This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kelly Daniel Stepp, petitioner,
State of Minnesota,
Filed February 13, 2001
Toussaint, Chief Judge
Pennington County District Court
File No. K195665
Maureen Williams, Law Office of Maureen Williams, P.O. Box 913, Lakeville, MN 55044-0913 (for appellant)
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Natalie Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Alan G. Rogalla, Assistant Pennington County Attorney, P.O. Box 396, 210 LaBree Avenue North, Thief River Falls, MN 56701 (for respondent)
Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Mulally, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appealing from a denial of post-conviction relief, appellant Kelly Stepp claims that the trial court abused its discretion when it denied his motion for a new trial based on newly discovered evidence, and the prosecutor’s failure to disclose a conflict-of-interest in this matter. Because the evidence presented was not new, merely impeaching, or cumulative, and the prosecutor’s conflict-of-interest was harmless, we affirm.
F A C T S
This is the fourth time this matter has been appealed. On September 21, 1995, Kevin Loerzel was attacked in his Thief River Falls home by Kenneth Schwartz and another male. The other male was believed to be appellant Kelly Daniel Stepp.
Stepp was charged with first-degree assault in violation of Minn. Stat. § 609.221 (1996). Schwartz and Stepp were both offered plea bargains. Schwartz entered an Alford plea of guilty to first-degree assault, but Stepp elected to go to trial.
At trial, it was Stepp’s contention that he had not attacked Loerzel but that a third person, Casey Holmgren, was responsible. However, other witnesses, including the victim, testified that it was Stepp, not Holmgren, who attacked Loerzel, along with Schwartz. Because there were rumors that members of the Holmgren family were threatening various witnesses, several witnesses were questioned at trial as to whether they were testifying under duress. After hearing all of the evidence, a jury convicted Kelly Daniel Stepp of first-degree assault; the court imposed a 120-month executed sentence, representing a 34-month upward departure from the 86-month presumptive sentence.
In the first appeal, the conviction and sentence were affirmed. Stepp then brought a second appeal, appealing from a denial of post-conviction relief; however, on Stepp's motion, the pending appeal was dismissed without prejudice. Thereafter, Stepp filed a third appeal, appealing from a summary denial of his second petition for post-conviction relief. In his third appeal, Stepp argued that he should have received an evidentiary hearing. We affirmed the postconviction court as to Stepp's allegation of ineffective assistance of appellate counsel. But, as to Stepp's other claims, we reversed and remanded for an evidentiary hearing.
On remand the trial court held an evidentiary hearing on March 2, 2000. At the hearing Stepp introduced evidence that he alleged was new evidence, demonstrating (1) that he did not commit the crime; and (2) that he was prejudiced by the prosecutor's familial relationship to a key witness. The trial court denied Stepp’s petition for post-conviction relief finding that a new trial was not warranted. This appeal followed.
D E C I S I O N
Stepp first argues that the testimony and affidavits of several persons establish new evidence warranting a new trial. Newly discovered evidence will only be used to grant postconviction relief if four elements are met: (1) the evidence was not known to the petitioner or counsel at the time of trial; (2) the evidence could not have been discovered through due diligence before trial; (3) the evidence is not cumulative, impeaching, or doubtful; and (4) the evidence probably would produce an acquittal or a more favorable result. State v. Warren, 592 N.W.2d 440, 450 (Minn. 1999); Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (citation omitted). The decision whether to grant a new trial based on newly discovered evidence rests within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990) (citation omitted).
To determine whether the trial court abused its discretion in denying Stepp’s motion for a new trial, each piece of new evidence will be analyzed separately.
At trial Schwartz, the co-defendant, testified that Stepp had committed the assault against Loerzel. In a post-trial affidavit, Schwartz declared that Stepp had not in fact committed the assault, but that he had testified as such because he had been threatened by the Holmgren family. At the postconviction hearing, however, Schwartz reaffirmed his trial testimony, stating that the post-trial affidavit was a lie created under duress, and that Stepp had committed the assault.
The trial court found that Schwartz’s affidavit recanting his testimony was “suspect at the very best.” Generally, courts do not grant a new trial on the basis of recanted testimony unless the court is reasonably sure that the recantation is genuine. State v. Walker, 358 N.W.2d 660, 661 (Minn. 1984) (citation omitted). Because the trial court is in the best position to judge the credibility of evidence, we defer to the trial court’s determination that Schwartz’s affidavit was doubtful. See State v. Whiteside, 400 N.W.2d 140, 146 (Minn. App. 1987) (holding that appellate courts must defer to the trial court’s credibility determinations), review denied (Minn. Mar. 18, 1987). Accordingly, the trial court did not abuse its discretion in denying Stepp’s motion for a new trial based on this evidence. See id.
