Tuesday 24th January, 2006.

In Re: Aleck J. Carpitcher, Petitioner.

Record No. 2755-04-3 Upon a Petition for a Writ of Actual Innocence Before Chief Judge Fitzpatric k, Judges Elder and Humphreys

Aleck J. Carpitcher (“Carpitcher”) petitioned th is Court for a Writ of Actual Innocence Based Upon Nonbiological Evidence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. Carpitcher claims he is innocent of aggravated sexua l battery, taking indecent li berties with a minor, and animate object sexual penetration, of which he was convicted in the Circuit Court of Roanoke County on August 30, 1999. Upon consideration of the petiti on, Carpitcher’s memorandum in support of the petition, the Attorney General’s re sponse and motion to dismiss, Carp itcher’s reply thereto, and the record, this Court remanded the matter to the trial c ourt to certify findings of fact regarding factual issues in dispute. The trial court conducted a hear ing in this matter and supp lied this Court with its certified findings of fact. Upon c onsideration thereof, we dismiss th e petition for failing to establish previously unknown or unavailable evidence sufficien t to justify the issuan ce of the writ. See Code § 19.2-327.13(i).

I. On August 30, 1999, a jury convicted Carpitcher of aggravated se xual battery, in violation of Code § 18.2-67.3(A)(1), taki ng indecent liberties with a minor, in violation of Code § 18.2-370.3, and three counts of animate object sexual penetration, in violation of Code § 18.2-67.2. The trial court imposed a prison sentence of 73 years, with 35 years suspended, resulting in an active sentence of 38-2- years in prison. Both this Court and the Virginia Supreme Court denied Ca rpitcher’s petitions for appeal.

All of the convictions arose out of Carpitcher’s alleged sexual a buse of H.L., the ten-year-old daughter of his then-girlfriend. H.L., who was eleven y ears old when she testified at the jury trial, stated that Carpitcher—on at least thr ee separate occasions—pul led down her underwear and penetrated her vagina with his finger. H.L. also testified that, on another occasi on, she saw Carpitcher urinating, and he told her to come over and touch his penis. H.L. said that she did not te ll her mother about these incidents because she had seen Carpitcher act viol ently towards her mother on at least two previous

occasions. H.L. was the Commonwea lth’s only witness during the trial, 1 and, thus, the jury predicated Carpitcher’s convictions solely upon her testimony. 2 However, in March 2000, H.L. told her therapis t—who had been pressing her for details about

the sexual abuse—that she had fabricated those portions of her trial te stimony dealing with the inappropriate touching. H.L. told the therapist that she created the story becaus e she missed being able to spend time with her mother. Then, in April 2000, H.L.—who was still only eleven years old—wrote a letter to the governor, which reads as follows: Governor Gilmore, Well I guess my Mother has info rmed you about Aleck Carpitcher & how I [] falsely accused him of wr ongdoings. Well I just want to let everyone to know that I am sorry, but as you probably know I was only 9 years of age at the time so I actually really didn’t know what exactly I was doing. I just thought that he woul d go away. I was wrong about that

1 Although H.L. had been seen by a doctor w ho found physical evidence consistent with penetration of H.L.’s vagina by a finger, the Co mmonwealth—apparently unaware that the examination had occurred—did not introduce the results of that examination during trial.

2 There were inconsistencies in H.L.’s statemen ts to the police officers regarding what she was wearing and what was on TV at the time of the alle ged incidents. Because Ca rpitcher’s trial counsel decided that he was not going to “beat up” on the victim or “nit pick” at her story, however, these inconsistencies were not brought out during H.L.’s cross-examination. Ra ther, Carpitcher’s sole defense was that he was in Tennessee and Washington D.C. fo r “almost” the entire mont h of March, one of the three months during which the abuse allegedly occurred.-3- though! Well I hope this letter will help you with getting him out of prison. Thank you! Sincerely, [signature] Later that same month, Carpitcher’s trial counsel videotaped a statement by H.L. in which she said that, although Carpitcher had made an inappropriate se xual comment to her, he had never touched her inappropriately. During the interview, H.L. told Carpitcher’s tria l counsel that she was “coming forward now” because her “mom told [her] if [she] did not [she’d] have to go live with [her] dad and [she] hate[s] living with [her] dad.” On October 30, 2000, H.L. signed a ha ndwritten affidavit in which she stated that her “testimony given in court during the trials against [Carpitcher] wa s not true . . . [he] did not touch me or do any of the things I said he did.” In December 2001, H.L. si gned a second affidavit in which she stated that she fabricated her allegations of sexual abuse because she had decided to force an end to Carpitcher’s relationship with her mother. In th e affidavit, H.L. further stated th at her trial testimony was untrue and that she “tried very hard to get him convicted” so th at she could return to live with her mother. On at

