CLARK, Justice.
After conviction, the defendant moved for a new trial on the basis of newly discovered evidence. The state challenged the claim presented on both procedural and substantive grounds. No evidence was submitted at the hearing on the motion. Nevertheless, the trial court granted the defendant a new trial on the grounds that the verdict was contrary to the law and evidence and the ends of justice would be served by ordering a new trial. In a split-panel decision, the court of appeal affirmed, finding no abuse of the trial court's discretion in granting the defendant's motion. We disagree. We find the defendant failed to show a valid ground for new trial and hold that the trial court abused its discretion by granting the defendant's motion. The court of appeal erred in affirming the district court's decision. For these legal errors, we reverse and remand.
The defendant, Quincy McKinnies, Jr.,
The officer's testimony was partially corroborated by other witnesses. Detective Ashton Gibbs, also of the Gretna Police Department, observed a handgun in plain view in the vehicle defendant was driving before the foot chase with Officer Mekdessie began. Detective Gibbs and Gretna Police Sergeant Tris Lear, who were standing on the perimeter set up by police, out of sight of the defendant and Officer Mekdessie, both heard the officer ordering the defendant to show his hands several times before they heard gunshots.
The defendant testified at trial and admitted he ran from police. But McKinnies said the police started shooting at him without saying anything. He testified the police approached him after he was shot, placed him in handcuffs and started to beat him, knocking out all his teeth on one side of his mouth. McKinnies denied ever pointing a weapon at a police officer, denied having a weapon in the car and denied having a weapon in his possession that night. He testified he was never confronted by a K-9 and did not know there was a dog at the scene until he overheard officers saying he had shot their dog. No weapon was found either in the car driven by McKinnies or at the scene of his arrest.
After hearing the conflicting evidence, the jury found the defendant guilty as charged. McKinnies filed a timely written motion for new trial asserting there was newly discovered evidence which, if considered, would probably have changed the verdict. The affidavit by defense counsel accompanying the motion for new trial stated the newly discovered evidence concerned the credibility of Officer Mekdessie, the victim and only witness to testify that McKinnies pointed a handgun at him. The newly discovered evidence was described in the affidavit as three separate incidents of police conduct involving Officer Mekdessie, unrelated to the charge against McKinnies, which were allegedly being investigated by the City of Gretna's Internal Affairs and/or the FBI. The affidavit listed Officer Mekdessie and the defendant as witnesses who would testify about the allegations.
The state filed a written response to the motion for new trial, raising several procedural objections and arguing the defense failed to satisfy the statutory requirements for a motion for new trial based on newly discovered evidence. The state also addressed the merits of the claim, arguing that allegations of extrinsic matters which might be used as impeachment evidence were not adequate bases for a new trial under the jurisprudence.
At the hearing on the motion for new trial, the defense presented no evidence to support the allegations and failed to call any witnesses to testify. Instead, defense counsel argued the three incidents should have been disclosed to the defendant under the state's obligation to disclose evidence favorable to the defense and concerning the credibility of government witnesses. The prosecutor argued that there was nothing for the state to disclose to the defense, as there were no charges filed or discipline imposed against Officer Mekdessie in connection with the allegations. The state stressed that the allegations stemmed from defense counsel's conversations with another criminal defense attorney and were groundless.
After taking the matter under advisement, the trial judge ruled in open court: "Even though they may not be entitled to it under the grounds that were set forth in the defendant's motion, I do believe that in the interest of justice we're going to go ahead and grant a new trial. And that's
The state thereafter filed a timely writ application, seeking review of the trial court's ruling. The appellate court ordered the trial judge to submit a per curiam outlining the reasons why he granted the motion for new trial pursuant to La. C.Cr.P. art. 851(B)(5). In response, the trial judge issued a per curiam which stated:
After the court of appeal's review of the per curiam, the appellate court granted the state's writ for the limited purpose of instructing the trial court to consider the state's notice of intent to seek writs as a motion for appeal. Pursuant to the appellate court's order, the trial court granted the state's motion for appeal.
Subsequent to the filing of the state's appeal, McKinnies filed a motion to remand the case to the trial court so that he could amend his original motion for new trial to include additional newly disclosed information. The court of appeal granted the motion to remand. A hearing was held in the trial court wherein McKinnies moved to amend his original motion for a new trial "by adding a witness." The trial court denied the motion to amend and the case returned to the court of appeal.
