                  IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 48PA11-2

                               FILED 13 JUNE 2013

STATE OF NORTH CAROLINA

             v.
BRIAN W. RHODES, JR.



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous

decision of the Court of Appeals, ___ N.C. App. ___, 724 S.E.2d 148 (2012), affirming

an order entered on 29 July 2011 by Judge Richard W. Stone in Superior Court,

Rockingham County. Heard in the Supreme Court on 7 January 2013.


      Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney
      General, for the State-appellant.

      Staples S. Hughes, Appellate Defender, by Daniel R. Pollitt, Assistant
      Appellate Defender, for defendant-appellee.


      MARTIN, Justice.


      After defendant was convicted of drug possession offenses, his father stated

outside of court that the contraband belonged to him. The trial court concluded this

statement was newly discovered evidence under N.C.G.S. § 15A-1415(c) and granted

defendant a new trial.     Because the information implicating the father was

available to defendant before his conviction, the statement was not newly

discovered evidence under N.C.G.S. § 15A-1415(c).      Accordingly, we reverse the
                                  STATE V. RHODES

                                  Opinion of the Court



opinion of the Court of Appeals affirming the trial court’s decision to award

defendant a new trial.

      On 6 February 2008, officers of the Reidsville Police Department executed a

search warrant at 1001 Fawn Circle. Brian Rhodes, Jr. (defendant) and his father,

Brian Rhodes, Sr., were the subjects of the warrant. When the officers forced entry

into the locked house, they found defendant and his mother, Angela Rhodes,

downstairs. The officers detained them while they checked the house for other

occupants. During this time defendant asked officers to retrieve his medication

from his bedroom, which he stated was to the left at the top of the stairs. An officer

checked the bedroom and found a bottle of medication on the dresser. On that same

dresser were defendant’s driver’s license and a box that contained a bag of crack

cocaine. The address on the driver’s license was 1001 Fawn Circle, the address of

the residence being searched. In the closet of the bedroom, officers also found a

shoebox containing a large bag of a white powdery substance, a small bag of a green

vegetable substance, scales, a strainer, and money.

      Defendant was charged with possession with intent to manufacture, sell, or

deliver cocaine and possession of drug paraphernalia.       At trial several officers

testified about the events that occurred during execution of the search warrant. A

drug chemist with the State Bureau of Investigation testified that the substances

seized from the bedroom were 9.9 grams of cocaine base and 12.9 grams of cocaine

hydrochloride. The defense presented testimony by defendant, Angela Rhodes, and


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                                  Opinion of the Court



Rhodes, Sr.    Defense counsel asked Angela Rhodes whether the contraband

belonged to “Mr. Rhodes,” and she responded, “I’m not going to answer that. That’s

my husband.” When defense counsel clarified that he was referring to defendant,

not Rhodes, Sr., she stated that the contraband did not belong to defendant.

Defense counsel did not pursue a line of questioning about whether the drugs

belonged to Rhodes, Sr. Defense counsel then called Rhodes, Sr. He testified the

drugs did not belong to defendant. When Rhodes, Sr. was asked whether the drugs

belonged to him, he pleaded his Fifth Amendment privilege against self-

incrimination. Last, defense counsel called defendant, Rhodes, Jr. Defense counsel

questioned defendant about the execution of the search warrant but did not ask him

about the ownership of the contraband.

      On 5 March 2010 the jury found defendant guilty of possession with intent to

manufacture, sell, or deliver cocaine and possession of drug paraphernalia. The

court sentenced him to a term of six to eight months of imprisonment, suspended

subject to thirty months of supervised probation.        Defendant appealed, and the

Court of Appeals found no error in his trial. State v. Rhodes, 209 N.C. App. 207, 707

S.E.2d 264, 2011 WL 39053 (2011) (unpublished).

