Opinion
No. 57079-0-I.
June 4, 2007.
Appeal from a judgment of the Superior Court for King County, No. 94-1-01818-0, Nicole Machines, J., entered August 3 and September 21, 2005.
Cory Roberts appeals the denial of his motion to withdraw his guilty plea to third degree rape following the victim's retraction of the rape allegations at a deposition. Because the trial court did not abuse its discretion in deciding an evidentiary hearing was justified, we reject the State's cross-assignments of error. But because the court relied on an erroneous view of the law to determine that the victim could assert a blanket claim of privilege on grounds of self-incrimination, we reverse and remand for the trial court to apply the correct analysis to the claim of privilege.
FACTS
In 1994, Roberts entered Alford guilty pleas to two counts of third degree rape for offenses committed against two juveniles incarcerated with him at the Echo Glen juvenile rehabilitation facility. After his release, Roberts violated conditions of his sentence and was incarcerated again.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The charges were reduced from two counts of second degree rape and one count of third degree rape in exchange for Roberts' guilty plea.
The charges were reduced from two counts of second degree rape and one count of third degree rape in exchange for Roberts' guilty plea.
As that term of confinement neared its end, the State initiated proceedings seeking to have Roberts committed as a sexually violent predator (SVP) under chapter 71.05 RCW. In 2005, the prosecutor in the SVP proceeding contacted Loren Bell, one of the victims in the Echo Glen incident. Bell was at that time incarcerated in a state prison. In a telephone interview, Bell told the prosecutor he would not be a good State's witness because he lied during the 1993 investigation of the Echo Glen incident.
For reasons that are not clear, the parties refer to the witness as "Warren Bell." We refer to Bell by the name used in the record.
The prosecutor notified Roberts' counsel of Bell's statement. During a subsequent deposition, Bell waived his rights to counsel and to remain silent and testified that he had lied about Roberts raping him because he was angry about what Roberts did to the other boy. Bell explained that he felt this was his last chance to get the truth out.
Roberts filed a motion to withdraw his 1994 guilty pleas based on the "newly discovered evidence" of Bell's recantation. The State argued against conducting an evidentiary hearing, contending that Roberts' motion was time-barred and alternatively that Roberts had made no showing of either a manifest injustice or due diligence in discovery of the evidence. As a final alternative, the State argued that even if the court found a hearing warranted, Bell's recantation was not credible.
See Clerk's Papers at 49-112; CrR 7.8.
The trial court appointed counsel for Bell and scheduled an evidentiary hearing. Bell's counsel notified the court that Bell did not wish to be transported for the hearing, did not wish to testify, and had "indicated that his deposition was accurate [and] that he did not wish to participate any further," but would come to court if ordered. The court authorized issuance of a subpoena and Bell was transported to court.
Report of Proceedings (RP) (May 5, 2005) at 2.
At the evidentiary hearing, Bell's counsel informed the court that Bell intended to assert his Fifth Amendment privilege not to testify. The court inquired as to the basis for his claim, and counsel stated Bell risked prosecution for false imprisonment, false reporting, or false swearing, for lying in his original allegations against Roberts. Counsel for Roberts and the State asked Bell a series of questions, all of which Bell refused to answer. The court set the matter over for briefing and a further hearing on whether Bell's invocation of the privilege was valid.
At the next hearing, the court decided Bell could not be compelled to answer any questions because he risked a prosecution for perjury for testifying at the hearing or at the deposition. Having determined that Bell's deposition was not independently admissible, the court denied Roberts' motion as lacking any factual basis.
Roberts has not challenged that ruling, and we express no opinion on that issue.
DECISION
Roberts contends the trial court improperly upheld Bell's blanket assertion of privilege, and seeks remand for an evidentiary hearing at which Bell is directed to answer questions. The State responds that the trial court should not have scheduled the hearing, and alternatively that the court correctly upheld Bell's invocation of his privilege.
