This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Tyro Kirven, petitioner,





State of Minnesota,




Filed December 11, 2001

Klaphake, Judge


Hennepin County District Court

File No. 85902592


John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230; and


Mark Nyvold, Special Assistant Public Defender, 46 East Fourth Street, Suite 1030, St. Paul, MN  55101 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 S. Sixth Street, Minneapolis, MN  55487  (for respondent)


            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Tyro Kirven challenges the postconviction court’s order denying his request for a new trial on his second-degree murder conviction.  His petition was based on an affidavit by his brother, Andrew Kirven, who alleged that he testified falsely at appellant’s trial and that his testimony was coerced by his attorney.  Because we conclude that the postconviction court did not abuse its discretion in denying the petition, we affirm.


            “Courts have traditionally looked with disfavor on motions for a new trial based on recantation unless there are extraordinary and unusual circumstances.”  State v. Davis, 422 N.W.2d 296, 299 (Minn. App. 1988) (citation omitted).  A postconviction court must analyze a claim of false trial testimony under the three-part test enumerated in Larrison v. United States, 24 F.2d 82 (7th Cir. 1928).  See Dukes v. State, 621 N.W.2d 246, 257-58 (Minn. 2001).  Under Larrison, the court may grant a new trial after recantation if (1) the court is “reasonably well satisfied” that the trial testimony was false; (2) the court concludes that the jury might have reached a different result without the false testimony; and (3) the petitioner was taken by surprise at trial by elicitation of the false testimony or did not know of its falsity until after trial.  Id. at 258.  If the petitioner does not meet the first prong of Larrison, the court need not reach the other prongs of the test.  Parker v. State, 437 N.W.2d 65, 66-67 (Minn. 1989).

            For several reasons, we agree with the postconviction court’s conclusion that appellant has failed to meet his burden of demonstrating that he is entitled to a new trial based on Andrew Kirven’s recantation of his trial testimony.  First, Andrew Kirven claims that his trial testimony was coerced by his attorney.  However, Andrew Kirven pleaded guilty to second-degree felony murder more than one month before appellant’s trial, and his guilty plea was not the result of a plea bargain.  Thus, the record fails to suggest that Andrew Kirven was coerced by his attorney to testify falsely at appellant’s trial.  Appellant provides no other facts supporting the allegation of attorney coercion.

            Further, Andrew Kirven’s affidavit, in which he takes the blame for the murder and attempts to exonerate appellant, contradicts his sworn trial testimony, the testimony of three other witnesses at appellant’s trial, and every prior statement he has made about the facts of this case.  At appellant’s trial, Andrew Kirven vehemently asserted that appellant, and not he, committed the murder.  On the other hand, appellant’s version of the facts changed from the time of his arrest to trial and from trial to posttrial, with each version decreasing his role in the murder.  Even now, the brothers’ versions of the facts are inconsistent as to their locations at the time of the murder. 

            We therefore conclude that appellant has not met his burden of proving that Andrew Kirven’s trial testimony was either coerced or false.  The postconviction court did not abuse its discretion in denying appellant’s postconviction petition.  See Sutherlin v. State, 574 N.W.2d 428, 433 (Minn. 1998) (affirming denial of postconviction petition where court “not reasonably well satisfied” that testimony at either trial was false, based on similarities between testimony at both trials); Parker, 437 N.W.2d at 67 (affirming denial of postconviction petition where court reasonably satisfied that recantation was false because recantation was “sketchy” and contradicted during postconviction hearing); see State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993) (enumerating standard and scope of review for postconviction appeals).