This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Keith Wayne Simpson,

a/k/a Keith Wayne Jenkins,






State of Minnesota,




Filed September 2, 2003


Anderson, Judge


Hennepin County District Court

File No. 90083558


Keith Wayne Simpson, #161266, MCF – Stillwater, 970 Pickett Street North, Bayport, MN  55003 (pro se appellant)


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


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Parker, Judge.*


U N P U B L I S H E D  O P I N I O N




            This is an appeal from the denial of a postconviction petition challenging a 1991 conviction for second-degree murder.  Appellant argues that the district court erred at trial in answering two questions from the jury during deliberations following a hearing outside appellant’s presence and without obtaining a waiver from appellant of his right to be present.  This error was prejudicial, appellant claims, particularly given the district court’s admission that it erroneously instructed the jury on the intent-to-kill requirement.  We affirm.



            On September 13, 1990, appellant Keith Wayne Simpson, a/k/a Keith Wayne Jenkins, was involved in an altercation with Antwain Hollie.  Appellant shot twice at Hollie, who sought cover behind a nearby car.  When another individual hiding behind the car returned fire, appellant fled unharmed.  Hollie sustained a gunshot wound to the head and died the next day.[1]

            Appellant was charged with first-degree premeditated murder, second-degree intentional murder, and second-degree felony murder.  A jury found appellant guilty of second-degree intentional murder and second-degree felony murder.  Appellant’s convictions were affirmed on direct appeal to this court.  State v. Jenkins, C4-91-1115 (Minn. App. 1992) (“Jenkins I”).[2] 

            In 1993, appellant sought postconviction relief, arguing that his conviction should be reversed and that a new trial was required because he had ineffective assistance of counsel both at trial and during his direct appeal.  The postconviction court denied his petition.  This court affirmed and the supreme court denied review.  Jenkins v. State, C9-94-2064 (Minn. App. 1995), review denied (Minn. June 14, 1995) (“Jenkins II”).

            On January 9, 2003, appellant filed a second petition for postconviction relief, arguing that the court’s failure to give the jury Exhibit 13 during deliberations and the district court’s ex parte communications with the jury were prejudicial.  The postconviction court denied appellant’s petition.  This appeal followed.



            A petitioner seeking postconviction relief has the burden of proving by a “fair preponderance of the evidence” the facts alleged in the petition.   Minn. Stat. § 590.04, subd. 3 (2002).  We review “a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  We “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous” and the district court abused its discretion.  Id. (citation omitted).

            Although the postconviction court did not cite it directly, the district court applied the rule announced in State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), and denied appellant’s petition because appellant did not raise his claims at the time of his direct appeal or his first postconviction petition; the district court noted that each of his claims rely on portions of the transcript available to him at the time of those proceedings. 

            A postconviction court will not consider matters raised in an earlier direct appeal or known at the time of the direct appeal.  Id. at 252, 243 N.W.2d at 741.  The Knaffla rule applies if the petitioner knew or should have known about the issue at the time of the appeal.  Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).  The exceptions to the Knaffla rule involve:  (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that a petitioner did not “deliberately and inexcusably” fail to raise on direct appeal.  Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995).  But even if appellant’s claims are not within one of these exceptions and are procedurally barred, we may address the claims on their merits if the interests of justice dictate we do so.  Boitnott v. State, 631 N.W.2d 362, 369-70 (Minn. 2001). 

            Appellant’s first alleged error, that the district court should have submitted Exhibit 13 to the jury during their deliberations, is an issue that was available during the direct appeal.  Exhibit 13 was a copy of a statement that appellant gave to the police.  It was marked for identification and the state’s attorney and Sergeant James DeConcini, who took the statement, read it into evidence.  The state did not offer the exhibit into evidence.  Appellant offers no justification for not addressing this issue either in his direct appeal or his first postconviction petition.  Because the claim is not so novel that its legal basis was not reasonably available at the time of the direct appeal, Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999), and addressing the claim on its merits would not further the interests of justice, we conclude this issue is barred by application of Knaffla

            The second error appellant alleges involved the district court’s jury instruction on the second-degree murder charge.  The state argues that appellant raised this issue in his first postconviction petition and therefore this panel should not substantively address it again.

            The trial court gave the jury two instructions regarding the elements of second-degree murder.  In the first postconviction petition, appellant alleged that his counsel’s failure to move for a mistrial because of the district court’s inconsistent instructions constituted ineffective assistance of counsel.  On appeal from the postconviction court’s 1995 denial of appellant’s petition, we examined appellant’s argument as a denial of his Sixth Amendment rights as a result of ineffective assistance of counsel.  Jenkins II, 1995 WL 165079 at *1.  Addressing the ineffective assistance of counsel claim, we held that appellant failed to demonstrate that he was prejudiced by the inconsistent instructions.  Significantly, we stated:

The evidence did not support a theory of transferred intent and appellant’s theory of defense was that he had no gun and shot no one.  Thus, instructing the jury that the required intent includes intent to cause the death of a person other than the victim did not affect the outcome of the case and did not prejudice appellant.


Id. at *2.  The Jenkins II conclusion on this issue, although rendered in the context of an ineffective-assistance-of-counsel claim, analyzes the same alleged factual circumstances appellant relies on here.  But appellant now argues that his state and federal due-process rights were violated by the district court’s inconsistent jury instructions.  Although appellant is not arguing the same constitutional ground for relief, both the 1995 petition and the present petition are based on the trial court’s second-degree murder instruction. 

            The Jenkins II opinion did not discuss the due process ramifications of submitting two arguably inconsistent instructions to the jury.  But appellant does not address why we should now review this issue when he obviously knew of, and previously litigated, this same set of facts.  Because Knaffla bars not only previously litigated claims but also claims that were known, or should have been known, at the time of appellant’s direct appeal, we conclude that each of appellant’s alleged errors is barred.  See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding that once a defendant has had a direct appeal, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief”).[3]


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


[1]  Facts taken from Jenkins v. State, C9-94-2064, 1995 WL 165079 at *1 (Minn. App. 1995). 

[2]  Appellant argued (1) the evidence was insufficient to sustain his convictions, and (2) the district court erred in ordering his defense counsel not to comment on the prosecutor’s failure to call a witness.  State v. Jenkins, C4-91-1115, 1992 WL 67500 at *1 (Minn. App. 1992).

[3]  We note that although appellant’s arguments are procedurally barred, we would also affirm the postconviction court’s decision had we reached the merits.  The district court’s decision to remove the “or another person” phrase from the jury instruction was neither error nor prejudicial to appellant.  First, district courts have considerable discretion in choosing the language of jury instructions.  State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).  Second, the parenthetical language shown in jury-instruction guides is optional, to be used by the trial judge when the circumstances dictate.  Because the court determined that no evidence was submitted that appellant intended to kill another person, the district court’s decision to remove the “or another person” language from CRIMJIG 11.13 was within the court’s discretion.  Finally, appellant overlooks the fact that the district court’s decision concerning this matter was sought by his attorney and was beneficial to him, not the state.  The jury’s decision was limited to determining whether the facts sustained a guilty verdict under only the second instruction.  Appellant’s interests were well represented by counsel regarding this matter, the district court appropriately fashioned the model jury instruction to the facts of this case, and therefore no prejudicial error occurred.