In re Carpitcher

• Citation: 624 S.E.2d 700,47 Va. App. 513
• Decision Date: 24 January 2006
• Docket Number: Record No. 2755-04-3.
• Parties: In re Aleck J. CARPITCHER, Petitioner.
• Court: Supreme Court of Virginia

624 S.E.2d 700

47 Va. App. 513

In re Aleck J. CARPITCHER, Petitioner.

Record No. 2755-04-3.

Court of Appeals of Virginia.

January 24, 2006.

COPYRIGHT MATERIAL OMITTED

Before Chief Judge FITZPATRICK, Judges ELDER and HUMPHREYS.

Upon a Petition for a Writ of Actual Innocence.

Aleck J. Carpitcher ("Carpitcher") petitioned this Court for a Writ of Actual Innocence Based Upon Nonbiological Evidence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. Carpitcher claims he is innocent of aggravated sexual battery, taking indecent liberties with a minor, and animate object sexual penetration, of which he was convicted in the Circuit Court of Roanoke County on August 30, 1999. Upon consideration of the petition, Carpitcher's memorandum in support of the petition, the Attorney General's response and motion to dismiss, Carpitcher's reply thereto, and the record, this Court remanded the matter to the trial court to certify findings of fact regarding factual issues in dispute. The trial court conducted a hearing in this matter and supplied this Court with its certified findings of fact. Upon consideration thereof, we dismiss the petition for failing to establish previously unknown or unavailable evidence sufficient to justify the issuance of the writ. See Code § 19.2-327.13(i).

I.

On August 30, 1999, a jury convicted Carpitcher of aggravated sexual battery, in violation of Code § 18.2-67.3(A)(1), taking indecent liberties with a minor, in violation of Code § 18.2-370.3, and three counts of animate object sexual penetration, in violation of Code § 18.2-67.2. The trial court imposed a prison sentence of 73 years, with 35 years suspended, resulting in an active sentence of 38 years in prison. Both this Court and the Virginia Supreme Court denied Carpitcher's petitions for appeal.

All of the convictions arose out of Carpitcher's alleged sexual abuse of H.L., the ten-year-old daughter of his then-girlfriend. H.L., who was eleven years old when she testified at the jury trial, stated that Carpitcher — on at least three separate occasions — pulled down her underwear and penetrated her vagina with his finger. H.L. also testified that, on another occasion, she saw Carpitcher urinating, and he told her to come over and touch his penis. H.L. said that she did not tell her mother about these incidents because she had seen Carpitcher act violently towards her mother on at least two previous occasions. H.L. was the Commonwealth's only witness during the trial,¹ and, thus, the jury predicated Carpitcher's convictions solely upon her testimony.²

However, in March 2000, H.L. told her therapist — who had been pressing her for details about the sexual abuse — that she had fabricated those portions of her trial testimony dealing with the inappropriate touching. H.L. told the therapist that she created the story because she missed being able to spend time with her mother. Then, in April 2000, H.L. — who was still only eleven years old — wrote a letter to the governor, which reads as follows:

Governor Gilmore,

Well I guess my Mother has informed you about Aleck Carpitcher & how I[] falsely accused him of wrongdoings. Well I just want to let everyone to know that I am sorry, but as you probably know I was only 9 years of age at the time so I actually really didn't know what exactly I was doing. I just thought that he would go away. I was wrong about that though! Well I hope this letter will help you with getting him out of prison. Thank you! Sincerely, [signature]

Later that same month, Carpitcher's trial counsel videotaped a statement by H.L. in which she said that, although Carpitcher had made an inappropriate sexual comment to her, he had never touched her inappropriately. During the interview, H.L. told Carpitcher's trial counsel that she was "coming forward now" because her "mom told [her] if [she] did not [she'd] have to go live with [her] dad and [she] hate[s] living with [her] dad."

On October 30, 2000, H.L. signed a handwritten affidavit in which she stated that her "testimony given in court during the trials against [Carpitcher] was not true ... [he] did not touch me or do any of the things I said he did." In December 2001, H.L. signed a second affidavit in which she stated that she fabricated her allegations of sexual abuse because she had decided to force an end to Carpitcher's relationship with her mother. In the affidavit, H.L. further stated that her trial testimony was untrue and that she "tried very hard to get him convicted" so that she could return to live with her mother. On at least one occasion after she initially recanted her trial testimony, however, H.L. told her mother that the sexual abuse did, in fact, occur.

