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COURT OF APPEALS DECISION DATED AND RELEASED May 14, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3545-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Spring Maclin,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed.
SCHUDSON, J.[1] Spring Maclin appeals from a judgment of
conviction, following a jury trial, for battery (party to a crime), contrary to
§§ 940.19(1) and 939.05, Stats. She also appeals from the trial court's
order denying her postconviction motion for a new trial. She argues that the trial court improperly
denied her a new trial based on its determination that an alibi witness was
newly available instead of newly discovered.
This court rejects her argument and affirms.
The victim,
Meranda M., testified that on March 23, 1994, at approximately
2:45-3:00 p.m., Maclin and an unknown female kicked and punched her.
Shelline Magestro, the
receptionist at St. Catherine's Residence for Women where Maclin lived at the
time of the offense, testified that on March 23 Maclin left the residence at
2:30 p.m. with a female and returned at 3:30 p.m.
The victim's mother,
Janice Griffin, testified that after her daughter arrived home injured and
crying, she called St. Catherine's and was told that Maclin was not there.
Officer Al Young, the
investigating officer, testified that he spoke with Meranda M. and Maclin about
the offense. Officer Young testified
that Maclin told him that she had not left St. Catherine's that day and that
Tonya Coleman and Magestro would be able to verify her story. Officer Young also testified that he called
Meranda M. from St. Catherine's and asked her what the assailant had been
wearing at the time of the incident.
Young stated that the description Meranda M. gave (a pink shirt and
black sweats) matched what Maclin was wearing.
Maclin testified that
she had been at her residence the entire day of the assault. She testified that she was in her room when
she received a call from Magestro that she had a male visitor, Quentin
Ferguson, and that she watched television with him from 2:26-3:00 p.m. She stated that she was wearing a pink
t-shirt and white shorts when she met Ferguson. Maclin presented no witnesses to testify regarding her
alibi.
Approximately six months
after her conviction, Maclin brought a motion for a new trial based on the
discovery of the whereabouts of Chantale Littleton, Maclin's roommate on the
day Meranda M. was attacked. According
to Maclin's affidavit, Maclin had been unable to locate Littleton to testify at
trial. Maclin claims that Littleton
would verify that Maclin was at St. Catherine's at the time Meranda M. was
attacked. According to Littleton's
affidavit, she answered the telephone call from Magestro, who said Ferguson was
there to visit Maclin. Her affidavit
also states that Maclin had been wearing clothing that would have been “too
light” for outdoor weather. Finally,
Littleton's affidavit states that Maclin would not have been able to locate her
at the time of trial because she had temporarily left the state, was not listed
in the phone book, and had not provided a forwarding address to Maclin or
Maclin's friends or relatives.
The trial court ruled
that Littleton's testimony in support of Maclin's alibi theory was newly
available but was not newly discovered evidence. The trial court reasoned that Maclin obviously would have been
aware whether Littleton, as her roommate, had been with her on March 23. The trial court also noted that Maclin had
failed to list Littleton on either of her two pre-trial notices of alibi.[2]
A decision whether to
grant a new trial based on newly discovered evidence is governed by the
following five factors:
“(1)
The evidence must have come to the moving party's knowledge after a trial; (2)
the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the
issue; (4) the testimony must not be merely cumulative to the testimony which
was introduced at trial; and (5) it must be reasonably probable that a
different result would be reached on a new trial.”
State
v. Johnson, 181 Wis.2d 470, 489, 510 N.W.2d 811, 817 (Ct. App.
1993) (citations omitted). All five
factors must be met. Id. This court will not reverse a trial court's
denial of a motion for a new trial based on alleged newly discovered evidence
unless the trial court acted outside the proper bounds of its discretion. Id.
The trial court did not
erroneously exercise its discretion in denying Maclin's motion for a new
trial. Evidence that is known to a
defendant but is not available is not newly discovered evidence warranting a
new trial if the evidence later becomes available. See State v. Jackson, 188 Wis.2d 187, 198-199, 525
N.W.2d 739, 745 (Ct. App. 1994) (rejecting defendant's argument that newly
discovered evidence consisted of evidence that defendant was not only aware of
but also able to use). As the trial
court accurately noted, at the time of trial Maclin would have been aware
whether her roommate had been with her on March 23. Therefore, this court concludes that the
trial court did not erroneously exercise its discretion in denying Maclin a new
trial.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] The trial court also concluded that Littleton's testimony would have been cumulative. Because this court concludes that Littleton's proposed testimony was known to Maclin before trial, this court need not address the trial court's “cumulative” ruling. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).