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State of Montana v. Barry Allan Beach

May 14, 2013

STATE OF MONTANA, PLAINTIFF AND APPELLANT,
v.
BARRY ALLAN BEACH, DEFENDANT AND APPELLEE.



APPEAL FROM: District Court of the Fifteenth Judicial District, In and For the County of Roosevelt, Cause No. 1068-C Honorable E. Wayne Phillips, Presiding Judge

The opinion of the court was delivered by: Jim Rice

Submitted on Briefs: August 29, 2012

Decided: May 14, 2013

Filed:

Clerk

Justice Jim Rice delivered the Opinion of the Court.

¶1 The State of Montana appeals from the order of the Fifteenth Judicial District Court, Roosevelt County, granting Barry Allen Beach (Beach) a new trial in the matter of the homicide of Kim Nees (Nees). We reverse the District Court, and address this issue:

¶2 Did the District Court err by concluding that Beach was entitled to a new trial because he had demonstrated his actual innocence?

PROCEDURAL BACKGROUND

¶3 In the early morning hours of June 16, 1979, police officers of the Fort Peck Tribe discovered Nees's body floating in the Poplar River. She had been bludgeoned to death. On January 7, 1983, Beach confessed to killing Nees, and, on April 13, 1984, a jury convicted him of deliberate homicide. The court sentenced Beach to 100 years in the Montana State Prison without the possibility of parole.

¶4 Beach has challenged his conviction in the courts and applied for clemency. In 1985, Beach appealed to this Court. We upheld his conviction and sentence. State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985). In 1995, Beach filed a petition for post-conviction relief. We dismissed Beach's petition because it had been filed beyond the five-year statutory limitation period, and Beach did not submit new evidence establishing that he did not kill Nees. Beach v. Day, 275 Mont. 370, 913 P.2d 622 (1996). Beach then filed a petition for habeas corpus in federal court, asserting his actual innocence. United States Magistrate Judge Anderson recommended that Beach's petition be denied because Beach was procedurally barred from presenting his constitutional claims, and his "presentation of 'new evidence' d[id] not warrant a finding of actual innocence as an exception to the procedural bar." Beach v. Mahoney, CV-92-92-BLGRWA (D. Mont. Aug. 6, 1997). Federal District Court Judge Shanstrom agreed with Judge Anderson and denied Beach's petition, holding that Beach's evidence was insufficient "to warrant a finding of actual innocence . . . ." Beach v. Mahoney, CR 92-92-BLG-JDS (D. Mont. Mar. 31, 1998). The Ninth Circuit affirmed. Beach v. McCormick, 191 F.3d 459 (9th Cir. 1999) (table). In 2005, Beach filed an application for executive clemency with the Montana Board of Pardons and Parole (the Board). The Board denied Beach's application because he had "not satisfactorily proven [his] innocence of the crime or submitted newly discovered evidence showing complete justification or non-guilt." (Emphasis in original.) In 2006, Beach submitted an application to Governor Brian Schweitzer who referred it back to the Board. A three-member panel (the Clemency Panel) of the Board held a three-day hearing to determine if Beach's new evidence established his "actual innocence." On August 20, 2007, the Clemency Panel denied Beach's application because "[n]o proof of innocence, or newly discovered evidence of non-guilt or justification ha[d] been presented."

¶5 In 2008, Beach filed another petition for post-conviction relief in state district court, alleging that newly discovered evidence proved his actual innocence. The district court summarily denied Beach's petition in a one-page order. On appeal, we reversed and remanded for the district court to hold an evidentiary hearing on the newly discovered evidence alleged in Beach's petition. Beach v. State (Beach I), 2009 MT 398, ¶ 51, 353 Mont. 411, 220 P.3d 667.

¶6 On remand, the District Court held a three-day hearing, and took testimony from witnesses that suggested a group of teenage girls had killed Nees. The District Court concluded that Beach had presented sufficient evidence of his "actual innocence" to warrant a new trial. The District Court subsequently released Beach from the Montana State Prison pending appeal.

¶7 The State appeals.

