State v. Major

STANDARD OF REVIEW

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Willie E. Major,       
Appellant.

Appeal From Kershaw County

R. Markley Dennis, Jr., Circuit Court
Judge

Opinion No. 2003-UP-87

Submitted November 20, 2002 - January
29, 2003

AFFIRMED

Assistant Appellate Defender Aileen P. Claire, of Columbia,
for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney Charles H. Richardson, Assistant
Attorney David Spencer, and Solicitor Warren B. Giese, all of Columbia, for
respondent.

PER CURIAM:  Willie E. Major was
convicted of grand larceny and three counts of third-degree burglary.  He was
sentenced to a total of five-years imprisonment on all charges. Major appeals,
arguing the trial court abused its discretion by denying Major’s motion for
a new trial where after-discovered evidence demonstrated that a key witness
committed perjury.

FACTUAL/PROCEDURAL HISTORY

On July 8, 2000, Major, Steve Cannon,
and Gary Morris discussed renting two U-Haul trucks to use the next day in stealing
furniture and appliances from mobile homes.  Later that day, Major rented the
trucks in his name.

At approximately 5:00 a.m. on July 9, 2000, Major
called Cannon to coordinate the pickup of the U-Haul trucks.  The three men
met at approximately 5:30 a.m. and drove the U-Haul trucks to a mobile home
park. They loaded the first truck with furniture and appliances taken from several
mobile homes.

At approximately 7:30 a.m., a witness drove into
the mobile home park.  The witness noticed two U-Haul trucks and men loading
furniture into one of the trucks.  Believing this activity to be suspicious,
the witness called police.  After seeing the witness, Cannon and Morris immediately
drove the U-Haul trucks from the mobile home park.   Police stopped the vehicles
on the interstate.

Major was subsequently indicted
for grand larceny and three counts of third-degree burglary.  A jury found him
guilty on all charges.  Major appeals.

STANDARD OF REVIEW

“[A]bsent error of law or abuse of discretion,
an appellate court will not disturb the trial judge’s denial of the motion [for
a new trial based on after-discovered evidence].” State v. Needs, 333
S.C. 134, 158, 508 S.E.2d 857, 869 (1998).

DISCUSSION

Major argues the trial court abused its discretion
by denying Major’s motion for a new trial where after-discovered evidence demonstrated
that a key witness committed perjury.

To prevail on a motion for a new trial based on after-discovered
evidence, a defendant must show (1) the evidence is such as will probably change
the result if a new trial is granted; (2) the evidence has been discovered since
the trial; (3) the evidence could not have been discovered prior to trial by
the exercise of due diligence; (4) the evidence is material; and (5) the evidence
is not merely cumulative or impeaching.

Needs, 333 S.C. at 157-58, 508 S.E.2d at
869; Hayden v. State, 278 S.C. 610, 611, 299 S.E.2d 854, 855 (1983).

At trial, Major testified that on the
day of the incident he was not with Cannon and Morris.  Specifically, he stated
that from 7:00 a.m. until 8:00 a.m. he was at the Waffle House.  After leaving
the restaurant, Major stated he went to Morris’ house where he spent time talking
to Morris’ wife (“Witness”).  Major stated that he left Morris’ house at 11:00
a.m.

In reply to this alibi testimony, Witness
testified that she left her house shortly before 6:00 a.m. to ensure that she
arrived at work on time.  She stated that her brother stayed at her house to
babysit her eleven-year-old daughter.  Witness testified that she returned to
the house at 1:00 p.m.

After the close of evidence, Major’s attorney
learned that Witness had committed perjury by saying that she had been at work
on the day of the incident.  Instead of being at work, she had actually left
the house to meet with a paramour.

Despite Major’s claim, his argument fails for several
reasons.  Major has failed to demonstrate the after-discovered evidence would
change the outcome in a new trial.  Major admitted to renting the two U-Haul
trucks.  Phone records establish that Major made phone calls to Cannon at 5:00
a.m. and at 5:30 a.m. on the day of the incident.  Several witnesses testified
that Major, Cannon, and Morris met around 5:30 a.m.  Both Cannon and Morris
testified that Major participated in the grand larceny and the robberies that
took place that morning.  Thus, even if a new trial were granted, the result
of the new trial would likely not be different from the original trial. See
Needs, 333 S.C. at 158, 508 S.E.2d at 869 (holding appellant did not
meet burden to show that after-discovered evidence would likely change the result
if a new trial was granted, even though “the State’s case against appellant
was not overwhelming”).

Additionally, Major has failed to show that he
acted with due diligence.  Witness was available before trial for the defense
to interview.  The defense chose not to interview her.  Thus, the fact that
Witness was not at work on the day in question could have been discovered by
Major’s attorney if he had acted with due diligence. See State v.
Kelly, 285 S.C. 373, 374, 329 S.E.2d 442, 443 (1985) (holding trial court
properly denied motion for a new trial based on after-discovered evidence because
appellant did not make a showing that evidence could not have been discovered
with due diligence prior to trial when appellant and her private investigator
spoke to witness before trial but failed to adequately question the witness).

Furthermore, Major has failed to establish that
the after-discovered evidence did more than merely impeach Witness’ credibility. 
The perjured testimony addressed Witness’ whereabouts after she left the house,
not whether she left the house.  Part of Major’s alibi for the time when the
crimes were committed was that he was at Morris’ house having a conversation
with Witness from approximately 8:00 a.m. to 11:00 a.m.  Witness testified that
she left the house shortly before 6:00 a.m. and did not return until after 1:00
p.m., meaning that she was not at home during the time Major claims to have
visited with her.  In addition, both Morris and Witness’ brother testified that
the brother stayed at the house to watch the Morris’ daughter because neither
parent would be home after 6:00 a.m.  Thus, the perjured testimony merely impeached
Witness’ credibility and did not affect the strength of Major’s alibi. See
State v. Caskey, 273 S.C. 325, 330, 256 S.E.2d 737, 739 (1979) (holding
defendant was not entitled to a new trial when after-discovered evidence merely
impeached the witness’ credibility and was “not material to appellant’s guilt
or innocence”).  Based on the above discussions, the trial court did not abuse
its discretion in denying Major’s motion for a new trial.

CONCLUSION

For the foregoing reasons, the trial court’s decision
is

AFFIRMED. [1]

CONNOR, STILWELL, and HOWARD, JJ., concur.

[1] Because oral argument would not aid the Court in resolving
any issue on appeal, we decide this case without oral argument pursuant to
Rule 215 and 220(b)(2), SCACR.