Brown v. State

816 P.2d 818, 1991 Wyo. LEXIS 131, 1991 WL 160869

• Court: Wyoming Supreme Court
• Decided: August 23, 1991
• Docket: 89-186
• Status: Published

Opinions

CARDINE, Justice.

Appellant Walter Joe Brown was convicted of incest in May 1986 based in significant part upon the testimony of his daughter (MCX) who was the victim of the incest. That conviction was affirmed on appeal. Brown v. State, 736 P.2d 1110 (Wyo.1987). Brown’s motion for new trial was premised on new evidence in the form of a recantation by MCX. At the hearing on the motion for new trial, MCX testified that she lied at her father’s original trial. The district court found that the recantation was not credible and denied the motion for new trial.

We affirm.

ISSUES

Brown claims the district court misapplied the standard for addressing motions for new trial premised on newly discovered evidence which was adopted by this court in Opie v. State, 422 P.2d 84, 85 (Wyo.1967); see also King v. State, 780 P.2d 943, 947-51 (Wyo.1989). The Opie standard requires that these four elements be present: (1) The evidence has come to defendant’s knowledge since the trial; (2) it was not owing to a want of due diligence that it was not discovered sooner; (3) it is so material that it would probably produce a different verdict if the new trial were granted; and (4) it is not cumulative of other evidence presented at trial. Id. Brown claims his evidence met the requirements of the Opie test and it was an abuse of discretion for the district court to have denied the motion for new trial. The Opie test alone does not adequately address new trial motions based upon recanted testimony unless we say such testimony is immaterial under item 3 of the test if false. The Larrison test, infra, adds this same requirement in a more clear and understandable way.

Brown also asserts that the proper standard to be applied in this case is that expressed in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928). The Larri-son test is a standard applied by some federal courts when a motion for new trial is based on a witness’s recantation of her trial testimony. Under that standard the district court must be satisfied: (1) That the recanted testimony given by the material witness is false; (2) that in its absence a different verdict might have been reached; and (3) that the defendant was taken by surprise by the testimony when it was given and was unable to meet it, or did not know about its falsity until after the trial. It should be noted that federal courts apply a variety of standards when addressing new trial motions based on a witness’s recantation of trial testimony. Annotation, Recantation of Testimony of Witness as Grounds for New Trial — Federal Criminal Cases, 94 A.L.R.Fed. 60 (1989).

In response, the State claims that the district court properly applied the Opie test and that this court need not adopt the Larrison test.

FACTS

On May 23, 1989, Brown timely filed a motion for new trial in accordance with W.R.Cr.P. 34. The motion was premised on recantations made by MCX in an affidavit and a letter to the Warden of the Wyoming State Penitentiary, as well as a recantation contained in a typewritten letter signed by his other daughter (KX) who had testified at trial that she too was a victim of incest at the hands of Brown. KX’s letter was written to the Governor of Wyoming for the apparent purpose of seeking executive clemency. There was no effort to establish who wrote or signed the letter to the governor, nor to authenticate it or introduce it into evidence. KX did not testify at the hearing on the motion for new trial. It might be assumed that she was unwilling, under oath, to recant her trial testimony. Thus, there is no evidence in the record that KX ever recanted her sworn testimony given at the original criminal trial.

At the hearing on the motion for new trial, the first piece of evidence to be introduced was an affidavit of a juror from the original criminal proceedings. Donna McCarty could not say for sure what others had convinced her of during the jury deliberations, but she was uncomfortable at that time with reasonable doubt. She voted to convict anyway. She talked to Judge Troughton after the trial and asserted that he said “the verdict would stand because the man was guilty and you can’t second guess yourself.” She also indicated that, as for her, she felt the verdict would most likely be different if the information concerning the recantation had been presented at trial.

The first testimony was from MCX, who was represented at the proceedings by counsel. Her testimony was lengthy between direct, cross, redirect, recross, re-redirect and re-recross, but the gist of her testimony was that she had lied at her father’s original trial to take revenge on him for having grounded her. No other evidence was presented by Brown in support of his motion for new trial.

As the first witness for the prosecution, the district court heard testimony from a psychiatric nurse from Southwest Counseling in Rock Springs who related her experiences dealing with victims of incest. She related that there are frequently recantations in such cases because of family pressures. A transcript of the testimony of Dr. Reisinger, a psychologist and expert in dealing with cases of child sexual abuse, was admitted from the original criminal case. However, the district court made it clear that it did not consider the testimony of the experts in reaching its decision, and especially it did not consider any of their testimony that sounded like they were vouching for the credibility of witnesses.

