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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. James v. State (01/30/2004) sp-5773

James v. State (01/30/2004) sp-5773

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.



            THE SUPREME COURT OF THE STATE OF ALASKA


DARYLE JAMES,                                       )     Supreme
                                   Court No. S-10679
                              )
             Petitioner,                        )      Court   of
                                   Appeals No. A-7690
                              )
     v.                       )    Superior Court Nos.
                              )    1KE-S94-791 CR
STATE OF ALASKA,                        )    1KE-97-38 CI
                              )
             Respondent.           )    O P I N I O N
________________________________)
                                   [No. 5773 - January 30, 2004]


          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  appeal
          from  the  Superior Court  of  the  State  of
          Alaska,  First Judicial District,  Ketchikan,
          Michael A. Thompson, Judge.

          Appearances:   Dan  S. Bair,  Anchorage,  for
          Appellant.    Nancy   R.   Simel,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.








I.   INTRODUCTION

          Daryle  D. James was convicted of second degree  sexual

abuse  of  a minor and second-degree sexual assault.   After  his

conviction, Danielle M.,1 the key witness and only eyewitness  to

the  incident, recanted her testimony that she saw  James  having

sex  with the minor, Elaine F.  The superior court denied  Jamess

motion  for  a  new  trial  predicated on Danielles  recantation,

basing this denial on its finding that Danielles recantation  was

not  credible.   James  petitions for hearing.   We  reverse  the

denial  of  Jamess  motion for a new trial because  the  superior

court failed to consider whether the recantation would produce an

acquittal at a new trial.  We remand this matter to the  superior

court to determine whether Danielles recantation, when considered

with all the other evidence, would probably produce an acquittal.

II.  FACTS AND PROCEEDINGS

     A.   Facts2

          Thirteen-year-old Elaine attended a party on the  night

of  June  11 and the early morning hours of June 12,  1994.   She

became  intoxicated at the party and eventually passed out.   She

is unable to remember what happened in the early morning hours of

June 12.

          The  key  witness in this case is Danielle, a girl  who

was  fourteen years old at the time of the party.  James  is  her

great-uncle.   It  is uncontested that at some point  during  the

party,  Danielle  witnessed Elaine having sex  with  Michael  C.,

another  minor.   Danielle testified at  Jamess  trial  that  she

dressed  Elaine  after  this incident  and  covered  her  with  a

sleeping bag.  Later, Danielle checked on Elaine and again  found

her naked.  James entered the room while Danielle was present and

commented on Elaines vaginal area.  Danielle dressed Elaine again

and left.  Danielle later witnessed someone other than Michael or

James having sex with Elaine.

          Later that morning, James complained that Elaine was in

his  room,  and  she was eventually dragged to  another  bedroom.

Danielle  testified that she later opened the door to  this  room

and saw James having sex with an unconscious Elaine.  She was the

only eyewitness to Jamess alleged sexual assault of Elaine.

          Danielles testimony was corroborated by Bert Colegrove,

an  adult  who  shortly after the incident told the  police  that

James had dragged a naked girl into a room, closed the door,  and

returned  downstairs a short time later.  Colegrove recanted  his

statements at the grand jury proceedings and said that he thought

James was just trying to get Elaine to a safe place.

          Colegroves  son also saw James and Michael drag  Elaine

to  a  room and shut the door.  When he returned to the room,  he

saw fresh semen on the mattress.

          On  June  16, 1994, four days after the party, Danielle

was  contacted  by  Sergeant Jeffrey Hall  of  the  Alaska  State

Troopers  and  she told him that she saw James  having  sex  with

Elaine.  Hall testified that Danielle was reluctant to talk about

James  because  he  was a family member,  but  that  he  did  not

remember pressuring her to incriminate James.  The troopers  were

unable to find Danielle to serve her with a subpoena to appear at

the  subsequent  grand jury proceedings, and  Danielle  moved  to

Anchorage  shortly after James was indicted in  July  1994.   The

state  was  unable  to  locate Danielle  when  Jamess  trial  was

supposed to start in October 1994, and after several continuances

the  court granted the states request to issue a material witness

warrant  for Danielle.  Danielle was arrested shortly  after  the

warrant  was issued and was held at McLaughlin and Johnson  Youth

Centers  prior  to Jamess trial.  At the jury trial  in  February

1995 she testified, in conformance with her statement to Sergeant

Hall, that she saw James having sex with Elaine.

     B.   Proceedings

          James was convicted of second degree sexual abuse of  a

minor  under AS 11.41.436(a)(1) and second degree sexual  assault

under  AS  11.41.420(a)(3)(B).  On direct appeal,  the  court  of

appeals affirmed Jamess convictions and sentence.3          James

filed  an  application for post-conviction  relief  under  Alaska

Criminal  Rule 35.14 in September 1997, which he supplemented  in

April 1998 with Danielles recantation of her trial testimony.  In

          an affidavit, Danielle claimed that she had lied when she

testified that she saw James having sex with Elaine.

