(dissenting):
The statutory provision1 which bears upon the propriety of granting a new trial on the basis of newly-discovered evidence reads, in pertinent part, as follows:
When a verdict or decision has been rendered against the defendant the court may, upon his application, grant a new trial in the following cases only:
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(7) When new evidence has been discovered, material to the defendant and which he could not with reasonable diligence have discovered and produced at the trial.
The matter of granting or refusing to grant a new trial is within the sound discretion of the trial judge and this Court will reverse his decision thereon only where he has abused that discretion.2 I do not agree that the trial judge in the instant case has abused his discretion.
The “new evidence” relied upon relates to the officer’s knowledge of the existence of men’s clothing in the office-bedroom in which the heroin was found. Although the prosecution did not disclose such evidence, the record is clear that it was equally accessible to Walker at the time of trial. It is undisputed that Walker was present with Officer Duncan when Westley obtained clothing from the room on the night of his arrest. At the hearing on the writ (herein appealed), Officer Duncan testified that to the best of his recollection he entered the room with Walker and Westley and that Walker opened the closet and procured the clothes for Westley. Ophelia Buford, appearing as a witness on behalf of Walker, disputes some of that testimony, but not the presence of Walker. Buford testified as follows:
Q. Do you recall when Robert Westley was getting dressed?
A. Yes.
Q. When [they] took him into Room 6 [the upstairs room in which the heroin was found] and had him change from his pajamas into — .
A. Yes.
Q. Where was Mrs. Walker at that time?
A. She was upstairs.
Q. Was she in the room?
A. Yes.
Q. Did she get a key to open the closet?
A. No.
Q. How did she get into the closet?
A. They broke it open.
At trial, Officer Duncan took the witness stand, but was never asked by the defense on cross-examination whether he saw any men’s clothing in Room 6. Walker herself testified and denied having exclusive control over the room but apparently never informed her attorney of the incident now relied upon in this proceeding. In light of the foregoing, the officer’s knowledge of the existence of men’s clothing in the room cannot be construed to be newly-discovered evidence.
*693Even assuming, arguendo, that such evidence was “newly discovered,” it still must be shown that Walker could not with reasonable diligence have discovered and produced it at trial. In his closing argument at the hearing, Walker’s attorney concedes that “perhaps there could have been more diligence in obtaining that type of evidence,” but that he did not anticipate the need for that defense. It is his contention that “it came as a complete surprise to me when these officers testified that Mrs. Walker stated that she had ‘sole and exclusive control’ over Room 6.” However surprised counsel may have been, certainly it cannot be said that Walker was similarly surprised if the testimony of Buford is to be believed that Walker was present in Room 6 when the clothing was taken therefrom for Westley. Had Walker apprised her counsel of that fact, he would have had an opportunity to meet the issue at trial, either by more appropriate cross-examination of the State’s witnesses, or by producing further defense witnesses, notably, Buford. Reasonable diligence simply has not been demonstrated.
In any event, the trial court concluded that, although corroborative of Walker’s position at trial, the prosecutor’s undisclosed evidence would not have changed the decision of the jury.
The main opinion makes reference to the case of United States v. Agurs.3 In that case, the Court declared that the rule of Brady v. Maryland4 arguably applies in three quite different situations: (1) where the undisclosed evidence demonstrates that the prosecution’s ease includes perjured testimony and that the prosecution knew or should have known of the perjury; (2) where there is a pretrial request for specific evidence and the prosecution suppresses the information; and (3) where the defense either makes no request or merely makes a general request for exculpatory material, and certain favorable material is not voluntarily supplied by the prosecutor. The instant case involves no perjury and clearly falls within the third situation. Agurs held that under the third situation, the appropriate standard to be applied is as follows:
... [I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
The role of the trial court in making a determination as to the effect of non-disclosed evidence was articulated in Cannon v. State of Alabama.5 In the instant case, the trial court properly relied upon that case in its ruling:
The Court has reviewed the transcript of the evidence. The Court has read the cases submitted.
And there is no question that, in the Court’s mind, that the County Attorney’s Office failed to disclose the fact that the men’s clothing was contained in the room wherein the heroin was found.
However, in reviewing the cases and in reviewing the transcript of the trial, the Court endeavored to approach it the same as was done in the case of Cannon v. State of Alabama, and approached the reading of the testimony and the evidence from the point of view of a fact-finder in connection with the matter.
* * * * * *
Now, with the background, and with what the evidence would appear to a finder of fact, the Court has concluded that the evidence would have been somewhat corroborative of the defendant’s po*694sition in the matter, but that the fact that the clothing in the room, and the fact that the defendants put on evidence both the heroin found in the possession of Mr. Westley in the room and that in the room appeared to be the same, would not have been matters that would have changed the fact-finders [sic] decision in connection with the matter and would not have weighed heavily in connection with the fact finder as far as the court can determine.
Therefore, the Petition for Coram No-bis and/or In the Alternative Habeas Corpus will be denied.
The narrow question the trial court was called upon to answer was this: Did the omitted evidence that Duncan saw Westley get a pair of pants from a closet in the room where the heroin was found create a reasonable doubt as to Walker’s guilt? At trial, there was ample evidence that West-ley had access to the room. Walker testified that Westley would go into the room for periods of time when he had headaches. Westley was also found to have the same type of heroin on his person at the time of arrest as was found in the room. On the other hand, it is undisputed that numerous items of personal property which belonged to Walker were also discovered in the room. At trial, the court specifically instructed the jury that ownership of the controlled substance need not be exclusive — it may have been jointly owned. Although the men’s clothing found in the room may have corroborated Walker’s theory of the case, it is not, as phrased by the trial court, “material” to Walker’s conviction in a constitutional sense.
I would affirm.
. U.C.A., 1953, 77-38-3.
. State v. Bundy, Utah, 589 P.2d 760 (1978).
. 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), dealing with the suppression by the prosecution of evidence favorable to an accused.
. 558 F.2d 1211 (5th Cir. 1977).