Haas v. Commonwealth

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Russell, S.J.
MICHAEL HAAS
OPINION BY
v. Record No. 110599 SENIOR JUSTICE CHARLES S. RUSSELL
January 13, 2012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This is an appeal from a judgment of the Court of Appeals
dismissing a petition for a writ of actual innocence based on
non-biological evidence. By his sole assignment of error, the
petitioner contends that the Court of Appeals abused its
discretion by making evidentiary findings and dismissing his
petition without first referring the case to the circuit court
for an evidentiary hearing.
Facts and Proceedings
On July 22, 1994, Michael Haas was convicted at a bench
trial in the Circuit Court of Powhatan County of sodomy
committed upon his two sons in 1992 and 1993, when they were
eleven and nine years of age, respectively. He was sentenced to
life imprisonment in each case. He appealed his convictions to
the Court of Appeals and to this Court and both appeals were
denied. In 2000, Haas filed a petition for a writ of habeas
corpus in the circuit court which was dismissed as time-barred.
This Court awarded him an appeal of that ruling but ultimately
affirmed it by a published opinion. Haas v. Lee, 263 Va. 273,
278, 560 S.E.2d 256, 258 (2002).
Haas then filed a petition for a writ of habeas corpus in
the United States District Court for the Eastern District of
Virginia claiming that he was entitled to equitable tolling of
the statute of limitations because he was actually innocent. He
attached to his petition an affidavit from his elder son
recanting his trial testimony, an affidavit from his daughter
that the boys' trial testimony was false, and an affidavit from
a physician questioning the reliability of the expert medical
testimony the Commonwealth had presented at trial. The district
court declined to grant equitable tolling of the statute of
limitations because even in light of the affidavits, Haas had
failed to show that under all the circumstances it was more
likely than not that no reasonable fact-finder would have
convicted him of sodomizing his two sons. Haas v. Lee, Civil
No. 3:02CV572 (E.D. Va. 2003) (unpublished). Haas appealed that
decision to the United States Court of Appeals for the Fourth
Circuit, which dismissed the appeal by an unpublished order in
2004. Haas v. Warden, No. 03-7703 (4th Cir. 2004).
On May 11, 2010, Haas filed in the Court of Appeals a
petition for a writ of actual innocence based on non-biological
evidence pursuant to Code § 19.2-327.10. Attached to the
petition were affidavits by his two sons, then adults in their
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late twenties, recanting the testimony they had given at trial,
and an affidavit by their elder sister, recanting her trial
testimony and stating that the boys' testimony had been
suggested and coached by their mother and a counselor named
Susan Boyles. Also attached were affidavits by two physicians
questioning the reliability of the expert medical testimony the
Commonwealth had presented at trial.
The Commonwealth filed a motion to dismiss the petition.
Attached was an affidavit by Gregory A. Neal, the Sheriff of
Powhatan County, as to individual interviews he had conducted
with the younger son and the elder daughter in 1994, including
transcripts of the interviews. Also attached were affidavits by
the children's mother, Haas' former wife, and by Susan Boyles,
that they had never coached or rehearsed the children's
testimony or encouraged them to lie at their father's trial.
After a review of the petition, the motion to dismiss, the
petitioner's reply to the motion, the attached affidavits and
exhibits, the parties' briefs and the records of the prior
proceedings in the case, a panel of the Court of Appeals denied
Haas' request to refer the case to the circuit court for an
evidentiary hearing. By an order entered March 1, 2011 that
included a detailed review of the record, the Court of Appeals
granted the Commonwealth's motion to dismiss the petition for a
writ of actual innocence. We awarded Haas an appeal.
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Analysis
Chapter 19.3 of Title 19.2 of the Code, captioned "Issuance
of Writ of Actual Innocence Based on Nonbiological Evidence,"
was adopted by the General Assembly in 2004. 2004 Acts ch.