least one occasion afte r she initially recanted her tr ial testimony, however, H.L. told her mother that the sexual abuse did, in fact, occur. On January 3, 2002, based on H.L.’s recantation of her trial testimony, Carpitcher filed a petition for a writ of habeas corpus in th e Roanoke County Circuit Court, alle ging that he was innocent of the crimes for which he was convicted. During the eviden tiary hearing, H.L. testif ied that Carpitcher never touched her inappropriately, but sh e maintained that he had once asked her to touch his penis. In a letter opinion date d August 11, 2003, the circuit court denied the petition for a writ of habeas corpus, holding that Rule 1:1 barred consideration of the actual innocence claim. See Carpitcher v.-4- Hinkle , 62 Va. Cir. 391, 395 (2003). The Virginia Supr eme Court denied Carpitcher’s petition for appeal in the state habeas proceedings. 3 On November 29, 2004, Carpitcher filed in this C ourt a petition for a wr it of actual innocence based upon newly-discovered non-biol ogical evidence, contending that the “newly discovered” evidence was H.L.’s post-trial statement to Carpitcher’s attorn ey, in which H.L. asserted that her trial testimony was untrue. Carpitcher also alleged that H.L. ha d taken and passed a polygraph examination to “prove” that she had lied at trial and that Carpitc her had never touched her inappropriately.

The Commonwealth filed a motion to dismiss Carpitcher’s petition for a writ of actual innocence, alleging that the peti tion was unwarranted because it was questionable whether H.L.’s recantation was, in fact, truthful. The Commonwealth also proffered an affidavit from Henry Bryant, owner of the home in which Carpitch er, H.L., and H.L.’s mother lived. 4 In the affidavit, Bryant asserts that Carpitcher had once told him that, if H.L. liv ed on a reservation, she w ould have already been

“broke in”— i.e. , would no longer have been a virgin. Bryant also stated that there were occasions during which Carpitcher and H.L. were left alone together. 5 The Commonwealth also proffered evidence that Ca rpitcher has a past record of statutory rape. Specifically, in one reported case from Oklahoma, an eighty-year-old woman, who had learned that Carpitcher was having sexual intercourse with her fourteen-year-old fost er daughter, shot Carpitcher in

the back. See Garrett v. State , 586 P.2d 754, 755 (Okla. Crim. App. 1987). Also, in February of 1982,

