This opinion will be unpublished and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
Hersey Lee Newson, petitioner,
State of Minnesota,
Filed September 17, 2002
Hennepin County District Court
File No. 98018382
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (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, Minneapolis, MN 55487 (for respondent)
Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge,* and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges an order denying his petition for postconviction relief, arguing that he is entitled to a new trial because a witness at his trial subsequently recanted his testimony. Because the district court did not abuse its discretion by denying a new trial, we affirm.
On January 11, 1998, appellant Hersey Lee Newson drove Michael Dickerson, Darrell Dickerson, and A.H. to south Minneapolis, where two of the men entered an apartment and demanded money and drugs. When the men were pushed out of the apartment, one of them fired a shotgun, hitting a child in the apartment. The men then fled with a watch, coins, and two pairs of tennis shoes to an agreed location where Newson was waiting in his car and drove them away.
On January 12, 1998, Newson drove a group of men, David Ellis, Darrell Dickerson, J.H., and A.H., to an apartment building in north Minneapolis. The group went to an apartment there, and Dickerson killed the man who answered the door. The men then called Newson, who picked them up in his car.
The charges against Newson stemming from the events of January 11 and 12 were joined for trial. Michael Dickerson testified against Newson with regard to the January 11 incident, and David Ellis testified against him regarding the January 12 incident. Both witnesses testified pursuant to plea agreements. Newson did not testify.
On October 2, 1998, a jury found that Newson aided and abetted (1) first-degree robbery, (2) first-degree burglary, (3) three counts of second-degree assault, and (4) second-degree unintentional murder. Newson appealed, arguing that there was prosecutorial misconduct and insufficient evidence, and this court affirmed. See State v. Newson, No. C6-99-548, 2000 WL 31788 (Minn. App. Jan. 18, 2000). On December 4, 2001, Newson petitioned for postconviction relief, arguing that he was entitled to a new trial because Ellis had recanted his testimony. The postconviction court denied the petition, and this appeal follows.
D E C I S I O N
The court will not reverse a postconviction court’s decision absent an abuse of discretion and will consider only whether sufficient evidence supports the postconviction court’s conclusion. Woodruff v. State, 608 N.W.2d 881, 884 (Minn. 2000). A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief. Minn. Stat. § 590.04, subd. 3 (2000); see also State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).
Newson argues that the postconviction court abused its discretion by denying a new trial because Ellis, who was a key witness for the prosecution with regard to Newson’s involvement in the January 12 shooting, subsequently recanted his testimony. Postconviction petitions requesting a new trial based on alleged recantations are viewed with disfavor unless there are extraordinary and unusual circumstances. See Flournoy v. State, 583 N.W.2d 564, 569 (Minn. 1998).
At Newson’s trial, Ellis’s testimony was, essentially, that Newson knew that the other men were going to commit a robbery when he drove them to the north Minneapolis apartment on January 12, 1998. Specifically, Ellis testified that (1) Newson drove the men around on the night of January 12, 1998; (2) the men went to a Target store and bought scarves to mask their faces; (3) Newson was party to the conversations in the car; (4) Ellis could “hear fine” in the car; (5) Dickerson told the group that “he had a gun and [was] going to go in there”; (6) everyone got out of the car except Newson; (7) Dickerson shot a man; (8) after the shooting, J.H. called Newson to pick up the group; and (9) when Dickerson told Newson that he had shot someone, Newson responded by asking whether the group “didn’t get no money.”
Ellis’s alleged recantation states, in part:
There were questions asked of me that I didn’t understand at the moment, and I was scared of answering wrong so I told the police what I think they wanted to hear. They ask me questions like did Mr. Newson hear a conversation going on inside his car with music up. From what I remember, Mr. Newson was not paying attention to the conversation at hand. Even to hear the conversation, and plus it was not involving him, you had to ask 3 or 4 times what a person was saying.
The three-pronged Larrison test is used in Minnesota to determine whether newly discovered evidence of allegedly falsified testimony requires a new trial. See Dukes v. State, 621 N.W.2d 246, 257-58 (Minn. 2001); State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn. 1982) (adopting the three-prong test described in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928)). This test provides that, in order for a petitioner to receive a new trial,
(1) the court must be reasonably well-satisfied that the trial testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial.
Ferguson v. State, 645 N.W.2d 437, 442 (Minn. 2002) (citation omitted).
The postconviction court concluded that in “[e]xaming the first prong of the Larrison test, the Court is not reasonably satisfied that the testimony given by David Ellis at trial was false.” The postconviction court did not, therefore, reach the balance of the test.
As the postconviction court noted, Ellis’s affidavit, offered as evidence of his recantation, does not specifically repudiate any of his trial testimony. Ellis’s affidavit states that he told the police what he thought “they wanted to hear,” but it does not address his trial testimony or compel the conclusion that what he told the police was untrue. But because Ellis’s trial testimony was consistent with his statement to the police, Ellis’s affidavit indirectly repudiates his testimony at trial that he could “hear fine” in the car on the way to the scene of the January 12 shooting. But the affidavit does not repudiate Ellis’s testimony regarding where the group went, what the group did, or what was said. Most importantly, the affidavit does not assert that Newson was unaware of the group’s criminal intent.
Even if we assume that Ellis’s trial testimony that he could “hear fine” in the car was false, we conclude that the jury would not have arrived at a different conclusion without that testimony. See id. at 444 (noting that second prong of Larrison test is whether the jury might have reached a different verdict without the false testimony). If Ellis had testified at trial consistently with his affidavit, he still would have testified that (1) Newson was present during the group’s conversations before the shooting, (2) Dickerson told the group that he had a gun and was “going in there,” and (3) when Newson picked the men up after the shooting, Dickerson told Newson that he had shot someone. A reasonable jury would conclude from these facts that Newson was driving the group’s getaway car. See State v. Patricelli, 357 N.W.2d 89, 91 (Minn. 1984) (finding evidence that defendant drove getaway car legally sufficient to establish that defendant aided and abetted aggravated robbery).
Again assuming that Ellis’s trial testimony that he could “hear fine” was false, Newson cannot claim that he was taken by surprise by the false testimony or that he did not know of the testimony’s falsity until after the trial. See Ferguson, 645 N.W.2d at 444 (noting that third prong of Larrison test is whether petitioner was taken by surprise by false testimony or did not know of testimony’s falsity until after trial). Newson had access to Ellis’s taped pretrial interview, and Ellis’s trial testimony was consistent with that taped interview.
Because Ellis’s alleged recantation addresses only how well Ellis could hear in the car on the night of January 12, because this fact is not essential to Newson’s conviction, and because Newson was aware of any false testimony before the trial and could not have been surprised by it, the postconviction court did not abuse its discretion by denying Newson a new trial.
* The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal. Due to Judge Foley’s untimely death before the filing of the opinion, Chief Judge Toussaint has been assigned as a substitute, and now joins the panel in issuing this decision.