dissenting.
I respectfully dissent.
At the September 5, 1984, motion hearing, Wanda testified that she had killed Ralph Pierro and that she had told Bemie Smith that she was the one who had killed Ralph Pierro. Her notarized statement averred that Bernie Smith was not involved nor present when she visited Pierro shortly before he was killed. Briefly, her affidavit disclosed that Ralph Pierro attempted forcibly to have sex with her; she got angry and pushed him. He fell, hitting his head on a rock planter, and was fatally injured. The affidavit stated that she had lied at her own trial because she was trying to protect her reputation. Additionally, she indicated she was not thinking clearly at that time, being distraught by her son Steve’s recent violent death. She concluded that she was now coming forward for her own peace of mind. Although the majority opinion indicates that unlikelihood of changing the result formed the basis of its ruling on a new trial, the court’s order denying the motion reads:
[T]he Court having heard the testimony presented and considered the evidence admitted:
FINDS:
1. That the law of the case is State v. Ramirez, 79 N.M. 475, 444 P.2d 986, 1968.
2. That the defendant has failed to carry this burden of proof as to criteria 2 and 3 as set forth in Ramirez Supra, at page 477, 444 P.2d 986, to-wit: “It must have been discovered since trial” and “It must be such that it could not have been discovered before trial by the exercise of due diligence.” The Court is of the opinion that the information contained in the affidavit of Wanda Smith was available to the defendant prior to trial.
3. It is questionable whether defendant carried his burden of proof with regard to criteria 1 and 6 of Ramirez, Supra, Page 477, 444 P.2d 986, to-wit: “It will probably change the result if a new trial is granted,” and “It must not be merely impeachment and contradictory.” The Court is of the opinion that the affidavit of Wanda Smith is so contradictory that it would be impossible to determine when she might be telling the truth.
4. The defendant did carry his burden of proof as to criteria 4 and 5 of Ramirez, Supra, at page 477, 444 P.2d 986, to-wit: “It must be material to the issue,” and “It must not be merely cumulative.”
The principal basis, then, was that the evidence was known to defendant Bernie Smith at the time of his trial and was not “new evidence” within the meaning of the requirements of NMSA 1978, Crim.P. Rule 45 (Repl.Pamp.1985). The other reasons given were “questionable.”
It is settled that when a motion under Rule 45 is based upon newly discovered evidence, the movant must show that the evidence is such that: (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. See, e.g., State v. Volpato, 102 N.M. 383, 696 P.2d 471 (1985); Ramirez. An order denying a new trial will not be overturned except for an abuse of discretion. Id. at 385, 696 P.2d at 473.
This question therefore is whether evidence that may have been imparted to defendant in some fashion prior to trial, but unavailable for use in the trial, becomes “newly discovered” when it subsequently becomes available. According to the new evidence, Bernie Smith allegedly had been told by Wanda prior to trial that she had killed Ralph Pierro. Wanda Smith, however, is the only other person still alive who was present, according to her testimony, at the time the event occurred. Her testimony was unavailable to defendant at defendant’s trial because she pled her Fifth Amendment privilege. Bernie Smith could not have testified that Wanda Smith told him that she had killed Ralph Pierro because that would have been inadmissible hearsay. NMSA 1978, Evid.R. 802. It was an out-of-court statement that would have been offered to prove the truth of the matter contained in the statement: that Wanda (and consequently, not Bernie) had killed Ralph Pierro. It could not have been offered as a statement against interest by the declarant because it was offered to exculpate the accused and therefore required corroboration under Evidence Rule 804(B)(4). Bernie Smith could offer no corroboration. Consequently, under a careful analysis, it is clear that the evidence became available only when Wanda Smith decided to come forward and testify concerning an event about which she alone allegedly had personal knowledge.
Several New Mexico cases provide a foundation for such an analysis. In State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 463 (1942), we affirmed the denial of a new trial, but on grounds that the defendant knew of the evidence at trial and that “the reason given for not presenting such testimony [was] insufficient.” As here, our holding in that case would suggest that a new trial is not automatically precluded because the defendant may have technically “known” of the evidence prior to trial by reason of having been so told but is powerless to present such inadmissible evidence.