3 On June 21, 2004, Carpitcher filed a petition for a writ of habeas corpus in federal district court. After the petition was filed, Virginia en acted the actual innocen ce statute, Code § 19.2-327.10 et seq. Thus, in January of 2005, the federal court dismissed the habeas petition, reasoning that Carpitcher’s state remedies were not exhausted becau se Carpitcher had not yet petitioned for a writ of actual innocence. 4 The actual innocence statute provides that th e Commonwealth may “proffer [] any evidence pertaining to the guilt of the petitione r that is not included in the reco rd of the case, including evidence that was suppressed at trial.” Code § 19.2-327.11(C). And, in decidi ng whether to grant or deny the petition, this Court may consider, inter alia , “the response by the Commo nwealth . . . .” Code § 19.2-327.13. 5 Bryant lived in the house along with Carpitcher, H.L., and H.L.’s mother.-5- Carpitcher was charged with the rape of a seventeen -year-old woman in Oklahom a. According to the Commonwealth’s proffer, the char ge was subsequently dropped at the request of the victim. After considering the Commonwealth’s motion to dism iss, this Court ordered the circuit court to conduct an evidentiary hearing and to make findings of fact relating to th e following two certified questions: 1. Whether the victim in this case has recanted the testimony she gave at the trial in any material way with regard to the culpability of the petitioner? 2. If such material recantation of her trial testimony has taken place, whether or not such recantati on is the product of duress, undue influence or inappropriate pressure from others? On June 27, 2005, the circuit court conducted an ev identiary hearing. During the hearing, H.L. testified that she had lied both during the criminal trial and during the state habeas proceeding, stating that Carpitcher had never committed any of the alleged crimes. As to the findings of fact relating to the firs t certified question, the circuit court found that, “on all three occasions when the juvenile victim was re quired to testify, she was a person to whom an oath was lawfully administered, and that she did, willfully, on at least two of those occasions, swear falsely to material matters or things involving one or more of the elements of the felonies for which the defendant was charged.” The court further stated that, “[h]avi ng testified differently about the same issues on three separate occasions, she is no longe r credible.” However, the tria l court concluded that it “cannot determine which, if any, of the three versions of her testimony is truthf ul.” In other words, the court found that, although H.L. had lied on two of the three occasions that she testif ied, the court could not identify which of those three occasions was the on e during which she was telling the truth. Moreover, the court held that “nothing has been proven” in te rms of whether the recantat ion was actually true and, thus, whether H.L. perjured herself during the jury trial. As to the second certified question, the circuit court noted that, “[ d]uring the past six years the juvenile victim has been questioned over and over again concerning the events surrounding the crimes-6- for which defendant stands convicted.” The court further observed that, “[n]otwithstanding whatever inappropriate pressure those occurrences may have placed upon the child from the time she was 11 years old until now when she is 17 years old, her moth er, who has never believed that her daughter was sexually abused, told her ‘more times that [she] ca n remember,’ that she was sick and tired of her daughter’s lies and that if she didn’ t tell the truth about the defendant , she could pack her bags and go live with her father.” Reasoning that “[t]he infant victim was and is fearful of leaving her mother and she does not want to live with her father,” and also no ting that H.L. “falsely deni ed that her mother made those threatening statements to her,” the court found that The infant victim was threatened, intimidated and coerced to comply with the various subtle, and not so subtle , demands that she change her trial testimony. A summary of her latest sworn testimony is that she did not materially recant her tria l testimony because of undue influence, duress or inappropriate pressure from others. Her veracity is questionable. The Court cannot determine, under any evid entiary standard, the truthfulness of her most recent testimony. Following the issuance of the certified findings of fact, Carpitcher filed a “Brief Regarding Certified Findings of Fact” and an accompanying appe ndix, asserting that the tr ial court’s findings of fact were erroneous and requesting oral argument before this Court. Three days later, Carpitcher filed a “Motion for Leave to File Brief Regarding Certified Findings of Fact,” alleging that further briefing is warranted because the trial court, “in its consider ation of the facts has implicitly imposed a higher burden of proof on Petitioner than is re quired by Virginia Code §§ 19.2-327.19 [sic] et seq. ,” further contending that the findings of f act “are clearly erroneous and are in accurate in many critical respects that will effect [sic] and undermine th is Court’s consideration of the issu es and resolution of this case.” In response, the Commonwealth filed a motion to strike, requesting that this Court both deny the motion for leave to file a supplemental brief and strike Ca rpitcher’s “Brief Regarding Certified Findings of Fact” for failure to comply with the applicable procedural rules. For the reasons that follow, we grant the Co mmonwealth’s motion to strike the supplemental briefing. And, because the record now before the Court provides an adequate basis upon which to-7- resolve the merits of this case, we deny Carpitcher’s motion for leave to file additional briefing, deny his request for oral argument, and dismiss th e petition for a writ of actual innocence.

II. The Court of Appeals has original jurisdiction over a petition for a writ of actual innocence. And, according to Rule 5A:5, “[a]ll proceedings before the Court of Appeals pursuant to its original jurisdiction shall be conducted in accordance with th e procedure prescribed by Ru le 5:7 of the Rules of the Supreme Court . . . .” Rule 5A:5. 6 Nothing in Rule 5:7, however, authorizes a party to file a supplemental briefing without first obtaining leave of court. Rather, Rule 5: 7 expressly provides that, after a petition and a responsive plea ding (if ordered) have been filed, “[f]urther proceedings shall be

taken in accordance with the orders of th is Court . . . .” Rule 5:7(e); see also Rule 5:7B(h). Here, Carpitcher filed his supplemental brief befo re requesting leave to file additional briefing and, thus, without waiting for this Court to rule upon his motion. By filing a brief without first obtaining leave of court, Carpitcher violated Rule 5:7. Ac cordingly, we grant the Co mmonwealth’s motion to strike Carpitcher’s supplemental brief. See, e.g. , Lenz v. Warden of the Sussex I State Prison , 267 Va. 318, 325 n.3, 593 S.E.2d 292, 296 n.3 (2004) (noting that a “supplemental brief” filed in a habeas proceeding “was rejected” by order of the court). We must also decide, however, whether to grant Carpitcher’s motion for leave to file supplemental briefing. Neither th e provisions of the act ual innocence statute nor the Rules of the Supreme Court of Virginia addre ss the circumstances under which this Court should permit the parties to file additional briefing in a case within the original jurisdiction of this Court. The decision to grant or deny a motion for leave to file supplemental briefing, therefore, lies in the discretion of the Court.

