State of Minnesota,
S Y L L A B U S
postconviction court abused its discretion by failing to hold an evidentiary
hearing when the petitioner raised genuine issues of material fact in his
petition for relief.
Reversed and remanded for an
Heard, considered, and decided by the
court en banc.
O P I N I O N
ANDERSON, Paul H., Justice.
jury found Juvon De Wilson guilty of second-degree intentional murder for the
death of Dante Jemison. After
discovering evidence of inaccurate or possibly false testimony and other new
petitioned for postconviction relief in the form of a new trial or an
evidentiary hearing. The postconviction
court denied Wilson’s
petition without granting a hearing. The
Minnesota Court of Appeals affirmed. We
reverse and remand to the postconviction court for an evidentiary hearing.
Juvon De Wilson was arrested and tried in connection with the shooting death of
Dante Jemison. No eyewitness to the
shooting testified at Wilson’s
trial, but three witnesses testified to the events leading up to the shooting,
saying that they saw Jemison with a man who was holding a gun. One witness testified that, after several
attempts at reviewing photo lineups, he identified Wilson as the man with the gun. The same witness also identified
Wilson at trial as the
man he saw with the gun. Another witness
testified that she knew the man with the gun and had known him for about eight
years. She also testified that this man
was known as “E” and that “E” was holding a bottle just before the
shooting. She identified Wilson in a photo lineup, but at trial she did not
as the man with the gun. The last witness to the events before the
shooting could not identify the man holding the gun.
Wallace, a jailhouse informant, also testified at trial. Wallace testified that
Wilson told Wallace that he had killed
Jemison. Wallace’s trial testimony was
consistent with a statement he had given to the police. But before trial, Wallace recanted that
statement, stating in writing that he had learned the facts of the case by
reading Wilson’s file and that Wilson had not confessed to him. At trial, Wallace reverted to his initial
statement, testifying that Wilson
wrote most of the recantation and that Wallace did not read it, even though Wallace
wrote the first line and a half. In
exchange for his testimony, Wallace received a stayed sentence and probation
for several prior convictions and pending charges.
forensic scientist who is an officer with the Minneapolis Police Department
testified that he used a microscope and a cautery probe to analyze a jacket
worn by Wilson. The officer explained that he used the
cautery probe to determine whether specks visible on the jacket when using a
microscope were gunpowder. The cautery
probe caused the specks to vaporize, destroying them. The officer testified that he was not aware
of anything other than gunpowder that would react that way to such a test and
said that he was 99.9 percent sure that the specks were gunpowder. Apparently, the officer did not photograph
the specks or document their size, shape, or color. Wilson did not
learn of the results from the officer’s test or that the officer would testify
until the day of jury selection, but Wilson
did not request a continuance to retain his own expert, nor did he call an
expert to rebut the officer’s testimony.
The jury found Wilson guilty of second-degree intentional
murder. Approximately one month later,
Daniel Mack contacted Wilson’s defense counsel
to inform counsel that he had witnessed the Jemison shooting and that Wilson was not the
shooter. Mack also identified two
different men known by the nickname “E,” neither of whom, according to Mack, is
Wilson. Mack stated that he had not been interviewed
by the police about what he saw the night of the shooting. The record reflects that at the time of
trial, there was a warrant out for Mack’s arrest and that the police were
unable to locate him. Mack also directed
defense counsel to two other eyewitnesses to the Jemison shooting, Patrick
Slaughter and Eric Owens. Slaughter and
Owens also told defense counsel that Wilson
was not the shooter.
Based on the newly-discovered
eyewitness evidence, Wilson
moved for a new trial and petitioned for postconviction relief. The district court denied the motion for a
new trial as untimely. Wilson then timely filed a direct appeal, but
sought a stay of the appeal and a remand to the district court for postconviction
proceedings. The court of appeals
direct appeal and remanded for postconviction proceedings.