The State first contends that Roberts' motion was time barred. The trial court rejected this claim based on this court's holding in State v. Brand, 65 Wn. App. 166, 170-72, 828 P.2d 1 (1992), rev'd on other grounds, 120 Wn.2d 365, 842 P.2d 470 (1992) ("the previous 1-year limitation for filing a motion based on newly discovered evidence under CrR 7.8(b)(2) is superseded by the newly incorporated statutory provisions"). Acknowledging that Brand supports the court's decision, the State nonetheless asserts Brand was wrongly decided. Our Supreme Court, however, has repeatedly held that stare decisis "'requires a clear showing that an established rule is incorrect and harmful before it is abandoned.'" Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004) (quoting In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)). As the trial court observed, construing CrR 7.8 as the State advocated would likely result merely in a transfer of Roberts' motion to this court for consideration as a personal restraint petition, only to be followed by transfer back to the trial court for an evidentiary hearing. See CrR 7.8(c)(2); RAP 16.11(a). We agree. The State has not persuaded us that the holding of Brand is harmful or incorrect.
The State's contention that Brand conflicts with two other published cases is incorrect. State v. Zavala-Reynoso, 127 Wn. App. 119, 110 P.3d 827 (2005) involved a CrR 7.8(b)(1) challenge to alleged sentencing mistakes, not a claim of newly discovered evidence under CrR 7.8(b)(2). Accordingly, Zavala-Reynoso did not involve the interplay between CrR 7.8(b)(2) and the newly discovered evidence provision of RCW 10.73.100(1) at issue inBrand. The other case the State cites, State v. Landon, 69 Wn. App. 83, 848 P.2d 724 (1993), concerned a 1989 motion for relief from judgment. As the trial court noted,Landon thus involved the earlier version of CrR 7.8 that predated the incorporation of the time-bar statute into the version of the rule Brand addressed, which is the version applicable here. See Landon, 69 Wn. App. at 88-89.
The State next contends that no hearing was authorized because Roberts made no showing of manifest injustice to justify withdrawal of his plea under CrR 4.2(f). But the State relies on cases upholding trial court findings that a defendant had not shown that a manifest injustice required withdrawal of a guilty plea. See In re Pers. Restraint of Clements, 125 Wn. App. 634, 106 P.3d 244, review denied, 154 Wn.2d 1029 (2005); State v. Arnold, 81 Wn. App. 379, 914 P.2d 762 (1996). The State has presented no authority eliminating a court's discretion to decide whether a manifest injustice may be present under the circumstances here, and thus has not shown that the trial court erred by merely holding an evidentiary hearing. See State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966) (appellate courts review a trial court's resolution of a motion to withdraw a guilty plea for abuse of discretion).
On this record, we do not read the trial court's decision to hold an evidentiary hearing as necessarily committing itself to any particular analysis or determination of the ultimate issue at the completion of the hearing.
Finally, the State contends that Roberts failed to show the due diligence necessary for a valid claim of newly discovered evidence. See State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). Again, however, we cannot fault the trial court's rejection of this argument. Bell made three statements to investigators before Roberts' plea, none of which was inconsistent. There was simply no indication that a more vigorous investigation would have caused Bell to recant before the plea. See State v. D.T.M., 78 Wn. App. 216, 896 P.2d 108 (1995) (consistency of complaining witness's statements throughout the investigation and pretrial proceedings suggested recantation could not have been discovered before trial with the exercise of due diligence). Moreover, it was a condition of Roberts' sentence that he have no contact with Bell after his conviction. As the trial court observed, these circumstances were not present in In re Personal Restraint of Crabtree, 141 Wn.2d 577, 9 P.3d 814 (2000), cited by the State. The trial court did not abuse its discretion in concluding that Roberts acted with the requisite due diligence by promptly filing his motion to withdraw when Bell's recantation was brought to his attention.
The true issue here is whether the court properly approved Bell's blanket invocation of his privilege against self-incrimination.
The federal and state constitutional privileges against self-incrimination include the right of a witness not to give incriminating answers in any proceeding. U.S. Const. amend. V; Wash. Const. art. I, § 9; Kastigar v. United States, 406 U.S. 441, 445-46, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). The danger of incrimination must be substantial and real, not merely speculative. State v. Hobble, 126 Wn.2d 283, 290, 892 P.2d 85 (1995). Unless the answer to a question would obviously and clearly incriminate the witness, the claim of privilege must be supported by facts which, aided by the "'use of reasonable judicial imagination,'" show the risk of self-incrimination. State v. Lougin, 50 Wn. App. 376, 381, 749 P.2d 173 (1988) (internal quotation marks omitted) (quoting Eastham v. Arndt, 28 Wn. App. 524, 532, 624 P.2d 1159 (1981)). "The answer need only 'furnish a link in the chain of evidence needed to prosecute the witness for a crime.'"Hobble, 126 Wn.2d at 290 (quoting Seventh Elect Church v. Rogers, 34 Wn. App. 96, 100, 660 P.2d 294 (1983)); see also Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951).
