No. 87-469
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plantiff and Respondent,
-vs-
FRED LEE PERRY,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bell & Marra; Antonia P. Marra & Barbara E. Bell
argued, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
Patrick L Paul, County Attorney, Great Falls, Montana
Stephen Hudspeth, Deputy County Atty., Great Falls
Submitted: May 10, 1988
Decided: June 30, 1988
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Following trial by jury in the District Court of the
Eighth Judicial District, Cascade County, Perry was convicted
of second degree murder in connection with the death of 14
year old Vicki Renville in 1971. Perry appealed his judgment
of conviction to this Court alleging, inter alia, ineffective
assistance of counsel, insufficient corroboration of
accomplice testimony, and improper failure to grant a new
trial. Justice John C. Harrison wrote the opinion which
affirmed the conviction. See State v. Perry (1973), 161
Mont. 155, 505 P.2d 113.
On April 21, 1987, Perry moved for an indigency
determination, appointment of counsel, and a new trial or
other appropriate relief based on the alleged recantation of
his accomplice, Michael Stillings. Perry later argued that
the State had also failed to provide his counsel with
exculpatory evidence during the initial trial. Following a
hearing on the matter, the District Court of the Eighth
Judicial District, Cascade County, entered findings of fact,
conclusions of law and an order denying relief. Perry
appeals from the District Court's judgment. We affirm.
The issues before this Court are:
1. Is the failure to provide Perry with exculpatory
evidence res judicata?
2. Did the District Court correctly determine that
Stillings' 1971 trial testimony was presumed truthful?
3. Did the District Court accord Perry a full and fair
hearing?
FACTS
The body of Vicki Renville was discovered by a
motorcyclist on a county road near Great Falls on February
24, 1971. Following an autopsy, Dr. Jack Henneford, the
pathologist who examined the body, determined that Vicki
Renville had died from multiple blows to the left side of the
head, resulting in fractures of the skull and extensive
bleeding within the cranial cavity. Dr. Henneford also
ascertained two recent disruptions of the hymen; that
Renville had been dead at least eight hours when discovered;
and that she had lived an hour or more after the blows had
been inflicted. He testified that the fatal injury could
have been inflicted by a tire iron and that she had several
wounds on her hands consistent with her possible attempt to
block the blows.
When initially interviewed about his whereabouts on the
night of the murder, Perry stated he had been at home all
evening, watching television and had later gone to bed.
However, he subsequently contacted the Cascade County
Sheriff? Office from the Missoula County jail and indicated
he had information concerning the death of Renville.
Following his transfer to the Cascade County Jail, he
informed Cascade County law enforcement officials that
Michael Stillings might be responsible for the death.
Stillings was subsequently apprehended in Seattle,
Washington. When questioned about the Renville murder by
Cascade County Deputies, Stillings gave a confession in which
he stated that he had accidentally struck the victim with a
stick when Renville startled him. Stillings also indicated
that he was under the influence of drugs at the time of the
murder and was attempting to retrieve some cached drugs when
Renville came upon him. The Stillings confession was used in
support of leave to file an information against him.
Following his transportation to Great Falls, Stillings
was placed in the Cascade County Jail. While incarcerated,
Cascade County jailers intercepted four notes from Stillings
to family and friends. The notes indicated that the death
was an accident and requested that various people help him
establish an alibi. However, the final letter, in essence,
indicated that Stillings was not willing to keep quiet and
take the fall for someone else "this time." Shortly
thereafter, Stillings informed law enforcement officials that
Perry had murdered Renville with a tire iron after both men
had raped her.
At the initial trial of Perry, Stillings testified that
he first encountered Renville at 9:00 p.m. on February 23,
1971. Following a brief conversation, Stillings and Renville
went "cruising up and down the drag," and then to the Great
Northern train depot where he bought two hits of LSD. At
approximately 10:OO p.m., Renville was dropped off at Sandy's
Drive-In. The testimony of Chris Shatto confirms that
Renville was alive and with Stillings at this time.
Stillings then picked up Dick Maxwell and proceeded to
Perry's residence, where a number of people were watching a
movie entitled "The Eye of the Cat." Renville was not with
them.
