may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
St. Louis County District Court
File No. K7-99-600083
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alan L. Mitchell, St. Louis County Attorney, Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
Considered and decided by Anderson, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an order denying his petition for postconviction relief, appellant argues that he was prejudiced by the state’s failure to disclose a quid pro quo agreement between the state and an accomplice regarding the accomplice’s testimony at appellant’s trial and that he was denied his right to fully cross-examine the accomplice at trial concerning the scope of the agreement. Because we conclude that the postconviction court’s finding that there was not a quid pro quo agreement between the state and the accomplice is not clearly erroneous, we affirm.
Following an incident in which Blake Ramsay was shot and stabbed, appellant Joel Ryan Bergren was charged with first-degree burglary, aggravated robbery, second-degree assault; receiving stolen property; and possession of firearm by an ineligible person in violation of Minn. Stat. §§ 609.582, subd. 1, .245, subd. 1, .222, subd. 2, .53, subd. 1, 624.713, subd. 1(b) (1998).
Nicholas Worden and a third person were also charged based on their involvement in the incident at Ramsay’s home. Worden signed a Rule-15 plea petition that stated that Worden agreed to plead guilty on a first-degree-burglary charge and receive an upward double durational sentencing departure and the prosecutor agreed to a downward dispositional departure that would place Worden in a local correctional facility for one year. David Johnson, the prosecutor in Worden’s case, negotiated the plea agreement with Worden’s attorney, John Lind. Worden pleaded guilty and was sentenced in accordance with the agreement. Worden’s sentence included probation, and he later had two probation-violation hearings, which occurred on September 12, 2001, and April 29, 2002.
After Worden pleaded guilty and was sentenced, he was subpoenaed to testify at appellant’s jury trial, which occurred on March 21-23, 2000. Appellant was convicted on all counts, except receiving stolen property, and sentenced to 162 months in prison. Appellant filed a direct appeal, and his conviction was affirmed. State v. Bergren, No. C9-00-1328 (Minn. App. Apr. 17, 2001). Appellant later filed a pro se petition for postconviction relief, which was summarily denied. On appeal from the denial of postconviction relief, this court affirmed in part and reversed in part and remanded for an evidentiary hearing to determine whether the state entered into a quid pro quo agreement with Worden, and if so, whether appellant was prejudiced and denied a fair trial by the state’s failure to disclose the agreement. Bergren v. State, No. C7-02-1042, 2003 WL 446813, at *2 (Minn. App. Feb. 25, 2003).
Following an evidentiary hearing on remand, the postconviction court found that the state did not enter into a quid pro quo agreement with Worden and Worden’s plea agreement was not conditioned on Worden testifying against appellant at appellant’s trial. The postconviction court denied appellant’s petition. This appeal followed.
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). In postconviction proceedings, the petitioner bears the burden of proving, by a fair preponderance of the evidence, facts that warrant relief. Minn. Stat. § 590.04, subd. 3 (2002). On appeal from a denial of postconviction relief, the reviewing court is limited to determining whether there is sufficient evidence to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). A postconviction court’s findings of fact are afforded great deference and will not be reversed unless they are clearly erroneous, and the postconviction court’s decision will not be disturbed unless the court abused its discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).
1. Quid Pro Quo Agreement
When the prosecutor makes a plea agreement with a witness and the witness’s credibility is an important issue, the prosecutor has a duty to disclose the agreement to the defendant. See State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996) (holding that a prosecutor has a duty to discover and disclose any plea bargain made with a witness by another prosecutor in the same office). In Brady v. Maryland, the United States Supreme Court held that “suppression by the prosecution of evidence favorable to an 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.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963). Accord State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000). To demonstrate a Brady violation, a defendant must show that (1) the state suppressed evidence; (2) the evidence was favorable to the defense; and (3) the suppression prejudiced the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999). Accord Woodruff v. State, 608 N.W.2d 881, 886 (Minn. 2000).