As a general rule, "[t]he court must determine whether the privilege is applicable and a witness cannot establish the privilege merely by making a 'blanket declaration . . . that he cannot testify for fear of self-incrimination.'" State v. Levy, 156 Wn.2d 709, 732, 132 P.3d 1076 (2006) (quotingUnited States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975)). The trial judge must inquire as to the legitimacy of the assertion and the scope of the privilege may not extend to all relevant questions. Id. There is a narrow exception to the general rule against blanket assertions of the privilege if the judge has "specialized knowledge" of the likely testimony, and can determine whether the privilege is properly asserted for that witness, in which case the judge may allow the witness to refuse to answer all questions. United States v. Moore, 682 F.2d 853, 856 (9th Cir. 1982).
We review a trial court's determination regarding the applicability of the privilege for abuse of discretion.Lougin, 50 Wn. App. at 382. A court abuses its discretion when it bases its decision on untenable grounds or reasons, or if it relies on an erroneous view of the law.State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995); Washington State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
Here, the trial court relied on an erroneous view of the law. "To prove perjury, the State must present . . . testimony of at least one credible witness which is positive and directly contradictory of the defendant's oath; and . . . [a]nother such direct witness or independent evidence of corroborating circumstances." State v. Stump, 73 Wn. App. 625, 627, 870 P.2d 333 (1994) (quoting State v. Olson, 92 Wn.2d 134, 136, 594 P.2d 1337 (1979)). The necessary contradicting testimony must be given by a witness with personal knowledge of the facts. Nessman v. Sumpter, 27 Wn. App. 18, 24, 615 P.2d 522, 526 (1980). It was uncontroverted that the circumstances of the Echo Glen incident were such that no witness could directly contradict Bell.
The trial court appears to have correctly understood that Bell's counsel's initial concern that Bell could be prosecuted for the 1993 statements to investigators was without foundation because of the obvious application of the statute of limitations. The State does not suggest on appeal that this was a valid concern or that Bell realistically could have faced prosecution for those statements.
The trial court did not apply this long-standing rule, however. We thus cannot uphold its determination that there was a real possibility that Bell could incriminate himself by testifying in accordance with his deposition testimony at the plea withdrawal hearing. For the same reason, the court's concern that Bell might have already incriminated himself at the deposition was also unfounded.
The court stated: "I simply can't accept the respondent's argument that . . . this Court has to find, first of all, that there would be a witness or that the State would have to produce a witness to contradict the evidence. RP (Aug. 18, 2005) at 41.
The State does not directly address the enhanced proof requirements for perjury discussed above. Instead, the State suggests a theoretical jeopardy if Bell testified at the plea withdrawal hearing contrary to his deposition testimony. This theoretical possibility, however, does not support the trial court's decision. First, it does not appear that the court relied upon this reasoning. More importantly, Bell's offer of proof was that, if forced to testify, he would testify consistently with his deposition testimony. There is no basis in the record to draw any contrary inference. Accordingly, even without the enhanced proof rule, the notion of jeopardy from a second recantation is wholly speculative. See Hobble, 126 Wn.2d at 290 (risk of self-incrimination must not be speculative).
Under those circumstances, it is debatable whether the enhanced proof rule would apply. See RCW 9A.72.050(1); but see State v. Wallis, 50 Wn.2d 350, 311 P.2d 659 (1957).
Bell objected to any consideration or disclosure of his medical record or other information that could have been construed as indirectly corroborating his 1993 claim that Roberts had raped him. This posture is not consistent with the suggestion that Bell would have contradicted his deposition testimony at the evidentiary hearing.
Because this theoretical scenario could not have supported the claim of privilege, we do not address the parties' dispute over whether RCW 9A.72.060 could further insulate Bell from prosecution.
The trial court properly decided to hold an evidentiary hearing, but we reverse its determination that Bell established a basis for invoking his privilege against self-incrimination. We remand for completion of the evidentiary hearing and for the trial court to exercise its discretion and make a substantive ruling on Roberts' motion to withdraw his guilty plea.