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State v. Smith10/19/2001
he dispatcher for the Clinton Police Department. According to Johnson, the department's radio dispatch log indicated that Officer Kelley was dispatched to the jail at 12:27 a.m. on February 28, 1998, arrived at the jail at 12:49 a.m., and returned to duty at 12:56 a.m. The trial court denied the Defendant's motion, stating that the test was challenged at the time of the trial. According to the trial court, " his newly discovered evidence is additional accumulated - impeachable - evidence which in this Court's opinion should not be the basis for granting a new trial." The trial court also stated that the information was available to defense counsel before trial.
We conclude that the trial court properly denied the Defendant's motion for a new trial based on Johnson's affidavit. Although the evidence may have been material to the case, the Defendant failed to show that reasonable diligence was exercised in obtaining the evidence. According to the trial court, the evidence was available to the defense before the trial. Johnson certified that a contemporaneous recording in the log was required by departmental policies and procedures. Moreover, it is unlikely that the new impeaching evidence would have necessarily changed the result of the trial. There was substantial testimony at trial regarding the timing of the test and the observation period. The log sought to be introduced indicated that Officer Kelley arrived at the jail at 12:49 a.m.; however, the test results of the breathalyzer indicated that Kelley administered the test at 12:47 a.m. Thus, this evidence was not so crucial to the issue of the Defendant's guilt or innocence that the admission of the newly discovered impeachment evidence would probably have resulted in an acquittal. See Singleton, 853 S.W.2d at 496; Rogers, 703 S.W.2d at 169.
Accordingly, the judgment of the trial court is AFFIRMED.
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