State of Utah v. Washington

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Kyle R. Washington,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010040-CA

F I L E D
October 12, 2001 2001 UT App 294 -----

Third District, Tooele Department
The Honorable Ann Boyden

Attorneys:
Kenneth R. Brown and Ann Marie Girot, Salt Lake City, for Appellant
Douglas J. Ahlstrom, Gary Searle, and David Cundick, Tooele, for Appellee

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Before Judges Greenwood, Bench, and Thorne.

BENCH, Judge:

"Our review of the trial judge's decision to deny a motion for a new trial focuses upon whether that denial constitutes an abuse of discretion." State v. James, 819 P.2d 781, 793 (Utah 1991). Newly discovered evidence must meet three criteria to warrant a new trial based on that evidence. "(1) It must be such as could not with reasonable diligence have been discovered and produced at the trial; (2) it must not be merely cumulative; (3) it must be such as to render a different result probable on the retrial of the case." State v. Hoffhine, 2001 UT 4,¶25, 20 P.3d 265 (quotations and citations omitted).

Defendant argues that the trial court erred when it concluded that Luke Washington's recantation of his trial testimony was not new evidence, but rather "a restatement of the defense's theory which was fully cross examined." In concluding that Luke's recantation was not "new evidence," the trial court essentially concluded that the recantation did not meet the first criterion to warrant a new trial. The substance of Luke's initial recantation was that he had unintentionally injured the victim during a fight with Defendant, that the victim's testimony was financially motivated, and that his trial testimony against Defendant was a lie as a result of bad blood between them. None of this evidence was new to defense counsel but was, in fact, the substance of Defendant's defense, which was presented to the jury.

While it is true that Luke's indication in his affidavit that he was willing to support the defense's theory of the case is new, the substance of his recantation adds nothing. If a new trial were granted, Luke's testimony would be substantially similar to that of those witnesses testifying on Defendant's behalf in the first trial and would echo the defense's theory. Therefore, it is evident that Luke's testimony would be merely cumulative.

We are also unconvinced that Luke's recantation satisfies the third criterion--that a different result is probable on retrial. In State v. Loose, 2001 UT 11,¶18, 994 P.2d 1237, the court concluded that in these circumstances "it is appropriate
. . . to give the trial court the power to consider the testimony's probable weight as part of its determination as to whether that testimony would 'make a different result probable on retrial.'" Id. (citation omitted). The court further stated that "[p]robable credibility alone is not the determinative issue, but its interplay with the substance of the proffered testimony and with the other evidence offered at the first trial is." Id.

In denying Defendant's motion for a new trial, the judge in this case, who also presided over the trial, concluded that Luke's recantation "does not carry any more reliability than [his] sworn testimony at trial." Additionally, we note that the victim has not recanted her trial testimony, and that Luke's trial testimony is consistent with the physical evidence, whereas his recantation affidavit is not. Further, the substance of the recantation duplicates the defense's theory of the case, which was fully presented to the jury, including the reasons Luke and the victim may have had for lying. Therefore, we agree with the trial court's conclusion that a different result was not probable on retrial.

Defendant also argues that the prosecutor's letter following Luke's recantation amounts to misconduct that warrants dismissal of the action. However, we have concluded that the trial court did not exceed its discretion by finding that the recantation was not new evidence and did not warrant a new trial. Therefore, we agree with the trial court's conclusion that any issue of prosecutorial misconduct related to the recantation is moot.

Accordingly, we affirm the judgment of the trial court.
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
William A. Thorne, Jr., Judge