Whitmore v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

DALLY, Commissioner.

On motion for rehearing we have reconsidered the appellant’s contention that he was deprived of a constitutional right to the testimony of a co-defendant who was acquitted after the appellant’s conviction.

James E. Whitmore and Harrell Totty were indicted for the murder of Judy Carol Rummel. It was alleged that the appellant, for remuneration and the promise of remuneration, hired Totty to kill the deceased. A severance was requested and granted. Appellant was tried first, although he asked that Totty be tried first, and a jury returned a verdict of guilty of capital murder and assessed punishment at death; judgment was entered on May 30, 1975, and the appellant’s motion for new trial was overruled July 10th.

*895 Harrell Totty, who admitted he shot the deceased, was subsequently tried. The court charged the jury on the law of capital murder, murder, voluntary manslaughter, self-defense, and defense of a third person. On October 4, 1975, the jury returned a verdict of not guilty. On October 8, 1975, the appellant filed a motion for new trial and alleged as grounds newly discovered evidence. Appellant alleged that at the time of his trial he was denied the testimony of Totty, because Totty would have asserted his Fifth Amendment right and refused to testify. It was further alleged that since Totty had been acquitted his testimony was now available. The court overruled appellant’s motion for new trial because it was filed after the time provided for filing such motions. See Art. 40.05, V.A.C.C.P.

At the hearing on the motion for new trial Totty’s attorney testified that the appellant’s attorney had requested that Totty testify at the appellant’s trial. Totty’s attorney stated that he advised appellant’s attorney that Totty would assert his Fifth Amendment right and would not testify at appellant’s trial. At the hearing appellant offered the testimony of Totty at his own trial to show what his testimony would have been if Totty had testified at appellant’s trial. The court admitted a transcript of Totty’s testimony as a bill of exception for the record on appeal.

Totty testified at his own trial that he was a member of the United States Air Force. His general duty was that of a security guard. He had secret clearance and on special occasions had guarded nuclear weapons and the President of the United States. With permission of the Air Force, he worked part-time as a security guard at the apartment complex where he and his family lived. While working as a security guard at the apartments he became acquainted with the appellant and his former girl friend, Judy Rummel, the deceased. The first time he saw the deceased he pulled her off the appellant because she was sitting on him and beating him with her fists. Totty testified that on another occasion the deceased was arrested by the police for breaking appellant’s window. He had numerous complaints about both the deceased and the appellant and tried to get the manager to have the appellant evicted from the apartments. On another occasion he saw the deceased with her car try to run over the appellant and a girl friend. Because of all this trouble, the apartment manager instructed Totty that under no circumstances was the deceased to be allowed to be at the apartments and that he should check on appellant’s apartment at least every hour.

Totty testified that on the night of the shooting he was making his rounds checking the apartments. He knocked on appellant’s door and was told to come in. Appellant’s door was unlocked and he did not see the deceased. Appellant was sitting on his couch. Totty asked to use the restroom and checked the back room to make sure the deceased was not present, because he remembered that he had not been checking appellant’s apartment as he had been instructed to do. When he was coming out of the bedroom from using the restroom he heard the appellant shout, “Help, help. She’s going to kill me.” The deceased was about an arm’s length from the appellant with a knife in her hand. He stated that deceased appeared crazed and out of her mind and that he was afraid for appellant’s life and his own. He drew his gun and shot the deceased. He stated that when he shot her he was too far away to physically stop her and that he was afraid, if he did not shoot, she would attack him and would have killed the appellant. Totty further testified that he had not agreed to kill or discussed killing Judy Rummel with appellant; that he had not received any money or the promise of anything from Whitmore or anyone else to kill her. He stated that he was sorry that the killing occurred but that there was no way he could have avoided it.

A trial court has considerable discretion in granting or denying a new trial in which newly discovered evidence may be admitted. To show that the court abused its discretion by not granting a new trial, *896 the record must reflect that: (1) the newly discovered evidence was unknown to the movant at the time of his trial; (2) the movant’s failure to discover the evidence was not due to his want of diligence; (3) the materiality of the evidence is such as would probably bring about a different result on another trial; and (4) the evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching. Hernandez v. State, 507 S.W.2d 209 (Tex.Cr.App.1974); Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975); Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974).

