PUBLISHED
OPINION
Case No.: 95-1518
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
†Plaintiff-Respondent,
v.
RONALD V. McCALLUM,
Defendant-Appellant.
Submitted on Briefs: October
19, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: November
14, 1995
Opinion Filed: November 14, 1995
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Brown
(If "Special", JUDGE: Peter J. Naze
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the
defendant-appellant the cause was submitted on the brief of Steven L. Miller
of Miller & Miller of Green Bay.
Respondent
ATTORNEYSFor the
plaintiff-respondent the cause was submitted on the brief of James E. Doyle,
attorney general and Sharon Ruhly, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED November 14, 1995 |
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. 95-1518
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RONALD V. McCALLUM,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Brown County:
PETER J. NAZE, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Ronald McCallum appeals
an order denying his motion to withdraw his Alford[1]
plea to one count of second-degree sexual assault. McCallum entered a plea of no contest while maintaining that he
was innocent of the offense charged.
McCallum contends that the trial court erroneously exercised its discretion
when it refused to allow him to withdraw his plea due to a recantation of the
allegation by the State's sole witness.
Because we conclude the trial court applied the wrong standards of law
to McCallum's motion to withdraw his plea and that a new trial is warranted, we
reverse the order denying the motion and remand for further proceedings.
McCallum and Sandra L.,
the victim's mother, were living together during a period when Sandra and her
husband were in the process of getting a divorce. H.L., Sandra's thirteen-year-old daughter and also a resident of
that household, accused McCallum of touching her breast while the two of them
were alone in the home. She first
reported this allegation to her older sister, who then reported the complaint
to social services. Shortly thereafter,
H.L. gave a statement to police accusing McCallum of sexual assault.
McCallum was charged
with one count of second-degree sexual assault and ultimately entered an Alford
plea to the allegation. McCallum was
sentenced to three years' probation and was required to serve six months in the
county jail and ordered not to reside within three city blocks of H.L. as
conditions of probation.
Approximately fifteen
months after her initial complaint, H.L. approached her mother and told her
that she had lied about McCallum sexually assaulting her. Sandra advised her to either call McCallum's
lawyer or write a letter. H.L. wrote a
letter in which she recanted her allegation that McCallum grabbed her breast
and explained that she had made the false allegation because she wanted to get
McCallum out of her mother's life so that her parents could reconcile. Her signature to the letter was witnessed by
her mother and grandmother.
At the postconviction
hearing held on McCallum's motion to withdraw his plea, H.L. persisted in her
claim that she had falsely accused McCallum of sexual assault. She testified that she falsely accused
McCallum because she wanted her parents to reconcile, she resented McCallum for
attempting to take her father's place, and she was angry at McCallum for
disciplining her for her misconduct involving missing school and arriving home
late.
H.L. explained that she
first told her sister that McCallum sexually assaulted her because she was
confident her sister would report the incident to social services. H.L. testified that a school friend told
H.L. that her brother was removed from the household after she accused him of
sexual assault. H.L. also testified
that she made the specific allegation because there were no witnesses and no
evidence. H.L. claimed that she came
forward because her false allegation was bothering her conscience and she did
not believe McCallum should have a criminal record for something he did not
do. H.L. denied that anyone had
pressured her to recant and maintained that she had written the letter
unassisted.
Sandra confirmed that
there were disciplinary problems involving skipping school and arriving home
late and that much of the disciplinary burden fell on McCallum because of her
work schedule. Sandra maintained that even
though she was skeptical of H.L.'s allegation, she never told H.L. nor implied
she thought H.L. was lying. Sandra also
testified that she put no pressure on H.L. to recant and that H.L.'s
recantation was spontaneous and took her by surprise. Sandra suggested that H.L. either call McCallum's attorney or
write a letter, urged H.L. to use her best judgment, and was unaware of H.L.'s
decision until several days later when she was shown the letter. Sandra did acknowledge that she maintained
her relationship with McCallum throughout the case and would like to live with
him again; however, she denied ever telling H.L. of that fact or blaming H.L.
for not being able to live with McCallum.
The trial court denied McCallum's motion to withdraw his plea because it
determined that there was no reasonable probability of a different result at a
trial.
After sentencing, the
trial court may grant a motion to withdraw a guilty or no contest plea only if
the defendant proves by clear and convincing evidence that a "manifest
injustice" would result if the motion was denied. State v. Krieger, 163 Wis.2d
241, 249, 471 N.W.2d 599, 602 (Ct. App. 1991).
The motion for the withdrawal of a guilty or no contest plea is
addressed to the trial court's discretion and will be reversed only if the
trial court failed to properly exercise its discretion. Id. at 250, 471 N.W.2d at
602. Discretion based on an erroneous
application of the law is an erroneous exercise of discretion. State v. Martinez, 150 Wis.2d
62, 71, 440 N.W.2d 783, 787 (1989).
For newly discovered
evidence to constitute a "manifest injustice," the defendant must
demonstrate the following: (1) The
evidence was discovered after trial; (2) the defendant 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; and (5) a reasonable
probability exists that a different result would be reached in a new
trial. Krieger, 163
Wis.2d at 255, 471 N.W.2d at 604. A
postconviction recantation by a witness may constitute newly discovered
evidence requiring a new trial. Zillmer
v. State, 39 Wis.2d 607, 615-16, 159 N.W.2d 669, 673 (1968).
