Julian v. StateJulian v. State
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- Howe
INTRODUCTION
{1 The State appeals from a judgment of the district court granting post-conviction relief to appellee Larry Julian on the ground of newly discovered evidence.
«BACKGROUND
12 In 1987, a jury convicted Julian of two counts of aggravated sexual abuse of a child, in violation of
13 In December 1995, Julian challenged his convictions in a petition for post-conviction relief filed pursuant to rule 65B of the Utah Rules of Civil Procedure (1995). After discovery and a hearing, the trial court (the habeas court) vacated the conviction, ruling that the court at Julian‘s trial had committed plain error by failing to make reliability findings under
14 In 1996, while Julian II was pending, the Utah Legislature enacted the Post-Conviction Remedies Act (PCRA), codified at
T5 On October 28, 1999, the habeas court entered a memorandum decision wherein it concluded that almost all of the children‘s out-of-court statements were admissible as prior consistent statements under rule 801(d)(1)(b) of the Utah Rules of Evidence. The court further concluded that statements the children made to a physician and clinical social worker were admissible under rules 803(4) and 702 of the Utah Rules of Evidence. Finally, the court concluded that Julian‘s trial counsel had not been ineffective.
11 6 In early 2000, the habeas court held an evidentiary hearing on the issue of A‘s recantation. A testified she was strongly pressured to falsely accuse Julian at his trial by her mother, who was dealing with substance abuse problems and had a history of physically and mentally abusing A, N, and their siblings. A also testified that interviews with counselors and group therapy sessions provided further impetus for her to lis. The habeas court subsequently granted Julian‘s amended petition for post-conviction relief, finding that A‘s testimony regarding her perjury at the original trial and her testimony regarding her mother‘s coercive tactics, drug problems, and abuse were credible. 1 Relying on the standards set forth in State v. James, 819 P.2d 781, 793 (Utah 1991), the court further found that A‘s testimony was not cumulative, could not have been reasonably discovered before trial, and would make a different result probable on retrial.
T7 The State appeals, and Julian cross-appeals.
STANDARD OF REVIEW
18 When reviewing an appeal from an order granting post-conviction relief, we review the habeas court‘s conclusions of law for correctness and its findings of fact for clear error. Seel v. Van Der Veur, 971 P.2d 924, 926 (Utah 1998); Julian 2, 966 P.2d at 252.
ANALYSIS
{9 The State urges us to reverse the habeas court‘s grant of post-conviction relief, contending that the trial court erred by not reviewing and denying Julian‘s amended petition under the heightened standard imposed by the PCRA. Alternatively, it asserts that Julian‘s petition fails under our prior post-conviction case law because A‘s recantation does not rise to the level that there is a substantial likelihood that a jury will render a different result on retrial. Julian cross-appeals, contending that the habeas court erred in denying post-conviction relief based on ineffective assistance of counsel, in admitting certain of the girls’ out-of-court statements, and in refusing to admit expert testimony regarding N. We address each issue in turn.
I. APPLICABILITY OF THE PCRA TO JULIAN‘®S AMENDED PETITION
{10 The State argues that because Julian amended his petition after the enactment of the PCRA, the habeas court erred by not reviewing Julian‘s amended petition under the heightened standard contained in the PCRA.
%11 Section 78-85a-108 of the PCRA provides, however, that “this chapter applies only to post-conviction relief proceedings filed on or after July 1, 1996.”
112 Even if the PCRA were silent as to its effective date, it still would not apply to Julian‘s amended petition. “[Sltatutory enactments which affect substantive or vested rights generally operate only prospectively [and] the substantive law to be applied throughout an action is the law in effect at the date the action was initiated.” Dep‘t of Social Servs. v. Higgs, 656 P.2d 998, 1000 (Utah 1982). Law is substantive if it “creates, defines and regulates the rights and duties of the parties and . . . may give rise to a cause for action, as distinguished from [procedural] law which pertains to and prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective.” Petty v. Clark, 118 Utah 205, 214, 192 P.2d 589, 593-94 (1948); see also Higgs, 656 P.2d at 1000-01 (stating that statutes “which do not enlarge, eliminate, or destroy vested or contractual rights apply not only to future actions but also to accrued and pending actions as well.“) Section 78-85a-102 states that the PCRA is a “substantive legal remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies.” As such, it replaces prior remedies that challenge a conviction or sentence for a criminal offense and may not be applied retroactively to Julian‘s post-conviction relief action. See
II. JULIANS PETITION UNDER PRIOR POST-CONVICTION RELIEF LAW
113 Alternatively, the State argues that the trial court should have denied Julian‘s petition for relief under the post-conviction relief case law in effect prior to the enactment of the PCRA.
