STATE of Utah, Plaintiff and Appellee, v. William Jesse LOOSE, Defendant and Appellant.
No. 981726.
Supreme Court of Utah.
Jan. 14, 2000.
2000 UT 11 | 1237
Ronald J. Yengich, Vanessa Ramos-Smith, Salt Lake City, for defendant.
ZIMMERMAN, Justice:.
¶ 1 William Jesse Loose (“Loose“) appeals his conviction on two counts of sodomy on a child and two counts of sexual abuse of a child. Loose raises several arguments on appeal. He argues that the trial court erred by denying him a new trial based on: (i) the admission of improper hearsay and profile evidence offered by a therapist who had treated the victim, J.J.; (ii) the admission of hearsay evidence offered by J.J.; (iii) the exclusion of relevant defense evidence concerning the relationship between Loose and his wife; and (iv) the discovery after trial of new evidence. Finally, Loose argues that he received ineffective assistance of counsel. We affirm.
¶ 2 We view the facts in the light most favorable to the jury verdict and recite them accordingly. See State v. Brown, 948 P.2d 337, 339 (Utah 1997). On four different occasions in 1995, Loose sexually abused his stepdaughter, J.J. In August of 1996, a year after the final incident of abuse, J.J.‘s mother, Carol Correna Loose (“Corey“), took J.J. to see a social worker, Joe Tabish. Corey told Tabish that J.J. had been exhibiting unusual behaviors, including excessive hand washing, withdrawal from peers, decreased school performance, and anorexic tendencies. Corey also mentioned to Tabish that J.J. had been sexually abused by her biological father.
¶ 3 Tabish began by asking J.J. about the abuse she suffered at the hands of her biological father. He then asked if she had been abused by anyone else. She responded with a shocked look and then answered affirmatively. She indicated that it was “Jesse,” the defendant, who had abused her. Tabish disclosed this information to Corey, who, upon hearing the accusation, was “hysterical, incredibly emotional, [and in a] state of denial.” That evening, Corey separated from Loose and moved herself and her children from their home.
¶ 4 Loose was bound over for trial. The State requested a hearing pursuant to
¶ 5 The case proceeded to trial. J.J. was the State‘s first witness. She testified regarding the incidents of abuse discussed above. On cross-examination, Loose‘s attorney introduced excerpts of a letter that J.J. had written before trial regarding these incidents in order to show inconsistencies between the written statement and J.J.‘s trial testimony. On redirect, the State had J.J. read another portion of the letter. Loose‘s attorney objected to her reading from the letter, claiming that it was hearsay. The State responded that Loose opened the door to the reading by using it to impeach J.J. The court overruled the objection.
¶ 6 The next witness called by the State was Tabish. Tabish‘s testimony included the statements made by J.J. during their first meeting. The prosecutor asked him if the behaviors J.J. exhibited were “consistent with children who may have been sexually abused.” Loose‘s attorney objected to this question. The objection was sustained. The prosecutor then asked whether Tabish had seen such behaviors in other children who had been sexually abused. Tabish answered affirmatively. Later, the prosecutor asked Tabish if it is “common for . . . children to disclose every detail [of sexual abuse] during the first disclosure.” Tabish responded negatively. Loose‘s attorney objected to the line of questioning, and the trial court sustained the objection. Loose‘s attorney never asked to have Tabish‘s response stricken from the record.
¶ 7 The jury found Loose guilty of all four counts. Loose then moved for a new trial based on claims of trial error. After Loose had filed the motion, he learned of a letter which J.J. had written to a friend after the trial in which she stated that she had lied while testifying. Loose filed a supplemental motion for a new trial based on that letter claiming it to be newly discovered evidence. The trial court denied the motion for a new trial based on the arguments raised in the original motion. It then ordered a hearing to determine whether the newly discovered evidence would likely make a different result probable on retrial. Following the hearing, the trial court found that the letter was unlikely to bring about a more favorable result on retrial and denied the supplemental motion for a new trial.
¶ 8 On appeal, Loose argues that the trial court erred by failing to grant a new trial on any of several grounds. We first state the standard of review: we review the decision to grant or deny a motion for a new trial only for an abuse of discretion. See State v. Martin, 984 P.2d 975, 977 ¶ 15 (Utah 1999) (citing Crookston v. Fire Ins. Exch., 860 P.2d 937, 938 (Utah 1993)). Any legal determinations made by the trial court as a basis for its denial of a new trial motion are reviewed for correctness. See Crookston, 860 P.2d at 938.