Following the movie, Perry, Stillings, Chris Shatto and
Joanne Kimbell motored to a house located on the north side
of Great Falls, where Shatto and Kimbell were dropped off.
Perry and Stillings then headed toward down-town Great Falls.
Stillings testified that he and Perry observed Renville
walking about a block from Sandy's Drive-In. Following their
offer of a ride, Renville entered the car with Perry and
Stillings. The group then proceeded to an area known as
Wadsworth Park.
Upon reaching Wadsworth Park, Stillings informed
Renville that he wanted to have intercourse. When Renville
refused, Stillings testifed that he placed a knife against
her throat and said "or else." Both Stillings and Perry
raped Renville. Following the attacks, Renville exited the
car. When she threatened to "rat," Stillings witnessed Perry
strike her on the head repeatedly with a tire iron. Perry
and Stillings then fled the scene. Shortly thereafter (12:30
a.m.), they picked up Mike Baldwin and Jim Duvall in an
attempt to establish an alibi. Stillings later changed his
car tires and disposed of the tire iron.
The State at trial also presented evidence that the coat
worn by Perry on the night of the murder was spotted with
human blood. In addition, JoAnn Wittke testified that Perry
had informed her that a big guy and a small guy had killed
Renville and then had thrown some car tires in the river.
Perry and Stillings could be described as a big guy and a
small guy.
Although his counsel vigorously cross-examined Stillings
concerning his confession, Perry did not take the stand
during the 1971 trial, nor did he present evidence in support
of his alibi defense. However, Perry had earlier given a
statement to the officers in which he indicated that he was
at home all evening and went to bed at midnight. He later
gave a sworn statement, in the presence of counsel, in which
he stated he was with Stillings and Renville just prior to
the murder but had been dropped off at Debbie Phillip's
house. Pursuant to this version of the night in question,
Perry was alleged to have been making love during the time of
the murder. He was then picked up by Stillings while walking
home. They encountered Mike Baldwin and Jim Duvall shortly
thereafter.
Neither Debbie Phillips nor her mother confirmed Perry's
story nor testified at trial. They did, however, before
Perry's trial, give sworn statements which apparently
contradicted Perry's story. When informed of this state of
affairs, and the fact that his counsel had a copy of the
statements, Perry, surprised, responded "what?" Due to the
passage of time, the original sworn statements by Debbie
Phillips and her mother could not be found. However, Perry
and his counsel acknowledged that the second explanation of
the night of the murder was a fabrication.
Perry was subsequently convicted of second degree
murder. He then moved for, and received, the appointment of
new counsel immediately following the conviction.
Replacement counsel, Mr. Randono, thereafter moved for a
new trial, alleging, inter alia, that the State failed to
provide, pursuant to a discovery motion, the defense with
exculpatory evidence, specifically, Stillings' Seattle
confession and a letter from Stillings to Mona Brown which
indicates the death was accidental. The motion was
subsequently denied and the issue of exculpatory evidence was
not raised on the initial appeal. The record is generally
unclear as to which documents Perry received pursuant to the
motion. However, Perry's trial counsel stipulated that the
State had complied with the discovery request the day of
trial and Stillings was cross-examined on the basis of his
confession. In addition, Perry did not call his former
attorneys to the witness stand during the 1987 hearing.
For a period of 15 years, Stillings was content to abide
by his trial testimony. However, in 1986, Stillings learned
that he and Perry would be incarcerated in the same prison
for the first time. Shortly after Perry arrived, Stillings
determined that his new found faith demanded that he come
forward with the truth in order to relieve his conscience.
Stillings contacted Perry through an intermediary and gave a
sworn statement recanting his trial testimony shortly
thereafter. Although Stillings indicated he originally
confessed out of fear for his safety, he contends that his
recantation was not motivated by similar concerns.
Following Stillings' recantation, Perry immediately
filed a motion for an indigency determination, appointment of
counsel, and a new trial or other appropriate relief.
