No. 04-867
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 155
_______________________________________
DANIEL B. CROSBY,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
______________________________________
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DV 2003-216
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Boggs, Attorney at Law, Missoula, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Karen Townsend,
Deputy County Attorney, Missoula, Montana
____________________________________
Submitted on Briefs: January 11, 2006
Decided: July 11, 2006
Filed:
______________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellant Daniel B. Crosby (Crosby) appeals from the denial of his petition for
postconviction relief following his conviction in 1996 for sexual intercourse without
consent. Crosby premised his petition in part on the fact that the victim, Crosby’s
daughter, recanted her testimony nine years later. We reverse and remand.
¶2 We rephrase and address the following issues on appeal:
¶3 1) Did the District Court apply the proper standard to evaluate whether the new
testimony entitled Crosby to postconviction relief, when it concluded as a matter of law
that the victim’s recanting testimony was false?
¶4 2) Did the District Court abuse its discretion when it denied Crosby’s motion to
strike a portion of Dr. Stratford’s testimony?
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶5 A jury convicted Crosby of sexual intercourse without consent on January 20,
1996, following a five-day trial. The victim of the crime, Crosby’s then ten year-old
daughter, Shawnetta Crosby (Shawnetta) testified against Crosby at the trial. The District
Court sentenced Crosby to ten years at the Montana State Prison, with seven years
suspended. Crosby filed a timely notice of appeal, but later asked this Court to dismiss
his appeal pursuant to a plea agreement he had entered with the State on an unrelated
charge.
¶6 Crosby filed a petition for postconviction relief on February 26, 2003, alleging that
newly discovered evidence would demonstrate his actual innocence. Shawnetta’s sworn
statement, in which she recanted her 1996 trial testimony, accompanied the petition. The
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District Court scheduled an evidentiary hearing to address Crosby’s petition for
postconviction relief and entertained pre-hearing motions. Prior to the hearing, the court
issued an order granting in part and denying in part Crosby’s motions in limine. The
District Court also announced that, in determining whether the recanting testimony
entitled Crosby to a new trial, it would apply the standard established in State v. Perry
(1988), 232 Mont. 455, 758 P.2d 268 (overruled by State v. Clark, 2005 MT 330, 330
Mont. 8, 125 P.3d 1099), and first conclude whether the recanting testimony was true.
Then, only if the court deemed the recanting testimony true, it would apply the six-factor
test in State v. Abe, 2001 MT 260, 307 Mont. 233, 37 P.3d 77, to analyze whether the
new evidence entitled Crosby to a new trial.
¶7 The District Court held the evidentiary hearing on June 23, 2004. Shawnetta, then
age 21, testified that her mother had influenced her to accuse her father twelve years
prior, and that the events she described when she testified at Crosby’s trial did not occur.
Crosby and the State each presented expert witnesses to support their respective positions
concerning, among other matters, the credibility of childhood testimony given under the
type of stressful home conditions presented in this case.
¶8 The court issued its findings of fact, conclusions of law and order denying
Crosby’s motion for postconviction relief on July 22, 2004. Crosby appealed. The State
responded, and then filed a statement of supplemental authority on December 29, 2005,
following our decision in Clark.
STANDARD OF REVIEW
¶9 We review a district court's denial of a petition for postconviction relief to
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determine whether the district court’s findings of fact are clearly erroneous and whether
its conclusions of law are correct. State v. Jenkins, 2001 MT 79, ¶ 9, 305 Mont. 95, ¶ 9,
23 P.3d 201, ¶ 9.
¶10 We review a district court’s evidentiary rulings for an abuse of discretion. State v.
Grixti, 2005 MT 296, ¶ 14, 329 Mont. 330, ¶ 14, 124 P.3d 177, ¶ 14.
ISSUE ONE
¶11 Did the District Court apply the proper standard to evaluate whether the new
testimony entitled Crosby to postconviction relief, when it concluded as a matter of law
that the victim’s recanting testimony was false?
¶12 In its order denying Crosby’s petition for postconviction relief, the District Court
concluded as a matter of law that the recanting testimony given by Shawnetta was untrue.
