STATE V. GARCIA, 2005-NMSC-038, 138 N.M.
659, 125 P.3d 638
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
JOE GARCIA,
Defendant-Petitioner.
SUPREME COURT OF NEW MEXICO
2005-NMSC-038, 138 N.M. 659, 125 P.3d 638
ORIGINAL PROCEEDING ON CERTIORARI, Stephen K. Quinn,
District Judge
Released for Publication December 28,
2005
John Bigelow, Chief Public Defender,
Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Petitioner
Patricia A. Madrid, Attorney General,
Elizabeth Blaisdell, Assistant Attorney General, Joel Jacobsen, Assistant
Attorney General, Santa Fe, NM, for Respondent
EDWARD L. CHÁVEZ, Justice. WE CONCUR:
RICHARD C. BOSSON, Chief Justice, PAMELA B. MINZNER, Justice, PATRICIO M.
SERNA, Justice, PETRA JIMENEZ MAES, Justice
{1} A jury
convicted Joe Garcia ("Defendant") of aggravated battery likely to
result in death or great bodily injury, a third degree felony. Defendant filed
a motion for a new trial on the grounds of newly-discovered evidence. The
newly-discovered evidence consisted of photographs of the victim taken by a
police officer shortly after the altercation which was the subject of the
trial. Believing that the photographs would have been helpful to a jury, the
district court granted Defendant a new trial. On appeal, the Court of Appeals
reversed the district court's decision, concluding that the six factors needed
in order to grant a new trial under
State v. Volpato,
102 N.M. 383,
384-85,
696 P.2d 471, 472-73 (1985) had not been met. We granted Defendant's
Petition for Certiorari and reverse the Court of Appeals. We remand the case to
district court for a new trial because we do not believe the district court abused
its discretion in granting the motion for a new trial.
FACTS AND PROCEDURAL HISTORY
{2} On March 8,
2002, after a heated verbal dispute involving borrowed money, the victim and
Defendant got into a physical altercation. At trial, five witnesses gave
varying accounts of the events. The victim and his fiancée testified that
Defendant had been the first aggressor, and that the victim, who apparently
suffers from rheumatoid arthritis and osteoporosis,
had been physically
incapable of defending himself, much less of throwing punches. They also
testified that during the fight Defendant punched the victim in the face,
causing him to fall down, and then repeatedly kicked him. According to the
victim, Defendant kicked him in the face.
{3} Defendant and his
fiancée, who is also the victim's sister, offered a slightly different version
of the events. They admitted that Defendant punched the victim,
exchanged
blows with him on the ground, and then popped up and kicked the victim while he
was still on the ground. However, Defendant and his fiancée claimed that the
victim had been the first aggressor and had swung his cane at Defendant. They
also claimed that the victim threatened to kill Defendant
and had
reached into the back of his pocket
as if to pull out a gun, causing
Defendant to hit and kick the victim in self-defense.
{4} The police officer
who investigated the fight also testified at trial for the State. He indicated
that the victim had been in shock, or at least that he had been staring and had
dilated pupils. The left side of the victim's face was swollen, and the officer
recalled seeing blood around the victim's mouth and on his left nostril, but no
other injuries. The officer also testified about the missing photos at issue in
this appeal. He testified that he had photographed the victim's facial injuries
on the night of March 8, 2002, with a digital camera but had either misplaced
the photo disk or had taken more photographs over them.
{5} On May 6, 2003,
Defendant filed a motion for a new trial or, in the alternative, a motion to
replace the felony aggravated battery conviction with a conviction for
misdemeanor aggravated battery pursuant to the step-down jury instruction given
at trial. In his motion, Defendant argued that the picturesBwhich the State had
inadvertently turned over to the Clovis Public Defender along with the
discovery material for another caseBdid not support the jury's conclusion that
his actions on March 8, 2002, would likely produce death or great bodily harm.
The district court granted Defendant's motion for a new trial, and the State
appealed. The Court of Appeals held that the district court abused its
discretion by granting the motion because the newly-discovered evidence would
not change the result of the trial since: 1) the photographs depicted what the
State had acknowledged and what was reflected in the medical reports, and 2)
the issue was whether Defendant's actions were likely to produce great bodily
harm and not whether his actions actually did produce great bodily harm.
State
v. Garcia, No. 24,226, p. 3 (N.M. Ct. App. Feb. 17, 2004).
We
granted Defendant's Petition for Certiorari and now reverse the Court of
Appeals.