      On 28 May 2010 defendant filed a motion for appropriate relief based upon

newly discovered evidence.     See N.C.G.S. § 15A-1415(c) (2011).     In the motion

defendant alleged that, after the trial, Rhodes, Sr. told a probation officer that the

contraband belonged to him. The motion came before the trial court for a hearing


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                                  Opinion of the Court



on 25 July 2011. Defendant and the probation officer testified, but Rhodes, Sr. did

not. The trial court made the following conclusions of law:

             1.     The witness-probation officer will give newly
             discovered evidence.
             2.     The newly discovered evidence is probably true.
             3.     The newly discovered evidence is competent,
             material, and relevant.
             4.     Due diligence was used and proper means were
             employed to procure the testimony at trial.
             5.     The newly discovered evidence is not merely
             cumulative.
             6.     The newly discovered evidence does not tend only
             to contradict a former witness or impeach such witness.
             7.     The newly discovered evidence 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.

The trial court set aside defendant’s conviction and awarded a new trial.

      The State appealed from the trial court’s order.          See N.C.G.S. § 15A-

1445(a)(2) (2011). The Court of Appeals held that the trial court did not abuse its

discretion in awarding defendant a new trial. State v. Rhodes, ___ N.C. App. ___,

___, 724 S.E.2d 148, 154 (2012). We allowed the State’s petition for discretionary

review.

      Before this Court, the State challenges the trial court’s conclusion of law that

“[d]ue diligence was used and proper means were employed to procure the

testimony at the trial.” Because defense counsel failed to exercise due diligence, the

State argues, the trial court erred in concluding that Rhodes, Sr.’s post-trial

statement constituted newly discovered evidence as defined by N.C.G.S. § 15A-



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                                    Opinion of the Court



1415(c).    Defendant argues that the trial court did not abuse its discretion in

concluding that defense counsel employed due diligence to procure the testimony at

trial.    We agree with the State that the trial court’s conclusion of law was

erroneous.

         “The decision of whether to grant a new trial in a criminal case on the ground

of newly discovered evidence is within the trial court’s discretion and is not subject

to review absent a showing of an abuse of discretion.” State v. Wiggins, 334 N.C. 18,

38, 431 S.E.2d 755, 767 (1993) (citation omitted). “[W]e review the trial court’s

order to determine whether the findings of fact support the conclusions of law, and

whether the conclusions of law support the order entered by the trial court.” State

v. Frogge, 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (citation and internal

quotation marks omitted). “While this Court is bound by the findings of fact made

by the [trial court] if supported by evidence, it is not bound by that court’s

conclusions of law based on the facts found.” State v. Wheeler, 249 N.C. 187, 192,

105 S.E.2d 615, 620 (1958) (citation omitted), superseded by statute, Act of June 23,

1977, ch. 711, sec. 1, 1977 N.C. Sess. Laws 853, 880-84; see also Koon v. United

States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047 (1996) (“[A]n abuse-of-discretion

standard does not mean a mistake of law is beyond appellate correction. A [trial]

court by definition abuses its discretion when it makes an error of law.” (citations

omitted)), superseded in part on other grounds by statute, PROTECT Act of 2003,




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                                   Opinion of the Court



Pub. L. No. 108-21, § 401, 117 Stat. 650, 670 (2003). Accordingly, we review the

trial court’s conclusions of law de novo.

      Our Criminal Procedure Act provides that

             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 the time 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 guilt
             or innocence.

N.C.G.S. § 15A-1415(c). “This section of the statute codifies substantially the rule

previously developed by case law for the granting of a new trial for newly discovered

evidence.” State v. Powell, 321 N.C. 364, 371, 364 S.E.2d 332, 336 (citing State v.

Beaver, 291 N.C. 137, 229 S.E.2d 179 (1976)), cert. denied, 488 U.S. 830, 109 S. Ct.

83 (1988). Our case law stated:

             In order for a new trial to be granted on the ground of
             newly discovered evidence, it must appear by affidavit
             that (1) the witness or witnesses will give newly
             discovered evidence; (2) the newly discovered evidence is
             probably true; (3) the evidence is material, competent and
             relevant; (4) due diligence was used and proper means
             were employed to procure the testimony at trial; (5) the
             newly discovered evidence is not merely cumulative or
             corroborative; (6) the new evidence does not merely tend
             to contradict, impeach or discredit the testimony of a
             former witness; and (7) the evidence is of such a nature
             that a different result will probably be reached at a new
             trial.




