Opinion
No. 53918-3-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of County. Judgment or order under review. Date filed: 01/01/1800.
Counsel for Petitioner(s), Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Marcus D Ware (Appearing Pro Se), Cedar Creek Correctional Center, #810639, PO Box 37, Littlerock, WA 98556.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
In this personal restraint petition, Marcus Ware seeks a new trial on the basis of a witness' recantation of trial testimony. Because the evidence supporting the petition is patently incredible and cumulative or impeaching, we dismiss the petition.
FACTS
A jury found Marcus Ware guilty of first degree robbery, possession of cocaine with intent to deliver, second degree unlawful possession of a firearm, and second degree bail jumping. He has filed this personal restraint petition seeking a new trial because Angela Drayton, aka Angie Howard, recanted some of her trial testimony.
Patrick Clements, Drayton, and Ware all testified at trial. Clements said he and a friend named Tina were looking for cocaine, and Tina called a connection. Ware and Drayton arrived in a car and took Clements and Tina to the Money Tree so Clements could cash his paycheck. Clements said he purchased two money orders for $1,000 and $400 and got $200 cash to purchase the cocaine. He got in the backseat of the car with Ware. They drove to a parking lot on a dead end street where Ware pulled out a gun and ordered Clements to give him all his money. Ware and Drayton then told Clements and Tina to get out of the car. Clements testified that he did not have a gun and did not offer Ware and Drayton a gun. He also said that he did not agree to purchase $1,400 worth of cocaine, and the deal was not supposed to be an exchange of money orders for drugs.
Drayton testified that after she got a page from Tina, she and Ware drove to meet Tina and Clements to sell Clements cocaine. They drove Clements to the Money Tree to cash a check. He then got into the backseat with Ware. Drayton heard Ware tell Clements to give him his money, and she heard Tina ask what Ware was doing with a gun. Drayton said she did not recall seeing Clements with a gun or hearing that he had one. Drayton said the deal was to be cash in exchange for drugs, and that there was no discussion of payment for drugs by money order.
Ware testified that Drayton told him Clements wanted cocaine and had a gun to sell. Ware stated that Clements offered to use the two money orders to pay for the cocaine and then offered to use a gun in his possession to buy more cocaine.
Drayton plead guilty to first degree robbery and possession of a controlled substance with intent to deliver. One condition of her plea was that she testify truthfully if called as a witness in Ware's trial. Drayton would not help the police find Ware because she was afraid he would retaliate against her children or her family.
In an affidavit presented with the personal restraint petition, Drayton states that she is recanting her statement to detectives and her trial testimony, and purports to now be telling the truth about the events of the cocaine deal. She now says the deal was that Clements would buy one ounce of cocaine for $1,400, and that Drayton and Ware would give Clements $75 in exchange for a handgun. After Clements went to the Money Tree, he offered to use two money orders totaling $1,400 to pay for the cocaine, and Drayton and Ware agreed. Clements then asked to use the gun to purchase more cocaine. Drayton and Ware agreed to this as well.
DISCUSSION
A personal restraint petitioner must show that he is unlawfully restrained. To establish unlawful restraint, he must show either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a `complete miscarriage of justice.' Where a petitioner had no prior or alternative means of obtaining state judicial review, he must show only that he is restrained and that the restraint is unlawful. In order to prevail in a personal restraint petition, a petitioner must set out the facts underlying the challenge and the evidence available to support the factual allegations. Bare assertions and conclusory allegations are insufficient. If a petitioner makes a prima facie showing of actual prejudice but the merits of his claims cannot be determined solely from the record, this court may remand to the trial court under RAP 16.11(a) and 16.12 for a reference hearing or a hearing on the merits.
See RAP 16.4; In re Cashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994).
In re Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990); In re Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).
In re Personal Restraint of Garcia, 106 Wn. App. 625, 629, 24 P.3d 1091, 33 P.3d 750 (2001).
In re Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992).
Rice, 118 Wn.2d at 886.
A personal restraint petition based on recanted witness testimony is treated like a motion for a new trial based on newly discovered evidence. A new trial based on newly discovered evidence is appropriate if the evidence was discovered since the trial and could not have been discovered before trial, and if the evidence is material, admissible, not merely cumulative or impeaching, and will probably change the outcome of the trial. Further, the newly discovered evidence must be reliable. In setting out the facts and evidence supporting claims based on the knowledge of another person, a personal restraint petitioner must present affidavits containing the matters to which that person may testify. Ware has provided an affidavit from Drayton setting out the facts she now avers to be the truth.
State v. Macon, 128 Wn.2d 784, 799-800, 911 P.2d 1004 (1996).
In re Personal Restraint of Lord, 123 Wn.2d 296, 319-20, 868 P.2d 835 (citing State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)), cert. denied, 513 U.S. 849 (1994).
State v. Ieng, 87 Wn. App. 873, 878, 942 P.2d 1091 (1997) (citing Macon, 128 Wn.2d at 804), review denied, 134 Wn.2d 1014 (1998).
Rice, 118 Wn.2d at 886.
The State argues that the facts in Drayton's affidavit are patently incredible because if they are true, Clements reported a robbery that did not happen to the police after successfully buying a large amount of drugs, and Drayton pled guilty to a crime that never occurred. In addition, the State notes that Drayton was afraid to help the police locate Ware for prosecution. In her presentence investigation report, Drayton is quoted saying:
`If they're going to get him, they can get him on their own. I wouldn't want anything I said to be used against him. The reason I don't want to testify against him is he and his family know where my kids and my family live. My kids especially. I'm afraid he'd retaliate. I'm afraid it would cause more problems than necessary.'
We agree with the State. There is no reason why Drayton would have plead guilty to participating in the crime if her affidavit were true. Similarly, there is no credible reason why Clements would have reported a crime to the police if he had participated in the drug deal described in Drayton's affidavit. Finally, Drayton's documented fear of Ware and what he would do to her family make her recantation highly suspect. The new evidence alters Drayton's trial testimony so that it coincides on all salient points with Ware's. This new evidence would serve to corroborate Ware's trial testimony and to contradict Clements' trial testimony. Thus, the new evidence would be both cumulative to Ware's testimony and impeaching of Clements' testimony. We conclude that the new evidence does not warrant a reference hearing.
CONCLUSION
Dismissed.
AGID, SCHINDLER and APPELWICK, JJ., Concur.