Opinion
No. 57237-7-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-06895-3, Laura C. Inveen, J., entered October 17, 2005.
Affirmed by unpublished per curiam opinion.
In rare circumstances, impeaching evidence may warrant a new trial if it so devastates uncorroborated testimony establishing an element of the offense as to render the testimony totally incredible. Because newly discovered evidence of the victim's marital status in this case was merely impeaching on a collateral matter and not material to the charged offenses, the trial court did not abuse its discretion in denying Abdo Hussein's motion for a new trial. Accordingly, we affirm Hussein's conviction for one count of felony harassment and one count of fourth degree assault.
FACTS
Abdo Hussein and Samira Ahmed emigrated from Ethiopia to Seattle in 2004. The couple began living together and planned to marry. Ahmed occasionally referred to Hussein as her husband.
During the early morning hours of April 16, 2005, Ahmed called 9-1-1 and told the operator that her husband had choked her and that he had put her bags outside and told her to leave. Upon arriving in response to the call, Seattle Police Officer Lori Gleason found Ahmed "a little disheveled" and very upset. Gleason also noticed obvious red marks on Ahmed's neck. Lieutenant Jerry Willis of the Seattle Fire Department saw red marks and abrasions on Ahmed's neck.
Ahmed told Gleason that Hussein had returned home angry that evening and accused her of having a boyfriend and "sell[ing] your vagina." Hussein began choking her with both hands, threatened to kill her, and then told her to leave. Ahmed reviewed and then signed a written statement prepared by Gleason. Several days later, Ahmed had a raspy voice and told a police officer that she had bruises on her neck.
Hussein was charged with one count of fourth degree assault and one count of felony harassment. Prior to trial, Ahmed recanted her statements to police about Hussein. At trial, Ahmed testified that she and Hussein had quarreled when he returned home and that Hussein had packed her clothes and told her to get out. She explained that while the two were moving around her bags, a door accidentally hit her in the neck, causing bruises. During the incident, a necklace she was wearing scratched her neck. Ahmed explained that she called the police hoping they would calm things down, and she became frightened when she saw how many people responded to the call. Ahmed could not recall everything she had said to the police, but she denied that Hussein had choked her.
Hussein testified that he and Ahmed had argued about a telephone call that Ahmed made to Hussein's friend. He claimed, however, that it was Ahmed who wanted to leave and had started packing her bags. When Hussein saw that Ahmed was packing some of his belongings, he told her she could take her things, but not his. At some point, Ahmed picked up the telephone and told Hussein she was going to call the police and put him in jail. Hussein denied threatening or assaulting Ahmed.
The jury found Hussein guilty as charged, and he received a standard-range sentence. After sentencing, Hussein moved for a new trial based on newly discovered evidence that Ahmed had been married to another man in Ethiopia before emigrating to Seattle. In support of the motion, Hussein submitted a photocopy of an apparent marriage certificate naming Ahmed and a man named Abdul Mussa. Defense counsel contended that Ahmed's failure to disclose the prior marriage prevented adequate cross-examination about her motives for calling the police and assessment of her credibility.
Following a continuance, defense counsel informed the trial court that she had talked to Ahmed about the marriage certificate. Ahmed explained that Mussa was her uncle and that the marriage certificate was part of an unsuccessful plan to assist Mussa's emigration from Ethiopia. Ahmed did not believe that the marriage was valid.
The trial court denied Hussein's request for a further continuance and denied the motion for a new trial. The court concluded that the evidence related to the alleged prior marriage was merely impeaching and therefore did warrant a new trial.
DECISION
Hussein contends the trial court erred in denying his motion for a new trial based on newly discovered evidence of Ahmed's possible prior marriage. To obtain a new trial based upon newly discovered evidence, the defendant must demonstrate that the evidence "(1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching." State v. Macon, 128 Wn.2d 784, 803-04, 911 P.2d 1004 (1996); see also CrR 7.5(a)(3); 7.8(b)(2). The absence of any one of these factors warrants denial of a new trial. Macon, 128 Wn.2d at 804. We will not disturb the trial court's denial of a motion for a new trial absent a manifest abuse of discretion. State v. Franks, 74 Wn.2d 413, 445 P.2d 200 (1968).
Hussein does not dispute the trial court's characterization of the newly discovered evidence as impeaching. Rather, he contends that evidence of Ahmed's marital status was so crucial to her credibility as to warrant a new trial. Hussein reasons that if Ahmed was married to Mussa, she may have lied to police in order to further a plan to bring Mussa to the United States. And if Ahmed participated in a "sham marriage" merely to help her uncle, she would not hesitate to lie to the police in order to remain in this country. In either case, Hussein maintains, the evidence "revealed Ahmed to be utterly unworthy of believing" and would devastate the credibility of her statements to police. These arguments are not persuasive.
Hussein's arguments rely on United States v. Davis, 960 F.2d 820 (9th Cir. 1992), and State v. Savaria, 82 Wn. App. 832, 919 P.2d 1263 (1996), overruled in part on other grounds by State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003). In Davis, the defendant in a narcotics case was convicted primarily on the uncorroborated testimony of two undercover police officers. After trial, the defendant learned that one of the officers had been involved in stealing drug money and moved for a new trial. The court held that newly discovered impeachment evidence could warrant a new trial if "newly-discovered evidence establishes that a defendant in a narcotics case has been convicted solely on the uncorroborated testimony of a crooked cop involved in stealing drug money." Davis, 960 F.2d at 825. In such circumstances, the impeachment evidence, if believed, might be sufficiently powerful to render the witness's testimony "totally incredible." Id.
In Savaria, the defendant was convicted of felony harassment and intimidating a witness. After trial, the defendant discovered evidence of telephone records that directly contradicted the victim's claim that she made a critical call. If believed, the evidence also contradicted the sole evidence of an element of the charged crime. Savaria, 82 Wn. App. at 838. On appeal, the court concluded that the newly discovered evidence warranted a new trial because it so devastated the witness's testimony as to become "critical" rather than "merely impeaching." Id.
But Davis and Savaria are clearly distinguishable. The newly discovered evidence of Ahmed's marital status did not contradict any element of the charged offenses. As defense counsel acknowledged, Ahmed never testified about her marital status, mentioning only that she and Hussein planned to be married. At best, any issue involving Ahmed's marital status was therefore collateral to the charged offenses. See State v. Oswalt, 62 Wn.2d 118, 120, 381 P.2d 617 (1963) (witness may not be impeached on matters collateral to the principal issues). In addition, Ahmed's initial statements to police were corroborated by the 9-1-1 recording and the police officers' observations of her physical condition when they arrived.
Finally, unlike the witnesses in Davis and Savaria, Ahmed recanted her statements to police and testified in favor of Hussein at trial. The jury therefore necessarily found her initial statements to police to be more credible. Because nothing in Hussein's offer of proof about Ahmed's marital status provided any tangible motive for her to lie to the police, Hussein's claim that the new evidence would "devastate" the credibility of Ahmed's statements to police, while apparently bolstering her trial testimony, is not persuasive. Under the circumstances, we would have to engage in sheer speculation to conclude that the newly discovered evidence would have had any effect on the trial.
Because the newly discovered evidence was merely impeaching and did not contradict uncorroborated testimony about an element of the offense, the trial court did abuse its discretion in denying Hussein's motion for a new trial.
Affirmed.
For the court: