*1 enough obligation appellants has cared about underlying claims there- to ask for its return. by the foreclosure and stock to bother satisfied been has to security interest ceased fore the the decision of the would affirm longer is no collateral. exist and stock court. However, interest is included since since inter- underlying obligation, and satisfied, the obligation not been

est security to a interest subject is still

stock payment unpaid of the interest and deficiency unpaid portions of the

any other Appellees thereafter had a law-

judgment. right Wyomivest stock.

ful to retain the respect conversion claim for With BROWN, Appellant Joe Walter stock, pledged we failure return (Defendant), stated that an essential element have claim, alleged tortfeasor ac where Wyoming, The STATE subject possession property quired of the (Plaintiff). Appellee allege lawfully, is the claimant must prove that he made demand for No. 89-186. and that property return of the the defen Wyoming. Court of Supreme possession property refused dant comply with his demand. Satterfield Aug. Resources, Inc., Day Sunny P.2d (Wyo.1978), denied 441 cert. U.S. (1979). 60 L.Ed.2d Cali 99 S.Ct. requirement. law

fornia contains similar Angeles, 11

Minsky City Los Cal.3d n. Cal.Rptr. allege Appellants failed complaint that demand had been

their Therefore, properly

made. the trial court their claim for conversion.

dismissed appellants

The failure make de- is undisputed. for return of the stock

mand case, made

In this no demand Albrechts Wyomivest through- stock

for return redemption period statutory after

out fact,

the ranch foreclosure. counsel

appellees the stock certificate and mailed counsel, power back to Albrechts’ but

stock accept

Donald Albrecht would

stock, except suggest paid that it be into disposition. Appel- for judicial

the court day the re-

lants waited until before

demption period expired, request not to re- stock, notify appellees

turn “improper Wyo- retention of the

that their stock full

mivest constituted satisfaction” appellees’ It would claims. seem in this

Albrechts were interested stock “bargaining chip” against ap- to use

as a unjust that

pellees. patently appellees It is charged with conversion when

should *2 Munker, Defender,

Leonard State Public (argued), Appellate Cornia Mike Coun- sel, appellant. Gen., Meyer,

Joseph Atty. B. John W. Renneisen, Gen., Deputy Atty. Karen A. Gen., Byrne, Atty. and James Asst. C. (argued), Atty. Gen., Sp. Anderson Asst. appellee. URBIGKIT, C.J., THOMAS, Before CARDINE, GOLDEN, MACY and JJ. CARDINE, Justice.

Appellant Walter Joe was convict- Brown May signifi- ed of incest based upon part daugh- cant (MCX) ter who was the victim incest. appeal. affirmed on That conviction was (Wyo.1987). Brown v. premised Brown’s motion for new trial falsity a recanta- its until after the trial. in the form of know about on new evidence apply At on the mo- It should be noted that federal courts by MCX. tion addressing variety that she testified standards tion for new MCX dis- motions re- original father’s trial. The new trial based on witness’s lied at her Annotation, testimony. recantation was cantation of trict court found that the *3 for new as Testimony and denied the motion Recantation Witness not credible New Crimi- trial. Grounds Trial —Federal for Cases, 94 A.L.R.Fed. 60 nal affirm. We response, claims that State ISSUES properly test applied Opie district adopt this court not and that need court mis Brown claims the district test. Larrison addressing mo applied the standard for newly dis premised for new trial on tions FACTS by adopted evidence was covered Opie May timely in Brown filed a this court On State, 780 new trial in (Wyo.1967); King see motion for accordance also The (Wyo.1989). Opie premised The 947-51 W.R.Cr.P. motion was requires made affida- by that these four elements on recantations MCX an standard (1) Wyo- to present: has come to and a letter the Warden of the be evidence vit trial; (2) knowledge ming Penitentiary, it well as a recan- defendant’s since owing diligence typewritten not of due tation contained letter was a want sooner; (3) (KX) by it is other had signed daughter that it was who discovered probably produce material that it at trial that too was a victim so would testified she were at the KX’s a different verdict if the new trial of incest hands of Brown. (4) Wyo- granted; and not cumulative letter was written to the Governor presented ming apparent seeking purpose other evidence at trial. Id. for the clemency. require claims his met the There no effort Brown evidence executive was Opie signed letter ments of the test and it was an abuse to establish who wrote or governor, for court to have nor authenticate it or of discretion the district Opie the motion it into KX did not tes- denied for new trial. introduce evidence. adequately tify hearing alone does not address new for new test at on the motion might was upon trial motions based recanted testimo trial. It be assumed that she say testimony unwilling, oath, ny unless we such is imma under to recant her trial Thus, testimony. under item of the test if false. no evidence terial there is test, same recanted her infra, The Larrison adds this the record that KX ever given requirement testimony original clear and under at the crimi- more sworn way. standable nal trial. hearing on proper

Brown also asserts that the stan- At the the motion for new applied trial, piece ex- intro- dard to be in this case is that the first evidence States, pressed juror from the Larrison v. United duced was affidavit of (7th Cir.1928). proceedings. Donna original F.2d 87-88 The Larri- criminal applied by McCarty say test is a some could not sure oth- son standard what during federal courts when a motion for new trial ers had convinced her of deliberations, on a recantation of her but she uncomfortable based witness’s was testimony. that standard the time with doubt. She Under at that reasonable (1) That talked to anyway. district court must satisfied: voted to convict She given by Judge Troughton the materi- after trial and assert- testimony the recanted false; (2) he said “the stand al witness is its absence ed that verdict would reached; you man was can’t might guilty different verdict have been because the by guess yourself.” was taken second also indicated defendant She that, her, giv- she would surprise testimony when it was as for felt the verdict it, likely or did not if the information en and was unable to meet most be different record on concerning hearing the recantation had been motion juve- new trial presented at trial. contained the records of all proceedings concerning spe- nile Of MCX. MCX, testimony The first was who cial interest is MCX’s that her proceedings by represented was at mother, Brown, Lawana told her was she lengthy counsel. Her be- longer home, family no welcome in the but recross, direct, cross, redirect, re- tween gone that her mother had subsequently re-recross, gist of redirect and but the her counseling accepted things her fa- testimony was that had lied at her she ther did to her. did Lawana Brown original revenge father’s take on testify motion for having grounded him for her. No other testify she did behalf sup- presented evidence Brown original her at the pro- husband criminal port of his motion for new trial. *4 ceedings. Despite the fact that Brown was prosecution, As the first for the witness molesting found of guilty KX and admitted testimony from a district heard during molesting family counseling to MCX psychiatric nurse from Southwest Counsel- sessions, Lawana Brown testified that she Springs experi- in Rock who related her possible did not think was that her hus- dealing ences of with victims incest. She engaged have band could incest with frequently related there are recanta- that MCX. MCX claimed that all of incidents family pres- tions in such cases of because incest occurred in her mother’s absence. testimony transcript sures. A of of Dr. It necessary disposition is also for the of Reisinger, psychologist expert a and provide this case of summary abuse, dealing cases child with of sexual presented original salient evidence at the original was admitted from the criminal proceedings criminal took place which However, case. the district court made it February March of 1986. MCX testi- clear did testimony that it not consider the fied that Brown had had sexual intercourse reaching decision, experts its occasions, with her on several recent- most especially it did not consider of their August inly early of 1985. October of testimony they that sounded like were reported MCX these incidents to vouching for witnesses. DPASS. MCX testified to the details White, Manager Terry of the Uinta long-term her rather sexual involvement Department County Office of the of Public Brown, unnecessary but it is us to with for (DPASS), Assistance and Social Services repeat any concerning re- more detail testified been that MCX had a ward of the Langley lationship. Rebecca testified that since 1985 and been State October had she was the DPASS social worker who took homes, placed variety group of foster report MCX’s and conducted an evaluation homes and a state institution. White was study precip- home. of Brown’s This very aware that there was a strained rela- KX Brown of itated because had accused tionship between her MCX and mother perpetrating incest on her. As a result of him only MCX indicated to accusations, charges criminal were her home, way she could return des- which she brought Brown, placed against and he was do, perately wanted to was to her recant probation. time of home on At the Sonny Hodgdon, testimony. employee girls placed study, in shelter both were of the Youth Home Alternative Association home, Eventually care. MCX returned but Evanston, was acquainted with MCX KX a ward of the State and has remained placement from her there and testified that Langley’s never returned home. In one of home, she she told him wanted return Brown, counseling he admit- sessions with way only and the she could do so was to part ted to her that as a a so-called “sex testimony. recant her The evidence also what program” education he demonstrated appointment included a certificate of and it meant for a man to have a “hard-on” having penis. letter of commendation MCX her touch erect On MCX his occasion,” Navy “teaching/learning service in the United States another such joined April Finally, the Brown blouse and mas- she unbuttoned MCX’s public justice, in swift and sure nipple of her breast in order to interest

saged the activity approach as that reasoned that it was such we believe the better establish Supreme lose of her adopted by her to control which caused be that Court admitted these inci- emotions. Brown of Kansas: “ testimony at his de- dents in his sought trial is ‘When a new having sexual nied had intercourse ever recanting testimony prose- basis junc- note daughters. We at witness, weight given cution to be charge against specific ture Brown such is for the trial trial was that he had sexual original at passing motion for a trial to new in early August MCX intercourse with required The trial determine. her 1985. KX also testified related he grant [or she] relationship Her with Brown. incestuous satisfied the recantation pur- limited admitted ” omitted) (citations true.’ Id. 758 P.2d pose showing plan. a common scheme or 275; Norman, (quoting psychologist A evaluated testi- who MCX (1982)). Kan. See opinion expressed fied her that her Commonwealth, also Thacker v. evaluation of MCXwas consistent with her (Ky.1970). S.W.2d the victim of having been sexual abuse. suggested It is that where a conviction *5 DISCUSSION rests solely testimony, on recanted a trial for grant court a motion trial. must new grant or denial motion of a 538, York, Wash.App. State v. 41 704 P.2d the for trial is within sound discretion new (1985). The 1252, 1255 York case has un State, Story the v. P.2d trial court. 788 usual applied facts and has never been State, (Wyo.1990); 617 Best v. 769 P.2d elsewhere, Washington, or State of 385, (Wyo.1989). 387-88 decision Moreover, any other situation. factual on such a district court motion will be Washington appellate that case the court Id.; upheld an absent abuse discretion. did not overrule the district but rath State, 756, (Wyo. Keser 737 P.2d 759 v. upheld grant er its discretion to the motion 1987). held have also that recanted We by for new cited Ala trial. York was testimony suspicion. is viewed with the utmost Appeals bama Court of Criminal for the State, 422, Bu v. 574 P.2d rns proposition that the sole where witness State, 837, (Wyo.1978); v. 568 P.2d Jones recants, against the defendant denial of State, (Wyo.1977); Sims 495 P.2d motion is an abuse for new trial of discre 256, (Wyo.1972). We see no reason However, tion. the statement that rule evaluating rule deviating from the basic is dicta Alabama case because the on district court decisions motions for new case, applied rule was to that nor has State, Opie trial. 85. How ever, applied ever been to a case Alabama. enlarge on that rule general we will (Ala. State, Robinett v. 494 So.2d provide guidance somewhat to additional cases, Cr.App.1986). a this, The Robinett court cites recanted such involve allegedly support purpose, that number of cases which testimony. agree To we conclusion, upon its review we discov Supreme grant Court of Montana that York, none, questionable credibility including that accu person of ered are rately to overturn motive carte blanche the deter cited. The rule Tennessee is jury operating granted mination of within a new not be the basis trial will protections newly constitutional bounds of our evidence unless the discovered testimony sought not conducive to the sound administration of the witness im justice. Perry, issue, 232 Mont. peached important State v. so to the Therefore, we impeaching the witness so evidence espoused adopt following by rule strong convincing, different re court, as well as several others: necessarily sult at trial would follow. (Tenn.

“In light suspicion Rogers, of the inherent sur- State 703 S.W.2d Cr.App.1985). Quite rounding testimony contrary recanted and the dicta, Alabama the rule Florida is that a truth; court is satisfied of their granted trial should not be is in the position best to make testimony basis of recanted unless the the determination because he has ob- testimony court is satisfied that the is true. served the witnesses and can often dis- (Fla. Borgess v. 455 So.2d cern assay incidents, the influ- App.1984). essentially The Florida rule is ences and the prompted motives that the same adopt as the one we choose to recantation; and rejection of the re- Likewise, fully above. the Indiana rule is canting testimony will lightly be set consistent with our decision. The Court of appellate aside court.” Thacker v. Indiana, Appeals of rejecting after the con Commonwealth, 453 S.W.2d cept that a complaining recantation (Ky.App.1970). witness whose trial was not cor In summary, we have found no case which required roborated a new held: clearly stands proposition for the that it is “Any contrary rule every would make an abuse of deny discretion to a motion for judgment supported by which was a sin upon new trial based the recantation of gle dependent upon caprice primary of a sole or witness for witness, who, of that depart once he had prosecution; or stated way, another protection court, ed from the motion for always grant- new trial must subjected would be to whatever seduc ed where the sole primary or witness re- tions, compulsions, guile that an un testimony. cants his or her scrupulous litigant might choose to em briefly We will address two mat ploy to rescue his ill fated cause.” Best ters which suggested Brown has as issues (Ind.App. 418 N.E.2d in his brief. The first matter is whether 1981). the district court properly made several The Alabama court Pennsylva- relied on a pages findings, including findings that it *6 nia case which follows the same rule we was, by training experience, qual more adopt today. Pennsylvania rejected the (credi ified to decide an issue of this nature concept that a recantation a sole witness witnesses) bility of any judge than other in requires a “Recanting new trial. testimo- state, including the members of the ny is exceedingly unreliable and it is the Wyoming Supreme Court. pre We would duty deny of the court to a new trial where fer that a district court not address com it is not satisfied that such is ments directed to other members of the added) (emphasis true.” Commonwealth judiciary findings in its of facts and conclu v. McCloughan, Pa.Super. sions of law. Such only comments can A.2d Arizona is cited denigrate judicial serve to institutions jurisdiction the Alabama court as a generally, of this state and should be avoid agrees However, with its rule. no Arizona ed necessity unless there is some clear case has ever held as the Alabama court in therefor. We note this case that suggests, including cited, the case it evidentiary district court conducted an Scanlon, 108 Ariz. hearing reasonably and made a detailed (1972). Finally, Kentucky does not follow why statement of it reasons denied the dicta, the Alabama but rather follows the motion for trial. in This is accord with adopted: same rule that we have authorities that persuasive. we consider “[Tjhere special are rules for situations State, See Dunbar v. testimony. general recanted (Alaska 1974). nothing There was in the recanting rules are that testimony is lengthy monologue district court’s that was suspicion; viewed with mere recantation remotely prejudicial even to Brown. of require does not alone trial; granting suggests in only a new in Brown also his brief extraor- dinary and that impropriety unusual circumstances will a there was some in the granted hearing new trial be because recant- district court the motion for new statements; ing when, such statements shortly original will after the crimi form the only basis for a new trial proceedings, expressed when nal the court to a disqualification. inquiry, opin the court’s Shaw v. S.C.

juror, who made beyond 277 S.E.2d see guilty that Brown was a reason ion Story 788 P.2d at 621. We have findings, district doubt. In the able grounds held that the bias which is the only did so in the court clarifies that it disqualification personal must be and it that, juror this came to it feel sense when judge must render unable to exercise badly that had voted convict she impartially given his case function in a Brown, the na explained the court her which is inconsistent a state of mind per she of the difficult task had to ture fully open to conviction which evidence form, her, expressed its view consoled might A produce. duty has a not to agreed justi had jury that it reached recuse himself without a valid reason. nothing more. did not fied Brown verdict— (Wyo. Sawyer, 600 P.2d Cline v. to have district removed seek 1979). request voluntary the case or from Moreover, he reassignment the case. CONCLUSION has raised no issue in this about the We did clear, context, hold that district court It that matter. mo- introducing denying abuse its discretion Brown’s purpose Brown’s the evi adequate tion trial. for a new There is juror only to demonstrate dence record to conclu- support evidence its close and that this verdict was telling sion was not the truth that MCX proba a case where the recantation would First, testimony. recanted her she bly make a difference verdict. she was the victim her father’s sexual suggestion There no there was Then, mother, depravity. her Lawana impropriety the district court did or what Brown, who, having protect failed to her it decided the case basis of daughters depredations from sexual other anything than the evidence that was though fully their father even she was presented it. There limited au hus- aware of his inclinations from her thority question, existence on admissions, heaped band's own instead authority the mere holds that fact that upon rejection. her scorn and After MCX agreement expressed with the being by her rejected mother and shuffled disqualify jury’s verdict does not him from home, home, group foster state though a motion for new institution, again, and back MCX did the may result a situation where he should *7 only thing she could to endeavor to win granted if not sit on the trial one is on of a back the affection her mother—tell lie Grimes, 652, appeal. Ingram 213 Ga. hope prison. and free her from father 914, (1957); 100 S.E.2d 915 Johnson v. present This does not an issue of case State, 494, 900, 46 Ga.App. 167 S.E. 900-01 victim, whether or not MCX to be a chooses (1933); Still, Ga.App. 462, Felker over, for is she victim twice but rather 781, (1930); Judges 781-82 48A S.E. C.J.S. properly whether the district court conclud- 118, Moreover, (1981). knowledge § truth, that, ed she a victim. We past, of defendant’s or even a belief hold the district did not abuse its part judge of that is defendant concluding MCX was discretion guilty, require is not enough disqualifi victim her father’s To MCX of incest. we question is not if cation. the trial empathy, pro- for offer our this course of if judge guilty, believes defendant ceedings quite common in cases such as fair. can be State v. Kim this. mel, (1968); Kan. 448 P.2d Affirmed. Strunge, see Commonwealth v. 287 Pa.Su per. A.2d CARDINE, J., opinion of delivered the meaning of remark made fair separately concurring the court and filed a interpreted light must be opinion. context it is said. The trial C.J., J., right legal URBIGKIT, THOMAS, has the to consider the filed sufficiency alleged require separate dissenting opinions. his facts CARDINE, Justice, concurring. other guilt. evidence of If there were oth- er corroborating guilt, evidence the en- dissent, Urbigkit Chief Justice premise tire dissenting opinion unfounded, unjustified, serious leveled incorrect, and it becomes a random mean- charges toward members of this court. der through supposed having area of law This concurrence issues because am cer- no relevance to case. this full, open tain that we all benefit profound disagreements discussion of such If corroboration requires that per- a third those in this case. I am encountered present, observed, son was and could testi- compelled to discuss what is a concur to fy intercourse, to the sexual corroboration misstatements, incorrect cita- collection would Obviously, be rare indeed. such is law, tions, and the inaccurate statements required. Corroborating is, evidence Thus, against court. accusations this supplementary to already “[e]vidence is accused majority of: given strengthen and tending or confirm Rejecting judicial logic; 1. established it. Additional evidence of a different char- Rejecting cases; majority 2. acter to the point.” same Black’s Law Denigrating 3. sole (5th Ed.1979); witness recantation Dictionary, 311 and see 9A Phrases, “corroborate; Words & purpose person 4. For the innocent corrobora- tion,” incarceration; circumstances,” “corroborating “cor- roboratory circumstances,” “corroboratory word, Using recanted, 5. emotional evidence,” “corroborative,” “corroborative supposed benign rather than a word per- proof,” testimony,” “corroborative “corrob- jury. orating proof,” (1960 Part). & 1990 Pocket Thus, the dissent states: In Larsen v. 686 P.2d 585-86 majority “this casts aside course of (Wyo.1984), quoted approval we regarding cases motions new trial Smith, statement from 16 Utah 2d dating years twenty-four back to the ini- (1965): Wyoming Opie tial case of * * * “Two alternative hazards are confronted. (Wyo.1967). majori- [T]he hand, accepting On the one the testi- rejects judicial then ty logic established mony danger of a is the child there principle of decision found truth, may telling she majority denigrate not be in which of cases sole wit- may ness event an innocent man potentially recantation in favor of convicted person Urbig- innocent of crime the consequences incarceration.” and suffer kit, C.J., p. other, dissenting at if thereof. On the the child’s testi- mony accepted, guilty is not a man continuing: crime, potential with the possibly perjury “We are called to face versus such, go more free. In this will connec- possible justice in context of what tion, it in mind must be borne that when abjured testimony Brown calls and the committed, such an offense is it is done State, by emotionally impacted character- *8 * * * possible greatest with the stealth and ization, labels recantation. A new secrecy, testimony so often the that most testimony] ap- for recanted creation [test victim, coupled type with the from pears majority’s this decision direct- here, corroboration have is the we deny jus- ed to exclude and review upon evidence we have available which to Urbig- I dissent.” tice accused. guilt determine innocence. The fact kit, C.J., pp. dissenting at 831-32. that there are difficulties involved should “denigratpng] We are accused of sole prevent justice processes recantation” in favor of innocent functioning.” person incarceration. This accusation (Wyo. In brings Gezzi v. fallacy clearly of the dissent into 1989),we affirmed a similar conviction with depends The dissent for its view. own corroborating being way less in the evi upon this a case in even which opinion In was sole dence. footnote 4 we upon conviction based witness tes- i.e., recognized regard timony, a case in there was no that our rule this ’85, “Q. you had Okay. In October of current mainstream of within the well with In Andrews a conversation jurisprudence. [MCX]? American (Ind.App.1988), cor 529 N.E.2d upme “A. It She called was brief. victims female was both roboration leaving told me that she was —was stories, ten-year-old and the similar told my response running away and first girls leaving defendant’s saw brother why. was sweating crying. bedroom “Q. Uh-huh? Moore, Kan. me, “A. And she told ‘He’s done the was victim’s corroboration thing to me.’ same concerning prior acts. said, “Q. I she ‘He’s see. And when for corrobora- us examine the record Let me,’ thing to what did done the same charges sex crime tion of the incestuous to mean? you take that corroborating evi- appellant. The against “A. That he had had sexual inter- of MCX is supporting dence course her.” as follows: in- Appellant, though denying sexual b. KX, stepdaughter living in foster a. tercourse, testified: appellant’s since 1985 because of homes “Q. fondling teach- Was abuse, testified: prior sexual ing/learning experiences? you “Q. you he ever touch Did —Did my fondling of her—I “A. Was would places? yes. to answer that have “A. Yes. “Q. many did this fon- How times you “Q. Touch around breasts dling occur? vaginal area? three different occa- “A. There was “A. Yes. sions, presume you’re is what —three “Q. Okay. progress Did this on to different occasions. anything more? “Q. During these three different oc- gradually progressed “A. It on to casions, you did ever touch [MCX’s] intercourse. sexual breasts? “Q. long Okay. How was it—How Once, yes. “A. long place, this take this sexual did contact type activity until you had in- ^{[*] [*] [*] [*] [*] [*]} tercourse with “A. n Approximately ^[*] your ^[*] two father? ^[*] years. ^{[*] [*]} that was doing at this time that made “Q. Okay. necessary What to do that your daughter you feel [teach Now, “Q. [KX], these her about Okay. sex]?