Crosby contends that the District Court improperly imposed the standard taken from
Perry over the proper criteria established in Abe. Crosby states specifically that the
criterion in Perry that requires the judge to determine “whether the recantation is true” is
an improper application of the law, as Montana case law has evolved to replace this
standard with a multi-factored test as appears in Abe at ¶ 10 and State v. Cline (1996),
275 Mont. 46, 52, 909 P.2d 1171, 1175.
¶13 The State responds that Crosby’s petition is not properly before this Court because
Crosby’s failure to file his postconviction petition within one year after his conviction
deprived the District Court of jurisdiction. The State claims further that the plea
agreement Crosby entered with the State in 1997 estops him from now appealing his
conviction for sexual intercourse without consent. Lastly, the State argues that even if
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the District Court applied the Perry principles, it applied the proper standard nonetheless,
and Crosby did not suffer prejudice. We address these arguments in turn.
¶14 The State asserts that the one year time limit for filing a petition for postconviction
relief following a defendant’s conviction, found at § 46-21-102(1), MCA, barred Crosby
from bringing his claim. The State’s brief references only a “clear miscarriage of justice”
as the exception to the time limitations the statute establishes. The State reasons that
since the District Court deemed the new evidence untrue, the “miscarriage of justice”
exception does not apply.
¶15 This position wholly ignores, however, the exception to the one year time
limitation to file petitions for postconviction relief found in § 46-21-102(2), MCA.
Section 46-21-102(2), MCA, states that the exception applies when a claim simply
“alleges the existence of newly discovered evidence that, if proved and viewed in light of
the evidence as a whole would establish that the petitioner did not engage in the criminal
conduct for which the petitioner was convicted. . . .” (emphasis added). Thus, the plain
language of the statute does not require that the newly discovered evidence be proven
true before the court can hear the petition for postconviction relief. Further, as discussed
below, the State’s position that the defendant must prove to the judge that the newly
discovered evidence is true before the defendant is entitled to postconviction relief is
incorrect, as it is premised upon an improper standard for evaluating new evidence. We
conclude that the present situation falls squarely within the exception to the one year limit
for filing petitions for postconviction relief found at § 46-21-102(2), MCA, and,
consequently, Crosby is not statutorily barred from bringing his petition.
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¶16 The State claims next that if this Court entertains the present appeal, it will “be
assisting Crosby in escaping the obligations of his plea agreement after he has already
received its benefits” in contravention of our prior case law. The State presented the
identical argument to the District Court and the court did not address it. Our review of
the 1997 plea agreement demonstrates that Crosby already completed his obligations
under that agreement, and that the agreement did not implicate Crosby’s right to file a
petition for postconviction relief. We therefore conclude that the State’s argument that
the plea agreement entered in 1997 bars Crosby’s present appeal lacks merit.
¶17 Finally, the State argues that the District Court applied the proper test to determine
if the new evidence entitled Crosby to postconviction relief or, alternatively, that the
conclusion at which the District Court arrived did not prejudice Crosby regardless of the
test applied. The District Court’s conclusion of law stated that “[t]he district court is
required to grant a new trial only when the trial judge is satisfied the recantation is true.”
According to the order, Crosby “failed to demonstrate that the recant[ing] testimony of
Shawnetta Crosby [wa]s true.”
¶18 In Perry, 232 Mont. at 466, 758 P.2d at 275, we adopted the Kansas Supreme
Court’s standard for recanting testimony, and stated that the “trial judge is required to
grant a new trial only when he [or she] is satisfied the recantation of the witness is true.”
However, cases decided subsequent to Perry applied a different standard to evaluate new
testimony, leading to inconsistencies in our jurisprudence. For example, in 2001 we
stated that “motions for a new trial based on newly discovered evidence must establish
that such evidence is so material that it would probably produce a different result upon a
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different trial.” State v. Allen, 2001 MT 17, ¶ 8, 304 Mont. 129, ¶ 8, 18 P.3d 1006, ¶ 8.
Later that same year, however, we applied a multi-factored test, and required that all six
factors be met before new evidence entitled a defendant to a new trial. Abe, ¶ 10.
Ultimately, we recognized and resolved these discrepancies in Clark, where we explicitly
overruled the statement in Perry that a “trial judge is required to grant a new trial only
when he is satisfied the recantation of the witness is true.” Clark, ¶ 32. We reasoned that
the standard in Perry had “inappropriately place[d] the judge in the role of fact-finder,
inevitably, in some cases, in the key matter of the guilt or innocence of the accused.”
Clark, ¶ 32.
¶19 We set forth the following test in Clark:
To prevail on a motion for a new trial grounded on newly discovered
evidence, the defendant must satisfy a five-part test:
(1) The evidence must have been discovered since the defendant's trial;
(2) the failure to discover the evidence sooner must not be the result of a
lack of diligence on the defendant's part;
(3) the evidence must be material to the issues at trial;
(4) the evidence must be neither cumulative nor merely impeaching; and
(5) the evidence must indicate that a new trial has a reasonable probability
of resulting in a different outcome.
