Personal Restraint Petition Of Arthur Nathaniel Aiken

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint
of No. 78553-2-I
ARTHUR NATHANIEL AIKEN, DIVISION ONE
UNPUBLISHED OPINION
Petitioner.
APPELWICK, J. — Aiken seeks relief from personal restraint regarding one of
three first degree murder convictions imposed following his trial by jury in 1965.
Aiken acknowledges that his petition is untimely, but contends that his claims are
nevertheless reviewable based on newly discovered evidence and the actual
innocence doctrine. Because we conclude that Aiken failed to establish an
exception to the one year time bar, we deny this untimely petition.
FACTS
In 1965, 19 year old Arthur Aiken and his 20 year old codefendant Antonio
Wheat were convicted by a jury of three counts of murder in the first degree for the
killing of three Seattle area gas station attendants during the course of three
separate robberies.1 State v. Aiken, 72 Wn.2d 306, 309, 434 P.2d 10 (1967) (Aiken
I), judgment vacated sub nom. Wheat v. Washington, 392 U.S. 652, 88 S. Ct. 2302,
1 The jury imposed by special verdict a sentence of death. Aiken I, 72
Wn.2d at 309. The death sentences were subsequently commuted by the United
States Supreme Court. Wheat v. Washington, 403 U.S. 943, 91 S. Ct. 2283, 29 L.
Ed. 2d 856 (1971). On remand, the trial court sentenced both defendants to
consecutive life sentences for each count.
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20 L. Ed. 2d 1357 (1968), adhered to on remand, 75 Wn.2d 421, 452 P.2d 232(1969) (Aiken II), rev’d, 403 U.S. 946 (1971) (table decision). This petition
concerns Aiken’s conviction on count III for the April 24, 1965 murder of James
Harp. Id.Witnesses identified Wheat’s car at the service station where Harp was
killed, and Wheat was arrested later that day. Id. Wheat initially denied that either
he or Aiken were involved in the robbery and murder of Harp. A few hours later,
Wheat gave another statement admitting his involvement but claiming that Aiken
fired the fatal shot. Id. at 316. Aiken was arrested the following day. Id. at 310.
Upon further questioning, Wheat admitted that he was present during all
three murders but claimed that Aiken was the one who shot the men. Id. at 310-
11, 313-14, 316. After police allowed Aiken to read Wheat’s statement implicating
him in the second killing, Aiken asked to confront Wheat. Id. at 332-33. In Aiken’s
presence, Wheat refused to disavow his statement. Id. at 333. Aiken then
admitted his involvement in the first two murders but insisted that Wheat shot both
men. Id. at 311-13, 314-16. Regarding the third murder, Aiken asserted that he
was asleep in the car outside the service station while Wheat robbed and murdered
Harp. Id. at 318-19. The following day, in another statement to police, Wheat
changed his story and claimed that he robbed and murdered Harp while Aiken
slept in the car. Id. at 316-18. Wheat did not change his statements regarding the
first two murders.
Wheat and Aiken were tried jointly in the fall of 1965. Aiken II, 75 Wn.2d at
422. Their written statements to police were admitted into evidence. Aiken I, 72
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Wn.2d at 310. The jury was instructed that one defendant’s statement could not
be used against the other. Aiken unsuccessfully moved to dismiss count III on the
ground that there was insufficient evidence of his involvement in Harp’s murder.
The jury convicted both Aiken and Wheat of all three murders. Id. at 309.
On November 22, 2017, Aiken filed a CrR 7.8 motion in the trial court
seeking to vacate his conviction for the murder of Harp or for a new trial on the
basis of newly discovered evidence. Aiken presented a declaration from Wheat
stating he was willing to testify that Aiken was asleep in the car while Wheat robbed
and murdered Harp without Aiken’s knowledge. Alternatively, Aiken argued that
Wheat’s declaration established a “gateway” actual innocence claim, thereby
authorizing the court to consider three untimely claims of trial court error.
The trial court held an evidentiary hearing in early 2018. At the hearing,
Wheat testified that he admitted during an interview with Seattle Met Magazine that
he acted alone in killing Harp while Aiken slept unaware in the car. James Ross
Gardner, Tony Wheat Has Been Sorry for So Long, SEATTLE MET MAGAZINE (Apr.
27, 2015, 8:00 am), https://www.seattlemet.com/news-and-city-life/2015/04/tony-
wheat-has-been-sorry-for-so-long-may-2015. Wheat also testified that the first two
statements he gave to police in 1965 putting the blame on Aiken were not true and
that the statement he gave admitting that he acted alone in committing the Harp
murder was true. Aiken testified that in 2017, Wheat told him for the first time that
he would be willing to testify accordingly.
