Opinion
No. 0-800 / 00-0058.
Filed February 7, 2001.
Appeal from the Iowa District Court for Polk County, Richard G. Blane, Judge.
Applicant appeals the district court ruling denying his application for postconviction relief. AFFIRMED.
Maggi Moss and Jennifer Larson of Parrish, Kruidenier, Moss, Dunn Montgomery, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
George Fox appeals the district court ruling denying his application for postconviction relief. We find the trial court did not abuse its discretion in denying Fox's motion for new trial and we affirm.
Background facts . In 1990, Fox was convicted by a jury of second-degree sexual abuse. At trial, eleven-year-old Sara testified that Fox, her grandfather, had sexually abused her on multiple occasions over approximately a two to three year period. Nine years later, a hearing was held in which Sara recanted her trial testimony and Fox sought a new trial based on what he claims to be newly discovered evidence. The trial court found Sara's recantation lacked credibility and denied Fox a new trial. Fox now appeals.
Scope of review . We review a district court's denial or grant of a motion for new trial on the basis of newly-discovered evidence for abuse of discretion. See State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996). A district court is given "unusually broad discretion" in ruling on a motion for a new trial based on newly discovered evidence. State v. Miles, 490 N.W.2d 798, 799 (Iowa 1992). This broad discretion is appropriate as it is important to distinguish between the unavoidable, legitimate claims and those proposed in desperation by a disappointed litigant. State v. Jefferson, 545 N.W.2d 248, 249 (Iowa 1996). From its closer vantage point, the trial court has a clearer view of this crucial question and we generally yield to its determination. Id. In order to prevail on such a motion, the defendant must show that the evidence (1) was discovered after the verdict, (2) could not have been discovered earlier in the exercise of due diligence, (3) is material to the issues in the case and not merely cumulative, and (4) probably would have changed the result of the trial. Miles, 490 N.W.2d at 799 (citing Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991)).
Recantation . Fox claims Sara's recantation virtually strips the record of crucial evidence, which originally led to his conviction.
A witness' recantation of his testimony is looked upon with utmost suspicion. Such newly discovered evidence, of course, is not new evidence in the real sense. On the contrary, it is but an assertion by affidavit that the former testimony given by the witness was false. The trial court is not required to believe the recantation, but must make its decision on the basis of the whole trial and the matters presented on the hearing on the motion. Premised thereon, if it believes the statements in the affidavit of recantation are false, and is not reasonably well satisfied that the testimony given by the witness on the trial was false, it should deny the motion, and it is not at liberty to shift upon the shoulders of another jury the responsibility to seek out the truth of that matter.State v. Compiano, 261 Iowa 509, 516-17, 154 N.W.2d 845, 849 (1967). Our review of the trial testimony also includes that of another witness, which closely paralleled and confirmed the sexual abuse perpetrated against Sara. Melissa, Sara's cousin, corroborated some of the abuse described by Sara by testifying to instances of abuse against Sara, which she had both witnessed and been subjected to along with Sara. Melissa testified, without hesitation, to sexual abuse against both her and Sara at the hand of Fox. Therefore, even if Sara's testimony were totally stricken from the original evidence, the record would still contain evidence of the abuse.
Fox also claims Sara has now "unequivocally and without doubt" stated that it was not Fox who abused her. This characterization of Sara's recantation testimony is overstated. On review, a comparison of both her deposition and her trial testimony demonstrates a vague and somewhat confused memory of the abuse. She admittedly began using illegal drugs and alcohol at approximately eleven or twelve years of age. Sara's youth has been a traumatic one and included adjudication as a child in need of assistance. In her later years, she sustained two convictions and has been in and out of substance abuse rehabilitation and psychotherapy treatment. Admittedly, however, she has consistently refused to speak about her sexual abuse issues with the therapists during her treatment sessions and still has not sought therapy on her own to confront the abuse she sustained during her childhood.
Sara made several claims during her "recantation process" as to who her abuser was. During her initial sworn statement in October 1998, she adamantly stated the abuser of her childhood was her cousin, Michael Vargas. Later, in her July 1999 deposition, Sara stated that she did not believe the perpetrator was either Fox or Vargas. She stated she could see the abuse occurring in flashbacks but could not see the face of the person molesting her. Then, in her testimony during the August 1999 postconviction relief hearing, she again testified that she believed Vargas was the individual who committed the abuse against her. However, throughout the unfolding recantation process, she consistently described her memory as "Swiss cheese" because it is full of holes that she cannot remember. Her faulty memory, combined with her prolonged drug use and failure to confront her abuse through a counseling process, did not inspire the trial court to attach much credibility to Sara's recantation. The trial court found, and we agree, the passing years had done nothing to bring Sara's memory of the abuse into a better focus than at the time of the original trial.
Fox argues the trial court misapplied the law in finding her recantation not credible. In a lengthy analysis denying Fox's motion for a new trial, the trial court stated:
[B]ased upon training in assessing the credibility of witnesses, the Court finds that [Sara] is not a believable or credible witness. This credibility finding is further based upon contradictory statements Sara made under oath in her sworn statement to Mr. Addington, her deposition and her trial testimony. In addition, the Court finds Sara's recantation testimony, claimed by her to be based upon a reconstructed memory and "flashbacks" after years of drug and alcohol abuse, is unreliable and not credible. Her current claim of clear memory of events which occurred 10 to 12 years earlier, after years of substance abuse, is likewise not plausible.
We agree with the trial court's assessment of Sara's recantation evidence. Accordingly, we find the trial court did not abuse its discretion in denying Fox a new trial and we affirm.
AFFIRMED.