Brown v. State

Decision Date23 August 1991
Docket NumberNo. 89-186,89-186
Citation816 P.2d 818
PartiesWalter Joe BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard Munker, State Public Defender, and Mike Cornia (argued), Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Asst. Atty. Gen., and James C. Anderson (argued), Sp. Asst. Atty. Gen., for appellee.


CARDINE, Justice.

Appellant Walter Joe Brown was convicted of incest in May 1986 based in significant part upon the testimony of his daughter (MCX) who was the victim of the incest. That conviction was affirmed on appeal. Brown v. State, 736 P.2d 1110 (Wyo.1987). Brown's motion for new trial was premised on new evidence in the form of a recantation by MCX. At the hearing on the motion for new trial, MCX testified that she lied at her father's original trial. The district court found that the recantation was not credible and denied the motion for new trial.

We affirm.


Brown claims the district court misapplied the standard for addressing motions for new trial premised on newly discovered evidence which was adopted by this court in Opie v. State, 422 P.2d 84, 85 (Wyo.1967); see also King v. State, 780 P.2d 943, 947-51 (Wyo.1989). The Opie standard requires that these four elements be present: (1) The evidence has come to defendant's knowledge since the trial; (2) it was not owing to a want of due diligence that it was not discovered sooner; (3) it is so material that it would probably produce a different verdict if the new trial were granted; and (4) it is not cumulative of other evidence presented at trial. Id. Brown claims his evidence met the requirements of the Opie test and it was an abuse of discretion for the district court to have denied the motion for new trial. The Opie test alone does not adequately address new trial motions based upon recanted testimony unless we say such testimony is immaterial under item 3 of the test if false. The Larrison test, infra, adds this same requirement in a more clear and understandable way.

Brown also asserts that the proper standard to be applied in this case is that expressed in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928). The Larrison test is a standard applied by some federal courts when a motion for new trial is based on a witness's recantation of her trial testimony. Under that standard the district court must be satisfied: (1) That the recanted testimony given by the material witness is false; (2) that in its absence a different verdict might have been reached; and (3) that the defendant was taken by surprise by the testimony when it was given and was unable to meet it, or did not know about its falsity until after the trial. It should be noted that federal courts apply a variety of standards when addressing new trial motions based on a witness's recantation of trial testimony. Annotation, Recantation of Testimony of Witness as Grounds for New Trial--Federal Criminal Cases, 94 A.L.R.Fed. 60 (1989).

In response, the State claims that the district court properly applied the Opie test and that this court need not adopt the Larrison test.


On May 23, 1989, Brown timely filed a motion for new trial in accordance with W.R.Cr.P. 34. The motion was premised on recantations made by MCX in an affidavit and a letter to the Warden of the Wyoming State Penitentiary, as well as a recantation contained in a typewritten letter signed by his other daughter (KX) who had testified at trial that she too was a victim of incest at the hands of Brown. KX's letter was written to the Governor of Wyoming for the apparent purpose of seeking executive clemency. There was no effort to establish who wrote or signed the letter to the governor, nor to authenticate it or introduce it into evidence. KX did not testify at the hearing on the motion for new trial. It might be assumed that she was unwilling, under oath, to recant her trial testimony. Thus, there is no evidence in the record that KX ever recanted her sworn testimony given at the original criminal trial.

At the hearing on the motion for new trial, the first piece of evidence to be introduced was an affidavit of a juror from the original criminal proceedings. Donna McCarty could not say for sure what others had convinced her of during the jury deliberations, but she was uncomfortable at that time with reasonable doubt. She voted to convict anyway. She talked to Judge Troughton after the trial and asserted that he said "the verdict would stand because the man was guilty and you can't second guess yourself." She also indicated that, as for her, she felt the verdict would most likely be different if the information concerning the recantation had been presented at trial.

