752 So. 2d 894 | La. Ct. App. | 1999
Lead Opinion
The defendant, William Jeff Cherry (“Cherry”), was charged with one count of attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1. After a bench trial, Cherry was found guilty of the responsive verdict of aggravated battery, a violation of La. R.S. 14:34. The trial court sentenced Cherry to imprisonment of five years at hard labor and imposed a fine of $1,000 plus costs. A motion for new trial was denied by the trial court. Cherry now appeals the denial of his motion for new trial, as well as his conviction and sentence. We affirm.
FACTS
In June 1995, Cherry began dating Sara Kamperman (“Kamperman”). Cherry and Kamperman became engaged a few months later in September 1995, at which time Kamperman began wearing an engagement ring given to her by Cherry. By November 1995, the relationship began to sour, and Kamperman returned the ring to Cherry. Cherry threatened to attempt suicide on a number of occasions, usually when Kamperman suggested slowing down their relationship. Prior to Thanksgiving, Cherry, who was employed as an L.P.N., lost his job.
Kamperman spent Thanksgiving Day with Cherry and remained that night at Cherry’s home, even after having broken up with Cherry that day. On the evening of Friday, November 24, 1995, Kamper-man returned to Cherry’s home at approximately 5:00 p.m., to drop off a birthday present for Cherry’s brother and to see Cherry before going to her parents’ home. Cherry and Kamperman spoke in Cherry’s bedroom for about fifteen to twenty minutes, during which time Cherry, who was depressed about losing his job and losing Kamperman, begged her to come back to him. At one point Sara returned to her car to retrieve a wrapping for the gift for Cherry’s brother. When she returned to Cherry’s bedroom, she found him in a semi-reclined position on his bed with a pillow on his lap. Their ^conversation resumed with Cherry becoming more upset, crying, and appearing to have trouble breathing.
According to Kamperman, she became concerned about Cherry and moved a step closer to him to console him, at which point his expression and demeanor changed. Cherry was no longer crying and did not appear short of breath. Cherry stood up, dropped the pillow, reached out his arm, and shot her. He did not say anything. Kamperman stated that she first saw the gun as the pillow dropped and that she raised her left hand. The bullet injured Kamperman’s left thumb and entered the upper right side of her chest. Kamper-man fell to the floor after being shot and remained conscious. She noted that the time was “three minutes to six”. Kamper-man testified that she begged Cherry to help her and to call 911 but that he did nothing at first. Cherry knelt down beside her, possibly to check her pulse, then left the room. Cherry returned to the room carrying a yellow box which he placed on the bed and placed the gun beside the box. Kamperman also testified that Cherry stated he did not want to go to jail, so she told him that she would say the shooting was an accident. She told him that she loved him and that they would be together. Kamperman stated that Cherry then placed the engagement ring that she had returned to him back on her finger and called 911. Kamperman denied that Cherry threatened suicide on this occasion.
Cherry testified that the shooting was accidental. He explained that he did not know that Sara was going to return after leaving his room the first time. He retrieved a Glock 10mm from his collection of more than 20 guns in order to clean it in preparation for a possible deer hunt with his brother. Cherry stated that the gun did not contain a magazine; however, he did not check to see whether a bullet was in the chamber. Cherry planned to clean the gun on his bed and stated that his gun cleaning kit was out on his bed. Cherry
Lane Johnson (“Johnson”) and Kelly Duke (“Duke”), both EMT personnel who transported Kamperman to the hospital, heard Kamperman state that the shooting was not accidental. Lane asked Kamper-man what happened and she replied that it was not an accident and that Cherry waited to call 911 because he was afraid of getting in trouble. Duke testified that Cherry did not show much emotion at the scene. Rather, he was not crying, and he had a blank, calm look. Officers Paula Langford and Michael Blackmon of the Shreveport Police Department investigated the incident. Cherry informed them that he and Kamperman were sitting on the bed when the gun accidentally discharged while he was cleaning it. Cherry testified that he gave this statement because he was embarrassed to admit that he was suicidal. According to Officer Lang-ford, Cherry appeared very calm and was not crying. Officer Blackmon recalled that Cherry seemed upset and made crying sounds but exhibited no tears. Officer Blackmon also recalled that Cherry did not seem surprised when he was charged with attempted second degree murder.
