Jackson v. State

MOYLAN, J. The critical question on this appeal is that of who — the trial judge or the appellate court — gets to determine whether newly discovered evidence, offered in support of a motion for a new trial, is weighty enough and credible enough to justify (from the trial judge’s vantage point) or to compel (from the appellate vantage point) the awarding of a new trial. After the trial judge has said, “No,” is there some mechanical appellate test for materiality that may override the trial judge’s discretion, a discretion rooted in his sense or “feel” of the case over which he has presided? What does appellate deference really amount to? Does the “abuse of discretion” standard mean something more predictable than whatever the appellate court wants it to mean on a particular occasion?

What are the limits that an appellate court may not transgress in finding an abuse of discretion? The Contentions The appellant, Kevin Eugene Jackson, was convicted by a Somerset County jury, presided over by Judge Daniel M. Long, of two counts of sexual child abuse. In this appeal he contends ⁶⁸⁵ 1. that Judge Long erroneously failed to grant his motion for a new trial; 2. that Judge Long erred in responding to two questions submitted by the jury in the course of its deliberations; and 3. that Judge Long, at the sentencing stage, erroneously considered 1) a hearsay statement by David Dunn contained in the Presentence Investigation Report and 2) a letter submitted to the court by David Dunn which had not been provided to the defense in advance of sentencing. Factual Background The appellant and Kimberly Milbourne were married in 1992 and divorced in 1996.

Their daughter, the victim of the sexual child abuse in this case, was born on April 4, 1992. Both the 1996 divorce and the ensuing custody fight over the daughter were, by mutual acknowledgment, “contentious” and “ugly.” The court awarded the custody of the daughter to the mother and allowed the appellant visitation privileges on alternate weekends. Both the mother and the appellant remarried. In 1999, the mother and her new husband moved to Virginia with the daughter in what they freely admitted was an attempt to thwart visitation by the appellant.

For some extended period of time, the appellant had no meaningful visitation with his daughter. As a direct result of that situation, he retained counsel and filed 1) a petition to enforce visitation, 2) a petition to find the mother in contempt, and 3) a complaint asking for custody of his daughter. In the wake of those filings, the mother reported that her daughter had in March of 2002, just before her 10th birthday, revealed to her that the appellant had sexually abused her back when she was four or five years of age. Charges were filed, and the appellant was ultimately convicted of two counts of sexual child abuse.

The Denial of the Motion for a New Trial The most significant of the contentions before us is that Judge Long abused his discretion in denying the appellant’s ⁶⁸⁶ Motion for a New Trial. At the outset of any review of whether a trial judge abused his discretion in denying a new trial motion, it is important to establish which party bears the burden of proof on the issue of whether a new trial should be awarded. The Burden of Proof On a Motion for New Trial It always behooves us, on any issue, to identify which party bears the burden of proof. When the evidence and the argument at a hearing on a Motion for New Trial, for instance, are so frustratingly scant that the trial judge cannot arrive at a definitive conclusion one way or the other, how does he resolve his doubt?

To wit, who wins and who loses the nothing-to-nothing tie? In law, of course, there are no ties, for we have deliberately created a device called the allocation of the burden of proof for the precise purpose of avoiding ties. That party to whom the burden of proof is allocated is, by definition, the loser of what would otherwise be a tie. At a hearing on a Motion for New Trial, the burden of persuading the trial judge that such a remedy is called for is on the defendant, as the moving party.

Writing for the Court of Appeals in Argyrou v. State, 349 Md. 587, 609 , 709 A.2d 1194 (1998), Chief Judge Bell emphatically made this allocation of the burden clear: As the proponent of the new trial motion, the petitioner had the burden of establishing, among other things, that the confession was newly discovered evidence. The petitioner simply failed to carry it. Accordingly, the trial court did not abuse its discretion when it denied the petitioner’s motion for new trial. (Emphasis supplied).

See also Isley v. State, 129 Md.App. 611, 673-74 , 743 A.2d 772 (2000). Three Subcontentions That Defaulted The guilty verdicts in this case were rendered on March 11, 2004. The Motion for a New Trial was filed on May 5. The first three grounds alleged in that motion were 1) that the evidence was legally insufficient to support the verdicts, 2) ⁶⁸⁷ that there was no evidence to corroborate the testimony of the victim, and 3) that the verdict was contrary to the weight of the evidence.

Judge Long declined to entertain those three contentions, because the motion for a new trial had been filed well beyond the 10-day period set out in Maryland Rule 4-331(a), which provides: (a) Within Ten Days of Verdict. On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. In Love v. State, 95 Md.App. 420, 426-28 , 621 A.2d 910 , cert. denied, 331 Md. 480 , 628 A.2d 1067 (1993), this Court discussed the significance and the binding nature of that 10-day time limitation. The Motion for New Trial in a criminal case, recognized by Md. Ann.Code art. 27, § 594 (1992), is controlled by the provisions of Maryland Rule 4-331.

