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COURT OF APPEALS DECISION DATED AND RELEASED March 4, 1997 |
NOTICE |
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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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0587-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Gary D. Perry,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J,
Fine and Schudson, JJ.
FINE,
J. Gary Donovan Perry appeals from a judgment entered on a
jury verdict convicting him of two counts of Second Degree Sexual Assault of a
Child, see § 948.02(2), Stats.,
and the trial court's order denying him postconviction relief. He raises two issues on this appeal. First, he contends that the trial court
improperly declined to order a new trial based on the victim's
recantation. Second, he claims that the
trial court erroneously exercised its discretion in imposing sentence. We
affirm.
I.
The Information in this
case charged Perry with sexually assaulting thirteen-year-old Craig P. According to Craig, Perry assaulted him
several months after Craig started the seventh grade in school. At that time, Craig lived with his sister,
Christina, an aunt Ruby P. and her sons, and Perry, whom Craig described as
“[o]ur uncle.” Ruby P. testified that
Perry was her “boyfriend” to whom she was engaged. At the time of trial, Ruby P. was pregnant with a child by Perry,
with whom she had another child.
Craig told the jury that
he did not like living with Ruby P. and Perry because they both beat him, and
admitted on cross-examination that he was angry at Perry for punishing
him. Craig's trial testimony was
corroborated by his sister Christina, who was sixteen years old at the time of
trial. She told the jury that one day
Craig came to her crying and told her that Perry had “molested him.” Christina testified, and Ruby P. admitted,
that Craig also told Ruby P. about Perry's assaults. Ruby P. did not call the
police or order Perry from her home.
She testified that she was pregnant with Perry's child at the time and
did not want to upset the status quo. Ruby P.'s sister Tammy P. testified that
Craig also told Brian and Marilyn P., his aunt and uncle, that Perry had
sexually assaulted him. Brian P. is Ruby
P.'s brother.
Although Perry did not
testify at the trial, the thrust of the defense theory was that Craig made up
the assaults to get even with Perry.
Thus, Ruby P. testified that Craig was a terror to live with, and that
she and Perry both disciplined Craig.
Ruby P. testified that Craig was involved in some 300 “violent
incidents” before Perry moved into her house, and 100 such incidents afterward,
and that Craig kicked her in the stomach when she was pregnant. Although she testified that she had tried to
find somewhere else for Craig to live but that “nobody wants Craig,” she also
complained that Brian and Marilyn P. tried to entice Craig into living with
them, presumably so they could benefit from social-security money paid on his
behalf. Ruby P. told the jury that
Brian and Marilyn P. made Craig falsely accuse Perry. Ruby P.'s nine-year-old
son Joey testified that after the police came to the P. home to investigate the
complaint that Perry had sexually assaulted Craig, Craig told him that he was
going to get Perry “in a lot of trouble.”
In support of the
defense theory that Craig's accusation against Perry was false, Perry's counsel
called two of Craig's teachers and Ruby P.'s niece who testified that Craig was
generally not very truthful, and, according to the niece, “hated” Perry. Indeed, Christina, Craig's sister, testified
that Craig often got into trouble for lying, and Perry's lawyer also got Craig
to admit on cross-examination that “lying's okay with you as long as you get
what you want?”
The jury returned its
verdicts on August 5, 1995, and, on September 13, 1995, the trial court
ordered that Perry serve two consecutive indeterminate ten-year terms in
prison. On October 16, 1995, two
private investigators and Ruby P., with whom Craig was then living, brought
Craig to the offices of Perry's lawyers, and, in a taped interview that was not
under oath, Craig recanted his accusations against Perry. Craig told the lawyer that he came in
“because my Uncle Gary was put in jail for something that he didn't do.” Craig claimed that he lied at the trial
because Brian and Marilyn P. told him to, and because accusing Perry of sexual
assault would get him out of Ruby P.'s house, although he professed that he had
“[n]ot that many problems” with Perry.
Craig also said that Marilyn P. gave him a piece of paper to help him
testify, and that he used the paper while testifying.[1]
According to Craig,
Brian and Marilyn P. promised him that if he lived with them he “would have
better things than they would, and they said that I would have my own-- my own
stereo and stuff like that.” Craig also
said that Brian and Marilyn P. promised to give him $200 out of the $541 social
security payment they would be getting every month on his behalf if he lived
with them rather than with Ruby P. He said
that he stayed with the assault story because Brian and Marilyn P. threatened
to “start hitting me like Ruby” and abandon him if he recanted earlier. Craig claimed at the October 16 taping that
Tammy P. and a person identified only as “Rocky” knocked him unconscious the
previous week because they learned that he was planning on recanting.