          Superior  Court  Judge  Michael  A.  Thompson  held  an

evidentiary  hearing  in  June 1998 to  determine  whether  James

should  be granted a new trial based upon Danielles recantation.5

At  the evidentiary hearing Danielle testified, as she stated  in

her  affidavit, that she did not see James have sex with  Elaine.

Danielle  claimed  that  she was pressured  and  threatened  into

testifying  against James by the state troopers and the  district

attorney  while she was at Johnson Youth Center in  Juneau.   The

superior  court  found that Danielle had been  pressured  by  her

family  dynamics to change her story and that Danielle  had  also

been  pressured by the guards and inmates at the youth center  to

maintain her story.  The superior court ultimately denied  Jamess

motion   for  a  new  trial  because  it  found  that   Danielles

recantation  was not credible.  James appealed and the  court  of

appeals  affirmed  the  superior courts decision  that  Danielles

recantation  was  insufficient to require a  new  trial.6   James

filed a petition for hearing which we granted.

III. STANDARD OF REVIEW

          Whether the trial court applied the correct legal  rule

.  .  .  is  a question of law that we review de novo  using  our

independent judgment.7  When reviewing  questions of law we adopt

the  rule  of law that is most persuasive in light of  precedent,

reason, and policy.8

IV.  DISCUSSION

     The   Superior   Court  Must  Determine  Whether   Danielles
     Recantation Would Probably Lead to Jamess Acquittal at a New
     Trial.
     
          James  claims that the superior court erred  by  basing

its dismissal of his motion for a new trial solely on its finding

that  Danielles recantation lacked credibility.   In  Salinas  v.

State9  we  articulated five requirements which a defendant  must

meet  before  the  court may grant a new  trial  based  upon  new

evidence:

          (1)  It must appear from the motion that  the

          evidence   relied  on  is,  in  fact,   newly

          discovered, i.e., discovered after the trial;

          (2)  the motion must allege facts from  which

          the court may infer diligence on the part  of

          the  movant; (3) the evidence relied on  must

          not  be merely cumulative or impeaching;  (4)

          must be material to the issues involved;  and

          (5)  must  be such as, on a new trial,  would

          probably produce an acquittal.[10]

The  parties disagree about whether the superior court  undertook

the  required  analysis  of whether Danielles  recantation  would

probably produce an acquittal at a new trial.

          James  argues  that instead of focusing exclusively  on

the  credibility  of  Danielles recantation, the  superior  court

should  have  address[ed] whether, after considering  [Danielle]s

evidentiary testimony with all the other evidence to be presented

at  a  new trial, a reasonable jury could probably conclude  that

there  existed a reasonable doubt.  The state responds  that  the

superior  court  implicitly considered the  effect  of  Danielles

recantation on a new trial because its findings about the lack of

credibility of the recantation strongly suggest that [the  court]

implicitly  concluded the recantation . . .  probably  would  not

have resulted in an acquittal.  We agree with James.

          Rather than implying that it was considering the effect

Danielles  recantation would have on a new  trial,  the  superior

court took pains to indicate the limited scope of its findings by

the  way it framed the question presented by Jamess motion.   The

superior  court  explicitly  limited its  analysis  to  Danielles

credibility  in  recanting,  rather  than  the  impact   of   the

recantation on a new trial:

          the question is, do I believe the witness now
          or  did  I  believe her then? . . .  [If  the
          answer is] a tie, I think the defendant loses
          in  cases of this sort because I think he has
          the  burden  of satisfying me that  its  more
          likely than not at least, and probably  clear
          and convincing . . . should be the test, that
          the witness lied then and is truthful now.
          
The  superior  court confirmed that it was denying Jamess  motion

for   a   new  trial  based  upon  its  assessment  of  Danielles

credibility when it stated that

          she hasnt convinced me that her testimony  at
          trial,  which  I  found  believable,  is  now
          unbelievable.  I believed it then.   I  still
          believe it now.  I dont believe what I  heard
          the   other  day.   I  think  she  has   nine
          different  reasons to say what she  said  the
          other day.  And I dont find any of them  very
          compelling.   Theyre compelling to  her,  but
          theyre  not compelling to me when I  have  to
          decide if its true or false.
          
            In addition, no part of the superior courts order can

be  fairly interpreted to constitute an implicit consideration of

whether James would probably be convicted at a new trial at which

the  evidence  would include Danielles original trial  testimony,

her recantation, and other evidence bearing on the credibility of

the  recantation.  The states argument  that the  superior  court

made  an  implicit finding that Danielles recantation  would  not

produce  an acquittal at a new trial  is based primarily  on  the

premise  that a credibility assessment encompasses an  evaluation

of  the  probable impact of the testimony.  While  the  court  of

appeals  has  correctly  stated that  a  court  must  assess  the

credibility  of testimony in order to determine its impact,  this

certainly  does  not  mean  that all assessments  of  credibility

encompass an assessment of the testimonys overall impact on a new

trial.11   Although the credibility of a recantation is certainly

relevant to determining the probable result of a new trial, it is

entirely possible for a judge to find that, even though he or she

does  not believe a witnesss recantation, it is probable  that  a

defendant  petitioning  for  post-conviction  relief   would   be

acquitted  at a new trial if the witness testified in  accordance

with  his or her recantation.  Therefore, it is not enough  under

Salinas for the superior court to examine only the credibility of

          a witnesss testimony.

