Opinion
No. 36234-1-II.
June 17, 2008.
Petition for relief from personal restraint. Denied by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Hunt, JJ.
Bob Kaseweter appeals the trial court's denial of a new trial based on a key witness's recanted testimony. The trial court found that the recantation was unreliable and that independent evidence existed to support Kaseweter's conviction. Kaseweter appeals, arguing that the recantation was reliable and that there is no independent evidence supporting his conviction. We affirm.
FACTS
Kaseweter, Roberta Ogle, and Donovan Shirk briefly worked together at Shucks Auto Parts in Portland, Oregon, in 1989 and 1990. During their time together, Ogle and Donovan developed a mutual dislike for each other. Ogle and Kaseweter dated during this period, but the relationship ended sometime after Ogle began to date Andy Kington.
When Kaseweter learned of Ogle and Kington's relationship, he entered Ogle's parents' residence without permission when Ogle was not home. When Ogle arrived, Kaseweter asked her "who Andy was," though she had not told him Kington's name. Report of Proceedings (RP) (June 15, 1993) at 4. Kaseweter then made Ogle call Kington so Kaseweter could ask Kington about his intentions with Ogle.
After Ogle and Kaseweter's relationship ended, Ogle discovered her birth control pills and spare car keys missing from her vehicle. When Ogle confronted Kaseweter, he denied taking the keys but admitted taking her pills. Kaseweter also left a note on Ogle's car saying, "God had a plan for [her], and [she] didn't know what it was." RP (June 1, 1993) at 9.
Ogle had two spare keys, a door key and an ignition key, but kept them on separate chains. Both went missing.
On the evening of April 22, 1992, Donovan and James Shirk stopped at Kaseweter's home in Portland, Oregon. The Shirks then drove to Vancouver, Washington, where Kington lived. At about 4:00 a.m., James Shirk knocked on Kington's door and told him and Ogle that someone was pushing Ogle's car, a burgundy Chevrolet Beretta, out of the parking lot. Ogle did not know James. Kington called the police, and then he and Ogle went downstairs to check on the vehicle.
After seeing that her car was still in the parking lot, but in a different spot than she left it, Ogle turned to go back into the apartment. When Ogle turned around, a man approached her, pointed a .45 caliber gun at Kington, and instructed them to get in Ogle's car or he would "do [Kington] right [there]." RP (June 15, 1993) at 13.
After a few moments, Ogle recognized the man as Donovan, her former coworker and Kaseweter's friend. Ogle asked Donovan what he was doing and if he had been drinking. Donovan replied, "I had to in order to do this." RP (June 15, 1993) at 16. Donovan then grabbed Ogle and pointed the gun at her head. Donovan again instructed Ogle to get in the car because, "somebody want[ed] to talk to [her]." RP (June 15, 1993) at 36. Kington responded that if "Bob wants to see us, why doesn't he come here?" RP (June 15, 1993) at 36. Donovan then responded that "he doesn't want [Ogle and Kington] to pull anything on him." RP (June 15, 1993) at 17.
After some discussion as to who would drive, Ogle noticed one of her missing car keys in the ignition. She started the car, and yelled for Kington to get in. As Ogle drove away, Donovan fired at her car. Kington suffered a gunshot wound to the hand, and Ogle's car had several bullet holes as a result.
During the police investigation of the crime, James, who police had not connected to the crime, stated that Donovan was not involved because the two had gone bowling the night of the incident. He also testified at Donovan's trial that he had no knowledge of the incident.
The State charged Donovan with first degree attempted murder, first degree assault, taking a motor vehicle without permission, and two counts of first degree kidnapping. A jury convicted him on all counts. Before sentencing, Donovan agreed to implicate James and Kaseweter in exchange for a shorter sentence. When confronted with Donovan's accusations, James agreed to testify against Kaseweter.
The State charged Kaseweter with first degree conspiracy to commit kidnapping and/or second degree assault, taking a motor vehicle without permission, two counts of first degree kidnapping, and two counts of first degree assault. At Kaseweter's trial, Ogle testified that the gun Donovan pointed at her "looked like Bob's gun, one of Bob's guns." RP (June 15, 1993) at 17. On cross-examination, she stated that the gun looked longer than Kaseweter's gun. Ogle also admitted that she often left her car unlocked and frequently misplaced her keys.