| ¿After a bench trial of this matter, the trial court determined that the State failed to meet its burden of proving that Cherry had the specific intent to kill as required to prove the charge of attempted second degree murder. The trial court noted that he had concerns about the veracity of both Kamperman and Cherry and expressed the opinion that both individuals had a need for psychological counseling. With these expressed concerns, the trial court concluded that the shooting was not accidental and that it did not occur while Cherry cleaned the gun. This conclusion was based on four observations: (1) Kamperman stated from the beginning that the shooting was not accidental; (2) Emergency personnel confirmed hearing Kamperman state that the shooting was not accidental as she was transported to the hospital; (3) Expert testimony was of the opinion that the shooting was not accidental; and (4) Only Cherry’s testimony supported the theory of an accidental shooting. The trial court concluded that while the evidence adduced at trial was not sufficient to prove attempted second degree murder, it was sufficient to find Cherry guilty of the responsive verdict of aggravated battery as provided in La. C.Cr.P. art. 814(A)(4). Thereafter, the trial court sentenced Cherry to five years at hard labor and imposed a fine of $1,000 plus costs.
After sentencing, Cherry filed a motion for new trial based on a motion for summary judgment filed by Kamperman in her civil suit against him. In the motion for summary judgment, Kamperman’s counsel argued that there is no genuine issue of material fact that Cherry’s actions were anything other than negligence. Cherry asserted in his motion for new trial that if Kamperman had testified in accordance with her allegations in the summary judgment motion then the trial court would have had no alternative but to acquit him. The trial court denied the motion for new
SUFFICIENCY OF THE EVIDENCE
Cherry contends that the evidence was not sufficient to prove his guilt beyond a reasonable doubt. He argues that the State’s case rested primarily upon Kamperman’s testimony and that it was established at trial that Kamperman is untruthful. For proof of Kamperman’s untruthfulness, Cherry points to Kamper-man’s own admission that she lied to him about her background. He also points out that Kamperman testified that she did not live at his residence from September to November 1995, even though the evidence established otherwise. Cherry also interprets the expert testimony as supporting his claim that the shooting was accidental. Such testimony indicated that Kamper-man’s left thumb was within one or two inches of the gun barrel when it discharged, that her thumb was between the gun barrel and her chest upon discharge, and that her chest was within one or two feet of the gun when it was fired. Cherry also asserts that the state presented no evidence that the gun could not have discharged as a result of being struck by Kamperman.
Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard for- appellate review of sufficiency of the evidence claims is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Bellamy, 599 So.2d 326 (La.App. 2 nd Cir.), writ denied, 605 So.2d 1089 (La.1992). The Jackson standard is applicable in cases involving both direct and circumstantial evidence. In reviewing sufficiency of the evidence, we must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct | (¡evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App. 2 nd Cir.1988).
This court’s authority to review questions of fact in a criminal case is limited to an evaluation of the sufficiency of the evidence under the Jackson standard and does not extend to credibility determinations made by the trier of fact. La. Const. Art. 5, § 5(C); State v. Williams, 448 So.2d 753 (La.App. 2 nd Cir.1984). A reviewing court accords great deference to a trier of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La. App. 2 nd Cir.1986), writ denied, 499 So.2d 83 (La.1987). In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Ford, 28,724 (La.App. 2 nd Cir. 10/30/96), 682 So.2d 847.
Cherry was convicted of aggravated battery, which is a battery committed with a dangerous weapon. La. R.S. 14:34. A battery is defined as “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. A dangerous weapon, as that term is defined in La. R.S. 14:2(3), is “any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” An aggravated battery conviction requires proof of only general criminal intent or a showing that the defendant in the ordinary course of human experience, must have adverted to prescribed criminal consequences as reasonably certain to result
In applying the reasonable doubt or sufficiency of the evidence standards, our focus must be a narrow one considering only whether Cherry was convicted of aggravated battery upon inadequate evidence, while giving deference to the trier of fact’s credibility call. State v. Dunn, supra. The evidence at trial presented two conflicting versions of the shooting. Kamperman testified that the shooting was not an accident and that Cherry stood up, reached his arm out, and shot her. Cherry testified that the shooting was accidental and that the gun discharged when Kamperman hit his hand as he was bringing the gun around to shoot himself. The trier of fact, while expressing concerns about the veracity of both Cherry and Kamperman, made a credibility call to accept Kammperman’s testimony as to how the incident occurred. In doing so, the trial court obviously dismissed Cherry’s testimony as incredible. We cannot say that the trial court was clearly wrong in its evaluation of the witnesses’ testimony and its credibility call.
