Opinion
No. 53458-1-I
Filed: May 2, 2005
Appeal from Superior Court of King County. Docket No: 00-1-03705-4. Judgment or order under review. Date filed: 11/04/2003. Judge signing: Hon. Mary E Roberts.
Counsel for Appellant(s), Sean P. Wickens, Berneburg Wickens Armijo PS, 602 Yakima Ave, Tacoma, WA 98405-4801.
Counsel for Respondent(s), John Bramwell Castleton Jr, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Peter Taylor appeals the trial court's order denying his motion for relief from judgment. He claims that he is entitled to relief under Superior Court Criminal Rule (CrR) 7.8(b)(5) because one of his two victims lied during a pre-trial interview with Taylor's attorney, preventing Taylor from discovering evidence that would have convinced him not to plead guilty. But Taylor's claim is based on newly discovered evidence and is thus governed by CrR 7.8(b)(2). And because the new evidence is merely impeachment evidence, Taylor is not entitled to relief from judgment. We affirm.
FACTS
In April 2000, the King County Prosecutor's Office charged Peter Taylor with two counts of Child Molestation in the First Degree — Domestic Violence, one count for each of his stepdaughters, JC and AC. JC was born in 1981 and AC was born 1986. On July 21, 2000, during pre-trial investigation, Taylor's attorney interviewed JC who said that Taylor had sexually abused her for several years starting when she was seven years old. She also said she first reported the abuse when she was 14 during a meeting with the bishop of her Mormon parish and that she had contacted the bishop to arrange the meeting. On January 8, 2001, after plea negotiations, the State amended the information including both JC and AC as victims in count one and dismissing count two. Taylor pleaded guilty to count one and received a 51 month sentence.
In 2002, JC and AC brought a civil suit against both Taylor and the Mormon church. In October 2002, an attorney for the church deposed JC, and she reiterated her allegations of sexual abuse by Taylor. But she also revealed that she had first reported the abuse to her friend, CA, and that it was CA who called the bishop and set up the meeting with JC. Upon further questioning, JC stated that it was possible that, following her meeting with the bishop, she told CA that (1) at the meeting she and her mother told the bishop that no abuse occurred, and/or (2) no abuse occurred. JC speculated that if she had told CA anything like that, it only would have been because she (JC) `might have been embarrassed.' The following exchange then took place:
Q But my question is, are you telling me you don't know whether or not you told [CA], that you denied there was any abuse, you denied to the bishop that there had been any abuse? Did you tell her that?
A Did I tell [CA] that I told the bishop I wasn't abused?
Q That's right.
A I don't remember.
Q So you could have told her that?
A I guess.
Q If you told her that, would it have been truthful?
A No.
Q Well, then, why would you tell her?
A I don't remember ever telling her that.
Q When you went to see Bishop Hatch, isn't it true that Bishop Hatch asked you specifically about any physical abuse, and you denied it?
A No. He had said something like, is Pete abusing you, or —
Q And what did you tell him?
A I said yes.
Q Did you say — and you gave him the details of the physical — of the sexual abuse, the fondling and so forth; is that your testimony?
A Yes, it is.
Q So you say it isn't true that you denied abuse when the bishop asked you about it?
A No, I told him that I was being abused.
Q And do you deny that you told [CA] the same thing, that you denied to the bishop that you had been abused?
A I don't want to say I denied it, because I don't remember.
JC later stated during the deposition that she did not tell Taylor's attorney about CA during the criminal investigation because she wanted to leave CA out of the whole thing, and that JC's statement to Taylor's attorney that JC herself set up the meeting with the bishop was inaccurate.
On April 14, 2003, the church's attorney deposed CA and questioned her about her interactions with JC before and after JC's meeting with the bishop. CA confirmed that she set up JC's meeting with the bishop after JC told her that Taylor had sexually abused her for several years. CA stated that she had not heard from JC after the meeting, so she called JC and asked her what happened. JC had told her that she and her mom had told the bishop that the abuse never happened. CA also stated that JC gave her a note saying that `she was sorry that she had lied to me, and she wanted — she hoped that I would still be her friend, that she didn't mean to get me involved in something that could have gotten me in trouble[.]'
Taylor was not represented by counsel in the civil case until May 2003, when he retained Sean P. Wickens, who had also represented him in the criminal case. On June 18, 2003, after Wickens reviewed JC and CA's depositions, Taylor moved for relief from judgment in the criminal case under CrR 7.8. A hearing on the motion was held on September 4, 2003, in King County Superior Court. On November 4, 2003, the court denied the motion, and Taylor now appeals.
At the hearing, Judge Mary Roberts granted defense counsel's request to file a post-hearing written response to the State's opposition memorandum, but Taylor did not file one.
DISCUSSION
Taylor argues that JC's lies and misrepresentations during her interview with Taylor's attorney require that he be allowed to withdraw his guilty plea in the interest of justice. A defendant may only withdraw a guilty plea `whenever it appears that the withdrawal is necessary to correct a manifest injustice.' A manifest injustice is injustice that is direct, obvious, and observable. Because Taylor moved to withdraw his guilty plea after judgment, his motion is treated as a request for relief from judgment and is governed by CrR 7.8. We review a trial court's denial of a CrR 7.8(b) motion for an abuse of discretion. A trial court abuses its discretion when its decision is `manifestly unreasonable or exercised on untenable grounds or for untenable reasons.'
CrR 4.2(f).
State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974).
Id.
State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996).
In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989), review denied, 114 Wn.2d 1002, 788 P.2d 1077 (1990).