6 Rule 5:7 sets forth the procedure to be followed in cases where original jurisdiction lies in the Virginia Supreme Court, including petitions for a wr it of habeas corpus, writ of mandamus, and writ of prohibition. See Rule 5:7(a).-8- Because the certified findings of fact issued by th e trial court clearly resolve the merits of this petition, we conclude that neither additional briefing nor oral arguments would aid in the resolution of this case. Accordingly, we deny Carpitcher’s motion fo r leave to file supplement al briefing, and we also deny his request for oral argument.

III. Code § 19.2-327.10 provides that any individual who is “convicted of a felony upon a plea of not guilty” may file a petition for a writ of actual innocen ce in the Virginia Court of Appeals. The writ

“shall lie to the court that entere d the conviction,” and “t hat court shall have th e authority to conduct hearings . . . as directed by order from the Court of Appeals.” Id. ; see also Code § 19.2-327.12 (providing that the Court of Appeals may order the circuit court to “conduct a hearing” and to issue “certif[ied] findings of fact”). According to Code § 19.2-327.11, the petition for a writ of actual i nnocence must allege, inter

alia , that the newly-di scovered evidence: (1) “was previously unknown or una vailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court,” Code § 19.2-327.11(A)(iv), (2) “is such as could not, by the exercise of diligence, have been discovered or obtained before th e expiration of 21 days following entry of the final order of conviction by the court,” Code § 19.2-327.11(A)(vi), (3) “is material and when considered with all of the other evidence in the current record will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt,” Code § 19.2-327.11(A)(vii), and (4) “is not merely cumulative, co rroborative or co llateral,” Code § 19.2-327.11(A)(viii). The petitioner must prove each of these four el ements by clear and convincing evidence. See Code § 19.2-327.13. And, if the petitioner fails to carry his burden of proof, th is Court “shall . . . dismiss the petition for failure to establish previously unknown or unavailable ev idence sufficient to justify the-9- issuance of the writ.” Id. ; see also In re Bowling , 46 Va. App. 50, 55, 615 S.E.2d 489, 491 (2005); In re

Dicks , 46 Va. App. 44, 47, 614 S.E.2d 677, 678 (2005); In re Barron , 44 Va. App. 536, 540, 605 S.E.2d 777, 779 (2004). Of the four elements listed above, only the third is at issue in this case. Specifically, we must determine whether Carpitcher has carried his burde n of proving, by clear and convincing evidence, that

the victim’s recantation of her te stimony is “material” and, thus, re nders the Commonwealth’s case so tenuous that, had the recantati on been produced at trial, “ no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” C ode § 19.2-327.11(A)(vii) (emphasis added).

This Court has never addressed whether a victim ’s recantation, standing alone, is sufficient to justify issuance of a writ of actual innocence. However, we begin our analysis with a well-settled legal principle: A verdict resulting from a trial, during which the evidence ha s been tested by the adversarial process, is presumed to be correct, and, thus, a hea vy burden is placed upon those seeking to overturn it.

Commonwealth v. Williams , 262 Va. 661, 669, 553 S.E.2d 760, 764 (2001) (“As we explained in Justis v. Young , 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961), th e circuit court’s judgment is presumptively correct and the burde n is on the appellant to present a sufficient record to permit a determination whether the circuit court committed an alleged error.”); see also McDonald v. Nat'l Enters., Inc. , 262 Va. 184, 195, 547 S.E.2d 204, 211 (2001); White v. Morano , 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995); Oliver v. Commonwealth , 35 Va. App. 286, 296-97, 544 S.E.2d 870, 875-76 (2001). We further note that, in the context of other cases in which a petitioner has sought post-conviction relief based upon the recantation of a witness’ testimony, the Virginia Supreme Court has observed that, “While discovery after tr ial, brought to the attent ion of the court in due time, that false testimony with respect to material facts has been given by a witness for the prosecution may constitute ground for a new trial, recantation by a State’s witness does not necessarily entitle the accused to a new trial. The opportunity and temp tation for fraud are so obvious that courts look with suspicion upon such an asserted repudiation of the-10- testimony of a witness for the prosecu tion, and this is so even though the repudiation be sworn to.” Fout v. Commonwealth , 199 Va. 184, 192, 98 S.E.2d 817, 823 (1957) (quoting Lewis v.