¶ 9 First, Loose argues that the erroneous admission of Tabish‘s testimony warrants a new trial. Loose challenges two aspects of Tabish‘s testimony. First, he contends that the recitation of what J.J. told Tabish in their first encounter was inadmissible hearsay because it did not qualify under
¶ 10 We reject the first contention. We agree with the trial court that Tabish‘s testimony was not admitted based on an exception to the hearsay rule contained in
¶ 12 Loose next argues that the trial court erred by denying his new trial motion to the extent it was based on the fact that J.J. read portions of a written statement she had prepared earlier. Loose argues that the statement was hearsay. In denying the motion for a new trial, the court held that the written statement was admissible non-hearsay. We agree.
¶ 13
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statements and the statement is . . . (B) consistent with the declarant‘s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication. . . .
¶ 14 Loose‘s third argument is that the trial court erred in refusing to grant him a new trial based on its erroneous refusal to allow defense evidence regarding the poor state of Corey and Loose‘s marriage. Corey testified against Loose. The defense offered the testimony of Debbie Young, a family friend, to the effect that Corey had told her that the relationship was poor. The defense maintained that this evidence was relevant to Corey‘s credibility. The court denied the new trial, finding that it had properly excluded the evidence because whatever relevance and probative value it had was substantially outweighed by its potential for unfair prejudice, relying on rule 403 of the Utah Rules of Evidence.2 While a correct legal standard, it is not clear from an examination of the record that this was the actual reason that the evidence was excluded during the trial. But even if the trial court‘s analysis in ruling on the motion for a new trial was flawed, we can sustain its result on alternative grounds. See State v. Pearson, 943 P.2d 1347, 1353 (Utah 1997) (“[T]his court will ‘sustain a trial court‘s evidentiary ruling on any available ground, even though it may be one not advanced below.‘“) (quoting State v. Rimmasch, 775 P.2d 388, 400 (Utah 1989)); see also In re Estate of Shepley, 645 P.2d 605, 607 (Utah 1982) (stating court‘s duty to sustain trial court‘s order on any proper grounds).
¶ 15 At trial, when Loose‘s attorney sought to introduce the marital relationship evidence, the State objected on grounds of unresponsiveness and hearsay. The trial court sustained the objections. We conclude that those rulings were correct. Young‘s answers to defense counsel‘s questions were rambling and not responsive to the questions being asked. See State v. Lack, 118 Utah 128, 221 P.2d 852, 857 (1950) (“[The trial judge] has a duty to see to it that witnesses . . . shall answer proper questions fairly and responsively and not wilfully digress from the subject of the examination.“). One question Loose‘s attorney asked would have required Young to testify as to what Corey said to her about Corey‘s relationship with Loose. This is hearsay and was properly excluded. See
¶ 16 Loose‘s fourth argument is that the court erred in denying his motion for a new trial based on the letter written by J.J. after the trial, in which J.J. said that she had lied on the stand. Loose argues that a new trial should have been granted because that letter constituted newly discovered evidence. We review the denial of a motion for a new trial based on newly discovered evidence on the same basis as any other denial of a new trial motion—whether the trial court abused its discretion. See State v. James, 819 P.2d 781, 793 (Utah 1991). The legal elements for analyzing a claim for a new trial based on newly discovered evidence are as follows: the moving party must demonstrate from the proffered evidence that: “(i) it could not, with reasonable diligence, have been discovered and produced at the trial; (ii) it is not merely cumulative; and (iii) it must make a different result probable on retrial.” Martin, 984 P.2d at 977 ¶ 15 (citing James, 819 P.2d at 793). The trial court found the first and second requirements satisfied, and the State does not contest this finding. The critical issue, therefore, is whether the third element was satisfied: was “a different result probable on retrial” if the evidence had been sent to a jury?