I. CrR 7.8(b)(2) and/or (b)(5)
On appeal, Taylor relies exclusively on CrR 7.8(b)(5) as the basis for his motion for relief from judgment. He argues that his motion falls under CrR 7.8(b)(5) because it is based on extraordinary circumstances not covered by any other CrR 7.8 rule. He claims that JC lied to conceal exculpatory evidence, and that her misconduct is a proper basis for relief under CrR 7.8(b)(5). The State argues that Taylor's motion for relief is properly reviewed under CrR 7.8(b)(2) because the motion is based on newly discovered evidence. CrR 7.8(b) states On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
Taylor did not submit a reply brief despite receiving an extension of time to do so and thus does not address any of the issues raised in the State's brief.
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining judgment or order;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time and for reasons (1) and (2) not more than 1 year after the judgment, order, or proceeding was entered or taken, and is further subject to RCW 10.73.090, .100, .130, and.140. A motion under section (b) does not affect the finality of the judgment or suspend its operation.
`Relief under CrR 7.8(b)(5) is limited to extraordinary circumstances not covered by any other section of the rule.' Because another section of rule 7.8(b)(2) covers the circumstances of Taylor's motion, CrR 7.8(b)(5) does not apply here.
State v. Littlefair, 112 Wn. App. 749, 772, 51 P.3d 116 (2002) (citing State v. Brand, 120 Wn.2d 365, 369, 842 P.2d 470 (1992); State v. Olivera-Avila, 89 Wn. App. 313, 319, 949 P.2d 824 (1997), review denied, 149 Wn.2d 1020 (2003); State v. Cortez, 73 Wn. App. 838, 841-42, 871 P.2d 660 (1994)).
Although Taylor frames the question as whether JC's lying is the basis for relief from judgment, the essence of Taylor's motion is his assertion that he never would have pleaded guilty had he known that evidence could show that JC made inconsistent statements about the sexual abuse. This evidence, discovered as a result of the civil case depositions that occurred after Taylor's criminal conviction, is newly discovered evidence, and Taylor's motion for relief from judgment falls under CrR 7.8(b)(2). But even if Taylor's motion fell under CrR 7.8(b)(5), we agree with the State that Taylor presents substantive argument under this section of the rule for the first time on appeal, and we would affirm the trial court on that ground.
`If [Taylor] had known that there was a witness who could testify that [JC] had changed her story more than once regarding her allegations against [Taylor], then [Taylor] certainly would have introduced this evidence at trial.' `If I had known that [JC] had recanted her allegations against me, I would never have agreed to enter a guilty plea in this matter.'
See Brand, 120 Wn.2d at 369 (appellant sought relief under CrR 7.8(b)(5), but the court reviewed the motion under CrR 7.8(b)(2) because appellant relied on newly discovered evidence).
Taylor argues that he provided the trial court with substantial evidence in support of his request for relief under CrR 7.8(b)(5). But Taylor's argument in the trial court focused almost exclusively on CrR 7.8(b)(3), the `fraud' prong, as the basis for his motion. The only remotely substantive argument under CrR 7.8(b)(5) came from Taylor's attorney during the September 4 hearing on the motion:
So whether this Court feels a fraud analysis is correct or not, certainly the fifth prong is appropriate and that would justify in the interest of justice allowing the relief requested.
. . . It is not appropriate for this complaining witness to withhold this type of information. It is critical to the defendant's ability to defend himself. I can guarantee you if she had told me she had talked to [CA] . . . I would have found [CA] and interviewed her and she would have told me what she told the defense attorneys in the civil lawsuit under oath, and that is that [JC] told her she had lied about what she said that Peter Taylor had done to her. That is critical information to a defendant and very well could have been evidence upon which a jury would have made the decision that she is not credible and they weren't going to convict him on that.
The trial court found that although Taylor's brief stated that he sought relief under both CrR 7.8(b)(3) and CrR 7.8(b)(5), he `presented no evidence or argument, and in fact identified no reason not set forth in CrR 7.8 that would justify relief from the operation of the judgment on sentence, and his motion under CrR 7.8(b)(5) therefore fails.' We agree.
II. CrR 7.8(b)(2)
The State argues that Taylor is not entitled to relief under CrR 7.8(b)(2) because the newly discovered evidence is merely impeachment evidence. Taylor essentially argues that his guilty plea was unjust in light of the newly discovered evidence about JC's statements to CA. He asserts he should be allowed to withdraw his guilty plea and go to trial. When reviewing whether newly discovered evidence warrants relief in the context of a post-judgment motion to withdraw a guilty plea, Washington courts apply the same standard as for a motion for a new trial. The moving party must demonstrate that `the evidence (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.' A court may deny the motion in the absence of any one of these factors. Because the newly discovered evidence would only be used to impeach JC, relief is not warranted.
State v. D.T.M., 78 Wn. App. 216, 219, 896 P.2d 108 (1995).
Id. (citing State v. Williams, 96 Wn.2d 215, 222-23, 634 P.2d 868 (1981)).
State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996) (citing Williams, 96 Wn.2d at 223).
Taylor contends that JC lied to his attorney to cover up `highly exculpatory evidence.' He asserts that JC's credibility would have been key to the State's case at trial, and if he had known CA could testify that JC had changed her story about the allegations of abuse, he would have introduced this evidence at trial and never would have pleaded guilty. But no matter how he characterizes CA's testimony, evidence used to raise questions about a witness' credibility is the epitome of impeachment evidence. Because newly discovered impeachment evidence does not warrant relief from judgment, we affirm.
Having resolved the appeal on this basis, we do not reach the question whether there was a manifest injustice.
AGID, ELLINGTON, and BAKER, JJ., Concur.