Drake v. State

Hill, Presiding Justice,

concurring specially.

I write to explain my inability to agree with either the majority opinion or the concurring opinion.

First, to put this case in perspective, it should be noted that here the trial judge heard the extraordinary motion for new trial on its merits. Thus, the pleading requirements of Dick v. State, 248 Ga. 898 (1982), post, are not involved here.

Second, after hearing Campbell’s testimony offered in support of the extraordinary motion, the trial judge denied the motion. The majority opinion points out that there is serious doubt as to the credibility of Campbell’s testimony at the hearing. The majority opinion then proceeds to find that the trial judge did not abuse his discretion in overruling the extraordinary motion. I agree with the majority opinion in so finding.

The specially concurring opinion contends that the majority should not have reached the questions of credibility and discretion but should have concluded when it found that “ ‘a new trial will not be granted if the only effect of the evidence will be to impeach the credit of the witness’ and ‘a post-trial declaration by a State’s witness that his former testimony was false is not ground for a new trial.’ ” With this contention in the specially concurring opinion I cannot agree, and its inclusion in the majority opinion causes me to be unable to adopt that opinion.

It is correct that “a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness” (emphasis supplied), such as a “newly discovered” witness who says “I wouldn’t believe the state’s witness under oath.” However, when the state’s eyewitness recants his trial testimony, the effect is not “only” to impeach his credibility; it casts doubt on the proof used to convict and the correctness of the guilty verdict. Therefore, in my view (and from the majority’s reliance on Campbell’s credibility and the trial judge’s discretion, I assume in their view) the trial judge was correct in conducting the hearing so as to hear Campbell’s testimony, rather than refusing to hear the matter on the ground that “a post-trial declaration by a State’s witness that his former testimony was false is not ground for a new trial.”

This statement as to post-trial declarations of the state’s witnesses is necessarily wrong. Assume that in a trial for rape the victim testified that the defendant entered her home, threw her on the bed, raped her, and fled as her husband returned home. The husband testified he saw the defendant fleeing from the house as he arrived. The defendant claimed consent but the jury found him guilty. After conviction and appeal, the state’s key witness (the victim) says under oath that she was not raped, that she had been having an affair with the defendant, that the defendant fled when they heard her husband approaching, and that she concocted the rape story to cover up the affair she was having with the defendant. Would a court hold that “a post-trial declaration by a state’s witness that her former testimony was false is not ground for a new trial”? Would a court hold that a trial judge who granted an extraordinary motion for new trial in such a case was without authority to do so? I doubt it.

In the case before us, I agree that it has not been shown that the trial judge, after hearing Campbell’s testimony, abused his discretion in denying the extraordinary motion for new trial. I therefore concur in the judgment.