Opinion
Court of Appeals No. A-8519.
January 19, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge. Trial Court No. 4FA-02-1151 CI.
Marlin D. Smith, Law Office of Marlin D. Smith, Fairbanks, for Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Sean M. Altman contends that the superior court improperly dismissed his application for post-conviction relief. Altman claims that he was entitled to relief from his first-degree murder conviction because a witness recanted his trial testimony. Because Altman had not filed his application before two years had elapsed since his conviction was final, AS 12.72.020(b)(2) required Altman to plead due diligence in discovering evidence that was not cumulative, was not merely impeaching, and proved that he was factually innocent.
The State moved to dismiss the application. The State asserted that Altman did not plead a prima facie case because what Altman claimed was newly discovered evidence — a claim by his cohort in the events leading to the murder that he had given false testimony at trial — was cumulative, impeaching, and could not meet the standard of showing that Altman was factually innocent. Altman opposed by arguing that the new evidence was relevant to the only disputed element at his trial for first-degree murder, whether Altman intended to kill the victim. (Altman conceded at his trial that he had committed second-degree murder.) The superior court granted the State's motion and dismissed the application. From our review of the record, we conclude that the superior court did not abuse its discretion when it dismissed the application. Accordingly, we affirm the superior court's ruling.
Facts and proceedings
A jury convicted Altman of first-degree murder, third-degree misconduct involving weapons, two counts of first-degree robbery, and one count of second-degree theft. In 1997, we affirmed Altman's conviction and composite 110-year sentence on direct appeal.
AS 11.41.100(a), AS 11.61.200(a)(11), AS 11.41 .500 AS 11.46.130(a)(1), respectively.
See Altman v. State, Alaska App. Memorandum Opinion and Judgment No. 3646 at 5 (Aug. 27, 1997), 1997 WL 528820 at * 2.
In 2002, more than two years after we affirmed Altman's conviction, Altman filed the application for post-conviction relief in question here. Altman based his application on a claim of newly discovered evidence that was outlined in an affidavit from Jeremiah Leisure.
Leisure was one of Altman's cohorts in the crimes. At Altman's trial, Leisure testified that he, Altman, and Carlos Pena spent the evening of the crime driving around, drinking beer, and talking about robbing and shooting people. After several hours of driving around, the three men spotted James Herbert walking on a downtown sidewalk. Leisure testified that they followed Herbert for a while, and then "Carlos Pena turned and looked at Mr. Altman and said, if you got the balls go get out and shoot this guy." Altman responded "no problem" and got out of the car with a gun in his hand. Leisure testified that he and Pena then drove around the block. As they drove around the block, Leisure testified that he heard gunshots. Leisure stated that he and Pena stopped to pick Altman up, and Altman told them that he had shot Herbert and that "it was no big thing." Pena testified but denied saying anything to Altman about shooting Herbert before Altman got out of the car.
Altman testified in his own defense. He admitted that he had shot Herbert in the head, but claimed that he had not intended to kill him. Instead, Altman testified that he had accidentally shot Herbert while attempting to rob him.
The newly discovered evidence Altman presented was described in an affidavit from Leisure which recanted part of his trial testimony. Leisure asserted in the affidavit that Pena and Altman had not discussed shooting anybody before Altman shot Herbert. Leisure further claimed that he was surprised when Altman told him that he had shot Herbert, because Leisure had believed that Altman had intended only to rob Herbert. Leisure claimed that he had lied at the trial because he had been mentally ill at the time and had an "uncontrollable compulsion" to gain favor from the State on the charges he was facing.
The State filed a motion to dismiss Altman's application. The State argued that Altman had failed to make a prima facie case for relief because he had not shown by clear and convincing evidence that he was factually innocent, and because Leisure's statements in the affidavit were merely cumulative or impeaching evidence.
Altman opposed the State's motion to dismiss, claiming that Leisure's recantation tended to show that Altman was factually innocent of first-degree murder because Leisure's affidavit contradicted his trial testimony which supported the State's case that Altman intended to kill Herbert. Altman argued that, at a minimum, he was entitled to a hearing at which the trial court judge could assess the credibility of Leisure's recantation testimony.
