# State v. McCallum

> Wisconsin Supreme Court · April 18, 1997 · 208 Wis. 2d 463

URL: https://www.frixlaw.com/law-library/cases/9718347

## Case

- **Full name:** State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ronald W. McCallum, Defendant-Appellant
- **Court:** Wisconsin Supreme Court
- **Decided:** April 18, 1997
- **Citations:** 208 Wis. 2d 463; 561 N.W.2d 707; 1997 Wisc. LEXIS 35
- **Precedential status:** Published
- **Opinion:** Concurrence by Abrahamson
- **Judges:** Abrahamson, Bablitch
- **Cited by:** 117 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified on other grounds by State v. Kivioja, 225 Wis. 2d 271 (1999).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718347

## How later opinions describe it (automated extraction)

- explaining that circumstantial guarantees of trustworthiness can be found where the recantation is internally consistent, given under oath, consistent with circumstances existing at the time of the initial allegation, and where the recanting witness understands that the origin…
- explaining that “[f]or newly discovered evidence to constitute a manifest injustice and warrant the withdrawal of a plea,” defendants must prove by clear and convincing evidence, among other things, that they were “not negligent in seeking evidence”
- noting that victim's motive to falsely accuse the defendant, which was unknown to the trial court when defendant pleaded guilty, corroborated the victim's recantation, and, thus, gave recantation evidence credibility
- discussing the corroboration requirement for establishing newly discovered evidence based on a victim’s recantation and stating that “[r]ecantations are inherently unreliable”

## Opinion text

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE
¶ 33. (concurring). I agree with the mandate but write separately to elaborate on the two major issues I believe are raised in the present case. The first is the standard of review applied by an appellate court to a circuit court's denial of a motion for a new trial based on recantation testimony. The second is the legal standard a circuit court applies to determine whether there is a reasonable probability of a different outcome were the fact finder to hear the evidence presented at the *481 initial proceeding and to hear the recantation and other new evidence. I shall address each of these issues in turn, but I begin with a general discussion of recantation testimony in the context of a motion for a new trial based on newly discovered evidence.
HH
¶ 34. Recantation is not a rare phenomenon in the law. Recantation by a prosecution witness, even the sole prosecution witness, does not automatically entitle a defendant to a new trial. Courts view recantation with great caution because of the possibility of undue influence or coercion.
¶ 35. The policy justifying retrial on the basis of recantation is that only guilty persons should be convicted and only by proof beyond a reasonable doubt. Important countervailing policies militate against retrial: the integrity of the initial fact finding process, the finality of judgments, judicial economy, and prejudice to the state caused by delay. Accordingly, exacting standards are applied when a defendant moves for a new trial.
¶ 36. Recantation testimony has proved troublesome for federal and state courts. A rich literature about recantation evidence exists in court decisions and in legal commentary but it is not discussed in Wisconsin cases. This literature explores the tension between the policy concerns which militate for and against the grant of a new trial on the basis of recanted testimony. 1
*482 ¶ 37. In Wisconsin, recantation evidence is treated as one of several types of newly discovered evidence to be analyzed under the "manifest injustice" test. The manifest injustice test for a new trial has five parts and is derived from a Georgia case, Berry v. State, 10 Ga. 511 (Ga. 1851). 2 The five elements are: (1) the *483 evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; (4) the evidence is not merely cumulative; and 5) "a reasonable probability exists of a different result in a new trial." State v. Krieger, 163 Wis. 2d 241, 255 , 471 N.W.2d 599 (Ct. App. 1991). See also Wis. Stat. § 805.15 (3) (test for new civil trial on basis of newly discovered evidence) and § 972.11 (rules of practice in civil actions generally applicable in criminal proceedings). Unique to Wisconsin, a sixth element is added when the newly discovered evidence is recantation testimony: corroboration, which is discussed in the majority opinion.