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                                  Opinion of the Court



Beaver, 291 N.C. at 143, 229 S.E.2d at 183 (citing State v. Casey, 201 N.C. 620, 161

S.E. 81 (1931)).

      “[A] new trial for newly discovered evidence should be granted with the

utmost caution and only in a clear case, lest the courts should thereby encourage

negligence or minister to the litigious passions of men.” State v. Davis, 203 N.C.

316, 323, 166 S.E. 292, 296 (internal quotation marks omitted), cert. denied, 287

U.S. 668, 53 S. Ct. 291 (1932). The defendant “has the laboring oar to rebut the

presumption that the verdict is correct and that he has not exercised due diligence

in preparing for trial.” Casey, 201 N.C. at 624, 161 S.E. at 83. Under the rule as

codified, the defendant has the burden of proving that the new evidence “could not

with due diligence have been discovered or made available at [the time of trial].”

N.C.G.S. §§ 15A-1415(c), -1420(c)(5) (2011); State v. Eason, 328 N.C. 409, 434, 402

S.E.2d 809, 823 (1991).

      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 N.C.G.S. § 15A-1415(c). Wiggins, 334 N.C. at 38, 431

S.E.2d at 767. In State v. Powell we found no error in a trial court’s conclusion that

a defendant failed to exercise due diligence when “the defendant knew of the

statement of [the witness] during the trial” but failed to procure her testimony. 321

N.C. at 371, 364 S.E.2d at 336. We also agreed there was no newly discovered

evidence when a defendant learned after trial that his blood sample had been


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                                     Opinion of the Court



destroyed before trial, yet he made no inquiry about the blood sample before or

during trial. State v. Dixon, 259 N.C. 249, 250-51, 130 S.E.2d 333, 334 (1963) (per

curiam). In another case we agreed there was no newly discovered evidence when

the defendant learned during his trial that two detectives had located his former

roommate before the trial began. Beaver, 291 N.C. at 144, 229 S.E.2d at 183. We

wrote: “Defendant had ample opportunity to examine [the detectives] as to their

knowledge of the whereabouts of [his former roommate]. This he failed to do.” Id.

We further wrote: “[I]f [the] defendant considered [the former roommate] an

important and material witness, he should have filed an affidavit before trial so

stating and moved for a continuance to enable him to locate this witness. This he

did not do.” Id.

       Like these previous cases, the case before us does not present newly

discovered evidence. The facts are not disputed.1 Rhodes, Sr. invoked the Fifth

Amendment at defendant’s trial when asked whether the contraband belonged to

him. After defendant was convicted, Rhodes, Sr. 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 Rhodes, Sr.        The house searched was owned by Rhodes, Sr. and


       1 The Court of Appeals noted that the trial court made both a finding of fact and a
conclusion of law that the testimony by the probation officer presented “newly discovered
evidence.” Rhodes, ___ N.C. App. at ___, 724 S.E.2d at 152. The court determined the
finding of fact was mislabeled and reclassified it as a conclusion of law. Id. at ___, 724
S.E.2d at 152. We agree with this determination.

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                                 Opinion of the Court



Angela Rhodes. Rhodes, Sr. had a history of violating drug laws. Even though

Rhodes, Sr. 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.

See Wiggins, 334 N.C. at 38, 431 S.E.2d at 767.         On the direct examination of

Angela Rhodes, defendant did not pursue a line of questioning about whether the

drugs belonged to Rhodes, Sr. In addition, though defendant testified at trial, he

gave no testimony regarding the ownership of the drugs. Under the facts before us,

the trial court erred in concluding as a matter of law that “[d]ue 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.” N.C.G.S. § 15A-1415(c).

       Our Criminal Procedure Act requires a showing of due diligence so that the

adversarial process functions properly. Because information implicating Rhodes,

Sr. was available to defendant before his conviction, the trial court erred in

concluding that defendant had newly discovered evidence under N.C.G.S. § 15A-

1415(c). Accordingly, we reverse the decision of the Court of Appeals.

       REVERSED.

       Justices JACKSON and BEASLEY took no part in the consideration or

decision of this case.




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