On January 28, 2022, General Deborah Green was released from prison. She is happy to be back with her people and very thankful to the Lord for keeping her safe through that long and arduous test. God is still blessing her (and us) with a steady stream of Prophetic Words of the Spirit. She wants to thank everyone for their prayers. Following is a copy of the request for a new trial which was the tool God used to secure Deborah’s release.The enemy will always accuse God’s people. And God will stand with them through it all.
In The Interest Of Justice:
MOTION FOR A NEW TRIAL BECAUSE OF NEWLY DISCOVERED EVIDENCE
Defendant Deborah Green respectfully requests, according to rule 5-614, NMRA, a new trial in this matter because of the discovery of new evidence not previously disclosed by the State. All of this evidence, which the State failed to disclose through discovery before the trial in this matter, constitutes new evidence that can form the basis for a new trial. Because such evidence is exculpatory, and essential to any jury’s consideration of the allegations against Mrs. Green, this motion should be granted, the jury verdict and sentence in this matter should be vacated, and Mrs. Green should be awarded a new trial.
Factual Background
Deborah Green was charged, by an amended indictment, with two counts of kidnapping in the First Degree, two counts of Abuse of a Child (Does Not Result in Death or Great Bodily Harm), two counts of Abuse of a Child Resulting in Great Bodily Harm, three counts of Criminal Sexual Penetration in the First Degree (Child Under 13), one count of Abuse of a Child Resulting in Death, two counts of Tampering with Evidence (Capital Crime or First of Second Degree Felony), and one count of Tampering with Evidence (Third or Fourth Degree Felony). The first eight counts allege crimes against alleged victim M.G., while the remaining five counts allege crimes against victim E.M. The Court later severed the charges for the purpose of trial, ordering that the counts related to alleged victim M.G. be tried first. All eight of the counts regarding M.G. Include some allegation connected to the sexual abuse of M.G.
A trial for the Counts related to alleged victim M.G. Was held from September 18, 2018 through September 26, 2018. Following trial, the jury returned a verdict of guilty on all counts. Mrs. Green was then sentenced to seventy-two years of incarceration in the New Mexico Corrections Department. She then pled no contest to three of the remaining charges against her, receiving an additional sentence of ten years to run concurrent with the previously imposed seventy-two year sentence.
Since trial, Counsel for Mrs. Green has uncovered, or been alerted to, the existence of exculpatory evidence not previously disclosed by the State. This previously undisclosed evidence includes:
1. A 2006 psychological assessment of M.G. Performed by Dr. Carol Larroque wherein Dr. Larroque concluded that M.G. Showed no signs psychologically of being traumatized or depressed and denied abuse. While the State had previously disclosed a summary of Dr. Larroque’s evaluation, the State failed to seek or actually disclose any records related to the actual exam. The medical records related to this examination are currently undergoing in camera review before Judge Villalobos in State v. Peter Green, No. D-1333-CR-2017-00262.
2. A second SANE exam of M.G. during which M.G. denied abuse. During this exam, M.G. received an examination in her genital area. The SANE exam uncovered no signs of sexual abuse.
3. Medical records related to M.G.’s hospitalization at Children’s Psychiatric Hospital when she first began to disclose abuse. This disclosure was made after M.G. Was living with a foster family for several months, which included a primary caretaker that suffered from bi-polar disorder, and who was arrested after threatening to kill himself, unplugging the phone when his wife tried to call 911, battering a police officer, and using his car to block the driveway so his wife and foster children could not leave the residence.
4. A safehouse interview of M.G., conducted on August 25, 2006, during which M.G. Denied abuse after being questioned by Dr. Larroque and undergoing a full SANE exam of her genitals.
Ms. Green now files this motion, seeking a new trial on counts One through Eight of the Amended Indictment because of this new evidence.