¶ 38. Other jurisdictions apply a special rule, the so-called Larrison test derived from Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), to recantation evidence. The Larrison test for recantation evidence is based on the theory that perjured testimony affects the integrity of the judicial process in a way that other newly discovered evidence does not. 3
*484 ¶ 39. In this case there is no serious dispute that the defendant met the first four elements for a circuit court to order a new trial based on newly discovered evidence. 4 The determinative element in this case is the fifth Berry element, namely that a defendant's motion for a new trial will be granted only if a reasonable probability exists of a different result in a new trial.
HH I — I
¶ 40. The first issue is the standard of review of a circuit court's determination on a new trial motion. The majority opinion concludes that a motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the circuit court and that an appellate court reviews the circuit court's determination for erroneous exercise of discretion.
¶ 41. Numerous prior Wisconsin cases state this standard of review; precedent is abundant. I find no case, however, that sets forth an analysis of the standard of review. Indeed careful assessment of the cases reveals that although this standard of review is oft *485 repeated, it is not necessarily applied. 5 Courts have sometimes applied a different standard of review to each of the five elements of the newly discovered evidence rule. 6 The standard may also depend on whether the same trial judge heard both the trial evidence and the recantation and other new evidence. 7
*486 ¶ 42. Because a defendant must satisfy each of the five elements, State v. Sarinske, 91 Wis. 2d 14, 38 , 280 N.W.2d 725 (1979); State v. Kaster, 148 Wis. 2d 789, 801 , 436 N.W.2d 891 (Ct. App. 1989), I conclude that a circuit court should make a separate finding for each element it considers. Thus, I would have the standard of review depend on the element being considered.
¶ 43. The first two elements of the five-part test, whether the evidence was discovered after trial and whether the defendant was not negligent in seeking evidence, are factual determinations. A circuit court's determination of these issues should therefore be reviewed by an appellate court using the clearly erroneous standard, the standard applied to factual findings. Wis. Stat. § 805.17 (2) (1995-96). 8
¶ 44. The third and fourth elements of the five-part test, whether the evidence is material to an issue and whether the evidence is not merely cumulative to the evidence presented at trial, are evidentiary determinations that ordinarily are addressed to the discretion of the circuit court. A circuit court's determination of these issues should be reviewed by an appellate court using the erroneous exercise of discretion standard. State v. Fishnick, 127 Wis. 2d 247, 257 , 378 N.W.2d 272 (1985); State v. Wollman, 86 Wis. 2d 459, 464 , 273 N.W.2d 225 (1979).
*487 ¶ 45. I discuss below the standard of review of the fifth element of the test, whether a reasonable probability exists of a different result in a new trial.
H-i hH HH
¶ 46. In determining whether a reasonable probability exists of a different result when a jury considers both the evidence in the initial proceeding and the recantation and other new evidence, the circuit court must make two determinations.
¶ 47. First, the circuit court makes a preliminary threshold determination about the credibility of the recanting witness, that is, whether the witness is worthy of belief by the jury. Second, if the recantation is not incredible, the circuit court determines whether a reasonable probability exists of a different result at a new trial.
¶ 48. The first step is for the circuit court to determine whether the recantation is credible, that is, worthy of belief. The circuit court does not determine whether the recantation is true or false. Such a holding would render meaningless the right to have a jury determine the ultimate issue of guilt based on all the evidence. The circuit court merely determines whether the recanting witness is worthy of belief, whether he or she is within the realm of believability, whether the recantation has any indicia of credibility persuasive to a reasonable juror if presented at a new trial. 9
¶ 49. A circuit court's finding that a recanting witness is incredible as a matter of law is sufficient to support its conclusion that no reasonable probability *488 exists of a different result at a new trial. State v. Terrance J.W., 202 Wis. 2d 497 , 502, 550 N.W.2d 445 (Ct. App. 1996). 10
¶ 50. The circuit court did not find coercion or duress in the present case, nor did it find the recantation testimony inherently incredible. The State does not assert that the recanting witness is inherently incredible.
