This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-699

 

Stephen Danforth,
petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

 

Filed December 5, 2000

Affirmed
Foley, Judge
*

 

Hennepin County District Court

File No. 95074990

 

Stephen Danforth, MCF - Stillwater, No. 147636, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Considered and decided by Crippen, Presiding Judge, Kalitowski, 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 courtís denial of his petition for postconviction relief in which he asserted 18 different grounds for relief from his first-degree criminal sexual conduct conviction.† He contends the district court erred in concluding he was not entitled to relief because all of his postconviction claims were raised, or were known to him and should have been raised, on direct appeal.† We affirm.

FACTS

††††††††††† Appellant Stephen Danforth was convicted of first-degree criminal sexual conduct in 1996 and sentenced to 216 months.† He appealed his conviction, the state appealed his sentence, and this court consolidated the appeals.† This court upheld Danforthís conviction but reversed his sentence and remanded for resentencing after concluding the district court erred by not sentencing Danforth as a patterned sex offender.† State v. Danforth, 573 N.W.2d 369 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).† On resentencing, the district court sentenced Danforth to 316 months.† Danforth appealed his new sentence, and this court affirmed.† State v. Danforth, No. C5-98-2054, 1999 WL 262143 (Minn. App. May 4, 1999), review denied (Minn. July 28, 1999).

††††††††††† In September 1999, Danforth petitioned for postconviction relief, asserting:

††††††††††† (1)†††††† New polygraph evidence should be admitted and the court should appoint a particular polygraphist as an expert for Danforth;

††††††††††† (2)†††††† The admission of the CornerHouse videotape prejudiced him and violated the confrontation clause;

††††††††††† (3)†††††† The district court failed to conduct a "taint" hearing before allowing two children to testify;

††††††††††† (4)†††††† Danforthís pretrial counsel was ineffective;

††††††††††† (5)†††††† The district court violated Danforthís right to self-representation by holding ex parte hearings and conferences without his knowledge;

††††††††††† (6)†††††† Issues surrounding preparation of the CornerHouse videotape deprived Danforth of his confrontation clause rights;

††††††††††† (7)†††††† Testimony of a particular witness improperly bolstered the credibility of the victimís videotaped responses;

††††††††††† (8)†††††† The district courtís refusal to allow discovery of the victimís school records violated the confrontation clause and Danforthís due process rights;

††††††††††† (9)†††††† Admission of an audiotape on which Danforth invoked his Miranda rights caused irremediable prejudice to Danforth;

††††††††††† (10)†††† The prosecution withheld evidence in violation of Minn. R. Crim. P. 7.01 and the confrontation clause, thereby affecting Danforthís right to present his defense, his right to a jury trial, and his due process rights;

††††††††††† (11)†††† The prosecution engaged in misconduct by committing a discovery violation;

††††††††††† (12)†††† The prosecution committed misconduct by having conversations with a juror;

††††††††††† (13)†††† Another jurorís nondisclosure deprived Danforth of his right to an impartial jury;

††††††††††† (14)†††† The state did not disclose a witnessís specialty in child hypnosis or pre-accusation contact between the witness and the victimís family;

††††††††††† (15)†††† The failure of police officers to keep notes and the prosecutionís refusal to disclose notes of conversations with victims violated Danforthís due process rights and right to confront witnesses;

††††††††††† (16)†††† Closure of the courtroom during testimony of a child witness deprived Danforth of a public trial and due process;

††††††††††† (17)†††† Improper contacts between the court and jurors deprived Danforth of his rights to a trial by jury and to a fair trial; and

††††††††††† (18)†††† The court improperly relied on a psychological report.†

 

††††††††††† The district court concluded Danforth was not entitled to postconviction relief on issues 1, 2, 4-7, 9-11, 17, and 18 because Danforth raised the same issues in his direct appeal and on issues 3, 8, and 12-16 because those issues were known to Danforth at the time of his direct appeal, but he failed to raise them in his direct appeal.† The district court then concluded that because Danforth failed to show conclusively that he was entitled to relief, the district court would not grant him a hearing.† Danforth now appeals from the district courtís denial of his petition.†††

D E C I S I O N

††††††††††† This court reviews postconviction proceedings only to resolve whether sufficient evidence supports the district courtís postconviction findings.† Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). The district courtís decision will not be reversed absent an abuse of discretion.† Id.