STANDARD OF REVIEW

¶8 The standard of review of a district court's disposition of a petition for post-conviction relief is whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Griffin v. State, 2003 MT 267, ¶ 7, 317 Mont. 457, 77 P.3d 545; Porter v. State, 2002 MT 319, ¶ 13, 313 Mont. 149, 60 P.3d 951. However, an actual innocence claim brought in a post-conviction relief proceeding presents a unique posture for the reviewing court. The petitioner has been duly convicted-the State has introduced evidence sufficient for a jury to find the petitioner guilty beyond a reasonable doubt. Before overturning that verdict, the reviewing court must determine whether the petitioner has supported his innocence claim "with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865 (1995); accord Herrera v. Collins, 506 U.S. 390, 417-18, 113 S. Ct. 853, 869-70 (1993). To determine if the evidence is "reliable," the reviewing court must analyze "whether the new evidence is trustworthy by considering it both on its own merits and . . . in light of the pre-existing evidence in the record." Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (Sotomayor, J.) (citing Schlup, 513 U.S. at 327-28, 115 S. Ct. at 867); Herrera, 506 U.S. at 418, 113 S. Ct. at 870; State v. Redcrow, 1999 MT 95, ¶ 37, 294 Mont. 252, 980 P.2d 622. The court must then combine the new reliable evidence with the old trial evidence and determine whether a reasonable jury presented with this hybrid record would find the petitioner guilty. Herrera, 506 U.S. at 418, 113 S. Ct. at 870; Schlup, 513 U.S. at 329, 115 S. Ct. at 868; House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2078 (2006); Redcrow, ¶ 37. Because the determination as to "whether no reasonable juror would find a petitioner guilty beyond a reasonable doubt is a mixed question of law and fact, we review the district court's ultimate finding of actual innocence de novo." Menefee, 391 F.3d at 163; House, 547 U.S. at 539-40, 126 S. Ct. at 2078.

DISCUSSION

¶9 As noted above, in 2008 Beach filed another petition for post-conviction relief, alleging that newly discovered evidence demonstrated his "actual innocence." Beach I, ¶ 13. The post-conviction statutes applicable to Beach's conviction required him to bring his claim within five years of his conviction. Section 46-21-102, MCA (1995); Beach I, ¶ 23. While there was no statutory exception to this time bar, we have recognized an equitable tolling of the time limit when "strict enforcement would result in a fundamental miscarriage of justice." Beach I, ¶ 23; State v. Perry, 232 Mont. 455, 462, 758 P.2d 298, 273 (1988) (overruled on other grounds in State v. Clark, 2005 MT 330, ¶ 32, 330 Mont. 8, 125 P.3d 1099). The "fundamental miscarriage of justice" exception applies when the petitioner shows he is "actually innocent" of the crime for which he was convicted. State v. Pope, 2003 MT 330, ¶¶ 40-53, 318 Mont. 383, 80 P.3d 1232.

¶10 In Beach I, we cited the five-prong test outlined in State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099 as the usual framework to determine whether "newly discovered evidence" warranted a new trial:

(1) The evidence must have been discovered since the defendant's trial;

(2) The failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part;

(3) The evidence must be material to the issues at trial;

(4) The evidence must be neither cumulative nor merely impeaching; and

(5) The evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.

Beach I, ¶ 38 (quoting Clark, ¶ 34). However, recognizing that Clark was not a post-conviction relief case where the petitioner was filing beyond the statutory time bar, we modified the fifth element of the test to "conform to the miscarriage of justice standard." Beach I, ¶ 48. To satisfy the modified fifth element, Beach was required to demonstrate his "actual innocence." Beach I, ¶¶ 42-43.

I. SUBSTANTIVE INNOCENCE AND PROCEDURAL INNOCENCE

¶11 We have recognized two species of "actual innocence" claims-substantive and procedural. In Pope and Beach I, we discussed the substantive innocence framework from Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 (1993), and the procedural innocence framework from Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995). Pope, ¶¶ 40-49; Beach I, ¶¶ 29, 44.

A. Substantive Actual Innocence-Herrera "Freestanding" Claim.

¶12 A Herrera substantive, or "freestanding," innocence claim alleges that newly discovered evidence demonstrates that the petitioner is "actually innocent" of the crime for which he was convicted in the true sense of this phrase-that the defendant truly did not commit the crime. Herrera, 506 U.S. at 417, 113 S. Ct. at 869. However, a duly convicted defendant remains guilty "in the eyes of the law" and carries presumed guilt, not innocence. Herrera, 506 U.S. at 399, 113 S. Ct. at 860. The presumption of guilt combined with the substantial interest in finality of convictions "necessarily" makes the threshold for Herrera freestanding claims of innocence "extraordinarily high." Herrera, 506 U.S. at 417, 113 S. Ct. at 869. Because the petitioner's evidentiary showing was particularly weak in Herrera, the Court denied relief without stating what burden must be met to satisfy this "extraordinarily high" threshold. Herrera, 506 U.S. at 417, 113 S. Ct. at 869.

¶13 In Beach I, we stated that this "extraordinarily high" standard of review applied to Beach's freestanding claim of actual innocence. Beach I, ¶ 44. Although Herrera had not done so, we set forth the evidentiary and legal standard as follows: "Beach must show by clear and convincing evidence that . . . no reasonable juror would have found him guilty of the offense in order for him to prevail on his substantive innocence claim."

Beach I, ¶ 44.*fn1 We explained that, if Beach satisfied this standard, he would be exonerated from the conviction entirely. Beach I, ¶ 45 ("A substantive innocence claim, if successful, results in the petitioner's release."). Under a Herrera claim, the defendant is considered truly innocent and is forever exonerated.

