Opinion
Court of Appeals No. A-9782.
October 29, 2008.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben J. Esch, Judge, Trial Court No. 2KB-05-228 Cr.
Robert D. Lewis, Lewis Thomas, Nome, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
OPINION
On the night of April 17, 2005, the Lions Club hosted a dance in Kotzebue. Wishing to attend this dance, N.W. visited the home of Aubrey "Tex" Beasley to see if Beasley's daughter would babysit N.W.'s young son for the evening. When the babysitting arrangements were complete, Tex Beasley and N.W. walked together to the dance.
When the dance ended (in the early hours of the following morning), Frank Kenworthy Sr. offered to give N.W. a ride back to the Beasley residence. But instead of taking N.W. to the Beasley home, Kenworthy drove her to another location and raped her. Kenworthy then drove N.W. to the Beasley residence. When she got there, N.W. reported the assault.
According to Beasley, he was conflicted about what to do. Beasley had known Kenworthy for most of his life, and he had attended school with Kenworthy's children. Beasley "didn't want to be involved in anything like this." Nevertheless, he called N.W.'s parents, and (at their urging) he then called 911 to report the sexual assault.
Based on this episode, Kenworthy was charged with first-degree sexual assault. He was tried by jury in July 2005. Both N.W. and Beasley testified at Kenworthy's trial. Kenworthy's defense at trial was that he and N.W. had consensual sex.
At the end of the trial, Kenworthy was convicted, and he was later sentenced to serve 8 years in prison (10 years with 2 years suspended).
About five weeks after Kenworthy's sentencing, Kenworthy's attorneys (Robert D. Lewis and H. Connor Thomas) filed a motion for a new trial. This motion was based on a letter that Beasley wrote. This handwritten letter is headed by the phrase "Character Witness". In this letter, Beasley asserted that, on the evening of the Lions Club dance, N.W. made sexual advances to Beasley and other men:
[At my house before the dance, N.W.] kept coming on to me. . . . [A]t the dance later that night[, she] was prancing around making men horny. One in particular was the [disk jockey]. He had a hard time brushing her off.
[N.W.] had promised me a dance, but I never got it. When the dance was almost over[,] she came up to me and said, "I'll catch a ride home with you." I replied, "I'm drinking[,] so I'm walking."
Later[,] after that[,] I saw her coming on to Mr. Kenworthy. She was all over him in a sense. I felt jealous and left. I hadn't been laid in a few months, and if I had a ride, she would have been easy. That's all I know.
(Spelling corrected)
Beasley's letter was addressed to Superior Court Judge Ben Esch, but it apparently was not sent to the judge. Rather, it seems that Beasley (or someone on his behalf) physically delivered the letter to Kenworthy — for in Robert Lewis's affidavit supporting the motion for a new trial, Lewis asserted that he obtained the letter from Kenworthy when he visited Kenworthy in prison in December 2005.
In the motion for a new trial, Kenworthy's attorneys argued that Beasley's letter was important new evidence to support Kenworthy's defense of consensual sex. In his supporting affidavit, Lewis divulged that he had interviewed Beasley shortly before Beasley testified at Kenworthy's trial. According to Lewis, during this interview he advised Beasley that Kenworthy would take the stand and assert that N.W. had been "coming on to him at the dance". Lewis then asked Beasley if he had seen anything to corroborate Kenworthy's assertion. According to Lewis, Beasley replied that he could only testify that N.W. talked to several people at the dance, and that he knew nothing more that might be helpful to Kenworthy's defense.
In other words, according to the motion for a new trial, Beasley's letter contained important exculpatory information that, despite Lewis's diligent investigation, was not discovered until after Kenworthy's trial.
Judge Esch held an evidentiary hearing so that Beasley could take the stand and explain these matters. But when Beasley was called to testify, he stated only that (1) he had been a witness at Kenworthy's trial, and that (2) he subsequently wrote a letter to the court regarding Kenworthy — although he did not identify the letter quoted above (or any other letter) as the letter he had written.
Having acknowledged these two things, Beasley (on the advice of counsel) then asserted his privilege against self-incrimination and declined to discuss these matters any further. Following Beasley's assertion of this privilege, Kenworthy's attorneys (Lewis and Thomas) argued that, because Beasley was now unavailable as a witness, his letter was admissible under Alaska Evidence Rule 804(b)(3) as a statement against interest.