{ 14 While we have recognized that newly discovered evidence may warrant post-conviction relief, we have not addressed the standards that govern such decisions. See Hurst v. Cook, 777 P.2d 1029, 1036 (Utah 1989); Gallegos v. Turner, 17 Utah 2d 273, 275, 409 P.2d 386, 387 (Utah 1965). In its decision, the habeas court relied on the standards we use to determine whether to grant a new trial under rule 24 of the Utah Rules of Criminal Procedure. In that context, we require that newly discovered evidence (1) must be such as could not with reasonable diligence have been produced at trial, (2) must not merely be eumulative, (8) must not be used solely for impeachment purposes, and (4) must be such as to render a different result probable on retrial. See James, 819 P.2d at 793; State v. Worthen, 765 P.2d 839, 851 (Utah 1988).
115 In applying this standard to Julian‘s post-conviction relief claim, the habeas court followed a number of states that apply various combinations of these same four criteria to new evidence claims in both the eriminal trial and post-conviction relief settings. Seq, e.g., State v. Serna, 167 Ariz, 373, 807 P.2d 1109, 1110 (1991); Jones v. State, 591 So.2d 911, 915 (Fla.1991); Stuart v. State, 118 Idaho 865, 801 P.2d 1216, 1220 (1990); People v. Washington, 171 Ill.2d 475, 216 Ill.Dec. 773, 665 N.E.2d 1330, 1337 (1996); Powell v. State, 714 N.E.2d 624, 627 (Ind.1999); State v. Sims, 289 N.W.2d 550, 554-55 (Iowa 1976); State v. Bradley, 246 Kan. 316, 787 P.2d 706, 707 (1990); Woodruff v. State, 608 N.W.2d 881, 888 (Minn.2000); State v. Abe, 307 Mont. 233, 37 P.3d 77, 79 (2001); Callier v. Warden, 111 Nev. 976, 901 P.2d 619, 626 (1995); Hopfauf v. State, 575 N.W.2d 646, 647 (N.D.1998), overruled in part by Whiteman v. State, 643 N.W.2d 704 (N.D.2002); Brennan v. Vose, 764 A.2d 168, 173 (R.I.2001). We agree with these jurisdictions that the requirements that newly discovered evidence not be available at trial, not be merely cumulative, and not be used solely for impeach
116 With regard to the evidentiary impact that newly discovered evidence must have, we have stated that “[iJn order to sustain the granting of [post-conviction relief], something more is required than that the evidence might have justified the granting of a new trial had it been promptly disclosed.‘’ Ward v. Turner, 12 Utah 2d 310, 313, 366 P.2d 72, 74 (1961). Indeed,
in order to justify the [post-conviction] release of a convicted person . . . the evidence of his innocence must be stronger than would be necessary in the first instance in support of a motion for a new trial, for special writs are applied for after the defendant‘s conviction has been affirmed or denied on appeal, and in a sense they invade the usual rules for the finality of judgments.
Id. Nothing in our pre-PRCA case law, however, suggests that newly discovered evidence must rise to the heightened standard required by the PRCA that “viewed with all the other evidence, the newly discovered material evidence demonstrates that no reasonable trier of fact could have found the petitioner guilty of the offense or subject to the sentence received.”