Commonwealth , 193 Va. 612, 625, 70 S.E.2d 293, 301 (1952)). As one court has commented, “[t]here is no form of proof so unreliable as recanting tes timony. In the popular mind it is often regarded as of great importance[, but] [t]hose expe rienced in the administration of the criminal law know well its untrustworthy character.” People v. Shilitano , 112 N.E. 733, 736 (N.Y. 1916); see also Dobbert v. Wainright , 468 U.S. 1231, 1233-34 (1984) (Brennan, J., dissenti ng from denial of application for stay of execution); Hysler v. Florida , 315 U.S. 411, 413 (1942). Accordingly, where a witness’ re cantation is used to collateral ly attack a conviction, “[t]here must be clear and convincing proof that th e witness testified falsely at the trial, and not merely proof that by reason of conflicting statements his testimony is unworthy of belief .” Lewis , 193 Va. at 626, 70 S.E.2d at 302 (emphasis added). The controlling inqui ry, then, is not merely whether the recantation was true, but whether, considering the recantation in light of all the other evidence, the conviction was predicated upon perj ured testimony. See Ortega v. Duncan , 333 F.3d 102, 104, 107 (2d Cir. 2003). To prove the materiality of the recantation, the petitioner must ther efore establish either: (1) that the recantation is true, or (2) if the recantation is not true, that the witness’ lack of credibility, when considered along with all the evidence in the case, es tablishes that the trial te stimony was perjured. See

id. ; see also Powell v. Commonwealth , 133 Va. 741, 756, 112 S.E.2d 657, 661 (1922) (holding that, where a witness recants her trial testimony, a new tria l is warranted only if “t he court has evidence before it which establishes the . . . perjury or mistak e, in such a clear and c onvincing manner as to leave no room for doubt”). Where the evidence merely prove s that the witness made conflicting statements and, therefore, “spoke falsely on one occasion,” the r ecantation is insufficient to justify post-conviction relief because it does not, standing alone, “establish that his testimony at the trial was false and the-11- statements in the subsequent affidavit were true.” Lewis , 193 Va. at 626, 70 S.E.2d at 302 (emphasis added). 7 Thus, for H.L.’s recantation to be deemed “mat erial,” such that it “would” produce a different result in another trial, Carpitcher must prove, by clear and convincing evidence, that H.L. perjured

herself at trial. See Lewis , 193 Va. at 626, 70 S.E.2d at 302 (“There must be clear and convincing proof that the witness testified falsely at the trial . . . .” ). Carpitcher may carry hi s burden of proof either by establishing that the recantation is true, see, e.g. , State v. Eder , 899 P.2d 810, 811 (Wash. Ct. App. 1995) (“We hold that recantation testimony, in the fo rm of newly discovered evidence, warrants [post-conviction relief] only if it is material; [and] it is material only if it is true . . .”), or by establishing that H.L.’s lack of credibility, when considered along with all of the other evidence in the case, demonstrates that her trial testimony was perjured. For the reasons that follow, we hold that Carpitc her has failed to carry his burden of proving, by clear and convincing evidence, that the recantation is ma terial, such that “no rati onal trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii). Accordingly, we dismiss his petition for a writ of actual innocence.