On January 3, 2002, based on H.L.'s recantation of her trial testimony, Carpitcher filed a petition for a writ of habeas corpus in the Roanoke County Circuit Court, alleging that he was innocent of the crimes for which he was convicted. During the evidentiary hearing, H.L. testified that Carpitcher never touched her inappropriately, but she maintained that he had once asked her to touch his penis.

In a letter opinion dated August 11, 2003, the circuit court denied the petition for a writ of habeas corpus, holding that Rule 1:1 barred consideration of the actual innocence claim. See Carpitcher v. Hinkle, 62 Va. Cir. 391, 395 (2003). The Virginia Supreme Court denied Carpitcher's petition for appeal in the state habeas proceedings.³

On November 29, 2004, Carpitcher filed in this Court a petition for a writ of actual innocence based upon newly-discovered non-biological evidence, contending that the "newly discovered" evidence was H.L.'s post-trial statement to Carpitcher's attorney, in which H.L. asserted that her trial testimony was untrue. Carpitcher also alleged that H.L. had taken and passed a polygraph examination to "prove" that she had lied at trial and that Carpitcher had never touched her inappropriately.

The Commonwealth filed a motion to dismiss Carpitcher's petition for a writ of actual innocence, alleging that the petition was unwarranted because it was questionable whether H.L.'s recantation was, in fact, truthful. The Commonwealth also proffered an affidavit from Henry Bryant, owner of the home in which Carpitcher, H.L., and H.L.'s mother lived.⁴ In the affidavit, Bryant asserts that Carpitcher had once told him that, if H.L. lived on a reservation, she would have already been "broke in" — i.e., would no longer have been a virgin. Bryant also stated that there were occasions during which Carpitcher and H.L. were left alone together.⁵

The Commonwealth also proffered evidence that Carpitcher has a past record of statutory rape. Specifically, in one reported case from Oklahoma, an eighty-year-old woman, who had learned that Carpitcher was having sexual intercourse with her fourteen-year-old foster daughter, shot Carpitcher in the back. See Garrett v. State, 586 P.2d 754, 755 (Okla.Crim.App.1978). Also, in February of 1982, Carpitcher was charged with the rape of a seventeen-year-old woman in Oklahoma. According to the Commonwealth's proffer, the charge was subsequently dropped at the request of the victim.

After considering the Commonwealth's motion to dismiss, this Court ordered the circuit court to conduct an evidentiary hearing and to make findings of fact relating to the following two certified questions:

1. Whether the victim in this case has recanted the testimony she gave at the trial in any material way with regard to the culpability of the petitioner?

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?

On June 27, 2005, the circuit court conducted an evidentiary hearing. During the hearing, H.L. testified that she had lied both during the criminal trial and during the state habeas proceeding, stating that Carpitcher had never committed any of the alleged crimes.

As to the findings of fact relating to the first certified question, the circuit court found that, "on all three occasions when the juvenile victim was required to testify, she was a person to whom an oath was lawfully administered, and that she did, willfully, on at least two of those occasions, swear falsely to material matters or things involving one or more of the elements of the felonies for which the defendant was charged." The court further stated that, "[h]aving testified differently about the same issues on three separate occasions, she is no longer credible." However, the trial court concluded that it "cannot determine which, if any, of the three versions of her testimony is truthful." In other words, the court found that, although H.L. had lied on two of the three occasions that she testified, the court could not identify which of those three occasions was the one during which she was telling the truth. Moreover, the court held that "nothing has been proven" in terms of whether the recantation was actually true and, thus, whether H.L. perjured herself during the jury trial.

As to the second certified question, the circuit court noted that, "[d]uring the past six years the juvenile victim has been questioned over and over again concerning the events surrounding the crimes for which defendant stands convicted." The court further observed that, "[n]otwithstanding whatever inappropriate pressure those occurrences may have placed upon the child from the time she was 11 years old until now when she is 17 years old, her mother, who has never believed that her daughter was sexually abused, told her `more times that [she] can remember,' that she was sick and tired of her daughter's lies and that if she didn't tell the truth about the defendant, she could pack her bags and go live with her father." Reasoning that "[t]he infant victim was and is fearful of leaving her mother and she does not want to live with her father," and also noting that H.L. "falsely denied that...