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Name: People v. New
Case #: D048497
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/28/2008

Prejudice resulting in a delay of prosecution for a 1973 murder did not result in an unfair trial. Mr. New appealed from his conviction on two counts of murder, one for the murder in 1973 of his first wife, and the second for the killing of his third wife in 2004. Both women were shot in the head in homes they shared with New. In 1973, police concluded that the killing of the first wife had been accidental. The investigation was reopened in 2004, when the third wife was killed in a similar manner. When prosecutors charged New in 2005 with two murders, he moved to dismiss the 1973 murder on speedy trial grounds. Alternatively, he sought separate trials on the two murder counts. Both motions were denied, and New was convicted of both offenses. On appeal, New argued that he was unduly prejudiced by the delay pertaining to the 1973 shooting, because nearly all the physical evidence had been lost in the interim and two important witnesses had died, and others could not be located. The appellate court rejected the argument, finding that the justification for the preaccusation delay outweighed the prejudice to New caused by the delay. It was not just advancements in forensic science or the prosecution’s unwillingness to proceed in 1973 that led prosecutors to reevaluate the circumstance of the first wife’s death and to charge New. The existence of probable cause to arrest New for the first wife’s murder was not apparent until after his third wife was murdered under suspicious and similar circumstances. Severance of two murder trials was not required where the evidence as to each count would have been cross-admissible in separate trials. New also contended that even if the trial court did not err in refusing to dismiss the 1973 murder charge, it abused its discretion in refusing his request to sever the two murder counts for trial. New contended that he was prejudiced by the joinder of the two counts because evidence from the 1973 killing was not cross-admissible in the 2004 murder case, and the joinder improperly permitted the jury to consider the evidence from the two crimes to convict him. The appellate court rejected the argument, finding that the evidence was cross-admissible. Because the offenses had a number of shared marks and multiple characteristics that bear some degree of distinctiveness, the trial court did not abuse its discretion in determining that evidence of the first murder was relevant to the identity of the second murder’s perpetrator. Further, although the evidence was weaker in the 1973 case, it was not so weak that the two counts required severance.