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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 email@example.com. 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. 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).