BENNETT (ASHLEY) v. STATE

138 Nev., Advance Opinion 2.61
IN THE SUPREME COURT OF THE STATE OF NEVADA
ASHLEY WILLIAM BENNETT, No. 82495
Appellant,
vs.
FILE
THE STATE OF NEVADA,
Respondent.
Appeal from a district court order denying a petition to
establish factual innocence. Eighth Judicial District Court, Clark County;
Michelle Leavitt, Judge.
Reversed and remanded.
Armstrong Teasdale, LLP, and D. Loren Washburn, Reno; Clyde Snow &
Sessions, P.C., and Neil A. Kaplan and Katherine E. Pepin, Salt Lake City,
Utah; Rocky Mountain Innocence Center and Jennifer Springer, Salt Lake
City, Utah,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Alexander Chen, Chief Deputy District Attorney, Clark
County,
for Respondent.
BEFORE THE SUPREME COURT, PARRAGUIRRE, C.J., HARDESTY
and PICKERING, JJ.
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OPINION
PER CURIAM:
A jury found appellant Ashley William Bennett guilty of first-
degree murder with the use of a deadly weapon. Eighteen years later,
Bennett filed a petition to establish factual innocence, alleging a bona fide
issue of factual innocence based on two new pieces of evidence: (1) a
declaration from a trial witness recanting her testimony identifying
Bennett, and (2) an affidavit from a new witness averring that Bennett was
not present and did not shoot the victim. The district court denied the
petition at the pleading stage without conducting an evidentiary hearing,
determining that the petition improperly relied upon a witness's
recantation and impeachment evidence; in so doing, the court also
suggested that the impeachment evidence was not credible.
The statutory scheme providing for a petition to establish
factual innocence is a relatively recent addition to Nevada law. This case
provides an opportunity to address the statutory provisions that guide the
district courVs decision whether to order a hearing on this type of petition.
In particular, we clarify two considerations relevant to the pleading
requirements a petition must satisfy under NRS 34.960(2)(b). First, a
petition may rely on a witness's recantation of trial testimony as newly
discovered evidence provided the recantation is not the only newly
discovered evidence identified in the petition. Second, a petition may rely
on newly discovered evidence that conflicts with a trial witness's testimony
provided the newly discovered evidence is substantive and exculpatory, not
merely impeachment evidence. We also clarify that the relevant statute
requires the district court to treat the newly discovered evidence as credible,
because the decision whether to conduct an evidentiary hearing occurs at
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the pleading stage, and to consider it with all the other evidence in the case,
including evidence presented at trial and any evidence developed after trial.
Because the district court's decision to deny the petition in this case without
conducting an evidentiary hearing is inconsistent with the applicable
statutes, we reverse and remand for the district court to conduct an
evidentiary hearing.
FACTS AND PROCEDURAL HISTORY
Multiple assailants shot and killed Joseph Williams on
March 3, 2001. Bennett, A. Gantt, and one other person were identified as
being involved in the shooting and charged with Williams's murder. Gantt
pleaded guilty to a lesser charge and testified against his codefendants.
Gantt testified that during a gathering to mourn a person murdered the day
before, Bennett suggested shooting at a rival's home in retaliation for the
murder. As the group of mourners walked through a parking lot on the way
to their rival's home, they came across Williams. Bennett, Gantt, and
others spread out and shot Williams. Another witness, P. Neal, testified
that she saw the shooting from outside her apartment, and she identified
Gantt, Bennett, and one other person as the shooters.' The jury found
Bennett guilty of first-degree murder with use of a deadly weapon. The
district court sentenced Bennett to serve two consecutive terms of life
without the possibility of parole. This court affirmed the judgment of
conviction and sentence on appeal. Bennett v. State, Docket No. 39864
(Order of Affirmance, October 5, 2004).
'The State dismissed unrelated criminal charges against Neal before
she testified against Bennett.
3
Less than a month after the district court entered the judgment
of conviction, Gantt signed an affidavit asserting that Bennett was innocent
and that he did not know Bennett or see him on the day of the crime. Gantt
admitted that he falsely testified against Bennett because he had been
threatened with additional charges and the death penalty, even though he
was a minor at the time of the crime. Bennett filed a postconviction habeas
petition based on Gantt's recantation, which the district court denied. This
court affirmed the district court's decision, concluding that Gantt's affidavit
was not newly discovered given the three-year delay between Gantt signing
the affidavit and Bennett filing the petition and that a different result was
not probable based on Gantt's recantation because Neal also had testified
that Bennett was one of the shooters. Bennett v. State, Docket No. 46324
(Order of Affirmance, August 29, 2006).
About 13 years later, Bennett filed a petition to establish
factual innocence. The petition relied on two new pieces of evidence: (1) a
declaration by Neal recanting her trial testimony identifying Bennett as one
of the shooters; and (2) an affidavit from a percipient witness, C. Walker,
asserting that Bennett was not one of the shooters. The district court denied
the petition without conducting an evidentiary hearing. In doing so, the
district court determined that the petition improperly relied upon
recantation and impeachment evidence, which it also suggested was not
credible based on the timing and circumstances of Walker coming forward.