Superior Court Judge Charles R. Pengilly dismissed Altman's application for post-conviction relief without an evidentiary hearing. Judge Pengilly concluded that Altman's application did not present a prima facie case and indicated that each of the State's grounds was persuasive.
Discussion
Altman argues that the superior court erred by dismissing his application without first giving him notice and an opportunity to amend his application in order to cure any deficiencies. We addressed this issue in Tall v. State. In Tall, we held that a trial court is not required to give an applicant notice of its intent to dismiss an application for post-conviction relief in cases in which the State has moved to dismiss the application. We reasoned that the motion to dismiss has alerted the applicant to potential deficiencies in the application, and that the applicant is given an opportunity to oppose dismissal of the application or to file an amended application. Here, the State moved for dismissal of Altman's application, and Altman opposed the State's motion. Therefore, under Tall, the trial court did not err by dismissing Altman's application without first giving him notice and an opportunity to cure the deficiencies in the application.
25 P.3d 704 (Alaska App. 2001).
Id. at 706-08.
Id. at 707-08.
Next, Altman argues that Judge Pengilly should not have dismissed his application without first conducting a hearing to evaluate the credibility of Leisure's recantation. Altman supports this argument with a citation to Dunbar v. State. But Dunbar does not stand for the proposition that a hearing is necessary in every case when a witness recants trial testimony. Instead, Dunbar provides that a trial court should conduct a hearing in cases in which the credibility of a recanting witness is particularly important to the court's decision. Here, Judge Pengilly's decision was apparently based on the assumption that Leisure would indeed testify as proposed.
522 P.2d 158 (Alaska 1974). In his brief, Altman actually cites to a later opinion in Dunbar, 555 P.2d 548 (Alaska 1976), but the later opinion does not discuss the issue of hearings.
Dunbar, 522 P.2d at 159, 160 n. 7.
See id. at 159 ("The mere fact that the credibility of vital witnesses is called into question by post-trial recantations does not necessarily mean there must be a new trial.").
Under AS 12.72.020(b)(2), an applicant who files an application for post-conviction relief based on newly discovered evidence outside the time limits of .020(a)(3) and (a)(4) must show: (1) that he or she exercised due diligence in presenting the claim; (2) that the evidence was not known within two years after entry of the judgment of conviction; (3) that the evidence is not cumulative to the evidence presented at trial; (4) that the evidence is not impeachment evidence; and (5) that the evidence "establishes by clear and convincing evidence that the applicant is innocent."
Altman argues that his application pleads a prima facie case for relief. He points out that AS 12.72.020(b)(2)(D) provides that "a court may hear a claim . . . [if the applicant] sets out facts supported by evidence that is admissible and . . . establishes by clear and convincing evidence that the applicant is innocent." But the statute also requires that the evidence must be neither cumulative to the evidence at trial nor impeachment evidence. If Altman's application failed to meet any of those requirements, Judge Pengilly could properly dismiss it for failure to state a prima facie case for relief.
As the State argues, Leisure's affidavit, if believed in its entirety, establishes that Altman did not talk about killing Herbert before Altman exited the car. This statement is consistent with Pena's and Altman's trial testimony. Leisure's affidavit also indicates he was surprised when Altman reported that he had shot Herbert. This statement is consistent with Altman's testimony at trial that he had accidentally shot Herbert. Leisure's affidavit discusses his mental illness and claims that the illness caused the compulsion to help the State. But at trial, Altman presented evidence from Leisure's mental health provider of how Leisure's illness might affect his credibility. Further, Leisure's affidavit does not establish that Altman lacked intent to kill when he shot Herbert. Leisure did not claim to see what happened after Altman exited the car and approached Herbert and shot him in the head with a handgun.
From our review of the record, we conclude that Judge Pengilly could properly conclude that Altman's application did not plead a prima facie case of newly discovered evidence under AS 12.72.020(b)(2). That is, the proposed evidence was either cumulative or impeaching, and it did not establish Altman's factual innocence of first-degree murder.
Conclusion
The judgment of the superior court is AFFIRMED.