State v. Vorgvongsa , 1996 R.I. LEXIS 38 ( 1996 )

MURRAY, Justice,

dissenting.

I respectfully dissent. I would affirm the trial justice’s decision in granting the defendant’s motion for a new trial. As with the majority, I too accept the trial justice’s findings of credibility, but I do not believe that the trial justice abused his discretion. I do not find that the trial justice’s decision was clearly wrong or that he misconceived or overlooked a material fact.

This court has clearly delineated the function of a trial justice when considering a motion for a new trial. When deciding a motion for a new trial, the trial justice begins by undertaking a three-step analysis while placing himself or herself in the role of a “thirteenth juror,” exercising “independent judgment on the credibility of witnesses and on the weight of the evidence.” See State v. Banach, 648 A.2d 1363, 1367 (R.I.1994). See also State v. Marini, 638 A.2d 507, 515 (R.I.1994). In the first analysis, the trial justice must consider the evidence in the light of the charge to the jury, which is presumed to be correct and fair to the defendant. Banach, 648 A.2d at 1367. In the second analysis, “the trial justice must determine his or her own opinion of the evidence.” Id. The trial justice must then weigh the credibility of the witnesses and other evidence, accepting or rejecting conflicting testimony. Id. In the third analysis, “the trial justice must determine, by an individual assessment of the evidence and in light of the charge to the jury, whether the justice would have reached a different result from that of the jury.” Id. If the justice’s conclusion is in accord with the jury’s verdict, then a motion for a new trial should be denied. Id. A new trial must be denied “if the trial justice finds that the evidence is balanced or reasonable minds could differ.” State v. Dame, 560 A.2d 330, 333 (R.I.1989).

However, a new trial may be granted if the trial justice determines that he or she would have reached a different result from that of the jury and “if it is specifically found that the verdict is against the fair preponderance of the evidence and fails to do substantial justice.” Dame, 560 A.2d at 333. For this analysis the trial justice takes on “the role of a super juror because of his or her more experienced judgment.” See State v. Girouard, 561 A.2d 882, 890 (R.I.1989).

It is well settled that a trial justice’s ruling on a motion for a new trial is entitled to great weight and will not be disturbed unless we find that he or she has misconceived or overlooked material evidence or was otherwise clearly wrong. See Dame, 560 A.2d at 332-33; Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436, 444 (R.I.1984); Fox v. Allstate Insurance Co., 425 A.2d 903, 907 (R.I.1981). Although the trial justice must offer a sufficient rationale for his or her decision, he or she “need not refer to all the evidence supporting the decision but need only cite evidence sufficient to allow [the reviewing] court to discern whether the justice has applied the appropriate standards.” Banach, 648 A.2d at 1367. This task can be accomplished by placing, in the record one or two sentences giving his or her reasoning on each point of the analysis. Id. Moreover, “the moving party bears the burden of convincing [the reviewing] court that the trial justice did not conscientiously apply these standards.” Id.

After a careful review of the record before us, I conclude that the trial justice in the instant case engaged in a complete and proper analysis while fillfilling his role as the thirteenth juror. The record clearly reflects the trial justice’s reasoning regarding each point of the applicable analysis under Banach. The trial justice initially found that there were only three witnesses who were able to provide any testimony regarding defendant’s guilt: Keophilivanh, Thongsvath, and St. Louis. After an independent assessment of each of these witnesses, the trial justice found that the only credible witness was St. Louis. Specifically, in reviewing Keophilivanh’s testimony, the trial court found him to be

“a totally incredible witness. He was evasive in his answers. He tried to tailor his answers to what he perceived and what he thought the verdict should be. He had prior inconsistent statements and his explanation and recitation of what happened at the reservoir * * * is totally unbelievable.”

The court similarly found the witness Thong-svath to be incredible, stating:

“It was apparent to this Court, in reviewing [his testimony] and exercising my independent judgment, that [Thongsvath] was merely reciting what someone told him. He used a name that he was given by someone else. He didn’t know the defendant. He couldn’t even identify this defendant. I find that his testimony should not be given any weight. He merely, in this Court’s opinion, recited what someone else told him and he didn’t have those facts very accurately.”

