An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-569


Filed: 6 May 2003


v .                         Brunswick County
                            No. 00 CRS 56300

    Appeal by defendant from judgment entered 5 December 2001 by Judge Jerry Cash Martin in Brunswick County Superior Court. Heard in the Court of Appeals 12 February 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

    George B. Currin, for defendant-appellant.

    CALABRIA, Judge.

    On 20 September 2000, Joel Pezzuto (“defendant”) was arrested for driving while impaired in violation of N.C. Gen. Stat. § 20- 138.1 (2001). He was subsequently convicted of the crime on 5 December 2001. Defendant appealed, and this appeal is still pending. On 3 February 2003, defendant filed a motion for appropriate relief with this Court. On 14 April 2003, the State timely filed its response to defendant's motion. Since we find merit to defendant's motion, and hold a new trial is necessary, we need not reach the issues raised by defendant in his appeal.
    A motion for appropriate relief is a motion in the original cause and may be brought before the Court of Appeals if the case isthen pending before this Court. N.C. Gen. Stat. §§ 15A-1411, -1418 (2001). The appellate court, faced with a motion for appropriate relief, “must decide whether the motion may be determined on the basis of the materials before it, or whether it is necessary to remand the case to the trial division for taking evidence or conducting other proceedings.” N.C. Gen. Stat. § 15A-1418(b). “If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its ruling on the motion with its determination of the case.” Id.
    In his motion, defendant asserts he is entitled to a new trial because evidence has come to light, post appeal, that Deputy Sammy Turner (“Turner”), one of two witnesses for the State, did not tell “the truth, the whole truth, and nothing but the truth” and, therefore, perjured himself. In support, defendant supplied the Court with a transcript of Turner's testimony and a transcript of the 911 recordings from the afternoon in question. At trial, defendant and Turner told vastly different stories of the events of the afternoon of 20 September 2000. The 911 transcript calls into question Turner's credibility and corroborates some of defendant's testimony.
    Defendant testified that at approximately 1 p.m. he “went through a big puddle. . . [and] [m]y car was sputtering and I couldn't get it to run evenly” and so he pulled into the parking lot in which he was later arrested. He “played with the ignition” without success and called his mechanic. Defendant testified hespent the afternoon talking to friends in the area, since he had previously run a business there. Defendant's mechanic corroborated his testimony.
    Turner testified that “in the late afternoon” on 20 September 2000, he was responding to a 911 call when he spotted defendant “blow” through a stop sign. Turner pulled defendant over, and upon approaching the vehicle immediately “noticed a strong odor of alcohol.” Thereafter, Turner contacted State Highway Patrol and Trooper Roy L. Murray later arrived and took defendant into custody.
    The 911 transcript reveals that beginning at approximately 4 p.m., Turner worked closely with another officer for over forty minutes staking out defendant. When the accompanying officer informed Turner “the subject is pulling out of the parking lot at this time[,]” Turner immediately responded, “10-4. I'm getting ready to intercept same now.” Thereafter, the other officer requested State Highway Patrol's assistance stating “we got him pulled.”
    We find the foregoing evidence is sufficient to reach the merits of the motion and we see no reason to remand to the trial court for the taking of additional evidence.
    A motion for appropriate relief may only be based upon the grounds set forth in N.C. Gen. Stat. § 15A-1415. In pertinent part, this statute provides:
        a defendant at any time after verdict may by a motion for appropriate relief, raise the ground that evidence is available which was unknown or unavailable to the defendant at thetime of trial, which could not with due diligence have been discovered or made available at that time, including recanted testimony, and which has a direct and material bearing upon the defendant's eligibility for the death penalty or the defendant's guilt or innocence.

N.C. Gen. Stat. § 15A-1415(c)(2001). This section provides two bases for relief, newly discovered evidence and recanted testimony.
        There is a difference between recanted testimony and newly discovered evidence. Newly discovered evidence is evidence which was in existence but not known to a party at the time of trial. Recanted testimony is testimony which has been repudiated by a party who gave it. Recanted testimony is not evidence which existed at the time of trial because the recanting witness would not have testified to it at trial. A motion for a new trial on the basis of recanted testimony is for the purpose of removing testimony from a jury. A motion for a new trial based on newly discovered evidence is for the purpose of putting new evidence before a jury.

State v. Nickerson, 320 N.C. 603, 609, 359 S.E.2d 760, 763 (1987). The present case concerns newly discovered evidence.
        Our usual standard for evaluating motions for a new trial on the grounds of newly discovered evidence requires a defendant to establish seven prerequisites:

        1. That the witness or witnesses will give newly discovered evidence.

        2. That such newly discovered evidence is probably true.

        3. That it is competent, material and relevant.

        4. That due diligence was used and proper means were employed to procure the testimony at the trial.

        5. That the newly discovered evidence is not merely cumulative.
        6. That it does not tend only to contradict a former witness or to impeach or discredit him.

        7. That it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail.
State v. Britt, 320 N.C. 705, 712-13, 360 S.E.2d 660, 664 (1987).     In the case at bar, requirements (1)-(3) and (5) are undisputed, therefore our analysis need only address (4), due diligence, (6), the value of the new evidence and (7), the prejudicial effect.
    Due diligence is defined as “[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.” Black's Law Dictionary 468 (7th ed. 1999). In the present case, defendant's trial counsel obtained summaries of the 911 tapes. We cannot say that his failure to obtain the tapes, have them transcribed, and then have the Brunswick County Emergency Services assign time stamps to the statements, as done by appellate counsel, violated due diligence. We hold that obtaining the summaries satisfied trial counsel's obligation to perform due diligence.
    Next, we consider the value of the new evidence. The main effect of the new evidence is that it tends to discredit Turner. However, the evidence also supports defendant's testimony that he was parked in the vicinity all afternoon. Since the new evidence “does not tend only to contradict a former witness or to impeach or discredit him[,]” defendant has properly established thisprerequisite. Britt, 320 N.C. at 713, 360 S.E.2d at 664 (emphasis added).
    Finally, we consider the effect of this new evidence. Turner was one of two witnesses upon which the State rested its case. The other witness was the officer from State Highway Patrol who arrived after the disputed events to accept custody of defendant. Turner's credibility goes to the essence of the State's case, and we find it manifest that this new evidence is “of such a nature as to show that on another trial a different result will probably be reached.” Accordingly, we find defendant has properly established the prerequisites delineated in Britt.
    The appropriate relief in this case is a new trial, and it is so ordered.
    New trial.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

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