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State v. Contractor

Court of Appeals of Kansas.
Aug 16, 2013
305 P.3d 48 (Kan. Ct. App. 2013)

Opinion

No. 108,243.

2013-08-16

STATE of Kansas, Appellee, v. Zubin Darius CONTRACTOR, Appellant.

Appeal from Johnson District Court; Thomas H. Bornholdt, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Johnson District Court; Thomas H. Bornholdt, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P J., GREEN and STANDRIDGE, JJ.

PER CURIAM:

Zubin Contractor was convicted by a jury of criminal threat against Elizabeth Weaver. Contractor appeals the trial court's denial of his motion for new trial based on newly discovered evidence. Finding no error, we affirm.

In 2007, a jury convicted Contractor of one count of criminal threat against Weaver. Contractor was then sentenced to a 30–day jail term and placed on probation for 12 months with an underlying 12–month prison sentence. Contractor successfully completed his probation in March 2009.

Contractor directly appealed his conviction to our court. In State v. Contractor, No. 101,594, 2010 WL 3488668 (Kan.App.2010) (unpublished opinion). Our court ultimately affirmed his conviction. The underlying facts of this case were laid out in Contractor's direct appeal as follows:

“In the evening of June 2, 2007, the victim, Elizabeth Weaver, was at Scott Meyers' house. At about 8 p.m. the defendant called Meyers' telephone. The caller ID showed the defendant's name. Both the victim and Meyers were previously acquainted with the defendant. Meyers asked the victim to answer the telephone and tell the defendant not to call again. The victim did so and then hung up immediately.

“The defendant called back and Meyers again asked the victim to answer the telephone. This time, the defendant told the victim, Tucking bitch, I['m] going to kill you, and I['m] going to kill you with my gun.' Later that evening the defendant called and spoke with the victim three or four times. In one of these later calls, defendant told the victim, ‘[B]itch, I am going to beat you up, and I am going to kill you.’ When Meyers took the telephone, the defendant told Meyers to not let the victim leave Meyers' house. The defendant told Meyers ‘the children should leave the place and go and have ice cream because things were going to get pretty bad.’ The last time the defendant spoke with the victim, the defendant told her to wait there and he was going to come and kill her.

“The victim called the police after her last conversation with the defendant. After the police arrived, the defendant arrived at Meyers' house. After questioning defendant about the reported events, the police arrested the defendant.” 2010 West Law 3488668, at *1.

In 2011, 1 year after Contractor's direct appeal, he filed a motion for new trial arguing, among other things, that he wass entitled to a new trial based on newly discovered evidence. The motion alleged that witnesses had come forward with new evidence that Weaver and other witnesses had fabricated their testimony against Contractor. The trial court denied the motion except for the issue dealing with newly discovered evidence.

On May 21, 2012, the trial court held an evidentiary hearing on Contractor's motion for new trial based on newly discovered evidence. At the hearing, Contractor had two witnesses testify about an alleged conspiracy to get him convicted. Michelle Pingel was the first witness to testify. Pingel testified that she was involved in an organization called “The Grotto of Our Lady of Love” during the year 2007 when the incident occurred. Through this group, Pingel met Contractor, Ed Mitchell, and Scott Meyers. Pingel further testified that she later left the group in 2010 because she felt it was a cult that was led by Weaver, the victim in this case.

Regarding the conspiracy, Pingel testified that Weaver was mad at her because she refused to corroborate Weaver's allegations against Contractor Pingel testified that she was in another room when the alleged threats were made and that she did not hear the threats. Pingel also testified that she saw Weaver looking through Pingel's cell phone logs trying to find another incident involving Contractor because Weaver wanted to get him off the streets.

Ed Mitchell was the next witness to testify at the hearing. Mitchell testified that he had also been a member of the organization but that he left the organization in 2000 because he thought the group strayed from what he thought were healthy Christian principles. Mitchell testified that Pingel had reached out to him after she left the group. During their conversations, Mitchell learned that the group had gotten together to discuss their testimony before trial. Mitchell testified that he understood this to mean that the group was collaborating on their testimony.

After hearing the evidence, the trial court denied Contractor's motion for new trial, finding that the evidence did not rise to the level required to grant a new trial. Did the trial court err in denying Contractor's motion for a new trial?

On appeal, Contractor argues that the trial court erred in denying his motion for new trial based on newly discovered evidence. Contractor contends that he could not, with reasonable diligence, have produced this evidence at trial. He further maintains that this evidence is so material that it is likely to result in a different outcome upon retrial.

