This is аn appeal from the denial of a new trial motion based upon after-discovered evidence. We find the trial judge erred in finding certain expert evidence could have been discovered by the exercise of duе diligence, and reverse and remand for a new trial.
Appellant was convicted of the 1981 sexual assault, robbеry, and murder of Melva Neill, as well as the burglary of her home, and received a death sentence.
See State v. Spann,
(1) is such that it would probably chаnge the result if a new trial were granted;
(2) has been discovered since the trial;
(3) could not in the exercise of due diligence have been discovered prior to the trial;
(4) is material; and
(5) is not merely cumulative or impeaching.
State v. Prince,
Appellant presented both expert and lay testimony in support of his motion. The circuit court judge held the expert evidence failed the due diligence prong of the test. He denied the new trial motiоn as to the lay evidence, holding that some of that evidence was merely impeaching, and some was simply not credible. We reverse the order as it relates to the expert testimony and the due diligence issue. Since rеversal on this ground entitles appellant to a new trial, we need not address his remaining issues.
In order to understand the аfter-discovered evidence, it is necessary to review certain events which occurred within a twelve mile rаdius in York County between July and November 1981. On July 18, 1981, the body of Mary Ring was discovered in the bathtub of her home. Ms. Ring was a heavy-set white woman, fifty-seven years old, who had been beaten about the head, sexually assaulted, and strangled to death. Her nudе body was found in her partially filled tub. Approximately two months later, the nude body of eighty-one year old Melva Neill wаs found in the bathtub of her home. Ms. Neill had been beaten around the face and chest, had been brutally sexually assаulted, and strangled, her body then placed in the partially filled tub. Ms. Neill was a heavy-set white woman.
On November 16, 1981, the mostly nude body of Bessie Alexander was found on her dining room floor. Ms. Alexander had been injured on her face and neck, and there were bruises on other parts of her body. She too had been sexually assaulted, and then strangled. Ms. Alexander was a heavy-set white woman who, like Ms. Ring and Ms. Neill, was living alone. Ms. Alexander’s bathtub was inaccessible from her home’s interior, but her body had been drenched in liquids, including fruit juice.
Ms. Ring’s killer was never found. Appellant was arrested for the murder of Ms. Neill оn September 18, 1981, and subsequently convicted. Johnny Hullett was convicted of the crimes against Ms. Alexander, committed approximately two months after appellant was jailed. At the time of the Alexan
At the new trial hearing appellant presented the testimony of three expert -witnesses: a forensic pathologist (Dr. Spitz); a forensic psychiatrist (Dr. Tanay); and an expert in crime scene analysis and criminal persоnality profiling .(Mr. Ressler). Dr. Spitz testified that all three women were strangled in a unique way, a method he had never before observed in forty-three years of practice. He testified to other factual similarities between the crimes, and opined that one perpetrator was responsible for all three murders. Dr. Tanay testified the three murdеrs were committed by a single individual, a sexual sadistic murderer. He testified to the psychiatric characteristics оf these types of killers, and opined based upon his examination of appellant that it was “impossible” that аppellant had committed these offenses. Dr. Tanay also testified that sexual sadistic killers are almost always psychiatrically disturbed white males. Appellant is a black man with no history of psychiatric problems; Johnny Hullett is a white male with a long psychiatric history. Finally, Mr. Ressler profiled the killer of these three women as a white male in his mid-20’s to mid-30’s with a history of mental illness, who was either single or had a dysfunctional marriage, a person with bizarre fantasies, a history оf childhood abuse, and knowledge of the area. Appellant does not fit this profile.
The circuit court judge fоund the expert testimony “thought-provoking” and “intriguing”, and specifically found that Mr. Ressler’s testimony “raise[d] a reasonable inference as to [appellant’s] innocence.” The judge rejected the testimony of all three exрerts as grounds for the granting of a new trial, however, finding the evidence and science upon which their opinions wеre based was all in existence at the time of appellant’s trial, and thus could have been discovered by his аttorneys with the exercise of due diligence. We disagree. In order for the attorneys to have pursued these tyрes of ex
We find the circuit court judge committed an error of law, under the unusual facts of this case, in holding the newly discovered expert evidence could have been discovered by the exercise of due diligence.
State v. Prince, supra; State v. Parker,
REVERSED AND REMANDED.