Citing the statements of John DeSanto and John Lind at Worden’s September 12, 2001, probation-violation hearing, appellant argues that the postconviction court’s finding that the state did not enter into a quid pro quo agreement with Worden is clearly erroneous because “the record is more consistent with a determination that [Worden’s] plea agreement was in fact premised on the state’s expectation that [Worden] would testify against appellant consistent with his admissions at the plea hearing.” Therefore, appellant contends, the failure to allow him to thoroughly cross-examine Worden at trial was prejudicial and denied him a fair trial and he should receive a new trial.
At Worden’s September 12, 2001, probation-violation hearing, DeSanto stated:
Indeed, [Worden] did testify against the other two people and apparently Mr. Johnson was the prosecutor. That was because – that’s why [Worden] got the big break. [Worden] got a stayed sentence of what should have sent him to prison for a violent crime and a premeditated part in it, not just a happenstance part in it . . .
John Lind, Worden’s attorney who negotiated the plea agreement, stated at Worden’s September 12, 2001, probation-violation hearing:
Mr. DeSanto is correct. Mr. Worden did get a break in the other file. However, I would say part of the reason he got the break was because they wanted his testimony at the trials of the other individuals and that’s what we negotiated around, that they wanted the guy with the nine millimeter pistol who had some severe criminal history problems, if I remember correctly. It was him that had the gun. It was him that shot the person. Mr. Worden albeit was there, was with him and, actually, I believe stabbed that person with a pencil or something as he came flying out of the door after this other guy had shot him. He was not the shooter. They gave him the deal because of the testimony. He agreed to an upward durational departure that was not the sentence he would normally have got if he would have just gone to trial and been convicted after an argument for an upward departure that the Court would have granted then. But I just wanted the Court to know the framework of that whole situation. They did convict the other individuals and they didn’t send him to prison in part because of Mr. Worden’s cooperation.
At the postconviction evidentiary hearing, DeSanto testified that there was no secret quid pro quo agreement for Worden to testify at appellant’s trial and Lind also testified that there was no quid pro quo agreement for Worden’s testimony. Appellant concedes that when there are two irreconcilable accounts of circumstances, the postconviction court is charged with making credibility determinations, but appellant argues that the postconviction court “blindly credited Lind and DeSanto’s postconviction evidentiary hearing testimony as more trustworthy than the inconsistent statements they made at Worden’s probation violation hearings.” Appellant contends that the probation-violation-hearing testimony is more credible than the postconviction-hearing testimony because the probation-violation-hearing testimony is corroborated by the fact that Ramsay’s trial testimony identifying appellant as the shooter was unreliable, and the state needed Worden’s testimony to implicate appellant.
But the fact that the state needed Worden to testify at appellant’s trial is only one piece of the evidence presented at the evidentiary hearing that was held to determine whether the state entered into a quid pro quo agreement with Worden. There was other evidence that indicated that there was no agreement.
When Lind was questioned about Worden’s plea agreement at the postconviction hearing, he explained,
[The state] chose to give him a plea deal where he didn’t go to prison but it didn’t involve any negotiations with me. I didn’t even have any negotiations with Mr. DeSanto. All the discussions in this case I had were with Mr. Johnson. I never -- Mr. DeSanto showed up for the plea and showed up for the probation violations, but Mr. Johnson and I are the ones that talked about what the plea would be and that’s, I think, fairly spelled out.
When asked why Worden got a break on his sentence, Lind responded,
Well, if you’re asking me my opinion, as a person who deals with this all the time, prosecutors take their pick at various defendants all the time. You know, I’ve had homicide cases where one client is more disliked than the other client or one client is more valuable than the other client and they pick and choose, which they do it all the time.
Lind also testified, “I think [Worden] told the prosecution that he’d be willing to [testify], but we did not make it a part of the plea agreement as a quid pro quo.”
David Johnson, the prosecutor who negotiated Worden’s plea agreement, testified that (1) the plea agreement did not include a condition that Worden testify against appellant; (2) the Rule-15 plea petition was a fair and full statement of the plea agreement; (3) there was not any other off-the-record agreement with Worden; and (4) there was not any type of quid pro quo agreement that would give Worden a deal if he cooperated in prosecuting appellant. Johnson also testified that he fully intended to call Worden as a witness at appellant’s trial because Worden was a witness to the incident and that it was likely that Worden knew that he would be called.