A significant factor in support of the trial court’s determination is that Kamper-man’s version of the shooting was consistent immediately after the shooting and throughout trial. Johnson and Duke, emergency personnel who transported Kamperman to the hospital, testified that Kamperman said the shooting was not accidental. Johnson also testified that Kam-perman said that Cherry waited to call 911 because he was afraid of getting in trouble. Although Cherry points to evidence of Kamperman’s past untruthfulness, including the testimony of Kamperman’s mother, Darlene Kamperman, that Kamperman is not always truthful, nothing at trial established that Kamperman lied about the shooting.
In contrast to Kamperman’s consistent version of how the shooting occurred, Cherry’s version was contradicted by his own statement to the police called to the scene of the shooting incident. Immediately after the shooting, Cherry told Officers Langford and Blackmon that the gun discharged and struck Kamperman as he was cleaning it. While Cherry argues that his trial version is ^supported by the testimony of experts who analyzed the crime scene and tested the gun used in the shooting, our review of the record indicates that the testimony referred to by Cherry is as consistent with Kamperman’s version of the incident as it may be with Cherry’s version. The testimony of Sergeant Mark Rodgers of the Shreveport Police Department, who analyzed the crime scene, and the testimony of Richard Beighley, a criminologist who tested Cherry’s gun, indicates that the shooting occurred at close range with Kamperman likely facing the muzzle of the gun and with her left hand placed as an intermediate target between her chest and the barrel of the gun. This scenario is consistent with Kamperman’s version that she stepped closer to Cherry to console him, then raised her left hand as he fired the gun.
Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found that Cherry committed the offense of aggravated battery. Kamperman’s testimony alone is sufficient as proof that Cherry committed all the elements of the offense. We find no merit in this assignment of error.
MOTION FOR NEW TRIAL
Cherry contends that the trial court erred in denying his motion for a new trial. The basis of the motion for a new trial was a motion for summary judgment filed by Kamperman in her civil suit against Cherry. The memorandum in support of summary judgment prepared by Kamperman’s counsel includes the assertion that there is no genuine issue of fact that Cherry’s actions during the shooting “were anything other than negligence.” Excerpts from Kamperman’s deposition were included in
La.C.Cr.P. art. 851 provides in pertinent part:
The motion for a 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.
The court, on motion of the defendant, shall grant a new trial whenever:
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(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.
A defendant who seeks a new trial based on newly discovered evidence must establish that (1) the new evidence was discovered after trial; (2) that failure to discover the evidence before trial was not attributable to his lack of diligence; (3) that the evidence is material to the issues at trial; and (4) that the evidence is of such a nature that it would probably produce a different verdict in the event of retrial. State v. Cavalier, 96,3052 (La.10/31/97), 701 So.2d 949.
The trial court has much discretion in ruling on a motion for new trial. State v. Hammons, 597 So.2d 990 (La.1992); State v. Haygood, 26,102 (La.App. 2 nd Cir. 8/17/94), 641 So.2d 1074, writ denied, 94,2373 (La.1/13/95), 648 So.2d 1337; State v. Robinson, 624 So.2d 1260 (La.App. 2 nd Cir.1993), writ denied, 93,2899 (La.2/11/94), 634 So.2d 372. In ruling on a motion for new trial, the trial court’s duty is not to weigh the evidence as though he were a trier of fact determining guilt or innocence, rather his duty is the narrow one of determining whether there is new material fit for a new trier of fact’s judgment. State v. Cavalier, supra; citing State v. Prudholm, 446 So.2d 729 (La.1984). The merits of a motion for new trial should always be viewed with extreme caution in the interest of preserving the finality of judgments. State v. Haygood, supra.
Furthermore, where the issue on a motion for new trial primarily involves a question of credibility the trier of fact is better situated to make such determinations. State v. Tyler, 342 So.2d 574 (La.1977). Discussing the issue of credibility as a basis for new trial in Tyler, supra, the Louisiana Supreme Court stated:
Experience teaches that recantations of trial testimony should be looked upon with the utmost suspicion. United States v. Johnson, 487 F.2d 1278 (4th Cir.1973); Larrison v. United States, 24 F.2d 82 (7 th Cir.1928). And, as a legal proposition, a new trial should not be granted on the ground that the newly discovered evidence destroys the credibility of the State’s witness. See State v. Brandle, 187 La. 945, 187 La. 945, 175 So. 628 (1937); State v. Bates, 140 La. 833, 74 So. 165, 74 So. 165 (1917), overruled on other grounds; State v. Williams, 38 La. Ann. 361 (1886).
State v. Tyler, 342 So.2d at 588.
In his motion for new trial, Cherry contends that Kamperman’s credibility was questioned by the trial court and that her credibility should now be considered non
The motion for summary judgment filed in Kamperman’s civil suit pertained to the issue of insurance coverage. Therefore, the necessity for arguing that Cherry’s actions were negligent, rather than intentional, is readily apparent. In the memorandum in support of summary judgment, Kamperman’s counsel asserts | nthat Cherry acted negligently and that the shooting occurred as Cherry brought the gun up towards his mouth and struck Kamper-man’s hand thereby accidentally discharging the gun. However, this theory is not supported by Kamperman’s actual deposition testimony, excerpts of which were attached to the summary judgment motion.
In her deposition, Kamperman testifies just as she did at trial. Kamperman relates that when she returned to Cherry’s room after going to her car to get a wrapping for a birthday gift, she found Cherry leaning back on his bed with a pillow over his stomach. He was upset, crying, and begging her to stay. She stepped closer to console him, at which point Cherry’s expression changed and he stood up, dropped the pillow, reached out the gun, and shot her. Kamperman also related that she put up her hand. However, contrary to the assertion put forth by counsel in the memorandum accompanying the summary judgment motion, Kamperman did not testify that she struck the gun. Rather, Kamperman stated that she “never touched the gun” and she repeatedly denied touching or grabbing the gun. Kam-perman also related in her deposition, just as she testified at trial, that Cherry hesitated in calling 911 for help, that he said he would not go to jail, that he knelt beside her and possibly checked her pulse, and that she told him that they would be married and have a family, at which point he then called for help. Upon our review of Kamperman’s deposition testimony we find nothing which refutes her testimony at trial as to how the shooting occurred. Rather, Kamperman’s deposition version of how the shooting occurred is consistent with the version given by her since immediately following the shooting.
In response to certain questions at her deposition regarding the possibility that the shooting happened as Cherry described and regarding Cherry’s state of mind as to whether he intended to shoot her, Kamperman equivocates somewhat in her responses. However, we do not find that her equivocations refute her testimony j^at trial in any way. For instance when asked whether it is possible that Cherry did not intentionally shoot her, Kamperman responds that she doesn’t know and states, “I don’t know what he was thinking at the time.” When asked whether it is possible that the shooting happened as Cherry described or whether it is possible that someone could determine that Cherry’s actions were not intentional, Kamperman responded “I suppose” and “I guess I assume that it’s possible for them to determine just about anything.” Kam-perman also stated that she does not understand why she was shot. Finally, when asked whether she still believes that Cherry intentionally shot her, she replied that she cannot tell whether he intentionally shot her because she was not in his mind and stated, “All I know is that he stood up and I was shot.”
Cherry-points to the above excerpts as evidence that Kamperman acknowledged that the shooting may not have been intentional. However, none of Kamperman’s answers are contrary to her version of the incident and no where does Kamperman state that the shooting was accidental. Kamperman merely acknowledges the fact that she cannot know and did not know what Cherry was thinking when he fired
The trial court was well aware of the weaknesses in the state’s case against Cherry. Despite concerns, the trial court found the state’s evidence sufficient to find Cherry guilty of aggravated battery beyond a reasonable doubt and denied Cherry’s motion for a new trial. The trial court explained that Kampermaris credibility was taken into consideration when rendering the guilty verdict and thatlisthe fact of her position in civil court does not change the court’s position regarding her credibility or the weight given her testimony at trial. The trial court assessed the motion for new trial and determined that the evidence from Kampermaris motion for summary judgment and deposition was not new evidence which would be likely to produce a different verdict in the event of retrial. Considering the trial court’s unique position regard to assessing credibility, we cannot say that the trial court abused its discretion in denying Cherry’s motion for a new trial.
In finding no abuse of discretion in the trial court’s denial of Cherry’s motion for a new trial, we distinguish between the arguments made by Kampermaris civil counsel in the summary judgment motion and Kampermaris own words during her deposition. Had Kamperman actually testified at her deposition that the shooting occurred in the manner described by her counsel in the summary judgment motion, then our decision to affirm the denial of the motion for new trial might have differed. However, as stated previously, Kampermaris deposition testimony is consistent with her trial testimony and does not provide support for the arguments made by her counsel in the summary judgment motion. We find no merit in this assignment of error.