Finally, the trial justice considered St. Louis’s testimony and found her to be the only credible witness:

“I find that Annette St. Louis was an extremely credible witness. Her demean- or on the stand was, in this Court’s opinion, good. She answered questions as forthright as possible, considering the time lapse. She acknowledged when she didn’t know answers or was not sure of answers.”

The trial justice next determined, by an individual assessment of the evidence and in light of the charge to the jury, that he would have reached a different result from that of the jury. In support of his findings, the trial justice noted that although St. Louis was a credible witness, she “did not see th[e] defendant run from the house, and she did not, while she did say she saw this defendant with a weapon in his hand, she did not see the defendant go down the stairs and allegedly chase the victim, who’s referred to as [Phom-machanh] during the course of this trial.” He then reiterated his charge to the jury and indicated that “when discussing beyond a reasonable doubt * * * mere suspicion, however strong, will never sustain a verdict of guilty.” The trial justice thereafter concluded that “in exercising my independent judgment and by a fair preponderance of the evidence * * * substantial justice was not done by the verdict of this jury.”

Upon review of the record, I do not find that the trial justice was clearly wrong in his conclusion. First, it is noteworthy that St. Louis does not understand Laotion and therefore could not understand much of the altercation between Phommachanh and Leu-thavone since they were speaking in that language. Second, it is significant that the jury was confused about St. Louis’s testimony and requested that the trial court “re-treive the part of Annette St. Louis’s testimony that states at which point she left the apartment after she heard the shots fired.” In these circumstances, where the only credible witness was St. Louis, it cannot be said that the trial justice was clearly wrong in concluding that the jury verdict was against the fair preponderance of the evidence and failed to do substantial justice.

Clearly the trial justice performed all the procedural analyses required of him in granting defendant’s motion for a new trial. The state nevertheless challenges the trial justice’s determination of the credibility of witnesses and his decision to grant the motion for a new trial. We have noted on numerous occasions that it is the trial justice who is in the unique position to assess the credibility of witnesses. See Banach, 648 A.2d at 1368 (“it is the task of the trial justice to determine whether the evidence presented is sufficiently credible to warrant a new trial”); Vitullo v. Ambrosino, 78 R.I. 354, 357, 82 A.2d 404, 406 (1951) (“[t]he trial justice who saw and heard [the witnesses] testify is in a much better position than this court to determine [the issue of credibility]”); Kiernan v. Brennan, 73 R.I. 229, 231, 53 A.2d 926, 927 (1947) (“[t]he trial justice had the opportunity of seeing and hearing the witnesses while testifying, an advantage that we do not have and which is of great importance in the determination of issues of fact upon conflicting testimony from interested witnesses”). As the Supreme Court stated in Anderson v. City of Bessemer, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518, 529 (1985), “[0]nly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Because the trial justice is able to hear testimony live and to view witnesses as they testify, his or her findings on the issue of credibility are entitled to great deference on appeal. The trial justice’s findings on credibility are therefore conclusive unless an examination of the record discloses that the “decision was clearly wrong or unless the trial justice, in reviewing the evidence, overlooked or misconceived relevant and material evidence.” Banach, 648 A.2d at 1368 (quoting Fontaine v. State, 602 A.2d 521, 525 (R.I.1992)); see also Rodrigues v. Santos, 466 A.2d 306, 312 (R.I.1983).

In the present ease it cannot be said that the trial justice overlooked or misconceived material evidence relating to a critical issue or that his findings on credibility were clearly wrong. The trial justice had the opportunity to assess the credibility of the witnesses, to observe the witnesses as they testified, and to determine the weight to be given to their testimony. In concluding that Annette St. Louis was the only credible witness and that the testimony at trial could not support a jury verdict of guilty, the trial justice merely “believed one set of facts and disbelieved the other” and made “sound credibility findings by assessing the facts and the totality of the circumstances before him.” Banach, 648 A.2d at 1368 (quoting Fontaine, 602 A.2d at 526).

Upon reviewing the record as a whole, I am persuaded that the trial justice clearly articulated his reasoning regarding each step of the required analysis when deciding a motion for a new trial in the instant case. In accordance with our settled rule that we do not disturb a trial justice’s findings of credibility and his or her conclusions, I find that the evidence adduced at trial, which the trial justice heard and assessed with particularity, supports his decision that the defendant be granted a new trial. Because I do not believe that the trial justice abused his discretion, I would affirm the trial justice’s granting of the defendant’s motion for a new trial.