This opinion will be unpublished and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

C2-01-2170

 

Michael Gorman, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed July 9, 2002

Reversed and remanded

Parker, Judge*

 

Ramsey County District Court

File No. K8-93-2767

 

 

Deborah Ellis, 700 St. Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for appellant)

 

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

 

            Considered and decided by Randall, Presiding Judge, Willis, Judge, and Parker, Judge.

 

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

During a civil action following his conviction of second-degree felony murder, appellant Michael Gorman’s civil attorney discovered that the victim, Willie Thomas, was also known by another name: Willie Dixon.  Other evidence was eventually uncovered about Thomas, including two prior convictions in Missouri for murder and repeated involvement with the St. Paul police in the months immediately preceding his death.[1]

Gorman filed a petition for postconviction relief, arguing that he was entitled to a new trial because the newly discovered evidence, which the state failed to disclose, would have enhanced his credibility at trial and supported his claim of self-defense.  The postconviction court summarily denied this petition but, on appeal to this court, we remanded for the district court to conduct an evidentiary hearing to determine whether defendant was prejudiced by the failure to disclose what would have been admissible evidence.  Gorman v. State, 619 N.W.2d 802, 808 (Minn. App. 2000), review denied (Minn. Feb. 21, 2001).

On remand, the district court again denied Gorman’s motion for postconviction relief, concluding that the withheld evidence would be either inadmissible or unlikely to alter the outcome of the trial.  This appeal followed.  We reverse and remand for a new trial.

D E C I S I O N

Gorman argues that a new trial is warranted by alleged prosecutorial misconduct in failing to disclose the evidence and then exploiting this failure.  We do not, however, focus on the prosecutorial misconduct question.  We recognize that the First Circuit’s opinion in United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993), addressed a strikingly similar situation, but we note that in Udechukwu, unlike this case, there was evidence that the prosecutor’s suppression was intentional, or at least that the prosecutor had actual knowledge of the evidence that was not disclosed.  Id. at 1106.  We impute knowledge of such evidence to the prosecutor, regardless of good faith, when considering violations of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), State v. Williams, 593 N.W.2d 227, 235 (Minn. 1999) (fact that suppression was good faith or bad faith does not control Brady analysis because prosecutor has an affirmative duty to learn of evidence favorable to the accused).  When considering whether there was prosecutorial misconduct, we focus on the prosecutor’s actual intent, knowledge, and behavior.  See, e.g., State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001) (holding that while asking questions calculated to elicit inadmissible evidence is misconduct, it was not misconduct where there was no showing that the prosecutor persisted in trying to elicit such inadmissible evidence); State v. Porter, 526 N.W.2d 359, 363-65 (Minn. 1995) (finding prosecutorial misconduct where, for example, statements made to the jury violated clear rules about proper commentary and “could only have been intended to inflame the jury’s passions and prejudices”); cf. State v. Fuller, 374 N.W.2d 722, 726-27 (Minn. 1985) (holding that negligent conduct in asking question that elicited inadmissible evidence was not misconduct warranting protection from retrial following mistrial).

Gorman next argues that he was denied a fair trial because the prosecution suppressed evidence regarding Thomas’s alias and criminal history and that this violated Brady.  A defendant may seek postconviction relief “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.”  Minn. Stat. § 590.01, subd. 1 (2000).  The defendant has the burden to show, by a fair preponderance of the evidence, facts warranting a new trial.  Gorman v. State, 619 N.W.2d 802, 805 (Minn. App. 2000), review denied (Minn. Feb. 21, 2001).  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) (citations omitted).  A postconviction court’s denial of a new trial is not to be disturbed absent an abuse of discretion and review is limited to whether there is sufficient evidence to sustain the court’s findings.  State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000).

In Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97, the Supreme Court held that the prosecution’s suppression of evidence requested by, and favorable to, the accused “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Furthermore, the prosecutor has an affirmative duty to disclose evidence that is favorable and material to the defense even if not requested.  Gorman, 619 N.W.2d at 806.  The Minnesota Rules of Criminal Procedure provide that the prosecutor “shall disclose to defense counsel any material or information within the prosecuting attorney’s possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.”  Minn. R. Crim. P. 9.01, subd. 1(6).  This obligation extends to members of the prosecution staff, as well as others participating in the investigation or evaluation of the case.  See Minn. R. Crim. P. 9.01, subd. 1(7) (requiring state to disclose “material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case”); Williams, 593 N.W.2d at 235 (holding prosecutor’s actual knowledge of evidence not dispositive for Brady purposes; individual prosecutors have duty to learn of any evidence favorable to the accused known to others acting on government’s behalf, including the police).

A Brady violation consists of three components: (1) the evidence at issue must be favorable to the accused, (2) it must have been suppressed, either willfully or inadvertently, by the state, and (3) prejudice must have resulted from the suppression.  Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999).  This court has already determined, upon prior appeal, that the first two elements were met in this case.  Gorman, 619 N.W.2d at 806.  Examination of the third element—prejudice—requires that courts consider two questions: (1) whether the evidence would have been admissible, and (2) whether there is a “reasonable probability” that it would have made a difference in the trial result.  Id.  This court has already determined that the evidence of Thomas’s murder conviction and recent release from prison would have been admissible.  Id. at 807.

Despite this court’s holding that evidence of the victim’s prior bad acts and character, as well as the fact that the victim had just been released from prison after conviction of murder, “undisputedly would have been admissible in some form at trial,” id., the district court, upon remand, came to a contrary conclusion.  This was error.  In concluding that, because Gorman did not know about the victim’s actual murder conviction or prior misconduct, he “would not be permitted to introduce evidence of the victim’s prior specific violent conduct to establish his own state of mind and apprehension,” the district court excluded important bases for the admissibility of this evidence and directly contradicted the law of this case.

Not only might evidence of the victim’s alias have led to admissible evidence of the victim’s reputation for violence, but, more importantly, the fact of Thomas’s murder convictions would have been admissible as well.  Even though the convictions and their underlying details could not possibly show Gorman’s “state of mind” because he did not know these facts, see State v. Bland, 337 N.W.2d 378, 382 (Minn. 1983) (to be admissible, a defendant must be aware of the victim’s prior violent conduct in order to establish the basis for his apprehension), as this court already held, the fact of the convictions would have bolstered the credibility of Gorman’s claim that he heard Thomas boasting that he had just been released from prison for a double murder, Gorman, 619 N.W.2d at 807, and would have made far less convincing the prosecutor’s statements that Gorman had fabricated that part of his story.

Furthermore, the district court also understated the admissibility of the undisclosed information when it concluded, “all of the undisclosed information, with the exception of the victim’s other name, constitute specific acts of conduct and are, therefore, inadmissible under Rule 405.”  Rule 405 pertains only to methods of proving character.  The undisclosed evidence would have been admissible to corroborate Gorman’s story and should have been considered by the jury.

As this court analyzed the previous postconviction appeal, the existence of admissible evidence does not warrant a new trial unless the suppressed, favorable, and likely admissible evidence is material.  Gorman, 619 N.W.2d at 807.  Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”  Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 1565 (1995)).  This is the narrow question on which the district court should have focused on remand.

There are various ways in which the suppression of evidence may well have improperly affected Gorman’s trial.  First, Gorman would have been able to use the victim’s murder conviction and resulting incarceration history to bolster his credibility regarding what the victim said to him and Gorman’s purported fear of him as the basis of his claim of self-defense.  Second, Gorman might have been able to use the victim’s alias and his police and conviction record to discover witnesses who might have testified to the victim’s general character.  Third, as this court has recognized, this evidence might have changed Gorman’s decision to testify.  Finally, and most importantly, had this information been disclosed, not only would prosecutors have been unable to argue that Gorman fabricated his testimony (that Thomas had threatened him and told Gorman not to “mess” with him because he had “done time for murder”), but the prosecutors would not have been able to use this statement, and their disbelief of it, to assail Gorman’s credibility generally.