The Motion is available on three progressively narrower sets of grounds but over the course of three progressively longer time periods. The shortest of time periods but the broadest of predicates is that provided by subsection (a,): The list of possible grounds for the granting of a new trial by the trial judge within ten days of the verdict is virtually open-ended. ... ... This broader latitude is in keeping with the provision of subsection (a) that a judge may order a new trial “in the interest of justice.” This broad, base for awarding a new trial is tightly circumscribed by the timeliness requirement that the motion be filed “within ten days after a verdict. ” ... Trial judges, moreover, are not empowered to overlook the filing deadline.

(Emphasis supplied). Judge Long, therefore, properly declined to hear the three contentions that could only have been legitimately considered if they had been timely raised within ten days of the verdicts. ⁶⁸⁸ They clearly had not been so timely raised. As we observed in Love v. State, 95 Md.App. at 423 , 621 A.2d 910 : The Motion for New Trial is one of the post-trial remedies. It is by no means, however, a never-failing panacea, available whenever and however outraged justice may beckon.

It is designed to correct some, but not all, flaws that may have marred a trial. It is limited, moreover, by rigid filing deadlines and other formal constraints. (Emphasis supplied). When Is Due Diligence Due?

The appellant, however, also raised a fourth ground for his motion. It was that of newly discovered evidence. The motion alleged: 6. Additionally, there is now new evidence, which could not have been discovered by due diligence prior to trial.

Specifically, the victim has now recanted her testimony that she was abused by the Defendant. She recanted her testimony the day after the trial to another family member. 7. The day after the trial, the victim stated that her mother and stepfather forced her to testify against her father. She also stated that she did not know that her father would go to jail if convicted. 8.

It is now clear that the witness/victim has either been threatened or coached by her mother and stepfather. (Emphasis supplied). Of the three time periods for filing a Motion for New Trial under Rule 4-331, the narrowest in terms of its justiciable subject matter but the most generous in terms of its filing deadline is subsection (c), which provides, in pertinent part: (c) Newly discovered evidence. The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule: (1) on motion filed within one year after the date the court imposed sentence or the date it received a mandate ⁶⁸⁹ issued by the Court of Appeals or the Court of Special Appeals, whichever is later[.] (Emphasis supplied).

Love v. State, 95 Md.App. at 428-29 , 621 A.2d 910 , commented both on subsection (c)’s longer period of grace for filing and on its narrower substantive base. It is the third of the new trial provisions that is before us in this case. This is a form of relief available over a far more extended period of time, one year rather than the ninety days available under subsection (b) or the ten days available under subsection (a). There is, moreover, the possibility of two triggering events — the imposition of sentence or the receipt of an appellate mandate — for the running of the one-year clock, and a defendant is permitted to take advantage of the more favorable.

This form of relief, on the other hand, rests upon a far more narrow substantive base. (Emphasis supplied). Although the Motion for a New Trial based on newly discovered evidence was timely filed within one year of the verdicts, it nonetheless had a due diligence problem of a different nature. To justify the extended one-year filing deadline, it is required that the new evidence could not, with diligence, have been discovered within the first ten days after the verdict, so as to have permitted a more normal new trial motion pursuant to subsection (a).

To wit, the extraordinarily extended filing period itself is not automatic but has to be justified by due diligence. Love v. State, 95 Md.App. at 430 , 621 A.2d 910 , noted in this regard. To qualify as “newly discovered evidence” under the provisions of Rule 4-331(c), it is not enough, as the quotation states, that the evidence have been “discovered since the trial,” Jones, 16 Md.App. at 477, 298 A.2d 483 ; it is required, by the very terms of the Maryland Rule, that the evidence have been discovered more than ten days after a ⁶⁹⁰ verdict so that it was no longer timely “to move for a new trial pursuant to section (a) of this Rule.” (Emphasis supplied). Judge Long noted what was probably an actual lack of due diligence in failing to bring the evidence of alleged recantation within the more appropriate boundary of a Motion for a New Trial based on Rule 4-331(a).

I’m not sure also that the defendant has met his burden of proof in showing that there was due diligence given that the statements allegedly made by Jenna Jackson were made to a family member of the defendant one day after the verdict. It may be that the defendant [and] his attorney didn’t find out about that issue until later on, but clearly if there was a recantation, and I’m not persuaded there was, it was made not eleven days after the verdict but one day after the verdict. So there is that issue of due diligence that is floating out there [was] not shown to the satisfaction of the court that there was due diligence on the part of the defendant. But in any event I agreed to hear the motion.

(Emphasis supplied). The test, of course, is whether the evidence was, in fact, discoverable and not whether the appellant or appellant’s counsel was at fault for not discovering it. As we explained in Love v. State, 95 Md.App. at 436 , 621 A.2d 910 . Even a good explanation for not having exercised due diligence is not the same thing as the actual exercise of that due diligence.