The testimony of Harrell Totty was known to the appellant before his trial and is not in the usual meaning of the words newly discovered; however, it was newly available evidence. A defendant may not call as a witness a co-defendant who has indicated he will assert his privilege against self-incrimination under the Fifth Amendment of the United States Constitution. Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974); Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972); Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975); United States v. Roberts, 503 F.2d 598 (9th Cir. 1974) cert. denied 419 U.S. 1113 , 95 S.Ct. 791 , 42 L.Ed.2d 811 (1975); United States v. McKinney, 453 F.2d 1221 (9th Cir. 1972). However, after the witness has been convicted or acquitted that witness’ testimony then becomes available. United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967). See Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969); Franco v. State, 491 S.W.2d 890 (Tex.Cr.App.1973); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971). Also, a witness may change his mind and, while represented by counsel, elect to waive that right and testify. Thus, it has been held that the witness then becomes the source of new factual information not otherwise previously available. United States v. Guillette, 404 F.Supp. 1360 (D.C.Conn.1975).

This Court has long recognized that newly available evidence is the same as newly discovered evidence. Under our prior laws, 1 which have been repealed 2 and held unconstitutional, 3 principals, accomplices, or accessories could not testify on behalf of each other. Where two people were jointly or separately indicted for an offense arising from the same incident, and one was tried and convicted, and subsequently the other was tried and acquitted, a new trial was granted the former to enable him to obtain the testimony of the latter, where it appeared that the new evidence which the law had formerly placed beyond his reach was admissible and material to his defense. Branch’s Penal Code, Sec. 762 (2d ed. 1956) which cites numerous cases in support of the rule stated, including, e. g., Lyles v. State, 41 Tex. 172 (Tex.App.1874); Rucker v. State, 7 Tex.App. 549 (1880); Sylvas v. State, 68 Tex.Cr. 117 , 150 S.W. 906 (1912). As this Court stated in Barker v. State, 73 Tex.Crim. 229 , 164 S.W. 383 (1914):

“It is well settled that if, after the defendant is tried and convicted, his co-defendant is tried and acquitted, the testimony of the latter is held to be newly discovered.”

The difference between this situation and that in the case at bar is that in the former the testimony was not available because a statute made the witness incompetent, while in the latter the testimony is unavailable because of the witness’ constitutional rights.

There is no doubt that the testimony of Totty was newly available evidence after the jury at his trial acquitted him. The appellant could not be charged with a want of diligence. Although it was probably unnecessary to do so to preserve error, he attempted to obtain at the time of his trial the testimony of Totty. From our discussion of the testimony of Totty given at his own trial, there is no doubt that his testimony would be admissible and not merely *897 cumulative, corroborative, collateral, or impeaching; and that its materiality was such as would probably bring about a different result on another trial. If appellant had filed his motion for new trial based on newly discovered evidence within the time provided by our Code of Criminal Procedure, we would have held that it was an abuse of discretion to deny appellant a new trial. Therefore, the question is whether an accused’s right to compulsory process under the Sixth Amendment of the United States Constitution and the Texas Constitution is superior and should override a valid provision of our Code of Criminal Procedure.

The Supreme Court of the United States, in the case of Washington v. Texas, 388 U.S. 24 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967), was faced with a conflict between an accused’s right to compulsory process and a state statute which prevented his co-defendant from testifying on behalf of the accused. The Court held that the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment. The Court said:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”

The Court held that Washington was denied his right to compulsory process because the State arbitrarily denied him the right to call a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.

In Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972), the Fifth Circuit relying on Washington v. Texas, supra, stated that “when a state procedural rule comes into conflict with a fundamental constitutional right it is clear that the state rule must yield.” In Braswell , the “rule” was invoked regarding the sequestration of witnesses who intended to testify. A defense witness violated the “rule” by remaining in the courtroom during the presentation of the state’s case. The Court of Appeals reversed and ordered a new trial. The Court discussed at length the excluded testimony which clearly showed that his testimony was crucial to the appellant’s claim of self-defense. While the Court noted that Federal Courts are reluctant to strike down valid procedural rules, the Court held that in these particular and extraordinary circumstances the exclusion of the appellant’s sole corroborating witness denied the appellant his Sixth Amendment right, and rendered his trial fundamentally unfair. 4

At the time of appellant’s trial, the appellant’s constitutional right to compulsory process was in direct conflict with Harrell Totty’s constitutional right against self-incrimination. The weight of authority appears to be that the privilege against self-incrimination is the superior right. Rodriguez v. State, supra; Glasper v. State, supra; United States v. Roberts, supra; United States v. McKinney, supra; cf. Victoria v. State, supra. In order for appellant to receive the full benefit of his constitutional rights we will review this claim as it stood at the time he filed his motion for new trial based on newly available evidence, because at that time the conflict of constitutional rights was no longer present due to Totty’s acquittal.