In a 2-1 decision, the appellate court affirmed the trial court's ruling which granted McKinnies a new trial.
The appellate court found the court's oral and written judgment granted the new trial under La.C.Cr.P. art. 851(B)(5), and the per curiam "expanded its ruling" to include La.C.Cr.P. art. 851(B)(1). The court of appeal held it to be within the trial judge's discretion to consider an additional ground for granting the new trial motion. The court of appeal then evaluated the trial court's ruling as a motion for new trial granted under La.C.Cr.P. arts. 851(B)(1) and 851(B)(5).
Insofar as the trial court granted a new trial under La.C.Cr.P. art. 851(B)(1) — that the verdict was contrary to the law and evidence — the court of appeal held the ruling was essentially unreviewable. The appellate court found the trial court's decision on the weight of the evidence was a question of fact not subject to appellate review under either La. Const. art. V, § 10(B) or La. C.Cr.P. art. 858.
With regard to the only ground for new trial actually raised by the defendant's motion — that of newly discovered evidence — the court of appeal stated:
Finding the issue to be res nova in Louisiana, the dissenting judge looked to federal law before concluding the trial court was without authority to grant a new trial in the interest of justice on any basis other than the one raised by the defendant. Relying on our decision in State v. Guillory,
We granted the state's writ to review the lower courts' decisions.
In his motion for new trial, the defendant asserted that allegations of possible police misconduct committed by Officer Mekdessie in other cases cast doubt upon the officer's credibility in this case and entitled him to a new trial. The rules governing a motion for new trial in a criminal case are found in La.C.Cr.P. arts. 851-858. Insofar as our review will require us to interpret the rules governing new trial motions, we will be guided by the following principles of statutory interpretation.
The interpretation of the statutory law presents us with a question of law which is reviewed under a de novo standard of review.
Grounds for seeking a new trial are set forth in La.C.Cr.P. art. 851, which provides in pertinent part:
La.C.Cr.P. article 851 also states the new trial motion is based on the supposition that an injustice has been done to the defendant. A defendant has the burden to show an injustice was done to him, or the motion will be denied, no matter what allegations are raised.
A motion for new trial alleging newly discovered evidence requires the defendant to prove additional allegations of fact, listed in La.C.Cr.P. art. 854:
We have previously held:
This court will attach great weight to the exercise of the trial judge's discretion.
This court explained the duty of a trial judge considering a new trial motion based on newly discovered evidence in State v. Talbot:
We have found that the trial judge's duty is an objective test, "in that the trial judge does not sit as the ultimate arbiter of the resolution of the case once the new evidence is considered, that is, the trial court does not weigh the evidence."
By contrast, the trial judge's duty in evaluating a new trial motion brought under La.C.Cr.P. art. 851(B)(1) or La. C.Cr.P. art. 851(B)(5) is the opposite. In those circumstances, the trial court's duty is to put itself in the position of a juror. We have held "[i]t is appropriate for the trial court to act as a juror for other grounds related to a motion for new trial... such as a verdict being contrary to the law and the evidence or the court being of
The newly discovered evidence alleged by McKinnies consists of allegations which, if true, might impugn the credibility of the victim's testimony. We have held "newly discovered evidence affecting only a witness's credibility ordinarily will not support a motion for new trial, because new evidence which is merely cumulative or impeaching is not, according to the often-repeated statements of the courts, an adequate basis for the grant of a new trial."
The record shows there was no newly discovered evidence for the trial judge to evaluate in light of the state's evidence at trial. Although the allegations of the motion for a new trial were sworn to by defense counsel, no proof was offered to sustain them. The minutes of the contradictory hearing show that, after hearing argument from counsel for the defendant and the state, the matter was submitted to the trial judge for disposition. When the allegations of a motion for new trial are not supported by proof, a trial judge properly overrules the motion.
The defendant also failed to make any showing with regard to the additional allegations required for a new trial motion brought under La.C.Cr.P. art. 851(B)(3). "The burden is on the defendant to show that the new evidence was not discoverable prior to or during trial and that if the evidence had been introduced at trial, the new evidence probably would have caused the trier of fact to reach a different verdict."
