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Appeals court hears challenge to conviction over admission of recanted witness testimony
Summary
At oral argument, counsel for Heath Bell urged reversal and remand, saying trial and appellate lawyers failed to prevent a recanted witness's statement from reaching a jury and that the witness was coerced; the state said counsel made an informed strategy and asked the court to affirm the post-conviction denial.
An appeals court heard arguments in the case of Heath Bell, whose attorney said trial and appellate counsel were ineffective for allowing a recanted witness's statement to reach the jury and for failing to secure a mandatory trustworthiness hearing under Rule 803(26).
"His trial counsel failed to protect his client by making sure that the mandatory procedural safeguards allowing the state's most essential piece of evidence to enter to the jury unvetted," counsel Josie Holland told the court. Holland urged the court to reverse and remand for a new trial, saying the omission demonstrated both deficiency under Strickland and prejudice tied to a related due-process concern.
Holland told the panel that a preliminary judge, Judge Monteesi, had found the witness had recanted and concluded her prior statement should not be entered; she argued that ruling, and the state's reliance on the witness, showed the statement's materiality to the prosecution's central theory. Holland invoked Mays v State to argue that the state had used the witness pretextually to introduce a disavowed statement and that appellate counsel failed to raise an obvious, stronger issue on appeal under Carpenter and Campbell.
The state, represented by Kirby May of the Attorney General's Office, urged the court to affirm the post-conviction court's denial of relief. May said prosecutors had to obtain a material-witness warrant and were uncertain how the witness would testify; the state planned to present consistent portions of the witness's original statement that corroborated other testimony, May said, and argued that trial counsel consulted with the defendant and made a reasoned tactical choice.
"This court should affirm the judgment of the postconvictions court because the petitioner has simply failed to prove by clear and convincing evidence, deficient performance or prejudice by either trial counsel or appellate counsel," May told the court.
Judges on the panel pressed both sides about whether trial counsel's decision to allow the statement was a tactical, informed choice and about the legal standard for appellate review when an issue was not raised at trial. The bench questioned how a preliminary-hearing finding about recantation translated into exclusion at a trial and whether appellate review under de novo or plain-error standards could have remedied any omission.
In rebuttal Holland emphasized allegations about how the state obtained the witness's testimony. "She was handcuffed. She was chained to a table, and the officers swore at her in a horrible way and threatened to take her children from her," Holland said, arguing those facts supported that the statement was coerced and that Rule 803(26) required gatekeeping because the statement was manifestly unreliable.
The court took the matter under advisement. No ruling was issued from the bench at the conclusion of oral argument.