However, he did not raise the issue of the State's failure to
provide exculpatory documents in his pleading nor was the
pleading ever amended to include such a claim. Counsel
indicates that the exculpatory documents were not discovered
until shortly before the hearing.
Stillings' recantation testimony is that he encountered
Renville between 6 : 0 0 and 9:00 p.m. as she was walking to a
store. Shortly thereafter, she and Stillings drove to the
train depot where they parked and talked to some friends.
Stillings then drove to Wadsworth Park with the avowed
purpose of raping Renville.
Upon reaching the desired location, Stillings claims
that he displayed a knife and told Renville to get undressed.
Following the rape, both parties dressed and exited the car.
Stillings testified that he then struck Renville with a tire
iron and fled the scene. He went to Perry's residence
immediately thereafter in order to establish an alibi.
However Stillings' recantation conflicts with the testimony
of Chris Shatto. She testified that she saw Renville and
Stillings together after the time Stillings had allegedly
killed her. In addition, the recantation also conflicts with
Perry's second version of the murder.
Perry also took the stand. Under this version of the
night in question, he remained at his home all evening except
for 30-45 minutes sometime between 11:OO p.m. and midnight.
At that time, he and Stillings had given Chris Shatto and
Joann Kimbell a ride to another residence. Perry then
returned home and worked on a .30 caliber machine gun until
3:00 or 4:00 a.m.
Although additional witnesses testified or submitted
affidavits, the last major witness was Rande Branden, a long
time friend of Stillings who is currently incarcerated with
Stillings on an unrelated homicide conviction. Branden
testified that he had encountered Stillings three times on
the evening in question. One occasion, Branden said, was
when Stillings appeared at his home, at approximately 7:30
p.m., in a dazed and confused mental state. At that time,
Stillings rambled incoherently, but Branden was able to
decipher the word "dead" at least twice. Stillings then
removed his pants for no apparent reason and was given
another pair of pants by Branden.
Approximately two days later, Branden claims he surmised
that Stillings may have committed the Renville murder. Upon
examining Stillings' pants, he observed dark spots he
suspected to be blood. He then cut the pants into pieces and
flushed them down a toilet. Stillings has never indicated
that he had contact with Branden on the night of the murder.
Stillings did testify, however, that he had washed his own
clothes and a letter was introduced into evidence in which
Stillings asked Branden to testify that he had been with
Stillings. The District Court labelled the testimony
"incredible."
PROCEDURE
The State initially argues that although denoted a
motion for new trial or other appropriate relief, Perry's
pleading is a petition for post-conviction relief.
Consequently, Perry's claims would be barred pursuant to the
five year statute of limitations imposed by § 46-21-102, MCA.
However, upon examination of Perry's motion, we find that
Perry alleges, in essence, that he is being unlawfully
detained in violation of his constitutional rights, put
bluntly, that the State of Montana has unjustly incarcerated
an innocent man for a period of 17 years on the basis of a
flawed conviction.
Although Perry could not have brought his claim until
the recantation occurred in 1986, the State would have us
find that Perry's only means of redress is a petition for
post-conviction review and that the statutory clock on such
petitions ran in 1978. We decline to do so. Under the
interpretation urged by the State, a defendant held in
violation of his constitutional rights would be deprived of a
method of redress regardless of his diligence or the justness
of his claim. We do not believe such a result to be the
intent of the legislature nor consistent with our State
Constitution. See 1972 Montana Constitution, Art. 11, § 17.
The central function of the courts is the achievement of
justice. However, like all endeavors of man, the search for
justice is not without occasional flaws. From the time of
the Magna Charta, the Great Writ of Habeas Corpus has been
liberally employed as a means of guaranteeing that this
judicial goal be accomplished and that a miscarriage of
justice will be remedied. See 3 Blackstone Comm. at 129 et.
seq. For at its heart, the writ represents an
acknowledgement of the principle that the rights of freedom
of the individual are worthy of protection.
Whereas Perry's motion for a new trial cannot
technically be denoted a petition for habeas corpus, nor do
we treat it as such, the claim nevertheless sounds in the
nature a petition for habeas corpus. We determine that in
this case, the single issue is whether Perry is entitled to a
new trial based on the proffered evidence of another person
doing the criminal act for which Perry was convicted.