DISCUSSION
Bennett argues that the district court erred in denying his
petition without conducting an evidentiary hearing. We agree.
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NRS 34.970(3) provides that "the district court shall order a
hearing on a petition to establish factual innocence if the court determines
that the petition satisfies the pleading requirements set forth in subsections
2 and 3 of NRS 34.960 and "that there is a bona fide issue of factual
innocence." See also NRS 34.960(4) (providing that "the court shall dismiss"
a petition that does not meet the requirements of subsection 2 or that meets
the requirements of subsection 2 but does not meet the requirements of
subsection 3, unless the court finds circumstances allowing it to waive the
requirements of subsection 3). To satisfy the pleading requirements in
subsection 2, the petition "must contain an assertion of factual innocence
[made] under oath by the petitioner" and must allege that "[n] ewly
discovered evidence exists that is specifically identified and, if credible,
establishes a bona fide issue of factual innocence."2 NRS 34.960(2)(a), see
also NRS 34.920 (defining "factual innocence as meaning that the
petitioner did not engage in the conduct for which he was convicted, engage
in conduct constituting a lesser included offense, commit another crime
reasonably connected to the facts supporting the criminal charge upon
which he was convicted, or commit the charged conduct under any theory of
criminal liability alleged in the charging documents). Subsection 2 also
requires that the newly discovered evidence must (1) "[e]stablish[
innocence and [be] material to the case and the determination of factual
innocence," (2) not be "merely cumulative of evidence that was known,"
(3) not rely solely upon a witness's recantation of trial testimony, (4) not be
"merely impeachment evidence," and (5) be "distinguishable from any
claims raised in any previous petitions." NRS 34.960(2)(b). Determining
2The petitioner must support this assertion with "affidavits or other
credible documents." NRS 34.960(2).
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whether the petitioner has satisfied subsection 2 requires the district court
to consider the newly discovered evidence in the context of "all other
evidence in the case, regardless of whether such evidence was admitted
during trial." NRS 34.960(2)(d). To satisfy the pleading requirements in
subsection 3, the petition must assert that the evidence identified by
petitioner as newly discovered was not known and could not have been
known through the exercise of reasonable diligence "at the time of trial or
sentencing or in time to include the evidence in any previously filed post-
trial motion or postconviction petition." NRS 34.960(3)(a); see also NRS
34.930 (similarly defining "newly discovered evidence). If the district court
determines that the petitioner has satisfied the pleading requirements set
forth above, the court must direct the State to file an answer within 120
days, specifying the claims that warrant a response and the newly
discovered evidence supporting those claims, and allow the petitioner to file
a reply.3 NRS 34.970(1)-(3). Finally, in deciding whether to conduct an
evidentiary hearing after considering the pleadings, the district court must
determine whether there is a bona fide issue of factual innocence, i.e., "that
the newly discovered evidence presented by the petitioner, if credible, would
clearly establish the factual innocence of the petitioner." NRS 34.970(3);
NRS 34.910 (defining "bona fide issue of factual innocence").
Here, the petition alleged a bona fide issue of factual innocence
based on two pieces of newly discovered evidence: Neal's declaration
recanting her trial testimony identifying Bennett as one of the shooters and
Walker's affidavit asserting that he witnessed the shooting and Bennett
3A1though the State did not file a complete response within 120 days
of the district courVs order directing a response, we conclude no relief is
warranted based on that omission.
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was not present or one of the shooters.4 The district court concluded that
this evidence did not satisfy the pleading requirements in NRS 34.960(2)
because it relied on a witness's recantation of trial testimony (Nears
declaration) and impeachment evidence (Walker's affidavit). We conclude
the district court erred in both respects.
NRS 34.960(2)(b)(2) says the newly discovered evidence
identified by the petitioner cannot be "reliant solely upon recantation of
testimony by a witness against the petitioner." (Emphasis added.) The
word "solelf means that a recantation cannot be the only newly discovered
evidence identified by the petitioner. See Solely, Oxford Dictionary of
English (3d ed. 2010) (defining "solely" as "not involving anyone or anything
else; only"). But that language does not preclude a petitioner from including
a witness's recantation as part of the newly discovered evidence identified
in a petition to establish factual innocence. Here, the newly discovered
evidence identified in Bennett's petition included a witness's recantation of
testimony against Bennett, but the petition did not rely solely on the
recantation given that it also included Walker's affidavit.
NRS 34.960(2)(b)(2) also says that the newly discovered
evidence identified by the petitioner cannot be "merely impeachment
evidence." Impeachment evidence is "felvidence used to undermine a
witness's credibility." Evidence (impeachment), Black's Law Dictionary
4Bennett satisfied the "oath" requirement by signing the petition
"under criminal penalty under the laws of the State of Nevada," asserting
his factual innocence throughout the petition, and averring the petition was
true and correct. NRS 208.165 ("A prisoner may execute any instrument by
signing his or her name immediately following a declaration 'under penalty
of perjury with the same legal effect as if he or she had acknowledged it or
sworn to its truth before a person authorized to administer oaths.").
