State v. Contractor

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NOT DESIGNATED FOR PUBLICATION

No. 113,064


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ZUBIN DARIUS CONTRACTOR,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed January 29,
2016. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., HILL and POWELL, JJ.

Per Curiam: Zubin Contractor, convicted of making a criminal threat against
Elizabeth Weaver, appeals the district court's denial of his motion for a continuance to
investigate claims in his second motion for a new trial and the subsequent denial of that
motion for a new trial. Finding no error, we affirm.

In 2007, a jury found Contractor guilty of making a criminal threat, a felony. The
court sentenced Contractor to 30 days in jail, and placed him on probation for 12 months
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with an underlying 12-month prison sentence. Contractor's probation terminated in March
2009.

In August 2010, this court affirmed Contractor's conviction in State v. Contractor,
No. 101,594, 2010 WL 3488668 (Kan. App. 2010) (unpublished opinion). The facts of
this case were set forth in the direct appeal:

"In the evening of June 2, 2007, the victim, Elizabeth Weaver, was at Scott
Meyers' house. At about 8 p.m. the defendant called Meyers' telephone. The caller ID
showed the defendant's name. Both the victim and Meyers were previously acquainted
with the defendant. Meyers asked the victim to answer the telephone and tell the
defendant not to call again. The victim did so and then hung up immediately.

"The defendant called back and Meyers again asked the victim to answer the
telephone. This time, the defendant told the victim, 'Fucking bitch, I['m] going to kill you,
and I['m] going to kill you with my gun.' Later that evening the defendant called and
spoke with the victim three or four times. In one of these later calls, defendant told the
victim, '[B]itch, I am going to beat you up, and I am going to kill you.' When Meyers
took the telephone, the defendant told Meyers to not let the victim leave Meyers' house.
The defendant told Meyers 'the children should leave the place and go and have ice cream
because things were going to get pretty bad.' The last time the defendant spoke with the
victim, the defendant told her to wait there and he was going to come and kill her.

"The victim called the police after her last conversation with the defendant. After
the police arrived, the defendant arrived at Meyers' house. After questioning defendant
about the reported events, the police arrested the defendant." 2010 WL 3488668, at *1.

One year after his direct appeal was affirmed, Contractor filed a motion for a new
trial alleging that he was entitled to a new trial based on newly discovered evidence.
Contractor alleged that witnesses had come forward with new evidence that the witnesses
at his trial had conspired to fabricate their testimony against him. The district court, after
dismissing several allegations in Contractor's motion as untimely, appointed counsel and
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ordered an evidentiary hearing on the portion of the motion for a new trial alleging newly
discovered evidence. After hearing the evidence, the district court denied Contractor's
motion for a new trial, finding that the evidence did not rise to the level required to grant
Contractor a new trial.

In August 2013, this court affirmed the denial of Contractor's motion for a new
trial in State v. Contractor, No. 101,594, 2013 WL 4404192 (Kan. App. 2013)
(unpublished opinion), rev. denied 299 Kan. 1271 (2014).

On January 8, 2014, and May 5, 2014, Contractor filed two pro se motions for a
new trial. Contractor alleged that because Edward Snowden had revealed that the
government had been listening to all phone calls in the United States since 2004 and the
National Security Agency had collected the daily phone records of Verizon customers,
the government's recorded phone calls would prove the witnesses at his trial lied. The
State filed a response, arguing that there was no basis for Contractor's motion as he failed
to "produce anything other than speculation and reports by the media." The district court
appointed counsel and set the matter for hearing.

At the May 30, 2014, hearing, counsel for Contractor requested a continuance to
subpoena the alleged new evidence from the federal government. The district court found
that Contractor's motion for a new trial was unfounded and denied the motion on its face.

Contractor raises two issues on appeal. First, he challenges the denial of his
motion for a continuance. Second, he argues the district court erred in denying his second
motion for a new trial based on newly discovered evidence. We need not reach the first
issue, as the second issue is dispositive.



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The district court did not err in denying Contractor's motion for a new trial.

Appellate courts review a district court's decision on a motion for a new trial for
an abuse of discretion. State v. Laurel, 299 Kan. 668, 676, 325 P.3d 1154 (2014). Judicial
discretion is abused only if no reasonable person would have taken the view of the
district court. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). The party asserting
an abuse of discretion bears the burden of showing such abuse. State v. Rojas-Marceleno,
295 Kan. 525, 531, 285 P.3d 361 (2012).

To establish the right to a new trial based upon newly discovered evidence, a
criminal defendant must establish: (1) the newly proffered evidence could not have been
produced at trial with reasonable diligence; and (2) the newly proffered evidence is of
such materiality that it would be likely to produce a different result upon retrial. Laurel,
299 Kan. at 676.

Here, the district court denied the motion for a new trial, concluding that this
motion "is an otherwise unfounded claim, other than the broad brush of stating there are
recordings, apparently, of many persons' telephone phone calls in the United States." The
district judge stated:

"There is no reference, there is no connection, no scintilla of evidence that I can
see from this that Mr. Contractor has any information that telephone calls by witnesses in
this case may be contained in those recordings that were part of the NSA program, for
lack of a better term, or were disclosed as part of the various releases by Edward
Snowden to the guardian and disclosed on-line, which has caused many related events
with regard to recording of phone calls and other data being retained or obtained by the
National Security Agency here in America."

For the sake of brevity, we determine that the alleged newly proffered evidence
was not sufficiently material to find a reasonable probability that the jury would have
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reached a different result upon retrial. See Laurel, 299 Kan. at 676. In determining
whether new evidence is material, the district court must assess the credibility of the
newly proffered evidence. 299 Kan. at 676-77. At the motion for a new trial hearing, the
district court clearly found that Contractor's broad unfounded allegation of newly
discovered evidence of government recorded telephone calls of witnesses in his case was
not credible. This court will not reassess the district court's determination of credibility
from such a hearing. See 299 Kan. at 676-77. Accordingly, Contractor's argument fails.

Affirmed.