Argument
A motion for a new trial under Rule 5-614 must meet six criteria: 1) the new evidence will probably change the result if a new trial is granted; 2) the evidence must have been discovered since the trial; 3) the new evidence could not have been discovered before the trial by the exercise of due diligence; 4) the new evidence must be material; 5) the new evidence must not be merely cumulative; and 6) the new evidence must not be used merely for impeachment or contradiction. See State v. Volpato, 1985-NMSC-017, ¶ 7, 102 N.M. 383, 969 p.2d 471; State v. Fero, 1988-NMSC-053, ¶ 13, 107 N.M. 369, 758 P.2d 783. The evidence discovered since the trial in this matter fulfills every prong of this analysis. Ms. Green’s motion should be granted, and the Court should order a new trial for all charges related to M.G.
I. This motion is timely filed.
As a threshold matter, this motion is timely filed under Rule 5-614, NMRA. That rule requires such a motion to be filed before a final judgment or within two years after the entry of a final judgment. Rule 5-614(C), NMRA. Rule 516 does not define when there is a final judgment, and there is a split of authority regarding when a judgment becomes final for the purposes of this rule. Some cases imply that a judgment is final upon sentencing. See State v. Moreland, 2007-NMCA-047, ¶ 13, 141 N.M. 549, 157 P.3d 728 (explaining, the context of reviewing a rule 5-614(C) motion, that “[i]t is well settled that until a sentence for a crime is imposed, there is no final judgment in a criminal case.”) (internal citation omitted). In contrast, federal authority counsels, in the context of mtions for new trials under the corresponding Federal Rule of Criminal Procedure, that there is no final judgment until all direct appeals are exhausted. See, e.g., Casias v. United States, 33 F.3d 354, 356 (10th Cir. 1964) (holding that, in context of a motion for a new trial because of newly discovered evidence, a judgment is not final until the time to take an appeal has expired or all appeals are complete). Ms. Green’s motion is timely under either test.
Ms. Green was convicted on September 26, 2018 and was sentenced on October 16, 2018. Moreover, Ms. Green’s former counsel never filed a notice of appeal or a waiver of appeal for this matter. Therefore, under Moreland, Ms. Green’s motion is timely because it is filed within two years of sentencing, and under Casias, the motion is timely because Ms. Green has yet to file an appeal, and still possesses a right to file a direct appeal. Ms. Green’s motion is timely and should be considered on its merits.
II. All six Volpato factors are present, mandating that the court exercise its discretion and order a new trial in this matter.
Applying the Volpato factors to the new evidence present through this motion militates in favor of a new trial. First, Ms. Green must establish that the new evidence would probably change the result of the previous trial. In this case, Ms. Green puts forward a motion which details several pieces of new evidence, all of which are exculpatory to the allegations that she sexually abused M.G. Specifically, the new evidence contains one new SANE examination which concluded there was no evidence of abuse, which is clearly exculpatory when the allegation is that Ms. Green sexually abused M.G. by penetrating M.G. with sticks, screwdrivers, and needles. There is simply no possibility that M.G. Could have been penetrated in that matter and there was no evidence of abuse. Moreover, the evidence also includes psychological records establishing that M.G. Showed no symptoms of trauma or sexual abuse. And the evidence also includes safehouse interviews, during which M.G. Stated that she was not sexually abused, or that it was another individual and not Ms. Green that sexually abused her. All of this evidence is exculpatory and supports Ms. Green’s defense that she did not sexually abuse M.G. Therefore, there is a probability that the evidence would have changed the result of a trial.
For example,in United States v. Martinez, 388 F. Supp. 3D 225, 232 (E.D.N.Y. 2019), a prison guard was charged with and convicted of sexual abuse. The evidence presented at trial was not “considerable forensic [or] other physical evidence,” but was instead based “primarily on the perceptions” of witnesses. Following trial, the defense uncovered an interview with a witness that did not testify, and which was not turned over during discovery, during which the witness testified that the alleged victim in that case discussed having sex with a prison guard in great detail but never stated that she was assaulted or abused. Explaining that “[c]ontradictory evidence can destroy a jury’s confidence in a witness’s story,” the trial court determined that there was a liklihood of a different outcome at the trial. Id. This conclusion was further bolstered by the fact that the undisclosed, exculpatory statement offered “‘independent corroboration of the defense’s theory of the case by a neutral and disinterested witness.'” Id. (quoting Boss v. Pierce, 263 F.3d 734,745 (7th Cir. 2001)).
