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State v. Henderson6/23/2000
tate further argued the defense had failed to allege the existence of "new evidence" because Shelia Cavalier was not a witness to the incident in the barbershop and any opinion she might have concerning whether or not the offense was the result of negligence or murder was irrelevant. Additionally, the State argued the civil suit was a matter of public record and could easily have been discovered by the defense. The trial court asked the defense whether it was alleging that Shelia Cavalier had witnessed the crime, and the defense stated it was not. The court denied the motion for new trial, and the defense objected to the court's ruling.
La. Code Crim. P. art. 851, in pertinent part, provides:
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty . . . .
In order to obtain a new trial based on newly discovered evidence, the defendant has the burden of showing (1) the new evidence was discovered after trial, (2) the failure to discover the evidence at the time of trial was not caused by lack of diligence, (3) the evidence is material to the issues at trial, and (4) the evidence is of such a nature that it would probably have produced a different verdict. State v. Smith, 96-0961, p. 7 (La. App. 1st Cir. 6/20/97), 697 So.2d 39, 43. In evaluating whether or not the newly discovered evidence warrants a new trial, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a verdict different from that rendered at trial. The trial court's denial of a motion for new trial will not be disturbed absent a clear abuse of discretion. State v. Maize, 94-0736, pp. 27-28 (La. App. 1st Cir. 5/5/95), 655 So.2d 500, 517, writ denied, 95-1894 (La. 12/15/95), 664 So.2d 451.
In support of the motion for new trial based on newly discovered evidence, defense counsel cites State v. Shanks, 97-1885 (La. App. 1st Cir. 6/29/98), 715 So.2d 157, and State v. Brooks, 98-1151 (La. App. 1st Cir. 4/15/99), 734 So.2d 1232, writ denied, 99-1462 (La. 11/12/99), 749 So.2d 651. Shanks involved a second degree murder prosecution of a defendant who on August 14, 1995, shot the victim once with a shotgun as the victim exited the defendant's mobile home. Shanks, 97-1885 at p. 2, 715 So.2d at 158. The victim died on September 4, 1995. Shanks, 97-1885 at p. 2, 715 So.2d at 159. The defendant urged a defense of accidental shooting. Shanks, 97-1885 at p. 3, 715 So.2d at 159.
The trial court refused to allow the defense to introduce a civil petition filed on behalf of the victim's children claiming wrongful death damages stemming from alleged negligence by the defendant causing the victim's death and further denied the defense the opportunity to present testimony from the children concerning conversations they may have had with the victim prior to his death. Shanks, 97-1885 at p. 12, 715 So.2d at 163. On appeal, this Court remanded the case back to the trial court for a reopened hearing on the defense motion for new trial with instructions to the trial court to grant a new trial if i
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