¶ 51. An appellate court should not upset a finding of credibility unless it is clearly erroneous. Terrance J.W., 202 Wis. 2d at 502 . This standard of review of the circuit court's finding of credibility recognizes that the circuit court is in a much better position than an appellate court to resolve whether the witness is inherently incredible. .
¶ 52. Once a circuit court finds that a recanting witness is credible, then it must decide whether the defendant has satisfied the crux of the fifth element: whether a reasonable probability exists of a different result in a new trial.
¶ 53. The court has used different language in describing the fifth element. In some cases the fifth element is set forth as in the majority opinion: "whether a reasonable probability exists of a different result in a new trial." Krieger, 163 Wis. 2d at 255 .
¶ 54. The element has also been stated as: "it must be reasonably probable that a different result would be reached on a new trial." State v. Herfel, 49 Wis. 2d 513, 522 , 182 N.W.2d 232 (1971) (emphasis *489 added) (citing Estate of Eannelli, 269 Wis. 192 , 68 N.W.2d 791 (1955)); Estate of Teasdale, 264 Wis. 1, 4 , 58 N.W.2d 404 (1953) (emphasis added). This formulation is also used in the majority opinion. Majority op. at 474.
¶ 55. A third phrasing is that "it must be reasonably probable that a different result will be reached on a new trial." Eannelli, 269 Wis. at 214 (emphasis added) (citing Teasdale).
¶ 56. The court of appeals in the present case stated the standard as whether "a reasonable jury could accept the recantation as true" and whether "there is a reasonable probability of a different result." State v. McCallum, 198 Wis. 2d 149, 158 , 542 N.W.2d 184 (Ct. App. 1995).
¶ 57. Do these various formulations of the fifth element differ? Do they give sufficient guidance to the circuit court and court of appeals? The majority opinion gathers these formulations into one formulation, namely that the probability of a different result in a criminal case exists when there is a reasonable probability that a jury would have a reasonable doubt as to the defendant's guilt. Majority op. at 474-76.
¶ 58. I would gather these various formulations of the fifth element into the test for reversal for prejudicial error with which this court has struggled and with which we are all familiar. Indeed recantation testimony discovered after trial can be recast, for purposes of analysis, as testimony that was erroneously omitted from the initial trial.
¶ 59. The prejudicial error test states, in language similar to that used in manifest injustice cases, that an error is prejudicial and reversal of a conviction is required if "there is a reasonable probability that, absent the errors, the factfinder would have had a rea *490 sonable doubt respecting guilt." Strickland v. Washington, 466 U.S. 668, 694-95 (1984), discussed in State v. Dyess, 124 Wis. 2d 525, 543 , 370 N.W.2d 222 (1985). Reasonable probability for purposes of prejudicial error is not strictly outcome determinative. Reasonable probability does not mean that it is more likely than not that a new trial would produce a different result. 11 The circuit court does not determine which of the two statements is more credible; the circuit court is not to act as a thirteenth juror. 12 "[A] reasonable probability of a different outcome is one that raises a reasonable doubt about guilt, a 'probability sufficient to undermine confidence in the outcome' of the proceeding." Dyess, 124 Wis. 2d at 544-545 , quoting Strickland, 466 U.S. at 694 .
¶ 60. I conclude that a circuit court may usefully apply the prejudicial error inquiry to the fifth element of our recantation test. Thus, when a witness' recantation and other new evidence undermine the circuit court's confidence in the correctness of the outcome at the original trial or hearing, a new trial should be ordered.
*491 ¶ 61. On appellate review, I conclude that an appellate court should review the reasonable probability determination under the erroneous exercise of discretion standard. Having heard both the evidence at the original trial or hearing, or even just the evidence on the motion hearing, a circuit court is in a better position than an appellate court to determine whether confidence in the correctness of the outcome at the original trial or hearing has been undermined. 13
For the reasons set forth, I write separately.