          The state argues that we should infer from the superior

courts  assessment  of  Danielles  credibility  that  the   court

implicitly  determined  that a new  trial  would  not  result  in

acquittal.12  We cannot draw that inference.  First, the superior

courts order focused almost exclusively on the courts reasons for

doubting  the  credibility of Danielles recantation without  even

mentioning  the  effect  of  the  recantation  on  a  new  trial.

Furthermore, the superior courts only reference to the effect  of

Danielles testimony suggested that, had Danielle recanted at  the

first  trial (rather than after the trial), it would indeed  have

led  to  a different outcome.  Judge Thompson stated that  in  my

opinion  under  no  circumstances would  Mr.  James  [have]  been

convicted had the witness testified at trial as she did here.  He

would  have  been  acquitted.  I think its unquestionable.   This

sole  reference  to  the effect of Danielles testimony  certainly

cannot serve as a substitute for a finding that the effect  of  a

recantation  at  a second trial would probably [not]  produce  an

acquittal.   Because  the superior court neither  explicitly  nor

implicitly  stated the likely effect of the recantation  evidence

on  a  jury at a new trial, we must remand for the superior court

to make that finding.

          Although we hold that a remand for express findings  is

needed, our decision suggests no view on the ultimate issue to be

decided  by  the  superior court  whether  the  newly  discovered

evidence  would  probably produce an acquittal.13   We  emphasize

again  that the probable effect of Danielles recantation must  be

realistically evaluated in light of the totality of the  evidence

to  be  presented in the event of a retrial, including  Danielles

original  testimony, which the jury would be entitled to consider

as   substantive  proof,14  and  all  other  admissible  evidence

impeaching her recantation.

V.   CONCLUSION

          We  REMAND  this  case to the superior  court  to  make
findings as to whether Danielles recantation at a new trial, when
          considered with all the other evidence, would probably result in
Jamess  acquittal.   If it would, the court should  order  a  new
trial.  If it would not, the conviction should stand.
_______________________________
     1     Pseudonyms  are used for the minors involved  in  this
case to protect their privacy.

     2    The facts in this opinion are taken from the opinion of
the court of appeals in James v. State, 49 P.3d 1120 (Alaska App.
2002).

     3     Daryle D. James v. State of Alaska, Mem. Op. & J.  No.
3734 (Alaska App., December 24, 1997).

     4    Alaska R. Crim. P. 35.1 provides in relevant part that:

          (a)  [a] person who has been convicted of  or
          sentenced   for  a  crime  may  institute   a
          proceeding  for post conviction relief  under
          AS   12.72.010  -  12.72.040  if  the  person
          claims:
               . . . .
               (4)   that  there  exists  evidence   of
          material facts, not previously presented  and
          heard,   that   requires  vacation   of   the
          conviction  or  sentence in the  interest  of
          justice. . . .
          
     5     Jamess  motion  for a new trial was based  on  several
other claims as well.  The superior courts denial of these claims
was  vacated  by  the court of appeals and remanded  for  further
proceedings  based  on those claims.  Those claims  are  not  the
subject  of  this appeal.  James v. State, 49 P.3d 1120,  1124-26
(Alaska App. 2002).

     6    Id. at 1122-23.

     7    Martin v. Martin, 52 P.3d 724, 726 (Alaska 2002).

     8     Alderman  v. Iditarod Props., Inc., 32 P.3d  373,  380
(Alaska 2001).

     9    373 P.2d 512 (Alaska 1962).

     10     Id. at 514 (quoting Pitts v. United States, 263  F.2d
808,  810  (9th Cir. 1959)).  See also Hensel v. State, 604  P.2d
222,  231  (Alaska  1979) (providing that the defendant  has  the
burden  of proving by a preponderance of the evidence that  newly
discovered evidence would be likely to change the result  of  the
trial[,] that is, that the evidence would be sufficient to create
a reasonable doubt as to his guilt).

     11    Shapiro v. State, 793 P.2d 535, 537 (Alaska App. 1990).

     12      The  state  also  argues  that  the  superior  court
implicitly  concluded  that  Danielles  recantation  was   merely
impeaching,  which would cause Jamess motion to  fail  the  third
requirement  of  the Salinas test.  We do not read  the  superior
courts  opinion  to  imply that Danielles recantation  is  merely
impeaching.   In  the  context of this case, it  has  potentially
greater impact than mere impeachment evidence.  See n.14 infra.

     13    Salinas v. State, 373 P.2d 512 (Alaska 1962).

     14     We  have  long  recognized  that  the  use  of  prior
inconsistent statements is not limited to their impeachment value
and  that  such statements may also be considered as  substantive
evidence.  See Beavers v. State, 492 P.2d 88, 94 (Alaska 1971).