PUBLISHED OPINION
Case No.: 95-3511-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRANCE J. W.,
Defendant-Appellant.
Submitted on Briefs: April 23, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: May 14, 1996
Opinion Filed: May
14, 1996
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Brown
(If "Special", JUDGE: William Atkinson
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the
defendant-appellant the cause was submitted on the briefs of Thomas J. Walsh
of Walsh & Walsh, S.C., DePere.
Respondent
ATTORNEYSFor the
plaintiff-respondent the cause was submitted on the brief of James E. Doyle,
attorney general, and William C. Wolford, assistant attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED May 14, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3511-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRANCE J. W.,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Brown County:
WILLIAM ATKINSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Terrance W. appeals an
order denying his motion for a new trial which was based on the victim's
recantation of his allegation that Terrance sexually assaulted him.[1] Terrance contends that the trial court
erroneously exercised its discretion by denying his motion. Because we conclude that the trial court's
finding that the recantation was not credible is not clearly erroneous, and
there was insufficient corroboration to support the recantation, we affirm the
order.
On March 25, 1993,
Terrance was convicted of first‑degree sexual assault of a child under
the age of thirteen contrary to § 948.02(1), Stats. Terrance's son, J.W., was the victim of the
sexual assault. In June 1995, Terrance
filed a motion for a new trial based upon newly discovered evidence, which
consisted of J.W.'s recantation of the sexual assault allegation. J.W. had written a letter to his father in
which he told his father that he put him in jail because he was mad at him for
marrying Gina, J.W.'s stepmother at the time of the alleged assault.
At the hearing on the
motion for a new trial, J.W. testified that the sexual assault never happened
and that his testimony at the trial was a lie.
In addition, J.W. testified that he knew he could get in trouble for
lying in court and that no one threatened him to make him recant. J.W. had explained that he lied at trial
because he was angry at his father for marrying Gina and that Gina was mean to
him when his father was not around.
J.W. testified that his
uncle, Terrance's brother, promised him a go-cart if he would testify in court
that he had lied. Further, J.W.'s
mother testified that J.W. told her that his paternal grandmother urged him to
say that he lied at the trial. However,
J.W. denied that his recantation was the result of pressures from his
grandmother or the promise from his uncle.
At J.W.'s grandmother's request, Nancy Woodke, a friend of the family,
discussed with J.W. whether he lied at the trial. Woodke testified that after J.W. acknowledged that he had lied
and she assured him that he would not be put in jail for telling the lie, he
seemed happier, like the whole weight of the world had been lifted off his
shoulders. The trial court denied the
motion for a new trial concluding that J.W.'s recantation was not credible.
Motions for a new trial
based on newly discovered evidence are entertained with great caution. Erickson v. Clifton, 265 Wis.
236, 240, 61 N.W.2d 329, 331 (1953).
Such motions are submitted to the sound discretion of the trial
court. State v. Kaster,
148 Wis.2d 789, 801, 436 N.W.2d 891, 896 (Ct. App. 1989). We will affirm the trial court's exercise of
discretion as long as it has a reasonable basis and was made in accordance with
accepted legal standards and the facts of record. State v. Jenkins, 168 Wis.2d 175, 186, 483 N.W.2d
262, 265 (Ct. App. 1992). The trial
court may grant a new trial based on newly discovered evidence only if the
following requirements are met: (1) the evidence was discovered after trial;
(2) the moving party was not negligent in seeking the evidence; (3) the
evidence is material to an issue in the case; (4) the evidence is not merely
cumulative to the evidence that was introduced at trial; and (5) it is
reasonably probable that a different result would be reached at a new
trial. Kaster, 148 Wis.2d
at 800, 436 N.W.2d at 896. In addition,
a recantation must be sufficiently corroborated by other newly discovered
evidence before a new trial is warranted.
State v. McCallum, 198 Wis.2d 149, 159, 542 N.W.2d 184,
188 (Ct. App. 1995) (petition for review granted, Jan. 23, 1996); see
also State v. Marcum, 166 Wis.2d 908, 928, 480 N.W.2d 545, 555 (Ct.
App. 1992).
By its very nature, a
recantation will generally meet the first four criteria and these criteria are
not disputed in this case. The
determinative factors to be considered are whether it is reasonably probable
that a different result would be reached at a new trial and whether the
recantation is sufficiently corroborated by other newly discovered evidence.