The burden of proof in such cases is stringent. In
order to receive a new trial Perry must demonstrate that he
has been the victim of an unjust conviction which has
resulted in his unlawful detention. We conclude that he has
failed to do so.
EXCULPATORY EVIDENCE
The first specification of error concerns the State's
alleged failure to provide Perry with exculpatory evidence in
violation of his right to due process of law, as guaranteed
by the Fourteenth Amendment, and his Fifth Amendment right to
a fair trial. More precisely, that the mandate of Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
and State v. Craig (1976), 169 Mont. 150, 545 P.2d 649,
demands that a new trial be granted because the State's
negligent failure to provide Perry with the letters and
confession of Michael Stillings was of such a material and
substantial nature as to have changed the verdict of the
jury. However, the District Court found the issue to be res
judicata. We agree.
While the mandate of due process and Art. 11, $ 16 of
the Montana Constitution guarantees every person access to
the courts, it cannot be said that such rights grant a person
license to relitigate a cause or to burden the resources of
the court with successive claims which could have been
brought in one action. As one court has stated: "judicial
economy dictates restrictions on reruns." Coleman v. State
(Mont. 1981), 633 P.2d 624, 630, 38 St.Rep. 1352, 1359,
cert.den. 455 U.S. 983, 106 S.Ct. 983, 71 L.Ed.2d 693, citing
United States ex rel. Townsend v. Twomey (7th Cir. 1971), 452
F.2d 350, 357, cert.den. 409 U.S. 854, 93 S.Ct. 190, 34
L.Ed.2d 98.
Similarly, the public interest in finality of judgments
also weighs heavily against serial litigation. See Murray v.
Carrier (1986), 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397.
The doctrine of res judicata is an embodiment of both
principles. See Wellman v. Wellman (1982), 198 Mont. 42, 643
P.2d 573. It stands for the proposition that there must be
an end to litigation at some point. First Bank v. Fourth
Judicial Dist. (Mont. 1987), 737 P.2d 1132, 1134, 44 St.Rep.
861, 864. Consequently, once a party has had full
opportunity to present a claim or issue for judicial decision
in a given proceeding, the judgment of that court will be
deemed final as to all claims or issues which have been
raised or which fairly could have been raised. Wellman, 198
Mont. at 45-46, 643 Mont. at 575.
In Taggard v. Rutledge (D. Mont. 1987), 657 ~.Supp.
1420, the Court examined the nature, as well as this Court's
treatment, of the doctrine of res judicata. It stated:
Res judicata principles embody two concepts.
'Issue preclusion' refers to the preclusive effect
of a judgment in foreclosing litigation of a matter
that has been litigated and decided. [Cite
omitted.] In contrast, 'claim preclusion' refers
to the preclusive effect of a judgment in
foreclosing litigation of matters that should have
been raised in an earlier suit. ...
The Montana Court has recognized the distinction
between claim preclusion and issue preclusion,
though not always articulating the precise
definitions thereof. [Cite omitted.] When
directly confronted with the issue, however, the
Court clearly has followed the general rule
governing claim preclusion. As early as 1935, the
Court has recognized that a judgment is "binding
and conclusive between the parties to the suit and
their privies and successors in interest, as to all
matters adjudicated therein and as to all issues
which could have been properly raised,
irrespective, of whether the particular matter was
in fact litigated." [Citation omitted.]
In the instant case, Perry does not contend that the
prosecuting attorney purposely suppressed exculpatory
evidence. Rather, the alleged suppression is said to have
been the result of good faith negligence. Unfortunately, the
record is generally silent as to which documents Perry did or
did not receive from the State as neither the prosecuting
attorney nor any of Perry's three attorneys from 1971
testified. However, the record does disclose that Perry's
trial counsel informed the court that the State had complied
with Perry's discovery request; that Stillings was
cross-examined concerning his earlier confession; and that
replacement counsel Randono moved for a new trial on the
basis of the State's failure to provide Perry with Stillings'
Seattle confession and the letter from Stillings to Mona
Brown, but failed to raise the claim during the 1973 appeal.
