Opinion
No. 112433.
08-14-2015
STATE of Kansas, Appellee, v. Wyatt Daniel DUSKIE, Appellant.
Chantz N. Martin, of Frasier, Johnson & Martin, LLC, of Beloit, for appellant. Darrell Miller, county attorney, and Derek Schmidt, attorney general, for appellee.
Chantz N. Martin, of Frasier, Johnson & Martin, LLC, of Beloit, for appellant.
Darrell Miller, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Wyatt Daniel Duskie was convicted of fleeing or attempting to elude a police officer and speeding. He moved for a new trial based on newly discovered evidence in the form of testimony that would impeach one of the State's witnesses. The district court denied his motion, and Duskie appeals. From our review of Duskie's claimed newly discovered evidence, we am satisfied that the evidence upon which Duskie based his motion was not of such materiality that it would be likely to have produced a different result upon retrial. Further, with reasonable diligence, Duskie's new evidence could have been produced at trial. Therefore, we conclude that the district court did not abuse its discretion in denying Duskie's motion.
The evidence at Duskie's bench trial established that the deputy sheriff observed a red Ford Mustang and a red Chevrolet extended-cab pickup in a grocery store parking lot. Around midnight, he saw the pickup leave the parking lot and proceed in the same direction the deputy sheriff was driving. The pickup proceeded to a stop sign. When the officer reached the stop sign, he noticed that the pickup was already a “long ways down the road.” He suspected that the pickup was speeding so he increased his speed and followed the truck.
When the officer clocked the pickup's speed in excess of the speed limit, he engaged the lights and siren on his vehicle and continued in pursuit. The pickup did not stop but turned onto an unpaved road. At one point the officer completely lost sight of the vehicle due to the thick dust, but he could see the brake lights of the speeding vehicle “every once in awhile.” He turned around to return to the spot where he first lost sight of the pickup. As he drove back, he saw the red Chevy pickup turn into the Duskie residence.
The officer stopped at Duskie's residence and saw someone walking in the front door. He was approached by Duskie's father who denied seeing anyone drive by but said that his son had a pickup matching that description.
The officer returned to the point where the pickup truck turned onto the unpaved road. The outside temperature was approximately 50 degrees but there still was snow in the ditch next to the roadway. The officer had seen chunks of snow on the road when he turned onto the unpaved road. He found tire marks leading from the paved road, down through the snow-filled ditch into a field, and then back through the ditch to the unpaved road.
When the officer returned to the Duskie residence, he found Duskie's pickup, which had snow packed in the front bumper and underneath the truck. The truck's hood was warm, indicating the truck had been operated recently.
The red Mustang the officer had seen in the grocery store parking lot belonged to Emma Menhusen. At trial, Menhusen testified that she had been riding around with Duskie and Robert Dean on the night in question. She said Duskie then dropped her off at the parking lot where her car was parked and then drove off in his pickup. This would have been at the same time the officer saw the pickup drive off.
At the conclusion of the bench trial, the district magistrate judge found Duskie guilty of both charges. Duskie moved for a new trial based on newly discovered evidence in the form of testimony from Dean. At a hearing on the motion, Dean testified that he was not riding around with Duskie and Menhusen on the night in question, directly contradicting Menhusen's testimony at trial. According to Dean he had ridden around with Menhusen and Duskie one time, but it was not on the night in question. Duskie knew in advance of trial that Menhusen had given a statement to the authorities. But he contended that because Menhusen had not mentioned Dean in her police statement, he could not have anticipated Menhusen's trial testimony about Dean.
In denying Duskie's motion, the court noted the credibility of Menhusen's trial testimony notwithstanding Dean's new testimony and concluded that there was sufficient evidence supporting the convictions without Menhusen's testimony. This appeal followed.
Analysis
K.S.A.2014 Supp. 22–3501(1) permits the trial court to grant a new trial on motion of the defendant “if required in the interest of justice.” We review a trial court's decision for any abuse of discretion in denying the motion. State v. Laurel, 299 Kan. 668, 676, 325 P.3d 1154 (2014) ; State v. Backus, 295 Kan. 1003, 1011, 287 P.3d 894 (2012). Duskie bears the burden of showing an abuse of discretion. Laurel, 299 Kan. at 676. Granting a new trial on the basis of newly discovered evidence is not favored, and a motion to do so should be viewed with caution. State v. Smith, 39 Kan.App.2d 64, 67, 176 P.3d 997, rev. denied 286 Kan. 1185 (2008).
A court considers two factors in determining whether a new trial is warranted based on newly discovered evidence: (1) whether the new evidence could not, with reasonable diligence, have been produced at trial; and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial. Backus, 295 Kan. at 1011.
Duskie was aware that Menhusen had given a statement to the authorities. Duskie could have interviewed Menhusen before trial to determine the nature and extent of her testimony. Duskie chose not to do so. Had he done so, he would have realized the need to produce Dean at trial. There is no contention that Dean was unavailable at the time of the trial.
A new, trial is generally not warranted when the newly proffered evidence merely tends to impeach or discredit the testimony of a witness. State v. Rojas–Marceleno, 295 Kan. 525, 540, 285 P.3d 361 (2012) ; State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984). Here, the newly discovered evidence would serve only to impeach Menhusen's testimony.
If the newly discovered evidence tends to impeach the testimony of a witness, the presence or absence of corroborating evidence is a factor to consider in determining whether the newly discovered evidence was of such materiality that it was likely to have produced a different result upon retrial. See Rojas–Marceleno, 295 Kan. at 540 ; State v. Norton, 277 Kan. 432, 441–42, 85 P.3d 686 (2004).
Here, the fact-finder at Duskie's trial was the judge who considered his posttrial motion. The judge observed that “the court does not doubt the integrity or the testimony of Emma Menhusen,” and concluded that there was substantial evidence to support Duskie's conviction independent of Menhusen's testimony, which Duskie claims would have been impeached by Dean. We construe this as a conclusion, in essence, that Dean's testimony was not of such materiality that it would have been likely to produce a different result upon retrial. The State's case against Duskie could have been based exclusively on circumstantial evidence. See State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). This would include the conclusion from the facts educed at trial that Duskie was the driver of the pickup at the time of these offenses, even without Menhusen's testimony.
Affirmed.