{6} The State cites
State
v. Conn,
115 N.M. 99, 100,
847 P.2d 744, 745 (1993) for the proposition
that our review on certiorari in this case is inappropriate, and specifically
that "our jurisdiction in certiorari cases does not encompass weighing or
reviewing the resolution of factual issues by the Court of Appeals." In
Conn,
the State asked us to review a Court of Appeals decision holding that a
district court had abused its discretion in admitting evidence of an assault
conviction in a criminal sexual contact with a minor case. The defendant had
pled guilty to the assault nine years and eight months before the trial.
Id.
at 101, 847 P.2d at 746. There, because we were being asked to examine a
question of fact regarding a district court's exercise of discretion on an
evidentiary issue, we held that "it is not within the purview of our
jurisdiction on certiorari to resolve mere factual conflicts between the
district court of this State and the Court of Appeals."
Id. In this
case, however, we are being asked to review a district court's decision to
grant a new trial on the basis of newly-discovered evidence. While the facts of
the case constituted a part of the district court's consideration in granting a
new trial, the district court's decision remained a legal one.
State v.
Ashley,
1997-NMSC-049, ¶ 9,
124 N.M. 1,
946 P.2d 205.
Conn does not
preclude our review of whether the Court of Appeals erred in concluding that
the district court abused its discretion in evaluating the effect of the
newly-discovered evidence.
{7} The general rule is
that we will not disturb a trial court's exercise of discretion in denying or
granting a motion for a new trial unless there is a manifest abuse of
discretion.
State v. Romero,
42 N.M. 364, 370,
78 P.2d 1112, 1116
(1938). Because "the function of passing upon motions for new trial on
newly discovered evidence belongs naturally and peculiarly, although not
exclusively, to the trial court,"
id., "[t]he discretion of a
trial court is not to be lightly interfered with as to the granting of a motion
for new trial."
State v. Fuentes,
67 N.M. 31, 33,
351 P.2d 209, 210
(1960).
{8} A motion for a new
trial on grounds of newly-discovered evidence will not be granted unless the
newly-discovered evidence fulfills all of the following
requirements:
1) it will probably change the
result if a new trial is granted; 2) it must have been discovered since the
trial; 3) it could not have been discovered before the trial by the exercise of
due diligence; 4) it must be material; 5) it must not be merely cumulative; and
6) it must not be merely impeaching or contradictory.
Volpato, 102 N.M. at 384-85, 696 P.2d at 472-73. The
State does not contest that the color photographs were discovered after trial,
that they could not have been discovered before trial by the exercise of due
diligence, or that they are material. However, the State argues that the color
photographs of the victim's face would not change the result if a new trial
were granted, and that the photographs are merely cumulative, or impeaching and
contradictory. We disagree and we answer each of these arguments in turn.
WE DEFER TO THE DISTRICT COURT JUDGE'S FINDING THAT THE
PHOTOGRAPHS WOULD PROBABLY CHANGE THE RESULT IF A NEW TRIAL WERE GRANTED
{9} "The
probability of the new evidence changing a verdict is a question addressed to
the sound discretion of the trial court."
State v. Desnoyers,
2002-NMSC-031, ¶ 26,
132 N.M. 756,
55 P.3d 968 (citations and quotations
omitted),
abrogated on other grounds by State v. Forbes,
2005-NMSC-027,
¶ 6,
119 P.3d 144. In ordering a new trial, the district court made the
following written findings:
(1) The defendant did not have
photographs that would have been helpful to the jury until after the trial; (2)
The lack of those photos were not objected to at trial, nor was a mistrial
requested because of the belief that the photographs had been lost; (3) The
photographs were in the custody of defense counsel the entire time, having been
mislabeled by the police department as another case; (4) The photographs show
only minor injuries to the victim; and (5) Defendant had a copy of all medical
reports from the victim at the time of trial.
The State argues that the statement "defendant did not
have photographs that would have been helpful to the jury until after the
trial" does not rise to a finding that the photographs would probably
change the result if a new trial were granted. After all, according to the
State, the prosecutor's argument had not been that Defendant's actions actually
caused great bodily harm, but that his actions were likely to cause
great bodily harm. However, before announcing his decision to grant the new
trial, the district court judge stated:
Whether the pictures were available
or not, it's arguable that that description of that act would meet the elements
of the aggravated battery charge, acting in a way that would likely result in
death or great bodily harm, whether it happened or not. However, the pictures,
it would have been helpful for the jury to have seen these pictures. There's no
doubt about that . . . I think the pictures are significantly important, that
they should have been presented to the jury. I'm not going to determine as a
matter of law that Mr. Garcia be convicted of the misdemeanor, I'm going to
order that there be a new trial.
When asked by the State to make specific findings after granting
the motion for a new trial, the judge stated:
The reason for this is that Victor
Herrera testified that he was kicked in the face and the photographs go to that
issue as to whether or not he was kicked in the face. And so the jury should
have had that evidence available to consider when they determined whether or
not he was kicked in the face because that, I think, is the action that
distinguishes this from simple battery, being kicked in the head. So that's the
reason for my ruling.
{10} In
State v.
Melendez,
97 N.M. 740,
643 P.2d 609 (Ct. App. 1981),
rev'd on other
grounds by 97 N.M. 738,
643 P.2d 607 (1982), the Court of Appeals found
that the trial court should have granted the defendant's motion for a new trial
on the grounds of newly-discovered evidence. There, the defendant was convicted
of the voluntary manslaughter of a rival gang member, and after trial a bullet
was found lodged under the hood of the defendant's car. Evidence of the
bullet's angle of entry and rifling characteristics supported the defendant's
self-defense theory that the bullet had been fired by a member of the victim's
gang and bore on the truthfulness of two important State witnesses.
Melendez,
97 N.M. at 743, 643 P.2d at 612. It was clear in that case from the jury verdict
"that defendant's claimed self-defense was not believed; else the
defendant would have been acquitted."
Id. Because with the
additional evidence "a jury could well have reached a different result on
defendant's guilt," the Court of Appeals held that a new trial should have
been allowed.
Id.
{11} Here, the victim was
the only witness who testified that Defendant kicked him in the face. The
victim's fiancée, Defendant, and Defendant's fiancée all testified that
Defendant kicked the victim when the victim was on the ground, but none
pinpointed where the kick or kicks landed. Furthermore, the State and defense
witnesses described the victim's injuries differently. The victim testified
that he had bruises on both sides of his face, broken dentures, scratches on
his neck, and that his face "was beaten pretty bad." The victim's
fiancée testified that Defendant had a big bruise across his chest, that the
side of his face was bruised, that he had knots on his head, that his lips were
"all busted," and that his nose and mouth were bleeding. Defendant
and his fiancée, on the other hand, denied seeing any injuries on the victim's
face besides mucous
and denied the victim's claim that he had been
wearing his dentures. As in
Melendez, it is clear that the jury did not believe
Defendant's theory of the case, or else it would have acquitted him. However,
the color photographs showing minor injuries to the victim, which might have
been obtained in the scuffle instead of from a kick to the head, support
Defendant's claim that his actions were not likely to result in death or great
bodily harm and bear on the credibility of the testimony of the victim and his
fiancée. With the additional evidence a jury could well have reached a
different result.
See Melendez, 97 N.M. at 743, 643 P.2d at 612.
THE NEWLY-DISCOVERED EVIDENCE WAS NOT MERELY CUMULATIVE
{12} The State argues
that the photographs are cumulative because they do not contribute anything new
or different concerning whether the victim was kicked in the face. Specifically,
the State argues that the district court's findings four and five (that the
photographs show only minor injuries and that Defendant had copies of the
victim's medical reports also detailing minor injuries), coupled with the
prosecutor's argument that Defendant's actions were
likely to cause
great bodily harm and not that they actually did, demonstrate that the color
photographs are cumulative. We addressed the "cumulative" prong of
what is now known as the
Volpato test in the case of
State v. Houston,
33 N.M. 259,
263 P. 754 (1927). There, we explained that the phrase
merely
cumulative "means cumulative evidence the weight of which would
probably be insufficient to turn the scales in defendant's favor."
Id.
at 266, 263 P. at 757 (quotations removed).
{13} In
State v.
Pettigrew,
116 N.M. 135,
860 P.2d 777 (Ct. App. 1993), the Court of Appeals
was asked to review the relevancy and prejudice of a photograph of a battery
victim that had been admitted at trial. There, the Court stated:
"Photographs are the pictured expressions of data observed by a witness.
They are often more accurate than any description by words, and give a clearer
comprehension of the physical facts than can be obtained from the testimony of
witnesses."
Id. at 139, 860 P.2d at
781 (quoting State v. Carlton, 83 N.M. 644, 648, 495 P.2d 1091, 1095
(Ct. App. 1972)). The Court of Appeals in Pettigrew also found the
photograph to be "relevant because it depicts the extent of Victim's
injuries and because it makes more probable than not the potential of great
bodily harm, which is an element of aggravated battery." Id.