And KX testified: you you the future with would do.” pening? pected sexual abuse of type other “Q. “A. He would concerning telephone love anything [MCX] Have boys and to know what things and that it was to your you had about about father, would say sexual relations with any possible or sus- that it why happen did he ever tell call from conversations her would help me in by your between prove MCX, they hap- ginity, three incidents that her she was—she did “Q. “A. Twelve. she’d lost her “Q. “Q. “A. *9 “A. Yes. ^[*] this after virginity, Twelve. How old was I'm Shortly before the first don’t ^[*] puzzled you think she knew what had you your If virginity. ^[*] she been state? about this. she? daughter you had lost her vir- ^[*] babysitting related, sjc incident, had lost These you ^[*] like? penis erect looked an father? so, presume yes. “A. I would of 1985.

“A. Not until October proba- she effort to obfuscate the issue in order to “Q. you Don’t think would extremely reverse an serious criminal con- bly had her breasts fondled have viction. then? she had. She told me she “A. know majority rejecting The is next accused of

had. majority Contrary the view of a of courts. “Q. yet you to—never But wanted rejects to the claim that court the ma stated that mind. Strike that. You cases, jority adopted majori we have this; you your talked to wife about is ty upon It is the dissent view. that relies that correct? single appellate California intermediate best, represents, “A. Yes.” court case. That case at splintered appel one view from a California Appellant’s c. wife L. Brown testified Minnick, system. late People v. Cal. on cross-examination: (1989). App.3d Cal.Rptr. “Q. you asking me And do remember decision, reaching signifi which varies sessions, De- you during if those cases, cantly from other similar California having fendant admitted to had sexual appeals court noted: the defendant had daughters? contact with (not prior here); no record so the defendant “A. I don’t remember the exact word- consistently (perhaps denied the incident so Donovan, ing, Mr. no. here, but the defendant admitted other remember, “Q. you generally, But do gross improprieties and once admitted to asking you question along me those session); counseling in a the acts there was lines? (not here); so no corroboration victim Yes, “A. I do. (not here); changed story multiple times so “Q. answering you And do remember and district could not the vic yes, he admitted it? credibility personal tim’s observation yes. “A. I said (not here). appeals so California has, fact, it, “Q. he admitted And judge’s grant affirmed the trial decision to you? To has he not? a new trial on the it basis “A. time talked No. we’ve expression of the court’s sound discretion. sessions, counseling about it was judge’s here also affirm the trial deci We Mr. Donovan. discretion, sion as an exercise of sound “Q. you during pre- But did state except here it was a denial of a new trial liminary hearing that he had admitted because, motion. affirm that decision We it? court, like the we find no California abuse During counseling, yes.” “A. of discretion. clear, powerful

The above corroboration makes The distinction the dissent be- testimony. of MCX’s trial credibility of a re- tween and truthfulness castigates majority canting supported by is not The dissent next referring change of sto- cases cited. Ahvakana v. victim’s recantation, (Alaska saying App.1989) prop- cited for the ry as a the word is definitive, “emotionally impacted character- osition that the events are used “[i]f C.J., lacking.” Urbigkit, dis- ization.” Recantation is the correct word case, however, legal senting p. term of Black’s Dic- 849. In this and a art. Law (5th 1979); attorney tionary, 1139 ed. Webster’s the witness told defendant’s trial; hearing, under Dictionary, Third International 1893 that he lied at but at a New oath, preference the defen- The dissent’s for ab- the witness reaffirmed jured perjury guilt is incorrect. dant’s and testified that he lied earlier 7, 1025; prison inmates Dictionary, Black’s he feared would Law Webster’s because The Alaska Dictionary, up. Third him 768 P.2d at 632. New International beat best, do not hesitate to 1682. At this can be characterized as court held that “courts euphemism deny trial” in such circumstances. an effort to use a where the a new worst, proper do. At is an at 633. word would Id. *10 equally exacting; cases for the “The tests seem cites three

The dissent then changed Berry testimo- difference is that Ga. proposition [v. “[i]f belief, credibility also demanding regarding denies is more ny in itself ] C.J., dissenting p. at lacking.” Urbigkit, probative value of the recantation cited, May, The first case State States, Larrison United while [v. nothing to P.2d 72 Kan. (7th Cir.1928)] emphasizes the F.2d 82 or new trial recantation do with witness Hence, the witness. only thing close to some- motions. actuality may present nearly tests in two holding in this case is its thing point to a defendant re- equivalent hurdles may falsity of a consider that a Comment, Gary trial.” questing a new making testimony in a sen- defendant’s Legal Response Dotson as Victim: 607 P.2d at 77. tence determination. Emory L.J. Recanting Testimony, 35 Estrada, 537 A.2d 983 (R.I.1988), court found that appellate Emory of the Law Journal arti- The author not need to reach the trial court did real difference says cle in effect there is no testimony. credibility of the recanted blush, tests. At first it between two Thus, from this case any inference drawn if the found the would seem that dicta. can be considered credible, he it would be because speaks cited of truthful- The last case her; her, if it was he believed believed ness, it credibility, of a witness when not opinion he that she was because was states: truthfully. If testifying he found her “ ‘Moreover, recanting testimony is ex credible, could it he believed she was not unreliable, duty it is the ceedingly truthfully? testifying What would be it is deny court to a new trial where remand this case for fur- result should we testimony is not satisfied that such opin- this proceedings ther consistent with ” added) Bell (emphasis true.’ judge, having I have no doubt the ion? (Fla.1956) (quoting 90 So.2d untruthful, surely found the witness would 548, 185 State, 135 Fla. So. Henderson v. The result find the witness credible. (1938)). 625, 630, 120 A.L.R. 742 of the new trial motion— would be denial the same—how come? expressed is a concern that

Next State, 803 P.2d Lacey overrule case will places in the trial court the W.R.Cr.P. 34 (Wyo.1990). Although Lacey does authority grant “required trial if concluded the that the district court state justice.” in the interest of Larrison v. “recanting testimony lacked suffi- witness’ Cir.1928), States, (7th 24 F.2d 82 United trial,” credibility to a new Id. cient warrant recognized duty of the trial court to stating con- we continued “[t]hat and, commenting poli- upon truth clearly implies that the evidence clusion cy present, stated: factors to conclude insufficient for the court was “ if, (the contrary, judge) he ‘But testimony given at the trial was was convinced that second added) (emphasis Id. false.” false, league that a criminal had was roving sup- From the dissent’s review naught formed to set at the verdict been law, posed might one divine the debate jury judgment and the judging is whether the test for presented court, duty clearly marked. He was testimony should be: recanted liberty upon the shoul- not at to shift truthful, might if truthful; a. Is it responsibili- ders of another his own change the outcome of the trial? it to make the ty. That would have been triumphant. charged He conspiracy credible; and if credi- Is the witness b. responsibility to seek the truth with ” ble, probably affect the outcome will ap- (quoting at 88 himself.’ Id. of the trial? Shilitano, proval People v. 218 N.Y. (1916)). citation, note, 112 N.E. 733 borrowing a dissent

829 adopted ruling on The test then new We note that the here dissenter has dis frequently this, stated in as: sented trial motions was Larrison cases such as espousing rules would establish such question on approach “We shall this proof an of virtually onerous standard that assumption that a new trial should be all incest/indecent liberties cases would be when, granted impossible State, prove. to Monn v. 811 “(a) is reasonably The court well satis- (Wyo.1991)(Urbigkit, C.J., P.2d 1011 testimony given by fied a mate- dissenting); State, v. P.2d Gale 792 rial witness false. (Wyo.1990) J., 590 (Urbigkit, dissenting); “(b) jury might State, That without it the have (Wyo. Zanetti v. 783 P.2d 139 1989) J., reached a different conclusion. (Urbigkit, dissenting); Gezzi v. State, 780 (Wyo.1989)(Urbig P.2d 978 “(c) party seeking That the the new trial kit, J., dissenting); State, Bryan 745 by surprise was taken when false (Wyo.1987)(Urbigkit, P.2d 910 J. dis given was and was unable to senting); State, Brown v. P.2d falsity meet it or did know of its until J., (Wyo.1987) (Urbigkit, dissenting); added) (emphasis after the trial.” Id. at State, (Wyo. Stewart v. P.2d 87-88. 1986) J., (Urbigkit, dissenting). years This more court no casts aside The dissent would have us disavow the State, beginning Opie cases long-established rules this followed (Wyo.1967), P.2d 84 than does dissent. majority jurisdic- court and a vast of other simply We Opie add test addition- expressed tions. The result of the views requirement al when newly discovered dissent, read in combination with testimony. evidence is recanted The dis- dissents, the other quite simply all would require- sent would also add an additional that child sexual abuse would become states, Opie proper ment to when it “the unprosecutable except under the rarest of approach partic- kinds of these cases circumstances. Such a course of action as ularly when related recanted would, espoused indeed, the dissent should address foundational basis first * * prevent processes justice from func- Urbigkit, assess *.” tioning. C.J., p. dissenting eminently at 849. It is acknowledge unfair to the need for an addi- stated, Succinctly just this is another sex- requirement Opie, point tional and then dissenting ual abuse of minors case the finger an accusatory majority, sug- at the having justice would reverse reasons no gesting years that we cast aside 24 in fact or law. basis when, precedent true, if dissent also proposes years aside east the same URBIGKIT, Justice, dissenting. Chief precedent. enough adjudica It is hard in concerned got Next it is said that further Brown responsibilities comprehensively tive State, than Story (Wyo. 788 P.2d 617 justice perceived face a case of denied one 1990), part adamancy “in because time, County, Cooney see Park C.J., opinion.” Urbigkit, this writer’s dis State, (Wyo.1990) and Gale v. senting pp. apparent 832-33. mean return (Wyo.1990), P.2d 570 let alone to self-serving statement is that ait second time. After Brown v. given hearing Story Brown was was (Brown I), (Wyo.1987) we opinion denied because writer’s adjudicative corrected the error Zabel v. Story. Credit is taken where no credit is (Wyo.1988), we now due. Of this I am certain. This was compound miscarriage justice by granting hearing driven to because of disregard actually happened of what something hearing “writer” A wrote. proceeding as second Brown II. provided appro because a guise providing priate. Substantively, *12 830 majority’s from decision directed to majority casts a this this aside

guidance,1 deny justice new review and regarding motions for exclude course cases twenty-four years dating accused. dissent. back Opie v. Wyoming case of initial finding way to (Wyo.1967). Upon a P.2d 84 I. rule, essentially Wyoming render AND TRIAL EVENTS FACTS 34, a new in a granting

W.R.Cr.P. on by inoperable adding a fur- criminal case 1110, I, in As chronicled Brown rule, Opie major- ther restriction on the daughters K.B., the old- there were two — judicial logic rejects established ity then est, adopted a who stepdaughter had been major- found in principle of decision and Brown, M.C.X., by who his natural and was denigrate sole witness recan- ity of cases to theory of in the first child. The defense potentially per- in tation favor of innocent prob- admitting case that after was abuse son incarceration. child, K.B., lems older and the with the date, younger at an child earlier created scanty strands straw present by M.C.X. offense was fabricated logical concepts existing precedent from or pursued was as re- prosecution for which majority in as a for this provided bed venge escape for M.C.X. from and concept little advances authentication home. approval acceptance. or Neither argument or Brown nor the State in brief juvenile The present record contains the suggest- supporting testimonial admission which, proceedings for both children com- adopt hybrid this this muta- ed that approximately in and moved menced Larrison-Berry tion of the historical an- proceeding by then M.C.X. with States, cestry. 24 F.2d Larrison v. United allegation specific offense. The about (7th Cir.1928); Berry v. 10 Ga. alleged sexual to have occurred abuse (1851). 12, August Monday, on the afternoon of August session rather 5 as in testi- The call this second was antici- than ascribed by mony preliminary hearing. M.C.X.’s pated the dissent Brown I.2 We at the August again deny procedural justice third 19. It was unreal- resort choice istic, guilty impossible, charged he as if for the of- the accused whether or not daughter long during any fense one of by once claimed and to have occurred Nevertheless, Brown, (recanted). consistently now denied those times. since three solely upon the testimo- based substance penury pos- are face We called to versus M.C.X., ny was convicted in March justice sible in the context what Brown resulting affirmed sentence was abjured State, by calls dis- special with one concurrence and two characterization, emotionally impact labels May sents court in by this 1987. test, Wyoming recantation. The standard tough family in may as it have been from M.C.X. was removed from the derived 84, and, judgment mis- a time after the Opie, is misconstrued .1985 Navy she application. comparable was affirmed until enlisted Larrison test, although 1987, pillar post rejected at sub- she went from now domiciliary justification by juvenile stituted for muta- of almost innumerable decision placements, including juvenile application. appears A new creation female tive bias, pre- opinion affirming subject prejudice majority 2. The 1. When a crimi broad involving the decision on the mo- determination speaks enlarging nal conviction about a rule by appel- tion trial was not for a new initiated providing guidance, reasonably guaran it is briefing argument. late subject defined oral This or teed that an unbriefed attack on constitutional into this decision as a volunteer comes rights protection or established individuals analysis unacceptable discussion with which is is what occurs See is intended. This here. comprehensively it will be to this writer and — U.S. -, 1454, Zant, McCleskeyv. 111 S.Ct. V of See considered in Section this dissent. 517, — U.S. -, reh’g L.Ed.2d denied Wyoming Code Judicial Conduct S.Ct. 115 L.Ed.2d 1010 adopted March December effective Sheridan, facility Wyoming. could occurred on specifi- not have the date confinement disposition cally charged August juvenile before a August even Sometime hearing May August she known 5 or which were had made dates variable alleged testimo- wanted to recant her trial claimed victim. that she Either stating true. At not happen hap- that it had not been occurrence did ny in at all or it specifically pened May she other some unrelated Ini- date. *13 to the directly that statement trial tial was repeated conviction obtained the use judge the same de- judge, “expert” who thereafter an witness who the vouched for complainant, Zabel, this motion for a trial and the termined new cf acts evidence a his determined Her P.2d and course of bad documented disbelief. abjure involving an earlier penury to the stated used for occurrence with an old- desire and, consistency daughter previous- er for which Brown continued with had conviction ly following Navy get away subjected punishment. been criminal enlistment I, juvenile J., dis- placements, Urbigkit, the she Brown testimony by senting. her supported change in exe- asserting cution of an affidavit she had problem major The technical the Supporting given testimony false at trial. majority it does apply Opie is that not the resulting the motion a new trial at the and, had, test at if it all the trial court hearing expert was the evaluation decision, was, as it re- biased would have Miracle, psycholo- Brian of Dr. a clinical quired majority reversal. The now seeks gist. testimony hearing M.C.X.’s the at append testimony to a recanted test such and, in specific, emphatic direct and as