††††††††††† If a defendant makes a direct appeal, the court will not consider issues raised in the direct appeal, or issues known but not raised in the direct appeal, in a subsequent petition for postconviction relief.† King v. State, 562 N.W.2d 791, 795 (Minn. 1997).†† Postconviction relief may be granted, however, when an issue is novel and "it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided." Case v. State, 364 N.W.2d 797, 800 (Minn. 1985).†

I.† Issues Raised on Direct Appeal

††††††††††† Issues 1, 2, 4, 5

††††††††††† Danforth concedes he raised issues 1, 2, 4, and 5 in his direct appeal.† He asserts, however, that this court did not consider his request for remand on these issues.

††††††††††† Contrary to Danforthís assertion, in his direct appeal, this court specifically addressed and rejected his challenge to the admission of the CornerHouse videotape.† Although this court did not enumerate and separately address each of Danforth's other pro se claims in the direct-appeal opinion, this court stated:

††††††††††† We have painstakingly considered each of Danforthís numerous additional arguments presented in his pro se brief * * * and find them to be without merit.

 

State v. Danforth, 573 N.W.2d 369, 378 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).† Thus, the district court properly rejected Danforthís petition on these issues.††

††††††††††† Issue 6

††††††††††† Danforth next contends that although he raised issue 6 in his direct appeal, newly discovered evidence supports this issue.† He alleges this new information demonstrates the interview of the victim at CornerHouse was "forbidden by law."†

††††††††††† Newly discovered evidence unavailable at the time of trial may form the basis for postconviction relief.† Miller v. State, 531 N.W.2d 491, 493 (Minn. 1995).† Danforthís petition notes that scientific investigations have confirmed the unreliability of the techniques used in the CornerHouse interview.† In his brief opposing the stateís request for dismissal of his petition, he references an article he wrote since his imprisonment.† This article cites numerous cases, treatises, and articles, the majority of which predate his conviction.† We conclude the information Danforth relies on is neither "newly discovered" nor "evidence."

††††††††††† Issues 7, 9, 10

††††††††††† Danforth does not address issues 7, 9, and 10 on appeal except to state that he would adopt the arguments he set forth in his district court brief.† Because Danforth concedes in his petition that all three of these issues were raised on direct appeal, the district court properly refused to consider these issues.

††††††††††† Issue 11

††††††††††† Danforth concedes he raised issue 11 in his direct appeal but asserts that the district court failed to recognize he alleged newly discovered evidence relating to this claim in his postconviction petition.† Despite this assertion, he cites to no newly discovered evidence.† Thus, the district court correctly denied his petition on this issue.†

††††††††††† Issues 17 and 18

††††††††††† Danforth raised issue 17 in his direct appeal from his conviction, and this court specifically addressed the issue.† Danforth, 573 N.W.2d at 373-74.† He raised issue 18 in his appeal from resentencing, and this court specifically addressed it.† State v. Danforth, No. C5-98-2054, 1999 WL 262143, *3 (Minn. App. May 4, 1999), review denied (Minn. July 28, 1999).† Danforth does not challenge the district court's determination that both of these issues were raised on direct appeal and, again, just instructs this court to read his district court brief.† Because these issues were raised on direct appeal, the district court properly rejected his request to have them reviewed in a postconviction proceeding.†††

II.† Issues Known But Not Raised on Direct Appeal[1]

††††††††††† Issue 3

††††††††††† Danforth contends the district court was incorrect when it found he did not raise issue 3 in his direct appeal.† Although he asserts this claim was raised in his direct appeal, he explains that he raised it again in light of "more recent discovery of burgeoning scientific support" for the taint theory.

††††††††††† Regardless of whether he specifically raised this issue in his direct appeal, Danforth has failed to produce or allege any specific "newly discovered evidence."† Further, he cannot assert that the legal basis for this issue was not available at the time of his direct appeal because he asserts he raised the issue in his direct appeal.

