State v. Martin

252 S.E.2d 859 (1979)

STATE of North Carolina v. Andy MARTIN.

No. 7830SC1089.

Court of Appeals of North Carolina.

March 20, 1979.

*860 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.

Joseph A. Pachnowski, Bryson City, for defendant appellant.

*861 CARLTON, Judge.

The sole question for determination is whether the trial court erred in denying defendant's motion for a new trial on the basis of newly discovered evidence.

G.S. 15A-1415 provides in pertinent part as follows:

(a) At any time after verdict, the defendant by motion may seek appropriate relief upon any of the grounds enumerated in this section. (b) The following are the only grounds which the defendant may assert by a motion for appropriate relief made more than 10 days after entry of judgment: . . . . . (6) Evidence is available which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time, and which has a direct and material bearing upon the guilt or innocence of the defendant.

In the case at bar, defendant has procedurally complied with the requirements of G.S. 15A-1415(b)(6). He has not, however, shown that the trial court abused its discretion in denying the motion on the merits.

It is well settled in this jurisdiction that a motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial court, and its order denying the motion will not be disturbed unless abuse of discretion appears. 4 Strong, N.C. Index 3d, Criminal Law, § 131.1, p. 677; State v. Dixon, 259 N.C. 249, 130 S.E.2d 333 (1963). In order for a new trial to be granted on the ground of newly discovered evidence, it must appear by affidavit that:

(1) the witness or witnesses will give newly discovered evidence;

(2) the newly discovered evidence is probably true;

(3) the evidence is material, competent and relevant;

(4) due diligence was used and proper means were employed to procure the testimony at trial;

(5) the newly discovered evidence is not merely cumulative or corroborative;

(6) the new evidence does not merely tend to contradict, impeach or discredit the testimony of a former witness; and

(7) the evidence is of such a nature that a different result will probably be reached at a new trial.

State v. Beaver, 291 N.C. 137, 229 S.E.2d 179 (1976); State v. Casey, 201 N.C. 620, 161 S.E. 81 (1931).

Since it is necessary for defendant to meet all of the requirements enumerated above, it is unnecessary to discuss each of them. Defendant has clearly failed to meet the sixth requirement.

The affidavit of Neville Franklin is directly in conflict with the testimony of the former witness, Myrtle Franklin. His statement contradicts his wife's testimony as to how the assault took place, the people involved in the assault and the time and place of the attack. It certainly does not "pick up where" Mrs. Franklin's testimony ends, as defendant argues. The "new evidence" is clearly in conflict with the testimony of a former witness.

In State v. Grant, 21 N.C.App. 431, 204 S.E.2d 700 (1974), this Court held that the trial court did not abuse its discretion in denying defendant a new trial despite his showing by affidavit that a codefendant and a person convicted as an accessory after the fact in the same robberies stated after their convictions that defendant had not taken part in the crimes for which he had been convicted.

We hold that the trial judge did not abuse his discretion in denying defendant's motion for a new trial. The decision of the trial court is

Affirmed.

PARKER and HEDRICK, JJ., concur.