At the end of the taped
interview, Perry's lawyer and Craig had the following colloquy:
Q.This-- Do you know that [Perry] is a [sic]
appealing his conviction?
A. Yes.
Q.And do you know that the main focus of
the appeal, the main part of the appeal is going to be the fact that you
completely changed your story? Do you
know that?
A. Yes.
Q.And that as part of the appeal you know
you're going to have to come to court and swear under oath that you made this
whole story up and no sexual assault ever occurred? Do you know that?
A.No.
Q.Are you willing to do that?
A. No.
Q.You're not willing to come to court?
A. No.
[One
of the private investigators]: Are you
afraid?
A.I just don't want to go to court.
[Perry's
lawyer]: Is there something about going
to court?
A.I
don't want to go to court, I'm leaving.
Craig
walked out, the camera was turned off, and after what Perry's lawyer represented
was eight minutes, Craig returned and said that he was now willing to go to
court and testify in support of Perry's efforts to get a new trial.
After reviewing the tape
of Craig's recantation, the trial court denied Perry's motion without an
evidentiary hearing.
II.
A. Craig's
Recantation.
An evidentiary hearing
on a motion for postconviction relief is not required unless a defendant
alleges facts, which, if true, would entitle him or her to the relief
sought. State v. Washington,
176 Wis.2d 205, 215, 500 N.W.2d 331, 336 (Ct. App. 1993). We have recently summarized the legal
principles that govern our review of a trial court's decision whether to grant
a motion for a new trial based on a victim's recantation:
Motions for a new trial based on newly
discovered evidence are entertained with great caution. Such motions are submitted to the sound
discretion of the trial court. 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. 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. In addition, a recantation must be
sufficiently corroborated by other newly discovered evidence before a new trial
is warranted.
State
v. Terrance J.W., 202 Wis.2d 497, 501–502, 550 N.W.2d 445, 447 (Ct. App.
1996) (citations omitted).
Perry has not pointed to
any “newly discovered evidence” that corroborates Craig's recantation. The trial court recognized this in its
written decision denying Perry's motion.
Moreover, as explained below, we agree with the trial court's assessment
that it is not reasonably probable that Perry would be acquitted at a new
trial. The trial court made a
reasonable decision “in accordance with the accepted legal standards and the
facts of record,” see id., 202 Wis.2d at 501, 550 N.W.2d
at 447, and did not, therefore, erroneously exercise its discretion in denying
Perry's motion.
B. Discretionary
Reversal.
Perry also argues, in
the alternative, that he is entitled to a new trial in the interests of justice
under the auspices of § 752.35, Stats. Section 752.35 provides:
Discretionary
reversal. In an appeal to the court of appeals, if it
appears from the record that the real controversy has not been fully tried, or
that it is probable that justice has for any reason miscarried, the court may
reverse the judgment or order appealed from, regardless of whether the proper
motion or objection appears in the record and may direct the entry of the
proper judgment or remit the case to the trial court for entry of the proper
judgment or for a new trial, and direct the making of such amendments in the
pleadings and the adoption of such procedure in that court, not inconsistent
with statutes or rules, as are necessary to accomplish the ends of justice.
Under
this provision, we have the discretionary power to reverse a conviction “1)
when the real controversy has not been fully tried; or, 2) when it is probable
that justice has for any reason miscarried and the appellate court can conclude
that a new trial would probably produce a different result.” Vollmer v. Luety, 156 Wis.2d
1, 27, 456 N.W.2d 797, 809 (1990) (Bablitch, J., concurring on behalf of six
members of the court).
Perry argues that
Craig's recantation provides the basis for granting him a new trial. We disagree. First, Perry had a fair trial.
Craig's credibility as an accuser was vigorously contested during the
trial. His accusations against Perry
were corroborated by his contemporaneous complaints to various relatives,
including Perry's fiance, Ruby P.
The jury thus had a basis for crediting Craig's trial testimony. Second, and, perhaps, most significant,
Perry's contention that he is entitled to a reversal under § 752.35, Stats., if followed, would totally
circumvent the rule that does not credit recantations unless they are
“sufficiently corroborated by other newly discovered evidence,” see Terrance
J.W., 202 Wis.2d at 501, 550 N.W.2d at 447. If a defendant could get a new trial under § 752.35 when a victim
recanted even though that recantation was not corroborated by any other newly
discovered evidence, the rule that requires such corroboration would quickly
become a dead letter. Finally, in
connection with the second prong of the power granted to us by § 752.35,
we have read the trial transcript and, as did the trial court, viewed Craig's
taped recantation. The evidence
elicited during the course of the trial amply supports the jury's verdicts,
and, as the trial court recognized, Craig's recantation was far from
spontaneous—Perry's lawyer appeared to be leading him in significant detail,
and Craig appeared to strongly resist the suggestion that he would have to
repeat his recantation under oath in court.
