This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).


Ramon (NMN) Vera, petitioner,


State of Minnesota,

Filed October 12, 1999
Anderson, Judge

Hennepin County District Court
File No. 96051223

Robert D. Miller, Robert D. Miller & Associates, 210 North Second Street, Suite 101, Minneapolis, MN 55401 (for appellant)

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant seeks review of the district court order denying postconviction relief on the grounds that (1) the state's failure to disclose the prior convictions of Crutcher and the circumstances surrounding Aron's early release violated applicable rules, thereby warranting a new trial; or (2) appellant was denied his Sixth Amendment right to effective counsel because his attorney failed to procure criminal histories of the state's witnesses.

The district court denied a hearing on the ineffective assistance of counsel claim and found Crutcher's dishonored check and misdemeanor theft convictions inadmissible because the misdemeanors lacked the necessary element of deceit required under Minn. R. Crim. P. 608(a)(1). Additionally, the district court found the allegation that the prosecution secured Aron's testimony in return for an early release was without support. We affirm.


Shortly before midnight on June 14, 1996, Frankie Browning was fatally shot in front of appellant Ramon Vera's residence with a .44 caliber pistol. Police immediately canvassed the area and questioned a neighbor, who stated, just prior to the shooting, he had seen two men outside arguing, one of whom was a short Indian or Hispanic man wearing dark shorts. The neighbor refused to cooperate further with police and did not testify at trial. Police lacked significant leads until Purity Crutcher telephoned the police three days after the shooting, stating that she had information on the shooting but had been afraid to come forward. Crutcher and her boyfriend, Christopher Aron, had been across the street from Vera's residence at the White Castle restaurant drive-through just before the shooting and had noticed two men arguing. Crutcher initially withheld the fact that her boyfriend, Aron, was at the scene with her because he had an outstanding warrant out for his arrest.

At trial, Crutcher and Aron both identified Vera as the man they saw arguing with Browning on the night of the shooting. Crutcher described the assailant as an older Indian man, about 5'6", weighing 197 to 205 pounds, with a long pony tail, beard and mustache, wearing a red shirt and black shorts. Racine Moss, Vera's girlfriend, later testified that he had been wearing a red shirt and black shorts earlier that day. The jury subsequently convicted Vera of second-degree murder.

Following the trial, it was discovered that Crutcher had a criminal record that included convictions for misdemeanor theft and a dishonored check. It was further discovered that Aron, who was serving time for third-degree assault, had secured an early release from jail with the prosecutor's assistance.

Appellant claims that the prosecution's failure to disclose Crutcher's prior criminal history to the defense amounts to newly discovered evidence that could have been used to impeach her testimony. Additionally, appellant argues that Aron's early release was obtained in exchange for his testimony, and that such an exchange should have been disclosed to the jury.


Our review of a postconviction court's proceeding is limited to a determination of whether there is sufficient evidence to sustain the postconviction court's findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). We will not disturb a postconviction court's decision absent an abuse of discretion. Id.

I. Newly Discovered Evidence

"[T]o obtain a new trial on the ground of newly discovered evidence, the defendant must establish (1) that the evidence was not known to him or his counsel at the time of trial, (2) that his failure to learn of it before trial was not due to lack of diligence, (3) that the evidence is material (or, as we have sometimes said, is not impeaching, cumulative or doubtful), and (4) that the evidence will probably produce either an acquittal at retrial or a result more favorable to the petitioner."

Race v. State, 417 N.W.2d 264, 266 (Minn. 1987).

Appellant argues that the newly discovered evidence was not known to him or his counsel at the time of trial because the prosecution suppressed the criminal records of Crutcher and the circumstances surrounding Aron's early release. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963) (mandating disclosure of all material evidence before trial); see also Brewer v. Marshall, 941 F.Supp. 216, 230 (D. Mass. 1996) (impeachment evidence is Brady material), aff'd 119 F.3d 993 (1st Cir. 1997). In Brady v. Maryland, the United States Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request 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." Id. at 87, 83 S. Ct. at 1196-97. In Minnesota, the Brady rule is embodied in Minn. R. Crim. P. 9.01, subd. 1(6). See State v. Hathaway, 379 N.W.2d 498, 506-07 (Minn. 1985). Under the rule, the prosecutor must disclose evidence "that tends to negate or reduce the guilt of the accused as to the offense charged" in accordance with the due process demands expounded in Brady. Minn. R. Crim. P. 9.01, subd. 1(6).

While Brady facilitates the fair exchange of evidence between the prosecution and the defense, it does not obligate the prosecution to perform investigative work for the defense. Evidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence." United States v. LeRoy, 687 F.2d 610, 618 (2nd Cir. 1982).

Crutcher's misdemeanor conviction for theft and worthless check occurred on August 27, 1996. Appellant certainly could have obtained Crutcher's criminal history prior to trial. Furthermore, the state contends that it neither had possession of the records nor withheld them from counsel during discovery. Under Brady and Minn. R. Crim. P. 9.01, there was no affirmative duty on the part of the prosecutor to turn over records that he himself did not possess. See State v. Jackson, 346 N.W.2d 634, 636-38 (Minn. 1984) (finding that a prosecutor does not have to take affirmative steps to acquire the prior records of witnesses when those records are not already on hand). Thus, in an absence of a specific defense request for the criminal records or a showing that the prosecution actively withheld the information, there is no evidence that the postconviction court abused its discretion in denying relief on this ground.