Paul Gustad, Director of Victim Services in the St. Louis County Attorney’s Office, testified at the postconviction hearing that he accompanied David Johnson to meet with Worden at a local correctional facility before appellant’s trial. Gustad testified that trial preparation was the reason for the meeting, and he did not recall any discussion between Johnson and Worden about an off-the-table agreement that required Worden to testify. 
Finally, Worden pleaded guilty and was sentenced before appellant’s trial occurred. DeSanto testified at the postconviction hearing that over the course of his career as a prosecutor, he had negotiated plea agreements with co-defendants where, as a condition of the agreement, a co-defendant agreed to testify against another defendant, but with such an agreement, it is the practice that the co-defendant testifies before the co-defendant is sentenced because then there is leverage to ensure that the co-defendant testifies. Lind testified that if Worden had not shown up to testify at appellant’s trial, the state
wouldn’t have been able to pull out of the deal because the deal was done and that happens all the time. I get clients that plead guilty and then they subpoena ‘em [sic] in later and if they don’t show, maybe they get a contempt order or something like that, but they clearly don’t get the plea withdrawn. It was not that kind of structured deal.
After reviewing all of the evidence presented at the postconviction evidentiary hearing, we conclude that the postconviction court’s finding that the state did not enter into a quid pro quo agreement with Worden and Worden’s plea agreement was not conditioned on Worden testifying against appellant at appellant’s trial is not clearly erroneous. Appellant did not meet his burden of proving by a fair preponderance of the evidence that there was any quid pro quo agreement. Although the statements that DeSanto and Lind made at appellant’s probation-violation hearing suggest that appellant obtained a favorable plea agreement because he agreed to testify at appellant’s trial, both Johnson and Lind, the attorneys who negotiated the plea agreement, testified that the agreement did not include a condition that Worden testify at appellant’s trial. In addition, Worden’s Rule-15 plea petition does not describe the plea agreement as containing Worden’s agreement to testify, and the plea agreement was not described at Worden’s plea hearing as containing this condition. Finally, Worden was sentenced before appellant went to trial, which would likely not have happened if Worden’s plea agreement included an agreement to testify at appellant’s trial. The evidence proves that when the plea negotiations occurred, Johnson, Lind, and Worden were aware that Worden’s testimony was needed at appellant’s trial and the plea negotiations occurred in this context. But the evidence does not prove by a fair preponderance that as a condition of the plea agreement, Worden agreed to testify at appellant’s trial.
Because there was no agreement between Worden and the state regarding Worden’s testimony at appellant’s trial, the state did not suppress evidence favorable to appellant, and the outcome of appellant’s trial was not prejudiced by the state’s suppression of evidence.
2. Fair Trial
Citing DuBose v. Lefevre, 619 F.2d 973 (2d Cir. 1980), andUnited States v. Butler, 567 F.2d 885 (9th Cir. 1978), appellant argues that even if there was no quid pro quo agreement, the state was still required to disclose that it expected Worden to testify and that the failure to do so violated appellant’s right under the Confrontation Clause to fully cross-examine Worden about any contingencies in the plea agreement.
“[T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 1110 (1974). In DuBose, the prosecutor testified that she had not explicitly agreed to accept a misdemeanor plea rather than a felony plea or to recommend a sentence of time served in exchange for a witness’s testimony, but had agreed only to “do the right thing” for the witness. DuBose, 619 F.2d at 976-77. But the record revealed that the prosecutor and the witness had discussed reducing the charge from a felony to a misdemeanor if the witness testified. Id. at 977. This information was not disclosed to the jury, which was led to believe that no deal whatsoever was made between the state and the witness. Id. at 978. The court concluded that the “fact that the promise may not have taken a specific form did not allow the prosecution to avoid disclosing to the jury the fair import of its understanding with the witness.” Id. at 979. The court also concluded that the state’s failure to disclose the information deprived appellant of fundamental due process and violated the Fourteenth Amendment. Id.