Clark, ¶ 34 (footnotes omitted).
¶20 We acknowledge that in Clark, we addressed a motion for a new trial, while the
present case involves Crosby’s petition for postconviction relief. Nonetheless, we deem
it appropriate to apply the same “newly discovered evidence” test in both situations. See
Abe at ¶¶ 1, 10 (applying the factors to be considered when a district court evaluates a
motion for a new trial based upon newly discovered evidence, to a motion for
postconviction relief).
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¶21 In light of the test we established in Clark, we conclude that the District Court
erred when it said the court should grant a new trial only “when the trial judge is satisfied
the recantation is true,” and in concluding that the recanting testimony of Shawnetta was
untrue. In doing so, the court improperly placed itself in the role of fact-finder in
contravention of our holding in Clark. Instead, the court should consider all five of the
Clark factors, including, importantly, whether a new trial would have the reasonable
probability of resulting in a different outcome. Under this test, the court does not pass on
the ultimate truthfulness of the recanting testimony; rather, provided the five Clark
factors are satisfied, the court leaves this determination to the fact-finder on retrial.
¶22 Justice Warner’s dissent states that the District Court “did consider the essential
Clark factors in making its decision whether a new trial was necessary.” (Dissent, ¶ 1).
A review of the court’s order, however, demonstrates that the court did not use the Clark
factors and, in fact, engaged in the very analysis Clark forbids. The court’s order states:
The Court concludes that the recanted testimony of Shawnetta is
untrue. From the foregoing findings of fact and conclusions of law, the
Court makes the following order:
ORDER
The Petitioner, Daniel B. Crosby, having failed to demonstrate that
the recanted testimony of Shawnetta Crosby is true,
IT IS HEREBY ORDERED that Daniel B. Crosby’s petition for
post-conviction relief is DENIED.
The District Court thus violated Clark when it first determined the ultimate veracity of
the recanting testimony, and then used that determination as the sole basis to deny
postconviction relief.
¶23 The Dissent does however bring to light some subtle yet important distinctions
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underlying the Clark test--namely, the difference between the district court properly
assessing the “weight and credibility” of the recanting testimony, which Clark
commands, versus the district court determining the ultimate “veracity” of the recanting
testimony, which Clark prohibits. A district court’s assessment of “weight and
credibility” may be made absent an ultimate determination of whether the recanting
witness is telling the truth or not, while a district court’s determination as to the
witnesses’ “veracity” is just that--a definitive determination that the recanting testimony
is either the truth or a lie. More importantly, the “weight and credibility” of the recanting
witness is not the dispositive factor in assessing whether the new evidence entitles the
defendant to a new trial, as was the test in Perry. As the Dissent recognizes, the decision
of what effect the recantation of the victim will have may be of “primary importance in
making the determination whether the new trial would probably result in acquittal.”
Although of primary importance, the effect of the recanting testimony is not dispositive.
¶24 Under proper application of the Clark test, a possible scenario might be one in
which the district judge finds the recanting witness highly credible, but nonetheless
denies a new trial under the Clark test in light of the strength of the testimony of five
other prosecution witnesses presented at the original trial. Alternatively, a judge might
find a witness not particularly credible, but nonetheless grant a new trial under Clark
because there is a reasonable probability--given the paucity of other evidence adduced at
the first trial--that a jury on retrial would acquit the defendant when presented with the
new evidence. In sum, the distinctions set forth in Clark, and reaffirmed here, are both
appropriate and crucial to ensuring that the reviewing judge does not intrude on the jury’s
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province as fact finder. See Clark, ¶ 32.
¶25 The court’s improper application of the law clearly prejudiced Crosby since the
court denied Crosby’s petition for postconviction relief on the sole basis that it deemed
Shawnetta’s recanting testimony untrue. We therefore reverse and remand for the
District Court to apply the standards espoused in Clark in determining whether Crosby is
entitled to postconviction relief and a new trial.
ISSUE TWO
¶26 Did the District Court abuse its discretion when it denied Crosby’s motion to
strike a portion of Dr. Stratford’s testimony?
¶27 Crosby filed a motion in limine, asking the District Court to preclude the State’s
expert witness, Dr. Stratford, from testifying. Crosby argued that the subject matter was
not appropriate for an expert opinion and that allowing expert testimony regarding
another witness’s credibility violated Montana case law. The court’s order permitted Dr.
Stratford to testify, but granted Crosby’s motion to “preclude expert testimony from Dr.