1024. That chapter, consisting of Code §§ 19.2-327.10 through
19.2-327.14, confers original jurisdiction upon the Court of
Appeals to entertain petitions for such writs. The chapter also
specifies the form and contents required in such petitions, the
procedures to be followed in deciding such cases, the relief
that may be granted, and provides for appeals to this Court.
The standard of review we apply in deciding appeals under
this chapter requires that we will be bound by factual findings
contained in the record before us that are approved by the Court
of Appeals unless they are plainly wrong or without evidence to
support them, but we will review de novo the Court of Appeals'
conclusions of law and conclusions based on mixed questions of
law and fact. Turner v. Commonwealth, 282 Va. 227, 246, 717
S.E.2d 111, 121 (2011); Carpitcher v. Commonwealth, 273 Va. 335,
342-43, 641 S.E.2d 486, 490-91 (2007).
Code § 19.2-327.11(A) requires the petitioner seeking such
a writ to allege under oath (1) the crime of which he was
convicted and that the conviction was upon a plea of not guilty,
(2) that he was actually innocent of the crime, (3) an exact
description of the previously unknown or unavailable evidence
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supporting his claim of innocence, (4) that such evidence was
unknown or unavailable to petitioner or his attorney when the
conviction became final in the trial court, (5) the date the
evidence became available and the circumstances under which it
was discovered, (6) that the evidence was such as could not, by
the exercise of due diligence, have been discovered before the
expiration of 21 days after the entry of the final order of
conviction, (7) that the evidence is material and when
considered with all of the other evidence in the current record,
will prove that no rational trier of fact could have found proof
of guilt beyond a reasonable doubt, and (8) that the evidence is
not merely cumulative, corroborative or collateral.
Code § 19.2-327.12 provides, in pertinent part:
If the Court of Appeals determines from the
petition, from any hearing on the petition,
from a review of the records of the case, or
from any response from the Attorney General
that a resolution of the case requires
further development of the facts, the court
may order the circuit court in which the
order of conviction was originally entered
to conduct a hearing within 90 days after
the order has been issued to certify
findings of fact with respect to such issues
as the Court of Appeals shall direct.
In the present case, the Court of Appeals determined that no
further development of the facts was required in order to
resolve the case and denied Haas' request that the case be
returned to the circuit court for an evidentiary hearing. Haas
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concedes that the decision whether to order such a hearing lay
within the discretion of the Court of Appeals, but contends
that, in the circumstances of this case, the Court's refusal of
his request amounted to an abuse of discretion.
Code § 19.2-327.13 provides, in pertinent part:
Upon consideration of the petition, the response by the
Commonwealth, previous records of the case, the record of
any hearing held under this chapter and, if applicable, any
findings certified from the circuit court pursuant to an
order issued under this chapter, the Court of Appeals, if
it has not already summarily dismissed the petition, shall
either dismiss the petition for failure to state a claim or
assert grounds upon which relief shall be granted; or the
Court shall (i) dismiss the petition for failure to
establish previously unknown or unavailable evidence
sufficient to justify the issuance of the writ, or (ii)
only upon a finding that the petitioner has proven by clear
and convincing evidence all of the allegations contained in
clauses (iv) through (viii) of subsection A of § 19.2-
327.11, and upon a finding that no rational trier of fact
could have found proof of guilt beyond a reasonable doubt,
grant the writ. . . . The burden of proof in a proceeding
brought pursuant to this chapter shall be upon the
convicted person seeking relief.
Thus, while the Court of Appeals is vested with authority to
refer a case brought under this chapter back to the circuit
court for an evidentiary hearing if, in its discretion, it deems
that the facts require further development, it is not required
to do so. The Court of Appeals is vested with broad discretion
in determining whether the facts require further development.
Turner, 282 Va. at 247, 717 S.E.2d at 121; Johnson v.
Commonwealth, 273 Va. 315, 325, 641 S.E.2d 480, 486 (2007).
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The provisions of Code § 19.2-327.13, quoted above, give
the Court of Appeals clear authority to decide such a petition
on the basis of matters contained in the record. 1 Those may
include the record of the original trial as well as records of
all post-trial proceedings including the petition for a writ of
actual innocence.
