Opinion
No. 110,390.
2015-01-9
Moses MOORE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J. PER CURIAM.
In 1997 Moses Moore was convicted of aggravated criminal sodomy. This court affirmed Moore's conviction in State v. Moore, No. 80,598, 1999 WL 1065632 (Kan.App.1999) (unpublished opinion).
In 2006 Moore filed a K.S.A. 60–1507 motion claiming ineffective assistance of counsel, which the district court denied in 2008 following an evidentiary hearing. We affirmed the district court's decision in Moore v. State, No. 101,710, 2010 WL 3245293 (Kan.App.2010), rev. denied 292 Kan. 965 (2011).
In 2012 Moore filed another K.S.A. 60–1507 motion alleging newly discovered evidence which he said supported his claim of actual innocence. He claimed that witness Manuela Garza had recanted her trial testimony, and without Garza's testimony, no reasonable jury would have found him guilty beyond a reasonable doubt. He attached four affidavits to his motion—each apparently drafted by Moore and signed by his sisters—in which his sisters stated Garza told them she had lied at trial.
In 2013 Moore moved for the appointment of new counsel because his present counsel had failed to adequately investigate Garza's recantation and had failed to subpoena her for an earlier hearing even though the attorney had been given Garza's address numerous times. Moore argued his present K.S.A. 60–1507 motion should not be time barred and failure to consider it would result in manifest injustice.
At a hearing on Moore's motions, the district court denied Moore's request for substitute counsel and summarily denied relief on Moore's K.S.A. 60–1507 motion. Moore appeals the denial of an evidentiary hearing on his K.S.A. 60–1507 motion.
Central to Moore's complaint is the role Garza played in the events leading to his conviction. The victim in this case was W.T., a resident of a nursing home. W.T. was wheelchair bound as the result of a stroke. He communicated through gestures, head movements, and short sentences.
Garza was a registered nurse working at the nursing home. Moore and Juanita Franklin, both certified nurse assistants, were on duty with Garza that night. When W.T. called for assistance by means of his call button, Moore volunteered to respond. About 20 minutes later, W.T.'s call light came on again. Franklin went to W.T.'s room, opened the closed door, and entered the darkened room. She heard Moore call out, “Who is it?” She also heard someone jump out of W.T.'s bed and the sound of a belt buckle.
Franklin left the room feeling sick and disgusted. She told Garza that something was not right in W.T.'s room. Once Moore left the area Franklin returned to check on W.T. She found him lying on his side with his buttocks propped up with pillows. A blue pad on the bed was stained with feces. She asked W.T. if he was okay but said he just looked at her with sad, red eyes. “And then I said, Were you hurt? He said something on his back.”
At trial Garza confirmed what Franklin had told her. W.T. told Garza that Moore had hurt him using “his tool.” When asked where he had been hurt, W.T. indicated with his eyes and said, “back there.” W.T. indicated that this had happened before. He told Garza he had been threatened not to tell anyone. Garza was present when a police officer asked W.T. if Moore had used his penis to hurt him, and W.T. responded in the affirmative with a nod of his head.
Garza reported the incident to Lavonia Brown, the nursing home administrator. At trial Brown confirmed that W.T. indicated Moore had injured W.T.'s buttocks area using his “tool.” Brown took W.T. for an examination by Dr. Robert Fowler, who found a tear in W.T.'s rectum.
The police had Brown take W.T. to the hospital for a rape examination. Nurse Twila Flowers examined W.T. and found redness and lacerations in his anal fold consistent with blunt force trauma. Flowers' supervisor, Diana Schunn, testified the lacerations and abrasions were consistent with blunt force, penetrating trauma.
Police officer Michael Tiday interviewed W.T., who indicated that Moore had used his penis to hurt him.
Detective Jesse Hill, Jr., interviewed Moore, who admitted going in W.T.'s room that night but denied sexually assaulting him. Moore told Hill that he was a homosexual but was not presently practicing. At trial, the State introduced into evidence a journal entry memorializing Moore's prior conviction for criminal sodomy.
In this appeal Moore argues that the alleged facts in his K.S.A. 60–1507 motion, if proven, would have entitled him to a new trial. He contends the district court improperly denied him an opportunity to prove the substance of his motion.
As a preliminary matter, Moore contends that the district court did not make independent findings of fact and conclusions of law but merely rubberstamped the State's findings and conclusions. Because of this, Moore asks that this court restrict its review of this issue to the ruling the district court made in open court.
Whether the district court's findings of fact and conclusions of law comply with Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285) is a question of law which we review de novo. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009). Supreme Court Rule 165 (2014 Kan. Ct. R. Annot. 272) requires the district court to make adequate findings and conclusions on the record of the court's decision on contested matters. But if a party contends the findings and conclusions are inadequate, that party must object in order to preserve the issue for appeal. State v. Edwards, 290 Kan. 330, Syl. ¶ 5, 226 P.3d 1285 (2010). Moore did not object, so we presume the district court found all facts necessary to support its judgment. We find nothing to rebut that presumption. The facts supporting the district court's ruling are sufficient, and the district court's findings do not preclude meaningful review. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).