In Butler, the appellants learned after trial that the government’s key witness had been told that dismissal of charges pending against him was a strong possibility if he testified favorably to the prosecution and against appellants. Butler, 567 F.2d at 886, 887. The government consistently denied making a promise to the witness. Id. at 887. But after the witness testified favorably for the state, federal and state charges against the witness were dismissed, and the witness received probation in another state case. Id. at 887, n.1. The circuit court stated that “the district court clearly found that…[t]he prosecutor and the [government] agents promised substantial benefits reasonably calculated to be understood as probable dismissal or, failing that, certain misdemeanor disposition” in exchange for testifying. Id. at 889.
Both of these cases involve more than a general expectation that the witness would testify at a trial. There were at least implicit agreements that the witnesses would receive some benefit if they testified for the prosecution. In the present case, the postconviction court found, “The State did not enter into a quid pro quo agreement with Nicholas Worden. Nicholas Worden’s plea agreement was not conditioned on him testifying against [appellant] at trial.” This finding does not just indicate that there was not an explicit agreement; it indicates that there was no agreement.
Because there was no agreement that Worden would receive some benefit if he testified at appellant’s trial, not disclosing the general expectation that Worden would testify did not deny appellant his right to fully cross-examine Worden about contingencies in the agreement. Furthermore, at trial, appellant questioned Worden about the plea agreement and about Worden’s understanding that he might be subpoenaed to testify at appellant’s trial.
3. Pro Se Arguments
In a pro se supplemental brief, appellant argues that Worden’s treatment at his September 12, 2001, probation-violation hearing demonstrates that Worden got a deal in exchange for his testimony against appellant. Appellant contends that the district court judge that presided over the probation-violation hearing was not the original sentencing judge; instead, the chief judge of the judicial district assigned himself to the probation-violation hearing. Appellant claims that he became suspicious about the chief judge’s assignment decision because the chief judge is Blake Ramsay’s uncle. Appellant argues that it is apparent that the deal that Worden got in exchange for his testimony carried over to his probation-violation hearing because Worden’s probation was continued even though Worden committed several felonies while already on probation for an extremely violent offense and no judge in this state would continue probation under these circumstances unless the probationer had testified against the person accused of assaulting the judge’s nephew.
Appellant’s claim that the chief judge’s family relationship to Ramsay is evidence that the state and Worden had an agreement that Worden would testify at appellant’s trial was not presented to the postconviction court. This court generally will not decide issues that were not raised in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But even if we consider appellant’s claim because we find it to be just an additional argument in support of his broader claim that there was a quid pro quo agreement between Worden and the state, we find the claim unconvincing.
Worden pleaded guilty in November 1999. If Worden’s plea agreement included a quid pro quo agreement regarding Worden testifying at appellant’s trial, Worden and the state needed to reach the agreement before Worden pleaded guilty. Worden testified at appellant’s trial in March 2000. On September 12, 2001, 18 months after Worden testified at appellant’s trial, Worden’s first probation-violation hearing was held, and Worden’s probation was continued.
Appellant now argues that the favorable treatment that Worden received 18 months after he testified at appellant’s trial demonstrates that Worden and the state entered into an agreement before appellant’s trial. And appellant’s argument implies that Worden’s agreement with the state somehow addressed the treatment that Worden would receive more than a year and a half after appellant’s trial following a hearing on a probation violation that had not yet occurred when the agreement was made and that the chief judge of the judicial district somehow became aware of the agreement and acted in accordance with it. This argument is far too speculative to change our decision that the postconviction court’s finding that the state did not enter into a quid pro quo agreement with Worden and Worden’s plea agreement was not conditioned on Worden testifying against appellant at appellant’s trial is not clearly erroneous.
 David M. Johnson was the prosecutor who charged appellant and Worden and who negotiated Worden’s plea agreement. DeSanto substituted for Johnson at Worden’s plea hearing. DeSanto and Johnson discussed the plea agreement before the plea hearing.
 Worden submitted an affidavit, dated March 10, 2003, stating that there was an oral plea agreement that he was ordered not to discuss or mention. The district court found that the affidavit was not credible, particularly in light of the testimony of Johnson, Gustad, DeSanto, and Lind. The affidavit was entered into evidence at the postconviction hearing, but Worden did not testify.