State v. Beach

Decision Date14 May 2013
Docket NumberDA 11-0723
Citation2013 MT 130
PartiesSTATE OF MONTANA, Plaintiff and Appellant, v. BARRY ALLAN BEACH, Defendant and Appellee.
CourtMontana Supreme Court


District Court of the Fifteenth Judicial District,

In and For the County of Roosevelt, Cause No. 1068-C

Honorable E. Wayne Phillips, Presiding Judge


For Appellant:

Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant
Attorney General; Helena, Montana

For Appellee:

Terrance Lee Toavs; Law Offices of Terrance L. Toavs; Wolf Point, Montana
Peter K. Camiel; Mair & Camiel, P.S.; Seattle, Washington


ClerkJustice Jim Rice delivered the Opinion of the Court.

¶1 The State of Montana appeals from the order of the Fifteenth Judicial District Court, Roosevelt County, granting Barry Allen Beach (Beach) a new trial in the matter of the homicide of Kim Nees (Nees). We reverse the District Court, and address this issue:

¶2 Did the District Court err by concluding that Beach was entitled to a new trial because he had demonstrated his actual innocence?


¶3 In the early morning hours of June 16, 1979, police officers of the Fort Peck Tribe discovered Nees's body floating in the Poplar River. She had been bludgeoned to death. On January 7, 1983, Beach confessed to killing Nees, and, on April 13, 1984, a jury convicted him of deliberate homicide. The court sentenced Beach to 100 years in the Montana State Prison without the possibility of parole.

¶4 Beach has challenged his conviction in the courts and applied for clemency. In 1985, Beach appealed to this Court. We upheld his conviction and sentence. State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985). In 1995, Beach filed a petition for postconviction relief. We dismissed Beach's petition because it had been filed beyond the five-year statutory limitation period, and Beach did not submit new evidence establishing that he did not kill Nees. Beach v. Day, 275 Mont. 370, 913 P.2d 622 (1996). Beach then filed a petition for habeas corpus in federal court, asserting his actual innocence. United States Magistrate Judge Anderson recommended that Beach's petition be denied because Beach was procedurally barred from presenting his constitutionalclaims, and his "presentation of 'new evidence' d[id] not warrant a finding of actual innocence as an exception to the procedural bar." Beach v. Mahoney, CV-92-92-BLG-RWA (D. Mont. Aug. 6, 1997). Federal District Court Judge Shanstrom agreed with Judge Anderson and denied Beach's petition, holding that Beach's evidence was insufficient "to warrant a finding of actual innocence . . . ." Beach v. Mahoney, CR 92-92-BLG-JDS (D. Mont. Mar. 31, 1998). The Ninth Circuit affirmed. Beach v. McCormick, 191 F.3d 459 (9th Cir. 1999) (table). In 2005, Beach filed an application for executive clemency with the Montana Board of Pardons and Parole (the Board). The Board denied Beach's application because he had "not satisfactorily proven [his] innocence of the crime or submitted newly discovered evidence showing complete justification or non-guilt." (Emphasis in original.) In 2006, Beach submitted an application to Governor Brian Schweitzer who referred it back to the Board. A three-member panel (the Clemency Panel) of the Board held a three-day hearing to determine if Beach's new evidence established his "actual innocence." On August 20, 2007, the Clemency Panel denied Beach's application because "[n]o proof of innocence, or newly discovered evidence of non-guilt or justification ha[d] been presented."

¶5 In 2008, Beach filed another petition for postconviction relief in state district court, alleging that newly discovered evidence proved his actual innocence. The district court summarily denied Beach's petition in a one-page order. On appeal, we reversed and remanded for the district court to hold an evidentiary hearing on the newlydiscovered evidence alleged in Beach's petition. Beach v. State (Beach I), 2009 MT 398, ¶ 51, 353 Mont. 411, 220 P.3d 667.

¶6 On remand, the District Court held a three-day hearing, and took testimony from witnesses that suggested a group of teenage girls had killed Nees. The District Court concluded that Beach had presented sufficient evidence of his "actual innocence" to warrant a new trial. The District Court subsequently released Beach from the Montana State Prison pending appeal.

¶7 The State appeals.


