This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-99-1648

 

Rodney Antwine Keys,
petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

 

Filed March 28, 2000

Affirmed
Foley, Judge
*

 

Hennepin County District Court

File No. 98-077199

 

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103; and

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Ctr., Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant)

 

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges the district court’s denial of his petition for postconviction relief following his conviction of aggravated robbery.  He argues that the testimony of an inmate who claimed he witnessed the alleged robbery and who would testify that appellant was not a participant, but merely an onlooker, constituted newly discovered evidence warranting a new trial.  We affirm.

FACTS

Appellant Rodney Antwine Keys was convicted of one count of first-degree aggravated robbery in violation of Minn. Stat. §§ 609.245, subd. 1, and 609.05 (1998) resulting from an incident that occurred July 5, 1998.  On that day, taxi driver Yacob Debessay was transporting a passenger to St. Louis Park.  As he approached the corner of Park Avenue and Franklin Avenue in Minneapolis, he noticed a man calling for a taxi and then heard a loud boom near the passenger side of his cab.  A man approached the driver’s side of the cab, reached through the driver’s window, and grabbed at the steering wheel and gearshift.  As Debessay was struggling with the man leaning through the window, the passenger window was broken and a man and woman opened the passenger door and began going through parts of the cab, including the glove compartment.  A crowd of people gathered around the cab.

            The police were dispatched to the scene in response to a report of an accident that occurred when a car, attempting to avoid the scene of the robbery, ran a red light and collided with another vehicle.  At the scene, the police brought a person matching a partial description of one of the perpetrators to Debessay for identification, but Debessay told the police he did not believe that the person was involved in the attack.  Debessay saw a man in the crowd, later identified as Keys, whom Debessay positively identified as the man who entered his cab through the passenger door.  At trial, Debessay testified that he had absolutely no doubt that the man who entered through the passenger door was Keys.

            Keys was arrested and taken in for questioning.  Initially, he told officers that he had not been involved in the incident and was merely walking from a nearby gas station. When an officer noted a discrepancy in his alibi, Keys admitted that he had been present at the scene in his brother’s car, but again denied any involvement in the incident.  Keys explained later that the incident was a drug deal gone bad, but that he had not been involved.

            Following his conviction, Keys was incarcerated at the Minnesota Correctional Facility in Faribault, where he met Thomas Gamble.  Gamble told Keys that he had witnessed the incident for which Keys was convicted and told Keys that he was willing to testify to what he had observed.

            Gamble testified that at the time of the incident he was homeless and living in Peavey Park.  He was lying down in the park when he saw a Green and White cab stop on Park Avenue.   Gamble recognized the driver of the cab as a man with whom he had done drugs on previous occasions.  Gamble then saw a group of people approach the cab. Gamble, who testified that the people who surrounded the cab were known drug dealers, assumed, but did not observe, that someone gave the taxi driver drugs and that he sped off without paying for the drugs.

D E C I S I O N

            A postconviction court’s decision denying a new trial will not be disturbed absent an abuse of discretion.  Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990).  A new trial based upon newly discovered evidence may be granted when a defendant proves:

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.

 

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (citations omitted).  Here, the postconviction court ruled that while Keys satisfied the first two prongs of the analysis, he failed to satisfy the third and fourth prongs because it was “virtually impossible to imagine a scenario in which [Gamble’s] testimony would affect the verdict.”  The postconviction court found Gamble’s credibility to be questionable because (1) he had a poor view of the event; (2) he was using drugs at the time he witnessed the incident; and (3) the circumstances of his discovery as a witness were incredulous, rendering this evidence doubtful.

            Keys contends that the newly discovered evidence meets the third prong of the test for the grant of a new trial, arguing that here, contrary to the postconviction court’s finding, Gamble’s testimony is material.  See Race v. State, 504 N.W.2d 214, 217 (Minn. 1993) (evidence that is material is not impeaching, cumulative, or doubtful).   Determining the materiality of evidence requires an analysis of witness credibility and an inquiry into whether the evidence is merely of impeaching value and cumulative.  Id. 

            Keys contends that Gamble’s testimony could refute the taxi driver’s testimony that Keys was involved in the robbery and could have even created a question for the jury as to whether any robbery occurred.  Keys admits that Gamble’s testimony impeaches the taxi driver’s testimony.   Given this, Gamble’s testimony fails to meet the requirement that to be material, newly discovered evidence cannot be merely of an impeaching nature.

            Keys offers Gamble’s testimony to support a theory that the victim actually participated in the underlying crime.  But, in fact, Gamble did not testify that he actually witnessed the alleged drug deal; Gamble had a poor view of the scene, particularly at the beginning of the incident.  Furthermore, his testimony that there was a drug deal only amounts to conjecture.  Gamble testified:

I’ll put it like this.  I know he had gave the cab driver something or the cab driver wouldn’t have peeled out like he did.  He just took straight off.  I know the way of the streets.

 

            The newly discovered evidence is doubtful because Gamble was not in a position to view the events and also testified that he was using drugs at the time he witnessed the events.  Moreover, the postconviction court, which had an opportunity to view Gamble’s demeanor, judged his testimony to be doubtful.  As such, the evidence fails the third prong of the test for granting a new trial based on newly discovered evidence.

            The fourth prong of the test for a new trial requires that the defendant establish that the newly discovered evidence will produce a result more favorable to the defendant. Rainer, 566 N.W.2d at 695.  The trial court could reasonably conclude that Gamble’s testimony is not likely to produce a different or more favorable result for Keys because it lacks probative value as to his guilt or innocence.  Gamble’s testimony amounts to mere lay opinion testimony that the incident must have been a drug deal gone awry. Furthermore, given the unreliability of Gamble’s testimony, due to the location from which he viewed the incident, it is unlikely that introduction of his testimony would produce a more favorable result for Keys.  See State v. Fenney, 448 N.W.2d 54, 62 (Minn. 1989) (unreliable newly discovered testimony would not produce a result more favorable to the defendant).  Because Keys fails to meet two prongs of the test for a new trial based on newly discovered evidence, we conclude that the postconviction court did not abuse its discretion when it denied Keys’ petition.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.