It is the latter that is required, not the former. The modifying clause “which could not have been discovered by due diligence ...” is an in rem characterization of the evidence itself, not an in personam comment upon the lawyerly performance. (Emphasis supplied). In the “interest of judicial economy,” however, Judge Long elected to overlook his qualms about diligence and to entertain the motion on the ground of newly discovered evidence. ⁶⁹¹ Newly Discovered Evidence The victim and key trial witness for the State had been the •appellant’s daughter, who was just short of her 12th birthday at the time of the trial.

The allegation in the Motion for a New Trial was that she “recanted her testimony the day after the trial to another family member.” The alleged “recantation” was made to her eleven-year-old cousin, Shakara Jackson, and occurred while she was visiting her cousin’s school. The victim allegedly told her cousin that the victim’s mother and stepfather “had made her say those things about her father at trial.” The sum total of what the eleven-year-old abuse victim allegedly said to her eleven-year-old cousin on the day after the trial consisted of the following: Q. What did Jenna tell you? A. I asked her why she say those things that she said and she said because [her] mom and stepfather forced me to say them. And then I told her Uncle Gene was in jail.

And she said my mom and stepfather said he was going to be all right that they just won the case. And she said she misses him so much she would go home with him. (Emphasis supplied). An Informal Denial, Even If Made, Would Not Be a Recantation At one point in his appellate brief, the appellant refers to what the abuse victim allegedly told her cousin as a “recantation.” “The fact that she did not repeat her recantation in open court ... should not have been dispositive.” (Emphasis supplied).

That choice of words, of course, is potentially treacherous hyperbole. Black’s Law Dictionary (7th ed.1999) defines the verb “recant”: To withdraw or renounce prior statements or testimony formally or publicly. Just as a conversation between neighbors over the back fence is not “testimony,” the confidential confession, “I lied,” even if such a confession actually was made, is by no means a “recantation.” The semantic problem, of course, is that once ⁶⁹² the user gets into the habit of referring to such a confidence as a “recantation” two or three times, he has successfully scaled a linguistic plateau and the presumptuous usage becomes a deceptively familiar commonplace. At that point, the user can nonchalantly invoke caselaw dealing with actual recantations and it will seem, to the lazy ear at least, as if those recantation cases are apposite to the case at hand.

The only place to stop such semantic slippage is before it gets started. We are not in this case dealing with anything that can fairly be termed a “recantation.” One might readily ask, “If a witness renounces her trial testimony, what difference does it make whether the renunciation takes place in the courtroom or on a school playground?” It makes a great deal of difference. If the renunciation occurs formally in a courtroom, there is no doubt about the fact that a renunciation actually took place. It only remains to determine 1) the truth of the renunciation; and 2) its legal significance, if true.

That is why we use the term of art “recantation” to refer to that type of in-court renunciation. If the renunciation allegedly occurred on the school playground, by contrast, the biggest uncertainty of all may well be over the historic fact of whether such a renunciation even took place. If we were faced with a real and undisputed recantation of her testimony by the key State witness, our evaluation of the legal significance of such a recantation would be far more problematic. In this case, however, the victim staunchly denied that she had ever made the statements attributed to her by her cousin.

Under examination by appellant’s counsel, the young abuse victim did not waver. Q. All right. And during that conversation did you tell her that your mom and Patrick told you to say those things at trial? A. No, I didn’t Q. You didn’t say that?

A. No. Q. Did you tell her that you were afraid of your stepfather? ⁶⁹³ A. No, I didn’t. Q. Did you tell her that? A. No, I didn’t. Q. Did you tell her that you would be promised to see your dad if you testified in court the day before?

A. I don’t understand the question. THE COURT: I’m not sure I do either. Q. Did you tell Shakara that your parents promised you that you would be able to see your father if you testified in court against him; did you tell her that? A. No. Q. Did you say to Shakara that all those things didn’t happen?

A. No, I did,n’t. Q. You didn’t tell her that? A. No. Q. Did you tell Shakara that you didn’t know that your dad would go to jail if you testified against him? A. No, I didn’t.

(Emphasis supplied). Under examination by the Assistant State’s Attorney, the victim reaffirmed her trial testimony: Q. Jenna, everything that you te,stifled to in this trial in court that day that your dad was on trial is that all true? A. Yes. Q. You’ve not made any of it up?

A. No, I haven’t. (Emphasis supplied). That, by no means, was a formal withdrawal or renouncement of her prior testimony. Far from being a recantation, it was a ringing reaffirmation.

In denying the Motion for a New Trial, Judge Long so ruled: [TJhe real issue before the court is whether there is persuasive and credible evidence of recantation on the pari ⁶⁹⁴ of a crucial witness in this case. And of course that witness is the victim, Jenna Jackson. Recant means according [to] Black’s Law Dictionary “to withdraw or repudiate formerly and publicly. ” Mindful of that definition, the normal process employed when a witness recants is, one, the execution of a sworn affidavit, or, two, sworn testimony is elicited from the recanting witness at the hearing on the motion for new trial. We clearly have neither in this case.

