US v. Provost, Crim. No. 87-30014-01.

• Decision Date: 24 October 1991
• Docket Number: Crim. No. 87-30014-01.
• Citation: 777 F. Supp. 774
• Parties: UNITED STATES of America, Plaintiff, v. Terrance Kenneth PROVOST, Defendant.
• Court: U.S. District Court — District of South Dakota

777 F. Supp. 774

UNITED STATES of America, Plaintiff, v. Terrance Kenneth PROVOST, Defendant.

Crim. No. 87-30014-01.

United States District Court, D. South Dakota.

October 16, 1991.

Amended for Publication and Re-filed October 24, 1991.

Mikal Hanson, Asst. U.S. Atty., Pierre, S.D., for plaintiff.

Robert C. Riter, Jr., Riter, Mayer, Hofer & Riter, Pierre, S.D., for defendant.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

I. FACTS

On June 26, 1987, in this Court, a jury found defendant, Terrance Kenneth Provost, guilty of aggravated sexual abuse for sexually abusing his half-sister Loretta Lee Stone, a ten year-old child, in violation of 18 U.S.C. §§ 2241(c) and 2245(2)(A). Defendant's subsequent motions for judgment of acquittal, arrest of judgment, and new trial based upon newly discovered post-trial evidence that Loretta Stone had implicated her step-brother as the person who assaulted her were denied by this Court on August 7, 1987 and the defendant appealed. On May 15, 1989, the Eighth Circuit affirmed in United States v. Provost, 875 F.2d 172 (8th Cir.), cert. denied, 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127 (1989).

Defendant, on July 15, 1991, filed in this Court a motion for new trial F.R.Crim.P. 33 based upon newly discovered evidence in the form of a material witness' recantation.

Defendant's motion for new trial is based upon Loretta Stone's post-trial recantation of her prior allegations and testimony that defendant, Terrance Provost, sexually abused her. In support of his motion, defendant has submitted affidavits by Shirley Marvin, Loretta's mother, and Loretta's treating clinical psychologist, Dr. Frank Buzzetta, which contain statements by Loretta tending to exonerate defendant of the sexual abuse charges, and which instead, implicate Loretta's step-brother Shane Stone.

Dr. Buzzetta's affidavit states that during a treatment session with Loretta on June 25, 1991, Loretta told Dr. Buzzetta that defendant had not sexually assaulted her, and instead, that it was Shane Stone. The affidavit illustrates Dr. Buzzetta's belief that Loretta has been "truthful and open" to him in recanting her prior accusations against Terrance Provost.

Shirley Marvin's affidavit includes two letters written by Loretta addressed to defendant in prison. The first letter relates:

This is a letter of apologie (sic) ... for everything I put you through you never touched me Shane did but I couldn't say anything because I was living there. I told my dad once when I was at Mchennan Hospital But exploded and called me a liar. I told NANO But she just Glared at at me and nothing was said after that ...

I tried so hard to tell them that it was Shane But NOBODY Belived (sic) me ... Im (sic) sorry I put you through Hell. now it hurts me so bad.... When I tried sucide (sic) my 3 times it was because of my guilt of lying and not Being able to tell the truth. I fully understand if you dispise (sic) me. its (sic) understandable. But remember I will always love you and feel guilt for what I did. please (sic) write me and tell me your feelings about this. as Always Loretta Stone (sic)

Exhibit 1 attached to Affidavit of Shirley Marvin.

Letter two, dated July 19, 1991, four days after defendant's motion for new trial was filed, is similar to the first letter. It reads in part:

This is a letter of apologie (sic). You have done nothing pertaining to sexual molestation toward me. I have lived with the pain of this lie as well as you. I can't fully understand the extent of your pain and suffering or you mine ... I am scared now because I could be put in juvi (sic) for pergury (sic) in court — (lying) But if that is the fate that is chosen to befall me I will take my medician (sic) ... I feel sad for mother (sic) She has worn lines of hate and worry upon her face.

Exhibit 2 attached to Affidavit of Shirley Marvin. The second letter also includes the notation: "P.S. Mother wanted me to send both letters. So I shall."

Defendant's counsel alleges that this newly discovered evidence explains discrepancies in the testimony given at trial. For instance, defendant claims that Loretta Stone's recantation now explains the fact that defendant was not infected by chlamydia despite the presence of the infection in Loretta Stone. In addition, the recantation, according to defendant, explains the fact that Loretta's initial physical examination shortly after the assault failed to show a torn hymenal ring while a similar examination three months later, at the time Loretta was living with her father and Shane Stone, illustrated a partial tear. The government resists the motion for new trial and alleges that Loretta Stone has been pressured by third parties, namely, family members, into recanting her prior accusations against defendant. As evidence of this, the government notes that Loretta has been living with her mother or her mother's relatives during the time her testimony conversion has taken place. The government argues that the motion for new trial is a last-ditch attempt to avoid the two-year statute of limitations barring motions for new trial.