Terry White, Manager of the Uinta County Office of the Department of Public Assistance and Social Services (DPASS), testified that MCX had been a ward of the State since October 1985 and had been placed in a variety of foster homes, group homes and a state institution. White was aware that there was a very strained relationship between MCX and her mother and that MCX indicated to him that the only way she could return home, which she desperately wanted to do, was to recant her testimony. Sonny Hodgdon, an employee of the Youth Alternative Home Association of Evanston, was acquainted with MCX from her placement there and testified that she told him she wanted to return home, and the only way she could do so was to recant her testimony. The evidence also included a certificate of appointment and letter of commendation to MCX for her service in the United States Navy which she joined in April 1989. Finally, the record of the hearing on the motion for new trial contained the records of all juvenile proceedings concerning MCX. Of special interest is MCX’s testimony that her mother, Lawana Brown, told her she was no longer welcome in the family home, but that her mother had subsequently gone to counseling and accepted the things her father did to her. Lawana Brown did not testify at the hearing on the motion for new trial, but she did testify on behalf of her husband at the original criminal proceedings. Despite the fact that Brown was found guilty of molesting KX and admitted to molesting MCX during family counseling sessions, Lawana Brown testified that she did not think it was possible that her husband could have engaged in incest with MCX. MCX claimed that all incidents of incest occurred in her mother’s absence.

It is also necessary for the disposition of this case to provide a summary of the salient evidence presented at the original criminal proceedings which took place in February and March of 1986. MCX testified that Brown had had sexual intercourse with her on several occasions, most recently in early August of 1985. In October of 1985, MCX reported these incidents to DPASS. MCX testified to the details of her rather long-term sexual involvement with Brown, but it is unnecessary for us to repeat any more detail concerning that relationship. Rebecca Langley testified that she was the DPASS social worker who took MCX’s report and conducted an evaluation of Brown’s home. This study was precipitated because KX had accused Brown of perpetrating incest on her. As a result of her accusations, criminal charges were brought against Brown, and he was placed on probation. At the time of the home study, both girls were placed in shelter care. Eventually MCX returned home, but KX remained a ward of the State and has never returned home. In one of Langley’s counseling sessions with Brown, he admitted to her that as a part of a so-called “sex education program” he demonstrated what it meant for a man to have a “hard-on” by having MCX touch his erect penis. On another such “teaching/learning occasion,” Brown unbuttoned MCX’s blouse and massaged the nipple of her breast in order to establish that it was activity such as that which caused her to lose control of her emotions. Brown admitted to these incidents in his testimony at his trial, but denied ever having had sexual intercourse with his daughters. We note at this juncture that the specific charge against Brown at the original trial was that he had sexual intercourse with MCX in early August of 1985. KX also testified and related her incestuous relationship with Brown. Her testimony was admitted for the limited purpose of showing a common scheme or plan. A psychologist who evaluated MCX testified and expressed her opinion that her evaluation of MCX was consistent with her having been the victim of sexual abuse.

DISCUSSION

The grant or denial of a motion for new trial is within the sound discretion of the trial court. Story v. State, 788 P.2d 617 (Wyo.1990); Best v. State, 769 P.2d 385, 387-88 (Wyo.1989). The decision of the district court on such a motion will be upheld absent an abuse of discretion. Id.; Keser v. State, 737 P.2d 756, 759 (Wyo.1987). We have also held that recanted testimony is viewed with the utmost suspicion. Burns v. State, 574 P.2d 422, 424 (Wyo.1978); Jones v. State, 568 P.2d 837, 854 (Wyo.1977); Sims v. State, 495 P.2d 256, 258 (Wyo.1972). We see no reason for deviating from the basic rule for evaluating district court decisions on motions for new trial. Opie v. State, 422 P.2d at 85. However, we will enlarge on that general rule somewhat to provide additional guidance in cases, such as this, which involve recanted testimony. To that purpose, we agree with the Supreme Court of Montana that granting a person of questionable credibility and motive carte blanche to overturn the determination of a jury operating within the bounds of our constitutional protections is not conducive to the sound administration of justice. State v. Perry, 232 Mont. 455, 758 P.2d 268, 275 (1988). Therefore, we adopt the following rule espoused by that court, as well as several others:

“In light of the inherent suspicion surrounding recanted testimony and the public interest in swift and sure justice, we believe the better reasoned approach to be that adopted by the Supreme Court of Kansas:

“ ‘When a new trial is sought on the basis of recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial judge passing on the motion for a new trial to determine. The trial judge is required to grant a new trial only when he [or she] is satisfied the recantation of the witness is true.’ ” (citations omitted) Id. 758 P.2d at 275; (quoting State v. Norman, 232 Kan. 102, 652 P.2d 683, 689 (1982)). See also Thacker v. Commonwealth, 453 S.W.2d 566, 568 (Ky.1970).