was condition the Opie requires a new that hearing following 1988 and now the trial court find truth in in fact recanta- 1989, unaccepted by in court. the trial credibility. tion instead of reasonable The impossibility test hearing held 21 and creates an unless the trial At the on June court, transcript judge Obviously, is a mind reader. if the the trial in a record- twenty-page covering enough trial court was not smart monologue ed in a a realize error, subjects, prior possibly version was multitude reiterated essen- provided it can no a test tial conclusion what had been said easier validity practical juvenile proceeding months assessed effect closed fifteen destroys simply efficacy The of the judge earlier. did not believe motion process originally perjury, perjured had for new trial where M.C.X. committed wit- ness is considered. lying rather was later date. but this Unfortunately, his coun- neither Brown nor a We from situation where we had move present dispo- juvenile sel were at the 1988 asserting actually one witness the event hearing sition to know that the trial occurred, expert as- just witness who already regarding up had made his mind serted and number of witnesses who validity original testimony before opined contrary by specific to the factual conducting hearing the subsequent impossibility. recitation of Now we have for a new additional Adding motion trial. say happened, no witness to but this expressed substance bias of majority preserve determined to seems colloquy was a that occurred had Unfortunately, conviction. we are also when, juror himself and an initial between documented record faced with a where verdict, original at a time after the he up had made his mind before juror by assuring her that comforted held for was Brown II. guilty. Brown was fact capacities The communicative writ- language ten to advise or mischaracterize II. majority are a miracle behold. The INTRODUCTION OP ISSUES emotionally presents through case PRESENTED “recanted,” directed where the real word simple problem inquiry question perjury. basic of this with the facts is a reason, question specific case within the offense The more whether was lized, finding rather to make a fact man incarcerated an innocent you case, do principal finding How In this that fact perjury of witness. decision. question That witness exists? during know lied probably not that the witness testimony was original her now states that original says she but rather what case, the restructuring the perjured. falsity true. The of trial now is and, in fact ignores significant majority is unaddressed and a characterization is upon which process, the entire thesis present applied to what we think of the pre- At the originally tried. the case was this case is recitation. issue of rela- hearing, complainant testified liminary Does tively simple. the law have a mecha- specific offense and the offense perjured testimony nism so that will Finding there- on a certain date. occurred the vehicle conviction and incarcera- date not have been could after system Is error non-correct- tion? not even family was correct because *14 partici- its system able because state, selected a further date was pants are unable to that a mistake admit it in- opportunity more since had which This ever occurs? result was the vice of mother time when the volved a scheduled reputation of to con- the use and bad acts for some have been out of the house would who, exasperated by expert as an in vict period. result, credibility testified as of to the a testimony Realistically it- examining the Zabel, in We that error witness. corrected self, clearly apparent that the offense it is ignore participation to but continue its date either. not have occurred on that could Brown. not, The burden If it could did not. Perjury major problem criminal testimony regard in that is absolute testimony orig procedure recantation since voice, complainant. except one small inally either was correct or now corrected. now person That who had the last voice another, perjury time or was commit One it did on the date agrees that not occur problem perjury The is not ted. Gale, Like where stated. Raleigh since Sir Walter came to know its places at the principal witness was two charged, true content when he convict time, subjected to same this event as evi- hung then false ed and based on identifica guilt did not occur. dence of determined perjured got testimony. tion and Brown majority by leav- The broadens this case Story than P.2d further ing open may have oc- offense that — U.S. -, (Wyo.),cert. denied S.Ct. not the at some other which is curred time (1990) part 112 L.Ed.2d because prosecution. Obviously, subject of this adamancy opinion, writer’s testimony acts Brown was convicted bad succeed, although fact re not but the expert of an who devined wisdom right assess evidence and mains credibility complainant. For empirical remain within validity test should guilt, one hard evidence there was jury displaced by the criminal and not says and now that witness appellate court or tribunal. true. issue facts were not I take strenuous majority abandoning Opie, with the 111(A). stringent inflexi- as it was and applied, to now add a ble as it has been THE LARRISON-BERRY affirming justify factor to further ALTERNATIVE TESTS— longer sup- the last available witness no GENERALLY USED ports the verdict and decision. majority the his- The decision abandons again to act like a This court is called standard this court af- superannuated jury determine not the torical followed adoption Opie Berry uti- rule3 propriety fairness and of the vehicle ter called ground newly Berry, 10 Ga. 527 states: new evidence, discovered Court, satisfy 1st. That the Upon following points there seems to knowledge general authority, has come since pretty viz: evidence to his concurrence of owing party it is incumbent asks for a 2d. That it to the want on a who trial. concept relating to the nature of the trial part hybrid Berry tions by creating in Larrison, material, and, process, e.g., not accumulative or part, a mutation of discovered; years re- newly really at least in recent none of which ad- this court has accept.4 question fused to dressed the of intrinsic validity. Berry developed, As gener- Opie Berry is identical concept emplaced has been reasonable cred- proba- by its criteria of ally differentiated ibility considering of the new verdict, jury while Larri- effect on the ble both circumstance and text. This criteria regard the criteria as in that sets son especially applicable to recanted evidence reached a different conclu- “might have perjury of the variant nature of because Larrison, 24 F.2d at 87. The exam- sion.” then, times. now both perspective Berry is different since ination con- considers a future while Larrison contrary, although Larrison to the templates prior jury might what the other- directly stated, came to stand for a test of scope wise have done. At least within the validity original which directed itself cases, succeeding a multitude of the court reason “[that] [be] — might concept of overt difference is the ably testimony given well satisfied that the con- compared probable Larrison Comment, by a material witness is false”. cept system difference is Berry. Gary Legal Dotson as Re Victim: finding: by the trial court to fact assumed Emory sponse Recanting Testimony, *15 determine the ultimate issue or retained Larrison, (quoting L.J. jury to resolve. 87-88). F.2d at and Lar- Berry This difference between An in additional difference the two not, however, define rison does what knowledge standards is the extent of of hybrid occurred in the mutative now cre- judge the evidence which the must im- court. There is what I would ated this determining in pute jury whether preliminary contend to be a examination grant the new trial motion. It has required of the trial court to answer a suggested many implicit- that cases been newly trial on the motion a new basis determining ly recognize that in whether evidence, discovered whether recanted tes- “might” met, the standard is Larrison timony in first con- or otherwise. Involved judge must consider whether a different is the circumstance and textual sideration might result if the recanted testi- verdict newly ad- validity credibility of the altogether from the was eliminated mony justify dressed evidence to first a words, In other the jury’s consideration. then trial. or a new judge hypothetical jury to which the an evi- makes reference would have no knowl- Berry itself did establish edge testimony of the dentiary process or standard within the cri- whatsoever hand, recanted. On the other except teria for a new trial as to the condi- was later Berry involving diligence principle a motion for a it did not come sooner. tive due that proba- newly 3d. That it is so material that it would based on discovered evidence. verdict, bly produce a different if the new originally rule stated: The Larrison granted. trial were 4th. That it is not cumu- approach question the as- We shall this facts, only viz; speaking lative in relation — granted sumption that a new trial should be which there was evidence on the trial. 5th. to That when, the affidavit of the witness himself (a) reasonably The court is well satisfied produced, should be or its absence accounted testimony given by the a material witness that 6th, granted, for. And a new trial will not be is false. only object testimony is to im- if the of the (b) jury might it the have That without peach the character or credit of a witness. conclusion. reached a different initially 4. Larrison was addressed to a confined (c) party seeking the the new trial was That newly area of timony, discovered evidence recanted tes- testimony by surprise taken when the false general expanded but in fashion has its given unable to meet it or did and was Berry, encompass- scope ing general application so that falsity trial. not know of its until after the rule, recanted included Larrison, origi- (emphasis in 24 F.2d at 87-88 rule, Larrison, a more which was defined nal). expanded generally compara- has now be a further “probability” the counterbalanced Larrison’s determining whether met, requirement first con- as- Berry standard jury has be- of the truthfulness of the recanta- hypothetical vinced sumes this appears re- original testimony Berry, conversely, tion. it both the fore certainty be- re- quire distinction that a different the later recantation. more ensue, apparently require flows tests but does not tween two sult would used in language Larrison’s as sure the truthful- from requirement: without it second tests seem ness of the recantation. The “[t]hat original testimony] jury might equally exacting; is that difference [the conclusion.” have reached a different demanding regarding the is more Berry one, in that is a notable This difference probative of the while value recantation places responsibili- full the Larrison test credibility of emphasizes Larrison credibility ty for the Hence, determination tests the witness. the two recantation witness’s may present nearly equivalent actuality jury. with the While judge rather than a new requesting a defendant hurdles to suggests hypothetical Berry trial. precisely it before jury would have (footnotes em- Id. at 977-78 omitted and recantation, evidence, including the same phasis original).5 might judge, that is before the hence law, practical usage case within the the wit- choose to believe disbelieve particularly so where the Larrison ness, Larrison’s elimination all “reasonably concept has now satisfied” jury’s from controverted “is as is case to an been converted taking the effect of consideration has emplaced concept, true” is the function jury. Although from the de- choice process. court and decisional traditionally termination of Credibility Berry not so far removed jury, places left to the Larrison thus concept summary judgment *16 entirely judge’s province. within the “reasonably while and directed verdict the hand, Berry, on the other leaves the final concept satisfied” or “is true” of Larrison jury, the none- determination with but subjective contemplates a examination requires the make a theless to to make the trial court a determinative preliminary credibility, of evaluation finding fact. of granted only the is to be if motion equivalency With a somewhat reasonable probable jury the finds that the operation, although obviously differing result will reach a different on retrial. circumstances, specific effect on factual Implicit ruling probability on that is a Berry probable” jury “credibility of whether the is defined determination “reasonably likely to effect and Larrison defined believe the witness. “might” effect. This court takes true” and analyzed When the tests are two “probable” the Berry the effect from manner, this it becomes evident that finding of “true” from Larrison greater “leniency” of the test Larrison result, jury In function is hybrid. as may illusory than be more real. Larri- granted, new erased and for the trial to be provide demanding does a less stan- son contrary to to the trial court has determine Berry “might” dard that does versus — prior verdict that fact the accused “probable” regarding degree cer- of — acquitted present should under sta- tainty that must have in partic- In newly presented tus of evidence. likelihood of a different result on retrial. ular, case, the re- “easing” But this in a recanted evidence standard originally concept We move from The as fied the recantation true.” Larrison stated might jury original past its testimony considered the effect the reasonable satisfaction "reasonably well satisfied determination was false to the new creation of testimony given by false” a material witness is present the trial court that Larrison, analysis. 24 F.2d at 87. This court changed retrospective to true. test is The probable restates then now with the effect and finding. prospective for trial court fact require posthumously to alters Larrison “is satis 111(B). access, suiting except deny effect is to case, right for a in millennium kind of LOGICAL AND PRECEDENTIAL perjured evidence. a new based INVALIDITY OF WHAT THIS application are drawn to The boundaries CASE NOW DOES. destroy remedy explicitly procedure. by this court’s rules provided Lacking any support Wyoming prece- majority grant is not a present opinion The dent for Larrison-Berry mutation rule review, trial issue new instead con- combining probable criteria of effect and mandating a decision stitutes automatic re- validity (or trial court determined invalidi- any application for a jection new trial. ty), foreign jurisdiction I look at the cita- opportunity jury reasonable The presented by majority tions for authori- guilt in reassess the context of the recant- ty. majority emphatically justifies, As the Tiersma, ed evidence is also foreclosed. enlarge general it “will on that rule [of Language Perjury: “Literal Opie provide guid- somewhat to additional ] ” Truth, Ambiguity, and False State- cases, this, ance in such which involve Requirement, S.Cal.L.Rev. 373 ment testimony.” recanted Restated for this case, it means a result-oriented decision for Wyoming provides law. It also assurance particular The recanted have a cases Wyoming rules civil and criminal perju- because of the embedded nastiness procedure providing for a new trial with By ry time or another. the over- —one newly discovered evidence are desecrated made, reaching majority mistake now this particularly perjury so when is in- concept attacks entire our rules for volved. trials, 60(b) 59(a)(7)and W.R.C.P. injustice where contended W.R.Cr.P. practical concepts advanced herein particularly has occurred and because of by majority preferable this that it is are perjury process. By infliction into perjury countenance than to disturb stabili- action, majority abandons its his- ty finality; finding fact should limit- requirement and constitutional relat- torical ed to the trial court witness miscon- finding responsibility fact duct is respon- contended. That decisional perversion power by the of that and re- jurors sibility appar- is not extended who sponsibility through assignment instead to ently incompetent are considered be too my persuasion, court. personal recognize who are liars and what are lies *17 approach I find this to also would excuse beings within the inter-reactions human which, by penury and accommodate all ex- stress, criminality. to emotional crisis and analysis pert excluding only performance adjudicative departs This court from norms counsel, pervasive stands as the most appellate comprise proper processes which operation adequate obstruction and, modest without even a admission that delivery justice system. the Wyoming longstanding it discards the law briefing compelling act without or com- subject The case law on the of motions having patible argument provided, been newly upon for a new based discover- radically by.activist now decision rewrites astronomical, is ed evidence with some thir- very application the of our rules of basic ty Wyoming Wyo- or more cases included. procedure. civil and criminal case, ming, now for the first time this foray perhaps change itself alone or Cited for existent posits totally almost Montana, where, from two other states with close exami- law are three cases Ken- nation, a tucky Pennsylvania we find that of authori- to authenticate the citations majority body Following fit into the are ty neither determined true rule. sever- com-, corollary law nor with this state’s al cases which attack but of national accord precedent. principle involving Absolutely prior pletely historical no different the con- subject fined when convic- Wyoming case utilized test now recantation adopted solely which is best as a tion is based on recanted testimo- characterized ny. cases, normally Larrison-Berry hybrid mutation. These sexual assault see, of our constitution- form within the bounds entirely as we shall not cases but not conducive to the larger catego- protections al group within a definable justice. testimony cases. administration perjured sound ry of recanted in first adopts minority view majority The really Perry P.2d at 275. What Id. 758 rule, mutation for this justification credibility review mischarac- presents is a cases, and three cited from the different validity as a trial court ultimate terized subject authorities on the misapplies then determination. perjury solely on conviction based Miller, In 231 Mont. State v. explanation Neither nor of cases. class (1988), court made clear that P.2d 1275 changing longstanding for justification Berry followed the test of jurisdiction opinion provided in the for Wyoming law like- result.” Miller “probable different discussion. Berry exami- applied the conventional wise test, look at the established I will first credibility. Conse- nation of reasonable (or untrue) application,” and true “to be reflected a misuse of quently, Perry whether need is then examine detail analysis of new language and a limited change Wyoming law demonstrated to no concept. evidence see trial-recanted ap- organizational this decision. Then that mistake why reason we should follow necessary look at the nation- proach, it is present majority and an earlier which the rule Berry states al division between case, case to a Kansas Montana attribute jurisdictions compared to Larrison Norman, P.2d 232 Kan. State v. conflicting reconcilable recognize the concepts rejection of conviction and felo- The Norman case involved a sordid deny en- grant new trial in order to of a a female convenience store ny murder of maintaining perjury forcement of while case, conclud- attendant. In that the court stability by application of an reasonable jury re- trial court believed the ed “[t]he credibility criteria which has served initial solely turned a reasoned verdict based jurisdic- as a standard in this heretofore gave the recanta- Tyler’s tion. credibility.” little Id. 652 P.2d at 689. tion Perry, 282 Mont. State documentary development reflected The (1988), degree the 1971 second P.2d 268 support for credi- opinion provided no in a conviction was reconsidered murder no direct evidence of bility since sworn proceeding. original 1987 new trial documented. The case recantation was of an conviction resulted credibility review with truthfulness rape/murder co-participant in the admitted process directly presented years first incident. Fifteen after the development The ba- record the case. co-participant changed story, re- Green, 211 sic Kansas case was State accepted responsibility for canted and sole where the Kan. opinion notes that the the homicide. validity. test was and not original defendant had not testified Watie, Green was followed *18 sig- surprisingly, trial. Not view of the which was Kan. contrary, evidence to the nificant following used case of Norman. supreme court refused to court and the Watie, P.2d at the court recited credibility accord to the recanted “satisfied the recantation of the that it was grant- per validity a se test for and denied (not witness’s true” [was] The Montana court then a new trial. true), the recanted statement was but then concepts two of discre- combined —abuse the court affirmed denial the motion tion and satisfaction that the recantation robbery participants new trial as two was true. the witness by and reversed as to another statement: The court said: Further, Beasley Linda Heard’s at- own grant person questionable tempts credi- to introduce evidence Linda [T]o statements, recanting together bility and motive carte blanche to over- Lewis’ allegedly jury operat- attempts to introduce the turn the determination of a Next, majority at- Wyoming ical law. by made the wit- statements inconsistent corollary principle separate as a by denied were all tacks her mother ness to individually these subject involving cases where the sole wit- Taken trial court. reversal, overwhelming body view merit recants. The points do not ness against Linda meager present decision contrary evidence case law is to this effect the cumulative Beasley Heard and subjects. on both trial court adverse rulings of the her, the trial court committed we hold IV. failing grant a new error prejudicial Beasley appellant Linda THE PROSECUTION BASED ON SOLE Heard, must be re- and her conviction LATER RECANTS— WITNESS WHO CREDIBILITY, versed. A FACT AND CIR- CUMSTANCE STANDARD Id. cases, although of Kansas

This course highlights and The case which defines authority affording apparent authoring and conceptual problem directly involved of “satisfied challenged for the statement Minnick, Cal.App.3d People here true,” reality fact the recantation were 293A, Cal.Rptr. Cal.App.3d analysis every case circumstance recognized dis- That court first practical fact as addressing credibility in requirement that each case cretion and a by part reversal best illustrated Watie with own facts and then an- examined on its same co- part affirmation based on the rejection of the conten- swered absolute testimony. Unfortu- participant recanted that “the trial court is tion of the state opinion were not nately, the authors required to determine whether the wit- closely examine the difference be- called to ruling or false in ness’s recantation is true judicial super- jury finding fact tween false, new trial. If on a motion for vision. denied; true, if it must be motion must be Cal.Rptr. at 318. The granted.” Id. 263 third state cited to law from the Case emphatically chose a different stan- justify authority used to provide additional finding fact justified in basic dard recan- Wyoming Larrison-Berry this new concepts: validity comes from Thack- tation truth or deciding trial court in The role of the Com., (Ky.1970). The 453 S.W.2d 566 er v. upon trial based a wit- motion for new premised on facts and Kentucky case was is to determine wheth- ness’s recantation in result a credi- in what was circumstances credible, i.e., wor- er the new evidence bility Reference is made review. jury. That determi- thy of belief opinion Kentucky two earlier cases after a consideration of is made on nation of a motion for new trial where denial particular pertinent to the all the facts in fact on recanted evidence was reversed court is not the issue. The trial analysis of a appeal supports the final falsity the new the truth arbiter circumstance review. fact and Com., (Ky.1964) evidence. 375 S.W.2d 832 Mullins v. Com., Ky. Shepherd the re- trial court has found Once the credibility analy- believable, used a S.W.2d it must then to be cantation justify jury review and sis sufficient of the re- consideration decide whether finding episode. finite trial court fact render a different result would cantation Shepherd Additionally, reasonably probable. both Mullins retrial principal wit- cases where all of were added). identically (emphasis For Id. *19 directly addressed testimony ness State, standard, v. see Lombardo stated the recantation. (1977); 385, A.2d 1065 State 172 374 Conn. 616, James, (La.App.1986); 620 from all v. So.2d body entire of law Within the 383, 696 102 N.M. Volpato, court has and State v. jurisdictions, majority the for this (1985). v. P.2d 471 See also Solis foreign jurisdiction only presented this 9, (Fla.App.) denied 265 cert. change in histor- 262 So.2d support a precedent to (Fla.1972), shortly trial superseded plaining witness recanted after which was So.2d 372 (Fla.App.1979), position through the same v. 374 So.2d 1022 and maintained Mollica (Fla. testimony hearing. t. denied 386 So.2d sworn at a new trial cer 1980) the issue of exercised discretion. reversing of a the trial court denial precisely the standard that exist- This is trial, Washington new court stated five Wyoming prior to the intervention ed preliminary conclusionary ef- criteria and opinion which present majority now creating fect the recanted witness test: decisional discretion enlarges trial court now address whether the court We finding requirement of truthful- with a fact finding erred in that defendant’s convic- ness. upon “solely” tion was based the recant- ing testimony, refusing The statement of this confined factual witness’ trial involving principal perjured to find this witness had situation rule whether in 4 provided recantation is Wharton’s herself at the trial. (12th Procedure, 601 at 189 ed.

