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COURT OF APPEALS DECISION DATED AND FILED July 21, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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Appeal No.� |
2010AP2013-CR |
Cir. Ct. No.� 2008CF958 |
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STATE OF WISCONSIN� |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Charles J. Homesley a/k/a Charles J. Mayberry, ��������� Defendant-Appellant. |
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����������� APPEAL from a judgment and an order of the circuit court for Dane County:� Patrick J. Fiedler, Judge.� Affirmed.�
����������� Before Vergeront, P.J., Lundsten and Sherman, JJ. �
�1������� PER CURIAM. Charles J. Homesley appeals from a judgment of conviction for three counts of second-degree sexual assault with threat of force and one count of false imprisonment and the order denying his motion for postconviction relief. �He argues on appeal that he is entitled to a new trial because of newly discovered evidence.� We conclude that Homesley did not establish that he was entitled to a new trial on the basis of newly discovered evidence, and we affirm.
�2������� Homesley was convicted after a jury trial of assaulting a woman named Anne S.� Before he was sentenced, Homesley moved for a new trial based on an affidavit from Anne�s former husband, Robert S., that said Anne had told him that Homesley was going to prison for a crime he did not commit.� At the postconviction hearing, Robert testified that Anne had said that she �would send that nigger to jail,� and that Homesley had done �nothing.� �Robert�s mother, Marilyn S., also testified and said that Robert had phoned her to tell her that Anne had said �I�m going to send this � Nigger up�because he didn�t do it.�� Anne testified at the hearing that she did not make these statements. �Anne and Robert were going through a contentious divorce at the time.
�3������� The circuit court denied the motion. �The court found that Marilyn�s statements were pure hearsay and not credible, that there was no �feasible motive� for Anne to have made such a statement to Robert while they were in a contentious divorce proceeding, and that Anne�s credibility had been fully explored during the trial. �The court further found that evidence supporting the conviction, including Anne�s testimony and the testimony of the nurse who examined her after the assault, was compelling.� The court concluded that it had no doubt that the jury�s verdict would have been the same even if this evidence had been admitted.�
�4������� In order to receive a new trial based on newly discovered evidence:
a defendant must establish by clear and convincing evidence that �(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.� Once those four criteria have been established, the court looks to �whether a reasonable probability exists that a different result would be reached in a trial.� The reasonable probability factor need not be established by clear and convincing evidence, as it contains its own burden of proof.
State v. Edmunds, 2008 WI App 33, �13, 308 Wis. 2d 374, 746 N.W.2d 590 (citations and quoted sources omitted).� If the newly discovered evidence fails to satisfy any one of these five requirements, it is not sufficient to warrant a new trial. �See State v. Kaster, 148 Wis. 2d 789, 801, 436 N.W.2d 891 (Ct. App. 1989). �A motion for a new trial is addressed to the sound discretion of the circuit court and we will not reverse the trial court�s decision unless it erroneously exercised its discretion. �Id.�
�5������� We conclude that Homesley did not establish that he was entitled to a new trial based on newly discovered evidence, but our reasoning differs from that of the circuit court.� See State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679 (Ct. App. 1985); superseded by statute on other grounds by Wis. Stat. � 940.225(7), as recognized in State v. Grunke, 2008 WI 82, �33, 311 Wis. 2d 439, 752 N.W.2d 769.� The circuit court addressed the issue applying the standard for recantation testimony.� See State v. McCallum, 208 Wis. 2d 463, 473-74, 561 N.W.2d 707 (1997).� In so doing, the court noted that the facts of this case did not fit squarely within the recantation framework.� We conclude that this is not a recantation case because a jury at a new trial would not be hearing recantation testimony from Anne.� Anne testified at the postconviction hearing that she did not make the statement Robert claims she made.� At a new trial, the newly discovered evidence would be Robert�s contested testimony that Anne lied.[1]� The issue, therefore, is whether Robert�s testimony would affect the result of a new trial.�
�6������� We conclude that there is no reasonable probability that Robert�s testimony would lead to a different verdict.� It is implausible that Anne would have made the statement Robert claimed she made because Robert and Anne were involved in a contentious divorce and a custody battle for their children.� Robert�s testimony is also implausible because it was based, in part, on his contention that he was not aware of the criminal trial.� Both Robert�s mother and his brother testified at the trial on Homesley�s behalf.� Robert lived with his mother at the time of the trial and Robert�s brother came to stay with their mother when he testified at Homesley�s trial. �Robert�s testimony that he was unaware of the trial is not believable.� Further, the defense attacked Anne�s credibility at trial.� We are not convinced that this additional evidence from Robert attacking her credibility would have affected the jury�s verdict.� We conclude that Homesley did not establish that he was entitled to a new trial based on newly discovered evidence.�
�7������� We also decline Homesley�s request to grant him a new trial in the interests of justice because we are not convinced that justice miscarried in this instance.�
�8������� For the reasons stated, we affirm the judgment and order of the circuit court.
����������� By the Court.�Judgment and order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.
[1] We agree with the circuit court that Marilyn�s statements were hearsay and would not, therefore, be admissible.