Marble v. State
| Decision Date | 14 August 2015 |
| Docket Number | No. DA 13–0763.,DA 13–0763. |
| Citation | 380 Mont. 366,355 P.3d 742,2015 MT 242 |
| Parties | Cody William MARBLE, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee. |
| Court | Montana Supreme Court |
For Appellant: Colin M. Stephens (argued), E. Lars Phillips (argued), Smith & Stephens, P.C., Missoula, Montana, Brendan McQuillan, Montana Innocence Project, Missoula, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K. Plubell (argued), Assistant Attorney General, Helena, Montana, Kristen H. Pabst, Missoula County Attorney, Missoula, Montana.
¶ 1 Cody Marble appeals the Fourth Judicial District Court's denial of his petition for postconviction relief (PCR). This case has a lengthy history. In 2002, Marble was convicted of sexual intercourse without consent. The victim, then thirteen-year-old Robert Thomas, testified at Marble's trial that Marble forcibly engaged in anal sexual intercourse with him in the shower at the Missoula County Detention Center where both boys were temporary inmates for juvenile offenses. In 2010, Thomas recanted his accusations in writing. Based upon those recantations, Marble petitioned for postconviction relief seeking, among other things, a new trial. The District Court denied the petition. Marble appeals. We reverse the order of the District Court and remand for proceedings in accordance with this Opinion.
¶ 2 We restate the issues before the Court as follows:
¶ 3 Did the District Court err in predicating its decision upon the concurring opinion in State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 (Beach II1 )?
¶ 4 If reliance on the Beach II concurrence was error, what test must a district court employ in reviewing a petition for postconviction relief based upon newly discovered evidence and filed within one year of discovery of such evidence?
¶ 5 In 2002, seventeen-year-old Cody Marble spent several weeks in Pod C of the Missoula County Detention Center (MCDC) with seven other boys, aged 13 to 18. According to MCDC taped footage and eyewitness testimony, on the evening of March 10, 2002, between 9:00 p.m. and 9:45 p.m., while at least four other pod mates were gathered in the common area just outside the showers, Thomas and Marble voluntarily entered a shower stall together. Approximately ten minutes later, they left the shower area and Thomas went to his cell just prior to the 10:00 p.m. lights out deadline. Thomas later claimed that during the ten minutes he was in the shower stall with Marble, Marble told him to remove his pants and grab his ankles. Thomas claimed that after being threatened if he refused, Thomas complied at which time Marble had anal sexual intercourse without consent with Thomas. Thomas asserts that as they left the shower area, Marble threatened him with bodily harm again and then instructed him to tell the others that it was just a joke and that Marble had not sodomized him. Thomas did not report the alleged assault to the MCDC staff.
¶ 6 On March 13, both boys were released from MCDC and went home to then respective families. On March 21, 2002, Marble was charged with felony sexual intercourse without consent after other Pod C inmates reported to the Detention Center authorities that Marble had raped Thomas in the showers on March 10. Later, those same inmates and Thomas testified against Marble at trial. Marble asserted the rape never occurred and that he was the victim of a malicious set-up by other boys in the pod, including Thomas. On November 22, 2002, a jury found Marble guilty. In January 2004, Marble was sentenced to twenty years, with fifteen suspended.
¶ 7 Marble has consistently maintained his innocence since he was accused, and his case has been before this Court on multiple occasions. See, e.g., State v. Marble, 2005 MT 208, 328 Mont. 223, 119 P.3d 88, Marble v. State, 2007 MT 98, 337 Mont. 99, 169 P.3d 1148, and State v. Marble, 2010 MT 210N, 2010 WL 3876867.2
¶ 8 In the late fall of 2009, Marble contacted the Montana Innocence Project. Marble had heard rumors that Thomas, who was serving time for statutory rape, was telling other inmates that Marble did not rape him. Marble asked the Innocence Project to contact Thomas and investigate. The Innocence Project interviewed Thomas approximately four times between December 23, 2009, and July 2010. Thomas verbally recanted his rape claim on each occasion but initially refused to provide a written statement.
¶ 9 In July 2010, Thomas handwrote the following recantation:
8 or so years ago when I was 13 at Missoula County Juvenile Detention Facility I was sitting at a table in the dayroom. There were three other people at the table. They told me to say that Cody Marble raped me. But this did not happen. And now today I want to come out and let it be known. I'm coming forward now because I'm in prison on a sex crime and know what it is like. So I don't want him to be charged with one when innocent. When I was in jail, I was the youngest & smallest and I was pressured into going along with it.
Thomas provided this letter to attorneys with the Montana Innocence Project. A few days later, an Innocence Project lawyer returned with a typed letter of recantation for Thomas's signature. This letter was more detailed than Thomas's earlier handwritten note. It unequivocally stated that the rape did not occur and that Thomas had participated in a conspiracy against Marble. Thomas made a handwritten correction to one of the statements and initialed and dated the correction. He then signed and dated the typed letter and returned it to the Innocence Project lawyer.
¶ 10 Based upon these letters, on December 14, 2010, Marble filed a petition for postconviction relief, the denial of which is currently on review before us. The District Court ordered that Thomas be deposed. At both his deposition in January 2012 and later at the October 24, 2012 PCR hearing, Thomas testified that the rape did occur as he claimed in 2002 and that because the Innocence Project lawyers called him a liar, he recanted and told them what they wanted to hear. He also testified that he thought the Innocence Project might help him with his legal problems if he cooperated with them.
¶ 11 In November 2013, the District Court denied Marble's petition. The court predicated its decision upon the concurring opinion in Beach II and decided that Thomas's recantation did not “affirmatively and unquestionably establish” that Marble was innocent and therefore his petition for PCR failed. Marble filed a timely notice of appeal.
¶ 12 On April 7, 2014, while on parole, Thomas had an encounter with the Havre police that resulted in a 21–hour standoff ending with Thomas's suicide.
¶ 13 “We review a district court's denial of a petition for post-conviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct.” Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220 P.3d 667 (citing Heath v. State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d 118 ). “We review discretionary rulings in post-conviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion.” Beach, ¶ 14; Hamilton v. State, 2010 MT 25, ¶ 7, 355 Mont. 133, 226 P.3d 588.
¶ 14 Did the District Court err in predicating its decision upon the concurring opinion in
State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 (Beach II) ?
¶ 15 Marble's petition for postconviction relief was brought under § 46–21–102(2), MCA. In its entirety § 46–21–102, MCA, provides:
¶ 16 The State does not argue that Marble's petition was untimely, nor does it assert that Marble's awareness of inmate rumors triggered the one-year clock to begin running. Marble's representative—the Innocence Project—heard from Thomas for the first time on December 23, 2009, that the rape had not occurred. Marble filed his petition for PCR on December 14, 2010. Consequently, Marble's petition was not time-barred.
¶ 17 Marble asserted in the District Court that the newly discovered evidence consisting of Thomas's repeated recantations entitled him to a new trial. He maintained that his PCR petition should be analyzed under § 46–21–102(2), MCA, and State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099. The State argued that his claim for PCR relief should be treated as a substantive claim of actual innocence in accordance with the analysis set forth in the concurring opinion in Beach II, and should not be premised on Clark.
¶ 18 The District Court adopted the State's argument and conducted a lengthy analysis of Marble's claim of innocence under the Beach II concurrence. The court concluded that in making a substantive claim of innocence under § 46–21–102(2), MCA, Marble must not only raise doubt about his guilt, but...
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