Opinion
Court of Appeals No. A-11641 No. 6391
10-12-2016
ROCKY N. SEAMAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: J. Adam Bartlett, Attorney at Law, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3KN-09-461 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kenai, Carl Bauman, Judge. Appearances: J. Adam Bartlett, Attorney at Law, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Rocky N. Seaman was convicted of conspiracy to kidnap and murder his brother's girlfriend. Nine years after he was convicted, Seaman filed an application for post-conviction relief arguing that he was entitled to a new trial based on newly discovered evidence — specifically, his brother's recantation of a portion of his trial testimony. The superior court dismissed the application on the pleadings, concluding that Seaman's application was untimely and failed to satisfy the post-conviction standard for untimely petitions based on newly discovered evidence. The superior court also ruled that Seaman's plea agreement with the State precluded him from filing any application for post-conviction relief.
For the reasons explained here, we agree with the superior court that Seaman's pleadings fail to meet the post-conviction standard for newly discovered evidence because his brother's recantation does not undermine the State's case in a new or significant way. Because we resolve Seaman's post-conviction case on this basis, we do not reach the separate question of whether Seaman's application was also barred by his plea agreement.
Facts and prior proceedings
In 2001, Rocky Seaman was tried on charges of murder, kidnapping, conspiracy to commit murder, and conspiracy to commit kidnapping following the disappearance of Loreese Hennigan, the girlfriend of Seaman's brother, Rusty.
At trial, the State presented evidence that Seaman and his mother, Avis McGahan, were drug dealers in Kenai and that Rusty and Hennigan stole jewelry, cash, and more than two kilograms of cocaine from McGahan's home in September 1996, shortly before Hennigan's October disappearance. The State also presented evidence that, in retribution for Rusty and Hennigan stealing the cocaine from McGahan, Seaman arranged for a mutual friend, Jeff Lackey, to lure Hennigan to a beach where Seaman killed her.
Rusty testified for the State at trial. In his testimony, Rusty admitted that he and Hennigan stole the jewelry, cash, and cocaine from McGahan's house. Rusty also told the jury that Hennigan subsequently flushed most of the cocaine down the toilet in a Kenai motel where they were staying. Rusty was challenged on this claim during cross-examination and was asked whether Hennigan had really flushed the cocaine down the toilet or whether Rusty had instead given the cocaine to Lackey. Rusty denied giving any cocaine to Lackey.
Lackey also testified for the State at trial and also denied receiving any of the cocaine from Rusty. Lackey told the jury that he had been charged with Hennigan's murder after he admitted to a jailhouse informant that Seaman had paid him $10,000 to lure Hennigan to a beach so Seaman could kill her. Lackey also told the jury that he had subsequently entered into a plea agreement with the State whereby he was allowed to plead no contest to second-degree murder and receive a sentence of 25 years with 13 years suspended (12 years to serve) in exchange for his testimony against Seaman and McGahan at trial.
In his trial testimony, Lackey admitted to luring Hennigan to the beach and to seeing Seaman arrive soon afterwards. However, he claimed that he did not know what ultimately happened to Hennigan because Seaman told him to leave before anything happened.
The jury was unable to reach a verdict on the murder and kidnapping charges against Seaman, but found him guilty of the two conspiracy counts.
Following his convictions for conspiracy to commit murder and conspiracy to commit kidnapping, Seaman entered into a sentencing agreement with the State. As part of the agreement, the State agreed not to retry Seaman on the murder and kidnapping charges and also agreed to dismiss the related charges against Seaman's mother. In exchange, Seaman agreed to a sentence of 70 years on the two conspiracy counts.
In 2009, more than nine years after his trial, Seaman filed an application for post-conviction relief. Seaman acknowledged that his application was untimely because it was not filed within 18 months after his judgment became final. But he claimed that the untimeliness was excused because the post-conviction claim was based on newly discovered evidence of his innocence.
See AS 12.72.020(a).
See AS 12.72.020(b)(2).