SENTENCING
Cherry contends that the trial court misinterpreted and misapplied La. C.Cr.P. art. 893.3 in imposing a sentence of five years at hard labor. Cherry bases his contention on the trial court’s comment at sentencing that he desired to impose a lesser sentence but that he was statutorily required to impose a minimum sentence of five years. Cherry argues that La.C.Cr.P. art. 893.3 does not require a minimum sentence of five years.
Upon imposition of the sentence, defense counsel made an oral objection to the sentence without reasons. Cherry did not make or file.a motion for reconsideration of sentence. La.C.Cr.P. art. 881.1(D) provides:
Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.
This article precludes a defendant from presenting arguments on appeal which were not presented to the trial court. In such circumstances, the defendant is relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La. App. 2 nd Cir. 2/25/98), 707 So.2d 164. Cherry does not raise excessiveness of sentence as an assignment of error on appeal.
Although Cherry did not make a motion to reconsider sentence, our review of the record reveals no error in the trial court’s application of La.C.Cr.P. art. 893.3, which provides for the enhancement of sentences
A. If the court finds by clear and convincing evidence that a firearm was actually used by the defendant in the commission of the felony for which he was convicted, the court shall impose the maximum sentence of imprisonment provided by law if the maximum sentence is less than five years and shall impose a sentence of at least five years if the maximum sentence exceeds five years.
B. A sentence imposed under this provision shall not be suspended and shall be imposed in the same manner as provided in the felony for which the defendant was convicted.
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D. If the court finds that a sentence imposed under provisions of this Article would be excessive, the court shall state for the record the reasons for such finding and shall impose the most severe sentence which is not excessive.
The penalty range for the crime of aggravated battery includes imprisonment with or without hard labor for not more than ten years. La. R.S. 14:34. As such, the minimum sentence under Article 893.3 is five years.
At a pre-sentencing hearing, the trial court correctly concluded the following:
|1S... under Article 893[.3] ... I cannot give a suspended sentence and I have to start at five as a minimum sentence unless I can articulate for the record based upon a finding or make a finding that I articulate that it should be less than five ...
Both the state and defense counsel agreed with the trial court’s conclusion. Also, defense counsel conceded that a firearm was used in the offense, thereby conceding the applicability of Article 893.3 to enhance the sentence.
At sentencing, the trial court stated that in the absence of the enhancement provisions, the court would impose a sentence, of not more than three and one-half years at hard labor. However, in applying the enhancement provisions of Article 893.3, the trial court imposed a sentence of five years hard labor. In imposing the sentence, the trial court noted that Cherry’s actions caused serious life-threatening harm to Kamperman, that Cherry failed to persuade the court of his remorse, and that Cherry’s post-conviction psychiatric analysis did not support his contention of having suicidal tendencies. The trial court also referred to mitigating factors including Cherry’s lack of a criminal record, his employment history, and the support of his family and friends. It is clear from the record that the trial court understood that it could have sentenced Cherry to a lesser sentence than the statutory minimum under Article 893.3 if it could articulate for the record reasons why the sentence should be less. The trial court’s failure to impose a lesser sentence leads us to conclude that the court determined the sentence imposed under Article 893.3 was not excessive. We find no merit in this assignment of error.
CONCLUSION
For the reasons discussed, we affirm the conviction and sentence of William Jeff Cherry for the offense of aggravated battery.
AFFIRMED.
PEATROSS, J., dissents with written reasons.
Dissenting Opinion
dissenting.
I respectfully dissent. La.C.Cr. P. art. 851 provides, in pertinent part:
The court, on motion of the defendant, shall grant a new trial whenever:
(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*904 have changed the verdict or judgment of guilty.
While I am cognizant of the wide discretion afforded the trial court in ruling on a motion for new trial, I find that the trial court’s interpretation of the requirements of article 851(3) in the present case was an abuse of that discretion. Correct interpretation and application of article 851(3) to the case sub judice, in my opinion, clearly requires that Defendant be granted a new trial.
First, Ms. Kamperman’s testimony in her civil deposition is clearly new material evidence, as it bears directly on the element of Defendant’s intent, which must be proven beyond a reasonable doubt to support a conviction of aggravated battery. The majority cites authority which holds that “recantations of trial testimony should be looked upon with the utmost suspicion,” and that “a new trial should not be granted on the ground that the newly discovered evidence destroys the credibility of the State’s witness;” however, the majority bases its opinion on its finding that Ms. Kamperman’s civil deposition testimony was not inconsistent with her trial testimony. It is with that finding that I disagree.
