                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #051


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 15th day of October, 2014, are as follows:




BY CLARK, J.:


2013-K -1412      STATE OF LOUISIANA v. QUINCY MCKINNIES, JR. (Parish of Jefferson)
                  (Aggravated Assault on a Peace Officer With a Firearm)

                  For the foregoing reasons, the trial court ruling granting a new
                  trial is reversed and vacated and the jury’s verdict is
                  reinstated.   This matter is remanded to the trial court for
                  sentencing of the defendant.
                  REVERSED AND REMANDED.

                  JOHNSON, C.J., dissents and assigns reasons.
                  VICTORY, J., concurs.
                  HUGHES, J., dissents.
10/15/14

                            SUPREME COURT OF LOUISIANA

                                        NO. 2013-K-1412

                                    STATE OF LOUISIANA

                                              VERSUS

                                  QUINCY MCKINNIES, JR.

             ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                   FIFTH CIRCUIT, PARISH OF JEFFERSON


CLARK, Justice

        After conviction, the defendant moved for a new trial on the basis of newly

discovered evidence. The state challenged the claim presented on both procedural

and substantive grounds. No evidence was submitted at the hearing on the motion.

Nevertheless, the trial court granted the defendant a new trial on the grounds that

the verdict was contrary to the law and evidence and the ends of justice would be

served by ordering a new trial. In a split-panel decision, the court of appeal

affirmed, finding no abuse of the trial court’s discretion in granting the defendant’s

motion. We disagree. We find the defendant failed to show a valid ground for

new trial and hold that the trial court abused its discretion by granting the

defendant’s motion. The court of appeal erred in affirming the district court’s

decision. For these legal errors, we reverse and remand.

                         FACTS AND PROCEDURAL HISTORY

        The defendant, Quincy McKinnies, Jr., 1 was charged by bill of information

with aggravated assault on a peace officer with a firearm, a violation of La. R.S.

14:37.2.2      At trial, Officer Ryan Mekdessie of the Gretna Police Department

1
  The record contains two different spellings of the defendant’s given name-Quincy and Quincey. The
prosecution and the defense have used both spellings in their briefs and motions throughout the trial and
appellate record. This opinion uses the spelling found in the bill of information and in the court of
appeal’s opinion.
2
    La. R.S. 14:37.2(A) provides: “Aggravated assault upon a peace officer with a firearm is an assault
                                                   1
testified McKinnies abandoned a car in which he had been fleeing from police and

pointed a handgun at him, as the officer, who had been following McKinnies,

prepared to give chase. After McKinnies ran away, Officer Mekdessie followed,

assisted by his K-9 partner. While other officers set up a perimeter around the area

in hopes of capturing McKinnies, Officer Mekdessie and his dog discovered the

defendant hiding in a dark, vacant lot behind a tree. When McKinnies would not

come out from behind the tree despite repeated requests by the officer to do so,

Officer Mekdessie sent his dog forward on a 15-foot leash. Seeing McKinnies

reach into his waistband and fearing for his life and that of his dog, Officer

Mekdessie shot at McKinnies after several times ordering the defendant to “show

his hands.” McKinnies was shot in the confrontation, suffering a graze wound to

his abdomen and hip. Officer Mekdessie’s dog also sustained a gunshot wound.

        The officer’s testimony was partially corroborated by other witnesses.

Detective Ashton Gibbs, also of the Gretna Police Department, observed a

handgun in plain view in the vehicle defendant was driving before the foot chase

with Officer Mekdessie began. Detective Gibbs and Gretna Police Sergeant Tris

Lear, who were standing on the perimeter set up by police, out of sight of the

defendant and Officer Mekdessie, both heard the officer ordering the defendant to

show his hands several times before they heard gunshots.

        The defendant testified at trial and admitted he ran from police.                              But

McKinnies said the police started shooting at him without saying anything. He

testified the police approached him after he was shot, placed him in handcuffs and

started to beat him, knocking out all his teeth on one side of his mouth. McKinnies

committed upon a peace officer who is acting in the course and scope of his duties with a firearm.” A
firearm is defined for these purposes as “an instrument used in the propulsion of shot, shell, or bullets by
the action of gunpowder exploded within it.” La. R.S. 14:37.2(B). The penalty for this crime is a fine of
not more than five thousand dollars, or imprisonment for not less than one year nor more than ten years,
with or without hard labor, or both. La. R.S. 14:13.2(C). An assault is committed when a defendant
intentionally places another in reasonable apprehension of receiving a battery, or an attempt to commit a
battery. La. R.S. 14:36. The intentional use of force or violence upon the person of another constitutes a
battery. La. R.S. 14:33.


                                                     2
denied ever pointing a weapon at a police officer, denied having a weapon in the

car and denied having a weapon in his possession that night. He testified he was

never confronted by a K-9 and did not know there was a dog at the scene until he

overheard officers saying he had shot their dog. No weapon was found either in

the car driven by McKinnies or at the scene of his arrest.

      After hearing the conflicting evidence, the jury found the defendant guilty as

charged. McKinnies filed a timely written motion for new trial asserting there was

newly discovered evidence which, if considered, would probably have changed the

verdict. The affidavit by defense counsel accompanying the motion for new trial

stated the newly discovered evidence concerned the credibility of Officer

Mekdessie, the victim and only witness to testify that McKinnies pointed a

handgun at him. The newly discovered evidence was described in the affidavit as

three separate incidents of police conduct involving Officer Mekdessie, unrelated

to the charge against McKinnies, which were allegedly being investigated by the

City of Gretna’s Internal Affairs and/or the FBI. The affidavit listed Officer

Mekdessie and the defendant as witnesses who would testify about the allegations.