After the remand, Wilson’s counsel retained an expert to examine
a fingerprint on a bottle that the police found at the shooting scene. The expert ascertained that the fingerprint
did not match Wilson’s
fingerprints. The defense also retained a forensic
scientist, Richard Ernest, who called into question the forensic testimony of
police officer. Ernest stated in an
affidavit that (1) no FBI protocols involve using a cautery probe to test for
the presence of gunpowder and modern crime labs do not commonly use that test;
(2) forensic scientists avoid tests that destroy evidence; (3) forensic
scientists examine particles for their size, shape, and color, and photograph
them; and (4) the particles that the officer described could have been any
number of things other than gunpowder.
In the meantime, Wallace recanted his trial testimony, again claiming
that Wilson had not confessed to him and that he
had learned of the details of Wilson’s
case by reading the file.
Wilson amended his petition for postconviction
relief in order to accommodate the foregoing evidence. The amended petition contained a request for
either a new trial or an evidentiary hearing.
Without granting a hearing, the postconviction court denied Wilson’s amended petition
for postconviction relief. The court of
appeals, in an unpublished opinion, affirmed the postconviction court. Wilson v. State, No. A05-677, 2006 WL 997738,
at *5 (Minn.
App. Apr. 18, 2006). Wilson then filed a petition for review with
our court, which we granted.
Wilson argues that he is entitled to a new
trial based on evidence of false testimony and newly-discovered evidence. He also argues that, at a minimum, he is
entitled to a postconviction evidentiary hearing concerning the evidence of
false testimony and newly-discovered evidence.
We first address whether Wilson
has provided sufficient evidence to entitle him to a new trial.
We review decisions of a
postconviction court for an abuse of discretion. Opsahl
v. State (Opsahl II), 677 N.W.2d
414, 422 (Minn.
2004). A petitioner has the burden of
establishing, by a preponderance of the evidence, facts that would warrant
relief. Ferguson v. State, 645 N.W.2d 437, 442 (Minn. 2002).
We apply a three-prong test, known as the Larrison test, to claims of newly-discovered evidence of falsified
testimony. Sutherlin v. State, 574 N.W.2d 428, 433 (Minn.
1998); State v. Caldwell,
322 N.W.2d 574, 584-85 (Minn. 1982) (adopting by
implication the Larrison test in Minnesota). This test provides that three things must be
true before a new trial will be granted: (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.
N.W.2d at 442.
We have distinguished the Larrison test from the four-prong Rainer test for newly-discovered
evidence. See Dukes v. State, 621 N.W.2d 246, 257-58 (Minn. 2001).
To receive a new trial under the Rainer
test, the petitioner must prove that: (1) the evidence was not known to the
petitioner or counsel at the time of trial; (2) the evidence could not have
been discovered through due diligence before trial; (3) the evidence is not
cumulative, impeaching, or doubtful; and (4) the evidence probably would
produce an acquittal or a more favorable result. Sutherlin,
574 N.W.2d at 434; Rainer v. State,
566 N.W.2d 692, 695 (Minn.
We conclude that Wilson’s petition for postconviction relief
did not meet the standards required by the Larrison
test for newly-discovered evidence of false testimony or the Rainer test for newly-discovered
evidence, generally. Accordingly, we
conclude that Wilson
is not entitled to a new trial. But we
acknowledge that our conclusion could result in part from Wilson’s inability to present evidence at a
hearing before the postconviction court.
Therefore, we next address the question of whether Wilson alleged sufficient facts to warrant an
A petitioner’s burden of proof for a
postconviction evidentiary hearing is lower than his burden for a new
trial. Opsahl II, 677 N.W.2d at 423 (citing Ferguson,
645 N.W.2d at 446). Minnesota Statutes §
590.04, subd. 1 (2004), mandates that the postconviction court hold an
evidentiary hearing and make findings of fact and conclusions of law “[u]nless
the petition and the files and records of the proceedings conclusively show
that the petitioner is entitled to no relief.”
We have interpreted the statute “to require the petitioner to allege
facts that, if proven, would entitle him to the requested relief.” Opsahl
II, 677 N.W.2d at 423 (citing Ferguson, 645
N.W.2d at 446). The allegations must
have factual support and the postconviction court must grant the evidentiary
hearing whenever material facts are in dispute.
Id. at 423 (citations omitted). We have stated that if the court has any
doubts about whether to conduct a postconviction hearing, the doubts should be
resolved in favor of granting the hearing.