B. Procedural Actual Innocence-Schlup "gateway" claim.

¶14 The "actual innocence" necessary for purposes of a Schlup claim is different from the "actual innocence" necessary for purposes of a Herrera claim. Schlup, 513 U.S. at 313-14, 115 S. Ct. at 860-61. A Schlup procedural, or "gateway," innocence claim alleges that newly discovered evidence demonstrates that "a constitutional violation has probably resulted" in a wrongful conviction. Schlup, 513 U.S. at 327, 115 S. Ct. at 867. Unlike a Herrera "freestanding" claim, a Schlup claim is premised on an underlying allegation that constitutional error occurred during the trial process, resulting in a wrongful conviction. While a Schlup claim accompanies an assertion of trial error, a Herrera claim assumes that the trial was error free. Schlup, 513 U.S. at 315-16, 115 S. Ct. at 861. A Herrera claim requires "evidence of innocence . . . strong enough to make [the criminal sanction] 'constitutionally intolerable' even if his conviction was the product of a fair trial." Schlup, 513 U.S. at 316, 115 S. Ct. at 861-62 (emphasis in original). There is no "gateway" in a Herrera claim, as success on the claim forever ends the matter. While a Herrera petitioner is required to affirmatively "present evidence that he did not commit the crime," a Schlup petitioner "need not prove that he did not commit the crime," but "only has to be successful in convincing the reviewing court that a reasonable jury would not likely convict him in light of the new evidence." Pope, ¶ 49 (emphasis added). In other words, a Schlup petitioner must only produce evidence that creates "sufficient doubt about his guilt to justify the conclusion that his [criminal sanction] would be a miscarriage of justice unless his conviction was the product of a fair trial." Schlup, 513 U.S. at 316, 115 S. Ct. at 861-62 (emphasis in original). If the Schlup petitioner makes this required showing, he passes through the "gateway" and is entitled to present to the court his constitutional claims of trial error, despite the procedural bars that would normally prohibit such claims. House, 547 U.S. at 555, 126 S. Ct. at 2087 (the petitioner "may proceed on remand with procedurally defaulted constitutional claims" because he satisfied Schlup's actual innocence "gateway"). If the petitioner subsequently prevails on his constitutional claims, he is entitled to a new trial. Carriger v. Stewart, 123 F.3d 463, 482 (9th Cir. 1997) (en banc) (Carriger's success on his underlying constitutional claims "entitled him to a new trial").

¶15 In Beach I, we expressed agreement with the U.S. Supreme Court that "gateway" claims "warrant[ed] the application of a different standard of proof" than Herrera "freestanding" claims. Beach I, ¶ 45. We earlier adopted the multi-step "gateway" procedure in Pope, requiring the petitioner to demonstrate his innocence in order to pass through the gateway and then prove his constitutional claims before obtaining a new trial. Pope pursued a Schlup gateway claim, alleging that a jury instruction violated his right to a unanimous verdict and prosecutorial misconduct denied him a fair trial. Pope, ¶ 37. To pursue these time-barred claims, Pope had to introduce the "necessary gateway evidence," which he did in the form of DNA evidence from the victim's vaginal swab and underwear that showed the semen present was not his. Pope, ¶¶ 30, 54. We concluded "it is probable no reasonable juror would have found beyond a reasonable doubt that Pope was guilty" of sexual intercourse without consent if presented with the new DNA evidence, but we did not immediately order a new trial. Pope, ¶ 63 (emphasis added). Rather, we then proceeded to Pope's constitutional claims and, upon the State's concession, ultimately held that the jury instruction that permitted conviction without a unanimous vote violated his constitutional rights. Pope, ¶ 68. Only then did we remand for a new trial. Pope, ¶ 70. We reaffirmed this procedure in Beach I, ¶¶ 34-35, where we explained that the State's concession in Pope that constitutional errors had occurred in Pope's original trial warranted a new trial.

¶16 In sum, Herrera freestanding claims and Schlup gateway claims both require that a petitioner demonstrate his "actual innocence." Pope, ¶ 48 ("Actual innocence is different in a Herrera petition and a Schlup petition."). A Herrera freestanding petitioner must show by "clear and convincing evidence" that "no reasonable juror" would find him guilty, whereas a Schlup gateway petitioner must merely show that it is "likely" or "probable" that "no reasonable jury" would find him guilty.*fn2 A Herrera freestanding claim has the higher threshold because, if met, the petitioner is forever exonerated. A Schlup gateway claim has a lower threshold because, if met, the petitioner is merely permitted to avoid the application of procedural bars and present his claims of constitutional trial error.

