Criminal Practice – Newly Discovered Evidence – Due Diligence – Ownership of Contraband

State v. Rhodes (Lawyers Weekly No. 13-06-0602, 9 pp.) (Mark Martin, J.) (Barbara Jackson & Cheri Beasley, JJ., not participating) Appealed from Rockingham County Superior Court (Richard W. Stone, J.) On discretionary review from the Court of Appeals. N.C. S. Ct.

Holding: At defendant’s drug possession trial, his father testified that the drugs did not belong to defendant, but he refused to say whether the drugs were his own. The father’s out-of-court statement that the drugs belonged to him was not newly discovered evidence within the meaning of G.S. § 15A-1415(c).

We reverse the award of a new trial.

When the information presented by the purported newly discovered evidence was known or available to the defendant at the time of trial, the evidence does not meet the requirements of § 15A-1415(c).

Defendant’s father invoked the Fifth Amendment at defendant’s trial when asked whether the contraband belonged to him. After defendant was convicted, the father made an out-of-court statement that the drugs belonged to him. He did not testify at defendant’s hearing on the motion for appropriate relief.

The warrant executed by the officers named both defendant and the father. The house searched was owned by defendant’s parents. The father had a history of violating drug laws.

Even though the father invoked the Fifth Amendment at trial, the information implicating him as the sole possessor of the drugs could have been made available by other means. On the direct examination of defendant’s mother, defendant did not pursue a line of questioning about whether the drugs belonged to the father. In addition, though defendant testified at trial, he gave no testimony regarding the ownership of the drugs.

The trial court erred in concluding as a matter of law that “due diligence was used and proper means were employed to procure the testimony at the trial.” The purported newly discovered evidence was not evidence “which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time.” § 15A-1415(c).

Reversed.