This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-677

Juvon De Wilson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 18, 2006

Affirmed

Wright, Judge

Hennepin County District Court

File No. 99023408

Michael C. Davis, Special Assistant State Public Defender, 332 Minnesota Street, Suite 1610 West, St. Paul, MN 55101 (for appellant)

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

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

WRIGHT, Judge

In this appeal from a postconviction petition for a new trial based on recanted testimony and newly discovered evidence, appellant argues that the district court erred in its summary denial of the petition. Appellant also argues pro se that he is entitled to relief based on prosecutorial misconduct, ineffective assistance of counsel, and insufficiency of the evidence. We affirm.

FACTS

On February 26, 1999, Dante Jemison was shot and killed in the 1800 block of Portland Avenue South in Minneapolis. Appellant Juvon Wilson was charged with second-degree intentional murder, a violation of Minn. Stat. § 609.19, subd. 1(1) (1998). The case proceeded to trial in February 2000.

Three trial witnesses described the circumstances of the shooting. Maurice Floyd testified that he went to the area to buy crack cocaine. After Floyd paid Jemison to obtain the crack for him, Floyd became impatient and proceeded in the direction that Jemison had walked. From about six feet away, Floyd observed a man with a gun in his hand approach Jemison. The man held the revolver in one hand and put his other arm around Jemison. Floyd fled. Within two minutes of leaving the scene, he heard gunshots. When he saw police cars, Floyd returned to the scene where he observed Jemison’s body on the ground. At trial, Floyd identified Wilson as the man holding the revolver. Floyd had previously identified Wilson from a photographic lineup.

Elaina Redding testified that she also witnessed a man holding Jemison with one hand and holding a gun in the other hand. Redding left the scene before hearing the gunshots. From a photographic lineup conducted before trial, Redding identified Wilson as the man with the gun. At trial, however, Redding was unable to identify Wilson.

Lyle Wickliffe testified that, from his bedroom, he witnessed a man holding Jemison. Wickliffe testified that the man was wearing a “black or greenish puff coat.” Wickliffe ducked down when the shooting began. After a short time, Wickliffe looked out the window again to see Jemison lying on the ground. Wickliffe was not able to identify the man because he did not get a good look at him.

After conducting an investigation, police interviewed Wilson. Wilson initially denied being in the area on the night of the shooting. Later, he admitted it was possible that he had been in the area at that time.

The jury returned a guilty verdict on February 18, 2000. In April 2000, Wilson moved for a new trial based on newly discovered evidence. The district court dismissed the motion as untimely under Minn. R. Crim. P. 26.04, subd. 1(3) (requiring notice of motion for new trial to be served within 15 days after guilty verdict). In May 2000, Wilson moved to reconsider the motion for a new trial. He also filed a petition for postconviction relief. The district court denied the motion to reconsider. Wilson appealed, and we remanded for postconviction-relief proceedings. In his postconviction petition, Wilson again sought a new trial. The district court denied the petition without a hearing. This appeal followed.

D E C I S I O N

On appeal from a summary denial of postconviction relief, we consider whether sufficient evidence exists to support the postconviction court’s findings. Ives v. State, 655 N.W.2d 633, 635 (Minn. 2003). A postconviction court’s denial of a new trial will not be disturbed on appeal absent an abuse of discretion. State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000).

Wilson contends that the district court’s denial of an evidentiary hearing is erroneous. An evidentiary hearing on a postconviction petition is not required “unless there are material facts in dispute that must be resolved to determine the postconviction claim on its merits.” Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005); see Minn. Stat. § 590.04, subd. 1 (2004) (providing for hearing on petition unless petition, files, and records “conclusively show that the petitioner is entitled to no relief”). Accordingly, we also review the district court’s decision to determine whether any of the alleged grounds for relief necessitates a hearing.

Wilson first argues that a witness’s recanted testimony establishes the need for a new trial. “Courts have traditionally looked with disfavor on motions for a new trial based on recantations unless extraordinary or unusual circumstances exist.” Daniels v. State, 447 N.W.2d 187, 188 (Minn. 1989).

To receive a new trial based on recantation of testimony, [the defendant] must show that 1) the testimony was false; 2) [the defendant] was surprised by the testimony and was unable to counteract it or did not know it was false until after the trial; and 3) the jury might have reached a different conclusion if it had not considered the false testimony.

Flournoy v. State, 583 N.W.2d 564, 569 (Minn. 1998).

Wilson met Anthony Wallace in the Carver County jail in April or May 1999. Shortly thereafter, Wallace advised police that Wilson admitted to him that Wilson shot Jemison. Ten days before trial, Wallace signed a statement recanting his statement about Wilson’s involvement in the shooting. The document stated that Wallace obtained the information from reading Wilson’s paperwork, not from Wilson.

At trial, however, Wallace testified that Wilson said he shot Jemison once in the chest and once in the back because of a drug-turf dispute. Wallace also testified that his original statements to the police were true. Wilson wrote the recantation, and Wallace signed it because he feared for his family’s safety.