B. Testimony of Kristin Odegaard
Kristin Odegaard testified at the postconviction hearing that Schwartz had told her that Stepp did not commit the crime. The trial court found that Odegaard’s testimony “[was] simply not credible” because it was solicited one week before the postconviction hearing by Becky Stepp, Stepp’s sister. Under the Race test, in order to be considered new evidence, the evidence may not be doubtful. Race v. State, 504 N.W.2d 214, 217-18 (Minn. 1993). The trial court is in the best position to judge the credibility of a witness’s testimony; accordingly, we defer to its determination as to the credibility of Odegaard’s testimony. See State v. Whiteside, 400 N.W.2d at 146 (holding that appellate courts must defer to the trial court’s credibility determinations). Because the evidence offered in Odegaard’s testimony is doubtful, the trial court did not abuse its discretion in determining that Stepp is not entitled to a new trial based on this evidence.
Lorissa Eggerud testified that Holmgren had stated, “I should be in prison not Kelly.” The trial court found that her testimony was hearsay, admissible only for impeachment purposes. Hearsay, not subject to any exceptions, is admissible only for impeachment purposes. Minn. R. Evid. 801(c); see State v. Ortlepp, 363 N.W.2d 39, 42-43 (Minn. 1985) (discussing the admission of hearsay testimony for impeachment purposes). Evidence that is merely impeaching is not sufficient to warrant a new trial. Dale v. State, 535 N.W.2d 619, 622 (Minn. 1995). Because Eggerud’s testimony serves merely to impeach Holmgren’s testimony that Stepp committed the crime, it was not an abuse of the trial court’s discretion to determine that this evidence did not warrant a new trial.
In order to support Lorissa Eggerud’s testimony, evidence was submitted by Amber Culkins and Sara and David Lopatowski. They were told by Eggerud that Holmgren had told her that Stepp was innocent of the crime. The trial court concluded that this evidence should not be considered because it was merely cumulative hearsay evidence that could be considered for impeachment purposes only. Because the evidence is cumulative and multiple hearsay, admissible only for impeachment purposes, the trial court did not abuse its discretion in finding that this evidence did not warrant a new trial. See Minn. R. Evid. 801 (c) (preventing the admission of hearsay, except for impeachment purposes); Dale, 535 N.W.2d at 622 (holding that evidence that is merely impeaching is not sufficient to warrant a new trial).
Debbie Green testified at the postconviction hearing that Loerzel had told her that Stepp did not commit the assault. Green’s testimony is hearsay and does nothing more than contradict or impeach Loerzel’s testimony; and therefore, the trial court did not abuse its discretion in determining that this evidence is not sufficient to warrant a new trial. See Minn. R. Evid. 801 (c) (hearsay admissible for impeachment purposes); Dale, 535 N.W.2d at 622 (holding that evidence that is merely impeaching is not sufficient to warrant a new trial).
Christine Shetler testified at trial and at the postconviction hearing that she was not sure whether Loerzel stated Holmgren’s name or Stepp’s name as the assailant at the time Loerzel was admitted into the hospital. Under the Race test, in order to be considered new evidence, it must be shown that the evidence was not known to the petitioner or counsel at the time of trial. Race, 504 N.W.2d at 217. Shetler testified at trial that (1) she believed that Loerzel said Stepp committed the assault; and (2) Loerzel mentioned Holmgren’s name. However, she was not certain Loerzel was implicating Holmgren in the assault. Therefore, the trial court did not abuse its discretion in finding that Shetler’s testimony was not new evidence warranting a new trial because it “was essentially the same testimony she gave at trial.”
Diane Erickson’s affidavit stating that Shetler had stated that she had turned the wrong man in does not warrant a new trial. Erickson’s affidavit is hearsay and does nothing more than bolster Shetler’s testimony; therefore, the trial court did not abuse its discretion in determining that this evidence is not sufficient to warrant a new trial. See Minn. R. Evid. 801 (c) (hearsay admissible for impeachment purposes); Dale, 535 N.W.2d at 622 (holding that evidence that is cumulative or impeaching is not sufficient to warrant a new trial).