7
(11th ed. 2019); see also Lobato v. State, 120 Nev. 512, 518, 96 P.3d 765, 770
(2004) (discussing the various methods of impeachment, including attacks
upon a witness's competence to testify or a witness's reputation for
truthfulness, the use of prior convictions, prior inconsistent statements,
specific instances of conduct, and ulterior motives to testify). As the Utah
Court of Appeals explained in applying a statutory requirement similar to
NRS 34.960(2)(b)(2), evidence is merely impeachment when that evidence
does not negate a specific element of the charges or directly relate to the
charges but instead is offered solely for the purpose of calling into question
a witness's credibility. Magallanes v. South Salt Lake City, 353 P.3d 621,
623 (Utah Ct. App. 2015). Contrary to the district court's assessment,
Walker's declaration is not merely impeachment evidence. See Merely,
Oxford Dictionary of English (3d ed. 2010) (defining "merely" as "just;
only"). Yes, the declaration arguably undermines the credibility of
witnesses who testified at trial that Bennett was present and was one of the
shooters, but it does so only because the statements in Walker's affidavit
conflict with those witnesses testimony. See Evidence (conflicting), Black's
Law Dictionary (11th ed. 2019) ("Evidence that comes from different sources
and is often irreconcilable."). But Walker's declaration also relates directly
to the conduct for which Bennett was convicted. It provides substantive,
exculpatory evidence; Walker claims to be a percipient witness to the
shooting and says that Bennett was not there and was not one of the
shooters. See Evidence (substantive), Black's Law Dictionary (11th ed.
2019) ("Evidence offered to help establish a fact in issue, as opposed to
evidence directed to impeach or to support a witness's credibility."); see also
State v. Huebler, 128 Nev. 192, 201-02, 275 P.3d 91, 98 (2012) (describing
exculpatory evidence as evidence that proves the factual innocence of the
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defendant and distinguishing this from impeachment evidence). Walker
ultimately may not be a credible witness, as the district court implied when
it pointed out that Walker came forward years after the crime and months
after entering prison. But at the pleading stage, NRS 34.960(2) requires
the court to assume that the newly discovered evidence is credible. NRS
34.960(2)(a) (requiring that a petition aver that "En] ewly discovered
evidence exists that is specifically identified and, if credible, establishes a
bona fide issue of factual innocence (emphasis added)); see also NRS 34.910
(providing that a "Mona fide issue of factual innocence means that newly
discovered evidence presented by the petitioner, if credible, would clearly
establish the factual innocence of the petitioner" (internal quotation omitted
and emphasis added)); Brown v. State, 308 P.3d 486, 495 (Utah 2013)
(observing that at the pleading stage under Utah's similar statute, "the
court is in no position to assess credibility"); see also Berry v. State, 131 Nev.
957, 968-69, 363 P.3d 1148, 1156 (2015) (observing that when deciding
whether to conduct an evidentiary hearing on a gateway claim of actual
innocence in a postconviction habeas petition, a court generally assumes the
truth of the new evidence but may examine the probable reliability of that
evidence and its effect on a reasonable juror).5
The petition further satisfied the requirements of NRS
34.960(3) by asserting that the newly discovered evidence was not known
and could not have been discovered with the exercise of reasonable diligence
at the time of trial, sentencing, or prior postconviction proceedings. Both
witnesses came forward years after Bennett's trial and resolution of his
5We note that the State further argues that the evidence was
cumulative and immaterial. We disagree for the reasons discussed above.
9
postconviction petition—Walker provided an affidavit in 2012 and Neal
provided a declaration recanting her testimony in 2017.
And finally, when the newly discovered evidence identified by
Bennett is viewed with all the other evidence in the case, including the
evidence presented at trial and the additional evidence developed after trial,
Bennett's petition presented a bona fide issue of factual innocence. From
the record provided, the primary evidence against Bennett at trial was the
testimony of Gantt and Neal. identifying Bennett as one of the shooters.6
The newly discovered evidence identified in Bennett's petition calls into
question whether Bennett engaged in the conduct for which he was
convicted. And while Gantt's post-trial recantation cannot be considered
newly discovered evidence because it was presented in earlier proceedings,
see NRS 34.960(2)(b)(3), his recantation is relevant in determining whether
the newly discovered evidence presented in the petition demonstrates
Bennett's factual innocence. See NRS 34.960(2)(d). This is particularly so
where this court rejected I3ennett's prior postconviction claim based on
Gantt's recantation because there was no probability of a different outcome
at trial given Nears trial testimony identifying Bennett as one of the
shooters. Bennett, Docket No. 46324, at *2-3.
6A1though the record provided to this court does not include a
complete trial transcript, the excerpts provided indicate that Gantt and
Neal provided the key evidence against Bennett. The State has not
suggested that the missing portions of the record would call into dispute the
petition's factual assertions regarding the evidence presented at trial.
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CONCLUSION
Because Bennett satisfied the statutory pleading requirements,
NRS 34.970(3) required that the district court order a hearing on the
petition. We therefore reverse the district court's order and remand for an
evidentiary hearing.
Parraguirre
Hardesty
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