In our most recent case on the subject, State v. Sena, 103 N.M. 312, 706 P.2d 854 (1985), the denial of a new trial was sustained because defendant and other witnesses known to defendant at the time of trial could have rebutted allegedly perjured, and later recanted, testimony, and they were not called to testify.
In Volpato, however, we reversed the denial of a new trial on facts similar to the instant case. There, the newly discovered evidence came in the form of an affidavit of one who had not been called as a witness at trial because of the intentionally deceptive version of events she gave to investigators. She had determined not to become involved but, after defendant had been convicted, she came forward “as a matter of conscience” and gave a description of what she had witnessed. Her testimony corroborated, in detail, the defendant’s previously uncorroborated testimony. In that case we rejected the State’s argument that the evidence was not new merely because it was known “in broad outline” to the defendant.
Conversely, but not inconsistently, in State v. Mabry, 96 N.M. 317, 630 P.2d 269 (1981), we affirmed denial of a new trial, noting that defendant could have offered testimony, based upon first-hand knowledge, of alleged sexual abuse of the accused by the victim, but did not do so.
One case, State v. Valdez, 95 N.M. 70, 618 P.2d 1234 (1980), appears discordant with the others. In that case the defendant was privy to a pre-trial confession of another to the crime of which Valdez was accused. The Court, apparently without fully analyzing the inadmissibility of that hearsay evidence, held that “[t]he defendant took the witness stand and testified in his own behalf, but made no reference to [the] alleged confession.” Id. at 72, 618 P.2d at 1236. To the extent that Valdez implies that defendant is denied the possibility of a new trial because of his failure to proffer clearly inadmissible testimony, it should be expressly overruled.
A survey of other jurisdictions reveals a split of authority on the meaning of “unavailability,” with the federal courts, principally, imposing a very narrow construction upon it. See Jones v. Scurr, 316 N.W.2d 905 (Iowa 1982), for a cross-jurisdictional survey of holdings. The desire for finality of litigation usually has been the reason given for refusing to equate “newly available” and “newly discovered” evidence. When we look to the purpose of the provision allowing new trials on the basis of newly discovered evidence, however, it is clear that
[t]he touchstones that appear to govern are two: the first being the showing of diligence as an excuse for . not having been able to present the evidence at the first trial; and the second being evidence that will convince the trier of facts that a different verdict will probably result____ [Although [the evidence is] not newly discovered evidence in the usual sense of the term, its availability is newly discovered, to which the same principle applies____
State v. Gerdes, 258 N.W.2d 839, 843 (S.D. 1977) (emphasis in original).
Therefore, newly available evidence meets the requirement that it be “discovered” since trial. The trial court should be reversed on that issue because the denial was primarily based upon the judge’s view that the evidence was not “newly discovered.” I do not disregard the requirement that diligence in attempting to bring forth the evidence at trial must be observed. Trial counsel of course must do all possible to produce the evidence at the original trial, but that does not include unethically or improperly attempting to introduce inadmissible evidence.
Secondly, although the trial judge expressly decided that the evidence was not newly discovered, and additionally stated in the denial order that it was “questionable” whether the new testimony would change the result should a new trial be granted because the “affidavit of Wanda Smith is so contradictory that it would be impossible to determine when she might be telling the truth,”
[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____ [Ajnother jury would have the benefit of all the facts in order to arrive at a fair decision.
State v. Fuentes, 67 N.M. 31, 32, 351 P.2d 209, 210 (1960). It is possible, of course, that a new jury would discredit Wanda Smith’s evidence. On the other hand, if the jury — the factfinder — should believe the testimony contained in Wanda’s affidavit, defendant must then be acquitted of murder because her testimony is consistent only with defendant’s innocence. Compare Ramirez, (where a new jury could believe the new testimony but still find the defendant guilty; the new evidence merely placed two strangers near the scene of the crime and the witness had no first-hand knowledge of the actual murder).
I would remand the case with directions to set aside the conviction and grant a new trial to defendant.