered, the defendant has discovered new evidence material to his defense which with reasonable diligence could not have been discovered and produced at trial, namely, that one John Willie Garnett who had been indicted as a codefendant with Lionell Heath for the crime of armed robbery and had entered a plea of guilty prior to the trial of Lionell Heath but was not sentenced until after the trial of Lionell Heath, stated in open court at such sentencing that Lionell Heath had not participated in the robbery for which he had been indicted."

A motion for new trial based upon 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. Shelton, 21 N.C.App. 662, 205 S.E.2d 316 (1974). Quoting from State v. Casey, 201 N.C. 620, 161 S.E. 81 (1931), the Court in State v. Shelton, supra, set 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 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.)"

It would appear that the last two prerequisites have not been met. Garnett's testimony would only tend to contradict three eyewitnesses who testified for the State. Furthermore, it does not appear that a different result would probably be reached due to the newly discovered evidence. In the trial court's denial of defendant's motion for a new trial we find no abuse of discretion.

Defendant's remaining assignment of error lacks merit.

No error.

VAUGHN and ARNOLD, JJ., concur.