The majority views Ms. Kamperman’s civil deposition testimony as entirely consistent with her testimony at the criminal trial of Defendant. Furthermore, the majority places great significance on the characterization by her counsel of Ms. Kamperman’s position in the civil pleadings, stating that “[djespite the strong argument by Kamperman’s civñ counsel that the shooting was accidental and happened in the manner described by Defendant at trial, Kamperman’s own words do not support that argument.” Based on this distinction between Ms. | ?Kamperman’s civñ deposition testimony and the language in her civil pleadings, the majority finds no abuse of discretion in the trial court’s denial of the motion for new trial.
My review of the record, however, reveals that Ms. Kamperman’s testimony in her civil deposition substantially departs from her testimony in the criminal trial. This departure alone, in my opinion, is sufficient to warrant a new trial. At trial, Ms. Kamperman testified as follows:
A: About all I had time to do was reach out my hand and just take a step closer to him.
Q: What happened when you took a step closer to him?
A: His expression changed and he stood up off the bed and dropped a pillow that he was holding and that’s when I saw the gun. And all in one motion he just came up, out reached his arm and he shot me.
She also testified at the trial that Defendant delayed in calling 911 for assistance, that he showed no emotion following the shooting, that he left the room twice after she had been shot, that he was worried about going to jail and that he was still carrying the gun around immediately after the shooting. Ms. Kamperman testified, “I had been worried about him still having the gun and my being insistent on him calling 911.” When questioned about Defendant’s version of the incident, Ms. Kam-perman testified as follows:
Q: He said are you really going to go, you said yes, and he said I’m going to kñl myself. He took the gun out, you grabbed it, it went off, you got shot in the thumb and shot in the chest. Isn’t that what happened?
A: No, absolutely not.
This testimony clearly attempts to portray an intentional act on the part of Defendant.
Ms. Kamperman, however, tells a completely different story in her subsequent civil deposition. She testified as follows:
Q: I understand. It was [Defendant’s] testimony ... that he was going to threaten suicide with the gun like he had done, as you have admitted, many times before that.
A: Right.
*905 Q: And that when he went to bring the gun up like [sic] and that you went to grab at it and the gun went off. Is that possible?
A: I would suppose....
Additionally, Ms. Kamperman testified in her civil deposition that Defendant’s actions were “very negligent;” and, when asked if she thought there is a possibility that his actions were not intentional, she responded, “I suppose anything is possible.” While I agree with the majority that certain aspects of Ms. Kamperman’s civil deposition testimony are consistent with her testimony at the criminal trial, her statements bearing directly on the intent of the Defendant must not be overlooked.
Ms. Kamperman’s change of heart regarding the intent of Defendant is confirmed in her pleadings filed in the civil suit attempting to collect under Defendant’s mother’s homeowner’s insurance policy.
Even more telling, however, is Ms. Kam-perman’s revised version of the events of November 24, 1995, as told in the factual portion of her memorandum in support of her motion for summary judgment:
Throughout the Summer and early Fall of 1995, Sara Kamperman had been dating William Jeff Cherry and was actually engaged to be married to him, having accepted his offer of a ring in September 1995. She, however, changed her mind and returned the ring to Mr. Cherry on November 23, 1995 (Thanksgiving Day). On' November 24, 1995, Sara went to Mr. Cherry’s home to deliver a birthday present to Mr. Cherry’s brother. Mr. Cherry was upset about not only the dissolution of the engagement with Sara, but also his loss of his employment with Summit Hospital two (2) days earlier. He was very depressed and was crying. As he spoke with Sara about these problems, he became more and more depressed. In the past, Mr. Cherry had communicated to Sara a desire to commit suicide, even acting out the scene by placing a gun in his mouth and, at times, to his head. A collector of over twenty guns, Mr. Cherry had ample weapons to accomplish suicide had he decided to do so. Through a fog of depression and anguish and during their conversation about their broken engagement and his own loss of employment, Mr. Cherry attempted to place a 10mm Glock pistol in his mouth (as he had done 6 times before) while Sara was only one or two feet away. While attempting the feigned suicide, Mr. Cherry brought the gun up towards his mouth yet, during this “one motion” movement, struck the barrel of the pistol against Sara’s hand thereby discharging the pistol and accidentally shooting Sara in the chest. The 10mm Glock pistol has no manual safety and it contained no magazine of bullets. The safety is disengaged upon the pressure of only 7.28 pounds of pressure to the trigger which explains the sudden negligent discharge of the weapon. Evidently, a single bullet had been left in the barrel after the magazine had been removed from the pistol a year before.
