Opinion
No. 62719-8-I.
December 21, 2009.
Appeal from a judgment of the Superior Court for King County, No. 94-1-01818-0, Julie A. Spector, J., entered November 24, 2008.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler, C.J., and Becker, J.
After a hearing in which a trial court determines that recantation evidence is not credible, it is not an abuse of discretion to deny a motion to set aside a judgment and guilty plea based on newly discovered evidence. Here, the guilty plea was based on statements made by a rape victim who later recanted. The trial court found, after a hearing, that the victim's recantation was not credible. Thus, there was sufficient factual basis for the plea and the trial court properly denied the motion to vacate the judgment and set aside the plea. Accordingly, we affirm.
FACTS
In August 1993, Cory Roberts was serving time at the Echo Glen Children's Center in King County, after being found guilty in juvenile court of first degree rape of a child for raping and beating a three-year-old girl into a coma. During that time, Roberts, then 16, shared a room at Echo Glen with a 14-year-old boy, J.E. According to J.E., shortly after they began rooming together, Roberts anally and orally raped J.E., and told him if he did not cooperate he would do the same to him as he did to his three-year-old rape victim. Roberts then sexually assaulted him over the next several days.
Another 15-year-old boy, W.B., also reported that Roberts raped him in July 1993, while they were roommates at Echo Glen. According to W.B., while they were in the room during quiet time, Roberts asked W.B. to "lick [his] nuts" and lie down on the bed. When W.B. refused, Roberts told him that he would do to him what he did to his rape victim. W.B. then lay on the bed and Roberts anally raped him until a staff member came to the room and unlocked the door. W.B. then moved to a different room. But in August 1993, he was moved back into a room with Roberts. The day after he moved back in with Roberts, Roberts again raped him anally and orally. The day after the incident, W.B. moved out of the room. W.B. reported the incident to his peers and staff after Roberts was transferred out of Echo Glen.
In March 1994, the State charged Roberts as an adult with two counts of second degree rape, involving J.E. and W.B., and one count of third degree rape, involving J.E. As part of a plea agreement, Roberts entered an Alford plea to two counts of third degree rape and the State dismissed the second degree rape charges. The trial court accepted the plea and imposed consecutive sentences of 54 and 18 months' confinement.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
In January 2005, a King County prosecutor was preparing a sexual violent predator (SVP) case against Roberts and called W.B. at Walla Walla State Penitentiary, where he was serving time on an unrelated crime. The prosecutor asked W.B. about the allegations that Roberts raped him when he was at Echo Glen in 1993, but W.B. denied being raped by Roberts and recanted the statements he made during that investigation. The prosecutor then informed Roberts' attorney and, in February 2005, the prosecutor and Roberts' attorney deposed W.B. At the deposition, W.B. testified that Roberts did not rape him in 1993 and that he had lied about Roberts raping him because he was angry about what Roberts did to J.E.
After the deposition, Roberts made a motion under CrR 7.8 to vacate the judgment and sentence and withdraw his guilty plea to the two third degree rape charges, based on W.B.'s recantation. W.B. appeared at a hearing on the motion but refused to testify because he feared potential perjury charges and the trial court ruled that the Fifth Amendment barred the court from compelling W.B. to testify. Roberts appealed and this court reversed the trial court's determination that W.B. established a basis for invoking the Fifth Amendment privilege and remanded to the trial court to complete the evidentiary hearing on the CrR 7.8 motion.
On remand, W.B. testified that Roberts never touched him and recanted the statements he made in 1993 that Roberts raped him. W.B. also testified that he accused Roberts of raping him only to help out J.E., who was his friend. He further testified that he disclosed the rape before Roberts was transferred out of Echo Glen and that he was not intimidated by Roberts. He also admitted that he did not recant his earlier statements until 2005 when the prosecutor contacted him about being a witness in the SVP proceeding against Roberts.
On cross-examination, the State asked W.B. about medical records of progress notes made by W.B.'s psychiatrist at the time. According to these notes, W.B. reported an "episode of sexual assault by [a] resident peer," W.B. complained of a "sore anus since [the] alleged rape in July [19]93," and said he was "too embarrassed to complain," and an "exam of rectal area reveal[ed] a small fissure slightly healed. . . ." These records were not admitted at the hearing. W.B. testified that he remembered meeting with a doctor who prescribed him medications, but denied telling the doctor that he had been sexually assaulted. He also denied that during one these doctor visits, he made statements that his anus was sore from the rape, and recalled instead that it was medication that made him constipated. Additionally, he denied making statements to the doctor that he did not like "snitches and narcs."
