State v. Lawrence

• Decision Date: 31 December 1986
• Docket Number: No. 15454,15454
• Citation: 730 P.2d 1069,112 Idaho 149
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Vicki LAWRENCE, a/k/a Vicki Dillon, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1069

730 P.2d 1069

112 Idaho 149

STATE of Idaho, Plaintiff-Respondent, v. Vicki LAWRENCE, a/k/a Vicki Dillon, Defendant-Appellant.

No. 15454.

Court of Appeals of Idaho.

Dec. 31, 1986.

Van G. Bishop, Nampa, for defendant-appellant.

Jim Jones, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Myrna A.I. Stahman (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

Vicki Lawrence stands convicted by a jury of violating I.C. § 18-6607, the statute proscribing lewd and lascivious conduct with minors. On appeal she raises a potpourri of issues. She contends, first, that the district court should have ordered a new trial after a state's witness recanted testimony given against her. Second, she argues that her trial was tainted (a) by admission of expert testimony concerning the behavior of children in reporting sexual abuse, and (b) by exclusion of evidence showing her lack of complicity in other, uncharged incidents of abuse. Finally, she asserts that her sentences, described later in this opinion, are procedurally defective and impermissibly penalize her for adhering to a claim of innocence. We find no error in the district court's evidentiary rulings or in the sentences imposed. However, for reasons to which we now turn, we vacate the judge's order denying a new trial and we remand the case for reconsideration on that issue.

I. Recanted Testimony

The prosecutor's information accused the appellant of a variety of acts against children. She had been caring for three of the alleged victims while their mother was in the hospital. A fourth alleged victim was the appellant's own daughter. Count I charged the appellant with aiding and abetting her husband, Dale Eugene Lawrence, in an attempt to force an eleven-year-old girl to make oral contact with the husband's exposed penis. The witnesses to this alleged incident were the victim and the husband. Count II alleged that the appellant had molested a six-year-old girl by rubbing and scratching her vagina while she was in a bathtub. Again, the witnesses were the victim and the husband, who claimed to have observed the event. Count III charged the appellant with compelling a nine-year-old boy to disrobe and to engage in sexual contact with the appellant's minor daughter. The state's witnesses were the boy and the husband, who claimed to have overheard the event from an adjacent room. The appellant's daughter denied that the event occurred. The appellant herself emphatically denied all of the incidents alleged in the prosecutor's information. ¹ The jury evidently was persuaded otherwise.

Several months after the trial, the husband signed an affidavit asserting that his trial testimony was "completely false in that he had no personal knowledge as to the statements he made...." He also averred that the mother whose three children allegedly had been victimized "explained to him what his testimony needed to consist of in order that it conform to the testimony of the ... alleged victims." Relying upon this affidavit, the appellant filed a motion for a new trial. An evidentiary hearing was conducted. The state endeavored at the hearing to show that the husband lied when recanting his prior testimony. The victims' mother denied that she had influenced the testimony. Moreover, as noted during the trial itself, the husband had a long string of criminal convictions, undermining his credibility. At the close of the hearing, the district judge ruled as follows:

I think probably the real central issue in this case, and one I have been trying to zero in on or put the most deliberation into is number C on this brief that you just handed to the Court. That is, whether or not, if the Court granted a new trial, it would probably produce an acquittal.

Taking into consideration the trial itself, the entire record, the testimony that the Court received today, and the exhibits presented in evidence, I am confident in my mind it would not produce an acquittal. If there had only been one child testify there may be a stronger argument, but I think with the corroboration that exists, the testimony of the three witnesses, and other matters that the jury had before it, the result would have likely been the same.

As far as Mr. Lawrence testifying as a witness for the state, I think his credibility is null and void anyway. I am completely confident at this point in time if he did change and testify for the defendant, that the jury would be advised of the switch back and forth in his testimony, and that it would receive little or no weight and would not be influential in the jury's decision.