The Court of Appeals, in proceedings under this chapter,
acts as a court of original jurisdiction. It therefore has the
same authority to weigh and evaluate documentary and physical
evidence as a trial court would have. Where a new witness has
been found, who has not previously testified and who could not
with due diligence have been discovered before the conviction
became final, reference to the circuit court for an evidentiary
hearing might be appropriate because of a trial judge's unique
ability to see and hear the witness first hand and to evaluate
his credibility from his appearance and demeanor while
testifying. Witnesses who testified at the original trial, but
later decide to recant their testimony, stand on a different
footing.
1
That authority is the equivalent of the authority
conferred on this Court, when acting as a court of original
jurisdiction in habeas corpus cases, to make its decision on the
basis of the record when the Court determines that the issue
"can be fully determined on the basis of recorded matters."
Code § 8.01-654 (B)(4).
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Traditionally, courts view recantations with "great
suspicion." Dobbert v. Wainwright, 468 U.S. 1231, 1233-34
(1984). "Skepticism about recantations is especially applicable
in cases of child sexual abuse where recantation is a recurring
phenomenon." United States v. Provost, 969 F.2d 617, 621 (8th
Cir. 1992). We have observed: "Recantation evidence is
generally questionable in character and is widely viewed by
courts with suspicion because of the obvious opportunities and
temptations for fraud. Unless proven true, recantation evidence
merely amounts to an attack on a witness' credibility by the
witness herself." Carpitcher, 273 Va. at 346, 641 S.E.2d at 492
(citations omitted); see also Turner, 282 Va. at 248, 717 S.E.2d
at 122.
Such skepticism increases with the passage of time.
Recantation evidence appearing long after the trial has ended
places the opposing party at a disadvantage similar to that
which justifies statutes of limitations. Memories may have
faded, witnesses may have disappeared or become incapable of
testifying, physical evidence may be unrecoverable 2 and the
2
The present case illustrates that concern. The
Commonwealth's expert medical witnesses at trial presented
photographs of the rectal examinations they had made of the
boys, showing graphic evidence of chronic sexual abuse. In
deciding the case, the trial judge commented: "[T]hese pictures
here do speak volumes in my opinion." For reasons unexplained,
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recanting witness may have had ample time to acquire an
extraneous motive to falsify his original testimony.
In Carpitcher, the defendant was convicted of sexual
assault on a child. The victim, who had been the Commonwealth's
principal witness at trial, later recanted her testimony and the
defendant filed a petition for a writ of actual innocence in the
Court of Appeals based upon the victim's recantation. The Court
of Appeals, in that case, referred the issue to the circuit
court for an evidentiary hearing. 273 Va. at 341, 641 S.E.2d at
489. After hearing the victim's testimony, the circuit court
reported to the Court of Appeals that the witness had given
three versions of the facts and that she was no longer a
credible witness. Id. at 341, 641 S.E.2d at 490. The circuit
court concluded that it could not determine whether the victim's
recantation was true. Id. The Court of Appeals held that the
recantation evidence would only be "material" within the meaning
of Code § 19.2-327.11(A) if the defendant proved by clear and
convincing evidence that the recantation was "true." Id. at
342, 641 S.E.2d at 490. We affirmed, holding that although the
term "material" has different meanings in other contexts, within
the context of Code § 19.2-327.11(A), "evidence supporting a
petition for a writ of actual innocence based on non-biological
the photographs no longer appear in the record and were not
before the Court of Appeals.
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evidence must be true. Manifestly, evidence that is false
cannot be 'material' under the terms of the statute." Id. at
345, 641 S.E.2d at 492.
The testimony of the boys at trial in the instant case was
graphic and explicit. The trial judge, having seen and heard
them and having observed their demeanor, stated: "They were
scared and worried, they [were] children and I would suspect
their testimony to be pretty much as it came out here today.
There was no equivocation, there was no hesitation, both of them
said their father, as awful as it might be and hard as [it] is,
yes, their father [sodomized them]. And I believe it. And I
find the defendant guilty of each charge."