The State offered these records as Exhibit 7, but the trial court excluded them as both substantive evidence and for impeachment purposes. The prosecutor later sought to admit them after the hearing in a motion "to clarify [the] record or to reopen [the] hearing for the limited purpose of offering [the] exhibit." Roberts opposed the motion, but the record does not indicate that the court ruled on this motion.
The State called as a witness Lori Nesmith, who was a social worker at Echo Glen in 1993. She testified that she took W.B.'s statement about the rape allegations and that he first reported it the day after Roberts was transferred out of Echo Glen. She described W.B. as "very active," "kinetic," "very mobile, constantly moving," and "quick to anger." But when she talked to him about the rape allegations, she described him as "muted," and testified:
He was not giving eye contact. He was not as kinetic and mobile.
He was picking at the end of the cushion on the couch, but that was about it. . . . [He] was very muted in his responses to me, either single word or nods or grunts or yeahs as opposed to any kind of long answer to a question, unless I asked something very open-ended where he would have to give me some kind of an explanation.
She also testified that at the time, W.B. was "thin, wiry, not very tall," and that Roberts "was heavier set" and taller than W.B.
The State also called as a witness Vivian Dahlin, the detective who investigated the rape allegations and took a statement from W.B. in 1993. She testified that W.B. initially acknowledged that the rape occurred but refused to give a statement.
The trial court found that W.B.'s recantation was not credible and denied the motion to vacate the judgment and withdraw the guilty plea. The court's findings state in part:
The court finds that the testimony of [W.B] is not credible for several reasons. First, the timing of the initial recantation occurred when the state first contacted him to be a witness in the pending SVP trial. The rapes occurred when
[W.B.] was fifteen years old; he is now thirty years old and he has an extensive felony history and is currently serving a sentence at Walla Walla State Penitentiary. Second, during the last fifteen years since the original allegations were made, [W.B.] has been represented by many attorneys related to his own various criminal charges. [W.B.] had many opportunities to recant or "set the record straight," as he testified. The recantation suspiciously occurred only after he was contacted by the state's attorney. . . . Finally, it is clear from the most recent testimony [W.B.] does not want to be considered a "snitch" in any manner. Simply stated, [W.B.] has motive to recant. He does not want to be perceived as a snitch or as an aid to the state in securing a commitment under the SVP statute. Therefore, the court finds the recantation testimony of [W.B.] to be untrue and unreliable.
The court further found that it was undisputed that at the time of the rapes Roberts was a year older and much larger than W.B. and W.B. was aware that Roberts was serving time for the rape and beating of a three-year-old girl that resulted in her being left in a coma. The court also found that on no less than five occasions W.B. consistently reported that the rapes occurred: twice to Nesmith, twice to the detective and once to his counselor. Finally, the court concluded that there was "ample corroborating evidence contained in the admitted exhibits." Roberts moved for reconsideration, but the trial court denied the motion.
ANALYSIS
Roberts assigns error to the trial court's findings and conclusions that W.B. was not credible and that there was ample corroborating evidence. He contends that the court abused its discretion by denying his motion to withdraw his guilty plea and vacate the judgment because the plea and resulting conviction were supported only by W.B.'s statements which were recanted in open court.
Roberts first contends that the trial court abused its discretion by improperly weighing the recantation testimony, citing a "long line of authorities." We review a trial court's ruling on a CrR 7.8 motion for relief from judgment for an abuse of discretion. CrR 7.8(b)(2) allows the trial court to grant a party relief from a final judgment based on newly discovered evidence. Recantation testimony may be generally considered "newly discovered evidence" to support a motion for relief from judgment. But "[r]ecantation testimony is inherently questionable," and does not necessarily entitle the defendant to a new trial.
State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653, review denied, 145 Wn.2d 1002 (2001).
State v. Macon, 128 Wn.2d 784, 799-800, 911 P.2d 1004 (1996).
In State v. Macon, our State Supreme Court recognized that "[i]t is for the trial court to determine whether the original testimony of a recanting witness was perjured and, if so, whether the jury's verdict was likely influenced by it." The court also clarified that whether there is independent evidence to support the recanting witness's original testimony is not a controlling factor in the trial court's determination. Rather, the court reiterated that "`[w]hen the trial court, after careful consideration, has rejected such testimony, or has determined that it is of doubtful or insignificant value, its action will not lightly be set aside by an appellate court.'" The court then concluded, "the trial court does not abuse its discretion if it determines the recantation is unreliable and denies the defendant's motion for a new trial."