II. THE DISTRICT COURT'S DECISION

¶17 The District Court failed to appreciate that both Herrera freestanding claims and Schlup gateway claims require a showing of "actual innocence." Thus, the District Court's expressed intention to proceed "just" on Beach's "actual innocence" claim did not differentiate which kind of claim it was analyzing. As noted above, the term "actual innocence" does not uniquely describe either a Herrera freestanding claim or a Schlup gateway claim-a petitioner must show his actual innocence for either claim. The District Court's analytical error permitted it to pick any rule statement from Beach I pertaining to "actual innocence"-whether it was from the freestanding Herrera analysis or the gateway Schlup analysis-and apply it to Beach's claim. It did so frequently and thereby conflated the standards.

¶18 Nevertheless, the District Court ultimately slid to the determination that Beach had succeeded only on his gateway claim, and had failed to meet the stricter requirements of a freestanding claim:

After a review of the Court's analysis of the new evidence, it might reasonably be asked why the Court does not just release Mr. Beach. The testimony of Mr. Holen, that he saw not only Kim Nees in the pickup (with four other girls) that night but also a male in the right passenger seat, leads this Court to conclude that the evidence is not sufficiently clear and convincing to bust down the absolute innocence gateway*fn3 and have Mr. Beach walk through it a free man. Also, we have Mr. Beach's confession to consider. However, the totality of the evidence is clear and convincing enough to rule that Mr. Beach has certainly opened the actual innocence gateway sufficiently enough to walk through the miscarriage of justice exception toward a new trial.

Given the Pope precedent, if Beach has passed through the actual innocence gateway [then] his constitutional claims are not barred. (Emphasis added; brackets in original.)

¶19 The District Court thus held that Beach had proceeded through Schlup's "actual innocence gateway." This would entitle Beach to present his time-barred constitutional claims. However, instead, the District Court held that Beach need not present his constitutional claims, but could go straight to a new trial, stating incorrectly that Beach's constitutional claims could then be taken up:

Given the Pope precedent, if Beach has passed through the actual innocence gateway then his constitutional claims are not barred. In other words, Beach can proceed to a new trial where he can present not only the actual innocence evidence but also the constitutional innocence evidence.

(Internal quotation marks, brackets, and citations omitted). Of course, Pope does not permit leapfrogging from the gateway to a new trial and therein presenting "constitutional innocence evidence." In Pope, petitioner's constitutional claims of trial error were analyzed before relief could be granted. Pope, ¶¶ 68-69. After all, the entire point of passing through the "gateway" is to permit the time bar to be circumvented so that constitutional claims can be presented. Those claims are presented in a post-conviction hearing, not within a new trial.

¶20 The District Court also failed to apply the unique evidentiary standard of review required in actual innocence cases. As discussed in detail below, a court must analyze not only the credibility and believability of the new proffered evidence, but must also compare that new evidence against the tested trial evidence. Comparing the evidence ensures that the court 1) makes an informed judgment as to what a reasonable juror would do given all of the evidence, old and new, and 2) does not overturn a valid verdict based upon unreliable evidence. In Schlup, the Supreme Court stated that a reviewing court "must make its determination concerning the petitioner's innocence 'in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.'" Schlup, 513 U.S. at 328, 115 S. Ct. at 867 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). Schlup's reference to "all" of the evidence, including that "illegally admitted" at trial, necessarily encompasses all of the trial evidence. See House, 547 U.S. at 538, 126 S. Ct. at 2077 ("Schlup makes plain that the habeas court must consider all the evidence, old and new, incriminating and exculpatory . . . ."). We have followed this practice. Redcrow, ¶ 37 (rejecting innocence claim because the new evidence failed to "overcome" the evidence of Redcrow's guilt presented at her trial). However, the District Court failed to do so.

¶21 The District Court spent nearly half of its 30-page order summarizing and analyzing Beach's new evidence, but made only a passing general mention of one part of evidence presented at Beach's trial-his confession-and did not consider the specifics of Beach's confession. The court rebuffed the State's repeated requests that it analyze the new evidence in light of the old trial evidence, stating: "that is not what the Schlup Court held." The court explained that its refusal to expand its evidentiary inquiry into all of the evidence presented at Beach's trial was based on its reading of Schlup and Redcrow: "Schlup and its Montana progeny deal exclusively with and constantly reiterate the concept of new evidence and its role in approving or rejecting a petition for post-conviction relief." (Emphasis in District Court order.) Not only does this assertion contradict this Court's practice, see Redcrow, ¶ 37; Pope, ¶ 61, it is also illogical. The critical importance of reviewing all of the evidence is illustrated by an exaggerated example: if the State introduced, during trial, a videotape clearly depicting a defendant killing a victim, would hearsay testimony offered years later about others committing the crime support a claim of actual innocence? Of course not. But, under the District Court's reasoning, the trial videotape would not be considered in the inquiry. The District Court erred by failing to appreciate that an actual innocence claim requires it to compare all of the evidence.