{14} In this case, while
it is true that Defendant had access to medical reports describing bruising and
minor injuries, the prosecution was able to effectively capitalize on the lost
photographs. When asked on cross-examination whether the medical reports
documented the victim's claim that he had bruising on both sides of his face,
the victim stated, "no, but the pictures do." Furthermore, even
though the prosecutor argued in closing that it was not a question of whether
Defendant caused great bodily harm but only whether his actions were likely to
do so, the prosecutor still emphasized the victim's injuries. For example, at
the beginning of his closing argument, the prosecutor stated:
Let's start with Officer Lutz. I
know it's kinda going backwards but I think it's really key some of what he
told you. Did he mess up by losing the pictures? Yeah. But do any of you doubt
that he saw what he saw? He was pretty straight forward: "I got there and
victim's face was all swollen, kinda glassy-eyed, it was bleeding." That's
what he saw. He's got no interest or bias in this thing. He got called out.
Here's what I saw. Two other witnesses say there were injuries, Mr. Herrera and
Ms. Evans. Two witnesses don't. Let's see, who are they? Oh, that's right, the
defendant and his fiancée. Nope, no injuries, even though the defendant is
happy to tell you, "I got the better of it. He didn't even have a chance
to, and yeah he was getting some blows in while we were down but I
definitely." Well, there was some mucous, that's what the defendant told
you. But no blood.
Later, the prosecutor said:
And remember, it's not that this
actually happened, it's that his actions of kicking someone in the face while they
are on the ground defenseless could have resulted in that, likely resulted in
that kind of offense, kind of damage. I think it's very likely if you are
kicking anywhere from 3 to five or more times someone in the face that those
are the kind of injuries that you get. You get that broken neck, you get that
smashed eye. In this case, you get lost teeth.
While there is nothing inherently wrong with a prosecutor
claiming that injuries are not necessary to convict while at the same time emphasizing
the injuries that a victim suffered, we cannot say that in this case the
pictures would "probably be insufficient to turn the scales in defendant's
favor." Houston, 33 N.M. at 266, 263 P. at 757 (quotations
removed). Therefore, we find that the photographs, or "pictured
expressions," of the victim's face were not merely cumulative. See
Pettigrew, 116 N.M. at 139, 860 P.2d at 781.
THE NEWLY-DISCOVERED EVIDENCE WAS NOT MERELY IMPEACHING OR
CONTRADICTORY
{15} The State argues
that the color photographs provide only impeaching evidence to the testimony of
the victim and his fiancée. In
Volpato, the trial court denied the
defendant's motion for a new trial on the basis that the newly-discovered
evidence was merely contradictory of other evidence and the bulk of the
testimony at trial. 102 N.M. at 385, 696 P.2d at 473. The newly-discovered
evidence in
Volpatowas the testimony of a woman who had previously been
afraid to testify as a witness. Her testimony corroborated the defendant's
account that two men had entered his pharmacy and murdered his wife. She placed
two men outside the defendant's pharmacy on the night in question and
remembered hearing a series of gunshots in the same sequence as described by
the defendant.
Id. Her testimony also indicated how one of the men could
have obtained the defendant's gun prior to the murder.
Id. We concluded
that the new evidence in
Volpato was corroborative and was not merely
contradictory. To support this conclusion, we cited
State v. Fuentes, 67
N.M. at 32, 351 P.2d at 210,
for the proposition that "[i]t is not
a question of which story the judge himself believed to be true, but, rather,
whether the defendant should have the right to have all of the testimony
submitted to a jury in order that the jury might then determine his guilt or
innocence."
Id.
{16} In this case,
the newly-discovered evidence is not testimony, as in
Fuentes.
Nevertheless, we believe Defendant should have the right to have the color
photographs presented at a new trial. While the color photographs might impeach
or contradict the testimony of the victim, his fiancée, and the police officer,
they also corroborate Defendant's claim
that his actions were not likely
to result in death or great bodily harm. Therefore, the color photographs are not
merely impeaching or contradictory to evidence presented at Defendant's trial.
{17} We conclude
that the Court of Appeals erred in reversing the district court's order
granting Defendant a new trial. The Court of Appeals gave insufficient
deference to the district court's determination that the newly-discovered
evidence would probably change the result in a new trial. The district court
was entitled to view that evidence as corroborative, rather than merely
cumulative, impeaching or contradictory.
While in the future district
court judges might make findings more specifically tailored to the six
Volpato
requirements, the sum of the district court judge's findings justify the
decision to grant a new trial. Therefore, we reverse the decision of the Court
of Appeals and remand this case to the district court for a new trial.
EDWARD L. CHÁVEZ, Justice
RICHARD C. BOSSON, Chief Justice
PAMELA B. MINZNER, Justice
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
Topic Index for State v.
Garcia, No. 28,537
EV-NE
Newly Discovered Evidence
JM-PJ Post
Judgment Relief