State v. McCallum
| Decision Date | 18 April 1997 |
| Docket Number | No. 95-1518,95-1518 |
| Citation | 208 Wis.2d 463,561 N.W.2d 707 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ronald V. McCALLUM, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner there were briefs by Sharon Ruhly, Assistant Attorney General, and James E. Doyle, Attorney General, and oral argument by Sally L. Wellman, Assistant Attorney General.
For the defendant-appellant there was a brief by Steven L. Miller and Miller & Miller, Green Bay, and oral argument by Steven L. Miller.
Ronald V. McCallum (McCallum) was convicted of second degree sexual assault of H.L., a minor, under Wis. Stat. § 948.02(2). The prosecution was based solely on H.L.'s uncorroborated testimony. One year after McCallum was convicted, H.L. recanted her accusation. Relying on H.L.'s recantation, McCallum filed a post-conviction motion to withdraw his Alford plea. Concluding that H.L.'s recantation was "less credible" than her original accusation, the Circuit Court for Brown County, Judge Peter J. Naze, presiding, denied McCallum's motion. The court of appeals held that the circuit court had applied the wrong legal standard in determining whether there was a reasonable probability of a different outcome, and reversed and remanded for a new trial. 1 We agree. The standard is whether there is a reasonable probability that a jury, looking at both the accusation and the recantation, would have a reasonable doubt as to the defendant's guilt. However, we reverse that part of the court of appeals' decision granting a new trial. We remand to the circuit court to apply the proper legal standard to determine whether McCallum should be allowed to withdraw his plea.
¶2 The facts pertinent to this appeal are as follows: In February 1993, McCallum, his girlfriend, Sandra L., and Sandra's daughter, H.L., lived together. Although Sandra was still married to H.L.'s father, they were in the process of divorcing. During this time, H.L. accused McCallum of sexual contact. She reported her accusation to the Green Bay police department. McCallum was charged with one count of second degree sexual assault. A preliminary hearing was held at which H.L. was the sole witness against McCallum. She repeated her accusations against him. On May 19, 1993, maintaining his innocence, McCallum entered an Alford plea and was convicted of second degree sexual assault.
¶3 In May 1994, H.L. recanted. After speaking with her mother, H.L. wrote a letter, which was given to McCallum's attorney, stating that she had made up the story of McCallum grabbing her breast so she could get him out of her mother's life. She hoped her parents would reconcile. In the letter, H.L. explained that she set up a situation "so [McCallum] didn't have a witness to back up his story." Her letter concluded:
He was arrested on Feb 26, 1993 & was sent to jail that weekend. He was released and had to move out because of the case. He was sentenced to 6 months in the County Jail for a crime he didn't commite [sic]. I realize that what I said was not the truth and I'm sorry that I said what I said. I want him to be free of all this because I feel that I commited [sic] an error so long ago that wasn't right. I just hope Ron McCallum, the corts [sic] and everybody else will forgive me ¶4 Based on H.L.'s recantation of her original statement, McCallum filed a post-sentencing motion to withdraw his Alford plea. Sandra and H.L. testified at the post-conviction hearing. During the hearing, Judge Naze explained to H.L. that she had "a right to not answer any question that might tend to incriminate her" and a right to talk to an attorney. He also explained that if she were to testify that she had lied under oath, she would be committing a criminal or delinquent juvenile offense. Consequently, the hearing was interrupted and resumed after the court appointed an attorney for H.L.
¶5 The facts elicited from H.L. and Sandra's testimony at the post-conviction hearing follow: McCallum was Sandra's boyfriend with whom she had a six-year relationship. When she heard of H.L.'s allegation, Sandra was skeptical but did not accuse H.L. of lying. Sandra maintained her relationship with McCallum throughout the case despite H.L.'s original allegation and despite the no contact order. She would have liked to have continued living with McCallum. Nonetheless, Sandra never explained to H.L. that if H.L. would admit that she lied, McCallum could live with them again. When asked whether H.L. knew of the no contact order, Sandra answered that she had never mentioned it to H.L.