Post trial recantations are looked upon with utmost suspicion. The State’s Attorney has already made note of that. One of the cases of many that says that is Carr v. State, 39 Md.App. 478 , 387 A.2d 302 . In this case there is no formal or public recantation.

To the contrary the witness alleged to have recanted has come into this courtroom and testified under oath that she did not at any time recant her testimony. Therefore the motion for new trial is denied. (Emphasis supplied). The Threshold Question of Assessing Credibility In the context of a Motion for a New Trial based on newly discovered evidence, there is a threshold question of the trustworthiness of the newly discovered evidence and of the credibility of its source.

It is clear that the judge called upon to decide the motion may assess trustworthiness and credibility for himself, even though the verdict in the case was rendered by a jury. In denying the Motion for a New Trial, Judge Long cited the case of Carr v. State, 39 Md.App. 478 , 387 A.2d 302 (1978). Indeed, that case is instructive as to the broad discretion vested in the trial judge in assessing new trial motions. Carr is particularly instructive because it was a case involving an actual recantation of testimony.

In Carr the defendant, upon his motion for a new trial, produced an affidavit signed by one of two key State’s witnesses, in which the witness stated that his trial testimony had been false and had been given “under ⁶⁹⁵ the threat of persecution [sic] and arrest by the State’s Attorney’s Office.” 39 Md.App. at 483 , 387 A.2d 302 . Notwithstanding the fact that it had been a jury trial, the trial judge assessed for himself the credibility of the recantation. “In the instant case the trial judge received and considered Oliver’s affidavit but stated he did not consider it worthy of belief.” Id. “[T]he trial judge did not believe Oliver’s recantation.” Id. at 483 n. 3, 387 A.2d 302 . In affirming the trial judge’s decision to deny the new trial, this Court observed, Id. at 484 , 387 A.2d 302 : We note, as did the trial judge, that post-trial recantations of witnesses are looked on with the utmost suspicion. See, e.g., United States v. Johnson, 487 F.2d 1278 (4th Cir.1973).

Under these circumstances we see no abuse of discretion. (Emphasis supplied). We there quoted, 39 Md.App. at 483 , 387 A.2d 302 , Jones v. State, 16 Md.App. 472, 477 , 298 A.2d 483 , cert. denied, 268 Md. 750 (1973), as it articulated the standard for reviewing a decision by a trial judge on a motion for a new trial. “It is, of course, well established that the granting or denial of a motion for a new trial lies within the sound discretion of the trial court and the action of the trial court upon such a motion will not be disturbed on appeal except under the most extraordinary and compelling reasons.” (Emphasis supplied). See Couser v. State, 36 Md.App. 485, 494-96 , 374 A.2d 399 (1977), aff'd, 282 Md. 125 , 383 A.2d 389 (1978).

And see Ruth v. State, 133 Md.App. 358, 365-66 , 757 A.2d 152 (2000); Marks v. State, 84 Md.App. 269, 290-91 , 578 A.2d 828 (1990). “Merely Impeaching” Evidence Does Not Reach Critical Mass In our case, by contrast with Carr , we are not dealing with a recantation of testimony by a witness, but with something significantly more peripheral. The witness took the stand at the hearing on the new trial motion and stood foursquare behind every syllable of her trial testimony. She ⁶⁹⁶ denied flatly ever having made the remarks attributed to her by Shakara Jackson. What then was the significance, in terms of threshold materiality, of the testimony of Shakara Jackson?

On at least three occasions this Court has stated that evidence that has value only for purposes of testimonial impeachment does not qualify as “newly discovered evidence” within the contemplation of the law governing motions for a new trial. In Jones v. State, 16 Md.App. at 477 , 298 A.2d 483 , we quoted with approval from Johnson v. United States, 32 F.2d 127, 130 (8th Cir.1929), for the proposition that to qualify as newly discovered evidence, the “evidence ... must not be merely cumulative or impeaching.” In Bright v. State, 68 Md.App. 41 , 509 A.2d 1227 (1986), the “newly discovered evidence” that was advanced on a new trial motion was the transcript from a collateral hearing that would have been useful to the defense to impeach the testimony and the report of two key State’s witnesses. The trial judge denied the new trial motion, and we affirmed that denial, stating at 68 Md. App. at 56 , 509 A.2d 1227 : Since appellants contend that they would have used the adjustment hearing transcript for impeachment purposes, ... the evidence did not qualify as “newly discovered. ” (Emphasis supplied). In Love v. State, 95 Md.App. at 431 , 621 A.2d 910 , we reaffirmed that same principle: No exception can be taken to the next two statements ... that the evidence “must be material” and that it “must not be merely cumulative or impeaching.” (Emphasis supplied).