The boys' testimony was abundantly corroborated. Prior to
the trial in 1994, Sheriff Neal, then an investigator with the
Sheriff's Department, interviewed the boys individually, without
their mother's presence. They told him that their father slept
in their beds with them and sodomized them as often as once a
week over a long period. The younger son told him that he kept
his mattress pushed up against the wall, and slightly up the
wall, so he would not fall into the "crack" between the mattress
and the wall while his father was "pounding" him. The mother
and the elder brother confirmed seeing the mattress in that
position. Haas admitted that he sometimes slept with the boys
and confirmed that his younger son pushed his mattress up
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against the wall. The mother testified to finding blood on the
younger boy's sheets.
Susan Dodson, the boys' maternal aunt, testified to several
rambling telephone calls she received from Haas. In the last of
these, she said that Haas' speech was slurred, but he said:
"[H]ell yeah, I did it, I'd do it again, I screwed the kids, you
can go to hell with the rest of them because you can't prove
it." She confirmed the truth of this testimony in a recent
affidavit filed as an exhibit with the Attorney General's motion
to dismiss Haas' petition.
The trial judge found most persuasive the testimony of four
physicians the Commonwealth presented at trial. Haas' counsel
made no objection to their qualifications and the court
qualified all four to give expert testimony. They examined the
boys in 1994, over a year after the alleged sexual abuse had
occurred. Two were residents in pediatrics at the Medical
College of Virginia and two were board-certified pediatricians
with extensive experience in child sex-abuse cases. The younger
boy was examined under anesthesia but gave an account of his
experiences consistent with sexual abuse. The rectal
examinations of both boys were markedly abnormal. The younger
boy's examination revealed a jagged appearance resulting from
tearing tissue later healed but leaving marked scarring. The
older boy showed enlargement and a marked decrease of sphincter
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tone. The physicians all testified that these findings were
consistent with chronic penetration from the outside. The
photographs of the conditions revealed by these examinations
"spoke volumes" in the opinion of the trial court.
In deciding the issue presented by Haas' petition, the
Court of Appeals had to weigh the records of the prior
proceedings, including all of the foregoing evidence, against
the physicians' affidavits attached to Haas' petition. These
affidavits were entitled to little weight because the physicians
giving the affidavits, unlike those who testified, never
examined either the injuries inflicted on the victims or the
contemporaneous photographs showing those injuries. Further,
the evidence of the physicians' affidavits was not newly
discovered and such as to have been unavailable to the
petitioner, by the exercise of due diligence, before the
expiration of 21 days following the entry of the final order of
conviction. At trial, Haas offered medical testimony, which the
trial court found unpersuasive, taking issue with the
Commonwealth's medical evidence. The physicians' affidavits
attached to Haas' petition are, therefore, merely cumulative or
corroborative of the defense evidence rejected by the trial
court.
Haas had the burden of proving to the Court of Appeals, by
clear and convincing evidence, that the children's recantations
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are true, that the evidence upon which he relies could not have
been timely discovered by the exercise of due diligence and is
not merely cumulative, corroborative or collateral, and that,
weighing all the evidence in the record against that which he
contends to be newly discovered and previously unavailable, no
rational trier of fact could have found him guilty beyond a
reasonable doubt. Code § 19.2-327.13.
The Court of Appeals was entitled to assume that the
witnesses called by Haas in support of his petition would
testify consistently with their affidavits, accord to that
evidence the weight, if any, to which it was entitled, and
balance that against the weight of all other evidence in the
record. Having thus weighed the evidence, the Court of Appeals
found that Haas had failed to carry his burden of proof and,
accordingly, granted the Commonwealth's motion to dismiss his
petition.
Conclusion
For the reasons stated, we conclude that the Court of
Appeals did not abuse its discretion in declining to refer the
case back to the circuit court for an evidentiary hearing and we
will affirm the judgment from which this appeal was taken.
Affirmed.
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