The State charged Kaseweter, respectively, under RCWs 9A.28.040(1), 9A.40.020(1)(b) and (c), and 9A.36.021(1)(c); 9A.53.070(1); 9A.40.020(1)(b), (c), and (d); and 9A.36.011(1)(a).
James testified at Kaseweter's trial that he and his brother had gone into Kaseweter's home the night of the incident and Donovan and Kaseweter had talked. James stated that Kaseweter handed him a key, some handcuffs, and a .45 caliber pistol. James also testified that he heard Kaseweter tell Donovan that he should not use the gun because he (Kaseweter) wanted it back. He also stated that Donovan told him to use the keys to move Ogle's car out of the parking lot, which James did. James stated that after the crime, Donovan told him to keep his mouth shut.
Throughout his statements and testimonies, James references both "a key" and "keys."
James also admitted that he lied to investigators and at Donovan's trial about his and his brother's involvement in the crime. James also admitted that in exchange for his testimony against Kaseweter, he received a 9-month sentence instead of 25 years. Donovan did not testify. A jury convicted Kaseweter on all counts, and the trial court sentenced him to 17 years. We upheld Kaseweter's conviction on appeal, State v. Kaseweter, noted at 79 Wn. App. 1021, WL 940588, and dismissed, as time-barred, a personal restraint petition in In re Pers. Restraint of Domingo, 155 Wn.2d 356, 359, 119 P.3d 816 (2005).
In 2003, Steven Lewis, a University of Washington law student, and Herbert T. Filer, a private investigator, began to assist the Innocence Project Northwest's investigation of Kaseweter's case. Lewis obtained a recantation statement from Donovan, then a Stafford Creek Correction Center resident. Lewis and Filer then went to Idaho to interview James.
As Lewis and Filer sat down to talk to James, James blurted out that his testimony at Kaseweter's trial was true. When the pair showed James his brother Donovan's new statement, James reacted hostilely and called Donovan's statement a lie. Lewis and Filer pressed James about the details of his original testimony, telling James that they noticed inconsistencies between his trial testimony and what he was saying during their conversation. As Lewis and Filer continued to press James for details, he eventually stated, "[T]hat's not what Donovan told me." RP (Oct. 15, 2006) at 77. James then gave a statement recanting the testimony he gave at Kaseweter's trial.
Based on Donovan's and James's new declarations, Kaseweter filed a personal restraint petition with the Washington Supreme Court seeking a new trial. The Court transferred the case to the Clark County Superior Court for a hearing on the merits under RAP 16.12. Kaseweter argued at the hearing that James's recantation was reliable and that without James's testimony, there was no evidence left to support his conviction. At a reference hearing, James testified that even though he now faced possible perjury charges for his previous testimony, he had come forward to clear his conscience. He testified that at the time of Kaseweter's trial, Donovan had convinced James that Kaseweter had planned the crime. James stated that in 1992, he suffered from an addiction to alcohol and methamphetamine.
James testified at the hearing that he never actually went into Kaseweter's house the night of the incident but stayed in the car. However, James also testified, that approximately one week before the incident, he and Donovan stopped at Kaseweter's home. While there, James saw Kaseweter hand something small to Donovan. At the hearing, James denied that Kaseweter ever gave James or Donovan a gun, handcuffs, or keys. In contrast to his trial testimony, James stated that Donovan handed him the key to Ogle's vehicle. James did not receive any promises or benefits for recanting his testimony. Kaseweter also called several character witnesses to testify about James's present credibility and trustworthiness and that he lacked credibility at the time of Kaseweter's trial.
The trial court denied Kaseweter's petition, finding that the recantation evidence was not credible and that even without James's testimony, independent evidence supported Kaseweter's conviction.
Kaseweter appeals.
ANALYSIS
I. Recantation
A. Standard of Review
To obtain a new trial based on newly discovered evidence, a defendant must prove that the evidence: "(1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching." State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). A witness's recantation may be considered "newly discovered evidence." Macon, 128 Wn.2d at 799-800.
An important witness's recanted testimony at trial does not necessarily, or as a matter of law, entitle the defendant to a new trial. Macon, 128 Wn.2d at 801-02 (quoting State v. Wynn, 178 Wash. 287, 288, 34 P.2d 900 (1934)). The determination of such matters rests in the trial court's sound discretion. Wynn, 178 Wash. at 288-89. We will not set aside a trial court's denial of a new trial based on recantation testimony except where there is clear and manifest abuse of discretion. Macon, 128 Wn.2d at 801-02 (quoting Wynn, 178 Wash. 288-89). In evaluating the trial court's decision, we consider only whether substantial evidence supports the findings of fact and, if so, whether they support the court's conclusions of law and judgment. Macon, 128 Wn.2d at 799.