¶6 In early 1993, Sandra was in the process of obtaining a divorce. During that period, H.L. was skipping school, coming home late, and not obeying house rules. Because Sandra worked nights, and McCallum worked the day shift, he was responsible for enforcing the rules and disciplining H.L.
¶7 H.L. testified that during this time, she was upset, hurt, and angry because her mother and father were going through a divorce. She blamed McCallum for the divorce and felt that he was trying to take the place of her father. She resented the fact that he was disciplining her. At the time H.L. accused him of sexual contact, McCallum had "grounded" her for almost three months. She first related her accusation to her sister, Joy, because she believed Joy would report the assault to Social Services.
¶8 In May 1994, H.L. told her mother that she had lied to the police and to the circuit court about what happened with McCallum, and she wanted to resolve it. H.L. asked her mother what she could do. Her mother replied that she could talk to McCallum's attorney or write a letter. On May 3, 1994, H.L. handed her mother a letter stating that she had lied. Sandra testified that she neither participated in the letter writing, nor knew H.L. was writing it. At H.L.'s suggestion, the letter was witnessed by Sandra and H.L.'s grandmother.
¶9 H.L. testified that everything in the letter was true and that no one told her what to say or assisted her in any way. She insisted that she had falsely accused McCallum of sexual contact; no one influenced her to recant; and she understood that she was admitting to perjury. She confessed her lie to her mother and wrote the letter because she felt that McCallum "shouldn't have a criminal record because I lied about the stuff--about him supposedly sexually assaulting me."
¶10 H.L. further testified that, at the time of her accusation, she hoped to get McCallum out of the home so that her mother and father would have a chance to get back together. She believed the accusation would accomplish this because her friend's brother had to move out of the house when he sexually assaulted his sister. She made the specific allegation "because there were no witnesses and ... no evidence."
¶11 Under cross-examination, H.L. agreed that things were "better" when McCallum was living in the home, and she was aware that in order for him to return to the home, she would have to return to court and recant her accusation.
¶12 After the hearing, the circuit court denied McCallum's motion to withdraw his Alford plea. It found H.L.'s recantation to be uncorroborated and less credible than her accusations. After finding "the victim's uncorroborated recantation to be less credible" than the accusations she made to her sister, to the police, and to the circuit court at the preliminary hearing, the circuit court concluded that there was no reasonable probability that a different result would occur at trial.
¶13 The court of appeals reversed, ordering a new trial and stating that if a reasonable jury could believe the recantation, that determination would be sufficient to meet the requirement of a reasonable probability of a different result at trial. We agree that the circuit court applied the wrong standard of law. We remand to the circuit court to apply the correct standard. In addition, the court of appeals held that corroboration is required, and McCallum has met the corroboration requirement. We agree.
¶14 This case presents three issues: (1) Whether the circuit court applied an erroneous legal standard when determining that there was not a reasonable probability of a different outcome. (2) Whether the recantation of an uncorroborated allegation must be supported by newly discovered evidence corroborating evidence of the recantation, and, if so, whether that requirement was met. (3) Whether the appropriate remedy, in this case, is remand directing a grant of the motion to withdraw the plea, or for redetermination by the circuit court, applying the correct legal standard, of McCallum's request to withdraw his plea.
¶15 After sentencing, a defendant who seeks to withdraw a guilty or no contest plea carries the heavy burden of establishing, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a manifest injustice. State v. Krieger, 163 Wis.2d 241, 249, 471 N.W.2d 599 (1991). The withdrawal of a plea under the manifest injustice standard rests in the circuit court's discretion. Id. at 250, 471 N.W.2d 599. We will only reverse if the circuit court has failed to properly exercise its discretion. Id. An exercise of discretion based on an erroneous application of the law is an erroneous exercise of discretion. State v. Martinez, 150 Wis.2d 62, 71, 440 N.W.2d 783, 787 (1989).
¶16 Newly discovered evidence may be sufficient to establish that a manifest injustice has occurred. Krieger, 163 Wis.2d at 255, 471 N.W.2d 599. For newly discovered evidence to constitute a manifest injustice and warrant the withdrawal of a plea the following criteria must be met. First, the defendant must prove, by clear and convincing evidence, that: (1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is...
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