128 Wn.2d 784, 801, 911 P.2d 1004 (1996).
128 Wn.2d at 804 (quoting State v. Wynn, 178 Wn.2d 287, 289, 34 P.2d 900 (1934)).
128 Wn.2d at 804 (emphasis omitted).
More recently, this rule was reiterated in State v. Scott, which recognized that "[t]he superior court must determine whether a witness's recantation is credible before considering the defendant's motion for a new trial based on recantations, regardless of whether there is independent evidence supporting the defendant's conviction," and clarified that "[t]his rule applies even where the defendant entered an Alford plea." There, the court remanded for an evidentiary hearing to determine the credibility of recantation evidence and advised that "[i]f the superior court determines that the new evidence is not credible, then Scott's Alford-plea based conviction stands."
150 Wn. App. 281, 294, 207 P.3d 495 (2009).
Roberts contends that "[u]ntil the Supreme Court's decision in Macon, it was well-settled that a conviction based solely on a witness'[s] testimony who later recants and testifies in open court consistent with that recantation is entitled to a new trial." He cites State v. Powell as "the seminal case," a 1909 decision in which the court held that in the absence of corroboration, the credibility of the recantation should be weighed by the jury. Roberts acknowledges that Macon expressly overruled Powell, but contends that Macon "should be reconsidered," and that its holding affirming the trial court's authority to weigh the recantation's credibility was "arguably dicta."
51 Wash. 372, 374-75, 98 P. 741 (1909), overruled by Macon, 128 Wn.2d 784.
Because Supreme Court precedent is binding authority and cannot be overruled or simply disregarded by this court, Roberts' arguments to "reconsider" Macon are properly made to the Supreme Court, not to this court. Nor is Macon's affirmance of the trial court's authority to weigh the recantation evidence simply dicta, as he asserts. The Macon opinion specifically recognized that the trial court found that the recantation was unreliable and held that the trial court did not abuse its discretion by denying the motion to vacate, reiterating that "when a defendant's conviction is based solely upon the testimony of a recanting witness, the trial court does not abuse its discretion if it determines the recantation is unreliable and denies the defendant's motion for new trial." Thus, the trial court here properly weighed the credibility of W.B.'s recantation.
He argues that the Macon decision "rests on a shaky foundation" by relying on case law involving convictions that were supported by independent evidence apart from the testimony that was later recanted and that the Court's decision to overrule previous precedent was not supported by an explanation of why the former rule was harmful or incorrect, as required by the doctrine of stare decisis.
Consequently, we need not address the State's alternative arguments that Roberts is judicially estopped from arguing that the trial court cannot weigh the credibility of the recantation or that the Roberts fails to show a manifest injustice necessary to set aside his plea.
Roberts next contends that the trial court's findings and conclusions were based on an erroneous view of the law. Specifically, he challenges the following conclusion of law:
Mr. Roberts' reliance on the case of
[State v.] D.T.M.,
78 Wn. App. 216 [ 896 P.2d 108] (1995) is
outdated. The more recent case relied upon,
[In re Personal Restraint of] Clements,
[ 125 Wn. App. 634], 106 P.3d 244 (2005) is
distinguishable in that the recantation occurred between the plea and sentencing. The recantation before the court is approximately fifteen years after the fact.
First, Roberts contends that the trial court erred by concluding that D.T.M. did not apply. In D.T.M., the trial court denied a CrR 7.8 motion based on recantation evidence without conducting a hearing to evaluate the recanting witness's credibility. There, the defendant entered an Alford plea and the recanting witness's statements provided the factual basis for the plea. On appeal, the court reversed and remanded for a hearing to evaluate the credibility of the recantation. The court also concluded that the recantation, "if true," met the criteria for granting a CrR 7.8 motion based on newly discovered evidence. But the court further advised:
If [the recanting witness] were to adhere to the facts in her recantation while under oath in open court and subject to cross examination,
[State v.] Rolax,
[ 84 Wn.2d 836, 529 P.2d 1078 (1974)],
Powell, and [State v.] York,
[ 41 Wn. App. 538, 704 P.2d 1252 (1985)] would
require the court to permit D.T.M. to withdraw his guilty plea and proceed to trial.
To the extent that D.T.M. holds that recantation evidence requires a new trial without the trial court's determination that the recantation was credible, the trial court here was correct that it was outdated, particularly in its reliance on Powell, which has been expressly overruled.
Roberts further contends that the trial court erroneously interpreted In re Personal Restraint of Clements as "hing[ing] on the timing of the recantation." He is correct that Clements did not base its holding on the timing of the recantation. Rather, Clements held that the trial court did not abuse its discretion by denying the defendant's motion to withdraw the guilty plea because the trial court was not convinced the recantation was reliable and independent evidence supported the plea.