      The state filed a written response to the motion for new trial, raising several

procedural objections and arguing the defense failed to satisfy the statutory

requirements for a motion for new trial based on newly discovered evidence. The

state also addressed the merits of the claim, arguing that allegations of extrinsic

matters which might be used as impeachment evidence were not adequate bases for

a new trial under the jurisprudence.

      At the hearing on the motion for new trial, the defense presented no

evidence to support the allegations and failed to call any witnesses to testify.

Instead, defense counsel argued the three incidents should have been disclosed to

the defendant under the state’s obligation to disclose evidence favorable to the

defense and concerning the credibility of government witnesses. The prosecutor

                                          3
argued that there was nothing for the state to disclose to the defense, as there were

no charges filed or discipline imposed against Officer Mekdessie in connection

with the allegations. The state stressed that the allegations stemmed from defense

counsel’s conversations with another criminal defense attorney and were

groundless.

       After taking the matter under advisement, the trial judge ruled in open court:

“Even though they may not be entitled to it under the grounds that were set forth in

the defendant’s motion, I do believe that in the interest of justice we’re going to go

ahead and grant a new trial. And that’s under Article 851, Section 5.” The trial

judge issued a written judgment similarly showing the ground upon which the new

trial was granted: to serve “the ends of justice… although the defendant may not

be entitled to a new trial as a matter of strict legal right.”

       The state thereafter filed a timely writ application, seeking review of the trial

court’s ruling. The appellate court ordered the trial judge to submit a per curiam

outlining the reasons why he granted the motion for new trial pursuant to La.

C.Cr.P. art. 851(5). In response, the trial judge issued a per curiam which stated:

             The court after hearing the testimony of witnesses, watching
       their demeanor while testifying, and considering the evidence
       presented by all parties, has reasonable doubt as to the guilt of the
       defendant.

             Therefore, the court believes that the ends of justice would best
       be served by granting defendant, Quincy McKinnies, a new trial.

       After the court of appeal’s review of the per curiam, the appellate court

granted the state’s writ for the limited purpose of instructing the trial court to

consider the state’s notice of intent to seek writs as a motion for appeal. Pursuant

to the appellate court’s order, the trial court granted the state’s motion for appeal.

       Subsequent to the filing of the state’s appeal, McKinnies filed a motion to

remand the case to the trial court so that he could amend his original motion for

new trial to include additional newly disclosed information. The court of appeal

                                             4
granted the motion to remand. A hearing was held in the trial court wherein

McKinnies moved to amend his original motion for a new trial “by adding a

witness.” The trial court denied the motion to amend and the case returned to the

court of appeal.

         In a 2-1 decision, the appellate court affirmed the trial court’s ruling which

granted McKinnies a new trial.3 The court of appeal found the trial court complied

with all of the necessary procedural and substantive requirements for a new trial;

specifically, the defendant’s written motion was timely filed before sentencing, the

motion raised one of the specified grounds for new trial, and a contradictory

hearing was held. The appellate court noted La. C.Cr.P. art. 851 provides the

exclusive list of possible grounds for a new trial, and the trial court’s stated reasons

for granting the new trial were found on that list, although they were not the same

as the ground which the defendant raised or argued.

         The appellate court found the court’s oral and written judgment granted the

new trial under La. C.Cr.P. art. 851(5), and the per curiam “expanded its ruling” to

include La. C.Cr.P. art. 851(1). The court of appeal held it to be within the trial

judge’s discretion to consider an additional ground for granting the new trial

motion. The court of appeal then evaluated the trial court’s ruling as a motion for

new trial granted under La. C.Cr.P. arts. 851(1) and 851(5).

         Insofar as the trial court granted a new trial under La. C.Cr.P. art. 851(1)—

that the verdict was contrary to the law and evidence—the court of appeal held the

ruling was essentially unreviewable. The appellate court found the trial court’s

decision on the weight of the evidence was a question of fact not subject to

appellate review under either La. Const. art. V, § 10(B) or La. C.Cr.P. art. 858.4

3
    State v. McKinnies, 2012-0335 (La. App. 5 Cir. 5/16/13); 119 So.3d 147.
4
    La. Const. art. V, § 10(B) provides the scope of review of appellate jurisdiction in a criminal case
extends only to questions of law. La. C.Cr.P. art. 858 states: “Neither the appellate nor supervisory
jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial,
except for error of law.”
                                                     5
Insofar as the trial court’s new trial ruling relied upon La. C.Cr.P. art. 851(5)—that

the ends of justice would be served by ordering a new trial—the appellate court

reviewed the decision for an abuse of discretion.                 Finding the trial court

substantiated its concerns and that this specification supported the grant of a new

trial, the appellate court found no abuse of the trial court’s discretion in granting a

new trial on that basis.

         With regard to the only ground for new trial actually raised by the

defendant’s motion—that of newly discovered evidence—the court of appeal

stated:

         Accordingly, we find that the merits of defendant’s “newly discovered
         evidence” which concern Officer Mekdessie’s “credibility,” need not
         be addressed because such evidence did not form the basis of the trial
         court’s granting of a new trial. Defendant complied with the
         requirements of La. C.Cr.P. art. 856 to list the grounds then “known
         and available” to him; he could not have been expected to know of the
         trial judge’s then-unexpressed reasons he would ultimately assign to
         his ruling on defendant’s motion.5

         Finding the issue to be res nova in Louisiana, the dissenting judge looked to

federal law before concluding the trial court was without authority to grant a new

trial in the interest of justice on any basis other than the one raised by the

defendant. Relying on our decision in State v. Guillory,6 the dissenting judge also

found the trial court failed to adequately articulate its concerns, or to specify any

evidence or testimony which gave rise to its doubt as to the defendant’s guilt.

         We granted the state’s writ to review the lower courts’ decisions.7

                                    LAW AND DISCUSSION

         In his motion for new trial, the defendant asserted that allegations of possible

police misconduct committed by Officer Mekdessie in other cases cast doubt upon



5
    McKinnies, 2012-0335, p. 16; 119 So.2d at 156.
6
    2010-1231 (La. 10/8/10); 45 So.3d 612.
7
    State v. McKinnies, 2013-1412 (La. 4/25/14); 138 So.3d 633.


                                                     6
the officer’s credibility in this case and entitled him to a new trial. The rules

governing a motion for new trial in a criminal case are found in La. C.Cr.P. arts.

851-858. Insofar as our review will require us to interpret the rules governing new

trial motions, we will be guided by the following principles of statutory

interpretation.

          The interpretation of the statutory law presents us with a question of law

which is reviewed under a de novo standard of review.8 We look first to the

language of the articles themselves to determine their meaning.9 When the law is

clear and unambiguous and its application does not lead to absurd consequences,

its language must be given effect, and its provisions must be construed so as to

give effect to the purpose indicated by a fair interpretation of the language used.10

Our inquiry must consider each article regarding new trial motions in its entirety,

as well as the other articles on this subject, placing a construction on the whole that

is consistent with the express terms of the articles and the obvious intent of the

legislature in enacting these rules.11                The history of the statute or article in

question, and any related legislation, is often a helpful guide in ascertaining the

intent of the legislature.12

          Grounds for seeking a new trial are set forth in La. C.Cr.P. art. 851,which

provides in pertinent part:

          . . . The court, on motion of the defendant, shall grant a new trial
          whenever:
          (1) The verdict is contrary to the law and the evidence;

          (2) The court’s ruling on a written motion, or an objection made
              during the proceedings, shows prejudicial error;

8
     City of Bossier City v. Vernon, 2012-0078, p. 3 (La. 10/16/12); 100 So.3d 301, 303.
9
     State v. Clark, 2012-1296, p. 6 (La. 5/7/13); 117 So.3d 1246, 1250.
10
     State v. Oliphant, 2012-1176, p. 5 (La. 3/19/13); 113 So.3d 165, 168; La. R.S. 1:4.
11
     Clark, 2012-1296, p. 7; 117 So.3d at 1251.
12
     State v. Skipper, 2004-2137, p. 5 (La. 6/29/05); 906 So.2d 399, 404.


                                                      7
           (3) New and material evidence that, notwithstanding the exercise of
               reasonable diligence by the defendant, was not discovered before
               or during the trial, is available, and if the evidence had been
               introduced at the trial it would probably have changed the verdict
               or judgment of guilty;

           (4) The defendant has discovered, since the verdict or judgment of
               guilty, a prejudicial error or defect in the proceedings that,
               notwithstanding the exercise of reasonable diligence by the
               defendant, was not discovered before the verdict or judgment; or

           (5) The court is of the opinion that the ends of justice would be served
               by the granting of a new trial, although the defendant may not be
               entitled to a new trial as a matter of strict legal right.13

La. C.Cr.P. article 851 also states the new trial motion is based on the supposition

that an injustice has been done to the defendant. A defendant has the burden to

show an injustice was done to him, or the motion will be denied, no matter what

allegations are raised.14

           A motion for new trial alleging newly discovered evidence requires the

defendant to prove additional allegations of fact, listed in La. C.Cr.P. art. 854:

           (1) That notwithstanding the exercise or reasonable diligence by the
              defendant, the new evidence was not discovered before or during
              the trial;

           (2) The names of the witnesses who will testify and a concise
              statement of the newly discovered evidence;

           (3) The facts which the witnesses or evidence will establish; and

           (4) That the witnesses or evidence are not beyond the process of the
               court, or are otherwise available.

We have previously held:

           Thus, a new trial shall be granted based on Article 851(3) when: (1)
           new evidence was discovered after trial; (2) the new evidence is
           material; (3) the failure to discover the evidence was not due to a lack
           of diligence on the part of the defense; and, (4) had the evidence been
           introduced, the verdict or judgment of guilty probably would have

13
     The official revision comment-1966(d) to La. C.Cr.P. art. 851 states “[t]he grounds for a new trial
follow Art. 509 of the 1928 Code very closely, thus preserving the benefits of some well-settled lines of
Louisiana jurisprudence.”
14
     Id.


                                                   8
           been changed.15

           La. C.Cr.P. art. 858 limits our review of the trial court’s ruling on the new

trial motion: “In reviewing the granting or the refusal to grant a new trial, neither

the appellate nor the supervisory jurisdiction of the Supreme Court may be

invoked, except for error of law.” Therefore, we review the trial court’s ruling on

the new trial motion only for legal error. An abuse of the trial court’s discretion in

ruling on a new trial motion on the ground of newly discovered evidence presents a

question of law.16

           This court will attach great weight to the exercise of the trial judge’s

discretion.17       “On the other hand, the discretion vested in the trial court must be

exercised in whole-hearted good faith and be guided by the statutes, not by the

court’s private opinion of what the statute ought to be. Where the exercise of

discretion is arbitrary and not judicial, and the judgment is unjust, it will be set

aside.”18       It has been described as “self-evident,” that when “discretion is

inappropriate an incorrect decision is not entitled to deference. For example, a trial

court has no discretion or choice to disregard statutory rules … in deciding a new

trial motion.”19

           This court explained the duty of a trial judge considering a new trial motion

based on newly discovered evidence in State v. Talbot:

           The scope of the trial judge’s duty toward the motion for a new trial
           based upon the new evidence must be kept in mind. It was not for
           him to determine the guilt of [another alleged suspect] or the
           innocence of [the defendant]; it was not for him to weigh the new
           evidence as though he were a jury, determining what is true and what

15
   State v. Watts, 2000-0602, p. 6 (La. 1/14/03); 835 So.2d 441, 447, citing also State v. Cavalier, 1996-
3052, 1997-0103, p. 3 (La. 10/31/97); 701 So.2d 949, 951; State v. Hammons, 597 So.2d 990, 994 (La.
1992); State v. Knapper, 555 So.2d 1335, 1339 (La. 1990).
16
     State v. Talbot, 408 So.2d 861, 885 (La. 1980) (on rehearing).
17
     Id.
18
     Id.
19
     Id.


                                                      9
           is false. The judge’s duty was the very narrow one of ascertaining
           whether there was new material fit for a new jury’s judgment. If so,
           will honest minds, capable of dealing with evidence, probably reach a
           different conclusion, because of the new evidence, from that of the
           first jury? Do the new facts raise debatable issues? Will another jury,
           conscious of its oath and conscientiously obedient to it, probably
           reach a verdict contrary to the one that was reached on a record
           wholly different from the present, in view of evidence recently
           discovered and not adducible by the defense at the time of the original
           trial?20

We have found that the trial judge’s duty is an objective test, “in that the trial judge

does not sit as the ultimate arbiter of the resolution of the case once the new

evidence is considered, that is, the trial court does not weigh the evidence.” 21 In

other words, “[t]he role of the trial court is to review the evidence constituting the

State’s case, not to determine the sufficiency of the evidence, but to evaluate the

effect of the newly discovered evidence.”22

           By contrast, the trial judge’s duty in evaluating a new trial motion brought

under La. C.Cr.P. art. 851(1) or La. C.Cr.P. art. 851(5) is the opposite. In those

circumstances, the trial court’s duty is to put itself in the position of a juror. We

have held “[i]t is appropriate for the trial court to act as a juror for other grounds

related to a motion for new trial … such as a verdict being contrary to the law and

the evidence or the court being of the opinion that the ends of justice would best be

served by granting a new trial.”23

           The newly discovered evidence alleged by McKinnies consists of allegations

which, if true, might impugn the credibility of the victim’s testimony. We have

held “newly discovered evidence affecting only a witness’s credibility ordinarily

will not support a motion for new trial, because new evidence which is merely

cumulative or impeaching is not, according to the often-repeated statements of the

20
     Id.
21
     Watts, 2000-0602, p. 7; 835 So.2d at 447.
22
     Id.
23
     Id., 2000-0602, p. 9; 835 So.2d at 448 n.8.


                                                   10
courts, an adequate basis for the grant of a new trial.”24 Yet, a trial judge retains

the discretion to grant a new trial in a situation where a witness’s testimony is

essentially uncorroborated and dispositive of the question of guilt or innocence,

where it appears that had the impeaching evidence been introduced, it is likely the

jury would have reached a different result. We need not decide at this point

whether evidence that Officer Mekdessie may or may not have engaged in police

misconduct in other cases would have devastated his credibility here.25

         The record shows there was no newly discovered evidence for the trial judge

to evaluate in light of the state’s evidence at trial. Although the allegations of the

motion for a new trial were sworn to by defense counsel, no proof was offered to

sustain them. The minutes of the contradictory hearing show that, after hearing

argument from counsel for the defendant and the state, the matter was submitted to

the trial judge for disposition. When the allegations of a motion for new trial are

not supported by proof, a trial judge properly overrules the motion.26 Allegations

raised in the motion alone are not sufficient, as a defendant has the burden to show

that an injustice has been done to him.27 “In the absence of any showing before the

trial court that the rights of the accused had been jeopardized, and that the alleged

injustice could be rectified at another trial, the court [would be] warranted in its

refusal to set aside the verdict.”28                 We hold the defendant’s allegations were

insufficient to show a valid ground for a new trial under La. C.Cr.P. art. 851(3).

         The defendant also failed to make any showing with regard to the additional
24
   Cavalier, 1996-3052, p. 3; 701 So.2d at 951, citing Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct.
1, 5, 1 L.Ed.2d 1, 5 (1956) (internal citations omitted).
25
     Id., 1996-3052, p. 3-4; 701 So.2d at 951-952.
26
    State v. Bueche, 243 La. 160, 186, 142 So.2d 381, 390 (La. 1962) (an allegation alone “presents
nothing for review by this court.”); State v. Slack, 227 La. 598, 602, 80 So.2d 89, 90 (La. 1955); State v.
Roberson, 159 La. 562, 568, 105 So. 621, 623 (La. 1925).
27
   La. C.Cr.P. art. 851 (“The motion for new trial is based on the supposition that injustice has been done
the defendant, and, unless such is shown to have been the case, the motion shall be denied, no matter
upon what allegations it is grounded.”).
28
     State v. West, 172 La. 344, 349-50, 134 So. 243, 244 (La. 1931).


                                                      11
allegations required for a new trial motion brought under La. C.Cr.P. art. 851(3).