7 Every other state court to have ruled upon a motion seeking post-conviction relief based upon a material witness’ recantation has held that, before the conviction may be collaterally attacked, the reviewing court must be “s atisfied that [the recanta tion] is true.” Dobbert , 468 U.S. at 1234 (Brennan, J., dissenting); see, e.g. , Borgess v. State , 455 So. 2d 488 (Fla. Ct. App. 1984); People v. Marquis , 176 N.E. 314, 315 (Ill. 1931); State v. Casale , 110 A.2d 588, 589 (Me. 1954); Madison v. State , 109 A.2d 96, 100 (Md. 1954); Commonwealth v. Robertson , 259 N.E.2d 553 (Mass. 1970); People v. Van Den Dreissche , 206 N.W. 339, 341 (Mich. 1925); State v. Caldwell , 322 N.W.2d 574, 585 n.7 (Minn. 1984); State v. Perry , 758 P.2d 268, 275 (Mont. 1988); State v. Puchalski , 211 A.2d 370, 376 (N.J. 1965); In re Young , 356 P.2d 766, 769 (Okla. Crim. App. 1960); Commonwealth v. McCloughan , 421 A.2d 361, 364 (Pa. Super. Ct. 1980); Brown v. State , 816 P.2d 818, 823 (Wyo. 1991). Although many jurisdictions seem to end the inquiry upon determining th at the recantation is false, the more appropriate approach requires the appellate cour t to also consider whether the w itness’ lack of credibility (as established by the false recantation) tends to also establis h that the witness perjured herself at trial. See, e.g. , Lewis , 193 Va. at 626, 70 S.E.2d at 302; see also Ortega , 333 F.3d at 104-07; State v. Compiano , 154 N.W.2d 845, 849 (Iowa 1967) (“ [I]f [the trial court] . . . is not reasonably well satisfied that the testimony given by the witness on the trial was false, it should deny the mo tion [for a new trial], and it is not at liberty to shift upon the shoul ders of another jury the responsibil ity to seek out the truth of that matter.” (emphasis added)).-12- A. Whether the Recantation Is True

It is well settled that the truthf ulness of a recantation is a question of fact to be resolved by the

trial court. See State v. Krum , 903 P.2d 595, 602 (Ariz. 1995) ( en banc ) (“Because of courts’ historic suspicion of such evidence, the credibility of th e recanted evidence is a c ontrolling factor best determined by the trial judge.” (internal quotations om itted)). Thus, this Court should “give particular weight to the trial court’s judgment in cases involving recanted testimony.” Id. at 601. 8 As noted by the Ohio Supreme Court, The trial judge is in a peculiarly advantageous position, under the prevailing circumstances, to pass upon th e showing made for a new trial. He has the benefit of observing the witn esses at the time of the trial, is able to appraise the variable weight to be given to their subsequent affidavits, and can often discern and assay the incidents, the influences, and the motives that prompted the recantation. He is, therefore, best qualified to determine what credence or consideration should be given to the retraction, and his opinion is accordi ngly entitled to great weight. If the rule were otherwise, the right of new trial would depend on the vagaries and vacillations of witne sses rather than upon a soundly exercised discretion of the trial court. Taylor v. Ross , 83 N.E.2d 222 (Ohio 1948) (internal quotations omitted); see also Yessen v. State , 126 N.E.2d 760, 762 (Ind. 1955); State v. Wynn , 34 P.2d 900, 901 (Wash. 1934). Under the circumstances of this case, the circuit c ourt, in its certified fi ndings of fact, expressly found that, although H.L. “is no longer credible,” Carp itcher did not prove “whic h, if any, of the three versions of her testimony is truthful.” Similarly, the circui t court held that it “cannot determine . . . the

truthfulness of her most recent test imony,” and that “nothing has been proven” in terms of whether the recantation was actually true. This finding is sup ported by evidence in the record, specifically, the

8 Cf. United States v. Johnson , 327 U.S. 106, 110-12 (1946) (where the district court denied a motion for new trial because the defendant failed to prove that the material witness had committed perjury, but the federal cour t of appeals held that “the trial judg e's finding that [the witness] did not commit perjury was illogical and un reasonable,” holding that the appella te court “should have decided that this does not present a review able issue of law and on its own mo tion have dismissed the appeal as frivolous,” reasoning that “the dist rict court's finding, that [the w itness’] testimony was not shown to have been false, [was] not reviewable” and admonish ing that appellate courts should “refrain from reviewing findings of fact which have evidence to support them”).-13- inconsistencies in H.L.’s post-trial recantations as we ll as the evidence tending to establish that, at least briefly, H.L. recanted her recantation. 9 Because this Court gives “great weight” to the ci rcuit court’s certified fi ndings of fact, we hold that Carpitcher did not carry hi s burden of proving, by clear and convincing evidence, that the “statements in the subsequent affidavit were true.” Lewis , 193 Va. at 626, 70 S.E.2d at 302. Accordingly, the recantation—standing alone—is insuffi cient to establish that H.L. committed perjury during the original criminal trial. Cf. Borgess , 455 So. 2d at 490 (holding that the trial court did not err in denying a motion for a new trial where a child vi ctim of sexual abuse recan ted her testimony but the

