This opinion will be unpublished and

may not be cited except as provided by

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






Brian Henley Gentry, petitioner,




State of Minnesota,


Filed August 22, 2000


Amundson, Judge


Hennepin County District Court

File No. 95-06-8163



Howard Bass, Meshbesher & Spence, 1616 Park Avenue, Minneapolis, MN 55404 (for appellant);


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


Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent).



            Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Huspeni, Judge.*



U N P U B L I S H E D    O P I N I O N




            This appeal is from an order denying postconviction relief.  Appellant argues that he is entitled to a new trial on the basis of recantation by a witness who testified at trial that appellant had confessed to him while they were together in jail.  Appellant also argues that without that witness’s testimony, his conviction rests solely on circumstantial evidence, thus requiring that the sufficiency of the evidence be reviewed under the stricter standard for convictions based on circumstantial evidence.  Finally, appellant contends that the evidence establishes his “actual innocence.”  We affirm.



Sarah Hallmark testified that on the morning of August 3, 1995, her 15-month-old son, Gabriel, awakened at his usual time and was cheerful and alert, although he was teething.  Appellant Brian Henley Gentry was staying with them and awoke at 10:30.  All three watched television until Hallmark laid Gabriel down on the sofa for a nap at 11:45.  She asked Gentry to watch Gabriel while she made a short visit to her mother’s home, 10-15 minutes away.  About 15 minutes later, Gentry testified that he noticed that Gabriel was awake and they began to play on the floor.  One game was “airplane,” where Gentry tossed Gabriel in the air while lying on his back on the floor.  Gentry testified that Gabriel enjoyed the first few tosses, but then Gentry lost his grip and they bumped heads.  At this point, Gabriel started rubbing his eyes, and Gentry put him in his crib.

At approximately 1:00 p.m., Gentry heard Gabriel having difficulty breathing.  Gentry immediately called Hallmark, who told him to call 911.  When the police arrived, Gabriel was in full respiratory and cardiac arrest.  Gabriel was taken to Fairview Southdale Hospital by ambulance and pronounced dead at approximately 2:50 p.m.

The autopsy showed that Gabriel’s death was caused by a “shaken baby” blunt-force cranial injury.  Marks on Gabriel’s neck indicated that he had been “stunned” with a stun gun.  Hallmark’s father had given her such a device for her protection, which she kept at the home.  Several medical experts testified at trial, and there was no dispute about the cause of death.  Those presenting medical testimony agreed that behavioral symptoms would have immediately followed the injury and that Gabriel would not have been alert and playful and would have been in pain due to swelling of his brain and subdural hematoma.

At trial, the state called Quentin Swadinsky as a witness.  Swadinsky and Gentry had been in the same unit at Hennepin County Adult Detention Center while Gentry awaited trial, and Swadinsky testified that Gentry confessed to having shaken and stunned Gabriel.

The jury found Gentry guilty of second-degree felony murder, in violation of Minn. Stat. § 609.19(2) (1994).  Following the denial of his motion for a new trial, Gentry appealed his conviction to this court, which affirmed the conviction.  Gentry petitioned the Minnesota Supreme Court for review; his petition was denied.  Gentry then filed an application for writ of habeas corpus in federal court, but moved to dismiss after Swadinsky recanted his testimony.  The federal court dismissed Gentry’s habeas petition without prejudice to allow him to assert his claim in state court.

            Gentry moved for postconviction relief, requesting that the district court overturn his conviction or grant him a new trial.  Following the submission of written arguments, the district court denied Gentry’s motion.  The court concluded that the jury had not heavily relied on Swadinsky’s testimony, and that because the record contained other evidence sufficient to sustain the jury’s verdict, the recantation did not warrant a new trial.  This appeal followed.


            A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968).  We review a postconviction proceeding only to determine whether the record contains sufficient evidence to sustain the findings of the postconviction court, and we will not disturb a postconviction court’s denial of a new trial absent an abuse of discretion.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). 

1.  Witness Recantation

            Gentry argues that he is entitled to a new trial because Swadinsky was a material witness at his trial and later recanted his trial testimony.  We disagree.

This issue is properly raised in appellant’s postconviction petition because Swadinsky did not recant his testimony until 16 months after this court issued its opinion in his direct appeal.  Flournoy v. State, 583 N.W.2d 564, 569 (Minn. 1998).  Courts have traditionally disfavored motions for a new trial based on witness recantations unless extraordinary or unusual circumstances exist.  Daniels v. State, 447 N.W.2d 187, 188 (Minn. 1989).  Where a witness has recanted, a new trial may be granted if (1) the court is reasonably well satisfied that the testimony was false; (2) without the testimony, the jury might have reached a different conclusion; and (3) appellant was taken by surprise by the false testimony and was unable to meet it or did not know of its falsity until after the trial.  Parker v. State, 437 N.W.2d 65, 66 (Minn. 1989).  Gentry must satisfy all three prongs of the test to be granted a new trial.  Sutherlin v. State, 574 N.W.2d 428, 433 (Minn. 1998). 