II. DISCUSSION

Before reaching the merits of defendant's motion for new trial, a procedural matter must be considered.

A. Timeliness of Defendant's Motion for New Trial

Defendant was convicted of aggravated sexual abuse on June 26, 1987. The conviction was affirmed on appeal. United States v. Provost, 875 F.2d 172 (8th Cir. 1989). The Eighth Circuit issued its mandate of affirmance on July 19, 1989.

Under Rule 33 of the Federal Rules of Criminal Procedure, a "motion for new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment...." The requirements of Rule 33 are jurisdictional, that is, a district court may not consider an untimely motion for new trial. United States v. Spector, 888 F.2d 583, 584 (8th Cir.1989). When considering the timeliness of a motion for new trial under Rule 33, the two-year limitations period begins to run when the appellate process is terminated, the date on which the appellate court issues its mandate of affirmance. Spector, 888 F.2d at 584.

The government claims that defendant's July 15, 1991 motion for new trial is untimely because it was filed more than two years after May 15, 1989. The government, however, relies on May 15, 1989 as the date of the appellate court's mandate of affirmance. May 15, 1989 is the date on which the Eighth Circuit issued its order affirming the district court's decision. The correct date of the Eighth Circuit's mandate of affirmance, as the government's certified copy of the mandate illustrates, is July 19, 1989. Therefore, defendant's motion, filed July 15, 1991, is timely having come within two years of the Eighth Circuit mandate.

B. Recantation of Victim of Child Sexual Abuse as Basis for New Trial

1. Evidentiary Hearing

Defendant requests an evidentiary hearing to establish the foundation for his motion for new trial.

In considering a motion for new trial based upon newly discovered evidence, this Court has discretion in deciding whether to conduct an evidentiary hearing. United States v. Bednar, 776 F.2d 236, 239 (8th Cir.1985). The decision will not be disturbed on appeal absent a clear abuse of discretion. United States v. Atkins, 545 F.2d 1153, 1154 (8th Cir.1976).

The district court typically may decide a motion for new trial solely on the basis of affidavits and without resort to an evidentiary hearing. United States v. Provost, 921 F.2d 163, 164 (8th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1603, 113 L.Ed.2d 666 (1991), citing Bednar, 776 F.2d 236, 239. Where exceptional circumstances exist, however, the district court may grant an evidentiary hearing to assess the ultimate necessity for a new trial. Provost, 921 F.2d 163, 164 (8th Cir.1990); Bednar, 776 F.2d 236, 239. For instance, in Lyles v. United States, 272 F.2d 910 (5th Cir.1959), the Court required the district court to conduct an evidentiary hearing because both parties believed such a hearing was not only advisable, but absolutely necessary. Id. at 913. Evidentiary hearings should also be conducted when the new trial is sought upon the discovery of juror misconduct. United States v. Persico, 339 F.Supp. 1077, 1084 (E.D.N.Y.), aff'd, 467 F.2d 485 (2nd Cir.1972).

This case is void of exceptional circumstances. Neither juror misconduct nor request for new trial by both parties is alleged. This Court presided at defendant's trial and first motion for new trial. Where the trial judge deciding the motion for new trial presided at the trial, the necessity for and utility of an evidentiary hearing diminishes since the judge has been afforded the opportunity to observe the demeanor and weigh the credibility of the witnesses. United States v. Begnaud, 848 F.2d 111, 113-15 (8th Cir.1988); United States v. Curry, 497 F.2d 99, 100-01 (5th Cir.1974), cert. denied, 419 U.S. 1035, 95 S.Ct. 519, 42 L.Ed.2d 311 (1974) ("the acumen gained by the trial judge who presided during the entire course of these proceedings makes him well qualified to rule on the motion for a new trial on the basis of the affidavit and makes a time consuming hearing unnecessary"). Loretta Stone and Shirley Marvin both were witnesses at defendant's jury trial.

In support of his motion for a new trial defendant provides affidavits from Shirley Marvin, the victim's mother, and Dr. Frank Buzzetta, a clinical psychologist who treated Loretta subsequent to defendant's trial. The Court finds that these affidavits, in addition to the fact that the Court has already observed the demeanor and credibility of Loretta Stone and Shirley Marvin at trial, provide sufficient information for this Court to rule on the motion for new trial. That Dr. Buzzetta's testimony is by affidavit only, since he was not a witness at the original proceeding, does not alter this conclusion. The material part of Dr. Buzzetta's testimony is that...