III. THE EVIDENCE

A. Unique evidentiary standard of review for actual innocence claims.

¶22 Freestanding Herrera claims and Schlup gateway claims come to courts in a unique procedural posture. The petitioner has been previously convicted at trial-i.e., the State has already introduced evidence sufficient for a jury to find the petitioner guilty beyond a reasonable doubt. "Thus, in the eyes of the law, petitioner does not come before the Court as one who is 'innocent,' but on the contrary, as one who has been convicted by due process of law of [a] brutal murder[]." Herrera, 506 U.S. at 399-400, 113 S. Ct. at 860; accord Herrera, 506 U.S. at 419, 113 S. Ct. at 870 (O'Connor & Kennedy, JJ., concurring) ("petitioner is not innocent in the eyes of the law because, in our system of justice, the trial is the paramount event for determining the guilt or innocence of the defendant") (internal quotation marks and citations omitted). To overcome the presumption of guilt that comes with conviction at trial, an actual innocence petitioner must show that new reliable evidence, when weighed against the trial evidence, demonstrates he is actually innocent of the crime he was convicted of. Schlup, 513 U.S. at 328, 115 S. Ct. at 867. This inquiry necessitates a unique two-step evidentiary standard of review.

¶23 Not just any kind of evidence can support an "actual innocence" claim. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324, 115 S. Ct. at 865 (emphasis added). In the context of new testimonial evidence, the court must first determine whether, based solely on the witness's testimony, it finds the witness credible and believable. Then, the court must determine whether the proffered new testimony is credible and believable in light of the evidence presented at the petitioner's trial: "Because Schlup also requires that any new evidence of actual innocence be reliable, the [reviewing] court must analyze not only whether the new evidence throws the pre-existing evidence into doubt, but whether the new evidence itself may be considered reliable in light of the pre-existing evidence." Menefee, 391 F.3d at 172 (Sotomayor, J.); accord Schlup, 513 U.S. at 327-28, 115 S. Ct. at 867; Pope, ¶ 62.

¶24 In Anderson v. City of Bessemer, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985), the Supreme Court explained that testing new testimony for both internal inconsistencies and inconsistencies with the factual record ensures that a trial court cannot insulate its findings from review simply by labeling them "credibility determinations":

This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.

¶25 Menefee well illustrates the propriety of an appellate court reversing a trial court's finding of "actual innocence" when the new evidence is unreliable in light of the pre-existing trial evidence. In Menefee, the Second Circuit reversed the trial court's finding of actual innocence for the petitioner's gateway claim. Menefee, 391 F.3d at 150. The petitioner had been convicted of second-degree sodomy stemming from his alleged sexual intercourse with a 14-year-old boy. Menefee, 391 F.3d at 153. Years later, he petitioned for habeas relief alleging that newly discovered evidence established he was actually innocent-the child victim, then of age, had recanted. Menefee, 391 F.3d at 158. Similar to the District Court's assessment here of the testimony of then-child witness Stephanie Eagle Boy, the trial court there found that the testimony from the recanting victim was "credible in its entirety" and "forthright and responsive." Menefee, 391 F.3d at 158. The trial court believed the victim's recantation, and held that the petitioner had demonstrated his actual innocence. Menefee, 391 F.3d at 158. The Second Circuit, then-Judge Sotomayor writing, reversed and explained that whether a witness was believable was only "one element" in the unique standard of review for actual innocence claims; the court must also determine whether its subjective impression that the witness was credible "can be sustained in light of the record as a whole":

Even where a court finds that a witness appears to be telling the truth, it must, as Anderson recognizes, evaluate the testimony in light of the substance of other evidence, considering the potential motives to be untruthful that the witness may possess, corroboration or lack thereof, internal consistency, and the inferences or assumptions that crediting particular testimony would require. See Anderson, 470 U.S. at 575, 105 S. Ct. 1504.

This is particularly true in the context of an actual innocence determination, as Schlup requires the habeas court to determine whether the new evidence on which the actual innocence claim is based is reliable. See Schlup, 513 U.S. at 324, 115 S. Ct. 851. In order to make this assessment where, as here, the new evidence consists entirely of testimony that challenges the facts on which the prosecution relied in obtaining the conviction, the court must carefully consider the nature of the testimony in light of the existing record to determine whether it can be considered reliable. See id. at 327-38, 115 S. Ct. 851; Anderson, 470 U.S. at 575, 105 S. Ct. 1504. The court's conclusion that it believed a witness's testimony at an evidentiary hearing is only one element of the determination that the testimony constitutes new reliable evidence. The court must then evaluate whether its subjective impression of the testimony can be sustained in light of the record as a whole.