B. Reliability of Recantation
Kaseweter argues that the trial court erred in finding James's recantation not credible. We disagree.
Because recantation testimony is inherently questionable, the trial court must initially make a threshold determination regarding the recantation's reliability. Macon, 128 Wn.2d at 804 (citing State v. Rolax, 84 Wn.2d 836, 529 P.2d 1078 (1974), overruled on other grounds in Wright v. Morris, 85 Wn.2d 899, 540 P.2d 893 (1975)). The question is not whether the trial court believes the recanting witness, but whether, the recantation has indicia of reliability or credibility as to be persuasive to a reasonable juror if presented at a new trial. State v. Smith, 80 Wn. App. 462, 472, 909 P.2d 1335 (1996), reversed on other grounds, 131 Wn.2d 258, 930 P.2d 917 (1997).
In making this threshold determination, the trial court is allowed to consider the circumstances surrounding the recantation, including: (1) possible undue influence or coercion, (2) the witness's possible reason for recanting, (3) the circumstances under which the recantation was made, (4) the time between the testimony and the recantation, and (5) the credibility of the witnesses testifying about the recantation. In re Pers. Restraint of Clements, 125 Wn. App. 634, 644 fn. 3, 106 P.3d 244 (2005); Macon, 128 Wn.2d at 802-03.
Here, the trial court found that James's recantation was unreliable and, looking at the surrounding circumstances, substantial evidence supports that finding. First, there is evidence that James's brother Donovan influenced his many versions of these events. The trial court found that while the Innocence Project volunteers did not coerce James into changing his testimony, "James Shirk appears to be inordinately influenced by the statements of his brother with regard to this incident." Clerk's Papers (CP) at 45. James has provided five different accounts of the night in question, each after Donovan's story changed: (1) to investigators, James stated that he and Donovan went bowling the night of the incident; (2) at Donovan's trial, James testified that he had no knowledge of the incident; (3) at Kaseweter's trial, James testified that Kaseweter had set up the entire crime; (4) when confronted by the Innocence Project volunteers, James insisted that he had testified truthfully; and (5) at the reference hearing, James testified that Kaseweter had not masterminded the crime but that Donovan had convinced James that Kaseweter was behind it all. Each new story came only after Donovan's story had changed. Thus, there is evidence that James is unduly influenced by his brother's versions of the events.
Second, James's reference hearing testimony conflicts with his own recantation statement, as well as with Donovan's recantation statement. In James's written statement, he indicated that he believed Kaseweter had been involved because, "Donovan kept telling [James] that he was." CP at 41. At the hearing, though, James stated that Donovan had spoken only briefly of Kaseweter's involvement. As the trial court found, James's testimony also contradicted Donovan's statements. Donovan had stated that he and James coordinated their testimony regarding Kaseweter through their grandmother, while James denied having contact with anyone regarding his testimony. Because James attributed his original testimony to Donovan's influence, it was reasonable for the trial court to give considerable weight to that influence and the inconsistencies surrounding how James came to give allegedly false testimony.
Finally, the time between James's original testimony and his recantation support the trial court's finding that his statement was not credible. James recanted his statement ten years after first testifying against Kaseweter. He did not come forward spontaneously with his recantation. James did not even recant when the Innocence Project volunteers initially interviewed him. On the contrary, James initially blurted out that his testimony at Kaseweter's trial was true. Even when the volunteers showed James his brother Donovan's new statement, James reacted hostilely and called Donovan's statement a lie. Only after the Innocence Project's volunteers confronted him with Donovan's new version of events and pointed out inconsistencies did James eventually recant.
We further note that at the reference hearing, James claimed that he recanted to the Innocence Project volunteers because he changed his life and stopped abusing methamphetamine. The record shows, however, that James stopped using methamphetamine seven years ago. He did not come forward at that time. Instead, he waited three more years, until after the Innocence Project volunteers initiated contact with him.
Kaseweter points to several facts supporting his conclusion that James's recantation was reliable. He points to character witnesses who testified to James's good character and James's reasons for now recanting; particularly, his drug-free life and the need to clear his conscience. He argues that the trial court failed to consider James's character witnesses because they are not specifically referenced in the trial court's written findings and conclusions.