Criminal § upon On a motion for a new trial based 1976) (footnotes omitted): evidence, newly following discovered Ordinarily, granted new trial will requirements five must be met before a primarily (1) where the conviction was based granted: new trial will be evi prosecuting testimony on the of such wit- dence must be such that the results will recanted]; a new trial ness will be probably change grant if [who a new trial was refused where the conviction was suffi- ed; (2) have dis the evidence must been evidence, ciently supported by other trial; (3) covered since the the evidence the recantation was obtained where could not have been discovered before coercion, or where the recantation was (4) by exercising diligence; trial due subsequently repudiated. the evidence must be material and admis sible; the evidence cannot be principal presently case cited merely impeaching. cumulative State directly majority attacked this is State v. 215, 223, Williams, 96 Wash.2d 538, York, Wash.App. 704 P.2d 1252 Wash.App. (1981); Davis, State v. (1985). Perhaps misunderstanding by * * * (1980). 605 P.2d 359 majority of the York sole witness rule independent for a new trial after the witness recants Where evidence corrob- subject testimony comes from confusion of the and its orates the that a witness later recant, grant intrinsic factors. First is that the recanted trial seeks to of new testimony process provides reasonable rests within the sound discretion of the credibility (e.g. Rolax, recant or Fifth double judge. State v. 84 Wash.2d hearing). testify (1974); Amendment refusal to at Hay- 529 P.2d 1078 State Secondly, testimony the recanted must be den, Wash.App.

essentially original basis convic- (1981). However, a defendant is “[w]hen supporting tion and other collaboration and solely testimony convicted evidence was not available to now adverse- witness, recanting now this court has ly posture test of the recanted squarely held that it is an abuse of dis- taken. grant cretion not to a new trial.” State Rolax, Wash.2d provides Brown II now a classical York Powell, citing State v. Wash. supporting case where there was no evi- Here, granting 98 P. 741 criminally dence to demonstrate that the motion for the trial court occurred; charged act ever sole witness found that defendant’s conviction rested recanted under oath at a solely upon testimony of Louise and provided and the witness an established that her recantation met all of the five history consistency since trial in assert- Williams, supra; criteria of was false. Davis, supra. State v. Similarly, York was an indecent liberties case, York, supporting (emphasis there no P.2d at 1254-55 evidence original). precise principle offense had ever occurred and com- is also to be

839 Mullins, State, 952, found in 375 832 S.W.2d 494 So.2d 955 (Ala.Cr.App.1986), Shepherd, Actually 101 S.W.2d 918. what where the court stated disposition that may is sometimes called the victim York rule Wash- be able to recant his own “[t]he testimony, ington state but the fact properly law should more remains that he appellant’s cannot recant designated principle the Powell derived confession to this crime.” Powell, 372, Corroboration 51 Wash. was found in 98 P. 741, defendant’s confession. recog 742 where it was stated: The rule “Out- nized and then found girl applicable side of the evidence there be is no cause of the confession was “when evidence of the offense a defen to submit to the dant is solely convicted jury.” The court then said: witness, recanting now it would be an jury at the trial did not have the fact abuse of discretion not to allow a new before it the witness had made trial.” Id. at 955. Robinett and York sworn contrary statements to her testi- completely were in concept consistent mony. The witness made such sworn controlling features. statements afterwards. It is true she Mosteller, 83, Com. v. testified that she had 446 Pa. stated when not 284 A.2d (1971) Annotation, 786 under oath initiated the that she had never had sexual Recan- tation Prosecuting intercourse appellant, with the Witness in Sex but it is Trial, Crime as Ground persons not uncommon for New deny such (1973). A.L.R.3d presented things oath, issue when not under and after- by Mosteller is wards, identical with oath, York and they are on admit the II, now here in In Brown II. Brown there fact. Such may worthy witnesses was no corroboration that belief, the sexual of- any person but it is rare that will fense had ever In Mosteller, occurred. testify to subsequently a truth and testi- Justice Pennsylvania Roberts Su- fy that such testimony was false. The preme recognized Court from Com. v. evidence of such witnesses uncorrob- Krick, 516, 520, Pa.Super. 67 A.2d ought orated in essential facts to be re- (1949): caution, least, ceived say “In the absence of sworn ought a man evidence im- peni- not to be sent to the peaching girl’s retraction, tentiary a new trial until a opportu- had an granted.” should have been it, nity pass upon which has not been Tex. Ark. N.E. upon a new trial. New trials have fre- 915; made in 26 S.W. 364. quently done 642; 349; Dennis v. here. No been this case. 64 S.W. Bates v. State State v. granted upon 268; injustice Moberly, Bussey Mann v. (Miss), 103 Ind. can be done 121 Mo. State, 32 South. showing traction that she was nothing to contradict Frieda’s recanta- Additionally, to trial that she had aunt that tion, there is evidence ^[*] despite having present Frieda admitted a month ^[*] Frieda thereby subject case, ^[*] fabricated the persisted ^[*] from her been informed to criminal ^[*] in her re- is there story. great prior ^[*] charges perjury and a substantial Id. 98 P. at 742. prison term. This was a clear declara- An abuse of discretion was found and the against tion interest entitled to consider- trial court denial of a new trial was re credibility, able unlike the normal retrac- following versed in to a Powell somewhat by co-conspirator tion who is already in Rolax, similar effect in State v. Wash.2d prison realistically has little to lose 836, 838, (1974). Non-dispos- 529 P.2d 1078 by attempting partner. to free his testimony provided itive recanted a differ Mosteller, 284 A.2d at 789. ent result in Hayden, State v. 28 Wash. (1981) App. 627 P.2d 973 and State v. It is obvious the case of Com. v. Letellier, Wash.App. McCloughan, Pa.Super. 421 A.2d Washington and other supersede York cases did not Pennsylva- were Supreme followed cited Robinett v. nia Court decision Mosteller

840 488, (Fla. State, 455 So.2d 491 facts, including specif- Borgess v. differentiated where there App.1984) inapplicable is because of- of the significant corroboration ically victims, recant only one of whom were two testimony. Like- fense, provided in were recog and effect ed. The distinction there wise, McCloughan, in differentiated Judge special in con Ervin nized Chief credibility and the con- total lack was a currence: was found to be trial court clusion appellant depend- If the conviction “recanting testimony justified where the minor on the solely ed con- inconsistencies and replete with was witness, I be inclined prosecuting would incredible.” tradictions that a denial of a motion to the view 421 A.2d at 365. Brown II McCloughan, an abuse of trial would constitute McClough- factually comparable to circumstances under discretion an. Yet, second vic- there was a presented. in approval cited with Mosteller was testimony, recanted her tim who neither 424 A.2d 492 Pa. Gaddy, v. Com. family ties close nor maintained (1981), discretion was abuse of testimony paralleled and Her defendant. totally “was and the recantation not found of the other much indeed corroborated a conse- credibility.” Gaddy, as lacking testimony. this ad- trial Given witness’s identically postured with our quence, say unprepared ditional evidence am State, Lacey v. recent case of most denial of the motion was that the court's in factual rele- (Wyo.1990),and P.2d 1364 of discretion. an abuse contrary present directly to our vance is (emphasis original). at 492 Id. providing emplaced requiring decision authority appropriate A can be more of truth. trial court determination for a Solis, reversal 262 So.2d where found Pa. Floyd, v. likewise Com. See of the sole witness came with recantation (1984). Overtly emphatically, A.2d 365 by appellate court reversal. provide prece- no Pennsylvania cases assuming judge, apparently The trial majority decision. support for this dential hearing was to that his function at such case, argued underpinning for as an This of her re- the truth vel non determine decision, lacks substan- majority’s that she was canting testimony, found or fact. support in either rule tive telling lie and had there- and there then Herein lies tofore told the truth at trial. Scanlon, Ariz. 499 P.2d v. State the error. (1972), subject, is authority as * * * province of It is not within the its facts with York consistent within juncture to deter- at that recognition that both corroboration on which of the two occasions mine justify existed to affirmance confession telling the truth. To do so witness was trial. denial of a new the discretional of a preempting the function would be comparable any factual is not Scanlon otherwise, the control- jury. Stated question II here no regard to Brown where said, as a ling point is that it cannot be crime exists occurrence of the of the actual law, that a had to believe matter of testimony. State beyond the recanted Cf. not, testimony and could the first Hickle, 133 Ariz. do, believe the undertook (1982), granting court decision where a trial them, or consider second if it were before of recanted testi a new trial on basis might possible on a it at all as it bear was affirmed on mony in the murder case concerning the truth of reasonable doubt Credibility crite appeal. absolute the first. validity and determined truthful ria and original Arizona and foot- (emphasis not in issue under the ness was Id. at 10-11 omitted). similarly the Florida testimony standard. See likewise note See recanted justice Scott, concept P.2d 1117 invoked in the interest 113 Ariz. again requiring a new Jackson the issue was credibili where (Fla.App.1982); Hanson granted. So.2d ty and a new trial was *22 State, (Fla.App.1966); specific question 187 So.2d 54 Lowe v. sion on this of the sole (1944); 154 Fla. 19 So.2d 106 and Full- witness testimony recanted where the ini State, er v. 92 Fla. 110 So. 528 tial by uncorroborated other by Judge and Hanson were cited Jackson significant evidence. special Borgess, Ervin in his concurrence in However, Indiana law on either the nar- 455 So.2d 488. row sole evidence issue or the broad (Tenn. Rogers, v. 703 S.W.2d 166 jury question decision simplis- cannot be again provides Cr.App.1985) authority no tically by only resolved review of those two by police since the victim was wired cases. As far back as the Indiana incriminating and obtained statements. Supreme Court reversed a penalty death Following charge by daugh sexual State, Dennis v. 103 Ind. 2 N.E. 349 ter, the father was rape convicted of both principal where the witness recant- and incest. The trial court reversed the court, ed. recognizing That after juris- rape charge and appellate court af diction jury for fact finding, stated: firmed the incest conviction on the basis The evidence of the third confession is that the victim could effectively recant the something more than impeaching evi rape charge charge but not the incest dence, because, if jury, believed supported by which was the father in the tendency its will be to defeat a verdict tape recording. Rogers is consistent with for the state on the State, indictment York and Dunbar v. (Alaska case. 1974) materiality of the evidence of follows. With citation of the Annotation, the third supra, confession cannot be 51 A.L.R.3d doubted or denied, impossible Alaska court and it is found the record for the insufficient courts confession, to determine whether there was an to tell how this abuse third in con of discretion and remanded for a Coffey’s previous factual nection with confes hearing regarding the “recanting sions, affidavits might and, jury; affect the in such in contrast to their trial testimony.” case, Dun we understand the rule to be bar, 522 P.2d at 160. always granted. new trial should considering Especially recantation of trial should prevail testi- this rule in our crimes,

mony, particularly state, where, in sex there is law, the fundamental no hard and fast rule from which it can expressly declared that “in all criminal be determined whether a cases whatever the shall have the called for. There are a considerable right to determine the law and the number of cases on this subject, but the 1881, 64; facts.” Rev.St. Grah. & W. § most gathered that can be from them is Trials, 1043,1044; State, Lindley New that each depends upon case its own 283; 11 Tex.Ct.App. State, Greene v. particular facts. Fla. 669. Id. at 160. clearly Dunbar was a fact and By confession, Coffey says, his third circumstance analysis. effect, substance and per- that he had only There jurisdiction found, one jured previous himself each of his con- Indiana, which in absolutely some cases fessions, and in his on the trial rejects the sole evidence recanted testimo met, therefore, of this cause. We are ny personified by rule York-Powell. Some question: Ought with this permit we to reject Indiana intermediate court cases appellant, who has been convicted single principle, witness recanted but even upon confessedly perjured false and tes- reject so do not the broader issue of credi timony, penalty to suffer the extreme State, bility. (Ind. Best v. 418 N.E.2d 316 sense, just hope, death? With a we App.1981) see, however, is such a case but duty, ques- our official we answer this probable warrant, Sny cause search negative. tion in the State, der v. 460 N.E.2d (Ind.App. Id. 2 N.E. at 355. 1984). cases, These of all of the authorities cited in majority, are approach cases The same was restated in an- provide support present case, for this deci other sole Key diction, realistically outlines the sub- (1956). The estab- 132 N.E.2d

Ind. insufficiency im- ject: evidentiary lished changed testimo- character of peaching a new trial will question whether State, 492 N.E.2d 264 Thompson ny prose- that a granted, ground Key (Ind.1986) Dennis follows claiming to have been cuting witness Chupp rule. adopting the stated part of the a sex offense on the victim of (Ind.1987) un- not an 509 N.E.2d defendant, testimony, prior has recanted *23 the tes- case nor was witness corroborated of the trial to the discretion is addressed State, v. timony O’Connor decisive. Ordinarily, a new trial will be judge. (Ind.1988), was 331, there N.E.2d 333 529 was based granted the conviction where principal evidence that no valid prose- of such primarily on the by a third was said recanted and what ever witness; trial will be re- cuting a new itself. Strain

party was fabricated was suffi- fused where the conviction (Ind.App.1990)pro- State, 1272 560 N.E.2d evidence, supported by other ciently credibility case conflicting evidence vides by obtained the recantation was where circuit criminal case most recent as did the coercion, was or the recantation where State, state, 562 N.E.2d Thomas v. subsequently repudiated. co-participant where a (Ind.App.1990), 43 Annotation, includes evi- Resource material provide not credible guilty plea did best, by At Criminal to exonerate defendant. Statements Witness dence After impeach- cumulative and His Testimo Tending was to Show That Trial suspect exculpatory with the ing New ny Perjured, and as Ground Was for Again, the process itself. Trial, (1924), supplement A.L.R. 550 as 33 persuasive sup- provide cases no Annotation, Indiana Testimo by ed Recantation of present discussion and port for this court’s Tri New ny as Grounds Witness for Dennis, 2 certainly for its decision. Cases, 94 A.L.R. Criminal al — Federal N.E. 349. Annotation, (1989); Stan Fed. 60 What dard, Necessity Change in Regarding oc authority where reversal Identical for Granting Result, Applies New Trial recantation principal witness curred with Federal Pursuant to Rule 33 Trial jurisdictions scope of over a considerable Newly Procedure Rules Criminal include: Ledet v. and extended time would for Testimony False (5th Cir.1962); Discovered Evidence States, 297 F.2d 737 United Witness, (5th 59 A.L.R.Fed. 657 States, Prosecution 17 F.2d 973 Martin United Annotation, 527, 20, (1982); Cir.), Standard Grant 275 U.S. 48 S.Ct. cert. denied for State, (1927); 111 Myers v. New Trial in State Crimi ing Denying 72 L.Ed. 408 (1914), 399, nine 163 S.W. 1177 Recanted Testimo Ark. on Basis nal Case by quarts whiskey Cases, consumed 1031 77 A.L.R.4th ny — Modem day two Annotation, a three session with abstainers (1990); supra, 51 A.L.R.3d requirement; for a new trial Annotation, added basis 907; by a Witness Statements State, Ark. 64 268 Bussey v. 69 S.W. Tending Trial to Show Criminal After (1901); Bassett, 93 N.H. 35 State v. Perjured, as Testimony His That (1943); State, Martin v. 34 Okl. A.2d 388 Trial, A.L.R. 1062 New Ground for (1926); Krick, A.2d 246 P. 647 Cr. (1945); Annotation, Statement Witness 746; 136 Tex.Crim. Morgan v. Tending Trial to Show Criminal After (1939); and Mann v. 125 S.W.2d 558 Perjured as Testimony That His Was (Tex.1876). 44 Tex. 642 Trial, A.L.R. 757 New Ground for (1931); Comment, Emory L.J. supra, 35 particularly testimony, and Recanted 969; Comment, Rethinking the Standard cases, in criminal has not been when found Upon Re Trial Motions Based New and analysis, case collections missed for Evidence, Newly Discovered cantations provided journal The statement reviews. Comment, (1986); Procedure, 134 U.Pa.L.Rev. supra, by 4 Criminal Wharton’s Ninth omitted) Law and Procedure. (footnotes may not neces- Criminal at 188 New Adopts Berry Standard every separate juris- sarily be accurate Circuit for Upon Berry Perjured Testimony, Trial Based Larrison and “probable” and (1981); Larrison applied U.L.Rev. differentiated Golden Gate then Sutton, Tell Note, Berry. People I Cannot a Lie: Standard See likewise Cases, Testimony New Trial in False (1887), specifi Cal. 15 P. 86 which had for (1985); Develop Berry 83 Mich.L.Rev. 1925 cally adopted rule and criteria Procedure: ment, Criminal Minnesota for occasion with a motion new trial Adopts the Larrison Standard Grant on newly based discovered evidence. Newly a New Trial Discov Because of Wyoming has three recantation decisions Caldwell, ered Evidence. State predated Opie which two of Minn.L.Rev. trial court denial new trial re- only a There are few cases combine versed and the third affirmed: State v. Berry Larrison validity review Bentine, Wyo. probability composite which is the effect battery assault where with intent adopted majority standard now *24 degree commit murder in the second was approach to our historical contradistinction affirmed on the basis that the circum- Larrison rejecting maintaining and case, including stances of the those Opie Lacey, as the standard. 803 P.2d testifying witnesses the motion for new justification possible 1364. The for a fair left discretion for the trial court present majority is to move decision recanting testimony to find to be exceed- Opie which rendered new trial ingly unreliable to affirm and the initial grant essentially provide now difficult State, decision; Espy 291, v. Wyo. 54 92 an trial unlimited court discretional veto. (1939), degree P.2d 549 second murder ver- It be for should not for the trial nor accept dict remanded for state election to ques this court to determine the ultimate manslaughter be conviction would guilt tion of the or defendant’s innocence. by perjured testimony offense uncolored or Minnick, Powell, 316; Cal.Rptr. P. 263 98 Thomp- granted; trial a new would essence, In this court’s rules for State, son v. (1929), 41 Wyo. 283 P. 151 applied new trial are rescinded with vehicle re- homicide motor conviction newly discovered evidence. The restruc versed for a trial. new principle unjustified by logic tured or Opie The cases that have followed are precedent justice reality if is in the search including variant character both civil and for provides truth. This decision the most involving with a number recanta criminal abusive judicial character indiscriminate involving tion. Those either direct conten legislating, now done without benefit significant perjury tion of or recantation briefing, argument precedent. applied Lacey, P.2d a include: 803 1364—sexual ass — Zant, U.S. -, McCleskey v. 111 S.Ct. post-trial recantation found not to — ult — 517, reh’g denied 113 L.Ed.2d State, credible; King v. 780 943 U.S. -, 111 S.Ct. 115 L.Ed.2d 1010 (Wyo.1989) aggravated assault. Brother — Marshall, J., dissenting. confessed, testify refused and there was if a testify no evidence that he would IV(A). State, Gist v. granted; trial 737 P.2d was WYOMING CASES SINCE OPIE (Wyo.1987) reversed, 336 retried re — confessed; Opie Berry heritage again. as a case is how versed Brother ever, McIntyre well Justice in au reversed conflict of interest of established. cases, Opie cited thoring approved on United New trial denial ba two counsel. Johnson, Cir.), States v. (7th 142 588 F.2d sis that existence the brother 264, potential cert. dismissed 65 known U.S. S.Ct. witness was before Beard, People including v. have L.Ed. 643 what his should Beard, State, been; (Wyo. Cal.2d In Jones P.2d 29 P.2d 837 spe 1977) probable person different test admitted to the kill result — another ing. dis Johnson cifically specifically included. denied recantation status be Court “might” not a cussed the difference between cause the affiant who confessed was Furthermore, missing applied witness test trial. Salaz at defendant's witness pro this court. testify. This case affiant refused any validity credibility question of vided Likewise, find: we would Bueno-Her recantation; Vialpando State, (Wyo.1986), 724 P.2d 1132 nandez State, (Wyo.1972) post-trial P.2d 939 — cert. denied U.S. S.Ct. party. re confession of another Sentence (1987) materiality issue. 94 L.Ed.2d 523 — A counsel for retrial. conflict of versed newly was cu Claimed discovered evidence problem existed. dispositive contrary to the mulative and not State, requirements; Opie Frias v. any sugges- of these cases was none (Wyo.1986) lack of P.2d 135 provided as ratio decidendi that tion — demonstrated diligence in a reversal due which resulted empirically trial court should determine of conviction on the basis of ineffectiveness compliance in addition to of counsel. Involved was evidence test, make a Opie should propensity of the victim to have threatened determination after recantation suicide; State, Lansing v. “is true.” current statement (Wyo.1983) non-testifying witness showed — involving di More conventional cases not up on a post-trial. The case was decided Opie rect recantation this court since diligence newly due denial and a dis basis (Wyo. 561 P.2d 238 include: Salaz concept; covered witness and Grable v. 1977) newly witness which was discovered — (Wyo.1983) — collateral per newly discovered not so new and not se the non-existent illness of a evidence about *25 evidence; State, Flaim v. 488 P.2d 153 appeared rejected who had not was witness statement (Wyo.1971) penitentiary — likely sufficiently Opie defined as to of the un witness was unreliable because produce verdict and was different savory background of the witness. The impeaching evidence. In most recent ex subsequently recantation was recanted at amination, Lacey, before we considered hearing for on defendant’s motion new State, (Wyo.1989)the Best v. 769 P.2d 385 trial; State, Kennedy v. attempted murder of Opie test for the (Wyo.1970), reh’g denied P.2d 127 cert. Best, Specifically fense. this court re 401 U.S. 91 S.Ct. denied jected the more relaxed standard of Larri- (1971) the com L.Ed.2d 218 — evidence son, perjury question. is in even when drinking plaining may witness have been specifically did not involve recanta Best materiality grant lacked for the of a new tion. trial; Roden, Jr., Davis, v. John B. Inc. require Four additional cases reference (Wyo.1969)—admission 460 P.2d 209 e evid dissented, have where either did or would nce was not sufficient to have affected regard and in no of the cases was a trial; Ballinger v. the result of present hybrid contention made that State, (Wyo.1968 ) 437 P.2d 305 —materiali adaptation Larrison-Berry be substitut- ty test Opie for not demonstrated. Opie ed court should abandon or State, (Wyo.1978) 574 P.2d 422 Burns v. for the differentiated standard of Larri- was another case which the Story, 788 P.2d son. These include: defendant, penitentiary, while in the filed J., dissenting post-tri- Urbigkit, —contended recanting testimony at an affidavit his tri perjury of the com- al discovered of one motion, hearing At a on the the affiant al. plaining considered. No witnesses was questions ground answer refused to hearing on the motion for new trial on the Consequently, of self-incrimination. he re required penury provided was basis Likewise, the recantation. Essentially, canted Sie by appellate decision. the ma- State, (Wyo.1981), 634 P.2d 323 gert adequate jority decision said that evidence third-party there affidavits that an subject provided were was without a hear- drug person ing. other was the miscreant in the The case is unfortunate because missing posture probable The affiants were witnesses achieved is that case. realistic requested complainants “was perjury at trial. No continuance was of one of the significance likely preserved. The not of such that would and the was in appellant’s have made a difference five Upon Convictions Based Perjured Testi- sexually assaulting pa mony Proposal convictions of a Reasonable —A tients”, 623; State, Standard, id. at Cutbirth Santa Clara Law. 316 J., (Wyo.1988),Urbigkit, P.2d 1257 dissent Louisiana follows the credibility inquiry ing newly probability discovered evidence derived and the effect criteria of the — expert directing from a ballistic Berry attention rule. the death was accidental and not a judge’s It is not the trial duty weigh O-pie premised homicide. denial was on a though the new evidence as he were the diligence question due which was then fore jury, duty rather it is his to determine closed denial of an ineffectiveness of whether this new material is fit for a review; State, counsel and Keser v. jury’s judgment. (Wyo.1987), J., Urbigkit, dissent James, 490 So.2d at 620. party addressing prob affidavits —third Mississippi, review, in most current fol complaining able penury. Denial a probability lows test with facts and cir premised of a on effect to cumstances considered for determination of “merely impeaches a witness.” Id. at 760. credibility. “Where the witness’ recanta given Another reason in decision for denial tion undermines the confidence in [court’s] diligence finding lack of the class the correctness of the outcome at mates in advance of trial to whom the new trial should be Yarborough ordered.” incriminatory penury might admissions of State, (Miss.1987). So.2d have been communicated. The fourth deci State, also See Moore v. 508 So.2d 666 sion newly relative to discovered evidence (Miss.1987). Gathings v. 46 So.2d as a basis for Hopkinson a new trial is (Miss.1950)provided the facts and cir (Wyo.), cert. denied justice cumstance interest of foundation 469 U.S. 105 S.Ct. 83 L.Ed.2d 157 Mississippi Credibility law. and not litigation which continues in years believability absolute seems to be the test case, by Grable, later. That reference to *26 Alabama, although the characterization 531, explicitly approved 664 P.2d Berry classification is not without some doubt. Hopkinson, rule. 679 P.2d at In 1113. State, Bell v. 565 So.2d 1244 (Ala.Cr.App. disposition of not one of foregoing 1990); State, (Ala. v. Womack 541 So.2d 40 cases, thought given was this court Cr.App.1987),judgment rev’d 541 So.2d 47 adopt portion should of the Larrison test “ (Ala.1988). of the alle ‘[Reasonableness or Opie add to a further criteria that the gations petition made in the proba and the required trial court was to find the recanta ” bility improbability or of their truth.’ tion of a witness as true in advance of State, 1352, (Ala. Colvin v. 521 So.2d 1353 considering grant whether to the new trial Cr.App.1987) (quoting State, Holsclaw v. relief. 1185, 429 So.2d (Ala.Cr.App.1983)). 1187 trial court must reasonably well “[T]he IV(B). 1) satisfied testimony given by a wit