Nevertheless, even if the court were to assume that the state did in fact have possession of the records, the prosecution's failure to disclose them did not violate due process if the records were immaterial. Brady, 373 U.S. at 87, 83 S. Ct. at 1197; see also Race, 417 N.W.2d at 266 (to obtain a new trial on the ground of newly discovered evidence the defendant must establish that the evidence is material).

Under the Minnesota Rules of Evidence appellant would have difficulty introducing the past convictions of Crutcher for impeachment purposes. Minn. R. Evid. 608(b) permits the use of specific instances of conduct if probative of untruthfulness, while rule 609(a)(2) permits impeachment for crimes involving dishonesty or false statement. If Crutcher's misdemeanors for worthless check and theft lack elements of dishonesty or false statement, then they are inadmissible for impeachment purposes.

"`The difficulty in determining whether a particular crime falls under Minn. R. Evid. 609(a)(2) lies not in just the type of crime committed, but also in the manner in which the crime is carried out.'" State v. Head, 561 N.W.2d 182, 187 (Minn. App. 1997) (quoting State v. Ross, 491 N.W.2d 658, 659 (Minn. 1992)). See, e.g., State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982) (shoplifting is not a conviction involving dishonesty or false statement within the meaning of Minn. R. Evid. 609(a)(2)); Ross, 491 N.W.2d at 660 (finding that burglary does not involve dishonesty or false statement). The details surrounding Crutcher's theft conviction were not revealed. The record simply states that Crutcher, while working at a Burger King, suddenly left during lunch hour with $490.01 from her cash register. The lower court, based upon the report, found that the criminal act lacked "calculated deceit." The court surmised that Crutcher, on impulse, simply took the money from the cash register and left. There is nothing in the record to indicate that the district court reached its conclusion in error.

But this court need not struggle with the question of admissibility if the impeachment evidence would not have materially altered the outcome of the trial. The standard of materiality under Brady is whether a "reasonable probability" of a different result is shown when nondisclosure puts the case in a different light so as to undermine confidence in the jury's verdict. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct 1555, 1566 (1995) (quotation omitted); see also Race, 417 N.W.2d at 266 (to obtain a new trial, the newly discovered evidence must produce a probability of an acquittal).

Here, the argument that the jury might have changed its verdict if it knew about Crutcher's criminal record is tempered by the fact that Crutcher was already impeached for conduct involving deceit. Evidence was introduced as to propensity for dishonesty when it was shown at trial that Crutcher had lied to the police in an attempt to protect Aron. If the jury were willing to believe Crutcher, knowing that she initially lied to the police, it is highly improbable that the jury would have changed its verdict knowing about Crutcher's theft and worthless check convictions. When suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness, whose credibility has already been shown to be questionable, a new trial is generally not required. See, e.g., United States v. Rosner, 516 F.2d 269, 273-74 (2nd Cir. 1975) (additional impeachment information would not have "induced a reasonable doubt in the minds of enough jurors to avoid a conviction"); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766 (1972) (new trial not required where newly discovered evidence is "possibly useful to the defense but not likely to have changed the verdict") (quotation omitted).

Furthermore, Crutcher's and Aron's testimony was corroborated by other witnesses and supported by the evidence. Aron and Crutcher described the appellant as an older Indian man wearing black shorts and a red shirt. Both appellant's girlfriend, Racine Moss, and a neighbor had also identified appellant as wearing the same outfit. Furthermore, guns were found at the scene including a holster which police identified as one that could have held the murder weapon. See Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995) (stating witness's testimony essentially unimpeachable, despite withheld information, because of strong corroborating evidence). Given the doubtful character of the newly discovered evidence and the degree to which Crutcher's credibility had already been damaged, it is unlikely that the jury would have been persuaded to find differently.

The last piece of newly discovered evidence involves the circumstances surrounding Aron's early release. The prosecution admits that, following appellant's conviction, a letter was sent to Aron's sentencing judge supporting an early release but contends that it was not in exchange for Aron's testimony. The prosecutor testified, during the postconviction hearing, that Aron had inquired about receiving "a deal" for his testimony, but that he told him in no uncertain terms that the state would not offer Aron any incentive to testify. Aron, when questioned, testified that he received no promise of favorable treatment in return for his testimony.

Furthermore, it is speculation to assume that Aron would receive the reduction on the basis of the letter alone. The reduced sentence was to be awarded at the sentencing judge's discretion and the prosecutor had no control over the result. Thus, there is no evidence that Aron was coerced or improperly encouraged to testify by the prosecution. Appellant's argument lacks a sufficient basis upon which to grant a new trial.

II. Ineffective Assistance of Counsel

Finally, appellant claims that his defense counsel's failure to procure Crutcher's criminal record rendered his defense ineffective thus denying him his Sixth Amendment right to effective counsel.

When reviewing an ineffective assistance of counsel claim, Minnesota courts apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Scruggs v. State, 484 N.W.2d at 25. This standard requires the petitioner to demonstrate that (1) his counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, absent his counsel's errors, the outcome of the proceedings would have been different. King v. State 562 N.W.2d 791, 795 (Minn. 1997).

While there is no question that the better practice is for defense counsel to secure the criminal history records of all witnesses, appellant has failed to prove that the records would have produced a different outcome at trial. See Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997). Appellant's claim of ineffective counsel is without merit.