trial court “was not satisfied that the recanting testimony was true,” reason ing that “the trial judge was in the best position to evaluate the credibility of the ch ild’s conflicting stories” and that the trial court was not “required to find that the true version was the one told at the post trial hearing”). B. Whether H.L. Committed Perjury Although Carpitcher has not carried his burden of proving, by clear and convincing evidence, that H.L.’s recantation of her trial testimony is true, the circuit court also found that “[h]aving testified differently about the same issues on three separate occasions, [H.L.] is no longer credible.” Thus, Carpitcher may carry his burden of proving the materialit y of the recantation if he establishes that H.L.’s newly-discovered lack of credibility, when consider ed along with all of the ot her evidence in the case, demonstrates that her “testimony at th e trial was false . . . .” Lewis , 193 Va. at 626, 70 S.E.2d at 302. Here, other than the recantation, there is no addi tional evidence tending to establish that H.L. perjured herself during trial. A lthough H.L. had an alleged motive to commit perjury (specifically, to end the relationship between Carpit cher and her mother), the existe nce of a motive to lie does not establish, by clear and convincing evidence, that the witness did, in fact, perjure herself during the

9 As noted by the Commonwealth, the results of a polygraph examination are not “evidence” in Virginia and, as such, cannot be considered as cont ributing to the ver acity of the recantation. See, e.g. , Robinson v. Commonwealth , 231 Va. 142, 156, 341 S.E.2d 159, 167 (1986) (“[P]olygraph examinations are so thoroughly unreliable as to be of no proper evidentiary use . . . .”).-14- criminal trial. Indeed, evidence of H.L.’s “motive” to lie was introduced during H.L.’s cross-examination during the original criminal trial and was, therefore, implicitly rejected by the jury. Also, as noted by the Commonwealth, there is additional evidence, discovered post-trial, that tends to corroborate H.L.’s trial testimony. 10 Considering, as the trial court found in its ce rtified findings of fact , that the victim was “threatened, intimidated and coerced to comply with the various subtle, and not so subtle, demands that she change her trial testimony,” a reasonable fact finder could disregard the recantation and conclude that the victim, during her initia l trial testimony, was telling the tr uth. Accordingly, the recantation, standing alone, is insufficient to prove that H.L.’s trial testimony was perjured. See United States v.

Rouse , 410 F.3d 1005, 1009 (8th Cir. 2005) (affirming denial of motion for a new trial where the child victims, who recanted their trial testimony, “had been living with their mothers for at least two years,” and “[t]hese women never believed the children’s accu sations, and testified on the defendants’ behalf at trial”); Provost , 969 F.2d at 621 (affirming denial of a new tria l where “the district court found that [the child victim’s] recantation was influence by family pressures” and that “her recantation was not credible”); cf. State v. Nicholson , 296 S.E.2d 342, 345 (W. Va. 1982) ( per curiam ) (affirming denial of a motion for a new trial where the court “d[id] not believ e that there is even a remote possibility that the jury would find the recanting affidavits and subseque nt testimony any more believ able than the original trial testimony”).

IV. For these reasons, we hold that Carpitcher has fa iled to carry his burden of proving, by clear and convincing evidence, that the recantation is truthful , and that, had the inconsistent statement been

10 Specifically: (1) the medical examination, whic h revealed physical evidence consistent with penetration of H.L.’s vagina by a finger, see note 1, supra , (2) Carpitcher’s record of committing prior, similar crimes, (3) Carpitcher’s st atement that, if H.L. lived on a reservation, she would have already been “broke in,” and (4) Henry Brya nt’s statement that Carpitcher and H.L. had, in fact, been left alone together on multiple occasions.-15- produced during trial, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii). Accordingly, we dismiss his petition for a writ of actual

innocence. See Code § 19.2-327.13.

Because the issues addressed he rein are of first impression and potential litigants and members of the bar may benefit from the directives herein , we direct the Clerk to publish this order. The Attorney General shall recover of the petitioner his costs expended herein. Attorney General’s costs: Attorney’s fee $50.00

A Copy,

Teste:

Clerk