STATE OF MINNESOTA
IN SUPREME COURT
Anderson, Russell A., C.J.
State of Minnesota,
Filed: December 27, 2007
Office of Appellate Courts
S Y L L A B U S
Limitation on cross-examination of cooperating prosecution witness as to the penalty for first-degree murder, if error, was harmless.
Corroboration of accomplice testimony was sufficient to support the jury’s verdicts.
Summary denial of petition for new trial on ground of recanted testimony is affirmed without prejudice.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Russell A., Chief Justice.
Appellant Jermaine Ferguson was convicted in Hennepin County District Court of first-degree murder, in violation of Minn. Stat. §§ 609.185(a)(1), 609.05 (2006), and attempted first-degree murder, in violation of Minn. Stat. §§ 609.185(a)(1), 609.17, subd. 1, 609.05 (2006), in the December 7, 2004, shooting death of Joseph Papasodora and injuries to Gordon Hill and Ernest Houle. In this consolidated appeal, Ferguson argues that (1) the district court erred in limiting cross-examination of a key prosecution witness; (2) the evidence was insufficient to support the convictions; and (3) an evidentiary hearing was required on his postconviction claim of recanted testimony. We affirm.
Collin Goodwin shared an apartment
at 2529 12th Avenue South in Minneapolis with his 18-month old son, the child’s
mother, and Gordon Hill. On December 7,
2004, around 9:00 a.m., Goodwin drove to
Goodwin, Houle, and Papasodora returned to
Police officers were in the area within 30 seconds of
the first shots-fired call. A bystander
who had heard the gunshots directed responding officers to 2529 12th Avenue, the
residence from which he had just seen three men running. He said one of the men was wearing a light
blue quilted jacket. On entering the
dwelling, the officers detected a strong odor of gunpowder. The officers secured the area and waited for
homicide investigators to process the crime scene. Hill was taken by ambulance to the
Meanwhile, other responding officers were directed to
a roofing estimator parked on
The police traced the license plate number to a Pontiac
Grand Prix registered to Judonna Parker and to her address at 3641 Clinton
Avenue South. Shortly after setting up a
perimeter around that location, police saw the vehicle leaving through the
alley, stopped it, and took the driver, Parker, into custody. The police subsequently arrested Andre Miller
and then Parker’s fiancé Kentrell Green as each separately left the
Police officers interviewed Miller,
advised him of his Miranda rights,
and implied that he had some explaining to do.
Miller indicated that Parker had driven
The police also interviewed Parker, who claimed to
have no knowledge of what happened on 12th Avenue, telling them that she had
been home all day. She was charged with
aiding an offender, accomplice after the fact. She was held in jail for 45 days, until she
retained an attorney who negotiated a plea agreement. Under the agreement, Parker was to plead
guilty to the charged offense in exchange for the State’s promise not to oppose
a probationary sentence and not indict her for murder, conditioned on truthful
testimony at the grand jury proceedings and trials of all codefendants. Parker provided a police statement on January
18, 2005, also implicating Green, Hudson, and
During the investigation of the shooting, discharged cartridge casings and fired bullets collected from the crime scene were analyzed by a firearm and tool mark examiner. In processing the crime scene, investigators had collected eight casings: seven outside the front door and one just inside the door. Seven casings were 10-millimeter, had been ejected from the same gun, and were consistent with a Glock manufacture. One casing and one fired bullet were 9-millimeter, and three fired bullets were .40 caliber. Investigators never found the guns used in the shooting.
In February 2005,
Green told Parker to go back to the
Green also testified at
Green testified that he learned of the assault on
Miller by phone call from
Other evidence presented by the State included cell
phone records showing that on December 7, 2004, Green received a call from
Hudson’s cell phone at 10:23 a.m. There
was testimony that
The jury returned a verdict of guilt for first-degree murder and two verdicts of guilt for attempted first-degree murder. At sentencing, the court imposed the mandatory life sentence for the first-degree murder conviction and consecutive 120-month terms for the two attempted murder convictions. Ferguson filed a direct appeal but subsequently moved for a stay and remand for postconviction proceedings, which we granted. The district court denied Ferguson’s postconviction petition, he appealed, and the direct appeal and postconviction appeal were consolidated.
