¶1specially concurring, with whom CARDINE, Chief Justice, and GOLDEN, Justice, join.
¶2I agree with the conclusion of the majority that King’s judgment and sentence should be affirmed as modified. I cannot agree, however, as the majority determines, “that appellant has satisfied the first two Opie factors, … At 949. The correct conclusion should be that, under these circumstances, the possible con*963fession of Jeff King is not newly discovered evidence.
¶3The test articulated in Opie v. State, 422 P.2d 84, 85 (Wyo.1967), is taken from federal precedent. United States v. Johnson, 142 F.2d 588 (7th Cir.1944), cert. dismissed 323 U.S. 806, 65 S.Ct. 265, 89 L.Ed. 643 (1944). Consequently, the invocation of federal precedent with respect to similar facts is appropriate. A number of federal courts, considering motions for new trial under Rule 33, F.R.Cr.P., have concluded that the exercise of the privilege against self-incrimination does not have the effect suggested in the majority opinion in an analysis of what is “newly discovered” evidence. Those courts have held that, in circumstances which demonstrate that the evidence did exist at the time of trial, it should not be deemed to be “newly discovered” simply because the witness’ exercise of testimonial privilege made it unavailable at trial. United States v. Offutt, 736 F.2d 1199 (8th Cir.1984); United States v. Vergara, 714 F.2d 21 (5th Cir.1983); United States v. Diggs, 649 F.2d 731 (9th Cir.1981), cert. denied 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). See also United States v. LaDuca, 447 F.Supp. 779 (D.N.J.1978), cert. denied 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979), (holding that the exculpating testimony of a witness who had exercised his Fifth Amendment privilege at the defendant’s trial was not newly discovered, but merely newly available; holding further that the defendant, in order to demonstrate diligence in producing the evidence, should have requested that the reluctant witness receive immunity; and affirmed on other grounds but criticized for the theory relative to “immunization” in United States v. Rocco, 587 F.2d 144, 147-48 (3d Cir.1978)).
¶4Those federal cases are consistent with Salaz v. State, 561 P.2d 238 (Wyo.1977), in which we explained that, if, prior to or during the trial, the defendant had knowledge of the existence of a particular witness and the factual matters to which he could testify, the testimony could not subsequently be said to be “newly discovered” simply because the defendant could not produce it at his first trial. A clear distinction was made between “newly discovered” and “newly produced” evidence. Salaz, 561 P.2d 242-43. The same result was reached in Gist v. State, 737 P.2d 336 (Wyo.1987), appeal after remand 766 P.2d 1149 (1988). There the court held that a confession to the crime was not newly discovered because Gist had known of the potential testimony prior to the conclusion of his trial but had failed to produce it.
¶5In these cases, the defendant knew the identity of a witness whose truthful testimony on the material facts of the case would corroborate the defendant’s theory and serve to establish innocence. That identity was known from the outset of the trial. In both cases, the evidence was deemed to have been discovered prior to the end of the trial so far as a new trial motion based upon the ground of newly discovered evidence was concerned. The fact that the respective witnesses were known to the defendants at the time of the trials on the charged offenses, together with the common claim that the witnesses would exculpate the defendants, manifests the fact that no further investigation was required to “discover” such evidence. These defendants, as is true of King, simply failed to “produce” the evidence.
¶6Our rule is that this court will limit itself, in reviewing the denial of a motion for new trial based upon grounds of newly discovered evidence, to the determination of whether the denial constituted an abuse of the trial court’s discretion; that is, could the trial court reasonably have concluded as it did. Gist, 737 P.2d at 340; Grable v. State, 664 P.2d 531, 532-33 (Wyo.1983). The trial court should not grant such a motion based on the ground of newly discovered evidence unless the defendant has established that all four factors of the Opietest have been satisfied. Gist; Frias v. State, 722 P.2d 135 (Wyo.1986); Opie, 422 P.2d 84. In this instance, the conclusion of the trial court, based upon the precedent cited above that the post-trial confession was not newly discovered evidence, indeed was reasonable. I would affirm the denial of the motion for a new trial by holding that this was not newly discovered evi*964dence, but that it simply was evidence, known to the defendant at the time of the trial, that the defendant could not produce.