Moreover, Perry's theory during the trial was that Craig's accusations
were motivated by Craig's hatred and fear of Perry; during the taped
recantation Craig said that he did not have “that many problems” with
Perry. In light of all of this we are
unable to conclude that a new trial “would probably produce a different
result.” Discretionary reversal under
§ 752.35 is not warranted.
C. Sentence.
Perry claims that the
trial court's sentence of two consecutive ten-year terms was an erroneous
exercise of discretion, and violates both his due-process rights and his right
to be free from cruel and unusual punishment under both the federal and
Wisconsin constitutions. Perry did not,
however, file with the trial court a motion for sentence modification. “Failure to make such motion bars a
defendant from raising an issue as to sentencing within statutory limits except
under compelling circumstances.” Gaddis
v. State, 63 Wis.2d 120, 129, 216 N.W.2d 527, 532 (1974). This rule also applies to constitutional
challenges. Sears v. State,
94 Wis.2d 128, 140, 287 N.W.2d 785, 790 (1980) (Eighth-Amendment
challenge). Perry has not shown any
“compelling circumstances” that would warrant our ignoring this long-standing
rule.[2]
By the Court.—Judgment
and order affirmed.
Publication in the
official reports is not recommended.
No. 96-0587-CR (D)
SCHUDSON, J. (dissenting). I agree with the majority's conclusion that
“Perry has not pointed to any ‘newly discovered evidence’ that corroborates
Craig's recantation.” Majority slip op.
at 8. I also conclude, however, that
Perry has provided a sufficient basis for the trial court to hold an
evidentiary hearing to determine whether “it is probable that justice has for
any reason miscarried and ... a new trial would probably produce a different
result.” See Vollmer v.
Luety, 156 Wis.2d 1, 27, 456 N.W.2d 797, 809 (1990) (Bablitch, J.,
concurring on behalf of six members of the court).
At the trial, Craig
testified that Perry sexually assaulted him.
In his videotaped recantation, Craig stated that Perry did not sexually
assault him. Craig's recantation was accompanied
by no corroboration. Craig's trial
testimony was accompanied by little or no corroboration, depending on one's
view of additional testimony about the violence and motives of members of
Craig's family. In a related legal
context, this court recently commented:
[T]he degree and extent of the corroboration
required varies from case to case based on its individual circumstances. Here, the sexual assault allegation was made
under circumstances where no others witnessed the event. Further, there is no physical evidence that
could corroborate the original allegation or the recantation. Under these circumstances, requiring a
defendant to redress a false allegation with significant independent
corroboration of the falsity would place an impossible burden upon any wrongly
accused defendant. We conclude, under
the circumstances presented here, 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.
State
v. McCallum, 198 Wis.2d 149, 159-60, 542 N.W.2d 184, 188 (Ct. App.
1995).
Although
I appreciate the majority's linear legal analysis that would seem to foreclose
any further consideration of the merits of Craig's recantation, I am troubled
by the majority's conclusion “that a new trial ‘would probably [not] produce a
different result.’” Majority slip op.
at 10. Do we really suppose that a jury
would not have reasonable doubt if the State's victim-witness offers a
recantation as plausible (and as corroborated) as his allegation?
I am also troubled by
inaccuracies in what seems to emerge as the majority's fact-finding, which
forms part of the basis for its conclusion.
Significantly, the majority's account of Craig's recantation is misleading
in three respects:
(1) “Craig also said
that Marilyn P. gave him a piece of paper to help him testify, and that he used
the paper while testifying.” Majority
slip op. at 4. The majority then adds a
footnote stating, in part:
It is
highly unlikely, to say the least, that either the trial court, the prosecutor,
or Perry's lawyer would see Craig referring to notes while testifying without
making some comment on the record.
Moreover, Perry's counsel ... would have been able to see the paper if
Craig was referring to it during his testimony. Perry's counsel never asked to see such a paper.
Majority
slip op. at 4 n.1.