Menefee, 391 F.3d at 165. The Second Circuit found the victim's recantation not credible because the record showed that two New York state prosecutors had interviewed the victim before the original charges were filed, and the victim told the prosecutors that the petitioner had had sexual intercourse with him. Menefee, 391 F.3d at 170. Years later at the innocence hearing, the victim testified that the prosecutors were fabricating his statements because he had denied any impropriety between himself and the petitioner during those interviews. Menefee, 391 F.3d at 170. The Second Circuit found that a juror would not likely credit the victim's "conspiracy" theory that the prosecutors were fabricating testimony:

In order to credit [the victim's] testimony over [the prosecutors' testimony] . . . the factfinder would have to conclude that [the prosecutors] were part of a conspiracy to fabricate their account of [the victim's] statements and the notes that recorded the statement. . . . it would have to discredit both prosecutors and find that a conspiracy existed in the DA's Office in 1994, in order to credit [the victim's] testimony.

Menefee, 391 F.3d at 171. Because of the improbability that a juror would credit the victim's conspiracy theory over the testimony of two prosecutors, the Second Circuit held that the victim's testimony was unreliable. Menefee, 391 F.3d at 171. Because the petitioner had not presented any new reliable evidence, it was unnecessary for the Second Circuit to proceed to the second step of the unique standard of review. Menefee, 391 F.3d at 172 ("Because Doe has not presented any new reliable evidence, it is unnecessary to determine whether no reasonable juror would convict in light of Doe's newly proffered evidence."). Only new evidence that is reliable requires further analysis of the claim.

¶26 The second step of the unique standard of review requires the court to combine the new reliable evidence with the old trial evidence and determine whether a reasonable jury that was presented with this hybrid record would find the petitioner guilty.*fn4 In other words, the court must "make a probabilistic determination about what reasonable, properly instructed jurors would do" if the new reliable evidence was admitted alongside the old trial evidence. Schlup, 513 U.S. at 329, 115 S. Ct. at 868; House, 547 U.S. at 538, 126 S. Ct. at 2078 ("Because a Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record."). Because the determination as to "whether no reasonable juror would find a petitioner guilty beyond a reasonable doubt is a mixed question of law and fact, we review the district court's ultimate finding of actual innocence de novo." Menefee, 391 F.3d at 163.

¶27 In House, the U.S. Supreme Court reversed the trial court's finding that the petitioner's new evidence was insufficient to show "actual innocence" under the gateway standard. House, 547 U.S. at 554, 126 S. Ct. at 2086. The Court rejected the notion that, absent a showing of clear error in crediting individual witnesses, the Court was required to defer to the trial court's ultimate conclusion as to whether a jury, presented with all of the evidence, would find the petitioner guilty:

The State also argues that the District Court's findings in this case tie our hands, precluding a ruling in House's favor absent a showing of clear error as to the District Court's specific determinations. This view overstates the effect of the District Court's ruling. Deference is given to a trial court's assessment of evidence presented to it in the first instance. Yet the Schlup inquiry, we repeat, requires a holistic judgment about all the evidence, and its likely effect on reasonable jurors applying the reasonable-doubt standard. As a general rule, the inquiry does not turn on discrete findings regarding disputed points of fact, and it is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses.

House, 547 U.S. at 539-40, 126 S. Ct. at 2078 (emphasis added; internal citations, quotations marks, and brackets omitted). The Court reversed the trial court, and held that House's evidentiary showing was sufficient to demonstrate actual innocence for purposes of a gateway claim, but not for purposes of a freestanding claim:

This is not a case of conclusive exoneration. Some aspects of the State's evidence-Lora Muncey's memory of a deep voice, House's bizarre evening walk, his lie to law enforcement, his appearance near the body, and the blood on his pants-still support an inference of guilt. Yet the central forensic proof connecting House to the crime-the blood and the semen- has been called into question, and House has put forward substantial evidence pointing to a different suspect.

House has satisfied the gateway standard set forth in Schlup and may proceed on remand with procedurally defaulted constitutional claims. House, 547 U.S. at 553-55, 126 S. Ct. at 2086-87.

¶28 Given this analysis of the proper evidentiary standards of review, we turn to the evidence presented at Beach's 1984 trial, and then to Beach's new evidence.

B. Evidence Presented at Beach's 1984 Trial.

¶29 Beach's trial was held in Glasgow in April 1984. After five-and-a-half hours of deliberations, the jury returned a unanimous guilty verdict. The trial evidence is consolidated below into three substantive areas.*fn5

1. The Confession*fn6

¶30 During January 1983, Beach made numerous statements to multiple Louisiana police officers in which he confessed to killing Nees. During this time period, Beach had moved from Poplar to live with his father and stepmother in Monroe, Louisiana. On January 4, 1983, Beach's stepmother called police and turned Beach in for contributing to the delinquency of minors. He was arrested and taken to the Ouachita Parish Sheriff's Office.

¶31 On January 5, 1983, Beach telephoned his stepmother from jail and threatened to kill her. Scared, his stepmother and father called the Sheriff's Office and told them Beach had been a suspect in a Montana homicide and might be connected to several unsolved Louisiana homicides. They told law enforcement they were concerned because Beach was "quite capable of committing a murder under certain situations."

