This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1182

 

 

Tobias A. Taylor,

petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

 

Filed January 4, 2005

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. 95066667

 

Tobias A. Taylor, OID 185657, 970 Pickett Street North, Bayport, MN  55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

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

 

            Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Pro se appellant Tobias Antonio Taylor challenges the denial of his petition for postconviction relief from his 1996 conviction for second-degree murder.  See State v. Taylor, 1997 WL 147434 (Minn. App. Apr. 1, 1997), review denied (Minn. June 11, 1997).  In support of his petition, appellant submitted affidavits from two witnesses to the murder that he claims constitute newly discovered evidence entitling him to a new trial.  One affidavit was submitted by appellant’s co-defendant, Jamal Walker, who stated that he could identify the victim without appellant’s aid; the other affidavit was submitted by Ennis Fitzgerald, another person present at the scene, who stated that appellant did not know a gun was going to be involved in the confrontation.  Appellant argues that the postconviction court abused its discretion in denying him an evidentiary hearing and in determining that the two affidavits would not make a difference in any retrial.

            Because the postconviction court did not abuse its discretion, we affirm.

D E C I S I O N

            The decision of a postconviction court to deny a new trial “will not be disturbed absent an abuse of discretion and review is limited to whether there is sufficient evidence to sustain the postconviction court’s findings.”  State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000).

I.

            Appellant first argues that the postconviction court abused its discretion by denying him an evidentiary hearing.  Such a hearing is “not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.”  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).  No evidentiary hearing is necessary where the petition, files, and record conclusively show that a defendant is not entitled to relief.  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999).

            Here, the postconviction court considered the two affidavits submitted by appellant; the parties’ written memoranda and argument; the trial court record, including 992 pages of trial transcript; and this court’s decision on direct appeal.  The only evidence that the court did not allow or consider was live testimony by the affiants in open court.

            A postconviction court has discretion to “receive evidence in the form of affidavit, deposition, or oral testimony.”  Minn. Stat. § 590.04, subd. 3 (2002).  The postconviction court here explained its decision to not allow live testimony as follows:

For purposes of making this determination, I shall assume that the witnesses would testify as set forth in their affidavits, and that there would be no new evidence impeaching them or otherwise supporting the state’s case; and I shall further assume that these witnesses would be credible in appearance – that is, that except for impeaching evidence already in the record, nothing would impair their credibility.  In taking this approach, I intend to give [appellant] any advantage that may accrue to him by having live testimony from these witnesses in a post-conviction hearing.  (As a general rule, I believe hearings should be freely granted in these types of proceedings so that the judge can evaluate as accurately as possible the credibility of witnesses, but since the assumptions I apply here give all benefits of the doubt to [appellant], no significant purpose would be served by having the witnesses appear).

 

Given this detailed and reasonable explanation, we conclude that the postconviction court did not abuse its discretion by denying appellant an opportunity to call the affiants as witnesses at an evidentiary hearing.

II.

            Appellant argues that the postconviction court abused its discretion in denying him a new trial on the grounds of newly discovered evidence.  A new trial based on newly discovered evidence may be granted when a defendant proves that the evidence (1) was not known to the defendant or defense counsel at the time of trial; (2) could not have been discovered through due diligence prior to trial; (3) is not cumulative, impeaching, or doubtful; and (4) would probably produce an acquittal or a more favorable result.  Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997); Race v. State, 504 N.W.2d 214, 217 (Minn. 1993).

            Here, the postconviction court assumed for the sake of argument that the first three factors were satisfied.  In focusing on the fourth factor, the court concluded that the credibility of appellant’s co-defendant, Jamal Walker, would have been so damaged by his inconsistent sworn statements, that upon retrial a jury would be hard-pressed to believe his most recent claims that he knew who the victim was, that appellant did not point the victim out to him, and that appellant did not encourage him to shoot the victim.

            The postconviction court further concluded that even if a jury believed Jamal Walker’s testimony on retrial and even if a jury was allowed to hear the other witness, Ennis Fitzgerald, who has now come forward, it is likely that the jury still would have found appellant guilty, based on other evidence that was presented at the original trial that strongly supported appellant’s guilt.  That evidence, which was largely undisputed, showed:  (1) appellant told Jamal Walker and his brother that he had just had an argument with the victim and that the victim was around the corner; (2) because of the dispute with the victim, the jury could infer that appellant wanted revenge; (3) appellant jumped out of Fitzgerald’s car to watch the Walkers attack the victim; and (4) according to other witnesses, appellant yelled encouragement as Jamal Walker gunned the victim down.  Thus, even if Jamal Walker and Fitzgerald testified upon retrial consistent with their affidavit statements, the postconviction court did not abuse its discretion in determining that it is likely that the jury would still find appellant guilty.

            The decision of the postconviction court is affirmed.

            Affirmed.