I’m guessing that the criminal defense bar thinks that they have more strikes than hits in post-conviction proceedings. But a recent Court of Appeals case reminds us that it is possible to score on a motion for appropriate relief (MAR). In State v. Rhodes, the court affirmed a trial court ruling ordering a new trial on a MAR asserting a claim of newly discovered evidence. In a longer paper here about MARs generally I wrote about newly discovered evidence claims. But given the recent case, it seems a good time for a refresher. Rhodes is a great vehicle for that purpose.
In Rhodes, the police suspected that the defendant and his father were involved with drugs. While executing a search warrant at the home of the defendant’s parents, officers found controlled substances in a closet and dresser in one room of the house. The defendant had identified the room as his and his identification, which listed the house as his residence, was found on the dresser. At the defendant’s trial on drug charges, defense evidence tended to show that the defendant was not living at the residence at the time. The defendant’s mother testified that he lived in another city, was just visiting on the night in question, and that he had been in the house only 5-10 minutes before the officers arrived. The defendant’s mother further testified that the drugs did not belong to her or the defendant. The defendant’s father also testified that the drugs did not belong to the defendant, and he admitted having been convicted of various drug-related offenses. But when asked whether the drugs were his, the defendant’s father replied: “I plead the Fifth.” The defendant was convicted.
After an unsuccessful appeal, the defendant filed a MAR based on newly discovered evidence. Specifically, the defendant alleged that after his conviction the defendant’s father confessed to a probation officer that the drugs were his. At a hearing on the MAR, the defendant testified when his father accompanied him to the probation office, his father told a probation officer that the drugs were his. The probation officer corroborated the defendant’s testimony. The trial court determined that the confession was newly discovered evidence clearly pointing to the guilt of another and awarded the defendant a new trial. The State appealed and the N.C. Court of Appeals affirmed.
The court began by setting out the standard for a MAR based on newly discovered evidence. To prevail on such a claim, a criminal defendant must establish that:
(1) a 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 evidence is not merely cumulative or corroborative;
(6) the 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.
Turning to the case at hand, the court rejected the State’s argument that the confession could have been obtained through due diligence at trial. The court concluded that the defense exercised diligence by calling the defendant’s father at trial and asking him whether the drugs were his. When the defendant’s father exercised his right against self-incrimination, the trial court excused him as a witness, making further inquiry impossible. The defense also called the defendant’s mother, but she was unwilling to implicate her husband and thus, the court concluded, any attempt to elicit this information would have been futile. Next the court rejected the State’s argument that there was insufficient evidence to support the trial court’s determination that the confession was probably true. The court noted that the trial court assesses the credibility and because the MAR judge had presided over the trial, he was “intimately familiar with the circumstances of the case.” Additionally, it noted, the defendant’s father had admitted a history of drug violations. Finally, the court rejected the State’s argument that the confession would not exculpate the defendant at a new trial. It noted that at the original trial, the jury had no evidence other than the circumstances under which the drugs were recovered to determine who owned or possessed them. The new evidence, however, constituted an affirmative statement that the father alone possessed the drugs.
So there you have it: a rubric for a successful newly discovered evidence claim. If you’re interested in looking at cases going both ways on this type of claim, take a look at the paper noted above. That paper also discusses the standard that applies when the new evidence is recanted testimony.