In support of this claim, Seaman provided an affidavit from his brother Rusty in which Rusty recanted a portion of his trial testimony — specifically, the portion where Rusty claimed that Hennigan flushed the majority of the cocaine down the toilet. In his 2009 affidavit, Rusty now claimed that Hennigan had not flushed the cocaine down the toilet. Instead, Rusty claimed that he had given some of the stolen cocaine to Lackey and he claimed that Lackey was aware that Hennigan had more of the cocaine. Rusty also claimed that Lackey was aware of where Hennigan lived because Lackey had engaged in drug transactions at the apartment Rusty and Hennigan shared.
The State moved to dismiss Seaman's application, arguing (1) that Seaman waived his right to seek post-conviction relief in his plea agreement with the State; and (2) that Rusty's recantation did not undermine the State's case in a new or significant way and therefore did not qualify as newly discovered evidence under the post-conviction statute. The superior court subsequently dismissed Seaman's application on both grounds.
See AS 12.72.020(b)(2).
This appeal followed.
Why we agree with the superior court that Rusty's recantation does not qualify as newly discovered evidence under AS 12.72.020(b)(2)
Alaska Statute 12.72.020(b)(2) permits courts to hear untimely claims for post-conviction relief if those claims are based on "newly discovered evidence."
To establish a claim of newly discovered evidence under the post-conviction statute, the defendant must establish their diligence in pursuing the newly discovered evidence claim, and must also present admissible evidence showing that (1) the evidence was not known within 18 months of the judgment of conviction; (2) the evidence is not cumulative to the evidence presented at trial; (3) the evidence is not merely impeachment evidence; and (4) the evidence establishes by clear and convincing evidence that the applicant is innocent.
AS 12.72.020(b)(2).
Evidence is considered "impeachment evidence" for these purposes if it is either "cumulative of the evidence previously available, or it simply reinforces the types of impeachment that were previously available." Evidence is not "merely impeaching" if it "undermines the government's case in a new and significant way."
Mooney v. State, 167 P.3d 81, 91 (Alaska App. 2007).
Id.
Because the superior court dismissed Seaman's application on the pleadings, our review is de novo. We therefore accept all well-pled factual assertions in Seaman's application as true and accordingly determine "whether these assertions of fact (if ultimately proved) would entitle [Seaman] to post-conviction relief."
Burton v. State, 180 P.3d 964, 974 (Alaska App. 2008).
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007) . --------
Seaman contends that Rusty's recantation undermines the jury's verdicts in a new and significant way because it establishes that both Lackey and Rusty were lying about the cocaine at trial and their credibility was the main issue at trial. Seaman also argues that Rusty's recantation tends to prove his innocence because it shows that Lackey had an independent motive and opportunity to kill Hennigan.
We have independently reviewed Seaman's pleadings and the trial record in this case, and we conclude that Rusty's recantation, even if assumed to be true, fails to rise above mere impeachment evidence. The record shows that Rusty and Lackey's credibility was repeatedly (and effectively) attacked by the defense attorney at trial and the jury was unable to reach a verdict on the underlying murder and kidnapping charges because of the effectiveness of these attacks. Moreover, contrary to Seaman's claim, the conspiracy charges for which he was convicted did not rest exclusively on the credibility of Lackey's trial testimony. The State also introduced evidence of Lackey's recorded confession to a jailhouse informant that he had accepted $10,000 to lure Hennigan to the murder site so Seaman could kill her, and there were phone records that further corroborated Lackey's claim that a conspiracy existed.
Thus, given the trial record in this case, we agree with the superior court's conclusion that Rusty's recantation, even if assumed to be true, did not undermine the State's case in a new and significant way and therefore did not constitute newly discovered evidence under AS 12.72.020(b)(2).
Accordingly, we affirm the superior court's dismissal of Seaman's application on this basis, and we therefore do not reach the court's alternative ruling that Seaman's plea agreement barred him from seeking post-conviction relief in the first instance.
Conclusion
The judgment of the superior court is AFFIRMED.