¶8 The standard of review of a district court's disposition of a petition for post-conviction relief is whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Griffin v. State, 2003 MT 267, ¶ 7, 317 Mont. 457, 77 P.3d 545; Porter v. State, 2002 MT 319, ¶ 13, 313 Mont. 149, 60 P.3d 951. However, an actual innocence claim brought in a postconviction relief proceeding presents a unique posture for the reviewing court. The petitioner has been duly convicted—the State has introduced evidence sufficient for a jury to find the petitioner guilty beyond a reasonable doubt. Before overturning that verdict, the reviewing court must determine whether the petitioner has supported his innocence claim "with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865 (1995); accord Herrera v. Collins, 506 U.S. 390,417-18, 113 S. Ct. 853, 869-70 (1993). To determine if the evidence is "reliable," the reviewing court must analyze "whether the new evidence is trustworthy by considering it both on its own merits and . . . in light of the pre-existing evidence in the record." Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (Sotomayor, J.) (citing Schlup, 513 U.S. at 327-28, 115 S. Ct. at 867); Herrera, 506 U.S. at 418, 113 S. Ct. at 870; State v. Redcrow, 1999 MT 95, ¶ 37, 294 Mont. 252, 980 P.2d 622. The court must then combine the new reliable evidence with the old trial evidence and determine whether a reasonable jury presented with this hybrid record would find the petitioner guilty. Herrera, 506 U.S. at 418, 113 S. Ct. at 870; Schlup, 513 U.S. at 329, 115 S. Ct. at 868; House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2078 (2006); Redcrow, ¶ 37. Because the determination as to "whether no reasonable juror would find a petitioner guilty beyond a reasonable doubt is a mixed question of law and fact, we review the district court's ultimate finding of actual innocence de novo." Menefee, 391 F.3d at 163; House, 547 U.S. at 539-40, 126 S. Ct. at 2078.


¶9 As noted above, in 2008 Beach filed another petition for postconviction relief, alleging that newly discovered evidence demonstrated his "actual innocence." Beach I, ¶ 13. The postconviction statutes applicable to Beach's conviction required him to bring his claim within five years of his conviction. Section 46-21-102, MCA (1995); Beach I, ¶ 23. While there was no statutory exception to this time bar, we have recognized an equitable tolling of the time limit when "strict enforcement would result in a fundamentalmiscarriage of justice." Beach I, ¶ 23; State v. Perry, 232 Mont. 455, 462, 758 P.2d 298, 273 (1988) (overruled on other grounds in State v. Clark, 2005 MT 330, ¶ 32, 330 Mont. 8, 125 P.3d 1099). The "fundamental miscarriage of justice" exception applies when the petitioner shows he is "actually innocent" of the crime for which he was convicted. State v. Pope, 2003 MT 330, ¶¶ 40-53, 318 Mont. 383, 80 P.3d 1232.

¶10 In Beach I, we cited the five-prong test outlined in State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099 as the usual framework to determine whether "newly discovered evidence" warranted a new trial:

(1) The evidence must have been discovered since the defendant's trial;
(2) The failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part;
(3) The evidence must be material to the issues at trial;
(4) The evidence must be neither cumulative nor merely impeaching; and
(5) The evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.

Beach I, ¶ 38 (quoting Clark, ¶ 34). However, recognizing that Clark was not a postconviction relief case where the petitioner was filing beyond the statutory time bar, we modified the fifth element of the test to "conform to the miscarriage of justice standard." Beach I, ¶ 48. To satisfy the modified fifth element, Beach was required to demonstrate his "actual innocence." Beach I, ¶¶ 42-43.


¶11 We have recognized two species of "actual innocence" claims—substantive and procedural. In Pope and Beach I, we discussed the substantive innocence framework from Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 (1993), and the proceduralinnocence framework from Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995). Pope, ¶¶ 40-49; Beach I, ¶¶ 29, 44.

A. Substantive Actual Innocence—Herrera "Freestanding" Claim.

¶12 A Herrera substantive, or "freestanding," innocence claim alleges that newly discovered evidence demonstrates that the petitioner is "actually innocent" of the crime for which he was convicted in the true sense of this phrase—that the defendant truly did not commit the crime. Herrera, 506 U.S. at 417, 113 S. Ct. at 869. However, a duly convicted defendant remains guilty "in the eyes of the law" and carries presumed guilt, not innocence. Herrera, 506 U.S. at 399, 113 S. Ct. at 860. The presumption of guilt combined with the substantial interest in finality of convictions "necessarily" makes the threshold for Herrera freestanding claims of innocence "extraordinarily high." Herrera, 506 U.S. at 417, 113 S. Ct. at 869. Because the petitioner's evidentiary showing was particularly weak in Herrera, the Court denied relief without stating what burden must be met to satisfy this "extraordinarily high" threshold. Herrera, ...

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