The State contends that Perry's failure to raise the
exculpatory evidence claim on the initial appeal following
the District Court's denial of the motion for new trial is
sufficient to invoke the claim preclusion facet of res
judicata. Upon examination, we find the State to be correct.
In order for res judicata to bar reconsideration of a
claim, four elements must be present:
(1) the parties or their privies must be the same;
(2) the subject matter of the action must be the
same; (3) the issues must be the same, and must
relate to the same subject matter; and (4) the
capacities of the persons must be the same in
reference to the subject matter and to the issues
between them. [Citation omitted.]
Coleman, 633 P.2d at 630, 38 St.Rep. at 1358.
Although Perry argues that the "new" discovery of the
existence of exculpatory evidence precludes satisfaction of
the second, third, and fourth elements of the Coleman test,
we do not find the allegedly "new" evidence to be
controlling. The fact remains that the claim pits the same
plaintiff and defendant against each other on the basis of a
claim that Perry is entitled to a new trial because the State
failed to provide exculpatory evidence, part of which was
listed in the 1971 motion. While Perry may not have been
aware of all the documents at that time, he was
unquestionably aware of the existence of two documents and
could have raised the claim on his initial appeal. The
Coleman test is clearly satisfied.
THE RECANTATION
The second specification of error concerns the District
Court's failure to grant a new trial on the basis of
Stillings' recantation. Perry does not attack the District
Court's factual findings that Stillings was not credible;
that Stillings' recantation could not be true because it
conflicted with the testimony of other witnesses; that
Stillings recanted out of fear for his life; that Perry lied
on the stand; or that the testimony of Rande Branden is
incredible. Rather, he contends that the District Court
improperly applied the presumption of truthfulness to
Stillings' 1971 testimony but not the subsequent recantation.
As a result, Perry claims he was forced to shoulder the undue
burden of proving the 1971 testimony was false.
The District Court's reference to the presumption of
truthfulness surrounding Stillings' 1971 testimony, in
effect, adopts the prevailing judicial attitude that recanted
testimony is to be viewed with great suspicion. State v.
Tharp (Iowa 1985), 372 N.W.2d 280; State v. Norman (Kan.
1982), 652 P.2d 683; In Re Weber (Cal. 1974), 523 P.2d 229;
Thacker v. Commonwealth (Ky. 1970), 453 S.W.2d 566; People v.
Nash (Ill. 1967), 222 N.E.2d 473; State v. Wise (Ariz. 19661,
419 P.2d 342. We believe the rule to be well reasoned.
On its face, recanted testimony demonstrates the
unreliability of a witness. In addition, it also raises
other inquires: what motive would cause a person to subject
himself to a potential perjury prosecution? In many cases,
the answer is fear. See e.g., State v. Sena (N.M. 1987), 736
P.2d 491 (defendant's family intimidated recanting witness
with threats and acts of physical violence). Perry argues,
however, that Stillings' recanted testimony is also entitled
to a presumption of truthfulness and that the recantation per
se mandates a new trial. Accord, State v. York (wash. App.
1985), 704 P.2d 1252. However, to grant a person of
questionable credibility and motive carte blanche to overturn
the determination of a jury operating within the bounds of
our constitutional protections is not conducive to the sound
administration of justice. People v. Shilitano (N.Y. App.
1916), 112 N.E 733; Accord, State v. Miller (Mont. 1988), -
P.2d -, 45 St.Rep. 790; State v. Greeno (1959), 135 Mont.
580, 342 P.2d 1052.
In light of the inherent suspicion surrounding recanted
testimony and the public interest in swift and sure justice,
we believe the better reasoned approach to be that adopted by
the Supreme Court of Kansas:
When a new trial is sought on the basis of
recanting testimony of a prosecution witness, the
weight to be given such testimony is for the trial
judge passing on the motion for a new trial to
determine. [Citations omitted. ] The trial judge
is required to grant a new trial only when he [or
she] is satisfied the recantation of the witness is
true.
Norman, 652 P.2d at 689; see also, Thacker, 453 S.W.2d at
568; Nash, 222 N.E.2d at 478. We accordingly adopt the same.
