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Denial of new trial based on newly discovered evidence affirmed

State v. Mark G. McCaskill, 2017AP2443-CR, 6/14/18, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Police found McCaskill unconscious, smelling of alcohol, and without a shirt or shoes in the driver’s seat of a car parked by a residence. Blood tests showed a .263 BAC. He was convicted of operating with a PAC, 4th offense. He moved for a new trial based on newly-discovered evidence. Though he recalled nothing, a friend who lived less than a mile from where he was parked would testify that he visited her that night and that he was not intoxicated.

To get a new trial based on newly-discovered evidence, the defendant has to prove: (1) the evidence was discovered after conviction, (2) he wasn’t negligent in seeking the evidence, (3) the evidence was material to an issue in the case, and (4) the evidence wasn’t cumulative. If those 4 criteria are met, then the circuity court must determine whether there is a reasonable probability that a different result would be reached on retrial. Opinion ¶7 (citing State v. Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407, 826 N.W.2d 6)).

The court of appeals held that even if McCaskill had met the first 4 requirements, he failed to prove a reasonable probability that the jury would have found him not guilty had it heard the friend’s testimony. That’s because she was not actually able to say whether McCaskill was intoxicated when he arrived at her house. While she could explain what he did between 10:15 and 10:50 p.m. that night, she did not know how he left or how he came to be found in the vehicle parked 3/4 of a mile away at 11:30 p.m. So her testimony did not support his theory that he walked barefoot and highly intoxicated from her house to his car and passed out in the driver’s seat with the headlights on. Opinion ¶11.

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