Carpitcher v. Com.

• Decision Date: 02 March 2007
• Docket Number: Record No. 060638.
• Court: Virginia Supreme Court
• Parties: Aleck J. CARPITCHER v. COMMONWEALTH of Virginia.

641 S.E.2d 486

Aleck J. CARPITCHER v. COMMONWEALTH of Virginia.

Record No. 060638.

Supreme Court of Virginia.

March 2, 2007.

George A. Somerville, (Robert A. Angle; Julia Sullivan; Kelly Makins Baugh; Troutman Sanders, on briefs), Richmond, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Michael T. Judge, Senior Assistant Attorney General, on brief), for appellee.

Present: HASSELL, C.J., and LACY, KEENAN, LEMONS, KOONTZ, and AGEE, JJ., and STEPHENSON, S.J.

OPINION BY Justice BARBARA MILANO KEENAN

This appeal arises from the Court of Appeals' dismissal of a petition for a writ of actual innocence based on non-biological evidence, in which a petitioner sought relief based on recantation evidence provided by the victim of the crimes who had given contrary testimony at the petitioner's trial. We primarily consider whether the Court of Appeals correctly applied the statutory provisions governing such petitions, Code §§ 19.2-327.10 through —327.14.

In August 1999, Aleck Jacob Carpitcher was convicted by a jury in the Circuit Court of Roanoke County (circuit court) of aggravated sexual battery, in violation of Code § 18.2-67.3(A)(1), of taking indecent liberties with a minor, in violation of Code § 18.2-370.3 and of three counts of animate object sexual penetration, in violation of Code § 18.2-67.2. The circuit court sentenced Carpitcher to a total of 73 years' imprisonment, with 35 years of that total sentence suspended.¹

The alleged victim of these offenses was H.L., who was ten years old at the time of the charged offenses and was the Commonwealth's primary witness at Carpitcher's trial.² H.L. testified at the trial that between January and May 1998, Carpitcher asked her on one occasion to touch his penis, removed her underwear and inserted his finger into her vagina on three occasions, and routinely grabbed her vagina or buttocks when he was alone with her in her mother's bedroom. H.L. admitted that she did not like Carpitcher and that she was jealous of his relationship with her mother. H.L. further testified that she did not tell her mother about Carpitcher's actions because she was afraid that Carpitcher would hurt H.L. or her mother.

Following his conviction, Carpitcher filed a petition for appeal in the Court of Appeals, which refused the petition in an unpublished memorandum opinion on the ground that H.L.'s testimony was not inherently incredible. Carpitcher v. Commonwealth, Record No. 2104-99-3 (February 22, 2000). This Court also refused Carpitcher's petition for appeal. Carpitcher v. Commonwealth, Record No. 001281 (November 7, 2000).

In March 2000, in conversations with her mother and her therapist, H.L. recanted her testimony that Carpitcher had committed the various acts she described at trial. In April 2000, H.L. wrote a letter to Governor James S. Gilmore, III, stating that she had falsely accused Carpitcher and requesting that he be released from prison.

Also in April 2000, in an interview with Carpitcher's attorney, H.L. again recanted her trial testimony, claiming that Carpitcher never touched her. However, she maintained that he once asked her to touch his penis. H.L. also stated that her mother told her that unless H.L. "[told] the truth" and recanted her testimony, she would be forced to live with her father against her wishes.

In October 2000, H.L. wrote a statement in which she claimed that her trial testimony was not true, that Carpitcher never touched her, and that she accused him of sexually abusing her because she was jealous of his relationship with her mother and she wanted to make him "go away." On another occasion, H.L. recanted her trial testimony in a sworn statement.

In November 2004, Carpitcher filed in the Court of Appeals a petition for a writ of actual innocence based on non-biological evidence under Code §§ 19.2-327.10 through —327.14. He alleged that upon consideration of H.L.'s recantation, no rational trier of fact could have found him guilty of the crimes for which he was convicted. The Commonwealth responded by filing a motion to dismiss, arguing that H.L.'s recantation was the product of duress and was otherwise insufficient to support an award of a writ of actual innocence.

The Court of Appeals determined that additional evidence was necessary and accordingly certified the following issues to the circuit court for hearing:

(1) Whether the victim in this case has recanted the testimony she gave at trial in any material way with regard to the culpability of the petitioner and (2) if such material recantation of her trial testimony has taken place, whether or not such recantation is the product of duress, undue influence or inappropriate pressure from others.