See, e.g., Brown v. State, 816 P.2d 818 (Wyo. 1991). For collections of cases, see Annot., Tim A. Thomas, Standard for Granting or Denying New Trial in State Criminal Case on Basis of Recanted Testimony — Modern Cases, 77 A.L.R.4th 1031 (1990 and supp.); Annot., Wade R. Habeeb, Recantation by Pros *482 ecuting Witness in Sex Crime as Ground for New Trial, 51 A.L.R.3d 907 (1973 and supp.); Annot., Tim A. Thomas, Recantation of Testimony of Witness as Grounds for New Trial — Federal Criminal Cases, 94 A.L.R. Fed. 60 (1989 and supp.). See also Charles Alan Wright, Federal Practice and Procedure:- Criminal 2d §§ 557-557.2 (1982 and supp.); Christopher J. Sinnott, Note, When Defendant Becomes the Victim: A Child's Recantation as Newly Discovered Evidence, 41 Clev. St. L. Rev. 569 (1993); Sharon Cobb, Comment, Gary Dotson as Victim: The Legal Response to Recanting Testimony, 35 Emory L.J. 969 (1986); Janice J. Repka, Comment, Rethinking the Standard for New Trial Motions Based upon Recantations as Newly Discovered Evidence, 134 U. Pa. L. Rev. 1433 (1986); Daniel Wolf, Note, I Cannot Tell a Lie: The Standard for New Trial in False Testimony Cases, 83 Mich. L. Rev. 1925 (1985); Minnesota Developments, Criminal Procedure: Minnesota Adopts the Lar-rison Standard for Granting a New Trial Because of Newly Discovered Evidence: State v. Caldwell, 67 Minn L. Rev. 1314 (1983); Jill A. Schwendinger, Survey, Ninth Circuit Adopts Berry Standard for New Trials Based Upon Perjured Testimony, 11 Golden Gate U. L. Rev. 171 (1981); Richard C. Donnelly, Unconvicting the Innocent, 6 Vand. L. Rev. 20 (1952).
In its original form the Berry test required:
1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to want of due diligence that it did not come sooner. 3d. That it is so material that it would probably produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only_viz.: speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness.
*483 Berry v. State, 10 Ga. 511, 527 (Ga. 1851).
Under Larrison , a new trial should be granted if (1) the court is reasonably well satisfied that the testimony given by a material witness is false; (2) without this testimony the jury might have reached a different conclusion; and (3) the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. United States v. Larrison, 24 F.2d 82, 87-88 (7th Cir. 1928). The seventh circuit has recently stated that the third prong, surprise, is not a sine qua non for the grant of a new trial. United States v. Leibowitz, 919 F.2d 482, 484-85 (7th Cir. 1990), cert. denied, 499 U.S. 953 (1991).
Much of the distinction between the Berry and Larrison tests has been blurred by the numerous state and federal restatements of the tests. For a discussion of the two tests, see the cases and articles cited at note 1 above.
*484 One commentator has concluded that the "tests seem equally exacting; the difference is that Berry is more demanding regarding the probative value of the recantation while Larrison emphasizes the credibility of the witness. Hence, the two tests in actuality may present nearly equivalent hurdles to a defendant requesting a new trial." Sharon Cobb, Comment, Gary Dotson as Victim: The Legal Response to Recanting Testimony, 35 Emory L.J. 969 , 977-78 (1986).
The State suggests that the complaining witness' motive was known or suspected by the defendant at the time of his conviction and thus could not support a finding of newly discovered corroboration evidence.
The cases reveal that although the supreme court repeats the erroneous exercise of discretion standard of review, it often appears to have reviewed the trial courts' decisions independently, determining anew whether there exists a reasonable probability of a different result. See, e.g., State v. Sarinske, 91 Wis. 2d 14, 37-38 , 280 N.W.2d 725 (1979); State v. Boyce, 75 Wis. 2d 452, 462-63 , 249 N.W.2d 758 (1977).