††††††††††† Issue 8

††††††††††† Danforth alleges the district court incorrectly determined he did not raise issue 8 in his direct appeal but then asserts that because of this courtís interpretation of the issue in his direct appeal, he could not have foreseen the issue when he brought his direct appeal.†

††††††††††† Danforthís argument on this issue is nonsensical.† Regardless of this fact, if, as he asserts, he raised this issue in his direct appeal, he was barred from raising it again.† Further, even if he did not raise it in his direct appeal, there is no question he knew of the issue before his direct appeal because he raised this issue during trial.

††††††††††† Issue 12

††††††††††† Danforth asserts he failed to raise issue 12 in his direct appeal only because he was unaware of the law and did not know the prosecutor violated his rights by speaking to a juror during trial.†

††††††††††† Private communications with a juror about a pending case are presumptively prejudicial.† State v. Richards, 552 N.W.2d 197, 210 (Minn. 1996).† Here, the conversation in question involved the prosecutor discussing her pregnancy with a juror who was also pregnant.† This conversation took place in the courtroom and apparently occurred while Danforth was present.† Thus, this communication was neither private nor related to the case. Further, even if this argument had merit, it was an argument Danforth should have known at the time of his direct appeal.† See Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998) (stating defendant precluded from raising issue in postconviction petition whether he knew or should have known about issue at time of direct appeal), cert. denied, 524 U.S. 942 (1998).

††††††††††† Issue 14

††††††††††† Danforth asserted in issue 14 that his rights were violated by the stateís failure to disclose a prosecution witnessís specialty in child hypnosis and by this witnessís pre-accusation contact with the victimís family.† Danforth also alleged he discovered the pre-accusation contact only after the direct appeal when the police returned a telephone bill they had seized from Danforthís residence.[2]

††††††††††† Newly discovered evidence supports postconviction relief only if (1) the petitioner did not know about the evidence at the time of trial; (2) this evidence could not have been discovered by due diligence before trial; (3) the evidence was not cumulative, impeaching, or doubtful; and (4) the evidence would likely produce a more favorable result.† Id. at 434. Although police may have seized Danforthís telephone bill, Danforth presumably was aware that this bill existed and has made no assertion that he attempted to obtain a copy of this information from the police or the telephone company.† Thus, evidence of any pre-accusation telephone calls could have been discovered before trial.†

††††††††††† Additionally, Danforth cites to no evidence supporting his belief that this prosecution witness specializes in hypnosis other than stating that "while he has been imprisoned, petitioner has learned that [the witness] has a specialty in hypnosis, as self described and documented."† He does not state whether he learned this information before or after his direct appeal.† Therefore, he has not alleged sufficient facts to support this postconviction claim and has not demonstrated that this issue could not have been raised on direct appeal.

††††††††††† Issue 15

††††††††††† Danforth asserted in issue 15 that his right to confront witnesses and due process rights were violated because police officers failed to keep notes and the state refused to disclose notes of conversations with victims.† Danforth states on appeal that this issue was raised in his direct appeal but because facts "still need development at a hearing," postconviction relief is appropriate.

††††††††††† We agree that Danforth raised this issue in his direct appeal.† Because he did so, however, he is precluded from seeking postconviction relief on this issue.

††††††††††† Issue 16

††††††††††† In issue 16, Danforth asserted the district court erred by closing the courtroom during one witness's testimony without making findings on the necessity of such closure.† Danforth states on appeal that because this was plain error, he could not have waived this issue by failing to object at trial and failing to raise the issue in his prior appeal.† See State v. Bashire, 606 N.W.2d 449, 452 (Minn. App. 2000) (concluding defendant waived challenge to lack of findings on closure by failing to object), review denied (Minn.† Mar. 28, 2000).

††††††††††† Plain errors may be considered on appeal even if not brought to the district court's attention.† Minn. R. Crim. P. 31.02.† Danforth has made no attempt to explain how the district court's decision to close the courtroom during a witness's testimony met the plain error test.† See State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999) (explaining plain-error test).† Thus, he has not met his burden on this issue.

††††††††††† Affirmed.

 



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

[1] Danforth has withdrawn Issue 13.

[2] The victim and his family were residing in Danforthís home when the assaults took place. Danforth is seemingly implying that a member of the victimís family contacted the witness using Danforthís telephone.