It is suggested that where a conviction rests solely on recanted testimony, a trial court must grant a motion for new trial. State v. York, 41 Wash.App. 538, 704 P.2d 1252, 1255 (1985). The York case has unusual facts and has never been applied in the State of Washington, or elsewhere, to any other factual situation. Moreover, in that case the Washington appellate court did not overrule the district court but rather upheld its discretion to grant the motion for new trial. York was cited by the Alabama Court of Criminal Appeals for the proposition that where the sole witness against the defendant recants, denial of the motion for new trial is an abuse of discretion. However, the statement of that rule in the Alabama case is dicta because the rule was not applied to that case, nor has it ever been applied to a case in Alabama. Robinett v. State, 494 So.2d 952, 955 (Ala.Cr.App.1986). The Robinett court cites a number of cases which allegedly support its conclusion, but upon review we discovered that none, including York, are accurately cited. The rule in Tennessee is that a new trial will not be granted on the basis of newly discovered evidence unless the testimony of the witness sought to be impeached was so important to the issue, and the evidence impeaching the witness so strong and convincing, that a different result at trial would necessarily follow. State v. Rogers, 703 S.W.2d 166, 169 (Tenn.Cr.App.1985). Quite to the contrary of the Alabama dicta, the rule in Florida is that a new trial should not be granted on the basis of recanted testimony unless the court is satisfied that the testimony is true. Borgess v. State, 455 So.2d 488, 490 (Fla.App.1984). The Florida rule is essentially the same as the one we choose to adopt above. Likewise, the Indiana rule is fully consistent with our decision. The Court of Appeals of Indiana, after rejecting the concept that a recantation by a complaining witness whose trial testimony was not corroborated required a new trial, held:

“Any contrary rule would make every judgment which was supported by a single witness dependent upon the caprice of that witness, who, once he had departed from the protection of the court, would be subjected to whatever seductions, compulsions, or guile that an unscrupulous litigant might choose to employ to rescue his ill fated cause.” Best v. State, 418 N.E.2d 316, 319 (Ind.App.1981).

The Alabama court relied on a Pennsylvania case which follows the same rule we adopt today. Pennsylvania rejected the concept that a recantation by a sole witness requires a new trial. “Recanting testimony is exceedingly unreliable and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.” (emphasis added) Commonwealth v. McCloughan, 279 Pa.Super. 599, 421 A.2d 361, 364 (1980). Arizona is cited by the Alabama court as a jurisdiction which agrees with its rule. However, no Arizona case has ever held as the Alabama court suggests, including the case it cited, State v. Scanlon, 108 Ariz. 399, 499 P.2d 155 (1972). Finally, Kentucky does not follow the Alabama dicta, but rather follows the same rule that we have adopted:

“[Tjhere are special rules for situations of recanted testimony. The general rules are that recanting testimony is viewed with suspicion; mere recantation of testimony does not alone require the granting of a new trial; only in extraordinary and unusual circumstances will a new trial be granted because of recanting statements; such statements will form the basis for a new trial only when the court is satisfied of their truth; the trial judge is in the best position to make the determination because he has observed the witnesses and can often discern and assay the incidents, the influences and the motives that prompted the recantation; and his rejection of the recanting testimony will not lightly be set aside by an appellate court.” Thacker v. Commonwealth, 453 S.W.2d 566, 568 (Ky.App.1970).

In summary, we have found no case which clearly stands for the proposition that it is an abuse of discretion to deny a motion for new trial based upon the recantation of testimony of a sole or primary witness for the prosecution; or stated another way, the motion for new trial must always be granted where the sole or primary witness recants his or her testimony.