Although the motion named the defendant and Officer Mekdessie as the witnesses who would testify about newly discovered information, the new trial motion does not contain, as it must, a concise statement of facts about which each would testify or the facts the defense would establish with their testimony.
In his per curiam to the court of appeal, the trial judge referred to the testimony and demeanor of the witnesses and the evidence presented by all parties. We presume the trial judge was referring to the witnesses and evidence presented at trial, as there were no witnesses or evidence presented at the contradictory hearing on the defendant's motion. The trial judge stated in his per curiam that he had a reasonable doubt as to the defendant's guilt. From this, we are able to conclude the trial judge clearly, and improperly, based his ruling on his own weighing of the evidence presented at trial as though he were a juror determining guilt or innocence. In doing so, the trial judge committed legal error by failing to restrict his review of the defendant's motion to the proper evaluation of the new trial motion based on La.C.Cr.P. art. 851(B)(3). "When ruling on an Article 851(B)(3) motion,
Our review was further complicated by the fact that the court of appeal erred in its review of the trial court's ruling. The court of appeal failed to properly review the trial court's ruling as one prompted by a motion for new trial on the basis of La.C.Cr.P. art. 851(B)(3). Instead, the appellate court reviewed the trial court's ruling on the grounds found by the trial court, as though the defendant's motion had been filed on the basis of La.C.Cr.P. arts. 851(B)(1) and/or (5). This was also legal error. Although its review of the case was flawed, the court of appeal raised an issue we feel compelled to address, that is, whether a trial court has the authority to grant a motion for new trial on a ground not raised by the defendant. We believe the court of appeal misinterpreted the rules governing motions for new trial when it found the trial court was required by the rules governing new trial motions to grant the defendant's motion.
La.C.Cr.P. art. 851 clearly states a court may only grant a new trial "on motion of the defendant." An earlier version of this article, found in the 1928 Code of Crim. Proc., made this point more explicitly. Former Art. 506 of the 1928 Code of Crim. Proc. spelled out:
In enacting the modern criminal procedure rules, the legislature preserved the requirement that the court may only grant a new trial upon the defendant's motion.
Under La.C.Cr.P. art. 852, a defendant is required to specify the ground or grounds upon which the motion is based.
These considerations raise the following question — given that a defendant may be permitted to supplement his original motion, and the trial court's plenary authority to grant a new trial when it believes the ends of justice would be served by a new trial, could a trial judge grant a new trial on a ground not raised in the defendant's motion as a "shortcut," rather than ordering supplementation by the defendant and allowing the state to challenge the additional information? We think not, as there are important reasons underlying adherence to the rules governing new trial motions as set forth by the legislature.
First, the defendant bears the burden of showing a valid reason for the trial court to grant a new trial. The court cannot do so on its own motion and cannot supply the reason the motion should be granted.
Here, the court of appeal decided not to address the merits of the only ground actually raised by the defendant in his motion. The appellate court declined to address the merits of the ground of newly discovered evidence "because such evidence did not form the basis of the trial court's granting of a new trial."
Third, the requirement that the defendant specify the grounds under which he is seeking a new trial informs the trial court which type of review should be afforded the information presented by the defendant. As we have seen in this case, the trial judge's review here was exactly the opposite of what his duty was under the law in considering the defendant's motion.
Finally, by following the legislative scheme — having the defendant specify his reasons for seeking a new trial and allowing the state an opportunity to challenge those reasons — the trial court is fully informed in its decision-making. The reason underlying these procedural rules is the great discretion vested in the trial court by the legislature under La.C.Cr.P. art. 851(B)(5), to grant a new trial even when the defendant may not be entitled to one as a matter of strict legal right. We have described the trial court's discretion in that respect as "almost unlimited."
Applying these concepts to McKinnies' case, we find there was no adherence to the procedural rules set forth by the legislature. Instead of inviting the defendant to supplement his motion based on its appreciation of the allegations of the defendant's motion, which would have allowed the state to address those additional reasons, the trial court, using the incorrect review standard for the information, granted
For the foregoing reasons, the trial court ruling granting a new trial is reversed and vacated and the jury's verdict is reinstated. This matter is remanded to the trial court for sentencing of the defendant.