That same limitation on types of newly discovered evidence that do not qualify as a basis for awarding a new trial was stated for the Court of Appeals by Chief Judge Bell in Argyrou v. State, 349 Md. 587, 601 , 709 A.2d 1194 (1998): The evidence offered as newly discovered must be material to the result and that inquiry is a threshold question. That ⁶⁹⁷ means that it must be more than “merely cumulative or impeaching. ” (Emphasis supplied). In Campbell v. State, 373 Md. 637, 670 , 821 A.2d 1 (2003), Judge Harrell also made it clear that [t]o be material the evidence cannot be “merely cumulative or impeaching.” The Court of Special Appeals stated in Love v. State, that the difference between evidence that is “impeaching” and evidence that is “merely impeaching” is that the latter includes “collateral impeachment and peripheral contradiction.” (Emphasis supplied). Unfortunately, those statements do not end the matter.

Although three opinions of this Court and two from the Court of Appeals have now told us that newly discovered evidence that is “merely impeaching” will not compel or even justify the granting of a new trial, there remains the touchy problem of which impeaching evidence is “merely impeaching” and which is not. As both Campbell v. State and Love v. State have suggested, the answer to that riddle may lie in the notion of “collateral impeachment and peripheral contradiction.” In Campbell v. State, the newly' discovered evidence was that a key State’s witness in the murder case under review had on another occasion “falsely accused another person of murder in an unrelated case.” 373 Md. at 644 , 821 A.2d 1 . In holding that the trial judge had not abused his discretion in denying the motion for a new trial, Judge Harrell pointed out that the new evidence “involved a collateral matter.” Even if the evidence did impeach Veal, it would be collateral, rather than material, evidence because it only shows that Veal lied about an unrelated matter not bearing directly on the evidence he presented at Campbell’s trial. 373 Md. at 655 , 821 A.2d 1 (emphasis supplied). The distinction between “impeaching” and “merely impeaching,” albeit nuanced, is pivotally important.

Newly discovered evidence that a State’s witness had a number of ⁶⁹⁸ convictions for crimes involving truth and veracity or had lied on a number of occasions about other matters might have a bearing on that witness’s testimonial credibility, but would not have a direct bearing on the merits of the trial under review. Such evidence would constitute collateral impeachment and would, therefore, be “merely impeaching.” If the newly discovered evidence was that the State’s witness had been mistaken, or even deliberately false, about inconsequential details that did to go to the core question of guilt or innocence, such evidence would offer peripheral contradiction and would, therefore, be “merely impeaching.” If the newly discovered evidence, on the other hand, was that the State’s witness had actually testified falsely on the core merits of the case under review, that evidence, albeit coincidentally impeaching, would be directly exculpatory evidence on the merits and could not, therefore, be dismissed as “merely impeaching.” In the case now before us, the testimony of Shakara Jackson, even accepting it arguendo at face value, was not that the eleven-year-old child abuse victim admitted testifying falsely, but only that she admitted testifying under strong pressure. Although that might be reason to question her credibility, it does not establish that she testified falsely. A daughter might be understandably reluctant to testify against her father, even if her testimony were true.

With child custody at stake, moreover, the strong parental pressure could have been to testify truthfully, as surely as it could have been to testify falsely. The witness would have been a reluctant one in either event. The witness’s alleged admission to Shakara Jackson went only to why the witness, reluctantly, testified. It did not go directly to the truth of her testimony.

It bore on her testimonial credibility, but not directly on the substance of her testimony. Under the circumstances, it would seem to qualify only as collateral impeachment, to wit, as evidence that was “merely impeaching.” In terms of characterizing Shakara Jackson’s testimony, putting it in a hypothetical context may help. If the victim’s conversation with Shakara Jackson had, with appropriate changes of tense, taken place the day before her trial testimo ⁶⁹⁹ ny rather than the day after and had been offered in rebuttal by the defense through Shakara Jackson, what would have been its evidentiary fate? Not qualifying under any exception to the rule against hearsay, it could not have been received as substantive evidence on the merits of the appellant’s guilt or innocence.

It could only have been received, if at all, as a prior inconsistent statement for the limited purpose of impeaching the victim’s testimonial credibility. That makes its significance peripheral, to wit, “merely impeaching.” Evidence that is merely impeaching does not reach critical mass, at least in terms of permitting an appellate court to hold that a trial judge abused his discretion in denying a new trial motion resting on such a predicate. We will not, however, rest our holding on this borderline ground, but will go on and consider the case as if, arguendo, Shakara Jackson’s testimony had been more that “merely impeaching.” The Fluctuating Standard of Appellate Review For Rulings on New Trial Motions In terms of the breadth of discretion entrusted to the trial judge in ruling on a motion for a new trial and the concomitant degree of deference that an appellate court will extend to such a ruling, there is a distinction, still in the process of being recognized and fully articulated, between new trial motions pursuant to Rule 4-331(a) and new trial motions pursuant to Rule 4-331(c). New trial motions that must be filed within ten days, pursuant to subsection (a), almost invariably (if not invariably) are based on events that happen in the course of the trial; such as, e.g., rulings on admissibility, potential trial error that may or may not be recognized at the time of occurrence, jury instructions, jury behavior, etc. These events are of a type that will ordinarily happen under the direct eye of the trial judge.