Stratford regarding the credibility of this particular victim.” Crosby asserts that the
District Court violated the latter portion of its own order when it permitted Dr. Stratford
to testify about Shawnetta’s credibility. Crosby further asserts that the District Court
compounded its error when it denied his motion to strike Dr. Stratford’s testimony.
¶28 During Dr. Stratford’s testimony, counsel for the State inquired as follows: “we
can’t comment specifically about whether her testimony here in court was true or not.
But based on all of the materials that you looked at, do you have an opinion about
whether it’s more likely than not her testimony at the trial was accurate as opposed to the
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recantation?” In response, Dr. Stratford opined that Shawnetta’s testimony “at trial was
more accurate than subsequent.” Clearly, this testimony violated the letter of the court’s
correct order in limine which precluded Dr. Stratford from testifying to Shawnetta’s
credibility. At such time as the court on remand re-examines the existing record, we
direct the court to disregard this facet of Dr. Stratford’s testimony.
¶29 Reversed and remanded for application of the Clark test to determine whether
Crosby is entitled to postconviction relief.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
Justice John Warner dissents.
¶30 I dissent from the Court’s decision to remand for application of the Clark test to
determine if Crosby is entitled to postconviction relief. This Court should not remand
simply because the District Court, not having the benefit of Clark which was later
decided, worded its final conclusion of law improperly. The District Court clearly
articulated in its order that the recantation was not credible and that the victim had
insincere motives in making it. Understandably, the District Court did not express its
decision using the language contained in Clark. However, it did consider the essential
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Clark factors in making its decision whether a new trial was necessary. Thus, the order
of the District Court clearly shows the result was correct.
¶31 Under Clark, the result of a motion for postconviction relief alleging actual
innocence because a complaining witness has later recanted her accusations, depends
upon the circumstances of the case, including the trial court’s estimation of the credibility
of the recanting witness, the overall strength of the prosecution’s case, and the
circumstances under which the recantation took place. These considerations are intrinsic
to the fifth element of the Clark test, which states, “the evidence must indicate that a new
trial has a reasonable probability of resulting in a different outcome.” Clark, ¶ 34.
¶32 Under the circumstances of this case, which are not unique, this fifth prong of the
Clark test is unquestionably the most significant. As this Court stated in Clark, “[t]he
fifth element . . . is most likely to be the crux of any district court’s evaluation of new
trial motions based on new evidence.” Clark, ¶ 36. Within this fifth element, an
assessment of the credibility of the recantation, although not dispositive, is of primary
importance in making the determination whether a new trial would probably result in an
acquittal. Unfortunately, Clark’s guidance in applying the fifth element is confusing and
rather inconsistent.
¶33 Clark declares that under the five factor test, “the district court is not to make
factual determinations as to the veracity of the recantation.” Clark, ¶ 38. Yet, in the
same paragraph, the Court states that “determinations of weight and credibility [of
recantations] are left to the trial judge.” Clark, ¶ 38. Simply put, in spite of the Court’s
attempt to create one, there is no real distinction between the “veracity” of the recantation
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and the “credibility” of the recantation. Today’s opinion requires the District Court to
make sense of this distinction without a difference.
¶34 Clark expressly overruled the Perry standard, that a “trial judge is required to
grant a new trial only when he is satisfied the recantation of the witness is true.” Clark, ¶
32. Yet, the district court must still consider the “weight and credibility” of the
recantation. Clark, ¶ 38. Thus, I conclude that Clark did not bar the district court from
considering the truth (or “credibility”) of the recantation. Rather, Clark expanded the
overall analysis and required examination of several other essential factors. The Court is
correct in concluding that a district court cannot base its decision, whether to grant relief,
solely on its finding as to the ultimate truthfulness of the recantation. Although
credibility is still an essential factor, 1 the district court must also consider any factors
relevant to a potential jury’s determination of which story of the victim to believe,
including the weight of corroborating evidence; and any other evidence presented by the
defendant or prosecution that may bear on the ultimate issue of whether the result of a
new trial would probably be different. This is exactly what the trial judge did in this
case.
¶35 The District Court held an evidentiary hearing to assess the veracity of the
victim’s recanted testimony, at which she testified. In addition, the District Court heard
testimony from two experts and a former police detective. The District Court also
considered the circumstances surrounding the victim’s recantation and the fact that it
1
See Clark, ¶ 37-38.
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conflicted with the testimony of other credible witnesses at trial, as well as the original
testimony given by the victim.
