Case v. Hatch

• Decision Date: 15 April 2008
• Docket Number: No. 29,786.,29,786.
• Citation: 144 N.M. 20,183 P.3d 905,2008 NMSC 024
• Parties: Carl CASE, Petitioner, v. Timothy HATCH, Warden of the Guadalupe County Correctional Facility, Respondent.
• Court: New Mexico Supreme Court

183 P.3d 905

2008 NMSC 024

144 N.M. 20

Carl CASE, Petitioner, v. Timothy HATCH, Warden of the Guadalupe County Correctional Facility, Respondent.

No. 29,786.

Supreme Court of New Mexico.

April 15, 2008.

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, L.L.P., Peter Shoenburg, Marc M. Lowry, Albuquerque, NM, for Petitioner.

Gary K. King, Attorney General, Steven S. Suttle, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Chief Justice.

{1} On January 30, 1982, the moderately to severely decomposed body of a teenage girl, Nancy Mitchell, was discovered in Eddy County near an area known locally as Six Mile Dam. Petitioner Carl Case was convicted by a jury on October 26, 1982 of first-degree murder and first-degree criminal sexual penetration of Mitchell. The evidence in support of his conviction included the eyewitness testimony of three teenaged witnesses, Audrey Knight, Paul Dunlap, and Bobby Autry, which, while not entirely consistent, incriminated Case. Case also testified at his trial and (1) admitted he was present during the events that led to the victim's death; (2) corroborated the presence of Knight and Dunlap at the scene, but testified that Mitchell accidentally fell. This Court affirmed his conviction in State v. Case, 100 N.M. 714, 676 P.2d 241 (1984).

{2} On December 4, 2003, over twenty years after Case's conviction, Knight and Dunlap signed affidavits recanting their trial testimony that had incriminated Case, asserting that they did not know anything about the events leading to Mitchell's death. Knight and Dunlap originally made these assertions to the police, and they were the subject of extensive cross-examination during the trial. Each of the three witnesses testified at trial under oath that their original statements to the police, denying any knowledge of the crime, were false and were made because of threats of violence from Case and others. Knight now asserts that she perjured herself at trial because of the intense pressure she felt from law enforcement. Dunlap now asserts that he perjured himself at trial because of the intense pressure he felt while incarcerated pending charges for Mitchell's rape and murder.

{3} In 2004, Case filed a verified petition for a writ of habeas corpus in state district court. In his petition Case asserted that the newly-discovered recantations by two of the three eyewitnesses violated his fundamental right to a fair trial under the due process clauses of the federal and state constitutions, and more specifically, that "the prosecution purposefully withheld knowledge that the witnesses were fabricating their testimony from the defense." The State responded to the petition, arguing that (1) the recantations were not credible; (2) the witnesses' original statements were the subject of extensive cross-examination by defense counsel; and (3) Case failed to prove that the testimony at trial was knowingly and intentionally used by the prosecution. In reply, Case asserted that he was not contending that the prosecution deliberately falsified the testimony, just that the witnesses "were young, inexperienced, and impressionable . . . who chose to accommodate the prosecution's view of events rather than challenging" the aggressive techniques of the prosecution team.

{4} During the pendency of the habeas corpus proceedings, counsel for Case discovered four taped statements made by Autry to law enforcement of Autry's version of the events that occurred on New Year's Day. Autry is the only witness who has not recanted his testimony. Case's counsel asserted that one of the four statements was not produced by the prosecution, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Following evidentiary hearings in November 2005 and February 2006, the district court denied the petition, finding that:

1) The State did not illegally suppress evidence that was materially favorable to [Case].

2) The State did not knowingly or recklessly use false testimony at [Case's] trial.

3) The recantations of Paul Dunlap and Audrey Knight do not constitute newly discovered evidence in that assuming arguendo, that their original testimony was false, [Case] knew it was false when given. [Case's] counsel could not find evidence to prove [Case's] claimed alibi and did not rebut the "false" testimony. [Case] in fact conformed his testimony to match the "false" testimony, took the stand and corroborated much of the "false" testimony with his own testimony.

4) Law Enforcement's interrogation of Paul Dunlap and Audrey Knight do not shock the conscience of the Court and do not constitute impermissible police conduct.

5) The Court does not find a new trial warranted by "cumulative error."

Because we conclude that the trial court did not abuse its discretion in concluding that the recantations did not constitute newly-discovered evidence, and that the prosecution did not suppress material evidence, we affirm the denial of the petition for writ of habeas corpus.