125 Wn. App. 634, 106 P.3d 244 (2005).
But the trial court here did not conclude that "the passage of time between the judgment and sentence and W.B.'s recantation disentitled Roberts to relief," as Roberts asserts. Nor did the trial court interpret Clements as "disavow[ing] its opinion in D.T.M. that D.T.M. acted with due diligence in discovering the complainant's recantation," as Roberts asserts. Rather, the trial court's findings about the passage of time related to its credibility determination.
The court found that W.B. had 15 years, during which he had access to attorneys, to "set the record straight," but that his recantation "suspiciously occurred" only after being contacted by the prosecutor on the SVP case against Roberts.
Roberts next challenges the trial court's conclusion that "there is ample corroborating evidence contained in the admitted exhibits," contending that the trial court erroneously relied on exhibits that were not part of the record at the time of the plea. Roberts is correct that review of the factual sufficiency of a guilty plea is confined to the record at the time of the plea. But the trial court's findings indicate that the court considered these exhibits as part of its credibility determination of the recantation, not as part of its review of the factual sufficiency of the plea. Because the court specifically found that the recantation was not credible, W.B.'s original statements at the time the plea was entered still stand and support Roberts' Alford-plea based conviction. Thus, there was no need for the court to consider whether any independent corroborating evidence supported the plea.
Clements, 125 Wn. App. at 643.
Conclusion No. 3 states: "The fact that the exhibits were not sworn as opposed to the Walla Walla deposition and the November 4th hearing, does not lend any more credibility to [W.B.'s] obvious discomfort in having to be involved as a State's witness in an ancillary matter to the underlying rapes he suffered in 1993."
See Scott, 150 Wn. App. at 300 ("If the superior court determines that the new evidence is not credible, then Scott's Alford-plea based conviction stands.").
Roberts' further argument that the trial court erred by relying on these exhibits because they were simply W.B.'s statements is likewise misplaced. He asserts that the court must rely on evidence apart from the complainant's statements to determine whether independent corroborating evidence exists to support the plea after the complainant's statements have been retracted. But again, he confuses the determination of the credibility of the recantation itself with the determination of whether the plea is factually supported when the recantation is found credible. As discussed above, because the trial court did not find the recantation credible, the court did not need to assess whether independent evidence also supported the plea. Thus, these exhibits were considered as part of the credibility determination, not as a factual basis for the plea.
There is some question about whether one of these exhibits, the psychiatrist's progress notes, were properly before the trial court because they were not admitted at the hearing. But the record does not indicate that the court considered this evidence in making its ruling on the motion to withdraw the guilty plea. Indeed, the court's findings state that "there [was] ample corroborating evidence contained in the admitted exhibits," and refer only to W.B.'s testimony about these records. (Emphasis added.) "When pushed for detail of the situation during the evidentiary hearing, W.B. could not remember seeing medical staff, but could somehow remember he was constipated due to medications he was prescribed."
Finally, Roberts challenges certain factual findings, contending that substantial evidence does not support the court's findings that W.B. did not want to be considered a "snitch," that W.B.'s selective memory of his doctor visits "demonstrates the orchestrated nature of his recantation," and that W.B. "had many opportunities to recant or `set the record straight.'" We review challenged findings of fact for substantial evidence, which is enough evidence to persuade a fair-minded, rational person of the truth of the finding.
State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002).
The evidence at the hearing established that Roberts was larger than W.B. at the time, that W.B. knew Roberts was serving time for beating a girl into a coma, that W.B. did not report the incident until after Roberts was transferred out of Echo Glen and that W.B. did not recant until he was contacted about testifying against Roberts in the SVP proceeding. From this evidence, a fair minded person could be persuaded that W.B. feared being a snitch against Roberts.
Roberts also argues that the record does not support the court's finding that W.B. orchestrated the recantation, noting the doctor's progress notes indicated that W.B. did report being constipated at the time. But these notes were not admitted as evidence at the hearing, and even if they were, they state that W.B. also complained of a sore anus since the rape, even though W.B. testified that he only remembered he was constipated during the time of the doctor visit. From this evidence, a fair-minded person could be persuaded that by appearing to remember only the statements that supported his recantation, W.B. "orchestrated" the recantation.
Finally, the evidence established that W.B. had prior opportunities to recant. The record indicates that during the 15 years he waited to recant, he had access to attorneys to whom he could have disclosed the recantation, but only did so when asked to testify against Roberts. Substantial evidence supports the challenged findings.
We affirm.
WE CONCUR: