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THE COURT OF APPEALS OF THE STATE OF ALASKA
HARRY LEWIS, )
) Court of Appeals No. A-5470
Appellant, ) Trial Court No. 3AN-S92-8789CI
) t/w 3AN-S84-1727CR
v. )
) O P I N I O N
STATE OF ALASKA, )
) [No. 1433 - September 1, 1995]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: Larry Cohn, Anchorage, for
Appellant. James L. Hanley, Assistant
Attorney General, Office of Special Prose-
cutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Harry Lewis was convicted of first-degree murder in
1984 and sentenced to ninety-nine years' imprisonment. In Lewis
v. State, 731 P.2d 68 (Alaska App. 1987), this court affirmed
Lewis' conviction. In 1992, Lewis filed a pro se application for
post-conviction relief claiming newly discovered evidence. The
superior court appointed counsel to assist Lewis, and, through
counsel, Lewis submitted an amended application the following
year. After duly providing Lewis with notice of his intent to do
so, Superior Court Judge Milton M. Souter dismissed the
application. Lewis appeals.
Lewis was convicted with two other persons, Ricky Eason
and Tamara Lynn Riley, of participating in a scheme that resulted
in the murder of Riley's husband, Leon. The evidence established
that Riley enlisted Eason to commit the crime. Eason, in turn,
enlisted Lewis. Eason and Lewis acted together in choking Leon
Riley to death. At trial, Lewis acknowledged choking Leon but
claimed that he repudiated the murder attempt while his victim
was still alive. Lewis further claimed that he then instructed
Eason to leave Leon alone but that, unbeknownst to Lewis, Eason
proceeded with the murder. At the time of Lewis' trial, Eason
and Tamara Riley were being separately prosecuted for the murder;
Eason was therefore unavailable and did not testify at Lewis'
trial. Eason and Riley were both eventually convicted. See
Lewis, 731 P.2d at 69 (quoting Riley v. State, 720 P.2d 951, 952
(Alaska App. 1986)).
In his application for post-conviction relief, Lewis
claimed that Eason was now prepared to testify in support of
Lewis' version of events. To substantiate this assertion, Lewis
attached to his application a sworn statement signed by Eason in
February 1985 (several months after Lewis and Eason were
convicted) in which Eason described the murder in a manner
compatible with Lewis' version of events. Based on Eason's 1985
statement, Lewis argued in his motion that he was entitled to
post-conviction relief under Alaska Criminal Rule 35.1(a)(4),
which allows relief to be granted upon a showing that "there
exists evidence of material facts, not previously presented and
heard, that requires vacation of the conviction . . . in the
interest of justice[.]"
In dismissing Lewis' application, however, Judge Souter
relied on Garroutte v. State, 683 P.2d 262 (Alaska App. 1984), in
which this court adopted the broadly accepted rule that "[w]hen a
defendant who has chosen not to testify subsequently comes
forward to offer testimony exculpating a co-defendant, [this]
evidence is not `newly discovered.'" Id. at 268 (quoting United
States v. Diggs, 649 F.2d 731, 740 (9th Cir. 1981). Even though
the claim of newly discovered evidence in Garroutte was raised in
a motion for a new trial filed under Alaska Criminal Rule 33,
rather than in a post-conviction relief action filed under Rule
35.1(a)(4), Judge Souter reasoned that the rule adopted in
Garroutte should govern all claims of newly discovered evidence,
regardless of whether the claims are advanced under Rule 33 or
35.1(a)(4).
On appeal, Lewis does not dispute the rule adopted in
Garroutte, and he concedes that Eason's proposed testimony would
not qualify as newly discovered evidence for purposes of a new-
trial motion filed under Rule 33. Lewis nonetheless argues that
the Garroutte rule should be limited to newly discovered evidence
claims pursued under Rule 33. Lewis maintains that a more
liberal standard should apply when new evidence is advanced as a
basis for relief in a post-conviction relief proceeding under
Rule 35.1(a)(4). Lewis points out that the language of the post-
conviction relief rule does not explicitly require new evidence
to be newly discovered; rather, it permits relief whenever
"evidence of material facts, not previously presented and heard,
. . . requires vacation of the conviction . . . in the interest
of justice." Lewis submits that, under this broader language,
evidence that was not previously presented need not be newly
discovered to warrant relief; instead, the court must simply
decide whether the new evidence requires vacation of the
conviction in the interest of justice. According to Lewis, the
superior court erred in dismissing his application as a matter of
law, without evaluating the significance of his newly proposed
evidence.
However, Lewis cites no authority to support his
interpretation of Rule 35.1(a)(4), and we are aware of none. The
state, on the other hand, cogently argues that the legislative
history of Alaska's post-conviction relief rule supports the
conclusion that the rule was not meant to enlarge the scope of
previously existing post-conviction remedies but was merely
intended to provide a single, comprehensive procedural mechanism
governing all existing forms of post-conviction relief. Indeed,
this intent finds expression in the language of the rule itself:
This remedy is not a substitute for
nor does it affect any remedy incident to the
proceedings in the trial court, or of direct
review of the sentence or conviction. It is
intended to provide a standard procedure for
accomplishing the objectives of all of the
constitutional, statutory or common law
writs.
Alaska R. Crim. P. 35.1(b).
Moreover, although the language of Rule 35.1 makes no
explicit mention of a newly discovered evidence requirement and
speaks broadly of granting relief as necessary "in the interest
of justice," we fail to see how the interest of justice would be
served by allowing an award of post-conviction relief based on
new evidence that would not result in the award of a new trial
under the standard embodied in Criminal Rule 33. Construing Rule
35.1(a)(4) to allow new trials to be awarded on more permissive
grounds than those provided for under Rule 33 -- the rule
specifically governing new-trial motions -- would elevate form
over substance, permitting identical claims of newly discovered
evidence to be decided differently based solely on the procedure
chosen to assert them. This would be anomalous: "[T]he state's
burden on collateral attack should, if anything, be less than on
direct attack . . . and thus a standard which makes the state do
more under Rule [35.1] than it would have to do under Rule 33 is
illogical." Hensel v. State, 604 P.2d 222, 235 n.55 (Alaska
1979).
The rule we elected to follow in Garroutte, which holds
that a previously unavailable co-defendant's post-trial offer of
exculpatory testimony is not newly discovered evidence for
purposes of Rule 33, is founded on the fundamental unreliability
of such testimony and on the corresponding need to discourage
perjury and avoid manipulative tactics:
It would encourage perjury to allow
a new trial once co-defendants have
determined that testifying is no longer
harmful to themselves. They may say whatever
they think might help their co-defendant,
even to the point of pinning all the guilt on
themselves, knowing that they are safe from
retrial. Such testimony would be
untrustworthy and should not be encouraged.
United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.
1992). To award a new trial based on the offer of such testimony
"would enable [one co-defendant] to give to [another] who chooses
to go to trial the gift of a second chance if the first jury
should convict." United States v. Rocco, 587 F.2d 144, 148 n.15
(3d Cir. 1978) (quoting United States v. LaDuca, 447 F.Supp. 779,
785 (D.N.J. 1978)). These concerns are as pertinent in the
context of an application filed under Rule 35.1(a)(4) as they are
in that of a motion filed under Rule 33.
Thus, in our view, "the interest of justice"
requirement of Criminal Rule 35.1(a)(4) must be construed to
incorporate the criteria governing new-trial motions raised under
Criminal Rule 33. An applicant for post-conviction relief who
brings forth new evidence and seeks relief pursuant to Criminal
Rule 35.1(a)(4) must meet the same burden as a defendant who
files a timely motion under Criminal Rule 33 for a new trial
based on newly discovered evidence. In either procedural
setting, a new trial is warranted only upon a showing that the
proposed new evidence is newly discovered and would probably
produce an acquittal. Charles v. State, 780 P.2d 377, 383
(Alaska App. 1989).
The superior court correctly applied this standard in
ordering Lewis' application dismissed. Accordingly, the order of
dismissal is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