My own evaluation of the testimony at the time of trial, I placed little or no credence on his testimony. I advised the appellant at the time of sentencing that I felt she was guilty, even though I knew she was contending she was innocent at that point. I just don't feel anyone at any time has placed any credence or real weight on the testimony of Mr. Lawrence. I believe that the harmless rule [sic] is particularly applicable in this case. [Emphasis added.]

The judge's remarks, referring on one hand to the probability of an acquittal and on the other hand to a standard of harmlessness, illustrate two different approaches to the problem of recanted testimony. One approach has been to treat the recantation as a form of newly discovered evidence. When a new trial is sought upon such evidence, the moving party must satisfy what has come to be known as the "Berry" test. This multi-part test, named after the case of Berry v. State, 10 Ga. 511 (1851), includes a requirement that the new evidence probably would produce a different result. Berry has been adopted in substance by most state and federal courts. 3 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 557 (2d ed. 1982) (hereinafter WRIGHT). It was approved by our Supreme Court in State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976).

A second approach has been to treat recanted testimony as a problem distinct from newly discovered evidence. Perjured testimony affects the integrity of the judicial process in a way that overlooked evidence does not. WRIGHT § 557.1. Moreover while a rigorous standard for obtaining a second trial upon new evidence may be justified as an incentive for the parties to marshal evidence and to present it at the first trial, the parties need no such incentive to combat perjury. The seminal decision establishing a distinct test for recanted testimony is Larrison v. United States, 24 F.2d 82 (7th Cir.1928). There, as in the present case, a government witness announced after trial that he had given false testimony. The Larrison court held that a new trial should be granted when (a) "[t]he court is reasonably well satisfied that the testimony given by a material witness is false," (b) "[t]hat without it the jury might have reached a different conclusion," and (c) "[t]hat the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial." (Emphasis original.) ²

Those courts which fail to discern any functional difference between the recantation of trial testimony and the discovery of new evidence after trial have applied the Berry test in both situations. E.g., United States v. Krasny, 607 F.2d 840 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980). However, most courts now apply the Larrison test to recanted testimony. E.g., United States v. Stofsky, 527 F.2d 237 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 66, 50 L.Ed.2d 80 (1976); see generally WRIGHT § 557.1.

In Idaho, the relationship between Berry and Larrison has not been explored thoroughly. However, our Supreme Court, without mentioning Berry or its adoption in Drapeau, has cited Larrison with approval. In State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1986), the Supreme Court explicitly noted Larrison's three elements. The court then reformulated Larrison as follows:

[U]nder the holding of Larrison, it would seem that in appropriate circumstances, where a defendant submits an affidavit by a government witness in which the witness recants his testimony and specifies in what ways he dishonestly testified and in what ways he would, if given the opportunity to testify again, change that testimony and where a defendant makes a showing that such changed testimony may be material to a finding of his guilt or innocence, a new trial should be held.

110 Idaho at 385, 716 P.2d at 1157 (emphasis added).

The principal difference between Berry and Larrison is that the former precludes a new trial unless a different result is "probable," while the latter requires only that the recanted testimony appear to be "material." But this difference may not be as profound as it seems. Testimony is material if it reasonably could have affected the outcome. Conversely, the probability of a different result in a criminal case turns narrowly on whether the new evidence is likely to raise a reasonable doubt of the defendant's guilt. State v. Ames, 112 Idaho 144, 730 P.2d 1064 (Ct.App.1986). Indeed, the United States Supreme Court recently has stated that a "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 841 (1985); see also Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). The historic gap between Berry and Larrison may be closing. Nevertheless, to the extent that a gap still exists, Larrison--as interpreted in Scroggins--provides the standard for evaluating recanted testimony in Idaho.

The district judge in the present case did not have the benefit of Scroggins when he ruled on the appellant's motion for a new trial. This presumably accounts for the judge's reference to the probability of an acquittal as the "central" issue framed by the motion. The judge, albeit...