“The burden is on the defendant to show that the new evidence was not

discoverable prior to or during trial and that if the evidence had been introduced at

trial, the new evidence probably would have caused the trier of fact to reach a

different verdict.”29 Our law “is well settled that the proposed newly discovered

evidence must not only be newly discovered but also not discoverable by

reasonable diligence before the verdict for it to justify the granting of a new

trial.”30 There are no allegations in the defendant’s motion, and no evidence was

produced at the hearing to prove, that “notwithstanding the exercise of reasonable

diligence by the defendant, the new evidence was not discovered before or during

the trial.”31 In fact, there is no temporal information whatsoever contained in the

record which would allow us to determine whether these alleged incidents occurred

before or after McKinnies’ trial (or indeed, whether they occurred at all). Where

this has previously occurred, we have found a defendant’s motion “wholly

lacking.” In State v. Saba,32 we noted:

          that defendant’s motion for a new trial does not give the date or
          specify the exact time when the alleged newly discovered evidence
          came to his knowledge or from whom, where and how he received the
          information regarding the alleged newly discovered witnesses, and the
          character of the testimony they proposed to give in the event he was
          successful in obtaining the new trial. The particular circumstances of
          the discovery of the alleged new witnesses and additional evidence is
          nowhere set out in defendant’s motion.
          ...
          In order to comply with the statutory requirement of due diligence
          with respect to alleged newly discovered evidence, it is not sufficient
          to merely incorporate the words of the statute in the motion for a trial.
          There is something else required than the mere statement that the
          accused did not know of the existence of this alleged newly
          discovered testimony in time to have it brought forward. It must
          affirmatively appear that he could not have ascertained it by

29
     State v. Clayton, 427 So.2d 827, 832 (La. 1982) (on rehearing).
30
     State v. Quimby, 419 So.2d 951, 960 (La. 1982).
31
     La. C.Cr.P. art. 854(1).
32
     203 La. 881, 893, 894, 14 So.2d 751, 755 (La. 1943).


                                                       12
          reasonable diligence.

          The particular circumstances of the discovery of the evidence must be
          affirmatively shown in order that the court may be in a position to
          determine the question of diligence from the facts set forth in the
          motion and affidavit of the mover.

          Although the motion named the defendant and Officer Mekdessie as the

witnesses who would testify about newly discovered information, the new trial

motion does not contain, as it must, a concise statement of facts about which each

would testify or the facts the defense would establish with their testimony. 33 In

short, the record shows a nearly complete failure on the defendant’s part to

conform to the additional requirements of a motion for new trial under La. C.Cr.P.

art. 851(3). On this basis alone, the motion for new trial should have been denied.

          In his per curiam to the court of appeal, the trial judge referred to the

testimony and demeanor of the witnesses and the evidence presented by all parties.

We presume the trial judge was referring to the witnesses and evidence presented

at trial, as there were no witnesses or evidence presented at the contradictory

hearing on the defendant’s motion. The trial judge stated in his per curiam that he

had a reasonable doubt as to the defendant’s guilt. From this, we are able to

conclude the trial judge clearly, and improperly, based his ruling on his own

weighing of the evidence presented at trial as though he were a juror determining

guilt or innocence. In doing so, the trial judge committed legal error by failing to

restrict his review of the defendant’s motion to the proper evaluation of the new

trial motion based on La. C.Cr.P. art. 851(3). “When ruling on an Article 851(3)

motion, a trial judge’s duty is not to weigh the new evidence as though he were a

jury deciding guilt or innocence or to determine what is true or false in light of the

additional information. In other words, the trial judge is not to assess the newly




33
     La. C.Cr.P. art. 854(2) and (3).


                                           13
discovered evidence as though he were a thirteenth juror.”34            Instead, “[t]he

discretion vested in the trial judge in passing on a motion for a new trial based on

the ground of newly discovered evidence in a criminal case is to be exercised in

determining the diligence shown, the truth of the matters stated, and the materiality

and probability of their effect, if they are believed to be true.”35

         Our review was further complicated by the fact that the court of appeal erred

in its review of the trial court’s ruling. The court of appeal failed to properly

review the trial court’s ruling as one prompted by a motion for new trial on the

basis of La. C.Cr.P. art. 851(3). Instead, the appellate court reviewed the trial

court’s ruling on the grounds found by the trial court, as though the defendant’s

motion had been filed on the basis of La. C.Cr.P. arts. 851(1) and/or (5). This was

also legal error. Although its review of the case was flawed, the court of appeal

raised an issue we feel compelled to address, that is, whether a trial court has the

authority to grant a motion for new trial on a ground not raised by the defendant.

We believe the court of appeal misinterpreted the rules governing motions for new

trial when it found the trial court was required by the rules governing new trial

motions to grant the defendant’s motion.

         La. C.Cr.P. art. 851 clearly states a court may only grant a new trial “on

motion of the defendant.” An earlier version of this article, found in the 1928

Code of Crim. Proc., made this point more explicitly. Former Art. 506 of the 1928

Code of Crim. Proc. spelled out:

         A new trial cannot be ordered by the court on its own motion or upon
         the application of the State, but may be granted with the consent of the
         district attorney, whether the motion of defendant set out a valid
         reason for a new trial or not.

In enacting the modern criminal procedure rules, the legislature preserved the

34
     Watts, 2000-0602, p. 8-9; 835 So.2d at 448.
35
     Saba, 203 La. at 898, 14 So.2d at 757.



                                                   14
requirement that the court may only grant a new trial upon the defendant’s

motion.36

         Under La. C.Cr.P. art. 852, a defendant is required to specify the ground or

grounds upon which the motion is based.37 The defendant is also required, under

La. C.Cr.P. art. 856, to set forth all of the grounds about which he has knowledge

at the time he files his motion. Former Art. 507, of the 1928 Code of Crim. Proc.,

required the defendant’s proof at the contradictory hearing to conform to the

grounds raised in his motion. The current rules omit that requirement. Instead, La.