The district court not only erred in re-examining the admissibility of the evidence, the court also made several analytical errors with regard to the potential impact of the suppressed information.  First, the district court found that “the jury heard much of the exculpatory evidence that [Gorman] seeks to offer in a new trial.”  According to the court, because both Gorman and his friend testified that Willie Thomas told them that he had just been released from prison, Gorman

was able to establish the basis for his apprehension of Willie Thomas in support of his self-defense claim, and thus the [s]tate’s failure to disclose evidence of the victim’s murder conviction does not undermine confidence in the outcome of the trial.

But this finding ignores the fact that the prosecutor used the absence of corroborating evidence of Thomas’s conviction to discredit the very testimony upon which the district court relied to form a conclusion.  In his closing argument, the prosecutor emphasized that Gorman’s self-defense claim was predicated on Gorman telling the truth and then repeatedly described Gorman’s version of events as “a fabrication,” “concocted,” and “ludicrous.”  He mocked the believability of much of Gorman’s testimony on many topics, from what Gorman’s business was, to what his intent was, to the actual series of events that led to Thomas’s death.  Among those facts, the prosecutor specifically attacked the testimony of Gorman and Gorman’s friend regarding Thomas’s supposed statement about just getting out of prison, especially the assertion that Gorman heard Thomas say that he had done 18 years in light of the fact that Thomas was only 35 years old, stating,

Willie Thomas, [Gorman] claims, said “I done time for murder.  I did 18 years for murder.”  Willie Thomas was 35 years old.  Now, I submit if he said it, it was to say, hey get me out of this.  I don’t want anything to do with this.  If he said that it was not an aggressive stance.  It was, don’t bother me.  But he never said those words “I did time for murder.”  He made that up, Gorman did, because he never told that to the sergeant the first time he talked to him.

The prosecutor’s critique of Gorman’s testimony was severe and, evidently, effective.  He used apparent inconsistencies in Gorman’s testimony to paint Gorman as a liar and even called him such directly.

The district court downplayed the importance of reputation evidence in this case because “having heard [Gorman’s] testimony,” the court found it likely “that the jury did not find his version of the facts to be credible regardless of whether the victim had a murder conviction.”  The court found that the basis for the jury rejecting Gorman’s testimony was that “the [s]tate presented overwhelming evidence that [Gorman] did not act in self-defense.”  We note, however, that the prosecution acknowledged the weakness of its case in offering Spreigl evidence, which was received.  State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284-85 (1967).  Contrary to the state’s assertion that the weakness in the state’s case was limited to identity, there was no “identity” issue at trial.  Gorman admitted punching Thomas.  The only question was whether the punch was in self-defense.

Indeed, without a doubt, the state’s case was far stronger after Gorman testified, but this calls attention to the fact that the district court did not even consider, as this court has already noted, that “this evidence might have changed [Gorman]’s decision to testify, thus limiting the prosecution’s ability to cross-examine him and impeach his credibility.”  Gorman, 619 N.W.2d at 807.  In doing so, the district court again discounted the potential impact this evidence might have had on the outcome.

Reversed and remanded for retrial.

 



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

[1] At least one of the reports documenting these encounters was prepared by an officer who investigated and testified in Gorman’s criminal case; this report specifically made reference to “Willie   THOMAS, AKA Willie DIXON.”  Other evidence discovered included a facsimile sent by the St. Paul Police Department to the medical examiner’s office several days after the victim’s death, in which the department identified the victim as “Dixon, Willie Henry,” alias “Thomas, Willie NMN,” and a memorandum from a Ramsey County probation officer to a Ramsey County district court judge less than two weeks after Thomas’s death, in which the officer notified the judge that Willie Dixon, whom the judge had just placed on probation, “died on October 17th as a result of a bar fight in St. Paul.”