117 Consequently, our pre-PCRA case law requires that newly discovered evidence demonstrate more than merely rendering a different result probable at retrial, but less than insuring that no reasonable trier of fact could have found the petitioner guilty of the offense. See Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356, 1376 n. 22 (1994) (suggesting a standard “higher than a probability but lower than beyond a reasonable doubt“). This intermediate burden has been articulated by the court of appeals as “when there is a substantial likelihood that had certain evidence been available at the time of trial, a different verdict would have resulted.‘’ Stewart v. State, 830 P.2d 306, 309 (Utah Ct.App.1992); Matthews v. Galetka, 958 P.2d 949, 949 (Utah Ct.App.1998), cert. denied, Matthews v. Warden, 982 P.2d 88 (Utah 1998) (affirming dismissal of petition for extraordinary relief); Casida v. DeLand, 866 P.2d 599, 599 (Utah Ct.App.1993) (affirming habeas court‘s denial of post-conviction relief). We believe the phrase “substantial likelihood” adequately describes this intermediate burden, and we will therefore use it to refer to instances where the evidence must be more compelling than merely rendering a different result probable on retrial but need not rise to the level of insuring that no reasonable trier of fact could have found the petitioner guilty. In summary, we hold that in order to merit post-conviction relief under our case law in effect prior to the enactment of the PCRA, newly discovered evidence (1) must be such that it could not with reasonable diligence have been produced at trial, (2) must not be merely cumulative, (8) must not be used solely for impeachment purposes, and (4) must render a different result substantially likely at retrial.
118 In granting Julian post-conviction relief, the habeas court did not apply these criteria as outlined. Although the ha-beas court did rule that the newly discovered evidence was not cumulative and that it was
119 We now address several issues likely to arise on remand. See James, 819 P.2d at 795.
A. Impeachment Evidence
€20 The State argues that Julian is not entitled to post-conviction relief because A‘s recantation is impeachment evidence as to N‘s trial testimony. We note, without deciding the issue, however, that the rule enunciated above and applied in the rule 24 arena precludes relief where the “only use [of newly discovered evidence] is impeachment.” Worthen, 765 P.2d at 851. The same evidence often has more than one use. This rule merely precludes the granting of relief based on evidence which has as its only purpose the impeachment of another witness. If the trial court determines that the sole purpose of A‘s recantation is to impeach N‘s testimony, it should deny Julian‘s petition. If however, on remand, the habeas court determines that A‘s recantation, while having some impeachment effect on N‘s testimony, can also be used in an attempt to negate an essential element of the State‘s case or for some other non-impeachment purpose (a very conceivable finding given that Julian was convicted based on the combined weight of both girls’ testimony and that A exhibited the only possible physical evidence of the crime), it should not deny the petition on this ground.
B. Substantial Likelihood of Recantation Testimony Rendering a Different Result on Retrial
1 21 The State also argues that Julian is not entitled to post-conviction relief because the fact that N has not recanted her testimony renders it impossible for Julian to show the substantial likelihood of a different result on retrial. It cites a number of newly discovered evidence cases where courts have denied relief because recantation testimony was offset by the testimony of other victims or eyewitnesses who had not recanted. See MT., Sr. v. State, 677 So.2d 1228 (1995); People v. Davenport, 283 A.D.2d Til, 650 N.Y.S.2d 418, 420 (N.Y.App.Div.1996). Under our case law, however, the fact that one or more witnesses have not recanted does not automatically mean that there is not a substantial likelihood of a different result on retrial. In determining whether there is a substantial likelihood, the habeas court should “consider both the substance of the proffered testimony and the testimony‘s probable weight” (quotations omitted). Hoff-hime, 2001 UT 4 at I 28, 20 P.8d 265; see also State v. Loose, 2000 UT 11, 118, 994 P.2d 1237 (stating that in recantation cases part of the determination regarding probable weight includes the likelihood that a jury would find the new evidence credible).
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III. JULIANS ASSIGNMENTS OF ERROR
«[ 22 Julian contends that the habeas court committed error in denying post-conviction relief based on ineffective assistance of counsel, in admitting certain of the girls’ out-of-court statements, and in refusing to allow expert testimony regarding N. He concedes that these issues would be moot if we ruled in his favor. Because we have remanded to the trial court for a determination on whether he merits post-conviction relief under the pre-PCRA law as outlined in this opinion, we do not address these contentions. Julian may raise them if there is a subsequent appeal.
CONCLUSION
1 23 The trial court did not err in failing to apply the PCRA to Julian‘s new evidence claims. We remand to the trial court to determine (1) whether Julian‘s newly discovered evidence can be used for a purpose other than impeachment and (2) whether the newly discovered evidence renders a differ
Notes
. Originally, the habeas court filed a “Ruling on Petitioner‘s Motion for New Trial.” However, after the State filed an objection, the habeas court filed an “Order on Amended Petition for Extraordinary Relief Under URCP 65 C.”