C.Cr.P. art. 856 authorizes the court to allow the defendant to supplement his

motion, or even to file an additional motion for new trial, if filed before the court’s

ruling.38

         The official revision comment-1966 to La. C.Cr.P. art. 852 provides some

insight into the legislature’s intent in omitting the requirement that a defendant’s

evidence at the contradictory hearing should conform to the ground for new trial

asserted in his motion.39 Under the current legislative scheme, “[a] new trial

should be granted any time the defendant shows a valid ground therefor, even

though he failed to state the ground in his motion.”40                                   By permitting

supplementation of the motion before the court’s ruling, and by providing trial

courts with discretionary authority to permit the urging of additional grounds, the

legislature ensures that a defendant who might have valid grounds supporting a


36
   La. C.Cr.P. art. 851, Official Revision Comment—1966, (c) (“The rule of Arts. 505 and 506 of the
1928 Code, that the defendant alone is entitled to make a motion for a new trial, is retained in [Art. 851.]”
37
   La. C.Cr.P. art. 852 provides: “A motion for new trial shall be in writing, shall state the grounds
upon which it is based, and shall be tried contradictorily with the district attorney.” (Emphasis added)
38
   La. C.Cr.P. art. 856 provides: “A motion for a new trial shall urge all grounds known and available to
the defendant at the time of the filing of the motion. However, the court may permit the defendant to
supplement his original motion by urging an additional ground, or may permit the defendant to file an
additional motion for a new trial, prior to the court’s ruling on the motion.” (Emphasis added)
39
    Arabie v. CITGO Petroleum Corp., 2010-2605, p. 5 (La. 3/13/12); 89 So.3d 307, 312 (“While the
Official Revision Comments are not the law, they may be helpful in determining legislative intent.”).
40
     La. C.Cr.P. art. 852, Official Revision Comment – 1966 (b).


                                                     15
motion for new trial will not be denied the court’s consideration of that information

due to inartful pleading on the part of his attorney. The state is not prejudiced by

the defendant’s ability to supplement his new trial motion. The official revision

comment-1966 notes “[t]he district attorney can be fully protected by the court’s

granting of additional time to prepare to meet a surprise ground that is asserted by

the defendant.”41 As a practical matter, deletion of the 1928 Code’s limitation on

the introduction of proof is supported by the fact that La. C.Cr.P. art. 851(5) gives

the trial court plenary authority to order a new trial whenever in its opinion the

ends of justice would be better served, even if the defendant is not entitled to one

as a matter of strict legal right.42

           These considerations raise the following question—given that a defendant

may be permitted to supplement his original motion, and the trial court’s plenary

authority to grant a new trial when it believes the ends of justice would be served

by a new trial, could a trial judge grant a new trial on a ground not raised in the

defendant’s motion as a “shortcut,” rather than ordering supplementation by the

defendant and allowing the state to challenge the additional information? We think

not, as there are important reasons underlying adherence to the rules governing

new trial motions as set forth by the legislature.

           First, the defendant bears the burden of showing a valid reason for the trial

court to grant a new trial. The court cannot do so on its own motion and cannot

supply the reason the motion should be granted.43 Even under the rules of civil

procedure, where a trial court is authorized with discretionary authority to grant a

41
     Id.
42
     Id.
43
   We have held “…when a court makes a ruling without right or authority, the ruling is ultra vires and is
of no effect.” State v. Davenport, 2013-1859, p. 20 (La. 5/7/14); __So.3d__; 2014 WL 1847820, *10.
Also, in State v. Macon, 2006-0481, p. 7 (La. 6/1/07); 957 So.2d 1280, 1285, we found “the trial court’s
sua sponte decision to convert the defendant's motion for post-verdict judgment of acquittal into a motion
for new trial, then grant a new trial based on a finding that the State had failed to present sufficient
evidence to prove the crime with which defendant was charged, constituted legal error that must be
reversed.”


                                                   16
new trial on its own motion, we have stated “[t]he fact that a determination on a

motion for new trial involves judicial discretion does not imply that the trial court

can freely interfere with any verdict with which it disagrees.”44

           Second, the defendant is required to state the grounds upon which his new

trial motion is based. Having the defendant specify his reasons for seeking a new

trial allows the state to challenge those reasons.                        The requirement that a

contradictory hearing be held allows the state the opportunity to present its

challenge to the defendant’s motion. The codal requirements of a written motion,

of the specification of grounds, and of a contradictory hearing would be

meaningless if the trial court could supply its own reasons for granting a new trial

and rule on another basis. As we stated in another case, “[t]o the extent that the

defendant relied solely on the grounds listed in La. C.Cr.P. art. 851(3) for granting

new trials he failed to provide the court with any other basis to rule on the

motion.”45

           Here, the court of appeal decided not to address the merits of the only

ground actually raised by the defendant in his motion.                        The appellate court

declined to address the merits of the ground of newly discovered evidence

“because such evidence did not form the basis of the trial court’s granting of a new

trial.”46 The appellate court observed the defendant complied with La. C.Cr.P. art.

856 by listing the grounds then known and available to him, but “he could not have

been expected to know of the trial judge’s then-unexpressed reasons he would

ultimately assign to his ruling on defendant’s motion.”47 And if the defendant


44
   Davis v. Wal-Mart Stores, Inc., 2000-0445, p. 10 (La. 11/28/00); 774 So.2d 84, 93; see La. C.C.P. art.
1971 (“A new trial may be granted, upon contradictory motion of any party, or by the court on its own
motion, . . . .”).
45
     State v. Mince, 1997-2947, p. 4 (La. 5/29/98); 714 So.2d 684, 686.
46
     McKinnies, 2012-0335, p. 16; 119 So.3d at 156.
47
     Id.


