 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Frias v. State6/26/1986
y of the evidence. Campbell v. State, Wyo., 709 P.2d 425 (1985).
V
In appellant's fifth assignment of error, he claims that the trial court erred in denying the motion for a new trial on the basis of newly discovered evidence.
At the hearing on the motion, appellant called a photographer and ex-employee of the state crime lab, who testified that infrared photographs revealed black residue on the front of the victim's blouse consistent with gun powder residue, indicating that she was shot in the stomach, not in the back. Appellant also called a forensic pathologist who testified that the homicide conclusion was premature, arrived at in haste by laymen, and absolutely indefensible. He testified further that, in his opinion, the victim was in a sitting position, and the rifle was in front of her and in close proximity, if not abutting the skin of the abdomen.
Finally, appellant called the chief medical examiner and director of the regional crime laboratory in San Antonio, Texas. He testified that, given the victim's prior attempts at suicide, the possibility that she had taken her own life should have been carefully considered and thoroughly investigated. With that consideration in mind and upon reviewing the evidence available to the State's witnesses, he testified that:
"* * * t the time she shot herself she was sitting down, bent slightly over the weapon. She probably used her toe to trigger the weapon. She could have used her finger, but she was bent over with her legs extended.
"The bullet entered her abdomen. It was a contact wound, went out the back. By the time it started to come out the back, there had been a separation of the jacket and core."
In Opie v. State, Wyo., 422 P.2d 84, 85 (1967), this Court clearly outlined the test for determining whether a new trial should be granted on the grounds of newly discovered evidence:
"* * * (1) That the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is so material that it would probably produce a different verdict, if the new trial were granted; and (4) that it is not cumulative, viz., speaking to facts in relation to which there was evidence at the trial. [Citations.]"
In order to satisfy the Opie test, appellant must demonstrate the existence of each of the four elements. In the present case, appellant fails to demonstrate that it was not owing to a want of due diligence that the evidence of suicide did not come to his knowledge sooner.
Counsel for appellant was fully aware, prior to trial, that evidence existed dictating against the conclusion that appellant shot Ernestine Perea. On the night of Ernestine's death, appellant called the police, agreed to meet them at a cafe, led them back to the trailer, waited while they investigated the scene, and then voluntarily accompanied them back to the jail where he spent the night. Prior to his arrest, appellant agreed to talk to agents from DCI. Throughout the interrogation, appellant steadfastly denied killing Ernestine despite repeated accusations and threats by his interrogators.
The physical therapist who worked with appellant following the injury to his arm testified that it would have been difficult for him to load or fire the gun. This testimony was confirmed by the jailer at the Platte County sheriff's office who observed appellant daily following his arrest. He testified that, in his opinion, appellant could not have raised the gun to his right shoulder and pulled the trigger. He described appellant's right arm as almost useless.
Althou
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Wyoming DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|