State Of Louisiana VS John Gilmore
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STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT STATE OF 2017 NO. LOUISIANA KW 0715 VERSUS JOHN In Re: State of 20th Judicial for U 2 2017 supervisory Court, District No. Parish writs, West of 14 - WFLN - 436. HIGGINBOTHAM, WRIT applying Louisiana, Feliciana, BEFORE: n OCT GILMORE HOLDRIDGE AND PENZATO, JJ. DENIED. go 4I; 1 Penzato, dissents J., and would grant the writ application. I find the district court abused its discretion in granting the defendant' s motion for new trial based upon newly discovered as evidence, discover lack the of trial, have and 181 851( B)( trial, such The to not caused by to the issues at it State probably would Tucker, 2013- v. denied, cert. 2016). See burden is U. also on the proposed different verdict. discoverable S. Code La. defendant at a not new or reach was of failure was nature 626, 774 ( 854. evidence trial See 590, L. Ed. 2d showing the material a verdict. 3) & new of of was a to to the time So. 3d 195 make trial, trial and that if the evidence had been introduced the new evidence probably would have caused the trier during fact was different 1801, arts. that the to after evidence evidence a S. Ct. P. at the 9/ 1/ 15), La. show the evidence the failed discovered diligence, 136 Crim. defendant was produced 1631 ( to the that evidence Our law is well prior settled of that discovered, newly discovered evidence must not only be newly but also not discoverable by reasonable diligence before verdict the trial. 861, State 870. a evidence so to justify 2013 - 1412 ( whether trial, bring is it evaluating new might for McKinnies, In warrants jury v. in a the granting newly it ought to produce a a 171 discovered the test is not simply different verdict, but material of 10/ 15/ 14), La. new So. 3d evidence whether whether different another the new verdict. Newly discovered evidence affecting only a witness' s credibility is merely support a 1st App. cumulative motion Cir. 4/ Alleging time of the after for or new 26/ 17), that impeaching trial. 220 the and State So. 3d defense 35, was v. ordinarily Wilson, will 2015 - 1794 ( not La. 53. not aware of the specific incidents until after the victim' s trial testimony, trial, defendant' s the brothers defense and produced sister -in -law affidavits that set forth from that the the home where the alleged incidents occurred had burned down during the time during the victim trial defendant, all testified The defendant' s testified three regarding indictment that defense set count two occurred. witnesses, the house at forth a time However, including the issue burning down. range for each STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT NO. 2017 PAGE charged down forth The trial count. indicated that for count evidence was prior to Thus, one. merely OF APPEAL, testimony had burned trial. COURT it cumulative FIRST CIRCUIT f l DEPUTY FOR CLE THE K OF COURT COURT it regarding down during appears and the the that should have KW 2 0715 OF 2 house burning time the been range alleged set new discovered
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