We will briefly address two matters which Brown has suggested as issues in his brief. The first matter is whether the district court properly made several pages of findings, including findings that it was, by training and experience, more qualified to decide an issue of this nature (credibility of witnesses) than any other judge in the state, including the members of the Wyoming Supreme Court. We would prefer that a district court not address comments directed to other members of the judiciary in its findings of facts and conclusions of law. Such comments can only serve to denigrate the judicial institutions of this state generally, and should be avoided unless there is some clear necessity therefor. We note in this case that the district court conducted an evidentiary hearing and made a reasonably detailed statement of reasons why it denied the motion for new trial. This is in accord with authorities that we consider persuasive. See Dunbar v. State, 522 P.2d 158, 160 (Alaska 1974). There was nothing in the district court’s lengthy monologue that was even remotely prejudicial to Brown.

Brown also suggests in his brief that there was some impropriety in the district court hearing the motion for new trial when, shortly after the original criminal proceedings, the court expressed to a juror, who made inquiry, the court’s opinion that Brown was guilty beyond a reasonable doubt. In the findings, the district court clarifies that it did so only in the sense that, when this juror came to it feeling badly that she had voted to convict Brown, the court explained to her the nature of the difficult task she had to perform, consoled her, and expressed its view that it agreed the jury had reached a justified verdict — nothing more. Brown did not seek to have the district judge removed from the case or request his voluntary reassignment of the case. Moreover, he has raised no issue in this court about the matter. It is clear, in context, that Brown’s purpose in introducing the evidence of the juror was only to demonstrate that the verdict was close and that this was a case where the recantation would probably make a difference in the jury verdict. There is no suggestion that there was any impropriety in what the district court did or that it decided the case on the basis of anything other than the evidence that was presented to it. There is only limited authority in existence on this question, but the authority holds that the mere fact that a judge has expressed agreement with the jury’s verdict does not disqualify him from hearing a motion for new trial, though it may result in a situation where he should not sit on the new trial if one is granted on appeal. Ingram v. Grimes, 213 Ga. 652, 100 S.E.2d 914, 915 (1957); Johnson v. State, 46 Ga.App. 494, 167 S.E. 900, 900-01 (1933); Felker v. Still, 41 Ga.App. 462, 153 S.E. 781, 781-82 (1930); 48A C.J.S. Judges § 118, at 774 (1981). Moreover, knowledge of the defendant’s past, or even a belief on the part of the trial judge that defendant is guilty, is not enough to require disqualification. The question is not if the trial judge believes defendant is guilty, but if the trial judge can be fair. State v. Kimmel, 202 Kan. 303, 448 P.2d 19, 22 (1968); see Commonwealth v. Strunge, 287 Pa.Super. 212, 429 A.2d 1176, 1178 (1981). The fair meaning of any remark made by the trial judge must be interpreted in light of the context in which it is said. The trial judge has the right to consider the legal sufficiency of facts alleged to require his disqualification. Shaw v. State, 276 S.C. 190, 277 S.E.2d 140, 141 (1981), and see Story v. State, 788 P.2d at 621. We have held that the bias which is the grounds for disqualification must be personal and it must render the judge unable to exercise his function impartially in a given case or which is inconsistent with a state of mind fully open to the conviction which evidence might produce. A judge has a duty not to recuse himself without a valid reason. Cline v. Sawyer, 600 P.2d 725, 729 (Wyo.1979).

CONCLUSION

We hold that the district court did not abuse its discretion in denying Brown’s motion for a new trial. There is adequate evidence in the record to support its conclusion that MCX was not telling the truth when she recanted her testimony. First, she was the victim of her father’s sexual depravity. Then, her mother, Lawana Brown, who, having failed to protect her daughters from the sexual depredations of their father even though she was fully aware of his inclinations from her husband's own admissions, instead heaped upon MCX her scorn and rejection. After being rejected by her mother and shuffled from foster home, to group home, to state institution, and back again, MCX did the only thing she could to endeavor to win back the affection of her mother — tell a lie and hope to free her father from prison. This case does not present an issue of whether or not MCX chooses to be a victim, for she is victim twice over, but rather whether the district court properly concluded that, in truth, she was a victim. We hold the district court did not abuse its discretion in concluding that MCX was the victim of her father’s incest. To MCX we offer our empathy, for this course of proceedings is quite common in cases such as this.

Affirmed.

CARDINE, J., delivered the opinion of the court and separately filed a concurring opinion.

URBIGKIT, C.J., and THOMAS, J., filed separate dissenting opinions.