Criminal Practice – Motion for Appropriate Relief – New Trial – Newly Discovered Evidence – Drug Possession – Father’s Admission

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State v. Rhodes (Lawyers Weekly No. 12-07-0385, 14 pp.) (Robert N. Hunter Jr., J.) (Wanda G. Bryant, J., concurring in the result only without separate opinion) Appealed from Rockingham County Superior Court. (Richard Stone, J.) N.C. App. Full-text opinion.

Holding: At defendant’s trial for drug possession, defendant’s father “plead the Fifth” when he was asked whether the drugs belonged to him, and defendant’s mother refused to testify against her husband. After defendant was convicted and placed on probation, defendant’s father admitted that the drugs were his. The judge who presided over defendant’s trial and motion for appropriate relief correctly found that the father’s admission was newly discovered evidence warranting a new trial.

We affirm the award of a new trial.

The father made the admission in front of defendant’s probation officer. Without this admission, the evidence of ownership of the drugs was ambiguous as to whether defendant, his father, or both of them owned or possessed the drugs. The probation officer’s testimony regarding the father’s confession is therefore newly discovered evidence.

Moreover, the defense exercised due diligence in attempting to procure this information at trial by calling the father as a witness and specifically asking him whether the drugs in question were his. The father elected to exercise his constitutional right against self-incrimination, prompting the trial court to excuse him as a witness and thus ensuring that defense counsel would have no further opportunity to elicit testimony from him.

It is clear from the trial transcript that defendant’s mother was unwilling to implicate her husband and that any attempt to elicit this information would have been futile.

Even though defense counsel did not ask defendant during his trial testimony whether the drugs belonged to his father, defendant may not have known who possessed the drugs; moreover, we cannot say that  defense counsel’s failure to cast aspersions upon the father to the maximum extent possible equates to a lack of due diligence. We hold the trial court did not err in concluding that defendant established due diligence.

Judge Stone presided over defendant’s trial and was intimately familiar with the circumstances of the case. In addition, Judge Stone took judicial notice of the father’s “history of violating drug laws in the past,” which was information previously revealed during defense counsel’s direct examination of the father at trial. Accordingly, we hold the trial court did not err in concluding that the newly discovered evidence is probably true.

Finally, the jury was not permitted to infer from the father’s exercise of his Fifth

Amendment rights that he owned or possessed the drugs in question. The jury was presented with no evidence other than the circumstances under which the drugs were recovered to determine who owned or possessed them. With this new evidence – the father’s confession — a new jury would now have an affirmative statement that the father alone possessed the drugs. We hold this evidence is sufficient to support the trial court’s conclusion that the newly discovered evidence would probably result in a different outcome at a new trial.