While James states that he came forward to clear his conscience, we note that any desire to clear his conscience came to light only after hearing Donovan's latest version of events and not in his initial response to the Innocence Project.
We cannot conclude that the trial court failed to consider the witnesses' credibility merely because it did not specifically reference them in its findings. In its findings of fact and conclusions of law, the court listed the evidence it considered in reaching its decision, including, "the testimony presented at a reference hearing conducted on October 25, 2006." CP at 34. This would include James's character witnesses. In addition, the trial court stated what it believed to be the reason for James's new testimony: his brother Donovan's influence. The court had discretion to believe James's and his character witnesses' testimony, but instead believed that James recanted because of his brother's influence. See State v. Thomas, 150 Wn.2d 821, 875, 83 P.3d 970 (2004).
There is sufficient evidence to support the trial court's findings and those findings support the trial court's conclusion that James's recantation was unreliable.
C. Independent Evidence
Given our ruling above, it is not necessary for us to review whether independent evidence existed, beyond James's testimony, to convict Kaseweter. After reviewing recantation case law, however, we choose to undertake an assessment of the evidence presented at Kaseweter's trial. Even if James's recantation was reliable, independent evidence existed to support Kaseweter's conviction.
When there is independent corroborating evidence supporting the recanting witness's prior testimony, the trial court has discretion to grant or deny the new trial. Macon, 128 Wn.2d at 800; State v. Rhinehart, 70 Wn.2d 649, 652, 424 P.2d 906 (1967), cert. denied, 389 U.S. 832; Wynn, 178 Wash. at 288-90; See also State v. Shaffer, 72 Wn.2d 630, 635, 434 P.2d 591 (1967). Where a defendant is convicted solely on the basis of recanted testimony, however, a court abuses its discretion in not granting a new trial. State v. Landon, 69 Wn. App. 83, 90, 848 P.2d 724 (1993); Rolax, 84 Wn.2d at 838. Corroborating evidence must be sufficient in itself to "justify a conviction and penal sentence." Macon, 128 Wn.2d at 800 (quoting State v. Powell, 51 Wash. 372, 374, 98 P. 741 (1909).
"The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). In a criminal case, we draw all reasonable inferences from the evidence in the State's favor and interpret it most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (en banc); State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, affirmed and remanded, 95 Wn.2d 385, 622 P.2d 1240 (1980). Credibility determinations are for the trier of fact and are not subject to review. Thomas, 150 Wn.2d at 876.
Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
Looking at the facts in the light most favorable to the State, there is sufficient independent evidence, absent James's testimony, to support Kaseweter's conviction. First, Ogle testified to a series of disturbing behaviors by Kaseweter: (1) he admitted stealing her birth control pills; (2) he left a note on her car about God's plan for her; (3) he entered her parents' home when no one was home and waited for her; (4) he knew Kington's name even though Ogle had never told him about Kington; and (5) he made Ogle call Kington so Kaseweter could question him.
Additionally, it is reasonable to infer that Kaseweter stole Ogle's car keys and gave them to Donovan. While Kaseweter denied stealing the key, he admitted to stealing Ogle's birth control pills out of her car. Additionally, James testified, and did not recant, that he saw Kaseweter hand Donovan something small before the incident. When Ogle got into her car as she attempted to flee Donovan and James, she noticed her stolen key in the ignition. It is reasonable for the fact-finder to infer that Kaseweter stole the key, lied to Ogle about this, and gave the key to Donovan, who then used it to enter Ogle's car.
Further, the evidence demonstrates no clear motive for James or Donovan to try to kidnap Ogle if not acting under Kaseweter's direction. While Ogle and Donovan did not get along, the idea of kidnapping Ogle so disturbed Donovan that he had to get drunk before committing the crime.
Finally, Donovan implicitly admitted Kaseweter's involvement, and there is independent testimony corroborating this evidence. When Kington asked Donovan why Kaseweter did not just come see Ogle himself, Donovan did not deny Kaseweter's involvement. Instead, Donovan explained that, "[W]ell, he doesn't want [Ogle or Kington] to pull anything on him." RP (June 15, 1993) at 17.