For that reason, subsection (a) expressly provides that the trial judge may order a new trial “in the interest of justice” for it is he who has his thumb on the pulse of the trial and is in a unique position to assess the significance of such ⁷⁰⁰ events. In Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 57 , 612 A.2d 1294 (1992), Judge McAuliffe stressed that the range of the trial judge’s discretion is accordingly at its broadest when it involves “the judge’s evaluation” of “the core question of whether justice has been done.” [W]e are obliged to consider the breadth of discretion that is afforded a trial judge in making this type of decision. As we have seen in tracing the history of our treatment of this issue, the emphasis has consistently been upon granting the broadest range of discretion to trial judges ivhenever the decision has necessarily depended upon the judge’s evaluation of the character of the testimony and of the trial when the judge is considering the core question of whether justice has been done. (Emphasis supplied).

There is, however, a fundamental difference in kind between a new trial motion pursuant to subsection (a), dealing with what happens in the course of the trial and essentially under the eye of the trial judge, and a new trial motion pursuant to subsection (c), based on allegedly newly discovered evidence. The latter, by definition, deals with things outside the course of the trial, with evidence that was not introduced because it could not, with due diligence, have been discovered in time to be introduced. The litigation of a new trial motion pursuant to subsection (c) deals with phenomena, such as due diligence, that do not occur under the direct eye of the trial judge. In contrast to subsection (a), subsection (c) significantly does not contain the language “in the interest of justice” to be assessed by the trial judge.

Under either subsection of Rule 4-331, the abstract standard of appellate review is the abuse of discretion standard. That seems monolithic enough, but in actuality it is not. What may shift, depending on the ground for the new trial motion being reviewed, is the degree of deference extended to the trial judge’s exercise of discretion. Buck v. Cam’s Rugs, 328 Md. at 58-59 , 612 A.2d 1294 , expressly stated that the reins of appellate control over the trial judge’s discretion may ⁷⁰¹ be tighter or looser depending upon the ground advanced for the new trial motion. [IJt may be said that the breadth of a trial judge’s discretion to grant or deny a new trial is not fixed and immutable; rather, it will expand or contract depending upon the nature of the factors being considered, and the extent to which the exercise of that discretion depends upon the opportunity the trial judge had to feel the pulse of the trial and to rely on his own impressions in determining questions of fairness and justice.

(Emphasis supplied). The new trial motion that was granted in Buck v. Cam’s Rugs, for instance, involved the trial judge’s assessment that an improper closing argument by a civil defendant had resulted in a damage award that was far too low to be deemed “in the interest of justice.” In affirming the trial judge, the Court of Appeals pointed out that on an issue of that sort, both the trial judge’s discretion and appellate deference thereto are at their very broadest. We turn to the question of whether Judge Murphy abused his discretion in granting Buck a new trial. In so doing, we are obliged to consider the breadth of discretion that is afforded a trial judge in making this type of decision.

As we have seen in tracing the history of our treatment of this issue, the emphasis has consistently been upon granting the broadest range of discretion to trial judges whenever the decision has necessarily depended upon the judge’s evaluation of the character of the testimony and of the trial when the judge is considering the core question of whether justice has been done. We noted, for example, that “[w]e know of no case where this Court has ever disturbed the exercise of the lower court’s discretion in denying a motion for a new trial because of the inadequacy or excessiveness of damages” 328 Md. at 57-58 , 612 A.2d 1294 (emphasis supplied). Judge McAuliffe went on, 328 Md. at 59 , 612 A.2d 1294 . ⁷⁰² In the case before us, the range of discretion of the trial judge was necessarily at its broadest. The motion for a new trial did not deal with the admissibility or quality of newly discovered evidence, nor with technical matters.

Instead, it asked the trial judge to draw upon his own view of the weight of the evidence; the effect of an accumulation of alleged errors or improprieties by defense counsel, no one of which may have been serious enough to provoke a request for, or justify the granting of, a mistrial; and the allegedly inadequate verdict, in determining whether justice would be served by granting a new trial.... Because the exercise of discretion under these circumstances depends so heavily upon the unique opportunity the trial judge has to closely observe the entire trial, complete with nuances, inflections, and impressions never to be gained from a cold record, it is a discretion that will rarely, if ever, be disturbed on appeal. It is that concept which led this Court in the past to state, albeit too broadly in the context of all motions for new trial, that such a decision is effectively unreviewable. (Emphasis supplied).

