State v. Burns

DWYER, Judge,

dissenting.

I must respectfully dissent from the opinion of my learned colleagues in their reversal of Benjamin Anthony Burns’ convictions for burglary in the second degree and grand larceny on the grounds of newly discovered evidence. My disagreement stems from what, in my opinion, is the majority’s misinterpretation of the applicable standard of appellate review under State v. Goswick, 656 S.W.2d 355 (Tenn.1983). The majority suggests that appellant is entitled to a new trial as a matter of right simply because the three-prong test of Goswick is met. I cannot agree.

A careful reading of Goswick reveals that the three-prong test it enunciates indeed does entitle an appellant, as a matter of right, to a new trial on the grounds of newly discovered evidence where there exists no conflict in the testimony heard by the trial judge. State v. Goswick at 358-359. Here, however, the newly discovered evidence¹ conflicted with the testimony offered at trial by Mr. Worley and Officer Webb of the Knox County Sheriff’s Department. Although Mr. Worley later recanted in his identification of the appellant, the identification and testimony of Officer Webb remained unshaken. In view of the conflicting testimony before the trial court, the majority’s finding that appellant is entitled to a new trial as a matter of right is inappropriate.

As our Supreme Court noted in Goswick, relying upon Taylor v. State, 171 S.W.2d 403, 405 (Tenn.1943), where, as here, there is a conflict in the testimony heard by the trial court, the decision to grant or deny a new trial on the basis of newly discovered evidence is a matter which rests within the sound discretion of the trial court. See also Jones v. State, 519 S.W.2d 398 (Tenn.Crim.App.1974). This standard of appellate review, therefore, is applicable under the facts and circumstances of the instant case. Inasmuch as the trial court found the impeaching testimony of the inmates to be incredible, it is not for this Court to substitute its judgment for that of the trial judge who heard and observed the witnesses. We are obliged to uphold the trial court’s ruling on appeal unless the evidence preponderates against such findings. State v. Mays, 667 S.W.2d 512 (Tenn.Crim.App.1983). In short, I find no abuse of discretion in the trial court’s denial of appellant’s motion.

Consequently, it is my opinion that the majority employed an inappropriate standard of review in finding that the appellant, Benjamin Anthony Burns, is entitled to a new trial, as a matter of right, on the grounds of newly discovered evidence. Accordingly, I dissent from the opinion of the majority and would affirm the judgment of the trial court.

1 . Testimony by three inmates that appellant was not the culprit involved in the indictment offenses.