THE STATE OF NEVADA, Appellant, v. LOUIS LEE CROCKETT, Respondent
State v. Crockett
Thompson, C. J., and Batjer, J., concur.
THE STATE OF NEVADA, Appellant, v. LOUIS LEE CROCKETT, Respondent.
THE STATE OF NEVADA, Appellant, v. LOUIS LEE CROCKETT, Respondent.
No. 5466
September 9, 1968
444 P.2d 896
Harvey Dickerson, Attorney General, and George E. Franklin, Jr., District Attorney, Clark County, for Appellant.
William S. Barker and Oscar B. Goodman, of Las Vegas, for Respondent.
OPINION
By the Court,
Zenoff, J.:
Louis Crockett was convicted of murdering Curtis Wheeler and sentenced to death. After the trial one Floyd Hamlet revealed himself to Crockett's attorneys as the person seen leaving the murder site with a shotgun, not Crockett, as a witness had testified. On Hamlet's statements Crockett's motion for a new trial was granted by the trial court from which the state appeals on the ground that the evidence did not meet the standards of NRS 175.535, subsection 7, and that thus the trial court's decision was an abuse of discretion. State v. Bauer, 34 Nev. 305, 122 P. 76 (1912); People v. Robarge, 262 P.2d 14 (Cal. 1953); State v. Huson, 440 P.2d 192, 199 (Wash. 1968).
Prior to Crockett's trial Hamlet was in jail awaiting trial on other felony charges. Hamlet, Crockett, Wheeler and others who were involved in the Wheeler case were all part of a vast network of narcotics traffic in the Las Vegas area. Wheeler's death was attributed to his performances as a police informer. The defense attorneys were aware of Hamlet, but not of his involvement with the Wheeler shooting although they had some indications that he might know something about it. They had been denied an interview with him in his cell by his attorney, and although the district attorney made a taped police interview with Clifford Epperson available to them, they said it was too unintelligible to be of substantial assistance. The recording allegedly referred to the Wheeler murder and named some people who were involved. Hamlet was not listed by the district attorney as a prosecution witness for Crockett's trial but apparently an assumption was drawn that he would be still in jail and available for the trial anyway. Instead, the district attorney secured Hamlet's release on his own recognizance in exchange for his promise to be a narcotics informer. Once out of jail he left the jurisdiction, and despite efforts of the police and the defense, could not be located for the trial. Subsequently Hamlet was located by the authorities and he made his evidence known.
Reviewing NRS 175.535(7) and this court's decision in Pacheco v. State, 81 Nev. 639, 408 P.2d 715 (1965), we find that the trial court did not abuse its discretion in granting Crockett a new trial. Crockett's defense was that he wasn't there when Wheeler was shot. Several witnesses supported that contention but obviously the jury did not believe them. It was Hamlet's testimony that it was he, not Crockett, who was at the crime scene. Thus the guilt or innocence of Crockett might well turn on that evidence.
When Hamlet finally did tell what he knew about the killing he named Cy Lee as the killer, that he, Hamlet, tried to stop Lee from shooting Wheeler. Such involvement implicates himself as well as Lee. Identifying the real killer as someone other than the defendant is not only material to Crockett's defense but establishes a real possibility of a different result on retrial. Furthermore, when we reviewed the statute's requirement of diligence in obtaining the newly discovered evidence no more should be expected of Crockett to locate Hamlet than the police for neither the police nor Crockett were able to find him.
Scrutinizing the record as we must do, State v. Stanley, 4 Nev. 71 (1868), and State v. Orr, 34 Nev. 297, 122 P. 73 (1912), Hamlet's contradiction of the witness Bingham who said that he recognized Crockett running from the scene of the crime is not one of mere impeachment, but goes to the essence of Crockett's guilt or innocence. In his function the trial judge properly evaluated the record and decided that a new trial was required. People v. Robarge, supra. We agree. The exercise by the trial court of the right to grant a new trial will be presumed correct and proper by the appellate court until the contrary is shown by the appellant. State v. Stanley, supra; State v. Orr, supra, at 301.
Where, as here, identity is a crucial issue and the evaluation of testimony by the jury relating to it is prevented due process is denied. Lee v. United States, 388 F.2d 737 (9th Cir. 1968). The judgment of the trial court will not be disturbed when the judge has exercised his discretion following careful examination and analysis as demonstrated in this case.
Credibility is not the test of the motion for new trial, instead the trial judge must review the circumstances in their entire light, then decide whether the new evidence will probably change the result of the trial. To allow the semantic distinction between might and probably to send Crockett into the gas chamber would be as unjustified as the killing of the victim. Applying Pacheco, supra, is as much our function as that of the trial court. Beyond question if the jury believes Hamlet, a different result, acquittal of Crockett, must follow. The trial court properly assessed its function.
Affirmed.
Thompson, C. J., and Batjer, J., concur.
NRS 175.535(7). "When new evidence shall have been discovered material to the defendant and which he could not, with reasonable diligence, have discovered and procured at the trial. When a motion for a new trial is made upon the grounds of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and, if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable."
Tn Harrison v. United States, filed June 10, 1968, No. 976, if Hamlet refused to testify at the retrial his testimony from this proceeding could be used as evidence.