The Court of Appeals opinion then contrasted the broad discretion vested in a trial judge on the type of issue before him in Buck v. Cam’s Rugs with the significantly narrower range of discretion to deny motions based upon newly discovered evidence. There is, of course, virtually no discretion to refuse even to exercise discretion. On the other hand, a trial judge has virtually no “discretion” to refuse to consider newly discovered evidence that bears directly on the question of whether a new trial should be granted. See Wash., B. & A.R. Co. v. Kimmey, supra, 141 Md. at 250, 118 A. 648 (“discretion could not be characterized as sound which wholly disregarded evidence by which its exercise should have been aided”).

See also Browne v. Browne, 22 Md. 103, 112 (1864). 328 Md. at 58 , 612 A.2d 1294 (emphasis supplied). Even if, however, the trial judge, at the threshold, considers the newly discovered evidence, the appellate court will still ⁷⁰³ intervene whenever it is persuaded that the trial judge did not make a proper decision based on the newly discovered evidence. [I]f newly discovered evidence clearly indicates that the jury has been misled, a new trial should be granted. It would be plainly unjust to permit a verdict to stand, as against an application for a new trial seasonably made, if credible evidence, competent to be considered, and not previously discoverable by due diligence, supported the conclusion that the jury were misled as to the principal part of their award. Wash., B. & A.R. Co. v. Kimmey, supra, 141 Md. at 250 , 118 A. 648 .

See also Angell v. Just, 22 Md.App. 43, 53 , 321 A.2d 830 (1974) (trial judge abused discretion in denying motion for new trial when newly discovered evidence was of sufficient significance to make it probable that a different result would be reached at a new trial). Id. (emphasis supplied). The Court of Appeals seemed to promise us comforting uniformity, 328 Md. at 57 , 612 A.2d 1294 , by beginning its analysis with a quotation from Mack v. State, 300 Md. 583, 600 , 479 A.2d 1344 (1984), and the apparently reassuring cliche that the “question whether to grant a new trial” is entrusted to “the discretion of the trial court.” The question whether to grant a, new tnal is within the discretion of the trial court.

Ordinarily, a trial court’s order denying a motion for a new trial will be reviewed on appeal if it is claimed that the trial court abused its discretion. Kirsner v. State, 296 Md. 567, 570-71 , 463 A.2d 865, 867 (1983); Colter v. State, 219 Md. 190, 192 , 148 A.2d 561, 561 (1959). However, an appellate court does not generally disturb the exercise of a trial court’s discretion in denying a motion for a new trial (Emphasis supplied). What emerges, however, is the vexing reality that there are in the field not one, but at least two significantly distinct, “abuse of discretion” standards.

One is, indeed, virtually ⁷⁰⁴ unreviewable. Rarely, if ever, will a trial court, under it, be found to have abused its discretion. The other, by contrast, enjoys no such special immunity from appellate scrutiny. The trial judge still has discretion, of course, but significantly less discretion than in the first category of cases.

In the case now before us, Judge Long denied a motion for a new trial based on allegedly newly discovered evidence. Even under the less deferential standard applicable to the denial of a motion on such a ground, we are still persuaded that he did not overstep the less generous degree of discretion permitted him in such a case. The motion for a new trial in Argyrou v. State, 349 Md. 587 , 709 A.2d 1194 (1998), was also, as in this case, one based on newly discovered evidence. Chief Judge Bell reconfirmed the shifting contours of the abuse of discretion standard.

It may be said that the breadth of a trial judge’s discretion to grant or deny a new trial is not fixed and immutable, it will expand or contract depending upon the nature of the factors being considered, and the extent to which its exercise depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely on his or her own impressions in determining questions of fairness and justice. Of course, the exercise of the discretion is reviewable for abuse. 349 Md. at 600 , 709 A.2d 1194 (emphasis supplied). As Judge Bell also made clear, however, the burden of proof remains firmly on the defendant and the motion for a new trial still has significant “prescribed requirements” that must be ■ satisfied for it to succeed. Maryland Rule l-SSl(c) provides for the grant of a new trial, or other appropriate relief, on the basis of newly discovered evidence, but only if the prescribed requirements are met.

To qualify as “newly discovered,” evidence must not have been discovered, or been discoverable by the exercise of due diligence, within ten days after the jury has returned a verdict. In addition, the motion premised on newly discovered evidence must have been filed in the ⁷⁰⁵ circuit court, within the later of one year after the imposition of sentence or the issuance of a mandate by the appropriate appellate court. Maryland Rule 4-831(c)(2). Case law has delineated other essential requirements.

The evidence offered as 'newly discovered must be material to the result and that inquiry is a threshold question. That means that it must, be more than “merely cumulative or impeaching.” In addition, the trial court must determine that “[tjhe newly discovered evidence may well have produced a different jesult, that is, there was a substantial or significant possibility that the verdict;.of the trier of fact would have been affected. ” 349 Md. at 600-01 , 709 A.2d 1194 (emphasis supplied). Discretion to Grant Is Discretion Not to Grant As we turn to the merits of Judge Long’s ruling, a further and self-evident observation is in order about the breadth of a trial judge’s discretion. In Butkiewicz v. State, 127 Md.App. 412, 430 , 732 A.2d 994 (1999), Judge Hollander made it very clear that necessarily inherent in the discretion to grant a new trial is the concomitant discretion to deny a new trial.

