Dawn Sonnenburg v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-00215-COA
DAWN SONNENBURG, A/K/A DAWN MARIE SONNENBURG
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
APPELLANT
APPELLEE
11/17/2000
HON. KATHY KING JACKSON
JACKSON COUNTY CIRCUIT COURT
MARK V. KNIGHTEN
WENDY C. HOLLINGSWORTH
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY:
ROBERT KEITH MILLER
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
AGGRAVATED ASSAULT - TEN YEARS, THE LAST
NINE YEARS OF SENTENCE ON POST-RELEASE
SUPERVISION UPON COMPLETION SERVICE OF ONE
YEAR AND COMPLETION OF RESTITUTION CENTER
DISPOSITION:
AFFIRMED - 6/4/2002
MOTION FOR REHEARING FILED: 6/6/2002; denied 8/6/2002
CERTIORARI FILED:
8/19/2002
MANDATE ISSUED:
BEFORE KING, P.J., BRIDGES, AND CHANDLER, JJ.
KING, P.J., FOR THE COURT:
¶1. Dawn Sonnenburg was convicted of aggravated assault in the Jackson County Circuit Court.
Sonnenburg was sentenced to a term of ten years, with the last nine years under post-release supervision
following service of one year in the custody of the Mississippi Department of Corrections and completion of
the restitution center, and ordered to pay $3,500 as restitution to the victim. Sonnenburg has appealed and
raised the following issue:
¶2. Whether the trial judge erred in denying the motion for a new trial based on newly discovered evidence.
FACTS
¶3. Greg Sonnenburg testified that on the evening of April 20, 1998, he called his wife, Dawn, from whom
he was separated, to get his truck so that he could go to the doctor. When Mr. Sonnenburg called, a male
named Marty Michaels answered the phone. As a result of this conversation, Mr. Sonnenburg and Mr.
Michaels agreed to meet and fight. There were several witnesses to this incident. Mr. Michaels had a
baseball bat which was taken away from him by one of the viewers before the incident began.
¶4. Once the confrontation ended, Mr. Sonnenburg went back to his trailer. Mrs. Sonnenburg and Mr.
Michaels left the area. Mr. Sonnenburg testified that at approximately 2:00 a.m., while he was lying on the
sofa, his door was kicked in and he was attacked. Mr. Sonnenburg stated that three people, Mrs.
Sonnenburg, Mr. Michaels and an unknown third person struck him.
¶5. Mrs. Sonnenburg testified to having returned to the trailer on April 21, 1998, at 2:00 a.m. with Mr.
Michaels to see if Mr. Sonnenburg was there. Her stated purpose was to tell him to vacate the trailer of
which she had temporary possession by court order. Mrs. Sonnenburg denied striking Mr. Sonnenburg, but
stated that Mr. Michaels hit him twice with a baseball bat in an effort to defend her. Mrs. Sonnenburg
testified that she took the bat away from Mr. Michaels.
¶6. After the attack, Mr. Sonnenburg ran from the trailer and laid in the ditch while yelling for help. He was
taken to a neighbor's trailer where he remained until transported by ambulance to Ocean Springs Hospital,
where he stayed for approximately three days.
¶7. Mrs. Sonnenburg and Mr. Michaels were indicted for aggravated assault. In March 1999, Mrs.
Sonnenburg was involved in an automobile accident which caused her to have some memory problems.
¶8. On July 18, 1999, Mr. Michaels died. Therefore, the court on September 3, 1999, entered an order of
nolle prosequi as to him.
¶9. On May 22, 2000, the jury found Mrs. Sonnenburg guilty of aggravated assault. After a presentence
investigation, the court on November 17, 2000, sentenced Mrs. Sonnenburg to a term of ten years, with the
last nine years suspended under post-release supervision, upon completion of one year in the custody of the
Mississippi Department of Corrections, and completion of the restitution center and to pay $3,500 to the
victim for restitution.
¶10. On November 30, 2000, Mrs. Sonnenburg filed a motion for a new trial alleging the discovery of a
witness named Brandon Pace and new evidence. After a January 26, 2001 hearing, the motion was denied.
ISSUE AND ANALYSIS
Whether the trial judge erred in denying the motion for a new trial based on newly
discovered evidence.
¶11. Mrs. Sonnenburg contends that her memory impairment by the March 1999 automobile collision
precluded her recollection of Brandon Pace as a witness to the assault. Mrs. Sonnenburg offered this
testimony at trial:
Q. And the people in the car were you and Marty; is that right?
A. Yes, sir.
Q. And who else?
A. That's all that was with me was Marty. I don't know who this third person is.
Q. That's what I was going to ask you about. There wasn't a third person?
A. No, sir, not with me and Marty that night. No.
Q. You heard these guys testify that there was another person?
A. Yeah.
Q. That's just not the case?
A. No.
Q. Okay. Well, you'd remember if it was, wouldn't you?
A. Oh, yes, of course.
Q. I mean, that would be something you would remember?
A. In my car, yes, sir, I would remember that.
¶12. The trial judge also determined that in addition to having been reasonably subject to discovery prior to
trial, that Mr. Pace's testimony would merely be cumulative to that of Mrs. Sonnenburg. At the hearing on
the motion for a new trial, Mr. Pace testified that Mrs. Sonnenburg did not assault Mr. Sonnenburg. This
was the same testimony offered by Mrs. Sonnenburg at trial.
¶13. Mrs. Sonnenburg now asserts that Mr. Pace would be able to provide testimony that she did not
strike Mr. Sonnenburg. In ruling on this motion, the trial judge stated that it was questionable whether the
testimony given by Pace was discovered after the trial or that it could not have been discovered with due
diligence prior to the commencement of trial. The trial judge further noted:
There was a co-defendant involved in this case who could have been interviewed at any time prior to
his death in July of 1999. Further, the newly discovered witness is the fiancé of Sonnenburg's niece,
who surely would have been aware of the pending criminal matter. Additionally, the assault in
question happened on or about April 21, 1998 while Sonnenburg's car accident did not occur until
March of 1999. . . Most importantly, however, Sonnenburg did not claim memory loss during her
testimony at trial. Instead, she testified in detail regarding the events as she remembered them.
¶14. The standard of review regarding the granting of a motion for a new trial is as follows:
The Mississippi Supreme Court stated that the movant seeking a new trial based on newly discovered
evidence must provide evidence which satisfies the following elements: (1) that the new evidence was
discovered since the trial, (2) that when using due diligence the evidence could not be discovered
prior to trial, (3) that the evidence is material to the issue and that it is not merely cumulative or
impeaching, and (4) that the evidence will probably produce a different result or verdict in the new
trial. Whether the newly discovered evidence presented will likely change the outcome if a new trial
were granted is a determination made by the trial court in its discretion and will not be overruled by
this Court unless it is an abuse of discretion.
Williams v. State, 754 So. 2d 591 (¶7) (Miss. Ct. App. 2000) (citations omitted).
¶15. The trial court found that Brandon Pace was discoverable as a witness prior to trial and his testimony
was cumulative. The record before this Court does not undermine that finding.
¶16. Because this witness (Brandon Pace) could have been discovered prior to trial and would have
offered testimony cumulative to that of Mrs. Sonnenburg, we affirm the decision of the trial court.
¶17. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION
OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS WITH ONE YEAR TO
SERVE AND NINE YEARS SUSPENDED ON POST-RELEASE SUPERVISION IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAY $3,500
RESTITUTION TO THE VICTIM IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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