NATIONAL PRECEDENT false; 2) ness at trial was that there is a Any deep murky significant dive into the waters of chance that had the heard arguable perjury, truth, Mesarosh v. United it would have reached a different * *." * States, 1, 1, result; 352 U.S. 77 S.Ct. 1 L.Ed.2d 1 parte Frazier, Ex 562 (1956), 560, provide (Ala.1989). and motions for new trial a So.2d 569-70 That justification clear for one reasonably determinative court is well satisfied and that Supervening jury might conclusion. from all of the have reached a different thoughtful concept cases is the clearly conclusion is the law of North Car Brown, exercise of 1, discretion should not be arbi- olina. State v. 327 N.C. 394 trary (1990); Britt, within the course of events so that 434 S.E.2d State v. 320 N.C. 705, judgment (1987). also, conviction would be ren- 360 S.E.2d 660 See for unjust. Knapper, dered 555 principal State v. So.2d reversal after the witness recant Comment, (La.1990). ed, Ellers, 42, 1335 From State v. 234 N.C. 65 S.E.2d Cf. Relief 846 Garcia, 123 462 N.W.2d Dakota State v. Credibility appears to be the (1951). 503 State, (N.D.1990). 194 Georgia Young v.

test for 335, 305 390 S.E.2d Ga.App. Dreissche, 233 People Den v. Van 891, 287 S.E.2d 248 Ga. Drake v. (1925), 38, a case that 206 N.W. 339 Mich. 1111, 180, 102 S.Ct. 457 U.S. cert. denied contemporary most reviews predated (1982). 2915, 1322 73 L.Ed.2d decisions, analysis the test for within the Ber approach Mexico The New the trial court was determina discretion of “likely to credibility and ry standard completely improbability or if dis tion of trial.” v. of a new State change the result This by its own contradictions. credited 1344, Doran, 1350 105 N.M. which, in improbability recognition anwas 290, 731 P.2d N.M. denied 105 cert. fact, early cursor of P.2d (1987). Volpato, 696 also 1334 See as a ten concept generally now considered credibility likely produce The cases. A consistent Berry line of et adaptation of the Ber result is an different justice is continued theory as a search in Kansas. approach followed State ry People by the reversal found Small (1980); Kan. 607 P.2d 66 Bryant, 227 (1943). wood, 10 303 306 Mich. N.W.2d Johnson, 222 Kan. recognized (1977). Credibility is also generally be federal cases divide The Alaska, Ahvakana v. as the test Berry standard and the Larri- tween the (Alaska App.1989) — trial Annotation, considered in su son standard credibility of the duty to assess the 657, to be differentiated pra, 59 A.L.R.Fed. probable impact. its evidence and change might possible or by probable credibility, reason standard California Comment, likewise, supra, standard. See recognition that the probable effect in ably Comment, Emory L.J. at 974-75 is not the final arbiter trial court U.L.Rev. at supra, Golden Gate Min falsity of the new evidence. truth (referencing Krasny, United States 316; Cole, 94 nick, Cal.Rptr. People v. Cir.1979), (9th denied 445 F.2d 840 cert. Cal.Rptr. Cal.App.3d L.Ed.2d 775 U.S. S.Ct. applies the credibili Island likewise Rhode (1980)). apparent that neither a con It is Estrada, 537 A.2d 983 ty test State v. the standard nor sistency in statement of (R.I.1988). ap result in any significantly differentiated law, following Pennsylvania consistently plication of either rule can be Mosteller, 284 A.2d 786 reversal least a from consideration of at extracted recanted on the basis of retrial of the federal court significant number *27 Bernstein, Pa.Super. through v. Com. “suggestion” recognized, As is cases. Nelson, 515 A.2d 54 Com. might le test be more that the Larrison appears to Pa. 398 A.2d 636 is, fact, real. illusory more than nient test of reasonable sat follow the Larrison demanding provide less does Larrison however, is, Credibility of truth. isfaction Berry “might” than does ver- standard synonymous almost in the cases used — degree As, “probable” regarding sus example, in of truth. satisfaction — in the certainty that a must have that was the issue con Bernstein where by the trial court—credible recanta on retrial. sidered likelihood of a different result applied in The test also State tion. is “easing” of the standard But (Me.1989) prob Murray, 559 A.2d 361 further by Larrison’s counterbalanced credibility. ability State of effect judge first be con- requirement that the (Me.1987). Preston, Minneso A.2d 305 the recanta- of the truthfulness of vinced state. clearly a standard ta is Larrison tion. (Minn. Erdman, 422 N.W.2d 511 Comment, Emory at 978. supra, 35 L.J. Caldwell, 1988); 322 N.W.2d 574 State v. require conversely, appears to Berry, (Minn.1982); Development, 67 Minn. supra, certainty a different result more that Conversely, L.Rev. ensue, require that the does not would test is followed North probability upon testimony the convic- ness whose truthfulness sure of the judge be as attempts comes tion rests forward recantation. justice by telling the truth. Such a do exacting; the dif- equally tests seem The hardly system consistent with a result is demanding Berry is more is that ference avowedly “would rather let probative value of the re- regarding the 1,000, maybe go free rather than send a emphasizes the while Larrison cantation single person prison. innocent Hence, credibility of the witness. presumption is the It is clear it may present nearly actuality two tests incredibility of recantations that hurdles to a defendant re- equivalent culprit equally here. Yet clear is the questing a new trial. granting of fact that an automatic new Id. recanting testimo- trial motions based on signifi- of these sources or Neither inappropri- ny would be unwarranted and consider a cant number of other authorities judicial ap- ate. What is needed exacting than the most standard even more in- proach to recantations is substantial of each of the two demanding character possible quiry into the circumstances and re- extrapolated to create a rules which is precon- motives in each case without the ma- present is the effort of sult which as to whether the recanta- ceived notions thought of most jority in this decision. ap- The current tion is true or false. system is built current writers is deny proach requires that the court enamoring perjury and de- too far toward recanting motion testi- new trial based to achieve terring efforts of the innocent his or mony unless the defendant meets justice. Donnelly, Unconvicting corrective proving her burden of the initial Innocent, 6 No Vand.L.Rev. approach was false. This to conceive or advocate that one seems allowing the effect of a conviction justification so stricter standard has even reviewing where the stand even judicially adopted for that it should now be equally the recantation finds that Wyoming. testimony, original as the with- credible integrity judicial process allowing opportunity out be accorded a requires that defendants credibility. More consistent pass on that perjured free from the taint of fair trial justice principles of our criminal with the testimony. viability sys- But the system approach permitting be an would requires justice that criminal tem also granting of trials unless the efficiently pub- and that the administered judge is satisfied that the recantation finality judg- lic have faith words, the elimination of false. In other grant- ments. Present standards for regarding recanting presumptions of a new trial false slight adjustment in the testimony and a judicial integrity in cases have sacrificed in motions for new trials proof burden competing their failure to reconcile these safeguards for result in better would present- test interests. The intermediate wrongfully are ac- citizens who innocent resolution ed in this Note offers viable integri- hence add to cused and would *28 to this conflict. A justice system. criminal ty of the of the regard for the honor Note, “fastidious supra, 83 Mich.L.Rev. at 1949. demands that justice” administration and the other recantation As Dotson a refinement be made. such illustrate, recanting testimony is cases weight that generally given Comment, Emory so little some 1008-09 supra, 35 L.J. at principles Mesarosh, un- most fundamental at 77 S.Ct. (quoting of the 352 U.S. justice 8) (footnotes emphasis criminal derlying system our omitted and Comment, pre- supra, disregarded. original). The virtual are often See likewise Mur- invalidity recantations 316. See also sumption of the 11 Santa Clara Law. Perjured continuing in- ray, Obtained sometimes results Convictions View, 27 Ohio Comparative A Testimony: citizens and at- carceration of innocent Whitman, Proposed (1966); A consequences the wit- St.L.J. tendant even when (Wyo. 713 P.2d 1182 Magill, Erickson v. Perjury in to the Problem Solution (1955); 1986); Corporation, Greyhound Courts, Dick.L.Rev. 127 Cimoli Our (Wyo.1962); v. Du Gary 372 P.2d 170 Chandler Black, Judge Sent Why Samuels (1952). Prison, Wyo. 251 P.2d 580 gan, 71 A.B.A.J. 56 Dotson Back to Comment, 1985); supra, 134 (Sept. examining credibility as a con- Even in 1433. U.Pa.L.Rev. cept testimony/new for recanted recognition article which initiated review, In an apparent that dif- motion it is also problems People involved v. Dot- concepts ferentiated are advanced without son, 54 Ill.Dec. Ill.App.3d necessarily having judicial the benefit of concludes: the author N.E.2d recognition orderly procedural meth- of an of examination carefully od for decision. One course courts need to rethink Our recantations, es- to determine is to review current treatment of they in which a victim events as would define pecially in those cases transactional appar- validity, explana- recant is the prosecuting probability or sole what threat, bribe, or other im- ently original perjured testimony, without tion for The courts must struc- proper why change, influence. external factors are what credibility inquiry existent, recantation anything ture the in the nature of is there judicial realistic solu- provide cases to probable validity conduct that relates to arguably an tion for instances which justifica- and what corroboration or other person incarcerated innocent has been supporting applied tion evidence can be may not have even for a crime which impossible effort to assess absolute judicial provision is occurred. Until Smallwood, anything. validity of instances, of mo- made for such denials 303; Martin, N.W.2d 246 P. 647. The sec- “unusual’ tions for new trials in these concept simply to address the recant- ond public out- continue to arouse cases will original tes- ed relation to the judicial cry erode confidence our timony validity.6 an assessment of its as system. Troche, (2nd 213 F.2d United States Cir.1954); Case, Law— Comment, Recent Criminal at 1459 supra, 134 U.Pa.L.Rev. omitted). Considering Discretion in Re- (footnote Judicial Trial, a New cantation as a Ground cases, the volume of the asserted Within 39 Minn.L.Rev. 316 frequently criteria of decision is delineated rule these cases [Small- by contentions of abused discretion. Obvi- suggest represents wood and Martin] discre- ously what we address here is not require- abrupt departure from the tion, question it is the of the test Berry ments of both the Larri- applied. process Discretion as the of dis- as- tests. It seems reasonable to son tinguishing between available choices is not im- newly proposed rule sume that subject addressed. Martin v. Berry-Lar- plicitly contains some (Wyo.1986). parameter the necessi- requirements, such as judge in deter- rison responsibility of the trial ty the recantation material and mining credibility ex- whether reasonable to the defense is the decision of that it became available ists for recanted evidence grants the conclusion of the trial. a directed verdict after contemplates significant shift judgment notwithstanding the verdict. But it or a granting apparent a retrial dif- that another distinction can be The Larrison test It is among following Berry respects. the Larrison con drawn cept. cases test in two other fers from the First, majority here Some address does looks back to the the Larrison standard true, although whether the new evidence is perjured to determine what effect general prior satisfac rule was reasonable decisionmaker, prior *29 had on the prior testimony was false. Larri tion that the anticipates Berry the re- while the standard 82; 511; son, Erdman, 24 F.2d 422 N.W.2d determining what effect the new evi- Caldwell, gymnas 322 N.W.2d 574. The mental on the new decisionmaker. dence would have singularly tics involved are different whether Development, supra, 67 Minn.L.Rev. at 1319. evaluating prior falsity asserted or now deter mining presently what is true. Mosteller, duty judge pato, the trial who is review- 696 P.2d 471. Cf. trial motion: it does not the new A.2d 786. make an require absolute aspect There is another undefined regarding the truth or fal- determination justifies recognition in the results in the Rather, sity recanting testimony. you recanted evidence cases. Do ap- first doubt, he or she is in whenever mo- ply part the Larrison three test or the granted. The tion should be effect of part Berry five or six test and then assess adoption of such a rule can be seen credibility or validity? absolute Or should Troche, clearly in a case like most where general first examination address credi- clearly the trial undecided as bility validity or intrinsic before the other Yet, lying. to when the witness was he separately criteria have been examined? It compelled deny felt the defendant’s may analysis well be in of the cases that motion for a since he was not credibility accepted validity is a consider- fully convinced that the witness’s trial ably upon more difficult burden ap- was false. Under procedural leaving court than is the criteria proach suggested by Smallwood and appellate court to seek the easiest deci- Martin, fully would have been Dunbar, sion first. 522 P.2d 158. justified granting in the defendant’s mo- may, appears Be that is it to me that tion, clearly he wanted do. proper approach these kinds of cases Comment, supra, Emory L.J. particularly when related to recanted (footnotes emphasis origi- omitted and testimony should address foundational nal). or, credibility basis to first assess if the general If one trend can be found test, determinably other to be valid and through the multitude of cases where credi only necessary then if to move review to considered, bility is there is utilized dual newly further criteria whether it is discov- concepts process, of both a United States just ered and not impeaching, material etc. Leibowitz, (7th Cir.1990), 919 F.2d 482 If the trial court makes an initial determi- — U.S. -, cert. denied 111 S.Ct. credibility nation of and then finds the oth- — reh’g L.Ed.2d denied U.S. er Opie, Berry, criteria of or Larrison -, 111 S.Ct. 114 L.Ed.2d 133 exist, justice requires jury does reexami- (1991),7 analysis. and actual events United Dennis, 349; Smallwood, nation. N.E. Mazzanti, (7th States v. 925 F.2d 1026 Cir. 303; Volpato, 10 N.W.2d 696 P.2d 471. 1991). definitive, If the are events credibil Ahvakana, ity lacking. 631; concepts present- These 768 P.2d concerns are Dreissche, particular Van Den 206 N.W. 339. If the ed for examination the cases changed testimony belief, involving itself denies the sole witness recanted testimo- credibility lacking. ny is also Bell v. specifically case which come into this (Fla.1956); 66; Bryant, So.2d 704 case. find the discussion on this issue in Estrada, 537 A majority opinion unpersua- A.2d 983. broad use of the to be both facts and unjustified by existing circumstances test relates to how sive and case law. change equally credibility occurred as considered If materiality we have change. Cole, guilt with what was the 155 Cal. then a sole witness basis of determi- 892; Nelson, Rptr. nation, obviously looking 398 A.2d 636. This we are at a horri- analysis embodies the thesis of of “I fying question care an innocent man whether you say, why” may punished by not what but I wish to improperly know the crimi- speaker’s Mesarosh, in order purpose justice system. to determine the nal 352 U.S. Clearly, process to understand the content. Lacey, 77 S.Ct. 1. This is found most approach. follows cases—first to address and then Vol- only recognized regard promotion surprise 7. That court to sur- is illustrated prise equally applied what bearing acceptance could to assessed of a from a factor validity. requirement recantation to an absolute tendency judicial language acceptance. such be- one, Leibowitz, come ossified in rules is a familiar and it 919 F.2d at 484. *30 majority imposes upon Wyo- now factually presents a what the case next whether Bell, 704; 90 So.2d guilt ming. determination See State basis sole witness sup- (1989); and 568 A.2d 779 body Briggs, a of corroboration 152 Vt. provides separately Robillard, sufficient 146 Vt. porting evidence and 158; Dunbar, 522 P.2d conviction. sustain A.2d 709 The Vermont and Florida Smallwood, 10 N.W.2d 303. reasonably rules are stated to be well satis- testimony given by a material fied that the is first superseding facet of this case jury prob- was false and would witness a time iden- prosecution related to In ably render a different verdict. dependent upon the tes- totally tified event deny duty of the court to concept, it is the recanting and sec- timony of the witness court is not satisfied a trial where the “corroborating evidence” ondly changed testimony after recantation is oc- event could have disproved that true. See however McCallum date. Brown was curred on the stated (Fla.App.1990), the affida- where So.2d supported by case convicted a one witness strong appel- inference of provided vit a prior of bad acts an overview There be resort to lant’s innocence. should expert vouch- occurrence with question in jury hear the witnesses in prosecutrix ing for the justice; interest of Mitchell v. disproved occurrence. other evidence while (Fla.App.1986), return to 493 So.2d 1058 9; Mullins, Solis, 375 S.W.2d 262 So.2d testifying truthfully probable and 832; York, 704 P.2d 1252. change concept originally enunciated result subject of a sole witness On this confined Bell; State, 487 So.2d Feagans subject of recantation within the broader (Fla.App.1986), the determination that newly on dis- motions for new trials based not credible. the recantation evidence, wrong majority on covered Solis, contra, 9. Specifically see 262 So.2d precedent applied Wyoming and national philosophical con- constitutional V. finding. cepts requiring fact Unfortu- nately, just here not for this re- we write BIAS, TRIAL PREJUDICE JUDGE to send Brown to sult-oriented decision PREDETERMINATION AND injustice for prison, but as a creation future cases. Subject. A. How We Get rehearing by ap- Consideration of a

IV(C). emotionally and pellate court is no doubt trial court’s philosophically similar to the MINORITY VIEW—VERMONT particular- trial and consideration of a new AND FLORIDA ly guilt convinced of even when so when analysis, In rule statement and decisional occurs. principal witness recantation conclusions, uniform there is little delivery system scope Regardless, justice nothing that is unanimous in judi- decision of the involving requires motions discretion and many cases within thought and newly ciary to be exercised with discovered for new based by applied evidence, and not perjury. even-handed fairness recanted have, one of the rea- predetermination. This is jurisdictions are There two remand why, jurisdictions, in some apparently recognizing the devia- sons without cases, required reassign- adopted may justify retrial other a standard tion from that I do not equivalency ment.8 This is also the reason have some which would Rules, See, judge retry parties request example, or all that the same U.S.C.S. Court Court Circuit, (1983): subject appeals Appeals Rule 18 which are not Seventh the case. terms, may neverthe- this rule its this court court is Whenever a case tried in a district opinion rule in its or order that this less direct by this court for a new it shall remanded apply shall on remand. reassigned by court for trial the district Pump, Inc. v. District Court See also Town heard before a other than the who Eighteenth Dist. In and For Gallatin prior remand order directs Judicial trial unless the

