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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).
