Criminal Practice – MAR – Alford Plea – Recanted Statement – No Testimony

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G.S. § 15A-1415(c) allows a defendant who entered an Alford plea to move for appropriate relief based on recanted testimony. However, since there was no trial, there was no testimony. The fact that a witness subsequently recanted her statement to police did not entitle defendant to relief from his plea.

We dismiss defendant’s appeal and deny his petition for writ of certiorari to review the superior court’s denial of his motion for appropriate relief.

In the face of the statements of co-defendant Demario Danzy and witness Brenda Goins that defendant had shot the victim, defendant pled guilty to second-degree murder pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). In doing so, defendant swore to his transcript of plea that contained an understanding that his decision forfeited his right to trial in which he could “confront and cross examine witnesses against” him.

Some years later, Goins recanted and said it was Danzy who had shot the victim. Based on Goins’ new statement, defendant moved for appropriate relief. His motion was denied without an evidentiary hearing because it involved only a question of law.

Had defendant’s murder case proceeded to trial and had Goins’ statement been admitted in furtherance of a conviction, without an opportunity for defendant to confront her as a witness against him, the analysis and definitional application of Crawford v. Washington, 541 U.S. 36 (2004), cited by the dissent, would be relevant. Moreover, had defendant’s case proceeded to trial and the witnesses testified in conformity with this statement, but later recanted the testimony that led to a conviction, an evidentiary hearing would be appropriate under G.S. § 15A-1415(c).

However, neither of these scenarios occurred here, and defendant was not deprived of his constitutional or statutory rights. We decline to conflate the Supreme Court’s logic applied to Confrontation Clause jurisprudence to the concerns sought to be addressed by § 15A-1415(c) in determining the meaning of testimony.

Dismissed.

Dissent

(Riggs, J.) Defendant entered an Alford plea to the murder of the victim, meaning he denied guilt but acknowledged there was sufficient evidence to convince the judge or jury of his guilt. Among the evidence undergirding defendant’s guilty plea were two statements that were the only indicia of his identity as the murderer: (1) a written statement from Danzy that defendant was the shooter and (2) a proffer from Goins corroborating Danzy’s statement and confirming, based on her eyewitness account, that defendant killed the victim.

Almost five years later, Goins – by affidavit – recanted her evidentiary statements relied upon by defendant, the state, and the trial court in the entry of his Alford plea. Goins’ affidavit calls into substantial doubt the only two pieces of evidence establishing defendant as the shooter to the exclusion of all others; it both impeaches Danzy’s testimony and serves as positive evidence that he, and not defendant, committed the murder.

G.S. § 15A-1415(c) provides, in part, that “a defendant at any time after verdict may by a motion for appropriate relief, raise the ground that evidence is available which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time, including recanted testimony, and which has a direct and material bearing upon . . . the defendant’s guilt or innocence.”

The majority’s narrow reading of “testimony” is not in keeping with the term’s use in the law, nor is it consistent with the remedial nature of the statute. Besides Crawford’s expansive understanding of “testimony,” the criminal law of this state makes numerous references to the clear concept of “unsworn testimony.”

The independent factual basis required by G.S. § 15A-1022(c) serves to satisfy the trial court’s, the state’s, and the wider public’s interest in convicting the person that actually committed the crime as disclosed by some evidentiary information indicating the defendant’s guilt. The MAR statute likewise seeks to ensure that only guilty parties are punished by allowing defendants to challenge their convictions based on newly discovered evidence. These aligned purposes, considered in pari materia, lead me to disagree with the majority that defendant is not entitled to an evidentiary hearing based upon a sworn affidavit from an eyewitness recanting a testimonial statement that established the independent factual basis for the plea.

State v. Brown (Lawyers Weekly No. 011-149-23, 17 pp.) (Michael Stading, J.) (Allison Riggs, J., dissenting) Appealed from Guilford County Superior Court (Susan Bray, J.) Kayla Britt for the state; Miranda Dues for defendant. North Carolina Court of Appeals