After trial, Wilson produced an affidavit by Wallace that repeated the pretrial recantation. The affidavit states that Wallace lied at trial because he received a reduced sentence for a pending charge in exchange for his trial testimony. The postconviction court found that Wallace’s posttrial recantation lacked credibility.

Wilson asserts that the recantation of Wallace’s trial testimony satisfies the criteria for a new trial. We disagree. Notwithstanding the affidavit, Wilson has not established that Wallace’s trial testimony was false. Wallace’s trial testimony was consistent with the other eyewitness accounts and provided a detailed description of the shooting. Wallace had testified that his first recantation arose from concerns about his family’s safety, casting doubt on the posttrial recantation. We defer to the district court’s credibility determination, which, in this case, is well-founded.

Moreover, Wilson has not met the other conditions necessary to obtain a new trial based on recanted testimony. Wallace’s trial testimony was not a surprise that Wilson was unable to counteract. Wilson had procured the pretrial recantation and was able to cast doubt on Wallace’s testimony through impeachment with it. Moreover, Delwin Cooper testified at trial that Wallace admitted to lying about Wilson’s admission of guilt. Because Wilson had the opportunity to cross-examine Wallace regarding his pretrial recantation and the sentence reduction Wallace received in exchange for his testimony, Wilson fails to establish that the jury would have reached a different conclusion if it had also considered Wallace’s posttrial recantation.

Given the pretrial recantation, the district court’s ability to observe Wallace’s testimony at trial and the nature of the postconviction evidence, an evidentiary hearing was not warranted. Because the record supports the postconviction court’s findings and because Wilson has not satisfied his burden of showing that he is entitled to a new trial, denial of Wilson’s postconviction petition on this ground was not an abuse of discretion.

Wilson next argues that he is entitled to a new trial based on newly discovered evidence. A new trial based on newly discovered evidence may be granted when a defendant proves:

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).

Wilson first asserts that, since the trial he has identified three witnesses, each of whom stated that Wilson did not shoot Jemison. After the jury verdict, Daniel Mack contacted a defense investigator. Mack claimed that he and another man, Patrick Slaughter, had witnessed the shooting. Slaughter identified a third man, Eric Owens, who also claimed to have been a witness. Each newly identified witness stated that Wilson was not the shooter. In addition, Mack identified the shooter as a man from Detroit. Wilson maintains that Mack’s evidence was unknown and unavailable through due diligence because Mack had an outstanding warrant for his arrest and the police were unable to locate him.

Even if we assume that the witnesses could not be located through due diligence, their testimony remains doubtful and insufficient to demonstrate that it would probably produce an acquittal. Slaughter and Owens are unable to identify the alleged shooter and Mack can only identify where the alleged shooter is from. These statements are doubtful in light of their absence of detail and other witnesses’ statements indicating that Wilson was the one holding a gun to Jemison.

Wilson next asserts that trial testimony illuminated the importance of a previously discovered fingerprint. Redding testified for the first time at trial that she witnessed the shooter holding a bottle. A bottle found at the scene contained a partial latent fingerprint. Before trial, the fingerprint was tested, and the results established that the latent fingerprint was not Jemison’s. After trial, Wilson engaged an expert who determined that the fingerprint did not belong to Wilson.

Wilson maintains that the fingerprint is proof that he was not the shooter. We disagree. The fingerprint does not satisfy any of the requirements for a new trial based on newly discovered evidence. First, the fingerprint was not newly discovered evidence because both parties knew of its existence before the trial. Second, that the fingerprint did not belong to Wilson could have been determined through due diligence prior to trial. Third, the evidence tends to impeach Redding’s testimony by creating the inference that the man she saw holding the gun and bottle was not Wilson because the fingerprint does not match his. Although we do not know to whom the fingerprint belongs, the fingerprint does not completely exonerate Wilson. Lastly, it is unlikely that the fingerprint would have produced an acquittal when weighed against the evidence placing Wilson at the scene holding a gun on Jemison immediately before the shooting.

Finally, Wilson relies on newly discovered evidence that he claims challenges the testimony of Officer David Lindman, a forensic scientist in the crime lab unit of the Identification Division of the Minneapolis Police Department. Wilson presented affidavit testimony from forensic scientist Richard Ernest that criticizes the methodology and conclusions of Lindman. Wilson maintains that his expert’s newly discovered testimony proves that Lindman’s testimony was false. As an initial matter, we note that expert testimony ordinarily does not constitute newly discovered evidence that warrants a new trial. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990).

When the police took Wilson into custody, they seized a red-and-black-reversible down jacket. Lindman examined the jacket for gunpowder residue in order to determine the distance between the jacket and the muzzle of a gun. Without an objection by Wilson, Lindman testified that his examination of Wilson’s red-and-black-reversible jacket revealed two unburned granules of gunpowder. Lindman admitted that he could not draw any conclusion regarding the source of the gunpowder. But he opined that contamination from another source was unlikely. Wilson did not introduce any expert testimony at trial regarding the gunpowder residue.