Appellate courts review a trial court's decision for an abuse of discretion on a motion for a new trial based on newly discovered evidence. See State v. Backus, 295 Kan. 1003, 1011, 287 P.3d 894 (2012); State v. Rojas–Marceleno, 295 Kan. 525, Syl. ¶ 3, 285 P.3d 361 (2012); Moncla v. State, 285 Kan. 826, 839–40, 176 P.3d 954 (2008) (reviewing order denying motion for new trial based on newly discovered evidence for abuse of discretion). Judicial discretion is abused only when no reasonable person would take the view of the trial court. The party who asserts abuse of discretion bears the burden of showing it. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006).

To establish a right to a new trial based upon newly discovered evidence, a criminal defendant must establish: (1) that the newly proffered evidence could not have been produced at trial with reasonable diligence, and (2) that the newly discovered evidence is of such materiality that a reasonable probability exists that it would produce a different result upon retrial. State v. Cook, 281 Kan. 961, 992, 135 P.3d 1147 (2006).

In this case, the trial court denied the motion, concluding that there was not newly discovered evidence. The trial judge questioned whether the testimony would have even been admissible. The trial judge stated that he “agrees with the State's analysis [of] the situation. I don't think this rises to the level required to grant a new trial for the defendant. Request for new trial is denied.”

Contractor failed to establish that the newly discovered evidence could not have been produced at trial with reasonable diligence. As the State properly pointed out, Contractor knew all of the people involved and could have had his attorney contact Pingel to testify at trial. Pingel testified that she watched the trial, and therefore, she was obviously available to testify. Thus, with reasonable diligence, it is readily apparent that this evidence could have been produced at trial. Based on this evidence, the trial court did not abuse its discretion in finding that there was not newly discovered evidence.

Moreover, we determine that the newly discovered evidence was not sufficiently material to find a reasonable probability that the jury would have reached a different result upon retrial. To support a motion for new trial, the newly discovered evidence must be sufficiently credible, substantial, and material to raise in the court's mind, in light of all the evidence introduced at the original trial, a reasonable probability of a different outcome upon retrial. State v. Thomas, 257 Kan. 228, 235, 89 P.2d 417 (1995). Here, it is unlikely that Pingel's testimony would have helped the defense because her testimony only attacks the credibility of Weaver when there were three other witnesses who corroborated Weaver's testimony. At Contractor's trial, three witnesses, in addition to Weaver, testified that they heard Contractor threaten Weaver over the phone. Moreover, the fact that Contractor showed up at the residence after making the alleged threats also corroborates Weaver's testimony. Additionally, it is important to note that Pingel did not directly testify that there was a conspiracy to convict Contractor or that the witnesses made up their testimony. In fact, the only testimony that the witnesses got together to discuss their testimony came from Mitchell, who testified that Pingel had told him that. Pingel's testimony focused on Weaver looking through Pingel's phone logs for another incident with Contractor in an attempt to get him off the streets. This testimony does not support the allegations that the witnesses who testified against Contractor got together and fabricated their testimony. Thus, the conspiracy testimony was weak.

In reaching his decision, the trial judge and defense counsel had the following exchange;

“THE COURT: “Well, I think what I'm trying to figure out is, say, he [Contractor] knew what I just heard today, how would that have never [ sic ] come into the trial?

“[DEFENSE COUNSEL]: “I think it would have been powerful impeachment.

“THE COURT: “Okay. That—I mean, she—let me say from my perspective, and I think from the jury's too, that she was viewed as a bit of a flaky victim.

“I mean, she was not—and it was a close decision, I think, of whether they believed that he had said those words to her. But I don't—the only thing that you would find, I think from these two witnesses, and really just from the first witness, is that she was a controlling person and had the habit of threatening people with eternal damnation if they didn't do what she said.

“Now, is that admissible?”

Based on this exchange, it is clear that the trial court found that the evidence was not material. The trial judge admitted that Weaver's credibility was already questionable; therefore, this testimony attacking her credibility would not have likely changed the outcome of the trial. Indeed, new trials are not to be granted on the basis of newly discovered evidence that merely tends to impeach or discredit the testimony of a witness. State v. Norton, 277 Kan. 432, 436–40, 85 P.3d 686 (2004). As a result, Contractor's argument fails.

Affirmed.


Summaries of

State v. Contractor

Court of Appeals of Kansas.
Aug 16, 2013
305 P.3d 48 (Kan. Ct. App. 2013)
Case details for

State v. Contractor

Case Details

Full title:STATE of Kansas, Appellee, v. Zubin Darius CONTRACTOR, Appellant.

Court:Court of Appeals of Kansas.

Date published: Aug 16, 2013

Citations

305 P.3d 48 (Kan. Ct. App. 2013)