Evidence Rule 804(b)(3) provides that, if the declarant ( i.e., the person who made an out-of-court statement) is shown to be "unavailable" as defined in Rule 804(a), then the hearsay rule does not bar the introduction of the out-of-court statement if "[the] statement . . . was[,] at the time of its making[,] so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
In addition, after Beasley claimed his privilege against self-incrimination, one of Kenworthy's attorneys (Mr. Thomas) filed an affidavit in which he asserted that he had spoken to Beasley shortly before the evidentiary hearing and that, during their conversation, Beasley told Thomas (1) that he was indeed the author of the handwritten letter bearing his name, and (2) that "everything in the letter was accurate". Kenworthy's attorneys argued that, because Beasley was now unavailable as a witness, Thomas could properly testify about Beasley's out-of-court statements — again, under the theory that Beasley's statements were against his penal interest.
In response, the State argued that Beasley's out-of-court statements remained inadmissible hearsay. In the alternative, the State argued that even if Beasley's out-of-court statements were admissible, they did not constitute a proper basis for granting a new trial.
In support of this second assertion, the State relied on the Alaska Supreme Court's decision in Dunbar v. State, 555 P.2d 548 (Alaska 1976). Dunbar involved a situation similar to the one presented in Kenworthy's case: The defendant in Dunbar was convicted of sexually abusing his children. After the trial, Dunbar's children filed affidavits recanting their testimony. But when the children were called to testify at a post-trial evidentiary hearing, they claimed the privilege against self-incrimination and declined to discuss matters further. The supreme court held that, given these facts, the superior court correctly concluded that "[n]o evidence was produced at [the evidentiary] hearing which, at a new trial, would probably produce an acquittal." Dunbar, 555 P.2d at 551-52.
In a written decision, Judge Esch agreed with the State that "[t]he facts of [Kenworthy's] case are very similar to those in Dunbar". Judge Esch noted that when Beasley was given the chance to testify at the evidentiary hearing, he invoked his right to remain silent; thus, Beasley "failed to [either] affirm or repudiate [his] trial testimony". Based on this, Judge Esch concluded that Kenworthy's motion for a new trial should be denied because Kenworthy had produced no evidence which, if a new trial were held, would probably produce an acquittal.
Kenworthy now appeals Judge Esch's decision. Why we uphold Judge Esch's decision to deny Kenworthy's request for a new trial
Under Alaska law, when a defendant seeks a new trial based on a claim of newly discovered evidence, the defendant must show (among other things) that the new evidence, if presented at a new trial, "would probably produce an acquittal". Salinas v. State, 373 P.2d 512, 514 (Alaska 1962).
The supreme court's decision in Dunbar suggests that, even if Beasley had decided to testify at the evidentiary hearing, and even if Beasley had ratified the statements he made earlier in the letter, this normally would not be a sufficient basis for a new trial — because, according to Dunbar, post-trial witness recantations are "looked upon with the utmost suspicion". In other words, the Dunbar decision suggests that a witness's post-trial recantation of their testimony will generally not be so convincing as to probably produce an acquittal.
Dunbar, 555 P.2d at 551, quoting Harrison v. United States, 7 F.2d 259, 262 (2nd Cir. 1925).
But before a trial judge reaches the issue of whether new evidence would probably produce an acquittal, the defendant must first satisfy the implicit requirement that the new evidence be admissible under the rules of evidence.
Kenworthy does not challenge Beasley's assertion of the privilege against self-incrimination at the evidentiary hearing. But based on Beasley's assertion of privilege, Kenworthy argues that Beasley's out-of-court statements — not only the statements contained in the letter itself, but also Beasley's later statements to Thomas (in which Beasley purportedly ratified the statements in the letter) — are admissible under Evidence Rule 804(b)(3) because they are statements against Beasley's penal interest.
The problem with this argument is that Beasley's statements in the letter are not, on their face, against Beasley's penal interest. Beasley's statements about N.W.'s purported actions on the night of the Lions Club dance do not describe any event or circumstance that would subject Beasley to criminal prosecution.
Kenworthy argues that Beasley's assertion of the Fifth Amendment privilege at the evidentiary hearing proves that Beasley believed that his out-of-court statements were against his penal interest — specifically, that Beasley perceived that his post-trial, out-of-court statements tended to show that he committed perjury w hen he said something different at Kenworthy's trial. There are three fundamental flaws in this argument.
The first flaw in Kenworthy's argument is that it ignores one of the foundational requirements of Evidence Rule 804(b)(3). To prove the admissibility of Beasley's out-of-court statements under Rule 804(b)(3), Kenworthy was required to show that Beasley perceived, at the time he made the statements in the letter, that these statements "so far tended to subject [Beasley] to . . . criminal liability . . . that a reasonable person in [Beasley's] position would not have made the statement[s] unless believing [them] to be true."