¶ 17 The trial court held an evidentiary hearing on this issue. J.J. was examined by the State and cross-examined at length by Loose‘s attorney. At the hearing, J.J. reso-
¶ 18 The Utah Court of Appeals recently addressed a case similar to this. In Matthews v. Galetka, 958 P.2d 949 (Utah Ct.App.1998), it noted that a majority of states that have considered recanted testimony “have given great latitude to the trial judge to determine the credibility of the recanting witnesses’ testimony.” Id. at 952. We are not comfortable with the court of appeals’ broad characterization of the cited case law, or the sweeping discretion it purports to give trial judges in determining witness credibility, even in the new trial context. We proceed with caution where a trial judge‘s weighing of credibility has the result of keeping otherwise admissible evidence from the jury. However, we conclude that it is appropriate in the context of a new trial motion based on newly discovered evidence to give the trial court the power to consider the testimony‘s probable weight as part of its determination as to whether that testimony would “make a different result probable on retrial.” And part of that weight certainly is the likelihood that a jury would find it credible. Probable credibility alone is not the determinative issue, but its interplay with the substance of the proffered testimony and with the other evidence offered at the first trial is. Therefore, at least in a case such as the one before us where the witness would not recant under oath, maintained that her trial testimony was true and that the recantation was false, and gave a cogent explanation for the recantation, we find that there was no abuse of discretion in concluding that the evidence, considered in light of all other factors, would not have changed the result on retrial.
¶ 19 Finally, Loose argues that he received ineffective assistance of counsel because his lawyer failed to object to the admission of Tabish‘s testimony regarding the statements J.J. made at their first meeting. He argues that because Tabish‘s testimony did not qualify under
¶ 20 We affirm.
¶ 21 Associate Chief Justice DURHAM and Justice RUSSON concur in Justice ZIMMERMAN‘s opinion.
ANDERSON, District Judge, concurring:
¶ 22 I concur in the affirmance of defendant‘s conviction. However, I do not agree with the dicta expressing discomfort with according trial judges “great latitude to determine the credibility of recanting witnesses’ testimony.” See supra ¶ 18.
¶ 23 Trial judges who have heard both versions of the witnesses’ testimony, as well as all other trial testimony, are in an excellent position to evaluate whether the supposed recantation is true. If a supposed recantation is obviously false to the trial judge, I question whether justice is served by evaluating whether a jury is likely to be misled by the false testimony. There are valid arguments on both sides of this issue that ought to be considered if and when a case is presented where the trial judge finds the recantation false, but it is also evident that the supposed recantation probably would change the verdict.
HOWE, Chief Justice, dissenting:
¶ 24 I dissent. The trial court erred in allowing Tabish to testify that J.J. told him that the defendant had abused her. It was
¶ 25 The trial court admitted the hearsay statements of Tabish on the ground that they were not hearsay because
[T]he State is offering them not to prove the truth of the matter asserted therein, but to provide a framework. The statements are essential for the jury to understand how these allegations against the Defendant arose. There is a significant amount of time between the dates of the alleged offenses and the date the Defendant was charged with the crimes. Allowing Mr. Tabish to explain how he became aware of the alleged abuse through the therapy sessions for other problems the victim experience[d] is important in allowing the State to present a cohesive case.
¶ 26 I do not agree that hearsay evidence can be admitted to “provide a framework” and that the evidence then becomes non-hearsay. No authority is cited for that proposition by the trial court or the majority opinion. While hearsay can be admitted in limited situations where it is not admitted to provide the truth of the matter asserted, the situation in the instant case does not qualify for that exception. It clearly came into evidence as proof that the defendant abused J.J. The jury was not instructed that it could not consider the disclosure to Tabish as evidence of abuse.
¶ 27 The majority opines that even if the admission of Tabish‘s testimony as to what J.J. related to him was erroneous, it was harmless error, relying on State v. Seale. In Seale, there was physical evidence of abuse and the testimony of a corroborating witness. In the instant case, there is no physical evidence of abuse and no corroborating witness. J.J. admitted that not everything she wrote in the 1997 letter was true, and following the trial she recanted her testimony in another letter. Thus this case is very much “her word against his.” I cannot agree that any error was harmless under this state of the evidence. I would reverse the conviction and grant a new trial.
¶ 28 I concur in the observations of Judge Anderson in his concurring opinion regarding the recantation of testimony.
¶ 29 Having disqualified himself, Justice STEWART does not participate herein; District Judge LYLE R. ANDERSON sat.
STATE of Utah, Plaintiff and Petitioner, v. Jeffrey Russell FINLAYSON, Defendant and Respondent.
No. 980279.
Supreme Court of Utah.
Jan. 14, 2000.
2000 UT 10