The first testimony was from MCX, who was represented at the proceedings by counsel. Her testimony was lengthy between direct, cross, redirect, recross, re-redirect and re-recross, but the gist of her testimony was that she had lied at her father's original trial to take revenge on him for having grounded her. No other evidence was presented by Brown in support of his motion for new trial.

As the first witness for the prosecution, the district court heard testimony from a psychiatric nurse from Southwest Counseling in Rock Springs who related her experiences dealing with victims of incest. She related that there are frequently recantations in such cases because of family pressures. A transcript of the testimony of Dr. Reisinger, a psychologist and expert in dealing with cases of child sexual abuse, was admitted from the original criminal case. However, the district court made it clear that it did not consider the testimony of the experts in reaching its decision, and especially it did not consider any of their testimony that sounded like they were vouching for the credibility of witnesses.

Terry White, Manager of the Uinta County Office of the Department of Public Assistance and Social Services (DPASS), testified that MCX had been a ward of the State since October 1985 and had been placed in a variety of foster homes, group homes and a state institution. White was aware that there was a very strained relationship between MCX and her mother and that MCX indicated to him that the only way she could return home, which she desperately wanted to do, was to recant her testimony. Sonny Hodgdon, an employee of the Youth Alternative Home Association of Evanston, was acquainted with MCX from her placement there and testified that she told him she wanted to return home, and the only way she could do so was to recant her testimony. The evidence also included a certificate of appointment and letter of commendation to MCX for her service in the United States Navy which she joined in April 1989. Finally, the record of the hearing on the motion for new trial contained the records of all juvenile proceedings concerning MCX. Of special interest is MCX's testimony that her mother, Lawana Brown, told her she was no longer welcome in the family home, but that her mother had subsequently gone to counseling and accepted the things her father did to her. Lawana Brown did not testify at the hearing on the motion for new trial, but she did testify on behalf of her husband at the original criminal proceedings. Despite the fact that Brown was found guilty of molesting KX and admitted to molesting MCX during family counseling sessions, Lawana Brown testified that she did not think it was possible that her husband could have engaged in incest with MCX. MCX claimed that all incidents of incest occurred in her mother's absence.

It is also necessary for the disposition of this case to provide a summary of the salient evidence presented at the original criminal proceedings which took place in February and March of 1986. MCX testified that Brown had had sexual intercourse with her on several occasions, most recently in early August of 1985. In October of 1985, MCX reported these incidents to DPASS. MCX testified to the details of her rather long-term sexual involvement with Brown, but it is unnecessary for us to repeat any more detail concerning that relationship. Rebecca Langley testified that she was the DPASS social worker who took MCX's report and conducted an evaluation of Brown's home. This study was precipitated because KX had accused Brown of perpetrating incest on her. As a result of her accusations, criminal charges were brought against Brown, and he was placed on probation. At the time of the home study, both girls were placed in shelter care. Eventually MCX returned home, but KX remained a ward of the State and has never returned home. In one of Langley's counseling sessions with Brown, he admitted to her that as a part of a so-called "sex education program" he demonstrated what it meant for a man to have a "hard-on" by having MCX touch his erect penis. On another such "teaching/learning occasion," Brown unbuttoned MCX's blouse and massaged the nipple of her breast in order to establish that it was activity such as that which caused her to lose control of her emotions. Brown admitted to these incidents in his testimony at his trial, but denied ever having had sexual intercourse with his daughters. We note at this juncture that the specific charge against Brown at the original trial was that he had sexual intercourse with MCX in early August of 1985. KX also testified and related her incestuous relationship with Brown. Her testimony was admitted for the limited purpose of showing a common scheme or plan. A psychologist who evaluated MCX testified and expressed her opinion that her evaluation of MCX was consistent with her having been the victim of sexual abuse.


The grant or denial of a motion for new trial is within the sound discretion of the trial court. Story v. State, 788 P.2d 617 (Wyo.1990); Best v. State, 769 P.2d 385, 387-88 (Wyo.1989)....

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