JOHNSON, Chief Justice, dissents and assigns reasons.
VICTORY, Justice, concurs.
HUGHES, Justice, dissents.
JOHNSON, Justice, dissents and assigns reasons.
I would affirm the decision of the court of appeal. Contrary to the majority opinion, I find the trial court had the procedural authority to grant defendant a new trial and did not abuse its wide discretion in finding that the verdict was contrary to law and evidence and that the ends of justice would be served by ordering a new trial.
On January 26, 2011, the state charged defendant with aggravated assault on a police officer with a handgun. A jury found defendant guilty as charged on October 18, 2011. Testimony at trial revealed that this case arose when five police officers and one police K-9 (Dog) gave chase to defendant after he ignored a police officer's attempt to hand him a "parking" citation. Defendant then entered a vehicle and sped away. At some point, defendant abandoned the vehicle and ran, and a foot case ensued. One of the five officers giving chase, Officer Ryan Mekdessie, testified that during the foot chase, he observed the defendant reach onto his waistband and, fearing for his life, Officer Mekdessie fired a total of five gunshots striking both the defendant and the police K-9. Detective Ashton Gibbs testified that he had seen a gun on the floorboard of the vehicle driven by defendant when he ticketed the parked vehicle. The defendant denied having a weapon and no weapon was ever found. With this unusual backdrop, the trial court granted defendant's motion for new trial pursuant to La. C.Cr.P. art. 851(B)(5) ruling that: "[T]he ends of justice would best be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right." The trial court issued a per curiam on March 5, 2012 outlining its reasons for granting the new trial under Article 851(B)(5), stating:
The court of appeal upheld the trial court's decision to grant defendant a new trial, highlighting La.C.Cr.P. art. 851(B)(1) and (5), which provide that the court shall grant a new trial whenever (1) the verdict is contrary to the law and the evidence;... or (5) the court is of the opinion that the ends of justice would be served. The court of appeal found that the trial court adhered to the procedural and substantive requirements in granting defendant's motion for new trial, and that its reasons mirrored that of the statute.
The court of appeal noted that in addition to the basis of "ends of justice" under Article 851(B)(5), the trial court "expanded its ruling to include also La.C.Cr.P. art. 851(B)(1) as a basis for finding that a new trial was also warranted because the verdict was contrary to the law and the evidence."
Additionally, the court of appeal found that the trial court did not abuse its discretion by granting defendant a new trial under La.C.Cr.P. art. 851(B)(1), noting that under Article 851(B)(1), the trial court sits as a "thirteenth juror," reweighing the evidence and determining whether it agrees with the jury's resolution of the evidence, in effect becoming the trier of fact."
The court of appeal further underscored that a "determination of the weight of the evidence is a question of fact, and in a criminal case, such a determination is not subject to appellate review.
The decision on a motion for new trial rests within the sound discretion of the trial judge, and its ruling will not be disturbed on appeal absent a clear showing of abuse.
The trial court had the authority in this situation to direct counsel to file a supplemental motion for a new trial raising the ground that the court deems appropriate for granting relief. La.C.Cr.P. art. 856 ("[T]he court may permit the defendant to supplement his original motion by urging an additional ground, or may permit the defendant to file an additional motion for a new trial, prior to the court's ruling on the motion.") The trial court merely took a shortcut in finding grounds for granting defendant's motion for a new trial which was based on (entirely) unpersuasive allegations of newly discovered evidence ostensibly impeaching the credibility of Officer Mekdessie. Here the testimony of Officer Mekdessie, the only witness to testify that he saw the defendant with a gun in his hands, was at odds with the testimony of the defendant who maintained that he did not have a gun in his possession during the time in question. The trial court made a credibility determination when it specified that he had "reasonable doubt," which the court of appeal found equated with a "not guilty" verdict.
It is clear that La.C.Cr.P. art. 852 eliminated any requirement that proof must conform to the allegations of the motion. As a consequence, "[a] new trial should be granted any time the defendant shows a valid ground therefor, even though he failed to state the ground in his motion."
In my view, the trial court was correct to grant defendant a new trial. Thus, the majority errs in reversing the court of appeal's judgment affirming the trial court's grant of a new trial.
For the above reasons, I respectfully dissent.