Julian v. State, 20000601.

• Court: Supreme Court of Utah
• Writing for the Court: HOWE, Justice
• Citation: 2002 UT 61,52 P.3d 1168
• Parties: Larry JULIAN, Plaintiff, Appellee, and Cross-Appellant, v. STATE of Utah, Defendant, Appellant, and Cross-Appellee.
• Docket Number: No. 20000601.,20000601.
• Decision Date: 02 July 2002

52 P.3d 1168
2002 UT 61

Larry JULIAN, Plaintiff, Appellee, and Cross-Appellant,
v.
STATE of Utah, Defendant, Appellant, and Cross-Appellee

No. 20000601.

Supreme Court of Utah.

July 2, 2002.

52 P.3d 1169

J. Thomas Bowen, Jennifer Gowans, Midvale, for plaintiff

Mark L. Shurtleff, Att'y Gen., Erin Riley, Asst. Att'y Gen., Salt Lake City, for defendant.

HOWE, Justice:

INTRODUCTION

¶ 1 The State appeals from a judgment of the district court granting post-conviction relief to appellee Larry Julian on the ground of newly discovered evidence.

BACKGROUND

¶ 2 In 1987, a jury convicted Julian of two counts of aggravated sexual abuse of a child, in violation of Utah Code Ann. § 76-5-403.1 (1978 & Supp.1985), for acts of sodomy committed on his daughters, A, age eight, and N, age ten. The evidence against Julian consisted entirely of (1) the young girls' testimonies, (2) statements that they had made to third persons, (3) expert medical testimony stating that N showed no signs of sexual abuse and that A exhibited scarring on her vaginal opening that could have been caused either by sexual abuse or by other non-abuse events such as masturbation, and (4) expert medical testimony that traces of blood on A's underclothes also could have been caused by sexual abuse or non-abuse events. The trial court sentenced Julian to two concurrent prison terms of fifteen years to life. We affirmed the convictions on direct appeal. See State v. Julian, 771 P.2d 1061 (Utah 1989) (Julian I).

¶ 3 In December 1995, Julian challenged his convictions in a petition for post-conviction relief filed pursuant to rule 65B of the Utah Rules of Civil Procedure (1995). After discovery and a hearing, the trial court (the habeas court) vacated the conviction, ruling that the court at Julian's trial had committed plain error by failing to make reliability findings under Utah Code Ann. § 76-5-411 regarding testimony concerning his daughters' out-of-court statements and that there was a reasonable probability that the outcome of the trial would have been different because such findings would have been made in favor of Julian. The State appealed, and we reversed and remanded, directing the habeas court to make specific findings regarding the admissibility of the children's out-of-court statements under alternative exceptions to the hearsay rule. See Julian v. State, 966 P.2d 249 (Utah 1998) (Julian II).

¶ 4 In 1996, while Julian II was pending, the Utah Legislature enacted the Post-Conviction Remedies Act (PCRA), codified at Utah Code Ann. §§ 78-35a-101 to-110 (1996). The PCRA replaced prior post-conviction remedies with a statutory, "substantive legal remedy for any person who challenges

52 P.3d 1170

a conviction or sentence for a criminal offense and who has exhausted all other legal remedies." Id. § 78-35a-102. Also, while Julian 2 was pending, Julian learned for the first time that A had recanted her trial testimony, admitting in 1994, in conversations with her ecclesiastical advisor and her foster father, that she had lied at Julian's original trial. Relying on this new evidence, Julian filed an amended petition of post-conviction relief under rule 65C of the Utah Rules of Civil Procedure

¶ 5 On October 28, 1999, the habeas court entered a memorandum decision wherein it concluded that almost all of the children's out-of-court statements were admissible as prior consistent statements under rule 801(d)(1)(b) of the Utah Rules of Evidence. The court further concluded that statements the children made to a physician and clinical social worker were admissible under rules 803(4) and 702 of the Utah Rules of Evidence. Finally, the court concluded that Julian's trial counsel had not been ineffective.

¶ 6 In early 2000, the habeas court held an evidentiary hearing on the issue of A's recantation. A testified she was strongly pressured to falsely accuse Julian at his trial by her mother, who was dealing with substance abuse problems and had a history of physically and mentally abusing A, N, and their siblings. A also testified that interviews with counselors and group therapy sessions provided further impetus for her to lie. The habeas court subsequently granted Julian's amended petition for post-conviction relief, finding that A's testimony regarding her perjury at the original trial and her testimony regarding her mother's coercive tactics, drug problems, and abuse were credible.¹ Relying on the standards set forth in State v. James, 819 P.2d 781, 793 (Utah 1991), the court further found that A's testimony was not cumulative, could not have been reasonably discovered before trial, and would make a different result probable on retrial.

¶ 7 The State appeals, and Julian cross-appeals.

STANDARD OF REVIEW

¶ 8 When reviewing an appeal from an order granting post-conviction relief, we review the habeas court's conclusions of law for correctness and its findings of fact for clear error. Seel v. Van Der Veur, 971 P.2d 924, 926 (Utah 1998); Julian 2, 966 P.2d at 252.

ANALYSIS

¶ 9 The State urges us to reverse the habeas court's grant of post-conviction relief, contending that the trial court erred by not reviewing and denying Julian's amended petition under the heightened standard imposed by the PCRA. Alternatively, it asserts that Julian's petition fails under our prior post-conviction case law because A's recantation does not rise to the level that there is a substantial likelihood that a jury will render a different result on retrial. Julian cross-appeals, contending that the habeas court erred in denying post-conviction relief based on ineffective assistance of counsel, in admitting certain of the girls' out-of-court statements, and in refusing to admit expert testimony regarding N. We address each issue in turn.

I. APPLICABILITY OF THE PCRA TO JULIAN'S AMENDED PETITION

¶ 10 The State argues that because Julian amended his petition after the enactment of the PCRA, the habeas court erred by not reviewing Julian's amended petition under the heightened standard contained in the PCRA.

¶ 11 Section 78-35a-103 of the PCRA provides, however, that "this chapter applies only to post-conviction relief proceedings filed on or after July 1, 1996." Utah Code Ann. § 78-35a-103 (1999). Julian's December 1995 petition for post-conviction relief will constitute the same proceeding until its final resolution on appeal. See Boucofski v. Jacobsen, 36 Utah 165, 172, 104 P. 117, 120 (1909) (stating that "[a] case is pending from the time of its commencement until its final

52 P.3d 1171

determination on appeal"). Julian's amendment of the original petition is part of the original proceeding; it does not constitute a separate one. See Black's Law Dictionary 1204 (6th ed.1990) (stating that a proceeding includes "all possible steps in an action from its commencement to the execution of judgment"). Consequently, section 78-35a-103 precludes application of the PCRA to Julian's amended petition

¶ 12 Even if the PCRA were silent as to its effective date, it still would not apply to Julian's amended petition. "[S]tatutory enactments which affect substantive or vested rights generally operate only prospectively [and] the substantive law to be applied throughout an action is the law in effect at the date the action was initiated." Dep't of Social Servs. v. Higgs, 656 P.2d 998, 1000 (Utah 1982). Law is substantive if it "creates, defines and...