The Confrontation Clause guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with witnesses against him.” U.S. Const. amend VI. “[A] primary interest secured by it is the right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315 (1974) (internal quotation marks omitted). Effective cross-examination is essential to a fair trial because “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316. An important function of cross-examination is the exposure of the witness’s biases or motivation for testifying. Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986). Violations of the Confrontation Clause are subject to harmless error analysis. Id. at 684. (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”).
On direct examination, Parker testified about her understanding of the plea agreement. She said that before agreeing to cooperate with the police, she was charged with “[a]iding an offender, a felony,” which “is supposed to mean I get half his time and I think the max, say, 15 years.” She spent 45 days in jail before deciding, after her daughter’s prompting, to “tell the truth.” She testified that she agreed to plead guilty to aiding an offender and to provide a truthful statement, and the State agreed not to oppose a probationary sentence and not to indict her for murder. The court read the plea agreement into the record.
On cross-examination, defense counsel also inquired about Parker’s understanding of the agreement, including that she was currently out of jail and that she understood that if she testified and cooperated with the State, she would not be charged with murder and would not go to prison. When defense counsel sought to inquire about her perceived exposure to criminal liability and penalties for first-degree murder, the court disallowed the inquiry as it related to Parker. Defense counsel was nevertheless permitted to cross-examine Parker about her awareness that the benefit of her plea agreement was that she would “go from serving a lengthy prison sentence to essentially just getting 45 days.” When defense counsel raised that point again later, Parker restated her understanding of the plea agreement: that she had never been charged with murder, that she had been charged with aiding an offender “from the beginning,” and that she “was still charged” with that crime, “so the lengthy prison time” defense counsel was “talking about” was a “sentence of up to 15 years.” Later, when cross-examining the homicide investigator on a different matter, defense counsel elicited that the penalty for aiding an offender, accomplice after the fact, in a first-degree murder was half of the 30-year minimum penalty for the murder.
The Confrontation Clause is not violated by limitations on cross-examination so long as the jury is presented with sufficient information from which to appropriately draw inferences as to the witness’s reliability. E.g., State v. Dobbins, 725 N.W.2d 492, 505-06 (Minn. 2006) (holding that limitation on cross-examination of cooperating witness regarding the exact penalty the witness otherwise would have received was not a Confrontation Clause violation where defendant was allowed to cross-examine on other aspects of the plea agreement); State v. DeVerney, 592 N.W.2d 837, 845 (Minn. 1999) (holding that limitation on cross-examination of accomplice as to specific penalty reduction in exchange for accomplice’s testimony was not a Confrontation Clause violation where defendant was not prohibited from cross-examining on every other aspect of the plea agreement).
In some circumstances, it may be error to circumscribe a defendant’s right to cross-examine a witness about potential sentences for the purpose of exposing potential bias and motive. See United States v. Turner, 198 F.3d 425, 430 (4th Cir. 1999) (finding evidentiary error in limiting on relevancy grounds cross-examination as to potential penalties but holding that the error was not of constitutional magnitude); State v. White, 300 N.W.2d 176, 178 (Minn. 1980) (finding no constitutional error but noting that “we believe that the defendant’s interest in fully cross-examining the witness outweighed the state’s interest in not letting the jury indirectly learn the maximum prison term to which defendant would be subjected if convicted”). Nonetheless, one federal court specifically declined to hold that there is a categorical right to such cross-examination where “all of the details of the plea bargain, as the witness understands them, have been disclosed.” United States v. Mussare, 405 F.3d 161, 170 (3d Cir. 2005). Here, in view of defense counsel’s substantial and thorough inquiry into the details of Parker’s plea agreement and her understanding of the potential penalties absent her cooperation, we conclude that error in the limitation on cross-examination, if any, was harmless.
