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Tessmer v. State11/30/2000
disclose a conversation which an assistant district attorney had with Newton's mother, Deborah Carringer. In this regard, Tessmer claims that, had the conversation been disclosed, she would have been able to impeach Carringer by showing that she had a motive to testify falsely.
The sum total of Carringer's conversation with the assistant district attorney was as follows: Carringer told the assistant district attorney that she was thinking about sending an ante litem notice to sue the city of Barnesville for Newton's murder, but she did not know what she was going to do. The assistant district attorney replied that he could not advise her and that she would have to consult with another attorney.
The burden is on defendant to establish a Brady violation, Hicks v. State, 232 Ga. 393, 396 (207 SE2d 30) (1974), by showing that: (1) the State possessed information favorable to the defendant; (2) the defendant did not possess the evidence nor could he obtain it with due diligence; (3) the prosecution suppressed the evidence; (4) a reasonable probability exists that the outcome of the trial would have been different if the evidence had been disclosed. Burgeson v. State, 267 Ga. 102 (475 SE2d 580) (1996).
Tessmer has failed to establish the first, second, and fourth elements. After all, the assistant district attorney did not know whether Carringer presented an ante litem notice to the city. He only knew that she was "thinking" about it. That information, in and of itself, was not favorable to Tessmer. Moreover, the fact that Carringer went ahead and presented the city with an ante litem notice could have been obtained by Tessmer by the exercise of reasonable diligence. Finally, it cannot be said that there is a reasonable probability that the outcome of the trial would have been different if the information had been disclosed.
7. Pointing to Carringer's ante litem notice and subsequent suit against the city, Tessmer also sought a new trial on the basis of newly discovered evidence. The trial court denied the motion and Tessmer assigns error upon that ruling. We find no error.
It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (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 he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. (Punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980).
Evidence that Carringer intended to sue the city would have done nothing more than discredit Carringer. Thus, it cannot be said that the trial court abused its discretion in denying Tessmer's motion for a new trial based on newly discovered evidence. See Kitchens v. State, 228 Ga. 624, 626 (187 SE2d 268) (1972) (motion for new trial on ground of newly discovered evidence is addressed to the sound discretion of trial court).
Judgment affirmed. All the Justices concur, except, Benham, C.J., Fletcher, P.J., and Hunstein, J., who dissent.
S00A1397. TESSMER v. STATE.
HUNSTEIN, Justice, dissenting.
The outcome of this case hinged on whether the jury believed it could consider accident as a defense to felony murder. Inasmuch as the jury was directed by the trial court it could not consider the defense of accident when deciding whether Tessmer was
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