We conclude that
Terrance has failed to demonstrate that it is reasonably probable that a
different result would be reached at a new trial. The trial court determined that J.W.'s recantation was not
credible. The court based this finding
on J.W.'s demeanor at the hearing, the fact that he never clearly answered why
he lied at the first trial, and the pressures from J.W.'s grandmother and
uncle. When the trial court makes
findings of fact as to the credibility of witnesses, we will not upset those
findings unless they are clearly erroneous.
State v. Herro, 53 Wis.2d 211, 215, 191 N.W.2d 889, 891
(1971). The trial court's finding that
J.W.'s recantion was not credible is supported by the court's discussion
regarding J.W.'s demeanor, J.W.'s explanation for lying and the pressures J.W.
endured. This finding is not clearly
erroneous. A determination that the
recantation is not credible is sufficient to conclude that it is not reasonably
probable that a different result would be reached at a new trial.
Terrance argues that McCallum
requires a different result. We
disagree. In McCallum,
the trial court weighed the testimony given at trial with the testimony given
in recantation. While the court
apparently found both statements credible, it nonetheless selected between the
two and determined that the recantation was less credible. We held that between two credible statements
it was the jury's function to determine which would be believed. Id. at 159, 542 N.W.2d at
188. In this case, however, the trial
court found J.W.'s recantation not credible.
Accordingly, there is no reasonable probability of a different result at
a new trial.
Next, we address whether
J.W.'s recantation was sufficiently corroborated by other newly discovered
evidence. In McCallum, we
concluded that the degree and extent of the corroboration required varies based
on the circumstances of the case. Id.
at 159, 542 N.W.2d at 188. In cases
where no others witnessed the event and there is no physical evidence to
corroborate the sexual assault allegation or the recantation, "the
existence of a feasible motive for the false testimony together with circumstantial
guarantees of the trustworthiness of the recantation are sufficient to meet the
corroboration requirement." Id.
at 160, 542 N.W.2d at 188. We suggested
that sufficient corroboration in such cases could be found from the motive for
testifying falsely, facts supporting the motive, the internal consistency of
the recantation, the witness's awareness of the consequences for testifying
falsely, and the lack of external pressures encouraging the recantation.
Terrance argues that the
same fact pattern exists in this case as existed in McCallum, and
therefore he has met the corroboration requirement. We disagree. While J.W.
testified that he was aware of the consequences for testifying falsely, the
other factors present in McCallum are not present in this
case. First, as the trial court noted,
J.W.'s recantation is not internally consistent. J.W.'s alleged motive for testifying falsely at the trial was
that he was angry at his father for marrying Gina and that Gina was mean to him
when they were alone. J.W. did not
explain how he reasoned a false allegation of sexual assault against his father
would isolate him from his stepmother.
The recantation also fails to explain the basis upon which he remained
silent about the false allegation for over two years and what motivated his
decision to recant his former testimony.
By contrast, the
recantation in McCallum was internally consistent. The witness
testified that she falsely accused her mother's boyfriend of sexual assault
because she wanted her parents to reconcile and she was angry at the boyfriend
for disciplining her. A school friend
told the witness that her brother was removed from the household after she
accused him of sexual assault. The
witness also testified that she came forward because the false allegation was
bothering her conscience and she did not believe McCallum should have a
criminal record for something he did not do.
In Terrance's case, the recantation testimony lacks the internal
consistency and logical motives supporting both the reason for the false
allegation and the reason for recantation present in McCallum.
In addition, there was
no evidence in McCallum that the witness was subject to pressures
by anyone to recant her previous testimony.
She testified that the decision to recant was her's and her's alone
based upon the reasons she articulated.
In this case, both J.W.'s grandmother and uncle pressured J.W. to
recant. Not only was J.W. urged to
recant, he was promised a reward if he would do so. Even though J.W. had resided with his mother and stepfather since
his father's incarceration, he was not isolated from these external
pressures. The existence of these
pressures on a ten-year-old child is significantly different from the facts of McCallum.
In the instant case, the
recantation lacked internal consistency, the explanation for both testifying
falsely and recanting were unpersuasive, and J.W. received pressure to
recant. We therefore conclude that
Terrance has not met the corroboration requirement.
We conclude that
Terrance has read McCallum much too broadly and that McCallum
does not support his contention that the trial court erred by denying his
motion. Because we conclude that the
trial court's finding that the recantation was not credible is not clearly erroneous,
and there was insufficient corroboration to support the recantation, we affirm
the order.
By the Court.—Order
affirmed.