*906 Naturally, Sara was injured subsequent to being shot. Mr. Cherry applied a dressing to the wound (a pillow from a nearby couch), took Sara’s pulse, called 911 for assistance, and monitored her vital signs while waiting for medical assistance, all the while telling her he loved her. Sara filed suit against Mr. Cherry and State Farm (his homeowners policy) seeking recovery for her injuries. In her suit, Sara contends that Mr. Cherry was grossly negligent in his actions and that he was not lucid at the time of the shooting but, instead, in a state of delirium which precludes the presence of any intent to injure or kill her. Only in the alternative has the plaintiff plead (sic) that Mr. Cherry intentionally acted against her. The fully developed evidence now shows that there was no intent on the part of Mr. | BCherry to injure and/or kill Sara, but, instead, an emotionally distraught man who accidently shot her.
State Farm answered the lawsuit contending that its policy excludes from its coverage harm committed against another by an insured by virtue of an intentional act (See paragraph 25 of State Farm’s Answer). The act herein committed against Sara was not the result of an intentional act against her and, as such, she is entitled to summary judgment on the issue of insurance coverage.
After describing the shooting as Defendant did at trial, Ms. Kamperman goes on in her memorandum to assert that “[Defendant] did not shoot Sara on purpose nor did he try, want to, or intend to kill her.” (Emphasis hers). I fail to see how the foregoing would not have created reasonable doubt in the mind of the trier of fact at the criminal trial.
Moreover, I disagree with the distinction made in the majority opinion between Ms. Kamperman’s civil deposition testimony and her pleadings filed in the civil suit because I believe such to be, merely her counsel’s characterization of Ms. Kamperman’s testimony as allegations in a motion written and filed on behalf of Ms. Kamperman and with her approval and permission. La. C.C. art. 1853, Judicial confessions, provides that “a judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.” Recognizing that this is not the typical factual situation in which that article operates
Regarding the second requirement of article 851(3), Defendant was diligent in preparing his defense insofar as his efforts to procure Ms. Kamperman’s civil deposition testimony prior to the criminal trial. For reasons beyond the control of Defendant and which I do not find particularly cogent, Ms. Kamperman, conveniently, did not complete the civil deposition until after the conviction of Defendant. Her testimony as to his lack of intent, therefore, was not discoverable before or during trial.
Finally, it is inescapable that, had this evidence been introduced at trial, “it would probably have changed the verdict” of guilty. La.C.Cr. P. art. 851(3). Had the trial court heard Ms. Kamperman’s testimony to the effect that she did not know Defendant’s intent, that she did not know what was going through his mind and her agreeing with defense counsel’s proposition that Defendant’s version of the event was a possibility, it is difficult to believe that the trial court, or a jury had one been empaneled in this case, would have found, beyond a reasonable doubt, that Defendant intended to shoot Ms. Kamperman. Defendant and Ms. Kamperman were the only two witnesses who could testify as to the events of that late November afternoon. In my view, the victim’s testimony as to her uncertainty of Defendant’s intent would unquestionably produce reasonable doubt in the mind of a reasonable trier of fact. For these reasons, I would find reversible error in the [7trial court’s failure to grant Defendant’s motion for new trial, reverse Defendant’s conviction and sentence and remand for further proceedings according to law.
. The civil suit is styled Sara Beth Kamperman v. William Jeff Cherry, et al, No. 419,870-C, filed in the First Judicial District Court in Caddo Parish, Louisiana.
. I believe it necessary to note at this juncture that, while I am aware of the suspiciousness with which we are to view recantations of trial testimony, I do not regard this particular factual situation as a typical "recantation” case. Ms. Kamperman's uncertainty regarding Defendant’s intent would have been critical testimony at his criminal trial. As the majority points out, there were many weaknesses in the State’s case against Defendant. I do not see this solely as an issue of Ms. Kamperman’s credibility. In State v. Cavalier, 96-3052 (La. 10/31/97), 701 So.2d 949, the supreme court held that the trial court "possesses the discretion to grant a new trial when the witness’s testimony is essentially uncorroborated and dispositive of the question of guilt or innocense and it appears that had the impeaching evidence been introduced, it is likely that the [trier of fact] would have reached a different result.”
