Marble v. State

Marble v. State, 2015 MT 242 (Aug. 14, 2015) (Cotter, J.; Rice, J., concurring & dissenting; McKinnon, J., concurring & dissenting) (5-2, rev’d) (Judge Michael Hayworth sitting for Chief Justice McGrath)

Issue: (1) Whether the district court erred in predicating its decision denying Marble’s petition for postconviction relief on the concurring opinion in Beach II; and (2) what test a district court must use in reviewing a petition for postconviction relief predicated on newly discovered evidence and filed within one year of discovering such evidence.

Short Answer: (1) Yes, and (2) The district court shall determine whether the new evidence “if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which he or she was convicted.”


Facts: In 2002, 17-year-old Cody Marble spent several weeks in Pod C of the Missoula County detention center (MCDC) with seven boys aged 13-18. According to MCDC tapes footage and eyewitness testimony, on the evening of March 10, 2002, while at least four other pod mates were in the common area just outside the showers, Thomas and Marble went into a shower stall together. They left about 10 minutes later, and Thomas went to his cell. Thomas later claimed that during the time he was in the shower stall with Marble, Marble threatened Thomas and had anal intercourse without consent. Thomas did not report the alleged assault to the MCDC staff.

On March 13, both boys were released and went home. On March 21, 2002, Marble was charged with felony intercourse without consent after the pod mates reported that Marble had raped Thomas in the showers on March 10. Later, those inmates testified against Marble at trial. Marble contends the rape never occurred, and that he was the victim of a malicious set-up. On Nov. 22, 2002, a jury found Marble guilty, and in January 2004, Marble was sentenced to 20 years, with 15 suspended.

Marble has consistently contended his innocence, and in 2009, contacted the Montana Innocence Project. He heard rumors that Thomas, who was serving time for statutory rape, was telling other inmates Marble did not rape him. The IP interviewed Thomas about four times between Dec. 2009-July 2010, and Thomas verbally recanted his rape claim each time. In July 2010, Thomas handwrote a recantation and gave it to the IP attorneys. Afew days later, an IP lawyer returned with a more detailed typed letter. Thomas made a handwritten correction to one of the statements, initialed and dated the correction, and signed the letter and returned it to the IP lawyer.

Based on these letters, on Dec 14, 2010, Marble petitioned for postconviction relief (PCR). The district court ordered Thomas to be deposed. At that deposition and later at a hearing, Thomas testified the rape did occur and that he told the IP lawyers what they wanted to hear.

On April 7, 2014, while on parole, Thomas had an encounter with the Havre police that resulted in Thomas’s suicide.

Procedural Posture & Holding: In November 2013, the district court denied Marble’s petition, predicating its decision on the concurrence in Beach II and deciding that Thomas’s recantation did not affirmatively and unquestionably establish that Marble was innocent. Marble appeals, and the Supreme Court reverses.

Reasoning: (1) Marble argues that the District Court should have analyzed his petition under the five-prong Clark test rather than the Beach II concurrence.  The Court has applied the five-part Clark test in analyzing claims for postconviction relief based upon newly discovered evidence in three cases, all of which are overruled to the extent they apply the fifth Clark factor to a petition for PCR based upon newly discovered evidence. Crosby; DuBray; Tyler. “Because the PCR petitioner is presumed guilty following the entry of a judgment of conviction, his burden when seeking postconviction relief based upon newly discovered evidence should be greater than that imposed upon a petitioner seeking a new trial under § 46–16–702, MCA.” ¶ 29.

The Court concludes that the test announced in the Beach II concurrence, insofar as it requires a petitioner to affirmatively and unquestionably establish his innocence through the new evidence, is not suited to a petition for PCR. The district court erred in applying the Beach II concurrence to Marble’s petition for PCR.

(2) A district court presented with a petition for PCR based on newly discovered evidence shall determine whether the new evidence “if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which he or she was convicted.” ¶ 36. Although the Court concludes the district court erred in applying the fifth factor of the Clark new trial test to a PCR petition predicated upon newly discovered evidence, it states that the first four factors of the Clark test remain a viable resource in determining whether the newly discovered evidence should be considered.

Justice Rice’s Concurrence & Dissent: Justice Rice concurs with the Court’s adoption of the statutory language in § 46-21-102, MCA as the standard to be applied to petitions for PCR based on newly discovered evidence. However, because the district court has already made extensive findings of fact, Justice Rice would conduct the legal analysis rather than remand, and would affirm the district court’s denial of Marble’s petition.

Justice McKinnon’s Concurrence & Dissent: “The distinctions articulated in Montana’s case law between procedural and substantive claims of actual innocence, and the corresponding burdens of proof, are well-reasoned and should be maintained.” ¶ 52. Justice McKinnon beleives “the principles articulated in Schlup, Herrera, Pope, and Redcrow are sound and in harmony with the important public policy of ensuring finality of state court judgments, which serves both the State’s goal of rehabilitating criminal defendants and the State’s legitimate punitive interests. To upset these principles and to remove an analytical framework allowing consistent evaluation of newly discovered evidence—not only consistent among the various trial courts, but consistent with rules and presumptions inherent in our criminal law—is to unsettle the expectations of consistency and finality held by victims, petitioners, and the State.” ¶ 56. Justice McKinnon concurs that Tyler, DuBray, and Crosby should be overruled to the extent they apply Clark to post-judgment claims of newly discovered evidence, but dissents from the Court’s later statement that the the first four factors in Clark provide “guidance” for district courts.