                                                      17
could not have known to raise the grounds, the state equally did not have an

opportunity to challenge those reasons. We find this result flies in the face of the

legislative scheme.

         Third, the requirement that the defendant specify the grounds under which

he is seeking a new trial informs the trial court which type of review should be

afforded the information presented by the defendant. As we have seen in this case,

the trial judge’s review here was exactly the opposite of what his duty was under

the law in considering the defendant’s motion.

         Finally, by following the legislative scheme—having the defendant specify

his reasons for seeking a new trial and allowing the state an opportunity to

challenge those reasons—the trial court is fully informed in its decision-making.

The reason underlying these procedural rules is the great discretion vested in the

trial court by the legislature under La. C.Cr.P. art. 851(5), to grant a new trial even

when the defendant may not be entitled to one as a matter of strict legal right. We

have described the trial court’s discretion in that respect as “almost unlimited.”48

We find that the legislature balanced the great discretion conferred on the trial

court in La. C.Cr.P. art. 851(5) by requiring adherence to the procedural rules.

         Applying these concepts to McKinnies’ case, we find there was no

adherence to the procedural rules set forth by the legislature. Instead of inviting

the defendant to supplement his motion based on its appreciation of the allegations

of the defendant’s motion, which would have allowed the state to address those

additional reasons, the trial court, using the incorrect review standard for the

information, granted a new trial on a ground not raised by the defendant, and for

which no evidence was presented. The defendant did not show how an injustice

had been done to him. We are unable to discern a reason from the record, as there

is nothing in the motion or presented at the hearing which would support the trial
48
     Guillory, 2010-1231, p. 4-5; 45 So.3d at 615.


                                                     18
court’s conclusion.49 Additionally, the record is unclear whether the allegations

raised by the defendant in his motion had anything to do with the trial judge’s

conclusions about the evidence presented at trial or his evaluation of the witnesses’

demeanor.        In the absence of anything raised in the defendant’s motion or

presented at the hearing to justify the trial court’s ruling, we find the defendant

failed to show a valid ground for new trial and hold that the trial court abused its

discretion by granting the defendant’s motion for new trial.50

                                            CONCLUSION

        For the foregoing reasons, the trial court ruling granting a new trial is

reversed and vacated and the jury’s verdict is reinstated. This matter is remanded

to the trial court for sentencing of the defendant.



REVERSED AND REMANDED.




49
   “[T]here is nothing evident from the hearing on the motion for a new trial that indicates why the trial
court granted a new trial to serve the ends of justice.” Guillory, 2010-1231, p. 6; 45 So.3d at 616.
50
   “Where the exercise of discretion is arbitrary and not judicial, and the judgment is unjust, it will be set
aside.” Talbot, 408 So.2d at 885.


                                                      19
10/15/14




                    SUPREME COURT OF LOUISIANA

                                   NO. 13-K-1412

                            STATE OF LOUISIANA

                                           VS.

                          QUINCY MCKINNIES, JR.

   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
        FIFTH CIRCUIT, PARISH OF JEFFERSON


JOHNSON, Justice, dissents and assigns reasons.

       I would affirm the decision of the court of appeal. Contrary to the majority

opinion, I find the trial court had the procedural authority to grant defendant a new trial

and did not abuse its wide discretion in finding that the verdict was contrary to law and

evidence and that the ends of justice would be served by ordering a new trial.

       On January 26, 2011, the state charged defendant with aggravated assault on a

police officer with a handgun. A jury found defendant guilty as charged on October

18, 2011. Testimony at trial revealed that this case arose when five police officers and

one police K-9 (Dog) gave chase to defendant after he ignored a police officer’s

attempt to hand him a “parking” citation. Defendant then entered a vehicle and sped

away. At some point, defendant abandoned the vehicle and ran, and a foot case

ensued. One of the five officers giving chase, Officer Ryan Mekdessie, testified that

during the foot chase, he observed the defendant reach onto his waistband and, fearing

for his life, Officer Mekdessie fired a total of five gunshots striking both the defendant

and the police K-9. Detective Ashton Gibbs testified that he had seen a gun on the

floorboard of the vehicle driven by defendant when he ticketed the parked vehicle.
The defendant denied having a weapon and no weapon was ever found. With this

unusual backdrop, the trial court granted defendant’s motion for new trial pursuant to

La.C.Cr.P. art. 851(5) ruling that: “[T]he ends of justice would best be served by the

granting of a new trial, although the defendant may not be entitled to a new trial as a

matter of strict legal right.” The trial court issued a per curiam on March 5, 2012

outlining its reasons for granting the new trial under Article 851(5), stating:

                 The court after hearing the testimony of witnesses,
                 watching their demeanor while testifying, and considering
                 the evidence presented by all parties, has reasonable doubt
                 as to the guilt of the defendant. Therefore, the court
                 believes that the ends of justice would best be served by
                 granting defendant, Quincy McKinnies, a new trial.

       The court of appeal upheld the trial court’s decision to grant defendant a new

trial, highlighting La.C.Cr.P. art. 851(1) and (5), which provide that the court shall

grant a new trial whenever (1) the verdict is contrary to the law and the evidence; ... or

(5) the court is of the opinion that the ends of justice would be served. The court of

appeal found that the trial court adhered to the procedural and substantive

requirements in granting defendant’s motion for new trial, and that its reasons mirrored

that of the statute.1

       The court of appeal noted that in addition to the basis of “ends of justice” under

Article 851(5), the trial court “expanded its ruling to include also La.C.Cr.P. art. 851(1)

as a basis for finding that a new trial was also warranted because the verdict was

contrary to the law and the evidence.”2 The court of appeal found that the trial court

granted the new trial on grounds not urged in defendant’s motion, but found that the

trial court “stated his reasons within the strict parameters of [art. 851] and the court




       1
           State v. McKinnies, 2012-0335 at 9 (La. App. 5 Cir. 5/16/13); 119 So.3d 147,152.
       2
           McKinnies, 12-0335 at 10, 119 So. 3d at 153.