            Here, the third prong of the test is dispositive.  Gentry contends that he did not know about the falsity of Swadinsky’s testimony until Swadinsky recanted—more than two years after trial.  But Gentry testified that he did not speak to Swadinsky while they were in jail, therefore, this argument is disingenuous.  Gentry further argues that he was surprised by the false testimony and was, therefore, unable to meet it.  Gentry’s counsel, however, conducted a very thorough cross-examination of Swadinsky, focusing on his (1) history of mental illness; (2) criminal background, particularly as it involved crimes of deceit; (3) dishonesty when appearing previously before the same district court; and (4) testimony presented in another case that the defendant had confessed to him while they were in jail together.  Further, at the post-verdict motion hearing, Gentry’s counsel stated that Swadinsky’s testimony was “patently unbelievable” and that “neither the jury nor the Court believed Mr. Swadinsky’s testimony.”  

Accordingly, we conclude that Gentry’s arguments are without merit.  Because Gentry cannot satisfy all three prongs of the test, we conclude that the district court did not abuse its discretion in denying him a new trial.[1]

II.  Sufficiency of the Evidence

            Gentry argues that because Swadinsky’s testimony provided the only direct evidence of his guilt at trial, the remaining evidence must be analyzed under the more rigorous “circumstantial evidence” standard and that now there is insufficient evidence to support his conviction. 

            To obtain a conviction, the state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged * * * .”  State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  Therefore, in reviewing a claim of insufficient evidence in a criminal case, we determine whether,

under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged. 


State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (citations omitted).  We review the evidence in the light most favorable to the conviction and “assume the jury believed the state’s witnesses and disbelieved any contrary evidence.”  Id. 

At trial, Hallmark testified that on the morning of Gabriel’s death, Gabriel awakened at his usual time and, was cheerful, happy, and drank a whole bottle of milk.  The two of them played until Gentry awakened at 10:30 a.m., and then all three watched television until Gabriel fell asleep about 11:45 a.m.  Hallmark left the apartment a short time later.  When Gentry was interviewed by police officers following Gabriel’s death, he stated that Gabriel had been “playing around on the floor” and “walking all over” that morning, “just being his regular self.”  This is evidence of Gabriel’s condition prior to the time his mother left the apartment.

All of the medical testimony agreed that Gabriel’s death was due to a “shaken baby” or blunt-force cranial injury.  Dr. Garry Peterson, Chief Hennepin County Medical Examiner, testified that Gabriel’s level of consciousness would have changed immediately following such a traumatic injury and that he would not have been responsive to interaction with people or have wanted to play.  Dr. Peterson stated that the subdural hematoma resulting from the injury would have been painful and that if Gabriel had been behaving normally on the morning of his death, he would expect that the injury occurred after that time.  Assistant Hennepin County Medical Examiner Dr. Mitchell Morey testified that a child would be “essentially rendered different” within a few moments after such an injury, unable to walk or engage in play, and the child would become progressively less responsive.  Dr. Susan Roe, the Assistant Medical Examiner for Ramsey and Washington counties, testified that a child suffering a shaken-baby injury would immediately become recognizably distressed and unable to engage in normal play.  The defense called Dr. Janis Amatuzio, Anoka and Wright County Coroner, who had no criticisms of the other doctors’ testimony, and in fact agreed that Gabriel’s behavior would have been different after the shaking. 

The evidence presented at trial as to Gabriel’s condition and responsive behavior prior to the time Hallmark left the apartment, when viewed in light of the extensive and uncontroverted expert medical testimony, was sufficient to support the jury’s verdict.

III.  Actual Innocence

            Citing Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 1611 (1998), appellant argues that Swadinsky’s recantation establishes appellant’s “actual innocence” and “more likely than not” no reasonable juror would have convicted him.  This standard is applicable in federal habeas cases.  Id., Minnesota courts have not adopted this
standard for postconviction proceedings.  Accordingly, we have reviewed the sufficiency of the evidence to convict, not whether appellant can show “actual innocence.


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

[1]  Gentry also argues that he is entitled to a new trial because Swadinsky’s recantation qualifies as “newly discovered evidence.”  Gentry relies on Sutherlin, 574 N.W.2d 428, for the proposition that a recantation satisfies the “newly discovered evidence” standard for postconviction relief set out in Ranier v. State, 566 N.W.2d 692 (Minn. 1998).  Gentry’s reliance on Sutherlin is misplaced.  The Sutherlincourt applied the Ranier test to evidence of an affidavit that was not available at the time of trial, and applied a different test to recantation testimony.  574 N.W.2d at 433-34.