¶32 On January 6, 1983, Sergeant Jay Via (Sergeant Via) and Deputy Sheriff Richard Medaries (Deputy Medaries) of the Sheriff's Office talked to Beach for an hour. Prior to their questioning, they informed Beach of his Miranda rights and Beach signed a statement that he understood his rights and was waiving them. Beach confirmed that he had threatened to kill his stepmother and that he was, indeed, a suspect in a Montana homicide. Beach explained that he could "fly[] off the handle" and that he dealt with frustration in a "physical way."

¶33 On January 7, 1983, Sergeant Via picked Beach up from jail at 12:24 p.m. to conduct an interview. Sergeant Via advised Beach of his Miranda rights in transit and again before questioning him. The interview began at 12:52 p.m., but was interrupted at 12:58 p.m. when another police officer entered the room. Beach was again advised of his rights.*fn7 During the initial questioning, Beach denied killing Nees. With Beach's permission, Sergeant Via then performed a voice "stress evaluation test" on Beach. In the test, Beach's answers to a series of questions were recorded and measured for fluctuations that indicated stress in his responses. Stress could indicate deception. From the test, officers believed Beach was being deceptive. Throughout the day, Beach was permitted to use the restroom and have coffee, cigarettes, snacks, and soda pop. Shortly after 3:00 p.m., Sergeant Via requested Commander Calhoun to perform a second "stress evaluation test" to confirm his conclusion that Beach was being deceptive about the Nees murder. Commander Calhoun performed another round of questioning until 6:30 p.m., when he asked Sergeant Via to re-enter the room. When Sergeant Via reentered, Beach had "tears in his eyes" and he told Sergeant Via "he was afraid to admit [] what he had done in Montana[.]" At 6:51 p.m., Beach confessed to killing Nees to Commander Calhoun and Sergeant Via. At 7:08 p.m., Beach gave a recorded confession, providing details of how he had met up with Nees that day, why he had killed her, how he had killed her, and how he disposed of the body and the evidence tying him to the crime scene. He appeared "relieved" after giving this 40-minute taped statement.*fn8

¶34 Beach's account included details of his activities and whereabouts the day of Nees's murder. From 1:00 p.m. until 4:30 p.m., Beach said he was partying at Sandy Beach along the Poplar River with Shannon O'Brien and Calib Gourneau. When the group tried to leave, Beach's vehicle "got stuck" in the sand, and he became "very angry." Beach damaged his car trying to rock it out of the sand, and he "blew up." Beach got out of the vehicle, started "kicking the vehicle," hitting the vehicle, and cussing and stomping around. Gourneau "tried to calm [Beach] down," but, Beach explained, this only made him "madder and madder." Beach then "got into an argument" with Gourneau and left to walk back to Poplar. He said he would "send somebody back to pick [Gourneau and O'Brien] up," but did not do so.

¶35 At trial, Shannon O'Brien corroborated Beach's account of what happened at Sandy Beach, with the addition of two details. First, after the car got stuck, Beach threw beer bottles at the car. Scared, O'Brien rolled up the windows and locked the doors and did not emerge from the car until Beach left. Second, the angry Beach told O'Brien and Gourneau that he "wanted to get a woman."

¶36 When Beach got home, he looked for beer in the refrigerator and started to make something to eat. He changed his mind, however, and went upstairs and fell asleep in his room. Beach awoke sometime "after dark." He left the house, and started walking toward town. When he got to the Exxon service station, a popular place for Poplar teenagers to meet, he found Nees sitting in her pickup. Beach was dating Nees's sister, Pam, at the time. Beach asked if he could ride around with Nees, and the two drove around Poplar until it was "fairly late at night." Eventually, they drove down to the Poplar River by the "train bridge," where Beach said he turned the conversation to "intimate" topics. He asked Nees about "making love to her boyfriend," and if she would have sex with him. She said no. This "upset him" a little, so he decided to try harder. He smoked "another joint with her" in hope that "she would get a little bit more messed up[.]" Finally, he "reached over to kiss her and she pushed [Beach] away." This made Beach "pretty mad," and he asked Nees why girls around Poplar did not like him. She said it was because he was an "asshole."

¶37 This upset Beach "quite a bit." He tried to grab Nees and she slapped him. He reached over, grabbed her by the arm, and pulled her over next to him. Nees fought back. Beach said this made him fly "off the handle again." He got so mad he "didn't really know what [he] was doing." He hit her with his fist. Then he picked a "twelve inch crescent wrench" off the floorboard and started hitting her with it. Nees retreated out the driver-side door of the pickup. Beach dropped the wrench as he rushed out the passenger-side door to catch her "before she run off." He "caught her as she was coming out the door." Beach again tried to kiss her, and Nees scratched him. This only made Beach madder; he threw her up against the truck and choked her. He reached into the back of the pickup and grabbed a tire iron. He "started hitting her with that, telling her [he] was going to kill her, calling her a bitch, and cussing her." He hit her "anywhere and everywhere [he] could." Nees was "covering her head with her arms and screaming." Nees got away from Beach, and ran to the other side of the pickup, but Beach "tackled her" next to the "passenger rear tire" and "hit her a couple more times" on the head with the tire iron. When he realized that Nees had "quit moving," Beach stopped and stood up. He looked at Nees, took a few steps back, and then returned to her body to check for a pulse. He found none.