I. APPROPRIATE ANALYSIS FOR HABEAS RELIEF BASED ON RECANTED TESTIMONY

{5} When a witness recants his or her trial testimony, the recantation may constitute newly-discovered evidence warranting a new trial under Rule 5-614 NMRA. In evaluating the recantation testimony, the court must consider whether:

(1) the original verdict was based upon uncorroborated testimony; (2) the recantation occurred under circumstances free from suspicion of undue influence or pressure from any source; (3) the record fails to disclose any possibility of collusion between the defendant and the witness between the time of the trial and the retraction; and (4) the witness admitted [the] perjury on the witness stand and thereby subjected [himself or] herself to prosecution.

Montoya v. Ulibarri, 2007-NMSC-035, ¶ 31, 142 N.M. 89, 163 P.3d 476 (quoted authority omitted) (alterations in original). The grant of a new trial is not automatic; rather, the defendant must prove that the newly-discovered evidence meets each of the following requirements:

"1) it will probably change the result if a new trial is granted; 2) it must have been discovered since the trial; 3) it could not have been discovered before the trial by the exercise of due diligence; 4) it must be material; 5) it must not be merely cumulative; and 6) it must not be merely impeaching or contradictory."

State v. Garcia, 2005-NMSC-038, ¶ 8, 138 N.M. 659, 125 P.3d 638 (quoting State v. Volpato, 102 N.M. 383, 384-85, 696 P.2d 471, 472-73 (1985)). However, a motion for a new trial based on newly-discovered evidence must be brought within two years of the date of final judgment. Rule 5-614(C).

{6} When a witness recants testimony more than two years after final judgment, a defendant may still be entitled to relief. It has been held that the only relief available is executive clemency under NMSA 1953, Section 31-21-17 (1955) and Article V, Section 6 of the New Mexico Constitution. See State v. Minns, 81 N.M. 428, 429, 467 P.2d 1000, 1001 (Ct.App.1970). However, executive clemency as an exclusive remedy has been called into question by at least two of this Court's opinions where recanted testimony was at issue. This Court recently recognized that a free-standing claim of actual innocence entitled a defendant to habeas corpus relief under Rule 5-802 NMRA, if the petitioner proved "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Montoya, 2007-NMSC-035, ¶ 30, 142 N.M. 89, 163 P.3d 476. We also held in 1963 that a defendant could seek relief under Rule 5-802 when a "deprivation of constitutional rights amounts to a denial of due process." Johnson v. Cox, 72 N.M. 55, 57, 380 P.2d 199, 201 (1963). The latter relief is available because the "right to substantive due process embodies principles of fundamental fairness and entitles every individual to be free from arbitrary or oppressive government conduct." State v. Vallejos, 1997-NMSC-040, ¶ 31, 123 N.M. 739, 945 P.2d 957. In determining whether that right has been violated, "the inquiry on habeas corpus is directed to a review of the entire proceedings, and if the total result was the granting to [the] accused of a fair and deliberate trial, then no constitutional right has been invaded, and the proceedings will not be disturbed." Johnson, 72 N.M. at 57, 380 P.2d at 201.

{7} In reviewing a writ of habeas corpus based on recanted testimony, we must distinguish between a "knowing prosecutorial use of perjured testimony," Sanders v. Sullivan, 863 F.2d 218, 221 (2nd Cir.1988), and a "mere repudiation of former testimony or admission of perjury." Johnson, 72 N.M. at 58, 380 P.2d at 201 (being convinced after reviewing all of the proceedings that the recanting witness did not commit perjury at trial or, in any event, that perjured testimony was wilfully and intentionally used by the prosecution).

{8} The knowing prosecutorial use of perjured testimony clearly implicates the necessary state action for a violation of due process. Mooney v. Holohan, 294 U.S. 103, 112-13, 55 S.Ct. 340, 79 L.Ed. 791 (1935) ("[T]he action of prosecuting officers on behalf of the state . . . may constitute state action within the purview of the Fourteenth Amendment."); see also Duran v. N.M. Monitored Treatment Program, 2000-NMCA-023, ¶ 21, 128 N.M. 659, 996 P.2d 922 (citing Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)) (recognizing the requirement for state action in due process claims). When the petitioner alleges that the prosecution deliberately participated in the falsification, we require the petitioner to show: (1) that the original testimony was, in fact, false; and (2) "that it was knowingly, wilfully and intentionally used by the prosecution to procure the conviction." Johnson, 72 N.M. at 58, 380 P.2d at 201. The same test applies when the prosecution does not actually solicit false...