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Johnson v. State8/22/2001
eory of the case. Under the state's theory, Vaughan could have been the person who assaulted Selina Perkins along with Johnson. But Johnson's theory of the case was that Vaughan acted alone. Bernice Drew's testimony, coupled with Vaughan's hearsay statements, supported Johnson's theory of the case. Vaughan's hearsay statements supported Johnson's theory that Vaughan had a motive - specifically, that she had assaulted Perkins because she was angry because she believed that Perkins had been involved with Vaughan's younger brother. This motive was arguably individual to Vaughan, and was supported by Drew's observations. Without Vaughan's hearsay statements, Drew's assertion that someone else confessed to the assault lost some of its credibility. From the record, this appears to be a very close case because of Perkins's high level of intoxication and equivocal testimony. We therefore reject the state's argument that, even if the statements had been admitted, admission of the statements would not have appreciably affected the jury's verdict.
Motion For a New Trial
Johnson later filed a motion for a new trial based on a claim of newly discovered evidence. In support of his motion, Johnson presented the testimony of Neelta Burgess, Bernice Drew's cousin. Burgess testified that on the night that Perkins was assaulted, Vaughan had stated she was angry because she heard that her fourteen-year-old brother was involved with Perkins. Burgess stated that she was with Drew the night of the assault on Perkins and saw Vaughan run into a downstairs door at the Gaffney Motel . Five minutes later, Vaughan came running out and said, "I whipped the bitch's ass." Burgess testified that when Vaughan returned, her shirt had blood splattered on it and her knuckles were bloody. Burgess testified that she did not see anyone with Vaughan when Vaughan entered and exited the motel.
Judge Greene denied Johnson's motion for a new trial based on newly discovered evidence, holding that the evidence presented was cumulative to Drew's testimony and also that Johnson had not proven due diligence in acquiring the information before trial.
We uphold Judge Greene's ruling denying Johnson's motion for a new trial based on newly discovered evidence. The record shows that Johnson was aware before trial that Drew was accompanied by her cousin when she heard Vaughan's statements. The record simply does not show that Johnson acted with due diligence in attempting to identify Burgess and attempting to obtain her testimony at trial. We accordingly conclude that Judge Greene did not err in denying Johnson's motion for a new trial.
Conclusion
We remand the case for further proceedings. In the event the trial court concludes that Vaughan's hearsay statements should have been admitted at Johnson's trial, the trial court shall order a new trial. In the event that the trial court determines that Vaughan's hearsay statements should not have been admitted, the trial court shall forward its findings to this court within sixty days. If the court again determines that the hearsay statements were not admissible, Johnson shall have thirty days from the date that the trial court's findings are served on him to file a memorandum with this court. The state shall have thirty days after Johnson files his memorandum to file its memorandum. Johnson may file a reply memorandum twenty days after receipt of the state's brief.
REMANDED.
See Love v. State, 457 P.2d 622, 631 (Alaska 1969).
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