There are good reasons to doubt whether Beasley perceived his letter as self-incriminatory at the time it was written (as opposed to later, after he was summoned to testify at the evidentiary hearing, and after he had consulted independent counsel).
Beasley's letter is addressed to a judge of the superior court, and Beasley either delivered the letter to Kenworthy or caused it to be delivered to Kenworthy. In other words, it appears that Beasley intended the letter to be used by Kenworthy and his attorneys in Kenworthy's court case. This suggests that Beasley did not perceive that the statements in this letter might subject him to criminal liability until later — after he had consulted an attorney in preparation for his testimony at the evidentiary hearing. Moreover, there is a reasonable possibility that Beasley still does not believe that these statements, standing alone, could subject him to criminal liability. Given the record here, it is certainly plausible that Beasley did not believe that he faced criminal liability for these statements, and that the danger of criminal prosecution would be created only if he took the stand at the evidentiary hearing and affirmed these statements under oath — thus potentially subjecting him to a prosecution for perjury under AS 11.56.230 based on the inconsistency between his testimony at Kenworthy's trial and his contemplated testimony at the evidentiary hearing.
The second fundamental flaw in Kenworthy's argument is that, when a person asserts an evidentiary privilege, our law does not allow a litigant to argue that the person's assertion of privilege gives rise to any inference about the underlying facts. Alaska Evidence Rule 512(a) expressly declares that no inference is to be drawn from the fact that a person has claimed the benefit of a privilege not to testify. This Court has repeatedly recognized and applied this rule.
See David v. State, 28 P.3d 309, 314 (Alaska App. 2001); Nighswonger v. State, 662 P.2d 445, 447-48 (Alaska App. 1983).
Kenworthy's argument for the admissibility of Beasley's out-of-court statements runs directly contrary to this rule. As we have already explained, Kenworthy contends that one can — and should — infer from Beasley's assertion of privilege that Beasley's testimony at Kenworthy's trial was false, and that Beasley's statements in the letter are true. These inferences are not allowed.
Third and finally, even if it were lawful to draw an inference from Beasley's assertion of privilege, it would be completely speculative to conclude that Beasley asserted his Fifth Amendment privilege because he feared that he would be prosecuted for giving false testimony at Kenworthy's trial. On the record before us, it is at least equally plausible that Beasley feared that he would be prosecuted for committing perjury at the evidentiary hearing if he took the stand and, under oath, affirmed the statements he made in the letter.
Regarding the possibility that Beasley made false statements in the letter, we note that Beasley was a long-time friend of Kenworthy's family and that Beasley was openly reluctant to cooperate in the State's efforts to prosecute Kenworthy. We also note that some of the statements contained in Beasley's letter appear to be inconsistent with the evidence presented at Kenworthy's trial.
In particular, Beasley's letter contains the assertions that N.W. asked Beasley for a ride home from the dance, and that Beasley answered, "I'm drinking[,] so I'm walking." But at Kenworthy's trial, both Beasley and N.W. testified that they walked together to the dance from Beasley's house. This testimony suggests that N.W. would not have asked Beasley for a ride home (because she knew that Beasley had not brought a vehicle to the dance), and it also suggests that Beasley's decision to walk home was likewise based on the fact that he had not brought a vehicle (rather than on the fact that he had been drinking). These inferences are also supported by a statement that Beasley made toward the end of his letter: "I hadn't been laid in a few months, and if I had a ride, [N.W.] would have been easy." (Emphasis added)
For these reasons, even if the law allowed an inference to be drawn from Beasley's assertion of the privilege against self-incrimination, it would be mere speculation to draw that inference in favor of Kenworthy. Conclusion
In Dunbar, the supreme court declared that it was "[o]f controlling significance" that the two recanting witnesses each invoked the privilege against self-incrimination when they were called to the stand at the post-trial evidentiary hearing — and that these witnesses therefore gave no evidence regarding their trial testimony (nor any evidence concerning the content of their post-trial affidavits in which they recanted that testimony). Dunbar, 555 P.2d at 550.
The situation is the same in Kenworthy's case. For the reasons explained here, Kenworthy offered no admissible evidence to support his motion for a new trial. As Judge Esch wrote in his decision, when Beasley was called to the stand at the evidentiary hearing, Beasley "failed to [either] affirm or repudiate [his] trial testimony", and thus, "no evidence [was] produced [to] indicate that a new trial would likely produce an acquittal."
The judgement of the superior court is AFFIRMED.