In his recantation,
however, Craig never stated that he referred to or “used the paper while
testifying.” He answered “Yes” to the question: “Did you have that paper when you
were actually up on the stand testifying?”
(Emphasis added.) He never
stated that he had the paper in his hands, in front of him, or anywhere else
where he, the trial court, or counsel would have been able to see it during his
trial testimony. Unfortunately, the
questioning of Craig failed to clarify whether he ever referred to the paper
“while testifying.” Although the
majority's speculation is plausible, it is no more plausible than another
possibility consistent with Craig's statement:
that he referred to the paper before he took the witness stand
but not during his testimony.
(2) “Craig's recantation
was far from spontaneous—Perry's lawyer appeared to be leading him in
significant detail.” Majority slip op.
at 10.
Admittedly, whether a
lawyer is leading a witness presents an issue open for considerable
interpretation. Here, however, having
viewed the videotape and studied the videotape transcript, I do not know how
the majority reached its interpretation.
If anything, counsel's questioning of Craig was remarkable for its slow,
halting manner, for its restraint, for its use of apparently non-leading
questions, and, unfortunately, for its failure to ask detailed questions on
numerous subjects including whether Craig referred to a paper “while
testifying.” Although my view is no
more scientific than that of any other judge, in this case, were I a betting
man, I would wager that, if anything, most experienced lawyers and judges would
fault counsel for not “leading [Craig] in any significant detail”
even when such questioning would have been entirely fair and very helpful to a
reviewing court.
(3) “Craig appeared to
strongly resist the suggestion that he would have to repeat his recantation
under oath in court.” Majority slip op.
at 10.
When Craig returned
after an eight minute absence, he explained that he did not want “to see the
jury” and some of his relatives again in a courtroom. He said, however, that he was willing to inform the judge, in chambers. The majority's characterization of Craig
“strongly resist[ing] the suggestion that he would have to repeat his
recantation under oath in court” is an interpretation that simply fails to
convey Craig's stated position.
Still, I respect the
majority's concern that any careless interplay between the
newly-discovered-evidence standard and the interests-of-justice standard could
render the corroboration rule “a dead letter.”
Majority slip op. at 10. Thus,
at this point, I can conclude only that, under either standard, while Perry has
not established the basis for a new trial, he has provided a sufficient basis
for an evidentiary hearing. As the
State explains in its brief to this court:
If this court ... concludes that the defendant
is entitled to relief, the proper remedy for the defendant at this stage is not
an order for a new trial.... The proper
remedy would be to reverse the order denying the motion for new trial and
remand the matter to the trial court to conduct the evidentiary hearing. In Zillmer v. State, 39 Wis.2d
607, 616, 159 N.W.2d 669 [, 673-74] (1968), the supreme court commended the
trial court for conducting an evidentiary hearing on the motion for a new trial
based on a witness's recantation of trial testimony. During an evidentiary hearing, the trial court could observe
[Craig] testify to his recantation and could assess the credibility of the
recantation. In Rohl v. State,
64 Wis.2d 443, 453, 219 N.W.2d 385 [, 389] (1974), the court noted that the
“trial judge is in a much better position to resolve the credibility and the
weight to be given a recanting statement.”
If the trial court concludes that the recantation is not credible, the
trial judge can deny the motion for a new trial on the ground that the
defendant failed to show that it was reasonably probable that a different
result would be reached in a new trial....
Also, at the hearing, the state would be provided an opportunity to
introduce evidence on the validity of the recantation. Therefore, the defendant cannot be awarded a
new trial before an evidentiary hearing at which the trial court is provided an
opportunity to evaluate the credibility of [Craig's] recantation.
Clearly, as the parties
agree, Perry's guilt or innocence depends on Craig's credibility. A fair reading of both the trial record and
recantation record reverberates with uncertainty. A fair reading defies any judge's determination of whether
justice has miscarried.
Perry is imprisoned for
twenty years. Craig has given two
equally-plausible accounts of whether Perry sexually assaulted him. Justice calls for the trial court to
carefully consider Craig's credibility in light of all the evidence that can be
offered at an evidentiary hearing. We
should give the trial court the chance to do so. Accordingly, I respectfully dissent.
[1] There is nothing in the trial transcript that corroborates this contention. It is highly unlikely, to say the least, that either the trial court, the prosecutor, or Perry's lawyer would see Craig referring to notes while testifying without making some comment on the record. Moreover, Perry's counsel ably and vigorously represented him at trial. Under Rule 906.12, Stats., he would have been able to see the paper if Craig was referring to it during his testimony. Perry's counsel never asked to see such a paper.