                                                 2
was within its discretion to consider additional grounds at the hearing.”3 The court of

appeal noted that “Nowhere did the Legislature dictate that the judge is restricted to

the grounds asserted in the motion filed by defendant.”4

        Additionally, the court of appeal found that the trial court did not abuse its

discretion by granting defendant a new trial under La.C.Cr.P. art. 851(1), noting that

under Article 851(1), the trial court sits as a “thirteenth juror,” reweighing the evidence

and determining whether it agrees with the jury’s resolution of the evidence, in effect

becoming the trier of fact.”5

        The court of appeal further underscored that a “determination of the weight of

the evidence is a question of fact, and in a criminal case, such a determination is not

subject to appellate review.6 Moreover, under La.C.Cr.P. art. 858, “[n]either the

appellate nor supervisory jurisdiction of the Supreme Court may be invoked to review

the granting or the refusal to grant a new trial, except for error of law.”

        The decision on a motion for new trial rests within the sound discretion of the

trial judge, and its ruling will not be disturbed on appeal absent a clear showing of

abuse.7 The merits of such a motion must be viewed with extreme caution in the

interest of preserving the finality of judgments. As a general rule, a motion for new trial

will be denied unless injustice has been done.8

        Prior Louisiana law provided that “[e]very motion for a new trial must specify


        3
            McKinnies, 12-0335 at 11, 119 So.3d at 153. (citing La.C.Cr.P. art. 856).
        4
            Id.
        5
           Id., (citing Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed.2d 652 (1982) (setting
aside a verdict as against the weight of the evidence, as opposed to the insufficiency of the evidence under
the Due Process Clause, does not bar retrial)).
        6
            La. Const. art. V, 10(B).” McKinnies, 12-0335 at 12, 119 So.3d at 12.
        7
            State v. Quimby, 419 So.2d 951, 959 (La. 1982).
        8
            State v. Johnson, 08 1488, p. 17 (La. App. 4 Cir. 2/10/10), 33 So.3d 328, 338.

                                                     3
the grounds upon which relief is sought, must be tried contradictorily with the district

attorney, and the proof must correspond with the allegations of the motion.”9 The

current version of former article 507, La.C.Cr.P. art. 852, eliminates the latter

provision, and the Comments to the article note the significance of the change in

language:

               The requirement of Art. 507 of the 1928 Code that the
               proof must correspond with the allegations of the motion,
               is omitted. A new trial should be granted any time the
               defendant shows a valid ground therefor, even though he
               failed to state the ground in his motion. The district
               attorney can be fully protected by the court’s granting of
               additional time to prepare to meet a surprise ground that is
               asserted by the defendant. Deletion of the 1928 Code
               limitation is supported, as a practical matter, by the fact that
               Art. 851(5) gives the court plenary authority to order a new
               trial whenever in its opinion the ends of justice would be
               better served, even though no legal ground for a new trial is
               stated. La.C.Cr.P. art. 852, Off’l Rev. Cmt (b) (emphasis
               added).

      The trial court had the authority in this situation to direct counsel to file a

supplemental motion for a new trial raising the ground that the court deems appropriate

for granting relief. La.C.Cr.P. art. 856 (“[T]he court may permit the defendant to

supplement his original motion by urging an additional ground, or may permit the

defendant to file an additional motion for a new trial, prior to the court’s ruling on the

motion.”) The trial court merely took a shortcut in finding grounds for granting

defendant's motion for a new trial which was based on (entirely) unpersuasive

allegations of newly discovered evidence ostensibly impeaching the credibility of

Officer Mekdessie. Here the testimony of Officer Mekdessie, the only witness to

testify that he saw the defendant with a gun in his hands, was at odds with the

testimony of the defendant who maintained that he did not have a gun in his

possession during the time in question. The trial court made a credibility determination

      9
          La.C.Cr.P. art. 507 (1928).

                                              4
when it specified that he had “reasonable doubt,” which the court of appeal found

equated with a “not guilty” verdict.10

      It is clear that La.C.Cr.P. art. 852 eliminated any requirement that proof must

conform to the allegations of the motion. As a consequence, "[a] new trial should be

granted any time the defendant shows a valid ground therefor, even though he failed

to state the ground in his motion."11 Given the trial court's express authority under

La.C.Cr.P. art. 856 to permit supplementation of a motion for new trial with additional

grounds, it is my view that the trial court may grant a new trial on a basis not alleged

by the defendant in his motion.

      In my view, the trial court was correct to grant defendant a new trial. Thus, the

majority errs in reversing the court of appeal’s judgment affirming the trial court’s

grant of a new trial.

      For the above reasons, I respectfully dissent.




      10
           McKinnies, 12-0335 at 13, 119 So. 3d at 154.
      11
           La.C.Cr.P. art. 852, Off'l Rev. Cmt (b).

                                                 5
10/14/15




               SUPREME COURT OF LOUISIANA

                           NO. 2013-K-1412

                         STATE OF LOUISIANA

                               VERSUS

                        QUINCY MCKINNIES, JR.

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FIFTH CIRCUIT, PARISH OF JEFFERSON

VICTORY, J., concurs.