. Article 1853 is the successor to former article 2291 of the 1870 Civil Code which defined a judicial admission or confession as a party's express acknowledgment of correctness. The current article most often operates when a party desires to use the pleadings in a prior suit against the same party. This is commonly called an "extrajudicial admission.”
Rehearing
ON REHEARING
On Rehearing.
On a three to two vote, we granted Defendant’s application for rehearing to review the denial of his motion for new trial on the grounds of newly discovered evidence which, Defendant argues, completely destroys the credibility of Ms. Kamperman’s testimony at trial and, had it been presented to the trier of fact, would probably have changed the verdict of guilty. The newly discovered evidence consists of the testimony of Ms. Kamper-man, in her civil deposition and statements made by her, through her civil counsel, in her amended petition, motion for summary judgment and memorandum in support thereof (hereinafter collectively referred to as “civil suit documents”), filed in the subsequent civil suit against Defendant arising out of the shooting incident. Without the benefit of the testimony of Ms. Kamperman regarding her statements in the civil suit documents, the trial court denied Defendant’s motion for new trial, noting that while it acknowledged concerns regarding Ms. Kamperman’s credibility, “[t]he fact that she has now gone to Civil Court does not change the Court’s position about her credibility nor changes in any way the weight that the Court would have given her testimony at trial.” A panel of this court affirmed Defendant’s conviction, with one judge dissenting. State v. Cherry, 32,141 (La.App.2d Cir.9/22/99), 752 So.2d at 894. For the reasons set forth below, which are more fully discussed in the dissent, we reverse our prior decision in this case and remand for an evidentiary hearing on Defendant’s motion for new trial.
In State v. Cavalier, 96-3052 (La.10/31/97), 701 So.2d 949, the supreme court was confronted with a situation similar to the instant case. In addressing the defendant’s motion for new trial, the supreme court explained:
Newly discovered evidence affecting only a witness’s credibility “ordinarily will not support a motion for a new trial, because new evidence which is ‘merely cumulative or impeaching’ is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial.” Nevertheless, the*908 court possesses the discretion to grant a new trial when the witness’s testimony is |gessentially uncorroborated and dis-positive of the question of guilt or innocence and it “appears that had the impeaching evidence been introduced, it is likely that the jury would have reached a different result.” In making this determination, the court may assume that the jury “would have known that [the witness] had lied about the matter[.]” (Internal citations omitted.)
Being satisfied that the newly discovered evidence was “sufficiently probative” of the victim’s credibility to warrant a rehearing on the defendant’s motion for new trial, the court in Cavalier remanded for an evidentiary hearing on the motion.
In the case sub judice, we find that the verdict of guilty must have been based in large part on the testimony of Ms. Kam-perman regarding Defendant’s alleged intent to shoot her. In light of the fact that Ms. Kamperman and Defendant were the only two present at the time of the shooting, we cannot underestimate the significance of her testimony as to the events of that afternoon. We further find that the newly discovered evidence in Ms. Kamperman’s subsequent civil suit documents is not only “sufficiently probative” of Ms. Kamperman’s credibility to warrant a rehearing on Defendant’s motion for new trial, but also bears directly on the element of intent on the part of Defendant. We believe it is necessary for the trial court to consider the impeaching evidence in the civil suit documents, but also to hear the testimony of Ms. Kamperman in order to determine the inconsistencies of her testimony at the criminal trial and the evidence filed in her civil suit. We find, therefore, as did the court in Cavalier, that such determination is for the trial court in the first instance. Cavalier, supra; State v. Bryan, 398 So.2d 1019 (La.1980).
Under the proper standard for ruling on the motion for new trial, the trial court must determine not just whether the State’s evidence, despite the contradictions and discrepancies, was sufficient to support the conviction against a challenge to sufficiency under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), but, also, whether the evidence presented at trial appears strong enough to support a conclusion that the newly discovered evidence probably would not have changed the verdict when one considers the newly discovered evidence that would be presented at a new trial. Cavalier, supra. In other words, the trial court must determine whether the testimony of Ms. Kamperman regarding the negligence of Defendant, as described in her civil suit documents, which is contradictory to her testimony at the criminal trial that Defendant intentionally shot her, would probably have changed the result of the trial.
Accordingly, we reverse our prior decision in this case and remand for an eviden-tiary hearing on the allegations of the motion for new trial.
REVERSED AND REMANDED FOR EVIDENTIARY HEARING ON DEFENDANT’S MOTION FOR NEW TRIAL.
STEWART and CARAWAY, JJ., dissent for reasons in the original opinion.