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Following the hearing, the court concluded that Wheat’s declaration and
testimony did not constitute newly discovered evidence and that Aiken had not met
the standard required for a gateway claim of actual innocence. Specifically, in its
oral ruling, the court stated that “[t]here is no circumstance under which this court
can find, again, that no reasonable juror would find the defendant guilty.”
Accordingly, the court found Aiken’s motion to be time-barred under RCW
10.73.090 and transferred it to this court for consideration as a personal restraint
petition pursuant to CrR 7.8(b)(2).
DISCUSSION
I. Newly Discovered Evidence
Generally, a personal restraint petition must be filed within one year after the
judgment and sentence becomes final. RCW 10.73.090. A petitioner bears the
burden of showing that the petition was timely filed. In re Pers. Restraint of Quinn,
154 Wn. App. 816, 833, 226 P.3d 208 (2010). Aiken’s judgment and sentence
became final almost 50 years ago, so his collateral attack is time-barred unless he
can show that an exception to the one year time limit applies.
Aiken contends that his petition is not untimely because Wheat’s recantation
and offer to testify constitutes newly discovered evidence. RCW 10.73.100(1)
provides that the one year time limit does not apply to a petition based on “[n]ewly
discovered evidence, if the defendant acted with reasonable diligence in discovering
the evidence and filing the petition or motion.” Newly discovered evidence is
evidence that “‘(1) will probably change the result of the trial; (2) was discovered
since the trial; (3) could not have been discovered before trial by the exercise of
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due diligence; (4) is material; and (5) is not merely cumulative or impeaching.’” In
re Pers. Restraint of Lord, 123 Wn.2d 296, 319-20, 868 P.2d 835 (1994) (emphasis
omitted) (quoting State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)). The
absence of any one of these five factors is fatal to the claim. State v. Macon, 128
Wn.2d 784, 800, 911 P.2d 1004 (1996).
We conclude that Aiken has not established that Wheat’s testimony
constitutes newly discovered evidence. First, although neither defendant testified
at trial, the jury considered Wheat’s written statement claiming that he alone
murdered and robbed Harp while Aiken slept in the car and Aiken’s own statement
that he slept while Wheat committed the crime. Second, although the jury was
instructed that one defendant’s statement could not be used against the other, the
substance of Wheat’s offer to testify was not discovered after the trial. Federal
and state courts consistently hold that a previously silent codefendant’s new
willingness to provide exculpatory testimony does not constitute “newly discovered
evidence.” See, e.g. United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th
Cir. 1992); United States v. Jasin, 280 F.3d 355, 368 (3rd Cir. 2002); United States
v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996); United States v. Theodosopoulos,
48 F.3d 1438, 1449-50 (7th Cir. 1995); United States v. Muldrow, 19 F.3d 1332,
1339 (10th Cir. 1994); State v. Warren, 592 N.W.2d 440, 450 (Minn. 1999); State
v. Jackson, 264 Neb. 420, 433, 648 N.W.2d 282 (2002); see also State v. Peele,
67 Wn.2d 724, 732, 409 P.2d 663 (1966) (uncorroborated affidavit from an
accomplice purporting to exonerate a defendant should not result in a new trial
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“unless it appears that the newly discovered evidence is of such significance and
cogency that it will probably change the result of the trial”).
Aiken asks us to adhere to the contrary rule followed in the First Circuit,
which holds that the “newly discovered evidence” language of Federal Rule 33
encompasses evidence that was “unavailable” at the time of trial. United States v.
Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997); United States v. Hernández-
Rodríguez, 443 F.3d 138, 144 (1st Cir. 2006). But, even in the First Circuit, new
exculpatory affidavits should be viewed with “‘great skepticism’” because “[a]
convicted, sentenced codefendant has little to lose (and perhaps something to
gain) by such testimony.” Hernández-Rodríguez, 443 F.2d at 144 (alteration in
original) (quoting Montilla-Rivera, 115 F.3d at 1066). We decline Aiken’s invitation
to ignore the great majority of federal and state courts and follow the First Circuit,
particularly where the substance of Wheat’s new offer to testify was already
considered by the jury.
Moreover, given significant evidence that Aiken participated in Harp’s
murder, we agree with the State that the trial court properly found Wheat’s offer to
testify would probably not have changed the result at trial.
[Wheat and Aiken] were together from early Friday evening, on April
23, 1965, until dawn the next morning after the [Harp] murder. Aiken
stated that Wheat suggested they “hit” the [gas station where the
Harp murder occurred]. Aiken knew Wheat left the car to go into the
station. Aiken knew how [Harp] was dressed. Aiken was in a
position to observe all entrances to the service station. He was
armed with a .25 caliber automatic pistol. Aiken’s .22 caliber pistol
was used to kill [Harp]. Aiken participated with Wheat in two prior
robberies of service stations and murders of their attendants. The
pattern followed in those instances was very similar to the robbery
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[and third murder]. The jury was entitled to disbelieve the statements
of Aiken that he was asleep and did not participate.
