This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Monterell Lowe,


Filed February 3, 1998


Davies, Judge

Dakota County District Court

File No. K5961250

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, James T. Diamond, Jr., Special Assistant State Public Defender, Diamond & Maeyaert, PLLP, 2250 Fifth Street Towers, 100 South Fifth St., Minneapolis, MN 55402 (for appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Davies, Judge.



Appellant Monterell Lowe challenges his convictions for attempted second-degree murder and second-degree assault on the basis of (1) insufficient evidence, (2) alleged prosecutorial misconduct in closing argument, and (3) alleged new evidence. We affirm.


On May 17, 1996, appellant Lowe, Michael Edwards, J.B. (a juvenile), and others went to a party given by Donjah Carter. They were turned away from Carter's apartment. When Carter arrived home, he asked appellant and the others to also leave the building parking lot because one of them allegedly had a gun.

At trial, Carter testified that later that night he let J.B. into his apartment to use the telephone, but that, as he showed J.B. out of the apartment, appellant, who was in the back hallway, pointed a gun at him. When Carter tried to slam the door shut on appellant and J.B., they forced their way into Carter's apartment and chased him through the apartment and out the front door. During the chase he heard shots and saw appellant and J.B. both pointing guns at him. Witnesses in the building and across the street heard shots and then saw appellant's car leave the scene. Appellant's car was pulled over by police later that evening. Inside the car police found a .25 caliber semi-automatic handgun. Ballistics tests revealed that shell casings found in the apartment and back hallway came from this gun.

After a jury trial, appellant was found guilty of second-degree assault and attempted second-degree murder. He later filed new trial motions based on supposed new evidence, in the form of an affidavit from J.B. that contradicted his earlier statements to police and an affidavit from a defense investigator. That affidavit suggests that Edwards' later rendition of what happened contradicts his trial testimony. The trial court ruled that the affidavits were not credible.

The trial court imposed a sentence of 163 months (13 years, 7 months) for the attempted murder count and did not enter a judgment of conviction for the assault count. Appellant now appeals his conviction and the denial of his new trial motion.



This court must determine whether the fact-finder could reasonably have concluded that the defendant was beyond a reasonable doubt guilty of the charged offense, reviewing the record and legitimate inferences in the light most favorable to the conviction. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). This court must assume the jury believed the state's witnesses and rejected contradictory evidence. Id. The credibility of witness testimony and the weight given to the evidence are issues for the trier of fact. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

The state's case rested primarily, although not exclusively, on Carter's testimony. When examining the sufficiency of the evidence, we must assume the jury believed Carter's testimony and discredited appellant's evidence. Appellant's attempt on appeal to challenge Carter's credibility is inconsistent with the standard of review.

There was sufficient evidence to convict appellant of the charged crimes. The evidence showed that (1) appellant initially lied to police about being present at the scene, (2) shell casings and bullet fragments found at the scene matched a gun found in his car, (3) Carter saw appellant point and fire a handgun at him, and (4) possible motives for the crimes were that appellant had formerly dated Carter's girlfriend and had been excluded from Carter's party. The evidence showed that appellant intentionally fired the gun at Carter, from which the jury could infer that he intended to kill Carter and was attempting to do so. Therefore, the jury reasonably could have concluded beyond a reasonable doubt that appellant was guilty of attempted second-degree murder.


Appellant asserts that the prosecutor, during closing argument, committed misconduct that warrants a new trial. He claims that various statements the prosecutor made during his closing (1) intentionally misstated evidence, (2) personally vouched for the evidence by attacking appellant's credibility, and (3) inflamed the passion and prejudice of the jury. Because none of the challenged statements were objected to at trial, this claimed error is waived unless the statements are unduly prejudicial, which none is. See State v. Parker, 353 N.W.2d 122, 127-28 (Minn. 1984) (by not objecting at trial, defendant waives right to raise claim regarding prosecutor's closing remarks; even without objection reviewing court may reverse if remarks were unduly prejudicial). We reject all three of appellant's claims of prosecutorial misconduct.


Appellant challenges the denial of his motion for a new trial. He claims new evidence: (1) an affidavit by one of appellant's co-adventurers, J.B., that allegedly contradicts his statements as testified to by the police (J.B. did not testify); and (2) an affidavit by a defense investigator whose interview with Edwards brought forth a story that contradicts Edwards' trial testimony. A court need not consider the possible effect of a "recantation" if the court is not reasonably satisfied that the recantation is genuine. State v. Bowles, 530 N.W.2d 521, 534 (Minn. 1995). If found credible, new evidence can serve as the basis for a new trial only if the jury might have reached a different result were the new testimony before it. State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn. 1982). A trial court has broad discretion in ruling on a new trial motion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990).

The trial court found the stories in the affidavits not credible and denied the new trial motion on that basis. Even if believed, both affidavits tend to implicate, rather than exculpate, appellant. Because the trial court did not abuse its discretion by concluding that the affidavits were not credible, its denial of the new trial motion was not error. Further, even if believed, the two affidavits do not present evidence

warranting a new trial because they fail to meet the Caldwell standard; they likely would not have caused the jury to reach a different verdict.