¶36 After considering all of the evidence, as required by Clark, the District Court
concluded the recantation was not credible, that is, after considering the weight and
credibility of the recantation, which is the province of the trial judge, he did not believe
it. When a district court determines the victim’s recantation is not credible, a new trial
should be denied. See Clark, ¶ 37-38. Further, when it considered the seminal question
of the victim’s credibility, the District Court also took into consideration the other
evidence which under Clark must be factored into its determination whether the result of
a new trial would probably be different.
¶37 In Clark, there was no indication from the record why the district court denied the
motion for new trial. Clark, ¶ 42. Thus, this Court could not discern whether the law had
been applied correctly and had to remand. Clark, ¶ 42. This case is different. We have a
full record and a written order from the trial judge that tell us why postconviction relief
was denied. From this we know the determination, that the recantation was not credible,
was correctly made because with psychical foresight the District Court considered the
factors required by Clark. Thus, the District Court, in reality, determined that it was not
probable the result of a new trial would be different.
¶38 By remanding with directions to apply the Clark test, we are telling the District
Court to do what it has already done. In its order, the District Court considered the
weight of corroborating evidence, the credibility of the recantation and the circumstances
surrounding it, and the longstanding policies and presumptions applicable to recantations
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and endorsed in Clark. 2 The Court ignores the undeniable fact that the District Court
considered these factors, each essential under the Clark test. The Court blindly focuses
on the conclusion that the recantation in this case was untruthful, thus elevating
terminology over the substance of the analysis.
¶39 I would conclude that the District Court considered all essential factors under the
Clark test relevant to the facts of this case. Thus, notwithstanding the ultimate
conclusion that the recantation was untruthful, the District Court still met the
requirements of Clark, even before Clark had been decided by this Court.
¶40 Finally, I agree with Justice Rice’s dissent concerning the testimony of Dr.
Stratford. The record makes it clear that the District Court was keenly aware that an
expert witness may not testify directly on the credibility of another witness. I am
confident that the trial judge, who has heard considerable expert testimony over the last
twenty-five years, is able to differentiate between opinion that is admissible and that
which is not. Further, there is little doubt that it was the judge, not the expert, who made
the decision on the veracity of the recantation.
¶41 I would affirm the District Court.
/S/ JOHN WARNER
2
As this Court recognized in Clark, “recantations are to be ‘viewed with great suspicion’
and . . . ‘demonstrate[] the unreliability of a witness[.]” Clark, ¶ 37 (quoting Perry, 232
Mont. at 466, 758 P.2d at 275). Further and particularly relevant in this matter,
recantations by child victims of sexual abuse are notoriously unreliable and suspect.
Clark, ¶ 37.
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Justice Jim Rice concurring in part and dissenting in part.
¶42 I concur with reversing and remanding this matter for further proceedings under
Issue 1. I would not conclude, under Issue 2, that the District Court abused its discretion
in denying the Defendant’s motion to strike Dr. Stratford’s testimony.
¶43 The motion to strike went far beyond the singular question cited in the Court’s
opinion that touched on the victim’s credibility. It sought broad relief. As defense
counsel stated at the time, “It’s a motion to strike the entirety of [Dr. Stratford’s]
testimony.” Defendant requests the same relief in his appellate briefing: “All of
Stratford’s testimony should have been stricken.” Stratford’s testimony was primarily
directed to the nature of child sexual abuse and the processes at work when a victim
recants earlier testimony, an appropriate subject matter for expert testimony under our
case law, as correctly cited by the District Court. Thus, the District Court properly
denied the motion in limine, which had sought to exclude the general subject matter of
the testimony, and also properly denied the motion made during the hearing to strike the
entirety of Stratford’s testimony.
¶44 The “more likely than not” question cited in the Court’s opinion about the
truthfulness of the victim’s trial testimony may well have been objectionable on its face.
However, after the question was initially asked, the District Court clarified that the
prosecutor was not seeking Stratford’s opinion about the credibility of the victim’s
testimony. Stratford then answered the question by discussing the process in general,
including: the value of neutrality in child interview questions, the importance of the early
interview because of the failure of memory over time, the details provided in a child’s
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narrative, the emotional context of the child’s initial statement, the circumstances of
subsequent interviews and whether the story has changed over time. Stratford’s answer
was not directed toward the credibility of the victim. Thus, I believe the District Court
handled the matter within its discretion. Further, I would also make clear that we are
rejecting the Defendant’s request to strike all of Stratford’s testimony for purposes of the
proceedings on remand. I would not strike any of that testimony.
/S/ JIM RICE
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