Ernest’s testimony proffered in support of the postconviction petition does not satisfy the requirements for a new trial based on newly discovered evidence. Through due diligence, Wilson could have obtained Ernest’s testimony for trial. Moreover, Ernest’s testimony is being offered now solely to impeach Lindman’s testimony.

Wilson argues that, in the case of “simply incorrect” evidence, we should apply the standard for a new trial based on false testimony rather than newly discovered evidence. A new trial may be granted for false or perjured testimony when:

(a) [t]he court is reasonably well satisfied that the testimony given by a material witness is false[;]

(b) . . . without it the jury might have reached a different conclusion[; and]

(c) . . . the party seeking the new trial 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, 584-85 (Minn. 1982) (quotation omitted); see also Pederson v. State, 692 N.W. 2d 452, 461 (Minn. 2005) (same).

Although Ernest’s affidavit arguably attacks Lindman’s methodology, Wilson has not established that Lindman’s testimony was false. The facts here are distinguishable from those in Caldwell,in which the district court was satisfied that the expert’s testimony was false, and the appellant could not have been expected to know that the expert had misidentified a fingerprint. 322 N.W. 2d at 587. Here, the postconviction court did not conclude that Lindman’s testimony was false. Rather, it concluded that the limited probative value of two granules of gunpowder was clear to the jury.

Because Wilson has not established that Lindman’s testimony was false or perjured, we decline to apply the standard articulated in Caldwell. Applying the Rainer test for newly discovered evidence, we conclude that Wilson’s reliance on the Ernest affidavit is unavailing.

Because none of the evidence that Wilson challenges in his postconviction-relief petition is sufficient to grant Wilson a new trial and a hearing to resolve factual disputes was not necessary to reach that conclusion, the district court did not err by making its determination without an evidentiary hearing. Accordingly, the district court’s summary denial of Wilson’s motion for a new trial was not an abuse of discretion.

II.

In his pro se brief, Wilson raises three additional arguments that he claims entitle him to a new trial. Wilson raises each of these issues for the first time on appeal. We ordinarily will not consider matters that were not presented and considered in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). We may make an exception, however, when an issue is raised pro se in a criminal case. See, e.g., Ture v. State, 681 N.W.2d 9, 20 (Minn. 2004) (considering issues of ineffective assistance of counsel and insufficiency of evidence raised in pro se appellate brief for first time on appeal). With this exception in mind, we turn to Wilson’s new arguments.

First, Wilson contends that the prosecutor committed misconduct when he elicited testimony from Wallace regarding Wilson’s statements in the Carver County jail. A defendant is entitled to relief based on alleged prosecutorial misconduct only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). “If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999)). Only when the misconduct is unduly prejudicial will relief be granted absent a trial objection or request for instruction. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

Wilson did not object to Wallace’s testimony at trial, and from our review of Wallace’s testimony, it is clear that prosecutorial misconduct did not occur. Wallace testified as a fact witness; he was confronted on both direct and cross-examination with inconsistent statements in his pretrial recantation and his trial testimony. Wallace’s credibility also was challenged by evidence of his prior convictions, the deal he brokered with prosecutors in exchange for his testimony against Wilson, and the events giving rise to Wallace’s recanted pretrial statement. Wallace’s testimony also was impeached by testimony that Wallace had confided in Cooper that Wallace had lied at trial. The jury had ample evidence to judge the weight and credibility of Wallace’s testimony.

Because Wallace’s testimony is not evidence of prosecutorial misconduct, Wilson has not met the threshold requirements for a new trial.

Wilson next argues that he is entitled to a new trial because his trial counsel’s assistance was ineffective. Wilson maintains that his counsel failed to conduct a reasonable investigation that would have produced additional witnesses favorable to Wilson’s defense. “The defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

Wilson maintains that, had his trial counsel conducted a thorough investigation, Mack, Slaughter, and Owens would have been available to testify at trial. But according to Wilson, neither the police nor his counsel knew of Mack’s proximity to the crime scene and what Mack observed until Mack contacted a defense investigator. Mack’s statement led to Slaughter, who in turn led to Owens. The police had been unable to locate Mack, despite an outstanding arrest warrant. Moreover, because Mack’s statement was necessary to identify the other two witnesses, it is unlikely that an investigation would have independently yielded the identities of Slaughter and Owens.

Viewing the conduct as of the time that it occurred, the failure by Wilson’s trial counsel to discover the identities of witnesses who were unknown to the police investigating the shooting and therefore unavailable before trial does not fall below an objective standard of reasonableness. Accordingly, Wilson is not entitled to a new trial on this ground.

Finally, Wilson contends that there was insufficient evidence to support the conviction. In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). In doing so, we assume the jury believed the evidence supporting the state’s case and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

Three witnesses described a man holding Jemison with one hand and holding a gun on him with the other just before the shooting. Of those three witnesses, two identified Wilson as the man holding the gun. Wilson’s statement to the police establishes the possibility that he was in the vicinity of the shooting, and Wallace testified that Wilson admitted shooting Jemison. The evidence here was sufficient to allow the jurors to reach a guilty verdict. Therefore, Wilson’s claim for relief based on insufficient evidence also fails.

Affirmed.