Ferguson next argues that there was insufficient evidence to support the guilty verdicts because they were based on uncorroborated accomplice testimony. He argues that Parker and Green were both accomplices and that their testimony was the only evidence implicating him in the shooting. To assess the sufficiency of the evidence, “we make a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict.” State v. Brown, 732 N.W.2d 625, 628 (Minn. 2007). A guilty verdict, however, cannot be based upon the uncorroborated testimony of an accomplice. Minn. Stat. § 634.04 (2006). To be adequate, “corroborating evidence must link or connect the defendant to the crime and must point to the defendant’s guilt in some substantial degree.” Turnage v. State, 708 N.W.2d 535, 543 (Minn. 2006) (internal quotation marks omitted). “ ‘Circumstantial evidence indicating the defendant’s participation in the crime is sufficient to corroborate the accomplice’s testimony.’ ” State v. Reed, 737 N.W.2d 572, 584 (Minn. 2007) (quoting State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995)).
Even assuming that both Parker and Green were accomplices,
corroboration was adequate. There was
evidence that at 10:23 a.m., Green was called to the
It should be noted that on May 2, 2006, at
1:00 p.m., [
Mr. Green informed us that our client, Jermaine Ferguson, was not present at the scene of the murder that he is serving time for. He indicated that he told the authorities and I believed [sic] he testified also that Jermaine Ferguson was present. His explanation for doing that was that the police threatened to take the children away from the children’s mother, Judonna Parker, and they also threatened to send Ms. Parker to prison for her potential involvement.
district court denied
On review of postconviction
decisions, we “extend a broad review of both questions of law and fact.” Butala
v. State, 664 N.W.2d 333, 338 (Minn. 2003) (internal quotation marks
omitted). We review legal issues de novo.
A petitioner is entitled to an evidentiary hearing “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2006). “The showing required for a petitioner to receive an evidentiary hearing is lower than that required to receive a new trial.” Opsahl v. State, 677 N.W.2d 414, 423 (Minn. 2004). Any doubts about holding a hearing “should be resolved in favor of the party requesting the hearing.” State v. Turnage, 729 N.W.2d 593, 598 (Minn. 2007).
Witness recantation merits
postconviction relief if it satisfies the Larrison
test, which asks (1) whether the district court is reasonably
well-satisfied that the trial testimony given by a material witness was false;
(2) whether without the false testimony, the jury might have reached a
different conclusion; and (3) whether the petitioner was “taken by surprise when
the false testimony was given and was unable to meet it or did not know of its
falsity until after the trial.” State v. Caldwell, 322 N.W.2d 574,
Courts generally view
recanting affidavits and testimony with suspicion. Caldwell,
322 N.W.2d at 585 n.7. Federal courts view them with “extreme
suspicion.” 26 James Wm. Moore et al., Moore’s Federal Practice § 633.05[a]
(3d ed. 2007). In federal courts, “[a]
motion based on a recantation ordinarily is decided without a hearing.”
In Minnesota, when a witness
offers the withdrawal of incriminating trial testimony, evidentiary hearings
are necessary for purposes of evaluating the reliability of the recantation,
but to justify the expense and risk of transporting the petitioner to an
evidentiary hearing, it seems to us that the petitioner has an obligation to
make a greater showing of a genuine recantation than was made here. See,
e.g., State v. Wilson, 726 N.W.2d 103, 104-05, 107-08 (Minn. 2007)
(granting hearing where jailhouse informant recanted in writing); Opsahl, 677 N.W.2d at 423-24 (granting
hearing based on recanting affidavits). But see
 See Minn. Stat. § 609.495, subd. 3 (2006).
 Johntaye Hudson pleaded guilty to
second-degree murder and attempted first-degree murder pursuant to a plea
agreement. Prior to sentencing, he moved
to withdraw the plea. The district court
denied the motion and imposed a 299-month sentence for the second-degree murder
and a consecutive 180-month term for the attempt. The court of appeals affirmed. State
v. Hudson, No. A06-151, 2007 WL 330043 (
 Minnesota Statutes § 634.04 provides that
[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
 Other state courts similarly view recantations with suspicion. See,
e.g., Davis v. State, 117 P.3d 454, 471 (Wyo. 2005) (noting “the inherent
suspicion surrounding recanted testimony”); Greywind
v. State, 689 N.W.2d 390, 396 (N.D. 2004) (“Courts look upon recantation
with suspicion and disfavor.”); In re
Roberts, 60 P.3d 165, 174 (