Furthermore, other cases seem to say that when a defendant's motion for a new trial is based on new evidence, the defendant is in effect alleging a denial of due process on the ground that there is insufficient evidence to support the conviction. The court of appeals has characterized this question as one of due process and declared that whether due process warrants retrial is a constitutional question subject to de novo review. State v. Coogan, 154 Wis. 2d 387, 394-95 , 453 N.W.2d 186 (Ct. App. 1990). Thus, as the State's brief explains, only when a defendant does not seek plea withdrawal on the basis of a constitutional violation, a circuit court's determination of the plea withdrawal motion is reviewed for erroneous exercise of discretion. Brief for State at 15. See, e.g., State v. Krieger, 163 Wis. 2d 241, 249-50 , 471 N.W.2d 599 (Ct. App. 1991).
In State v. Terrance J.W., 202 Wis. 2d 497 , 501-02, 550 N.W.2d 445 (Ct. App. 1996), while the court of appeals stated that the erroneous exercise of discretion standard is the applicable standard for review of an order on a motion for a new trial, it applied the clearly erroneous standard to the circuit court's finding that the recanting witness was incredible.
The supreme court has said:
Usually on appeal to review the denial of a motion for a new trial on the ground of newly discovered evidence, the test applied is whether the trial court abused its judicial discretion. However, as *486 in this case, when a judge who decided such a motion did not hear the evidence at trial this court on appeal starts from scratch and examines the record de novo so that it can consider the facts directly on which the legal issue raised by motion depends.
State v. Herfel, 49 Wis. 2d 513, 521 , 182 N.W.2d 232 (1971) (citations omitted).
For a discussion of the clearly erroneous standard see State v. Pitsch, 124 Wis. 2d 628, 634 , 369 N.W.2d 711 (1985).
State v. Brown, 96 Wis. 2d 238, 247 , 291 N.W.2d 528 , cert. denied, 449 U.S. 1015 (1980); Gauthier v. State, 28 Wis. 2d 412, 416 , 137 N.W.2d 101 (1965), cert. denied, 383 U.S. 916 (1966).
Because the credibility determination is intimately connected to the reasonable probability determination it is not strictly necessary to conduct a two-part inquiry in the manner I have set out. Nonetheless, in the interest of providing guidance to the trial court, many courts distinguish the two inquiries and I think it is wise to dp so.
Strickland v. Washington, 466 U.S. 668, 693-97 (1984); State v. Dyess, 124 Wis. 2d 525, 541-45 , 370 N.W.2d 222 (1985); State v. Pitsch, 124 Wis. 2d 628, 640-42 , 369 N.W.2d 711 (1985); State v. Ludwig, 124 Wis. 2d 600, 609 , 369 N.W.2d 722 (1985).
As the court of appeals explained in the present case: "It is the jury's role to determine which of the two contradictory statements it believes." State v. McCallum, 198 Wis. 2d 149, 159 , 542 N.W.2d 184 (Ct. App. 1995). See also Terrance J.W., 202 Wis. 2d at 502 .
For a thoughtful discussion of this important point see Brown v. State, 816 P.2d 818, 866-68 (Wyo. 1991) (Thomas, J., dissenting). See also State v. Smith, 909 P.2d 1335, 1340 (Wash. App. 1996), rev'd on other grounds, 930 P.2d 917 (Wash. 1997); People v. Minnick, 263 Cal. Rptr. 316, 317-18 (Cal. App. 1989).
When an appellate court reviews a ruling on a motion for a new trial based on a recantation it is not strictly limited by its erroneous exercise of discretion review. An appellate court may reverse an order denying a new trial when the appellate court determines, after independent review, that the real controversy has not been fully tried or that it is probable that justice has for any reason miscarried. Wis. Stat. §§ 751.06 (1995-96) (supreme court), 752.35 (1995-96) (court of appeals).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718347. Public record. Not legal advice.