Opinion
ID. No. 0104009560
Submitted: September 19, 2002
Decided: December 9, 2002
John R. Garey, Esq., Dover, Delaware. Attorney for the State. Benjamin A. Schwartz, Esq., Dover, Delaware. Attorney for the Defendant.
Upon Consideration of Defendant's Motion For New Trial
ORDER
Upon consideration of the Defendant's motion for a new trial, the State's response, and the record of the case, it appears that:
1. Defendant Eric Dencker was convicted by a jury of two counts of felony theft and one count of conspiracy in the second degree. He was accused of taking money belonging to his employer, Unfinished Furniture Warehouse. Specifically, he was accused of taking funds which he should have deposited in his employer's account and dividing the money with a co-employee, Katrina Hopper. At trial, Ms. Hopper gave testimony on behalf of the State which implicated the defendant. The trial was held in August 2001.
2. On October 4, 2001, before the defendant was sentenced, Ms. Hopper signed an affidavit recanting her trial testimony. In the affidavit, she stated, in substance, that she made false statements implicating the defendant in order to try to focus the case on him rather than her.
3. New counsel was appointed for the defendant and a hearing on the motion was finally held on September 9, 2002. At the hearing, Ms. Hopper stated that she had been pressured to sign the affidavit by the defendant and his friends. She stated that her trial testimony was truthful and that the statements in the affidavit were false.
4. The standard of review for a new trial based upon recantation of testimony by a witness was established in Larrison v. United States. Delaware adopted the Larrison standard in Blankenship v. State. A motion for a new trial based on recanted testimony is addressed to the sound discretion of the trial court.
24 F.2d 82, 87-88 (7th Cir. 1928).
Weedon v. State, 750 A.2d 521, 528 (Del. 2000); Blankenship v. State, 447 A.2d 428, 433 (Del. 1982).
Hutchins v. State, 153 A.2d 204, 206 (Del. 1959).
5. A motion for a new trial based on witness recantation is viewed with suspicion by the court because the witness may be subject to outside influences to conform testimony to benefit a defendant with whom the witness shares a special relationship. Courts will exert caution when the recanting witness is in a prison environment, or where the case involves sexual misconduct and the recanting witness is a relative of the defendant. In this case, Ms. Hopper had a romantic relationship with the defendant prior to or about the time of the offenses and still had, according to her testimony, some romantic interest in him when she signed her affidavit.
State v. Russo, 700 A.2d 161, 165 (Del.Super. 1996); See Braxton v. State, 479 A.2d 831, 834 (Del. 1984).
6. The Larrison test has three prongs, all of which must be satisfied to grant a motion for new trial:
(1) That the court is reasonably well satisfied that the testimony given by a material witness is false;
(2) That without [the testimony] the jury might have reached a different conclusion; and
(3) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. The first prong assesses the credibility of the witness based on any relevant factor, such as the witness's susceptibility or lack of susceptibility to outside pressure and influence, the appearance that the recantation was produced by remorse, the fact that other evidence does or does not clearly support the conviction, the fact that other evidence supports or does not support the original trial testimony, and corroboration or lack of corroboration of the recantation. The second prong allows the court to assess whether a jury might have reached a different conclusion had the witness testified truthfully at trial based on the quantum of evidence against the defendant and the weight of recanting witness's testimony. The third prong assesses fairness to the defendant from the unanticipated surprise of encountering false testimony at trial. Where the court determines the original trial testimony to be "true and accurate," the court does not need to address the second and third prongs of the test.
Montes v. State, 1987 Del. LEXIS 1029, at *3 (Del. 1987).
7. A jury verdict of guilty carries the presumption that all testimony given at trial was truthful, and that recanted testimony is not. The defendant bears the burden to show by clear and convincing evidence that perjured testimony was used against him at trial.
Id.
8. In this case, the witness has recanted her recantation and affirmed the truthfulness of her trial testimony. She explained that she signed the affidavit because she felt pressured to do so by the defendant and his friends. The Court has now had the opportunity to observe Ms. Hopper on the witness stand twice, first at the trial and then at the hearing on the motion. Her explanation of why she signed the affidavit was reasonable. Her demeanor on the witness stand and her testimony at the hearing on the motion do not support a conclusion that her testimony at trial was false. In addition, her original trial testimony seems more credible than her recantation when compared with the other evidence presented at trial. After considering all of the evidence, the Court concludes that the defendant has not met his burden of establishing that Ms. Hopper's trial testimony was false. Since the defendant has not met his burden as to this issue, it is not necessary to consider the second and third prongs under Larrison.
9. In his written submission after the hearing, defense counsel makes some argument that Ms. Hopper was not competent to testify. However, she is clearly competent.
10. The defendant's motion for a new trial is denied.
IT IS SO ORDERED.