Absent a clear abuse of discretj.on, the decision of the
District Court will be upheld.
In the instant case, Stillings' recantation appears to
be newly discovered perjury, not newly discovered evidence.
As the District Court noted, the current versions of the
night in question do not conform to the testimony of the
other witnesses; the evidence presented at trial; Perry's
prior statements; nor does it account for Perry's whereabouts
at the time of the murder. It does strain the imagination,
however. We conclude that Perry has failed to demonstrate
the 1971 testimony was false.
ADEQUACY OF THE PROCEEDING
Finally, it is argued that the court improperly relied
on affidavits submitted after the hearing in violation of
Rule 59, M.R.Civ.P.; refused to accept the proffered
affidavits of two witnesses; and improperly relied on Perry's
unsigned statements. We disagree.
Rule 59 ( c ) , M. R.Civ.P. provides that the party opposing
a motion for new trial has ten days in which to file
affidavits. However, Perry's pleading cannot be denoted a.
motion for new trial within the meaning of Rule 59 as the ten
day filing deadline expired in 1971. See 59 (b), M.R.Civ. P.
Rather, the pleading sounds of a petition for habeas corpus.
The crucial question is therefore whether the fact finding
procedure employed by the District Court was adequate to
afford Perry a full and fair hearing. See, Townsend v. Sain
(1963), 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Little
Light v. Crist (9th Cir. 1981), 649 F.2d 682.
Perry's allegation that the District Court's acceptance
of two affidavits immediately following the hearing is
reversible error is not convincing. The record discloses
that Perry was provided two highly capable and diligent
attorneys; that he was provided the services of a court
reporter to take depositions at no expense; that he was
provided adequate notice; that he was allowed to confront and
cross-examine witnesses; that he presented witnesses in his
behalf; that he was personally present and took the witness
stand; and that exhibits offered on his behalf were admitted
into evidence. In addition, Perry did not request a
continuance nor did he submit additional evidence following
notice of the affidavits. Perry clearly had a full and fair
hearing.
Similarly, Perry's contention that the District Court
improperly refused to accept the affidavits of two witnesses
is equally without merit. A review of the record indicates
that the court did not refuse to accept the affidavits of
Shatto and Kimbell. Rather, the court offered to accept
counsel's offer of proof in lieu of the affidavits. Perry's
decision not to submit the affidavits will not now be heard
to constitute error.
Finally, it is contended that the court's acceptance of
Perry's sworn statement from 1971 was error because the
statement was not signed by him as required by Rule 30(e),
M.R.Civ.P. However, we note that district courts are not
strictly bound by all the rules of civil procedure in this
type of proceeding. See generally, Coleman, supra (although
post-conviction review is civil in nature, not all civil
procedures are applicable); In Re Hart (19781, 178 Mont. 235,
583 P.2d 411 (habeas corpus may be either civil or criminal
in nature); Schlanger v. Seamans (1971), 401 U.S. 487, 91
S.Ct. 995, 28 L.Ed.2d 251 (although habeas corpus is
generally a civil action, it is not automatically subject to
all the rules governing civil actions); Harris v. Nelson
(1969), 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281
(characterization of habeas corpus proceeding as "civil" is
gross and inexact, the proceeding is essentially unique).
The crucial question is again whether the procedure employed
by the District Court comports with Perry's right to a full
and fair hearing. See, Townsend, supra; Little Light, supra.
We find that it did.
In the instant case, Perry contended that Stillings'
recantation, in conjunction with his latest version of the
night in question, demonstrated that the State of Montana was
unlawfully detaining him on the basis of an unjust verdict.
Under such circumstances, it is clearly relevant, and fair,
for the District Court to examine Perry's prior explanation
of the night of the murder. Particularly, when such
statements were originally obtained in the presence of
Perry's counsel and Perry had an opportunity to explain the
statements at the 1987 hearing.
In light of our discussion above, it is clear that Perry
has failed to demonstrate that he is being unlawfully
detained. The judgment of the District Court is affirmed.
We Concur:
Jbstices