851 cases, involving of accept Hopkinson the thesis the files both K.B. M.C.X. were contrary jurisdic- placed by law of other also the record court order. tion, Nothing relief record that post-conviction that reveals counsel original proceeding hearing in for Brown that had continuation of ever access challenge to those confidential peremptory judge order that the files in advance and 40.1(b)(1), rule, appellate response counsel will avail- stated in to in- W.R.C.P. not be argument oral quiry at this able to the accused.9 before court that he had not reviewed the contents presents judicial This case two facets of that time. predetermination conduct and are of subject deep Initially, concern. Since the of those sub- recusal trial before addressed, judge any designated not raised jects are it is to rec- was necessary appeal, ognize authorship present issue on questions and im- of fair essentially partial obligation twenty- review comes from the judge or recusal of page monologue an appeal stated as issue on or discussion at new trial hearing litigants. which constituted a lecture by the areWe briefed faced during trial court Brown which the in- with the discussion issue of competence Wyoming Supreme of prin- majority lays which out some broad expertise Court the extraordinary of ciples gratuitous or as dicta discussion principal topics. constituted with which I in total disagreement. am The fact continued B. Basis Factual Presented Issue. disbelieve both Brown and recanted testimony was also clearly communicated. case, This however in deci- structured sion, presents addressing now issue Considering majority addresses deciding status of and what subject of a biased prejudging or the record before he hear- shows held the within provided by the information this bias, prejudice prejudg- about his or dicta, record, is, might as it serve ment. At the on the cases, motion unpleasantly requires for future re- 20,1989, new trial held June an affidavit sponse. very, This is a very difficult and juror original who significant served extremely subject and one about placed record,” “not marked but into past given which this court in cases and, time, juvenile appellate the same the entire less realistic An than attention. 358, (1979); 534, County, (1986); People Griffin, 180 Mont. 590 P.2d 1126 ho P.2d v. 716 1306 Annotation, 169, 509, Disqualification Original Ill.App.3d Trial 124 79 Ill.Dec. 463 N.E.2d Mistrial; Judge 293, judgment to Sit on Retrial Reversal Ill.2d 1063 rev'd 109 93 After Cases, (1975); 774, (1985); Federal 22 A.L.R.Fed. 709 Ill.Dec. 487 N.E.2d 599 Shields v. Annotation, 238, Disqualification Original State, (1976); Ind.App. Trial 348 N.E.2d 36 169 Mistrial, Judge Nix, 1983); (Iowa Sit on Retrial Reversal or Kelly 329 N.W.2d v. 287 Rine After (1974). majority approach State, 60 1975); A.L.R.3d 176 (Iowa hart v. 234 N.W.2d Stahl 649 practice apparently contrary. 46 Geary County County, v. Board Com'rs 198 Am.Jur.2d, See, (1969). Judges, 623, § 184 at 212 (1967); Com., Kan. Harris v. however, Jackson, 323, People v. 391 Mich. 217 (Ky.1956); 296 S.W.2d 700 v. Director Roberts 643, N.W.2d 22 Institution, 172 A.2d Patuxent 226 Md. 880 Edmonson, (Mo. (1961); v. 237 State 438 S.W.2d Court, Hopkinson 9. State ex rel. Teton District State, 1969); (Mont.1981), 624 Coleman v. 633 P.2d cert, 54, (Wyo.), County, 62 696 P.2d 474 denied 1492, 983, denied 455 U.S. 102 S.Ct. rt. ce 187, 865, U.S. 106 S.Ct. 88 L.Ed.2d 155 Satran, (1982); 71 L.Ed.2d 693 Varnson 368 proceeding Wyoming post- held that a under the State, (N.D.1985); N.W.2d Smith 79 N.M. 533 continuing part conviction statute was "a relief 450, (1968); Loray, 961 46 444 P.2d State v. N.J. proceeding.” of the criminal No case law was (1966); 217 A.2d 450 and Ouimette v. Mor support Directly cited to the ‘bald” conclusion. an, (R.I.1988). 855 541 A.2d contrary authority post- which holds that proceeding Unfortunately, separate egregious conviction relief is a civil this mistake was re- States, process again includes: v. United 358 stated without further citation authori- Heflin ty by U.S. 79 S.Ct. n. court in 418 n. this Pote v. J., Huss, (1959); (Wyo.1987) (Urbigkit, dissenting). L.Ed.2d United States v. Cir.1975); (2nd Price, upstream by F.2d swims result-driven State v. This court (Alaska White, App.1986); adaptation body totally within the to be of law (Fla. 1985); So.2d 1377 Paradis v. Ida this issue. alone on factually presented was re-analysis of The first event appropriate or an accurate *32 and submitted on the to the historical an affidavit obtained subject requires return the imperative the constitutional of commencement scheduled premise and the date presented test, here. within the facts The hearing for the motion for new trial. than for a fair and differently stated no part stated: juror affidavit ethical and juror, is that within impartial juror on the case 1. That I was a limitations, not a trial court should legal against Brown. Walter Joe pre- a decision with serve if he undertakes at- approached 2. That I Mr. Brown’s unequivocal having made an disposition or Andrews, torney, George after the ver- of Judi- Wyoming Code advance decision. dict. 3(E)(1) (1990).10 Conduct, Canon cial talk That Mr. Andrews told me to impartial 3. to a fair and litigant is entitled Troughton, to D. District Court process of law under John Due decisionmaker. did, informed the imperatives Judge, I and was state and federal constitutional Const, stand the man Wyo. art. verdict would requires no less. becau[s]e § Const, guess guilty you can’t second Wyo. open art. process; due § yourself. courts. Commentary: judge disqualify shall himself or herself in

10. A lawyer government agency judge’s impartiality A in a does proceeding in which the a ordinarily have an association with other law- including might reasonably questioned, be yers employed by agency within the mean- limited to instances where: 3E(l)(b); judge formerly Section a em- Commentary: however, ployed by government agency, a rule, judge disqualified a is when- Under this pro- disqualify a should or himself herself might reasonably judge’s impartiality ever the ceeding judge’s impartiality might rea- the if regardless any questioned, the be whether sonably questioned because such associa- be 3E(1) apply. specific rules in Section For ex- tion. judge process negoti- ample, were in the if of firm, she, (c) judge he or individ- the knows that ating employment with a law the ually fiduciary, judge’s spouse, or the or as a any judge disqualified matters would be residing, any parent child wherever or oth- or appeared, law unless the in which that firm family residing judge’s er member by parties disqualification was waived the af- household, judge’s has an economic inter- the by judge. the ter disclosure subject controversy or in a est in the matter in judge A should disclose on the record infor- any party proceeding the or has other more to judge parties believes the or mation that could be sub- than de minimis interest lawyers might to the consider relevant their stantially by proceeding; affected the judge question disqualification, the even if (d) judge judge's spouse, or a the or the disqualifica- believes there is no real basis for degree relationship person the third within tion. them, spouse of such a to either of person: or the law, necessity may By decisional the rule of disqualification. For ex- override the rule of (i) party proceeding, or an offi- is a might participate ample, judge required be to cer, party; director or trustee of a statute, judicial salary judicial review aof (ii) lawyer proceeding; acting as a is might only judge or be the available in (hi) by judge more known to have a action, judicial requiring matter immediate minimis interest that could be sub- than de stantially probable cause or a such as a by proceeding; affected restraining temporary the latter order. (iv) judge's knowledge likely to be is to the case, judge must disclose on the record proceeding. witness in the a material possible disqualification and rea- basis use Commentary: to anoth- sonable to the matter efforts transfer lawyer proceeding that a in a The fact judge practicable. er as soon as with a law with which a rela- affiliated firm judge does not tive of itself affiliated (a) judge personal preju- or has a bias judge. appropriate cir- disqualify the Under lawyer, concerning party party’s or a dice cumstances, judge’s impar- that “the the fact knowledge disputed evidentiary personal tiality might reasonably questioned" under concerning proceeding; facts 3E(1), or that the relative is known Section law to have an interest in the firm (b) lawyer served as a in the mat- “substantially that could affected controversy, lawyer or a with whom the proceeding” ter in under Section outcome of during judge previously practiced 3E(l)(d)(iii) judge’s may require disqualifi- law served lawyer concerning as a such association matter, cation. Conduct, Wyoming of Judicial Canon or the had been a material wit- Code omitted). 3(E)(1) (1990) (footnotes it; concerning ness 20, 1989, just yourself 4. That on June Tom E. to committ have [sic] Barnes, attorney Brown’s current Mr. doing possible job the best you can I to me and indicated was free to talked do. carefully You have to listen to what case, to talk about and I refuse say. the witnesses have You have to subpoenaed or not be forced into would carefully listen lawyers to what the have fashion or manner. Court say. You have to carefully listen agreed I discuss the case. your jurors what own fellow say. have to Kathy told Brown has now recanted carefully evidence, You study have *33 regarding August her the 12th comes, and you then when the times have incident for Mr. Brown was con- you right. to do think is what And after victed, prior but consistent with sex- you your have consulted with ju- fellow ual abuse. rors done things and all those and I 6. At trial could not come to terms you you have made decision when think fully as to what constitutes reasonable one, right you is the then don’t back off doubt; however, after further discussion tell McCarty it. You Mrs. that it’s not members, willfully with I to voted you making like were alone in the deci- convict, entirely but was not comfortable sion. You people had eleven other to the with result. to, talk to listen to. It’s like being a 7. As the result of further infor- who all himself no with one given, I simply mation was which was to, him, to help talk no one to no one to Kathy Brown that had recanted her testi- point errors, his or out mistakes no mony, I feel the verdict would most like- point one to balance off his of view. You ly be different if this information was McCarty, tell you Mrs. have trial; however, because that presented say I cannot assistance, may help kind of then what others have convinced me of. you making right chances of decision The trial court then discussed this sub- are times tell eleven better. You Mrs. ject provided part twenty-page as as your McCarty, have faith fellow man. specific decisional statement included your jurors. Have faith in fellow And reference: they you that remember convinced When juror McCarty a such as Juror they guilt were convinced of Mr. up suffering agony judges calls that jurors face, guess And agony often that Brown. so don’t second elev- things arises from the about which I en people yourself. other or Remember just spoken you, have to agony that the reason that there are twelve you begin guess arises to because second guard people against is to being mistakes yourselves, juror a such as Mrs. made. It’s called collective wisdom. McCarty suffering calls such agony, if finally, you McCarty And tell Mrs. that it you sensitivity, any hope have and I I really doesn’t matter because it’s not some, do you you try have what to your make, if decision it’s person. you comfort a If any- such care you, McCarty, comfort then Mrs. [this thing beings you about them as human judge] you agreed he wants to know that see beings don’t want to human suffer. jury; verdict that he you’re Particularly judge you if a don’t agreed guilty Mr. Brown was be- person want see such as Mrs. yond then a reasonable doubt. And what McCarty getting the kinds of ulcers that happens, it comes back that [I] tell[] Judge got. Ranck so you And what do McCarty guilty Mrs. Mr. Brown is any- you try do: You I reassure her. tried things way. get That’s how twisted. McCarty. I Mrs. told her reassure game played It’s of like kind we her, things. McCarty, several told Mrs. hear’, you pass school ‘did it you guess yourself. can’t second along. passed from Each time it’s one thing you being first learn something gets mouth to the other lost in you just guess is that can’t second yourself. you you What have do the translation. closed mind carried forward presented is what a continued difficulty

The further realistically af- of both from the first trial which juvenile records is revealed which, far the record K.B. as no consideration of M.C.X.and forded substantive reveals, to counsel not available matter of the recantation no matter, after prior, Brown for that might have been. what evidence have re- appear to hearing. Those records adequate Wyoming has an number time shortly before the until mained sealed judicial system judges so that the need when the entire was held argument oral appearance of subject predeter to an files, record, including the confidential instead of fairness and will mined decision by this writer. were reviewed deciding. I remain ingness to listen before earlier, year juvenile At over happier Story, no Ur about sent to the Girls’ School M.C.X. was J., dissenting, in dis bigkit, as evidenced juvenile specifi- Sheridan, Wyoming. in a sent similar situation because directly cally restated what portrayed Wyoming untidiness about she already apparently knew—that *34 against factu judicial system. Tested this testimony which had created her recanted record, Wyoming one case cited does al the her guilt the of the crime and established constitutionally justify procedurally not or Although not original father in the trial. taken. v. support the conclusion Cline or stated, directly is clear (Wyo.1979) Sawyer, 600 P.2d 725 involved validity of rejected specifically court the and, in relationship the chal an associated disposition he in recantation the cause, the lenge way related in no juvenile by commitment the then made present appeal here. presented issue This Board of jurisdiction of the State provide certainly duty not a to sit does for confinement at and Reforms Charities the deci justifying edifice new trial motion of her in instead the Girls’ School Sheridan (and preannounced) by predisposed sion a family. her The trial choice to return to judge. trial placement by de- apparently resolved mother had to aban- termination VI(A). father), (the she con- don her husband who innocent, or the tinually claimed to be LAW ON PEREMPTORY OR WYOMING resume daughter permitted would JUDGES FOR CHALLENGES OF relationship with her mother. family 40.1(b) CAUSE—PRESENT W.R.C.P. perspective It dis- is this within (e) 23(d) AND and W.R.Cr.P. and agree majority’s conclusion in history peremptory right of a The “duty to We particular judicial a serve.” change judge first introduced who, presented judge are with a by thir- Wyoming law statute proceeding based on advance of a new trial statehood, it, years and like a teen before recantation, expressed principal a change provision has had a some- of venue guilt opinion about the unqualified an rocky path application; what one rever- presence the accused and then regard- sal before statehood and none since witness, rejected her principal accusatory discretionary right of the trial court hearing when Brown was recantation at However, change change venue. subsequently present neither nor advised provi- judge peremptory itself was impartial The had been said. what Const, Wyoming except law sion remained equal- 10 required by Wyo. art. § statutorily adopted brief time when the overtly prede- ly applies ato who and, right was eliminated because of the case initiation of termined before objection of the trial bar to vociferous a discretional decision change, Wyo. quickly then reinstated. See grant deny the new trial. made to (1877); 1 Revised Statutes twenty-page monologue Sess.Laws significance of the § Wyoming (1877); Story, P.2d 3400 788 showing much of trial court not so § 617; State, by v. 771 P.2d 798 Supreme Smallwood impatience with this Court name, I, (Wyo.1989); Ins. Co. v. First writer’s dissent Brown Continental

855 Bank, N.A., Wyoming (Wyo. 771 374 P.2d this nation’s case law authoritative Blanchard, 770 Blanchard v. 1989); equivalently P.2d are texts restrictive. For State, v. Garnett (Wyo.1989); 769 P.2d reasons not clarified in case or historical State, Lozano (Wyo.1989); P.2d information, rules, this court’s W.R.C.P. Gosar, Cordova v. (Wyo.1988); 40.1(b) 23(d), procedural- W.R.Cr.P. are State, Pote (Wyo.1986); P.2d 695 ly different. By (Wyo.1985); Kobos P.2d 617 Wyoming provides: civil rule Through Sugden, Kobos v. 694 P.2d 110 (1) Peremptory Disqualification. —A Manning, Osborn (Wyo.1985); 685 P.2d district may peremptorily dis- Hopkinson, 679 P.2d (Wyo.1984); qualified acting by a case 1008; Grubbs v. (Wyo. 669 P.2d 929 filing of a motion requesting that he be River, Kimbley v. City 1983); Green disqualified. so The motion shall be filed Norman v. City (Wyo.1983); 663 P.2d 871 plaintiff by a complaint the time the Gillette, P.2d (Wyo.1983); Os filed, designating disqual- to be borne v. District Court Ninth Judicial ified. The motion shall be filed Dist., Cline, (Wyo.1982); 654 P.2d 124 defendant at or before time the first 725; Smith v. 598 P.2d 1389 responsive pleading is filed him or (Wyo.1979); Meyer Meyer, 538 P.2d 293 thirty within days after service of Barbour, (Wyo.1975); Barbour v. him, complaint whichever first Ranch, S-Creek Inc. v. Mo (Wyo.1974); party occurs. One made action Co., nier & (Wyo.1974); *35 subsequent filing of the first re- Gilliland, v. Rhoads (Wyo. 514 P.2d 202 sponsive pleading aby defendant cannot 1973); State ex rel. Johnston v. District peremptorily disqualify judge. a any In County, Court Platte 495 P.2d 255 of matter, party may a exercise peremp- State, Higby v. (Wyo.1972); 485 P.2d 380 tory disqualification only (1) one time and Lonabaugh, Leitner v. (Wyo.1971); 402 (1) against judge. one (Wyo.1965); Stroup City v. P.2d 713 of (2) Disqualification for Sheridan, Cause. —When- P.2d State (Wyo.1964); 392 517 grounds ever the for such motion become ex rel. Petro v. District Court Sheridan of known, may County, any party move for (Wyo.1964); P.2d a In re 389 921 Dist., change Valley judge ground of Greybull Irr. 479, district Wyo. 52 76 339, presiding (A) reh’g 52 479, judge denied Wyo. been 77 (1938); engaged prior in the Washakie Livestock Loan P.2d 617 as counsel action to Meigh, Wyo. Co. 161, (B) v. appointment judge, 47 his election or as (1934); Snow, Tucker v. ex action, (C) in State rel. is interested 35 related Aspoli Wyo. (1926); (D) P. by consanguinity 251 460 a party, is a State, 210, 137 (1914); 22 Wyo. P. Mur action, (E) 577 material in or State, dica v. Wyo. 22 prejudiced against 137 P. or party 574 biased or Quinn, 21 Wyo. (1914); Huhn v. P. 128 The sup- his counsel. motion shall be (1912); Ross Wyo. 8 57 P. ported by an or affidavit affidavits of Moore, re (1899); 4 Wyo. 31 P. person persons, any stating or sufficient Church, (1893); and Dolan v. Wyo. of facts show the existence such also (1875). Comment, See Civil and grounds. hearing Prior to a on the mo- Criminal Disqualification any party may tion file counter-affida- Procedure — of Judges Prejudice Wyo District presiding judge vits. The rule shall on ming, (1971) VI & Land Water L.Rev. 743 grants the motion and if the same he Larson, Exiling a Wyoming Judge, immediately shall call another district Wyo.L.J. judge try action. Ruling. (3) ruling of on apparent weight The Effect a or assumed bal- —A change judge for a of Wyoming ance case motion district law seems to order, appealable clearly solidity favor institutional shall not be an but the disfa- challenges ruling vor prejudice the bias or shall on the docket and be entered , judge. provided The by part may standards a of the record and made be try appeal judge ruling in an district the action. A assigned as error change judge on a motion for a of district case. order, appealable shall be but the (4) Judge. presiding Motion —The ruling entered motion shall be on the docket and may any time his own record, appears part may a change a made be order promot- justice assigned appeal the ends of would be error in an thereby. ed case. (5) any contro- Matters. —In Probate W.R.Cr.P. 23. arising pro- probate a

verted matter ceeding, change judge, or cases VI(B). demandable, transfer of where both, OF may be had for cause INVALIDITY PRECEDENT change in a civil action. BY authorizing such CITED MAJORITY change shall procedure for such be by majority lack cases cited both Except this rule. accordance with comparability persuasion for the factu- the determination such controverted presented Ingram al situation here. matter, juris- judge having original Grimes, 213 Ga. S.E.2d 914 proceeding probate shall diction such applied factually cannot be since chal- jurisdiction retain all other matters in lenged comment of court came after proceeding. connection with said which, the verdict under the law 40.1(b). The criminal rule is dif- W.R.C.P. Georgia, disqualified would have ferently stated: presiding subsequent him from at a retrial (d) Peremptory disqualification. —A presented issue of the case. The was dis- may peremptorily dis- district qualification enter the and in- sentence acting qualified from a case nothing in the of new volved nature evi- filing requesting that he of motion or a relating dence to a new trial. disqualified. The shall be filed so motion Ga.App. Johnson S.E. time by the state at the the information *36 (1933) more helpful is no since the filed, designating or indictment is the appellate finite the court was decision of to judge disqualified. to The motion the reverse trial court denial of the new by at the shall be filed a defendant time granted trial and then since a new trial was following en- arraignment of his the ground, judge by on another the statute try designating judge his plea, of the to presiding be disqualified would at matter, disqualified. any party a that retrial. may peremptory disqualifi- exercise the jocular attempt A as comment “an only against only cation one time and * * * levity to ease the tensions of the (1) judge. one mandatory for case” did not suffice recusal (e) Disqualification cause.— Shaw S.C. S.E.2d grounds motion Whenever the for such (1981). Nevertheless, a different known, the or the defen- become state judge post-conviction the conducted relief may change dant move for a of district proceeding hearing in the case. A bail judge ground presiding required provided rule by determination against prejudiced is or the biased trial standards in advance of the is state, attorney, de- prosecuting the the comparable nor relevant. likewise neither attorney. fendant or his The motion Pa.Super. Strange, Com. by supported shall be an affidavit or (1981). Similarly, I would then A.2d any person persons affidavits or stat- of only reject the last citation where the issue ing the existence sufficient facts show argument as a the raised bias involved trial ground. hearing of Prior on such to a the record judge’s knowledge prior of of party file may the motion counter- Kimmel, 202 Kan. judge shall the defendant. State presiding affidavits. The motion, Any grants on P.2d 19 reasonable rule the if he the immediately judicial practical same shall in another faith in fairness and facts call that in of vided recognize population adjudicatory areas small decision the on sub- ject of Wyoming, exposed like the is to a recantation as a of measure his generic knowledge persons opinion substantially of who come of advance the participants held on community into court the the motion for new trial. society. concept Within the the pos- cases now tured for resolution of rules for future foregoing provided the The cases total cases, issue prejudgment. the authority majority utilized to estab- ethics, a judicial regarding lish rules bias and There is current Colorado case with predetermination. opinion of similar finitely point. The facts which is Es court, be, Hardeman, may tep (Colo.1985) or dicta volunteered as it raises issues of future use and relevance has the same almost identical factual situa tion, pose par- except most serious concerns and Estep, judge’s views ticularly palliate Here, if so used not what were communicated to they counsel. happened here set were day but to a standard for not known until the of the hear interpretation regard future application regard, one and in the second Wyoming substantially Code Judicial Conduct. until after the decision.

