Appeal from the Superior Court of the District of Columbia (F-8313-91). (Hon. A. Franklin Burgess, Jr., Trial Judge).
Before Terry, Schwelb, and Farrell, Associate Judges.
A jury convicted appellant in 1992 of felony murder, armed robbery, and a weapons offense. Evidence at trial, including the testimony of Willard Jackson ("the only government witness who directly implicated [appellant] in the crime," as the trial judge later observed), established appellant's complicity in the armed robbery of Devon Lewis ("Jamaican Mike"), in the course of which Lewis was shot to death. Appellant's convictions were affirmed on direct appeal. Before us now is an appeal from the denial of appellant's third post-conviction motion which alleged ineffective assistance of trial counsel, prosecutorial misconduct, and recantation by the government witness Jackson. The trial judge (Burgess, J.) correctly ruled that the motion was procedurally barred as to the first two contentions,*fn1 and similarly, that if the recantation claim were viewed as having been brought under Super. Ct. Crim. R. 33, it was time barred. The judge went on, however, to consider that claim as one asserting "new evidence" under the Innocence Protection Act, D.C. Code § 22-4131 et seq. (2004 Supp.) (the IPA or the Act). He rejected the claim after finding, on the basis of a comparison of Jackson's affidavit of recantation with the trial testimony of Jackson and other witnesses, that the recantation was not credible.
We affirm that aspect of the judge's ruling as well. Judge Burgess's statement of reasons for disbelieving Jackson's recantation is persuasive and supported by the record, see D.C. Code § 17-305 (a) (2001); Young v. United States, 639 A.2d 92, 95 (D.C. 1994) (applying "clearly erroneous" review standard to trial court's rejection of alleged newly discovered evidence as inherently incredible); we attach the relevant portions of that ruling as an appendix hereto. We publish this brief opinion only to confirm the correctness of two legal conclusions underlying the judge's rejection of the IPA claim. First, he concluded that, as in the case of a motion for new trial under Super. Ct. Crim. R. 33 alleging recantation of a government witness, a judge faced with a similar motion (but styled as one asserting "actual innocence") under the IPA may discredit the recantation by the witness and thus terminate the inquiry into the convicted person's actual innocence. Second, he concluded that, as the trial judge who had heard the testimony of Jackson and the other witnesses at trial, he was in a position to assess the credibility of the affidavit of recantation without an evidentiary hearing, in keeping with the law governing similar claims under Rule 33 or D.C. Code § 23-110. Both conclusions are correct.
When a convicted person moves for a new trial under Rule 33 by submitting an affidavit of a government witness purporting to recant his trial testimony, the court may decide whether the recantation is credible before turning (if necessary) to the second issue of "the effect that the recantation would have had on the jury." Herbin v. United States, 683 A.2d 437, 441 (D.C. 1996). "If the trial court determines that the recantation is not credible, that determination ends the inquiry." Id. at 441. Moreover, at least where the same judge considering the affidavit of recantation heard the testimony of that witness and the others at trial, the judge may make the credibility finding on the basis of the affidavit and the trial record, without need for an evidentiary hearing. Id. at 442 (citing Derrington v. United States, 488 A.2d 1314, 1338-41 (D.C. 1985)).
No reason exists why these same principles should not apply to a claim of recantation brought as "new evidence" amounting to proof of "actual innocence" under the IPA. In Bouknight v. United States, 867 A.2d 245 (D.C. 2005), this court recently considered for the first time an appeal from the application of the IPA. We pointed out that the Act supplements the protections available to a convicted person under Rule 33 or D.C. Code § 23-110 by enabling the person to seek relief, without time limitation, on the basis of "new evidence," § 22-4135 (a), demonstrating his "actual innocence" - meaning evidence "that the person did not commit the crime of which he or she was convicted." Section 22-4131 (1); see Bouknight, 867 A.2d at 251-52. The Act requires the judge, in determining whether to grant relief, to consider specific statutory factors, including - of most relevance here - "[t]he new evidence" that is offered as proof of actual innocence. Only after considering these factors may the judge decide the ultimate questions of whether (a) "it is more likely than not that the movant is actually innocent of the crime" (in which case "the court shall grant a new trial") or (b) actual innocence has been shown "by clear and convincing evidence" (in which case "the court shall vacate the conviction and dismiss the relevant count with prejudice"). Section 22-4135 (g)(2) & (3).
The IPA thus makes the judge the trier of fact on the ultimate issue of actual innocence, and its explicit direction to the judge to consider "[t]he new evidence" itself as a factor in the inquiry necessarily authorizes the judge, where that evidence is a proffered recantation, to assess the credibility of the recantation before addressing other factors such as "[h]ow the new evidence demonstrates actual innocence," § 22-4135 (g)(1)(B), or "[w]hy the new evidence is or is not cumulative or impeaching." Section 22-4135 (g)(1)(C). In other words, if the judge reasonably finds the recantation to be not credible, that determination properly "ends the inquiry," Herbin, supra, into whether the movant has met his burden of showing that he was in fact innocent. Furthermore, there is no reason why, as in the case of a motion for new trial, the credibility finding as to the recantation cannot be made without an evidentiary hearing by a trial judge who heard the testimony of the recanter and other witnesses at trial. The standard for when a hearing must be held under the IPA, see D.C. Code § 22-4135 (e)(1), mirrors exactly the standard for a hearing required by D.C. Code § 23-110, thus making applicable cases such as Derrington, supra, which commit the decision on whether to hold a post-conviction hearing to the sound discretion of the judge in cases of asserted witness recantation.
Judge Burgess did not err in concluding that, as the judge who had presided over the trial, he was well situated to decide the credibility of the recanting affidavit without a hearing. See United States v. Kearney, 220 U.S. App. D.C. 379, 384-86, 682 F.2d 214, 219-21 (1982) (because the trial judge had "watched the case against [appellant] and the other [defendants] unfold from day to day," he "was exceptionally well qualified to pass on the affidavits"). Further, for the reasons stated in the portions of the judge's opinion attached hereto, his decision to discredit Willard Jackson's affidavit - thereby obviating the need for further consideration of appellant's claim - is well supported by the record.
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION
UNITED STATES OF AMERICA v. ...