State of Arizona v. James Lee Hess, 290 P.3d 473

Hess was convicted after a jury trial of multiple violent offenses including first-degree burglary, kidnapping, armed robbery, sexual assault, attempted sexual assault, and public sexual indecency; sentences were consecutive with the longest term life imprisonment.
Hess sought post-conviction relief under Rule 32, including a DNA testing claim using testing techniques not available at trial.
Trial court allowed DNA testing and Hess filed a supplement arguing new DNA results excluded him as a contributor to semen from a victim, potentially entitling a new trial on related charges.
The trial court denied the Rule 32.1(e) claim, finding the DNA results unlikely to change the verdict and noting the State’s rebuttal evidence would not alter that conclusion.
On review, the appellate court must determine whether Hess established the required elements for newly discovered evidence, including diligence and materiality, and whether the court abused its discretion in weighing the evidence.
The court ultimately denied relief, clarifying that even if the DNA evidence were newly discovered, it was unlikely to have changed the verdict and that other claims were not adequately shown to warrant relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the newly discovered DNA evidence would likely change the verdict	Hess argues the DNA results exclude him and would entail a new trial	State contends the evidence would not have changed the verdict given other strong proof of guilt	denied relief on this basis
Whether Hess showed due diligence in pursuing the DNA testing	Hess acted diligently in obtaining now-available DNA testing	Hess failed to explain why testing could not have been pursued earlier; diligence not established	due diligence not demonstrated; relief denied
Whether the court could consider unpresented state evidence in evaluating Rule 32.1(e) whether the new evidence would change the verdict	State evidence should be disregarded in evaluating effect of new evidence	Court may consider rebuttal and state evidence to assess possible impact	court properly considered the state evidence; it would not have changed the result

State v. Saenz, 197 Ariz. 487 (Ariz. 2000) (establishes criteria for newly discovered evidence under Rule 32.1(e))
State v. Bilke, 162 Ariz. 51 (Ariz. 1989) (requires due diligence in securing newly discovered material facts)
State v. Swoopes, 216 Ariz. 390 (Ariz. 2007) (discretionary review standard for post-conviction relief; abuse-of-discretion standard)
State v. Fisher, 686 P.2d 750 (Ariz. 1984) (disfavored nature of new-trial motions for newly discovered evidence; credibility assessment allowed)