Suddent recollection of new evidence by witness not so decisive to warrant new trial: COM. V. HARRIS (SC 4/24/2008)

COM. V. HARRIS
CRIMINAL:  CR 60.02
2006-SC-000040-DG.pdf NO. 81
PUBLISHED: AFFIRMING IN PART, AND REVERSING IN PART
OPINION BY CUNNINGHAM
CASEY COUNTY
DATE RENDERED: 5/22/2008

SC reversed that portion of the decision of the Court of Appeals which concluded that the trial court erred in denying the CR 60.02 motion, and reinstated the judgment of the Casey Circuit Court. SC affirmed the Court of Appeals’ denial of the RCr 11 .42 motion. In order for newly discovered evidence to support a motion for new trial it must be of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted. While Holt’s sudden recollection at Luttrell’s trial is curious, we do not believe that it would have changed the outcome of Harris’ trial . When Holt’s testimony at Luttrell’s trial is read in its entirety, it is abundantly clear that Holt recants only his implication of Luttrell in the cocaine transaction. Nothing in his testimony at Luttrell’s trial can be construed as exonerating Harris or denouncing Harris’ involvement in the robbery. SC could discern no reasonable certainty that the outcome of Harris’ trial would be different, even if it were revealed that Holt had lied about Luttrell’s involvement.

Digested by Scott Byrd, Olgin and Byrd Attorneys

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