The same is true in this case. The newly discovered evidence presents independent corroboration that Ms. Green did not sexually abuse M.G. and presents that evidence from neutral and disinterested witnesses. The first Volpato factor, therefore, counsels in favor of a new trial. Moreover, because exculpatory information, like the newly discovered evidence in this case, could affect the outcome of the trial, it is material, and meets the materiality requirement of Volpato. See United States v. Bagley, 473 U.S. 667, 678 (1985) (defining “material” exculpatory evidence as evidence that would “undermine the confidence in the outcome of a trial”). See also United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001) (holding that “material required to be disclosed by Brady . . . is material, which, if not disclosed, creates a reasonable probability of altering the outcome” of a trial).
The newly discovered evidence also meets the second prong, because the proffered evidence was never disclosed during discovery in this case and was only discovered after Ms. Green was convicted, sentenced, and pled no contest to additional charges. The fifth Volpato factor is also fulfilled in this case because this evidence is not cumulative because it contains a previously undisclosed SANE exam, previously unknown safehouse interviews, and a newly discovered psychological examination concluding that M.G. was not a victim of sexual abuse for the time period that she was in Ms. Green’s custody. Finally, the sixth factor is also me because the evidence is not merely impeaching or contradictory but represents new evidence from neutral witnesses that M.G. was not sexually abused as alleged by the State. See Volpato, 1985-NMSC-017, at ¶¶ 9-11 (holding that evidence through the form of new testimony is not merely contradictory when that testimony corroborates the defense’s story because a defendant should have the right to have all of the testimony submitted to a jury in order that the jury might then determine guilt or innocence).
This motion also fulfills the Volpato factor requiring that the newly discovered evidence could not have been discovered before the first trial with the exercise of diligence. The New Mexico Courts have applied a relatively lax standard when determining whether defense counsel exercised due diligence. For example, the Supreme Court has held that there was no exercise of due diligence when the newly discovered evidence was related to information which the defendant possessed before the trial. See State v. Mabry, 1981-NMSC-067, ¶ 29, 96 N.M. 317, 630 P.2d 269 (explaining that due diligence requires the investigation of prior knowledge otherwise “a [motion for a] new trial would subject ever criminal trial to the possibility of reopening on the ground that the defendant ‘remembered’ something after trial”). Here, while there is limited prior knowledge regarding the second SANE exam and the psychological records, the State represented to the defense and to the court that those records were lost or not obtainable. Moreover, all of the examinations detailed in the new evidence were conducted after M.G. was removed by CYFD and was in the custody of a foster family. Therefore, neither the defense nor Ms. Green had any knowledge that such records existed before her initial trial.
Moreover, the Supreme Court has held that due diligence requires a defendant to conduct an investigation “to discover witnesses [or evidence] that would tend to exculpate an accused.” State v. Stephens, 1982-NMSC-128, ¶ 12, 99 N.M. 32, 653 P.2d 863. For example, the New Mexico Courts have found that there was not sufficient due diligence when an allegedly exculpatory recantation was referenced in a nolle prosequi that was previously filed in the case. State v. Miera, 2018-NMCA-020, ¶ 28, 413 p.3D 491. Similarly, the Court of Appeals of New Mexico found that new evidence failed the due diligence prong when it was identified and available for copying prior to trial. State v. Armijo, 1997-NMCA-080, ¶ 35, 123 N.M. 690, 944 P2d 919. And, the Supreme Court of New Mexico has held that results of post-trial diagnostic testing were acquired following due diligence during trial when the basis for the testing was not apparent before trial. State v. Moreland, 2008-NMSC-021, at ¶¶ 18-21.