¶38 Beach explained that he then began to dispose of the evidence. He threw the crescent wrench and tire iron into the Poplar River. He then began to look for something to help drag the body over to the river. He found a plastic garbage bag and "tried to put the body in it." He was able to fit Nees's folded legs and torso into the bag, with the bag coming up to under her armpits. Beach held the corners of the bag and dragged the body by the shoulders to the edge of the bank of the river. He pushed the body and bag over the edge of the bank. Beach believed that the plastic bag came off the body when he pushed it over the bank. Beach returned to the pickup, took the pickup keys and Nees's jacket, returned to edge of the river bank, and threw them in the river. Beach then wiped down the inside and outside of the truck with his shirt sleeve to remove fingerprints.

¶39 Beach left the scene on foot and went home. On his way, Beach realized that he was covered in blood. He wiped off as much blood as he could from his body, used a lighter to burn his shirt and pants in a nearby railroad boxcar, and disposed of his shoes.

Beach returned home in his underwear and washed off the remaining blood with soap and water. He then went to bed.

¶40 At the conclusion of this confession, Sergeant Via again advised Beach of his Miranda rights and asked him whether everything Beach told them was the "honest and complete truth." Beach responded: "Yes, sir." When asked if he had been forced by anyone to give the statement or whether he was tricked or forced into giving the statement, he responded: "No, sir."

¶41 The next day, January 8, 1983, Sergeant Via went to the jail to talk to Beach about three unsolved Louisiana murders. Beach told Sergeant Via that he had retained a lawyer. Sergeant Via did not ask Beach any further questions. Paul Henry Kidd (Kidd), Beach's Louisiana attorney, subsequently contacted Sergeant Via to request a meeting on January 11, 1983. He wanted to discuss the unsolved Louisiana murders. When Sergeant Via and his commanding officer, Lieutenant Joe Cummings (Lieutenant Cummings), met with Kidd and Beach, Sergeant Via read Kidd and Beach the Miranda rights, and Beach and Kidd signed a waiver form. When questioned about the Louisiana murders, Beach denied any involvement, but mentioned "on two or three occasions during the course of the interview" that he had killed Nees. Beach's admissions were made at different times throughout the interview in the presence of Sergeant Via, Commander Calhoun, Lieutenant Cummings, and Kidd.

¶42 Shortly after the January 11 meeting, Kidd approached the Louisiana officers and told them that Beach now wanted to confess to the three unsolved Louisiana homicides.

Kidd relayed details of the murders that Beach had supposedly provided. The officers followed up on the information, but could not confirm any of it. On January 20, 1983, they confronted Kidd about the veracity of the information. Kidd acknowledged to the officers that he had convinced Beach to falsely confess to these murders as a strategy to utilize an insanity plea. Kidd had gone so far as to make up an alternative personality for Beach's murderous alter ego, named "Ray Woods." Law enforcement then dropped Beach as a suspect in the Louisiana homicides.

¶43 During Beach's 1984 trial, his attorney, Charles "Timer" Moses (Moses), vigorously attacked the reliability of Beach's confession on various fronts. Cross-examining Via, Moses questioned Via about whether Beach had been "psychologically unsound" when he confessed, about obtaining Beach's false confession to the Louisiana murders, and about why he had not recorded the entire January 7 interview. Moses questioned whether Via had fed details of Nees's murder to Beach that provided the substance of the confession, and why Beach had been interviewed for over six hours on January 7. Via answered these questions and denied any wrongdoing. Cross-examining Calhoun, Moses asked if he had played the "bad cop" while Via had played the "good cop." He asked whether Calhoun had threatened to see Beach "fry in the electric chair" if he did not confess. Calhoun denied both. With Deputy Medaries on the stand, Moses elicited testimony that other criminals-serial killers Ottis Toole and Henry Lucas-had confessed to two of the three unsolved Louisiana murders to which Beach had also confessed, insinuating the officers were engaged in obtaining false confessions.*fn9

¶44 The jury went into deliberations with the clear understanding that determining whether Beach's confession was truthful or was a product of police coercion was a critical issue. The judge specifically charged the jury with determining whether Beach's confession was voluntary and truthful. In their closing arguments, both lawyers argued to the jury that Beach's confession was the crux of the case. The prosecutor, Marc Racicot (Racicot), argued:

So then, this all boils down, essentially, to two essential questions, and depending on how you answer those two simple questions, everything else is dispensed with. Those two questions concern[] the defendant and his confession and as the Judge instructed you, "If the confession is voluntarily made" ...


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