Estep a involved motion for a new trial. importance credibility VI(C). had subject witness who been ad THE LAW THE OF UNITED vance credibility denied was obvious. The TODAY STATES appellate recognized premature court questioning potential of a Contrary suggestion majori- legally require witness was sufficient to ty, large there a very reservoir of au- disqualification prior hear First, thority. find cases cited to ing on the motion for the new trial. justify judge’s retention import judge’s tenor com- non-persuasive case retrial both regarding ment credibility Estep’s inapplicable. Secondly, consideration of [petitioner] prospective witnesses were self-judging severely standard limit- premature such as to constitute deter- recognized ed in a fashion not the broad- mination ly witnesses were stated conclusion that the trial suggest predisposition truthful and right legal to consider the sufficiency part the respondent’s [judge] deny alleged disqualifica- require facts petitioner’s post-conviction motion for re- Third, tion. little no authority current predisposition lief. regarding Such explication retains the forsaken *37 witnesses, potential of at a judge duty justification has a to serve for time no yet been that a prejudiced adjudicator biased or witnesses, only offered those can should remain on the case. to Duty serve goal providing peti- frustrate the of the is longer justification no for non-recusal. a meaningful hearing tioner with before question preclu- is the existence of a impartial an Prejudgments tribunal. re- sive of attitude unfairness char- otherwise garding quality the of to evidence be prejudice pre- acterized as bias or just or heard not duty are consistent with the of judgment listening before facts be the trial court to an deci- reach unbiased presented. Impartiality open-minded- and weighing sion after the all evidence. judge right ness of the trial is an absolute litigant indispensable the and an stan- (footnotes omitted). Id. at 526-27 justice dard the delivery system. within review, For con- further a valuable and subject Lewis, This is a case on its facts if provided by the siderate discussion is presented had been and appeal Systemic briefed Due Process: Procedural Con- may where the trial cepts Recusal, have first ex- and the Problem U. of pressed opinion guilt (1990). a finite a in part of Kan.L.Rev. 381 Included juror after rendition of the verdict and in the author’s broad evaluation was the appeal pending pro- while an and then statement: of re-emphasized in consideration Canon impartial decision- independent and

An 3(C)(1) that of Judicial Conduct function- Code crucial to the effective maker is “ ‘in a requirement disqualification of justice system. As former our of might impartiality proceedings in which his Supreme Court Justice Chief California ” requires reasonably questioned’ also Roger Traynor before Senate stated Committee, analysis likely “is independent that flow Judiciary “[a]n case This is indispensable participation in the at issue.” judiciary is and honorable relationship actual and the close between justice society. A should our impartiality and is found in maintaining, apparent establishing, participate public objective perception. standard of enforcing, himself ob- and should serve, so that high standards conduct question preju- particular A of bias independence of the integrity pre- presented pre-hearing here is or dice A may preserved.” biased judiciary showing mind-set or factu- trial statements legitimacy judiciary threatens One for characterization opinion. al source legal process. Over one hundred entire categorization, recognizing after first a lack of years ago court noted may non-applicability of have oc- what impartiality beyond its judicial extends during process trial or curred in- parties question effect on itself, (1981). Judges 48A is C.J.S. § judicial system: tegrity of the entire generally is “On the other hand it held ought to be astute to Court feeling, partisan or the

“[T]he the exhibition of distinctions refined and subtle showing discover unnecessary expression opinion, operation thereof, a from the to save case prejudice, appearance or on bias or maxim, one can be a prejudgment or of the matter in issue [‘No principle it his own when the Id. at 770-71 disqualify judge.” cause’] will bespeaks propriety added). of its (emphasis embodies rights of application. The immediate reference to the voluminous nature Some objects litigants are not the required case is to address this law public policy, A the rule. sound opinion and stated subject of determined every preserving tribu- interested hearing by judge.11 advance of discredit, appointed law from nal circumstances, Under certain observance.” imperiously demands its disqualifica- required raise issue application light of the inconsistent such case is tion on his own motion. One standards, existing a new re- recusal attorney or his where the defendant approach apply needed will cusal made present when the statement was judicial im- rules to all areas of uniform reflecting predecision prejudgment of propriety. a When biased decisionmaker Peo- significant the court on a issue. See sits, legal legitima- process loses its Gibson, Mich.App. ple Thus, against cy. protections abuses Dixson, People N.W.2d as judicial relationship bias or are neces- (1978). Mich. 267 N.W.2d See sary safeguards against pe- abuse of 91 N.M. also Doe cuniary interest. *38 (quoting at v.

Id. 409-10 Stockwell Town- apparent It is that two differentiated 341, (1871) Bd., ship 22 Mich. 350 and developed. requires One standards have omitted). footnotes judge recusal when a reasonable would Ins. necessary to do so. Aetna The Alaska court Perotti v. 806 find Life 1580, (Alaska Lavoie, 813, 325, recently 475 U.S. 106 S.Ct. App.1991) 327 Co. v. 11. do not include 437, (1927). Obviously, v. L.Ed. Laird I the authorities which raise 71 749 824, 7, pecuniary Tatum, parallel issues of different 409 93 S.Ct. 34 L.Ed.2d 50 U.S. Acquisition Liljeberg v. Health Services (1972) interest. directly involves ethical standard factors 847, 2194, Corp., S.Ct. 100 486 U.S. 108 L.Ed.2d pre-hearing statements. See also State Lavoie, (1988); 855 Aetna Ins. Co. v. 475 Madison, Inc., Appliance Life TV and American of 1580, 813, (1986); U.S. 106 89 823 S.Ct. L.Ed.2d 175, (1989). Wis.2d 443 N.W.2d 662 151 Ohio, 510, Tumey 273 47 S.Ct. v. State U.S.

859 (1986). approach required 823 This is or provided, 89 L.Ed.2d is another process hearing from a relat- should be called for analyzed due criteria decision. Orderville Irr. Co., Co. v. litigant. established effect on the Glendale Irr. 17 ed to the 282, (1965). Utah.2d 825, 616 Co., Ins. 475 U.S. 106 Aetna at Life 1587; Couch, at States v. 896 S.Ct. United VI(D). (5th Cir.1990). F.2d 78 requires disqualifica The other standard EVIDENCED PREDETERMINATION any proceeding in impar REQUIRES tion in which his BY ANY RULE might reasonably questioned tiality as a REVERSAL public perception. Liljeberg matter Unacceptable trial predisposition court Acquisition Corp., Health Services 486 catalogued in the cases in a multitude 847, 2194, 108 U.S. S.Ct. 100 L.Ed.2d 855 ways, although every case addresses the (1988); Couch, justice F.2d at A 896 82. goal impartial same trial court who —an satisfy appearance justice, must has not pending determined the matter in 1165, of Yagman, 796 opinion Matter F.2d advance of the decisional or trial. and reh’g amended denied 803 F.2d 1085 712, Burrows v. Forrest City, 260 Ark. 543 granted mandamus 815 F.2d 575 S.W.2d 490 suspend- involved a (9th Cir.), cert. 484 denied U.S. 108 ed sentence revocation where the exasper- “ (1987); S.Ct. L.Ed.2d United ated told counsel in advance ‘that Diaz, (2nd Cir.1986). 797 F.2d 99 States Defendant bring should his toothbrush This second standard is specifically now him if guilty, because he is found ishe going straight jail’ restated the American Bar Along Association ”. with other comments, adopted appellate Code and this state court “the found judge’s Wyoming impartiality in the Code of Judicial It exercise Conduct. judicial impaired.” discretion explicitly 3(E)(1)(a) stated in Id. ap Canon an 543 S.W.2d 493. propriate commentary. See State ex rel. Goeke, (Mo. Wesolich v. S.W.2d York the New case of Sherk v. Cate App.1990), which included a discussion of na, 235 A.D. 255 N.Y.S. ap Canons of Judicial This Conduct. (1932), the trial court at the end of retrial “ proach develops from a standard stated that retrial of this case ‘[t]he proper public maintenance of a perception confirms the conviction that had on reliability, validity and the intrinsic in first trial that neither of the defendants tegrity judiciary.12 worthy They of belief. would both swear ” anything.’ supreme court then corollary There is a rule firmly also es- recognized: challenged tablished will not obvious, statements, It is from such determine contested issues of fact directed justice preju- biased request adequate If recusal. facts are against diced said defendants at the com- alleged judicial as a criteria of conduct to mencement second trial. Under require recusal, immediate action to with- circumstances, they we think were required. draw is Truthfulness entitled have the case tried before questioned by judge. facts cannot be justice, another their motion Com., Ky. Lester v. S.W.2d granted. that effect should have been (1933). history. This rule extended Id. 255 at 316. N.Y.S. Parks, 104

Dickenson v. Fla. 140 So. Berry Berry, 654 S.W.2d calling The trial defendants Cf. (Mo.App.1983). If inquiry prosecution factual “bad at the bastards” close legal system principle public Our is based cial office as and strive en- trust fair, independent, competent judi- legal that an hance and maintain confidence in our *39 ciary interpret apply system. judge will and laws the that The is an arbiter of facts and govern judiciary disputes highly us. of The role the is central law for the resolution of and a concepts justice government symbol to American of the and rule visible of under the rule of Intrinsic all law. to sections of this Code of law. Conduct, precepts judges, individually Wyoming are the that and Code of Judicial Preamble collectively, respect (1990). judi- must and honor Nordstrom, judg- judge. of The final in tion another acceptable not State v. was 601, (1979): ment rendered in this case is erroneous. 412, 408 A.2d 602-03 122 R.I. during Although the evidence submitted 55 S.W. at 907. Id. “ presentation the state's the course of you can call all witnesses ‘[Y]ou * * * ordinary sen- person would warrant in want, resulted like effect but in conduct to be horrified at the sibilities 1027, Ark. 593 S.W.2d Ross by to the various defendants ascribed Willcox, 475, Leonard v. See witnesses, familiar prosecution it is a 195, (1928), Vt. 142 A. 762 a case keep must principle judicial that officers Impa predisposition. in similar admitted until entire case open their minds predisposition and were considered tience arguments of counsel concluded and Lovelady, 691 in reversal in runs duty This often 364, have been heard. (Mo.App.1985): 367-68 S.W.2d reaction. counter to natural human There related this are two features Nevertheless, required in order to it cause which called for sustention adjudi- system of criminal vindicate our The first disqualification. the motion for con- cation. are thus constrained to We emp- positive and judge’s feature clude the defendants were entitled that to pronouncements hatic with reference their for mis- granting motion disease the tendered defense mental this trial under the circumstances excluding responsibility, and or defect case. for mental examinations. motions Similarly proscribed was open public ^{[*] [*] [*] [*] [*] [*]} comment of the court advance conspic- feature which is second “ going that ‘I’m disbarment judge’s record is the undis- uous attorney] thing if it’s the last disbar [the guised impatience with the attor- defense ” 572, Com., Ky. do.’ ever Clarke particular, and Mr. neys, with Locascio (1935). (He not: 82 S.W.2d did it the lat- which seemed be caused thing least for the last he ever did—at was ter’s of the mental disease assertion recog- subject). appellate that filing his the mo- defect defense and nized: tions the mental examinations. If, fact, re- judge did make the expressed An intent in advance adverse him, under our mark attributed to and Leighton the state dictated recusal in rule it taken as well-established must be Henderson, 220 Tenn. 414 S.W.2d true, already pre- it indicated he had Cameron, (quoting In re attorney], against

judged the case [the (1912)): Tenn. 76-77 151 S.W. “ * * * he have vacated the bench. should principle is The fundamental 82 S.W.2d at 823-24. likewise Giv- parties litigant Id. See are to an that entitled * * * Crawshaw, Ky.L.Rptr. im- judge. ens v. Lord it is of impartial But importance, justice where not S.W. mense men, judge in the only truth found shall administered sup- condemning they shall no sound reason for evaluation of the affidavit have * * * bolter”, e.g., had not litigant posing “was that it is administered. say principle fundamental supported judge prior elec- We is a * * * impartial. rejected recusal shall tion. Denial of judgment reversed. appeal and the adverse “Beyond according it is question compel over course of law to a man due part history is a of the current It protest try his case before a antagonisms occur day that severe often it, has an- already decided that, who regulars, between bolters nounced that decision advance too, upon any desire or without intention hearing. equally that such It is true wrong part of either to the other. It * * * justice. compulsion is a denial that, under the circum- seems to us all “ * * * safer, stances, have va- have been far should It would however, bench, permitted and more accordance cated the selec- *40 situation, proprieties of the after hav- This is a matter which does not alone (in parties concern charges litigation. formulated the the form to this decision), charges of and not of to have Leonard, 142 A. at 772. interchanged judge some other right every person “The of accused of case, try personal in view of the crime impartial trial, to have a fair and feeling by which he entertained reason of before an unbiased court unpreju and an gross discourtesy to which he had diced jury, is a principle fundamental * * subjected by

been counsel in the matters jurisprudence” criminal *. Not leading up present controversy. prejudice, must there be no actual or not, this, however, He did do nor was he implied, appearance but even the prej so; to do bound but he was bound not to udice must impor be avoided. “Next in advance, orally decide the case in either duty tance to rendering right by record, put upon or a decision judgment, doing eous is that of it in such language copied shown into this beget a manner as suspicion will no opinion. Having matter, so decided the integrity fairness and judge”***. immediately incompetent he became try it.” People Co., Inc., Const. Greenfield 89, A.D.2d 368 N.Y.S.2d The volume of these cases enunciate a (quoting People McLaughlin, 150 N.Y. difference between an undisclosed attitude 365, 375, (1896); 44 N.E. People being, which is the nature of the human Pleas, Common 18 Wend. Suffolk jurist, or

whether not a and the disclosed (1836); People Naimark, receipt decision before final of all of the 760, 764, (1913)). A.D. 139 N.Y.S. evidence. any It is not if sentencing better when expression opinion An by judge upon the trial court references extraneous question disqualify law does not him “ says, * * * sources and I ‘so heard considerable upon hearing another of the case. him, about and therefore I feel it unneces- Judge Willcox, proceed- But in all of the sary pre-sentence investigation to have a him, ings before sat as a trier of fact. It ” I ready am to sentence.’ Com. v. that, has held opinion been while an held Schwartz, Pa.Super. 170, 406 A.2d juror as to the merits of the case upon which he is called to sit will not vant, ters which have mer port which, presumably, is material and rele- reached, opinion will do so. es doubt that disqualify * * * disqualified ^[******] of which he does not will When a he has admitted his him, change of the same himself from transpired evidence his conviction then * * * expression feels and issue, covering since a for- proceeding know, bias, express- of that mat- pur- judgment. cate the case.” ciently alleged, providing Rowe, “Where a ure course of cases “ ‘things The Florida courts have a consistent might pull general following the shirt off 96 Fla. are not take the hide statutory disqualification rule See, statements reversing just right, Id. [of 118 So. at 10. then example, judges * * * should not stated on for recusal fail evidencing pre defendant], and am with it[.]’ statement, Brown v. (1928)— is suffi appeal: adjudi going ” hearing. litigant Dickenson, further in the A ought 140 So. at 462 stated: compelled not to be submit to a proper judge] It was to exam- [the already confessedly prejudged who has ine the purpose affidavit for the of deter- him, enough and who is candid to an- mining whether not it met all the advance, nounce his decision and his requirements of the statute and to deter- serious doubt that he would do otherwise legal sufficiency. mine its He has no it, than adhere to no right matter what the pass upon falsity the truth or ** * might evidence alleged therein; be. the facts neither can he *41 862 1337, Cir.1972), (5th providing question disqualifi- F.2d 1341 of his

adjudicate the legally finds to another case the defen If he the affidavit reference where cation. sufficient, no every is left with alternative “as a man ‘who he dant was referred to cause, directed body certainly shady retire from the but to a charac admits et al. v. United by Berger 458, the statute. ”; Knapp 232 F.2d Kinsey, v. ter[.]’ 22, 230, States, 41 65 L.Ed. (6th Cir.), U.S. S.Ct. 465, 255 235 129 reh’g denied F.2d 42, 481; State, 95 Fla. 115 So. v. Suarez 892, 131, 352 77 1 cert. denied U.S. S.Ct. (1956); Connelly 86 v. L.Ed.2d United In Dist. Court and For Southern States Rev- ex rel. Arnold v. likewise State See Cal., Div., 191 692 Di st. Cen. F.2d 218, (Fla.App.1959)(quot- 223 els, 113 So.2d of Cir.1951), (9th open hostility predeter Parks, 141 rel. Davis v. Fla. State ex politically recusal in mination mandated 613, (1939); 516, 194 So. 615 State v. case; sensitive and Moskun v. United Steele, (Fla.App.1977); 398 Irwin 348 So.2d (6th Cir.1944). States, 143 F.2d Predis 129 1108, Marko, reh’g 419 denied 417 So.2d position partisanship ad trial Dickenson, (Fla.App.1982); and So.2d 1198 232 F.2d at Knapp, dressed 465: 462), proceeding a where 140 So. rights a court set forth: One of the fundamental of supreme litigant judicial system under our is that the doc- “This Court is committed to he entitled a fair trial a fair is every litigant is entitled to trine that tribunal, requires and that fairness an neutrality nothing than cold of less prejudice duty absence actual bias impartial judge. It is the Murchison, trial In re 349 guard right of the case. scrupulously Courts 133, 136, 623, [625], 99 attempting exer- U.S. 75 S.Ct. to refrain from 942; Muskegon any matter L.Ed. jurisdiction cise where Talbert Con 345, 348, seriously Co., so is 305 Mich. 9 disqualification do struction any brought principle question. The exercise N.W.2d 572. If this basic judi- violated, policy judgment tends to discredit must be other reversed. Murchison, ciary and shadow the administration supra; Berger In re States, 22, 230, justice. 255 U.S. 41 S.Ct. United States, found al court after prompt Similar trality is der sitting in bar stances.” question to should excuse should (1921); “Prejudice “ * * * grounds judge against whom ^{[*] [*]} federal cases: precluded continuation of not and circumstances is shadowed or the trial of a cause whose U.S. Incf. recuse There ^{[*] [*]} raise, but, prejudgment himself under the circum- re every himself. ^[*] is no reason ^[*] a modicum of Murchison, judge cause, S.Ct. Berger even raised, ^{[*] [*]} reason statements warranted in No if predicated questioned.” raised as a a delicate ^[*] v. United ^[*] should be 349 U.S. 65 L.Ed. why why reason, the tri neu- ^{[*] [*]} un- he he Przybylinski v. tion of Blakely luminous N.E.2d 194 (1944), ration, Illustrative state decisions within the vo trial. Phelps, qualification of the may appear during the trial may acts or statements on his 6 65 L.Ed. Bias or Cir., actions trial. exhibit itself guilt. Real Estate precedent 143 statement 5 481; prejudice Cir., If (1960); Ill.App. furnishes the basis F.2d it Moskun v. United Scott, is known to exist include: 129, 130; Noel Improvement Corpo indicating predisposi prior F.2d 562. in the conduct of Ill.2d part to conduct the People part. N.E.2d 621 N.L.R.B. reason of Bank v. for dis- States, ex before judge Or it rel. referencing case of Lon- (1955); the earlier L.Ed. 942 75 S.Ct. (8th 265 P. 139 Ogden, 130 Okl. Massey, 594 F.2d 676 don v. United States v. Cir.1979); Womack, is recited the consensus rule United States v. *42 411, Miller, 606, v. 168 33 P.2d rule it is the of no Okl. result dishonest mo Hearn (1934): tives, by 507 and he whose acts are affected prejudice usually is unconscious of its respondent