The district court determined that the motion, files, and case records conclusively show Moore was not entitled to relief and summarily denied the motion in accordance with the procedure set forth in Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013). In our review, we consider whether substantial evidence supports the district court's findings and whether these findings are sufficient to support its legal conclusions. We review the district court's legal conclusions de novo. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).
Under K.S.A. 60–1507(c) the district court is not required to hear successive motions for similar relief on behalf of the same prisoner. Further, K.S.A. 60–1507(f)(1) requires an action under this section to be brought within 1 year of the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction. In Moore's case, he had until June 30, 2004, to file his 60–1507 motion. See Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008). The 1–year time limitation may be extended only to prevent manifest injustice. K.S.A. 60–1507(f)(2).
Moore correctly contends that a K.S.A. 60–1507 motion may be used to seek a new trial on the basis of newly discovered evidence pursuant to State v. Bradley, 246 Kan. 316, Syl. ¶ 2, 787 P.2d 706 (1990). He argues he could not have raised the issue of Garza's recantation in his prior K.S.A. 60–1507 motion because it was not discovered until 2010. Thus he claims exceptional circumstances permit him to proceed with a successive K.S.A. 60–1507 motion based on this new information.
The affidavits supporting Moore's motion were signed by his sisters in October 2010. According to one of the affiants, Garza recanted her testimony at a gathering of Moore's family in September 2008. Moore filed his K.S.A. 60–1507 motion in June 2012, nearly 4 years after Garza's claimed recantation and almost 2 years after his sisters signed the affidavits. He offers no explanation for this delay which exceeds the 1–year standard. Thus, Moore's appeal turns on whether he has demonstrated manifest injustice.
In the present context manifest injustice means “ ‘ “obviously unfair” ‘ “ or “ ‘ “shocking to the conscience.” ‘ “ State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013) (quoting State v.. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 [2011] [quoting Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007) ] ). When a prisoner can show actual innocence, such prisoner suffers manifest injustice justifying an extension of the time limit found in K.S.A. 60–1507(f)(l) regardless of the reason for the delay in filing the 60–1507 motion. Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014). In considering such a claim, the court should consider, along with any other relevant factors,
“whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60–1507 motion within the 1–year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant set forth a colorable claim of actual innocence, i.e., factual, not legal, innocence.” 299 Kan. at 616.
Moore argues that the timing of Garza's claimed recantation prevented him from seeking relief within the 1–year time limitation of K.S.A. 60–1507(f)(1). But he makes no attempt to justify his late filing after learning of the recantation. Thus, he fails the first Vontress factor.
In considering the second Vontress factor, we examine Moore's claim of newly discovered evidence. See Bradley, 246 Kan. at 319. To obtain a new trial based on newly discovered evidence, Moore must show (1) the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) the newly discovered evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Backus, 295 Kan. 1003, 1011, 287 P.3d 894 (2012). Applying this test, we conclude that while evidence of Garza's claimed recantation could not have been produced at trial, such evidence would not likely result in a different outcome at a second trial.
As a preliminary matter, we note that a new trial is required only when the court is satisfied the recantation is true and material. State v. McKinney, 272 Kan. 331, 338, 33 P.3d 234 (2001), overruled on other grounds State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 (2007). Courts look upon the recantation of a prosecution witness with great suspicion. See State v. Lewis, 33 Kan.App.2d 634, 651, 111 P.3d 636 (2003). The affidavits Moore proffered are from his sisters, not from Garza. Affidavits from Moore's sisters are not sufficiently credible or material in their own right. Newly discovered evidence which tends to merely impeach the testimony of a witness is generally looked upon unfavorably when the defendant requests a new trial. See State v. Foy, 224 Kan. 558, 569, 582 P.2d 281 (1978).
In any event, Garza fails to show that he could expect a more favorable verdict if the case were retried and testimony admitted about Garza's claimed recantation. First, Moore does not argue that at a retrial Garza would provide testimony that would exonerate him from the charge. Second, we have nothing to indicate that Garza would admit that her prior testimony was perjured. Third, we have no reason to believe the testimony of Moore's sisters on the issue would be considered favorably by the jury, given the overall circumstances. Fourth, even without Garza's testimony, there was overwhelming evidence to support the State's charge. For this we refer the reader to the facts drawn from the trial testimony of the various witnesses outlined earlier in this opinion.
Moore has failed to demonstrate that at a retrial he could establish his actual innocence. He has failed to demonstrate manifest injustice that would excuse the late filing of his K.S.A. 60–1507 motion. Thus, the district court did not err in summarily denying relief on the motion.
Affirmed.