The State appeals from an order granting Warren Slanaker's motion for a new trial. We affirm.
In January 1988, Warren Slanaker was tried before a jury on multiple counts of first degree robbery and first degree assault. The charges arose from an October 4, 1986, robbery committed by three masked, armed men. None of the robbery victims was able to conclusively identify the robbers.
Slanaker testified at trial. He said that on the night of October 4, he played poker with a group from his apartment complex for 3 to 3 1/2 hours, and then went home with
Slanaker was unable to locate Gift and Warner until after his conviction, and at least 1 year after his arrest. After they were located, each prepared an affidavit stating that she was with Slanaker at the time of the robbery, and explaining why Slanaker could not find her before trial. On the strength of their affidavits, plus the affidavits of two other people who said they played poker with Slanaker on October 4, Slanaker moved for a new trial on newly discovered evidence grounds. The trial court granted Slanaker's motion. The State appealed.
State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981). The grant or denial of a new trial is a matter within the trial court's discretion and will not be disturbed absent a clear abuse of that discretion. E.g., State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221 (1967). "[A] much stronger showing of an abuse of discretion will ordinarily be required to set aside an order granting a new trial than one denying a new trial." State v. Brent, 30 Wn.2d 286, 290, 191 P.2d 682 (1948). Nevertheless, an order granting a new trial will
We first address the State's contention that because Slanaker did not seek a trial continuance in order to obtain additional time to search for Gift and Warner, the order granting a new trial was wrongly entered. The State relies on State v. Jackman, supra, decided after the trial court's ruling, and after both parties' appellate briefs were filed. In Jackman, the court considered whether the posttrial discovery of a witness who disappeared during the 7 weeks between the originally scheduled trial date and the date trial actually commenced, warranted granting a new trial on newly discovered evidence grounds. The Supreme Court held the defendant had failed to exercise due diligence by not seeking a missing witness trial continuance. Jackman, 113 Wn.2d at 781-82.
The State reads Jackman as holding that as a matter of law, failure to request a continuance bars a later request for a new trial on newly discovered evidence grounds when the newly discovered evidence is a missing witness. We note that four members of the Jackman court specifically rejected this interpretation, 113 Wn.2d at 785 (Utter, J., concurring in part, dissenting in part), and question whether the Jackman holding can or should be read so broadly.
When a witness cannot be located for trial, a continuance should not be given absent a showing that "the witness can probably be found if the continuance is granted". State v. Lane, 56 Wn.App. 286, 296, 786 P.2d 277 (1989). An inflexible requirement that a defendant must seek a trial continuance even when there is no likelihood the witness will be found, in order to preserve the opportunity for a new trial, would clog trial courts with meritless requests for
Here, the limited record indicates that there was no likelihood Gift or Warner probably would have been found before trial. Thus, had Slanaker moved for a continuance, his motion most likely would have been denied. It would therefore serve no beneficial purpose to hold that Slanaker's failure to request a continuance prevents him from receiving a new trial. Thus, if we were to reach the merits of the State's contention, we would not find Slanaker's failure to request a continuance to be a basis for reversal.
The trial court's determination that Slanaker exercised due diligence stands.
The State also contends that since Gift and Warner were known to Slanaker before trial, evidence from them cannot be "newly discovered". We disagree.
In State v. Ames, 112 Idaho 144, 730 P.2d 1064 (1986), the court considered the meaning of newly discovered evidence in the context of alibi evidence offered in support of a motion for a new trial. Despite exercising due diligence, defendant was unable to locate a known probable alibi witness until after trial. The court rejected the State's argument that the evidence was not newly discovered, reasoning:
Ames, 112 Idaho at 147; accord, State v. Caldwell, 112 Idaho 748, 751, 735 P.2d 1059, 1062 (1987) ("testimony of a known but unavailable witness will be considered `newly discovered evidence' where reasonably diligent efforts to produce the witness have been unavailing"). Federal courts have reached the same result. In Amos v. United States, 218 F.2d 44 (D.C. Cir.1954), the court impliedly held that a witness who was known but could not be located before trial could provide "newly discovered evidence". Accord, Mejia v. United States, 291 F.2d 198 (9th Cir.1961); see also United States v. Ouimette, 798 F.2d 47 (2d Cir.1986), cert. denied, 488 U.S. 863 (1988).
Next, the State challenges the trial court's findings and conclusions relating to its ruling that the newly discovered evidence was not merely cumulative. It argues that because Slanaker and Hall each testified at trial concerning Slanaker's alibi, any additional evidence concerning that alibi is cumulative and thus does not justify ordering a new trial.
We are aware that despite this traditionally flexible approach, more recent cases have strictly applied the cumulative evidence rule to newly discovered alibi evidence. See, e.g., State v. Fellers, 37 Wn.App. 613, 617, 683 P.2d 209 (1984); State v. Edwards, 23 Wn.App. 893, 898, 600 P.2d 566 (1979). However, these cases are distinguishable from the instant case in two respects: (1) each involved review of a trial court order denying defendant's motion for a new trial; and (2) multiple grounds supported the trial court's determination that the newly discovered alibi evidence did not warrant a new trial.
Here, only Slanaker and his roommate, Hall, gave testimony on Slanaker's alibi defense. During closing arguments the prosecutor impeached their testimony by arguing from the evidence that both men had a motive to lie, whereas the State's witnesses had "no motive, except to tell the truth." In light of the State's approach, Gift's and Warner's apparently impartial alibi testimony could be extremely significant. This consideration, coupled with the wide discretion the trial court has to grant a new trial, compels us to uphold the trial court's ruling. See Amos, 218 F.2d at 44
The order granting a new trial is affirmed.
PEKELIS and BAKER, JJ., concur.
Review denied at 115 Wn.2d 1031 (1990).
"On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
"(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.6".