The circuit court conducted a hearing on the issues certified by the Court of Appeals. H.L., who was 17 years old at the time of the hearing, testified that her testimony at Carpitcher's criminal trial was false and that Carpitcher had never touched her or made any sexual advances toward her.

In its findings of fact certified to the Court of Appeals, the circuit court concluded that H.L. was no longer a credible witness because she had testified inconsistently about the same issues on three separate occasions.³ The circuit court was unable to determine which version of H.L.'s testimony was true. The circuit court further found that H.L. was "threatened, intimidated, and coerced to comply with the subtle and not so subtle, demands that she change her trial testimony." As a result, the circuit court could not determine whether H.L.'s recantation was true.

Carpitcher filed a brief in the Court of Appeals objecting to the circuit court's certified findings of fact, and filed a motion seeking leave to file an additional brief. The Court of Appeals denied Carpitcher's motion to submit an additional brief, concluding that the record provided an adequate basis on which to resolve the merits of the case.

The Court of Appeals held that H.L.'s recantation would be "material," within the meaning of Code § 19.2-327.11(A)(vii), only if Carpitcher proved by clear and convincing evidence either that H.L.'s recantation was "true" or that her testimony at trial was perjured. In determining that Carpitcher failed to meet this burden of proof, the Court of Appeals gave "great weight" to the circuit court's finding that because H.L. was not a credible witness, the circuit court could not determine which version of H.L.'s testimony was truthful. The Court of Appeals also found that H.L.'s trial testimony was not perjured, and noted that there was "additional evidence, discovered post-trial, that tend[ed] to corroborate H.L.'s trial testimony."

Following its review of the record, the Court of Appeals dismissed Carpitcher's petition. Carpitcher filed a petition requesting rehearing or rehearing en banc, which the Court of Appeals denied. In re: Carpitcher, Record No. 2755-04-03 (March 1, 2006). Carpitcher appeals.

In reviewing the Court of Appeals' judgment, we first observe that the Court of Appeals considers petitions for a writ of actual innocence based on non-biological evidence under its original, rather than its appellate, jurisdiction. See Code § 19.2-327.10. Upon consideration of such a petition and the supporting materials permitted by Code §§ 19.2-327.10 through —321.13, the Court of Appeals may 1) dismiss the petition for reasons of evidentiary insufficiency, 2) grant the writ and vacate the conviction upon clear and convincing evidence satisfying the designated statutory requirements, or 3) find the petitioner guilty of a lesser included offense and remand the case to the circuit court for resentencing. Code § 19.2-327.13.

This is the first occasion we have had to state the standard of review we will apply in this Court to an appeal of a final judgment of the Court of Appeals disposing of a petition for a writ of actual innocence based on non-biological evidence. The judgment before us in this appeal is based partly on factual findings certified by the circuit court in response to the Court of Appeals' order referring certain factual issues pursuant to Code § 19.2-327.12. Such factual findings are similar to circuit court findings made under Code § 8.01-654(C) in habeas corpus cases in which we have original jurisdiction and have referred factual issues to the circuit court for an evidentiary hearing. Therefore, we will apply to the factual findings contained in the record of the Court of Appeals a standard of review similar to the standard we apply to factual findings entered in our original jurisdiction habeas corpus proceedings. We will be bound by the factual findings in the present record, as approved by the Court of Appeals, unless they are plainly wrong or without evidence to support them. See Yarbrough v. Warden, 269 Va. 184, 195, 609 S.E.2d 30, 36 (2005); Lovitt v. Warden, 266 Va. 216, 229, 585 S.E.2d 801, 808 (2003), cert. denied, 541 U.S. 1006, 124 S.Ct. 2018, 158 L.Ed.2d 523 (2004); Hedrick v. Warden, 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002).

We apply a different standard of review, however, to the Court of Appeals' conclusions of law and its conclusions based on mixed questions of law and fact. Such conclusions in accordance with general principles of appellate review, are subject to our de novo consideration. See Uninsured Employer's Fund v. Gabriel, 272 Va. 659, 662-63, 636 S.E.2d 408, 411 (2006); Collins v. First Union Nat'l Bank, 272 Va. 744, 749, 636 S.E.2d 442, 446 (2006); Yarbrough, 269 Va. at 195, 609 S.E.2d at 36, Lovitt, 266 Va. at 229, 585 S.E.2d at 808.

Carpitcher argues that the Court of Appeals erred in requiring him to prove either that H.L.'s recantation was "true" or that her trial testimony was false. Carpitcher asserts that Code §§ 19.2-327.10 through -327.14 do not place this rigorous burden on a petitioner, but merely require that the new evidence be material and such that no rational trier of...