(citing King v. State, 649 N.W.2d
149, 156 (Minn.
2002)). Finally, we have stated that a
postconviction hearing is particularly important when the petition “attacks” important
evidence in a circumstantial case. Id. (citing
645 N.W.2d at 446).
The postconviction court determined
that Wallace’s recantation was untrustworthy, and stated that it was not
reasonably well-satisfied that Wallace’s trial testimony was false. We have stated that a new trial based on
witness recantations is disfavored. Opsahl v. State (Opsahl III), 710 N.W.2d 776, 782 (Minn. 2006).
But we have also cautioned postconviction courts not to determine that a
recantation is unreliable without first taking the opportunity to evaluate the
credibility of the witness at an evidentiary hearing. See Opsahl
II, 677 N.W.2d at 423-24. In this
case, an evidentiary hearing is appropriate because it is difficult if not
impossible to test Wallace’s conflicting statements without examining Wallace
under oath. Without such examination,
the postconviction court cannot make a judgment about which story is true and
which is false.
We also conclude that the existence
of three newly-discovered witnesses emphasizes the need for a credibility
determination at a postconviction hearing.
The three new witnesses have similar accounts of what happened the night
of the shooting. They each swear that
they witnessed the shooting and that Wilson
was not the shooter. The postconviction
court expressed concern about the veracity of Mack’s statements and the lack of
detail in the accounts of Slaughter and Owens.
But a postconviction hearing is exactly the forum in which the court can
examine and compare each witness’s account for truthfulness and elicit details
about each witness’s knowledge. A
postconviction hearing would also give the court an opportunity to clarify to
what extent each witness’s name appeared in the police reports, in order to
determine whether the evidence provided by the witness could have been procured
before trial with due diligence.
Further, we conclude that
Wilson has raised
important issues of material fact by submitting Ernest’s affidavit. The affidavit raises serious questions about
the scientific methods used by the police department and the opinion testimony the
police officer gave based on his use of these methods. The officer intimated that it was standard
protocol to use the cautery probe to determine if particles are gunpowder,
stating, “[o]nce you find them, the only way to tell if they are really
gunpowder is they usually touch them with a cautery probe.” Throughout his testimony, the officer used
the word “we” and “they” to refer to all of the tests he performed. While it is unclear to whom he was referring,
at the very least, he was referring to himself and other forensic
scientists. Ernest’s sworn statement, if
true, indicates that the officer’s testimony may have been inaccurate or even
unfounded because, unlike the officer, Ernest swore that there is no FBI
protocol to use the cautery probe, and that the cautery probe test is not commonly
used by modern crime labs.
Further, the officer testified that
based on viewing the specks and using the cautery probe, but without
documenting their size, shape, or color, he was 99.9 percent certain that the
specks were gunpowder and that to his knowledge, nothing other than gunpowder
would vaporize upon being touched by a cautery probe. In contrast, Ernest swore that forensic
scientists generally photograph particles before they destroy them and examine
them for size, shape, and color.
Additionally, Ernest swore that forensic scientists generally try to
avoid destructive tests. Ernest also
listed numerous substances that the specks could have been, all of which would
have reacted in the same way to the cautery probe. As with Wallace’s testimony,
Wilson has raised sufficient questions as to the
officer’s testimony to create genuine issues of material fact.
Next, we address Wilson’s argument with respect to the
fingerprint found on the bottle. We
conclude that the fact that the fingerprint on the bottle does not match
Wilson’s fingerprints would
not, standing alone, warrant a postconviction hearing. But in light of the fact that we are
remanding this case to the postconviction court for an evidentiary hearing, the
postconviction court should consider the fingerprint evidence along with the
other evidence originally presented to the court.
We conclude that when a petitioner
raises genuine issues of material fact, as Wilson did here, it is an abuse of discretion
for the postconviction court to fail to hold an evidentiary hearing. And as noted earlier, an evidentiary hearing
is particularly important in the context of a circumstantial case. Opsahl
II, 677 N.W.2d at 423. Therefore, we
hold that the postconviction court abused its discretion when it denied
Wilson an evidentiary
Reversed and remanded for an