Hamre has submitted an affidavit that Holmgren had told Hamre that he misled investigator’s during the investigation of the assault at Loerzel’s direction and that Hamre was under the impression Holmgren was hiding information. Hamre’s statements are hearsay, attempting to impeach the victim’s testimony, which is insufficient to grant a new trial. See Minn. R. Evid. 801 (c) (hearsay admissible for impeachment purposes); Dale, 535 N.W.2d at 622 (holding that evidence that is cumulative or impeaching is not sufficient to warrant a new trial). Therefore, the trial court did not abuse its discretion in concluding that a new trial, based on this evidence, is not warranted.
Scholin, Denise Stepp, and Becky Stepp each testified at the postconviction hearing that Schwartz had stated at his arraignment hearing that Stepp had not committed the assault. Because (1) Scholin testified at trial, yet made no mention of this evidence; and (2) Becky Stepp testified that she had told Stepp’s trial attorney prior to trial that Schwartz had made this statement, the trial court did not abuse its discretion in finding that a new trial was not warranted based on this evidence. Race, 504 N.W.2d at 217 (holding that in order to be considered new evidence, it must be shown that the evidence was not known to the petitioner or counsel at the time of trial). Furthermore, because none of these persons raised this information at trial despite their opportunity to do so, the evidence is doubtful and insufficient to warrant a new trial. See id. (finding testimony to be doubtful and not sufficient to warrant a new trial where the witnesses contradicted each other in their rendition of the facts and did not bring forth the evidence at a more appropriate time).
After reviewing each piece of evidence submitted by Stepp, we conclude that the evidence is either not new, merely impeaching, or cumulative. Accordingly, it was not an abuse of the trial court’s discretion to find that Stepp was not entitled to a new trial.
Stepp also contends that the prosecuting assistant Pennington county attorney had an undisclosed familial relationship with Stepp’s co-defendant, who was also a key witness in the case, prevented him from receiving a fair trial because (1) he could have petitioned for an impartial prosecutor; (2) he could have testified against his co-defendant rather than vice-versa and received a reduced sentence; (3) he was over charged; and (4) the prosecutor sought an upward sentencing departure. The United States and Minnesota Constitutions both guarantee a criminal defendant the right to a fair trial. U.S. Const. amends. V and XIV; Minn. Const. art. I, §§ 6, 7; State v. Shoen, 578 N.W.2d 708, 713 (Minn. 1998). Constitutional error will be found prejudicial if there is a reasonable possibility that the error complained of might have contributed to the conviction. State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986) (citation and quotation omitted).
Assuming, that the attorney had an impermissible conflict-of-interest, his interest did not prejudice Stepp’s trial and sentencing. Stepp was offered the same deal as his co-defendant, Schwartz. According to testimony by Stepp’s defense attorneys, Stepp was offered three different plea-bargains, one of 21 months, one of 48 months, and one of 68 months. Further, Stepp, according to his defense attorney’s testimony, was informed that if he elected not to accept the plea-bargain that the state would likely seek an upward departure from the sentencing guidelines. We defer to the trial court’s determination that Stepp’s attorneys’ testimony was more credible and entitled to more weight than Stepp’s contrary testimony. See Whiteside, 400 N.W.2d at 146 (holding that appellate courts must defer to the trial court’s credibility determinations). Moreover, this court has already declared that the upward departure from the sentencing guidelines was proper in this case because of the circumstances surrounding the assault. State v. Stepp, No. C3-96-1237, 1997 WL 132969 (Minn. App. 1997) (unpublished). Absent a more specific showing by Stepp that the relationship between the attorney and Schwartz adversely affected his trial, any alleged conflict-of-interest in this case did not result in prejudicial treatment of Stepp.
ANDERSON, Judge (concurring specially)
I concur in the result reached by the majority only because of the broad discretion granted to the district court with regard to motions for a new trial based on newly discovered evidence. Since the evidentiary questions here turn largely on the hearsay character of the evidence and the credibility of the witnesses, I cannot say the district court abused its discretion even though there is some evidence contrary to the verdict.
More troubling, however, is the handling of the sentencing proceeding. While the family connection, apparently never disclosed to the trial court or the sentencing court, is weak and remote, it is an undisputed fact that the upward departure in this case was sought by a prosecutor distantly related to another defendant involved in the same incident. The prosecutor here has an incentive to have someone else involved in this tragedy seen as the more responsible party, as opposed to the prosecutors’ relative, and thus there is at least an appearance of bias.
Because there is no evidence of unprofessional conduct on the part of the prosecutor and because appellant in unable to cite authority which would require a remand under these circumstances, I reluctantly concur in the result. A better practice, in my view, is for full disclosure to be made on the record early in the proceeding of the familial relationship, even though the relationship is remote, as was the case here.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.