The State does not
dispute that the recantation was discovered after trial, is material to an
issue in the case and is not cumulative to other evidence. However, the State contends that McCallum
was negligent in seeking the evidence because he did not further investigate
H.L.'s false allegation. We disagree. McCallum's attorney attempted to challenge
H.L.'s story at the preliminary hearing.
Further, there were no other witnesses and little in the nature of
investigation that could be done to discredit H.L.'s story. While McCallum theorized as to H.L.'s
motives for a false allegation, they were only theoretical explanations until
H.L. recanted the allegation and explained her reasons for it. Indeed, it was because H.L. was likely to be
believed by the jury that McCallum decided to enter an Alford
plea.
The next requirement is
that there must be a reasonable probability of a different result. This requirement is met in this case if a
reasonable jury could accept the recantation as true. This involves an examination of whether the recantation is
credible not a determination of which of the two, the allegation or
recantation, is the truth. McCallum is
not required to show that a different result is assured, merely that there is a
reasonable probability of a different result.
There would certainly be a different result if the jury were to accept
the recantation as truthful. Therefore,
if a reasonable jury could believe the recantation, it is sufficient to meet
this requirement.
We conclude that a
reasonable jury could believe the recantation because it is internally
consistent, was given under oath, and H.L. was advised of the criminal
consequences if the initial allegation was false. In addition, as we note later, the recantation is consistent with
circumstances that existed at the time of the allegation as proven by other
evidence. Because a reasonable jury
could believe the recantation or at least the recantation could create a
reasonable doubt as to the validity of the original allegation, the requirement
of a reasonable probability of a different result is met.
The trial court applied
the wrong standard when it determined that there was no reasonable probability
that a different result would occur at trial.
The trial court did not determine that a reasonable jury could not
believe the recantation; it only determined that the recantation was less
credible than the original allegation.
Thus, the trial court chose between the allegation and recantation and
determined which was true. Because the
trial court concerned itself with truth rather than determining whether a
reasonable jury could believe the recantation, it applied an erroneous principle
of law in its exercise of discretion which is a misuse of discretion requiring
reversal. See Martinez,
150 Wis.2d at 71, 440 N.W.2d at 787. It
is the jury's role to determine which of the two contradictory statements it
believes. When the trial court chose
between the statements it determined the truth not whether a reasonable jury
could believe and therefore intruded on the province of the jury.
We further conclude that
the trial court correctly held that the recantation must be corroborated by
other newly discovered evidence before a new trial is warranted. Nicholas v. State, 49 Wis.2d
683, 694, 183 N.W.2d 11, 17 (1971).
McCallum cites State v. York, 704 P.2d 1252, 1255 (Ct.
App. Wash. 1985), for the proposition that the corroboration requirement should
be eliminated. We are unpersuaded. The corroboration requirement has existed in
Wisconsin since Dunlavy v. Dairyland Mut. Ins. Co., 21 Wis.2d
105, 124 N.W.2d 73 (1963), and has been reaffirmed repeatedly. See Rohl v. State, 64
Wis.2d 443, 453, 219 N.W.2d 385, 389 (1974); Zillmer, 39 Wis.2d
at 615-16, 159 N.W.2d at 673; State
v. Marcum, 166 Wis.2d 908, 928, 480 N.W.2d 545, 555 (Ct. App.
1992). Accordingly, we conclude that
Wisconsin requires corroboration with other newly discovered evidence before a
recantation will warrant a new trial.
We conclude, however,
that the 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.
In this case, H.L.'s
statement as to her motives to falsely accuse McCallum constitutes evidence
supporting the validity of the recantation.
H.L. testified that she made the false allegations because she wanted
her parents to reconcile, she resented McCallum for trying to take her father's
place, and she was angry at McCallum for disciplining her. H.L's testimony explaining her motives for
falsely accusing McCallum given after the conviction constitutes newly
discovered evidence. Therefore,
evidence corroborating the truthfulness of the motive also qualifies as newly discovered
evidence.
H.L.'s motives to
falsify are feasible and can be corroborated by other evidence. This additional evidence provides the
necessary circumstantial guarantees of trustworthiness. Examples of such evidence that could be
verified include: Sandra and her
husband's marital relationship at the time of the allegation, the disciplinary
problems involving H.L.'s misconduct at the time of the allegation, and
McCallum's administering discipline for her misconduct.
We conclude that
Sandra's testimony provides the necessary corroboration. Sandra testified at the postconviction
hearing that she and her husband were separated and in the process of getting a
divorce at the time of the allegation, that there were disciplinary problems
with H.L. skipping school and coming home late, that much of the disciplinary
burden fell on McCallum at the time and that McCallum had administered the
discipline for H.L.'s misconduct. These
circumstances render the recantation plausible and are sufficient to meet the
corroboration requirement when no other form of corroboration is possible. We therefore conclude that the trial court
erred when it denied McCallum's motion to withdraw his plea. Accordingly, we reverse the order and direct
the court to order a new trial.
By the Court.—Order
reversed and cause remanded.