The case at bar does not present a question of lack of diligence in asserting this *898 constitutional right. The record reflects that appellant’s attorney attempted to have Totty testify at appellant’s trial but that he could not compel Totty to testify. Totty’s testimony was therefore not available until after October 4, 1975. Four days later, on October 8, 1975, appellant filed his motion for new trial based on newly discovered evidence.

We cannot say that the failure to grant appellant a new trial is harmless. As noted earlier, one of the most important factors in determining whether the trial court abused its discretion by failing to grant a new trial based on newly discovered evidence is whether “its materiality was such as would probably bring about a different result on another trial.” Hernandez v. State, supra. Other cases have stated that it must be shown that “the new evidence was probably true, and that such evidence would probably produce a different result at another trial.” Myers v. State, supra.

V.T.C.A. Penal Code, Sec. 19.03 (Capital Murder), states that:

“(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and;

“(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit .the murder for remuneration or the promise of remuneration; * * *”

The appellant was convicted of capital murder and sentenced to death because the jury found that he hired Harrell Totty to kill Judy Rummel. The appellant and Totty were the only persons present at the time Judy Rummel was killed. The jury that convicted the appellant did not hear the testimony of Totty. Totty’s trial was held after appellant’s. At his trial Totty testified in his own behalf. The jury apparently believed Totty’s testimony and acquitted him. Therefore, it is beyond dispute that the appellant was harmed by not being granted a new trial after Totty was acquitted and at a point in time when he could have compelled Totty to testify. 5

The appellant was deprived of the full benefit of his constitutional right to compulsory process guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States. In the circumstances of this case our Code of Criminal Procedure provision governing the time for filing of motions for new trial must yield to the appellant’s superior constitutional rights. Accordingly, the appellant’s motion for new trial that alleged as grounds newly available testimony should have been granted.

Our decision in this case does not overrule the cases stating the general rule that an untimely motion for new trial should not be heard by the trial court. See e. g. Jones v. State, 501 S.W.2d 677 (Tex.Cr.App.1973); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973); Morales v. State, 458 S.W.2d 56 (Tex.Cr.App.1970); Nelson v. State, 464 S.W.2d 834 (Tex.Cr.App.1971); Roberts v. State, 493 S.W.2d 849 (Tex.Cr.App.1973); Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974); Morgan v. State, 519 S.W.2d 449 (Tex.Cr.App.1975); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976). However, in some cases where an accused’s constitutional rights are in conflict with a valid procedural rule of law the procedural rule must yield to the superior constitutional right. Also, in this case, the facts show good cause for a late filing of the motion for new trial. See Article 40.05, V.A.C.C.P. At no time during the statutory period for filing motions for new trial could the appellant have raised the issue presented here, because during that period of time Totty *899 had not been tried and was unavailable as a witness. Even though the motion for new trial was not granted, the careful trial judge undoubtedly recognized the conflict between the accused’s constitutional rights and the statutory provision and permitted appellant’s counsel to perfect the record. Therefore, the appellant here need not be relegated to habeas corpus relief. A constitutional question similar to the one presented here was raised in Jones v. State, supra. However, in that case, the co-defendant, whose testimony Jones alleged he was deprived of, was available to testify at the time of trial because he had already been convicted of the offense in question. Therefore, had Jones exercised diligence, he could have compelled the co-defendant to testify at any time during the trial. Also, Jones could have raised his constitutional question in a timely motion for new trial. Jones still had the right to seek habeas corpus relief when all of the facts could be more fully developed than they were developed in his motion for new trial.

For the reasons stated, appellant’s motion for rehearing is granted, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

. Art. 711, V.A.C.C.P. (1925); Art. 82, V.A.P.C. (1925).

. Art. 36.09, V.A.C.C.P. (1965).

. Washington v. Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967).

. We note that Braswell involved a rule of evidence, while the case at bar concerns a valid statute governing the time for filing motions for new trial; however, neither can be applied so as to deprive an accused of a right secured by the Constitution.

. For a few cases which discuss facts that have been held to show or not show harm because an accused was deprived of the testimony of a witness, see and compare, United States v. Curran, 465 F.2d 260 (7th Cir. 1972); Zerschausky v. Beto, 396 F.2d 356 (5th Cir. 1968) cert. denied 393 U.S. 1004 , 89 S.Ct. 493 , 21 L.Ed.2d 468 ; Ex parte Kirk, 478 S.W.2d 503 (Tex.Cr.App.1972); Ex parte Columbus, 489 S.W.2d 562 (Tex.Cr.App.1973); Ex parte Turner, 542 S.W.2d 187 (Tex.Cr.App.1976).