We do not mean to suggest that the trial court would necessarily have erred or abused its discretion had it ruled otherwise. The court had discretion to grant appellant’s ■motion for new trial, just as it had discretion to deny it. Under the circumstances attendant here, the resolution of appellant’s motion depended intrinsically upon “the judge’s evaluation of the character of the testimony and of the trial,” and its determination of “the core question of whether justice has been done.... ” In conclusion, we cannot say that the court abused its discretion in denying appellant’s motion for new trial. (Emphasis supplied).

See also Mason v. Lynch, 151 Md.App. 17, 27-30 , 822 A.2d 1281 (2003); Aron v. Brock, 118 Md.App. 475, 511-12 , 703 A.2d 208 (1997). The Appellant’s Core Contention Although the appraisal of newly discovered evidence is an arena in which, in the words of Buck v. Cam’s Rugs, 328 Md. ⁷⁰⁶ at 57, 612 A.2d 1294 , “the emphasis has consistently been upon granting the broadest range of discretion to trial judges” as they make an “evaluation of the character of the testimony” on the “core question of whether justice has been done,” the appellant’s theory of the case would severely cabin the judge’s discretion. The bare bones contention is presented without supporting argument. The appellant cites Yorke v. State, 315 Md. 578 , 556 A.2d 230 (1989); Campbell v. State, 373 Md. 637 , 821 A.2d 1 (2003); and Evans v. State, 382 Md. 248 , 855 A.2d 291 (2004).

Arguably, they are cited for the proposition that, once newly discovered evidence is in the case, the trial judge is largely stripped of discretion on the “core question of whether [absent that evidence at the trial] justice [was] done.” One could distill from Yorke, Campbell, and Evans a largely mechanical, and far from discretionary, test that seems to assume for the newly discovered evidence maximum weight and credibility. It would deny the trial judge, who felt the pulse of the trial, the discretion to make the threshold or gatekeeping determination that the proffered evidence is either unworthy of belief or devoid of significance. We, however, get no such reading out of Yorke, Campbell, and Evans , which are silent as to the trial judge’s role as a credibility gatekeeper. A Measuring Rod For Likely Impact Quite obviously, the post-verdict discovery of new evidence should not result in vacating the original verdict and awarding a new trial unless the new evidence, offered before a new fact finder, would by some measure of likelihood produce a different verdict.

The law obviously needs an articulable standard for measuring just what quality of newly discovered evidence might by some measure of likelihood produce a different verdict. The answer to such a question will inevitably remain a subject open to rampant speculation on a case by case basis, but the promulgation of a standard will at least help to reduce the level of uncertainty. Until 1989, however, Maryland had not found it necessary to adopt such a standard. The two generally recognized national ⁷⁰⁷ poles were the “might” standard 1 and the “probable” standard. 2 Yorke v. State, 315 Md. at 586-88 , 556 A.2d 230 .

Because the Court of Appeals concluded in Stevenson v. State, 299 Md. 297 , 473 A.2d 450 (1984), that the newly discovered evidence in that case did not call for the granting of a new trial under either test, it did not choose to choose. Under the circumstances present in this case, we need ■not decide which standard, should apply. 299 Md. at 301 , 473 A.2d 450 (emphasis supplied). Five years later, however, it fell the lot of Yorke v. State to be the trailblazer. Writing for the Court of Appeals, Judge Orth posed the question, 315 Md. at 586 , 556 A.2d 230 , of what standard should be used to assess the likely impact on the verdict that the newly discovered evidence, had it been known, would have had.

The threshold question of materiality having been satisfied, the next inquiry is the degree of persuasiveness of the new evidence. In other words, could the new evidence affect the outcome of the trial? And that inquiry can only be determined upon a standard by which the effect shall be tested. (Emphasis supplied).

Yorke had been convicted of first-degree rape. DNA evidence was just finding acceptance in the courts four years later when Yorke had a DNA test done which showed that he “could not have been the depositor of the semen” found in the vaginal washing of the victim. The negative DNA test was equivocal, however, because the victim 1) did not know whether the rapist had ejaculated in her and 2) had had sexual intercourse with her boyfriend several hours before the rape. Yorke v. State, 315 Md. at 589-90 , 556 A.2d 230 . ⁷⁰⁸ The question of the significance of the newly discovered DNA test was close enough, however, to require Maryland finally to take a stand on the governing standard for measuring likely impact.

After surveying the caselaw from both the “might” camp and the “probable” camp, 3 Judge Orth concluded his survey with the wry comment: All in all, we are constrained to conclude