While the insists that he is greatest delicacy influence. The should petitioners, unfriendly not to the and constantly part be observed of impartial that he can afford a fair and judges, they to the end that trial, never act and his while we do not doubt sinc- where there could be substantial doubt erity regard, yet question in this is they whether would be free from bias. so much whether he feels and insists not The courts proprie must observe such give that he would be able to a fair and ties, only they right, not because are trial, ‘but impartial as it is whether his utter- in public respect order to retain and se and been such ances actions have as to willing ready cure and obedience to their preclude feeling men from reasonable judgments.’ Packard, Nordloh v. 45 impartial that a fair and without 515, 101 Colo. Pac. ‘Caesar prejudice, or demand bias could be had before ed only that his wife not should be virtu principle upon him. The basic which the ous, suspicion; beyond and litigant the state every rests is that is law entitled should exacting not be less with its to have his contentions heard and his judicial officers, keeping in whose impartial, are rights by determined unbi- placed, interests, ased, not the financial unprejudiced tribunal. This honor, liberty, but the substance, and the language, lives was used and citizens, of its and it should see to it that applied supra, London Ogden, v. [130 rights scales in 89, of the 139], and Okl. 265 P. it is a well- citizens weighed nicely are should be bal by established rule all of authorities. anced, for, by well Judge said Mexico, quoting Berger, New 255 U.S. Bronson People v. Com. Suffolk 36, 234, 41 at S.Ct. at followed a similar Pleas, 18 Wend. 550: “Next [N.Y.] pathway Anaya State ex rel. v. Scarbor importance duty rendering 702, (1966). 75 N.M. P.2d ough, 410 732 righteous judgment, doing is that of init court first That maintained: beget such a suspicion manner as will no “ * * * To commit to a deci- integrity fairness and upon gives sion truth of facts ’ judge.” State ex rel. Barnard v. against chance the evil which the 8, Board Education Wash. 52 P. [19 remedy section is by ap- directed. The * * * ” 317, 317], 40 supra. L.R.A. inadequate. peal It comes after the Scarborough, 410 P.2d 738. See like- prejudice trial and if it has exist[s] wise, result, in concept and Calhoun v. judgment worked its evil and a of it in a Superior Diego County, Court San reviewing precarious. goes tribunal is It 257, (1958); Cal.2d 331 P.2d 648 Geer v. by presumptions, there fortified Hall, (1958); Colo. nothing can be more elusive estimate Comment, supra, VI Land & Water disposition or decision than a of a mind in L.Rev. 743. personal ingredient.” which there is a quoted 410 P.2d at 737.

Id. The court then Completely from the different casualness People from the earlier case of ex rel. majority approaches which the here Burke v. District Court Third Judicial this most fundamental and serious concern Dist., (1915): 60 Colo. P. justice system, delivery the Colorado * *“ * alleged Supreme facts Estep, stated in Court in 705 P.2d at 525 [I]f application change for a comment be considered the advance of the tri- true, witness, may himself, he imperceptibly regarding prospective al court “ intentions, T pure hope however honest and this witness more credible than ” give impartial unable to your

be a fair and other The other witness.’ Prejudice by these defendants. referred to court was an indi- status, suscepti- subsequently mental condition or vidual who had recanted his positive proof. of direct ble As a murder for confession which the accepted ments of must be as true had been convicted. fact defendant present Botham, People recognized court, that: P.2d Court Supreme Colorado Barnes, (Colo.1981); Carr is the system justice to our “[BJasic denials of all Colo. judge must free precept that a partiality.” People explanations by respondent of bias and taint Court, District 192 Colo. cannot considered principle Dis- This People evaluating motions. such *43 person only “no is forced insures that Court, 503, 2, trict n. 560 192 Colo. 509 judge trial ‘bent stand before 828, (1977). 2 P.2d 832 n. ” Botham, 629 P.2d 589, mind,’ People v. the previously We have formulated (Colo.1981), public but also fosters 595 legal sufficiency of the mo- test for the judicial system: in the confidence disqualify tion to as follows: judge “A must ‘conduct himself trial sufficient, legally “To be the motion promotes in a manner that all times must and affidavits state facts integrity public the confidence it may reasonably be inferred judiciary.' A.B.A. impartiality of judge prejudice bias or Trial Standards, The Function of prevent dealing that will him from fair- meticulously Judge 1.5. Courts must ly with the defendant. The affidavits appearance partiality, avoid support of the motion do not have to merely to secure confidence every contain essential es- fact which involved, ‘to litigants immediately judge's It is prejudice. tablishes the willing public respect retain and secure verify if the sufficient affidavits judg- ready obedience to their facts set Packard, 45 Colo. forth motion.” ments.’ Nordloh v. 515, 787, (1909).” 521, P. 101 790 Botham, v. 589, People 629 595 P.2d 503, Court, People v. District 192 Colo. (Colo.1981) (citations omitted). appli 508, 828, (1977) (footnote 560 P.2d 831-32 cation of this standard the Colo enables omitted). Supreme has stated Court judicial every system rado “to eliminate country shall that “the tribunals suspi semblance of reasonable doubt or impartial the controversies be impartial fair cion that a trial give assur- submitted to them but shall v. Johnson denied.” may tribunal * * they *.” impartial ance that are Court, (Colo. District 952, 674 P.2d 956 * * States, 22, 35- Berger v. 255 U.S. United 1984) (emphasis original) *. 234, (1921). 36, 230, 41 65 L.Ed. 481 S.Ct. Estep, Papa v. See 705 P.2d at 525-26. Thus, prejudice part either actual on Teachers, 186 New Haven Federation of appearance or its trial mere 725, (1982); 444 A.2d 196 Conn. require disqualification can Pruett, 213 Kan. 41, (1973); Court, judge. People v. District 192 Coleman, 797, 390 461 Com. Mass. 503, 510, 560 P.2d 828, (1977). 833 Colo. Doe, 589; Sor (1984); 157 N.E.2d also See Code of Con- Colorado Judicial Conduct, dino v. State Com’n Judicial duct, 3(C)(1)(judge disqual- should Canon 286, 229, 231, 448 58 N.Y.2d 461 N.Y.S.2d might ify impartiality himself if his rea- Bryant, Com. v. (1983); and N.E.2d 85 sonably questioned). (1984). Pa.Super. 1, 476 A.2d 422 disqualify, a assessing a motion to A extreme illustration was somewhat inquiry is limited an into Lockhart, F.2d 942 Walker found in legal sufficiency motion and denied 478 U.S. (8th Cir.1985), cert. affidavits, accompanying and their timeli- 106 S.Ct. L.Ed.2d Thus, engaging in ness. the defendant was first convicted pass truth where inquiry upon “cannot State, 239 Ark. murder [Walker falsity statements of fact

or or retrial, (1965)), de Peo- S.W.2d and then on supporting motion and affidavits.” Court, disqualify ple v. District fendant’s counsel moved Colo. judge. These state- same presented falsity ev- the truth or The defense uncontradicted of statements of fact judge, granting idence after accepted which must be as true for the request go to church to Walker’s be purpose of decision on a motion for recusal baptized, deputy had instructed the sher- disqualification. iff that if Walker “made a move to shoot 4. The judicial participation test for in a down, him him because he didn’t want case is assurance impartiali- of fairness and brought him he back to because intended ty judged by objective public to be per- anyway.” burn S.O.B. ception standard. No is warranted Walker, F.2d at 946. For this and setting on the trial of a cause where his reasons,

other the district court was re- or her impartiality might reasonably be grant a writ of versed and directed to habe- questioned. corpus unless the defendant was retried. Any position announced evidencing lightly We should not abandon an abso- significant predetermination factual by the

lute dedication to the fundamental constitu- *44 trial holding evidentiary before hear- judiciary tional tenant of a in a democratic ings requires justifies disqualifi- recusal or fair, society requires impartial which and cation. open-minded judge availability of an impartial non-prejudicial jury. Amin VII. (Wyo.1991),Urbigkit, 811 P.2d 255 C.J., dissenting. guarantees surely, Those CONCLUSION today, questioned even are not to be within I justice required find neither need nor guarantees our state’s and nation’s as em- Wyoming restrict the historical rule for phatically Rights. written our Bill of effectively new trials continued since enun- Since we set out to establish standards ciation in Opie today. 1967 until This is recusal, disqualification judicial change true even propagated when case, conduct discussion this I would justify order to a result-oriented decision alternatively submit a modern consensus jury per- directed to avoid consideration of standard derived from current law within by principal issues followed bias, general questioned character of developed highly recantation in the emo- prejudice prejudgment: or parental tional character of contended sex- peremptory 1. Time limitations on teenage daughter. ual abuse of a challenges addressing judicial for cause dis- qualification mandatory. or recusal are ADDENDUM Requests or motions should filed at Following initial circulation of this dis- knowledge earliest time reasonable sent, justice majority who authored the litigant for action is available to the or the opinion response next circulated his litigant’s attorney. dissent the form of the concurrence. involving questions 2. Normal decisions This was followed the dissent of Justice during process of law made of the civil completed Thomas which the initial draft- proceeding or criminal are not bases for ing sequence. arguable challenge bias or usable for editing Modest has now been made regarding cause. If decisions matters of first section of this dissent to remove lan- wrong, appellate are law reversal and not offended, guage apparently person- disqualification pro- serves as the due ally, majority opinion. author remedy. cess Otherwise, essentially this dissent remains assessing disqualify, In a motion to originally prepared. the same as cause, peremptory whether or for presented is inquiry court is The circumstance now legal limited to into the motion, sufficiency argue the concurrence wants to contention supporting doc- dissent, any, including except uments if the facts while the accompanying af- about fidavits, judge, reality, and timeliness. The trial for one addresses the law. basic engaging inquiry, pass upon in the reality cannot The basic is that if the offense

First, for a new I believe the motion granted have been as a matter trial should occur, it did charged complaint did Second, adap- justice. believe recanting prosecutrix occur when the of the test from Larrison v. United tation later she that it did before first testified (7th Cir.1928), States, gloss 24 F.2d 82 stating that the her changed Opie rule articulated in upon the offense did occur. (Wyo.1967), our stan- converts developed, the histrionics now Within evaluating a motion for a new dard for sub- presents significant appeal two upon newly evidence premised discovered (1) legal They are: jects principles. objective subjective standard. from an opinion majority characterization so, doing the task of evalu- we transfer inadequate; volume of Opie test as from the ating the of a witness considering significance case law arriving guilt its jury in determination York, the sole witness recantation. the presiding who or innocence of cases singular volume P.2d 1252 and all of the the determination with makes not novelties when cited in the dissent are jury has made testimony available after the legal the au- comprehensive research of having the com- the determination without pursued. are thorities story of the plete witness. Min- program, CBS The recent news Addressing justice, first the matter utes, people again reminds that innocent us my reflection leads the conclusion that by er- following conviction are incarcerated empowered system justice of criminal our *45 testimony. I the law roneous believe bring incarcera- to about her father’s MCX provide opportunity realistic should testimony While other and evidence tion. person may convict- an innocent have been usually appears to the accusa- corroborate pursue correction of that terrible ed witness, the complaining of a without tion rules, Wyoming W.R.C.P. error. de- corpus accusation there would no Anglo and W.R.Cr.P. follow the and 60 infrequently con- licti to corroborate. Not history pro- of the common law Saxon had, sustained, are and based sole- victions I opportunity. that corrective contin- vide complaining ly upon the of the philosophic principles the ue to follow empow- That is the of the witness. nature history legal rules and the of our those that flows to a from our erment victim pro- contemporary society in the search for that, My position system if the system. principles addressing jus- cedural access empowers one achieve a conviction tice. complaining to law authorities enforcement court, in testifying then a balance in re Nothing stated in concurrence the justice same requires the scales of that the changed my con sponse to this dissent has set aside the empowerment be extended to this clusion that court should have reversed Because of the nature of these conviction. of a the denial new trial based with charges, MCX and Brown know change princi emphatic the oc- certainty whether conduct the criminal retrial pal witness remanded Brown, record, curred. on this was stead- might If whatever result then occur. with MCX, testifying fast in denial. after first strong, is so convic the evidence another occurred, that the criminal conduct now result. tion could United States Wal states, presumably being advised after lach, (2nd Cir.1991); F.2d 445 Berman not consequences perjury, that it did Carroll, Recantation — How & Witness justice I believe that demands occur. Conviction?, a Judgment Does it Affect oppor- fact finder afforded an the same XXXY N.Y.L.Sch.L.Rev. 593 weigh credibility tunity the issue of I reverse remand for retrial. would it, story before and a new the entire THOMAS, Justice, dissenting. opportunity. This is how affords that power of victim should be balanced. I would reverse the order of denying respect adjustment motion for a new court Brown’s With test, test has Opie I do reasons. I am satisfied that the trial. would that for two twenty- for almost difference if the trial served court well determines that years. utilized in recantation is false. five It has both been application Our civil1 and criminal cases.2 Our clear that authorities are we must of the test We have has been consistent. identify an part abuse of discretion on the uniformly required aspects all four of the trial court if are to we reverse the Opie test be satisfied before we can denying order for a the motion new trial. consider an Those abuse of discretion. re would find such an abuse discretion quirements adjusted, been have not adoption, effect, of the Larrison test they adopted Opie, are set forth in as from by the trial court when concluded to Johnson, 142 F.2d United States v. reject the on ground new evidence (7th Cir.1944), dismissed 323 cert. U.S. it is false. When trial court reached 65 S.Ct. 89 L.Ed. 643 that conclusion after the at which follows: MCX testified in of the support motion for “ * * * a new (1) subjective adopted test was That the evidence come to lieu objective captured trial; (2) standard knowledge since that it Opie. law, If Larrison is then owing was not the want of due dil- there was an abuse of the trial court’s igence sooner; (3) that it did not come discretion. proba- that it is so material that it would verdict, bly produce a different if the cases, In several has dealt with granted; new trial were that it is problem newly of recantation as discov- cumulative, viz., speaking to facts in ered on relying Opie evidence test. relation to there was evidence at State, Lacey (Wyo.1990); 803 P.2d P.2d Opie, trial.” at 85. State, (Wyo.1978); Burns (Wyo.1977); Jones There can question be little this case and Daellenbach v. part perjury admission of (Wyo.1977). Opie, Prior to this court had MCX came attention to Brown’s after his said: light pre-trial trial. assertions of *46 “Recanting is testimony viewed with sus- MCX, obviously owing it the picion, judge, acting the trial diligence want of due that Brown did not on a motion for a new refuses to clearly of it learn sooner. It is so material it, court, the appellate ordinarily believe probably produce that it would a different least, by will feel the decision.” bound granted.

verdict if the new trial should be 291, 318, State, Espy Wyo. v. 54 92 P.2d is the It so different from evidence intro- 549, 559 by duced the that it State at trial cannot be perceived approach as All four of This followed cumulative. the has been subse- Opie quent State, Opie. criteria are in this instance. 495 P.2d 256 satisfied Sims v. State, opinion (Wyo.1972). The thrust of v. majority the is that See Flaim 488 P.2d presence (Wyo.1971). Certainly, the factors makes the court has those no 153 Curless, State, (Wyo.1985); Hopkinson (Wyo.1986); Curless v. P.2d 426 v. 722 P.2d v. 1. 708 135 Stevens, 1982); Murphy (Wyo. State, P.2d (Wyo.1984), v. 645 82 679 P.2d 1008 cert. denied Inc., Texasgulf, (Wyo. Walton v. 634 P.2d 908 469 U.S. 83 L.Ed.2d 157 105 S.Ct. 1981); Shaw, (Wyo. Shaw v. 544 P.2d 1004 State, (1984); Lansing (Wyo. v. 669 P.2d 923 Barbour, 1976); (Wyo. Barbour v. 518 P.2d 12 State, 1983); (Wyo.1983); P.2d 531 Grable v. 664 Roden, Jr., 1974); Davis, and John B. Inc. v. 460 State, 1981); Siegert v. (Wyo. 323 634 P.2d Burns 1969). (Wyo. P.2d 209 State, (Wyo.1978); v. 574 P.2d 422 Jones v. State, (Wyo.1977); 568 P.2d 837 Daellenbach v. State, Lacey (Wyo.1990); v. 1364 803 P.2d State, State, (Wyo.1977); 562 P.2d v. 679 Salaz State, King (Wyo.1989); v. P.2d Kava 780 943 State, (Wyo.1977); P.2d v. 238 527 State, Montez naugh (Wyo.1989); v. Best v. P.2d 908 State, 1974); State, (Wyo. P.2d 1330 488 P.2d (Wyo.1989); Flaim 769 P.2d Cutbirth State, State, 1988); State, (Wyo.1971); Kennedy v. (Wyo. 751 P.2d 1257 Keser v. State, (Wyo.1987); reh'g (Wyo.1970), 737 P.2d 756 Gist v. de denied 474 P.2d 127 cert. (Wyo.1987), appeal remand 766 P.2d nied 401 U.S. S.Ct. 28 L.Ed.2d 218 after (Wyo.1988); (1971); Ballinger Bueno-Hernandez (Wyo.1986), cert. P.2d 1132 denied 480 U.S. 1968). (Wyo. (1987); 107 S.Ct. 94 L.Ed.2d 523 Frias Lacey, (empha- P.2d at 1371 application ance.” comfortable the been added). contrary considering that rule in affidavits sis co-defendants, as in by Bums Daellen- cast thus is into same mold Lacey bach, case in the affidavit and in a re- the cases in which co-defendants have contrary the affiant’s testi- offered was canted. mony in own trial. In each Jones. prior case is This different instance, however, the court was address- cases, including Opie Lacey. Under the ing the recantation the context of the standard, neither trial this court nor the arriving Opie at a determination rule and say recanting court could testimo- not so material new evidence was ny a was not so material that different if a produce a different result that would might be if a trial verdict returned new case, granted. In each new trial were granted. Espy, were See 92 P.2d 549. The establishing there lot of evidence was a validity recanting testimony could crime than the existence of the other testi- compared not be with other evidence of recanted, mony of the who and the corpus introduced at trial. It is delicti testimony clearly improba- recantation only invoking by gloss of Larrison that Yet, light ble of the other evidence. a can the motion for new trial be denied. gave option Espy court the State followed, Opie If is the new should be accepting a new trial or an affirmance on court, granted. would reverse manslaughter rather than murder because finding an of discretion failure abuse testimony it concluded that recantation apply Opie, trial. would order new recanting refuted the wit- may ness have crucial on the been view, In my only this is the manner leading issue malice verdict objective can stan- court maintain Clearly, degree. murder in the second dard used to that should be evaluate spoke materiality, court in the context of upon motion for a new trial based a claim veracity. newly discovered evidence. It is also way case that a recantation involves the correct the scales and balance by a This Lacey. victim witness justice in case. effect this affirmed a denial of motion for upon ruling

trial based

court: “ any event, my judgment that ‘[I]t

that the recanted Mrs. La-

cey totally without

probably because coercion emotion- brought by the al turmoil about husband- ” relationship.’ Lacey

wife P.2d at METROPOLITAN MORTGAGE CO., INC., & SECURITIES (Plaintiff), Appellant Lacey and the in- difference between one stant case becomes clear when exam- returning language ines the of the court BELGARDE, Belgarde Charles P. d/b/a raised matter when was under (Defendant). Enterprises, Appellee guise of ineffective assistance counsel. The court said: No. 89-253. “Given the lack attributed Wyoming. Supreme Court of recanting the district court to Diane’s supporting the evidence Aug. 27, 1991. simply story, her cannot original we Appellant’s attorneys

hold either of unreasonably Appellant or that

acted prejudiced by his

shown he was attor-

neys’ perform- performance or lack