Kaseweter argues that the court erred in making findings from the trial testimony that were critical to its finding of independent evidence, namely that Ogle: (1) identified the gun Donovan used as Kaseweter's and (2) testified that Kaseweter stole her keys. It is true that Ogle did not clearly identify the gun as Kaseweter's. As the court noted, while Ogle gave inconsistent statements to authorities about the gun, "she asserted at trial that the pistol 'looked like Bob's gun, one of Bob's guns.'" CP at 37. Although a different court may have reached a different conclusion from Ogle's testimony, we defer to the trier of fact on issues of conflicting testimony and reasonable inferences from the evidence. Thomas, 150 Wn.2d at 874-75. It is also true that Ogle did not testify that Kaseweter stole her keys, but this one fact does not undermine the trial court's other findings. In the end, even without both of these findings, the remaining evidence supports the trial court's ultimate conclusion that independent evidence supports Kaseweter's conviction.
Kaseweter also argues that we should reverse because a fact finder could reach alternate conclusions based on the evidence. Br. of Appellant at 24-25 (citing State v. Bencivenga, 137 Wn.2d 703, 708, 974 P.2d 832 (1999)). Kaseweter's reading of Bencivenga, however, is incomplete. The Bencivenga court goes on to state: "Just because there are hypothetically rational alternative conclusions to be drawn from proven facts, the fact finder is not lawfully barred against discarding one possible inference when it concludes such inference unreasonable under the circumstances." Bencivenga, 137 Wn.2d at 708. The court then holds that a jury or judge may make inferences from proven facts and is free to "discount theories which it determines unreasonable because the finder of fact is the sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses." Bencivenga, 137 Wn.2d at 709 (citing State v. Snider, 70 Wn.2d 326, 327, 422 P.2d 816 (1967)). Thus, while there are alternative theories for the facts Kaseweter cited in his brief, we will not second guess the trial court's credibility determinations where there is sufficient evidence to support them.
Based on this record, independent evidence supports Kaseweter's conviction and the trial court did not abuse its discretion in denying his personal restraint petition seeking a new trial.
Kaseweter argues in his reply brief that there is insufficient evidence because the State conceded during closing statements that only circumstantial evidence remained once the court ignored James's trial testimony. This argument fails. It is well settled that circumstantial evidence and direct evidence are equally reliable. Delmarter, 91 Wn.2d at 638.
D. Perjured Testimony
Kaseweter also argues that he is entitled to a new trial because James perjured his trial testimony. A trial court may grant a new trial where perjured testimony likely influenced the jury's guilty verdict. Macon, 128 Wn.2d at 801; Rolax, 84 Wn.2d at 838. While the trial court found that James "changed his version of events on several occasions, in each instance to coincide with Donovan's version of events," it did not find that James committed perjury at Kaseweter's criminal trial. CP at 45. With this record we also cannot say that James's earlier testimony was perjured. The jury knew James had significant motivation to implicate Kaseweter. They heard James admit that he lied at his brother's trial and that he received a sentence reduction from 25 years to nine months. Yet, they still convicted Kaseweter. See Macon, 128 Wn.2d at 801 (finding that the trial court did not abuse its discretion in denying a new trial where the trial court (1) found that the witness did not perjure herself at trial; (2) found the recantation unreliable; and (3) found independent evidence to support the conviction). II. Statement of Additional Grounds
RAP 10.10.
A. Matters of Credibility and Weight
In his pro se statement of additional grounds for review (SAG), Kaseweter raises several enumerated grounds that appear to relate to matters of credibility and weight. He argues that portions of the evidence have a more reasonable interpretation, specifically, that (1) Ogle's testimony that he was in her parents' home should not be construed as "sinister" but that he was reasonably in the house because her parents had previously invited him to enter when no one was home; (2) it is more reasonable to infer he left a note on Ogle's car during church services than when she was at Planned Parenthood; and (3) it is more reasonable to infer that he met Donovan outside of work for business reasons and that such evidence is not incriminating. We will not review weight and credibility issues. Thomas, 150 Wn.2d at 875.
B. Sufficiency of the Evidence
Kaseweter also asserts that given James's recantation, there is insufficient independent evidence to support his conviction, which he claims is proven by the trial court's questions to the State at his reference hearing. During closing statements, the trial court asked the State whether sufficient evidence existed to support Kaseweter's conviction without James's testimony. As stated above, independent evidence supports the trial court's conclusion that James's recantation testimony was unreliable and that independent evidence corroborates Kaseweter's conviction. That the trial court expressed skepticism during closing statements does not undermine this conclusion.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, C.J., Hunt, J., concur.