No such circumstance is present in this case. An investigation was conducted in this case, with interviews of dozens of witnesses and thousands of pages of discovery disclosed. None of those interviews or records disclosed available copies of the previous SANE exam, safehouse interviews, or psychological evaluations related to whether M.G. had been sexually abused. Nor did the State identify for the defense that such evidence existed. In fact, no witness list of the State identified the medical professionals involved in the SANE or psychological exams, nor did any witness list identify the individuals that performed the undisclosed safehouse interviews. Therefore, Ms. Green exercised due diligence during the trial. The motion for a new trial because of newly discovered evidence should be granted.
III. Defendant is entitled to a new trial because the failure to disclose the new evidence violates Brady v. Maryland.
Brady v. Maryland imposes upon the State the obligation to reveal evidence within its possession that is material to the guilt of the accused. 373 U.S. 83, 87 (1963). To obtain a new trial based on a Brady claim of newly discovered evidence, the defendant must show that: “(1) the government possessed favorable evidence to the defendant; (2) the defendant does not possess the evidence and could not obtain the evidence with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed to the defendant, there is a reasonable probability that the outcome would have been different.” United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 672 (1985).
The new evidence uncovered in this case meets that test. First, as discussed in greater detail above, Ms. Green did not possess evidence related to the second SANE exam prior to trial. That SANE exam was also mentioned for the first time during trial, therefore, Ms. Green could not have accessed that SANE exam with reasonable diligence. Moreover, the evidence was possessed by the State because it was in the possession of the Cibola County Sheriff’s office and produced to counsel for Peter Green in State v. Green by that office. Finally, it was suppressed because it was never disclosed to the defense, and because the State has continuously asserted that any records related to the second SANE exam were lost. That, however, was untrue.
Because the second SANE exam is exculpatory and confirms the defense’s theory at the initial trial, then there is a reasonable probability that the evidence would undermine confidence in the outcome of the first trial. Therefore, separate from any analysis of the Volpato factors, the Court should also grant the motion for a new trial because the State failed to meed its obligations under Brady.
IV. The Court should Exercise Its Discretion to Grant a New Trial Because a New Trial is Required in the Interest of Justice.
“Because the trial judge has observed the demeanor of the witnesses and has heard all the evidence, . . . the function of passing on motions for new trial belongs naturally and peculiarly to the trial court.” State v. Smith, 1986-NMSC-038, ¶ 17, 104 N.M. 329, 721 P.2d 397. This is especially so when the evidence is reliable and tends to show the actual evidence of a defendant. See Montoya v. Ulibarri, 2007-NMSC-035, ¶ 32, 142 N.M. 89, 163 P.3d 476. Therefore, the Court should exercise such discretion, specifically granted to the court by Rule 5-614, and order a new trial in this case as required in the interest of justice. Rule 5-614 (A) (stating that when a defendant has been found guilty, the court on its own motion may grant a new trial, “if required in the interest of justice”). The newly discovered evidence in this motion is evidence that should have been disclosed by the State during discovery prior to Ms. Green’s trial. See Rule 5-501(A)(3), NMRA (requiring the disclosure of any records “which are material to the preparation of the defense”) and Rule 5-501 (A)(4), NMRA (requiring the disclosure of “any results or reports of physical or mental examinations . . . made in connection with the particular case”). The failure to disclose such evidence violates the State’s Brady obligation to disclose exculpatory evidence. See Copa, 267 F.3d at 146 (holding that Brady requires the disclosure of exculpatory evidence “in time for its effective use at trial or at a plea proceeding”). It is therefore in the interests of justice to order a new trial in this matter. See e.g., United States v. Cestoni, 185 F. Supp. 3D 1184, 1195-96 (holding that the prosecution’s Brady violations can be the basis of granting a new trial in the interest of justice).
Conclusion
The Court should grant the motion for a new trial, vacate the jury verdict for this matter, vacate the sentence imposed on Ms. Green, and order a new trial on all charges.
Respectfully submitted,
Carter B. Harrison IV
Nicholas T. Hart
Harrison & Hart, LLC
1001 Luna Circle NW
ABQ, NM 87102
505.295.3261
harrisonhartlaw.com
Counsel for Deborah Green