Aiken I, 72 Wn.2d at 348-49.
The State also points out that in the event of a new trial, it would impeach
Wheat with his previous inconsistent statements that Aiken was involved with
Harp’s murder, thereby damaging Wheat’s credibility. Aiken has not established
that Wheat’s testimony would probably change the result of the trial.
Moreover, Aiken did not act with reasonable diligence in bringing his CrR
7.8 motion. Aiken claimed in his motion that he was unaware that Wheat was
willing to testify until he learned about Wheat’s Seattle Met Magazine interview in
2015. But, Wheat testified at the evidentiary hearing that while they were both at
the prison in Monroe in the 1990s, he provided Aiken with a written statement
detailing his sole involvement in the Harp murder in order to assist Aiken with a
clemency petition. Yet Aiken took no further action until 2017. He has not credibly
explained the delay.
II. Actual Innocence
Aiken further asserts that he is entitled to challenge his conviction based on
equitable tolling of the one year time limit under the “actual innocence” doctrine.
There are two forms of actual innocence claims. The first is a freestanding
constitutional claim in which innocence itself provides a basis for relief. In re Pers.
Restraint of Weber, 175 Wn.2d 247, 256, 284 P.3d 734 (2012). The second are
“gateway” actual innocence claims, which are “used to avoid procedural time bars
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so that a court may review other claimed constitutional errors.” Id. at 256. Aiken
asserts only a gateway innocence claim.
The gateway actual innocence exemption applies if, “after evaluating the
new reliable evidence in light of the evidence presented to the jury, a court must
be persuaded that ‘it is more likely than not that no reasonable juror would have
found the petitioner guilty beyond a reasonable doubt.’” Id. at 260 (quoting Schlup
v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)). Equitable
tolling under the actual innocence doctrine remains a very narrow exception applied
only in circumstances where justice requires, and “generally should not be used in
place of the statutory exceptions or exemptions to the time bar provided in RCW
10.73.090.” Id. at 256. The petitioner must support such allegations with new reliable
evidence, such as exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence that was not presented at trial. Id. atat 258. The court
“may consider how the timing of the submission and the likely credibility of the affiants
bear on the probable reliability of that evidence.” Schlup, 513 U.S. at 332.
Aiken claims that Wheat’s offer to testify that he acted alone in killing Harp,
coupled with his three asserted trial errors, establish that he has met his burden to
an actual innocence gateway claim. However, as discussed above, Wheat’s offer to
testify is substantively duplicative of his statements admitted at the 1965 trial. The
extreme delay in offering the testimony and Wheat’s lack of credibility also weigh
strongly against an actual innocence gateway claim.
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Moreover, Aiken cites no persuasive authority for the proposition that claims
of trial error constitute “new reliable evidence” for the purpose of establishing an
actual innocence gateway claim. His reliance on House v. Bell, 547 U.S. 518, 126
S. Ct. 2064, 165 L. Ed. 2d 1 (2006) is misplaced. There, the United States Supreme
Court observed that a
habeas court must consider ‘all the evidence, old and new,
incriminating and exculpatory, without regard to whether it would
necessarily be admitted under ‘rules of admissibility that would govern
at trial.’ Based on this total record, the court must make a ‘probabilistic
determination about what reasonable, properly instructed jurors would
do.’ The court’s function is not to make an independent factual
determination about what likely occurred, but rather to assess the likely
impact of the evidence and reasonable jurors.
House, 547 U.S. at 537-38 (internal citations omitted) (quoting Schlup, 513 U.S. at
327-28, 329). Here, Aiken does not assert that any relevant evidence was improperly
excluded at trial. Rather, he claims that (1) his statements were admitted in violation
of his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), (2) the joint trial violated his right to confrontation under Bruton v.
United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and (3) the jury
instructions were erroneous because the State did not prove he acted with
knowledge of the crime Wheat intended to commit. But, the alleged existence of trial
error is not “evidence” to be considered in evaluating an actual innocence gateway
claim. Rather, the petitioner must show that new reliable evidence justifies an
equitable tolling of the time bar that would allow a court to reach the merits of the
asserted constitutional errors. Weber, 175 Wn.2d at 258. Because Aiken has not
made this showing, we need not reach his claims.
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Aiken has not met his burden to establish an exception to the one year time
bar for a collateral attack on his judgment and sentence. Because Aiken’s petition
is untimely, it must be dismissed.
WE CONCUR:
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