This opinion will be unpublished and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

A05-1240

 

David Kenneth Christian, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 4, 2006

Affirmed

Kalitowski, Judge

 

Mower County District Court

File No. K4-00-1117

 

Beau D. McGraw, McGraw Law Firm, P.A., 600 Inwood Avenue North, Suite 200, Oakdale, MN 55128 (for appellant)

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Patrick Flanagan, Mower County Attorney, Mower County Courthouse, 201 First Street Northeast, Austin, MN 55912 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant David Kenneth Christian challenges the postconviction court’s order denying his petition for relief, arguing that (1) he is entitled to a new trial based on newly discovered evidence in the form of exculpatory statements of his codefendants; and (2) the district court improperly joined appellant and his codefendants for trial.  We affirm.

D E C I S I O N

            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  “The denial of a new trial by a postconviction court 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 argues that the postconviction court abused its discretion by denying his petition for postconviction relief.  Appellant claims that exculpatory statements from his two codefendants qualify as newly discovered evidence entitling him to a new trial.  We disagree. 

            A new trial based upon 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). 

            Appellant and three accomplices were charged with murdering two men and assaulting another while robbing them at a motel in Austin, Minnesota, in June 2000.  Appellant did not enter the motel but he drove the getaway car.  Appellant was indicted on 11 counts, ranging from first-degree murder to first-degree assault.  The state moved to join appellant with two of his accomplices, Vernon Powers and appellant’s brother, Scot Christian.  Appellant opposed joinder, but the district court granted the state’s motion to join the three codefendants.  Powers testified at trial but appellant and his brother did not.  On June 7, 2001, a jury found appellant guilty of two counts of aiding and abetting second-degree felony murder and one count of aiding and abetting first-degree assault. 

            Appellant challenged his convictions on direct appeal and argued, among other things, that the district court erred by joining appellant with his codefendants.  State v. Christian, No. C5-01-1840, 2002 WL 31415382, at *1, *8 (Minn. App. Oct. 29, 2002), review denied (Minn. Dec. 30, 2002).  This court affirmed the convictions and concluded that joinder was proper.  Id. at *8-*9.  In November 2003, appellant filed a petition for postconviction relief seeking a new trial based on ineffective assistance of counsel.  The postconviction court denied his petition, and this court affirmed.  Christian v. State, No. A04-281, 2004 WL 2221614, at *4 (Minn. App. Oct. 5, 2004), review denied (Minn. Dec. 22, 2004). 

            In his second petition for postconviction relief, which is the subject of this appeal, appellant argued that he was entitled to a new trial based on the newly discovered evidence of exculpatory statements from his codefendants, Powers and Christian.  In support of his petition, appellant submitted affidavits from Powers and Christian, each of which stated that appellant was not aware of, and did not plan, any of the criminal activities underlying his convictions.  The postconviction court denied his petition without a hearing.  The district court stated that appellant “does not claim the facts or issues in question are ‘newly discovered’ or were in any way not known to him at the time of trial.  Rather, the claim is simply that Scot Christian’s joinder deprived him of the ability to call an additional exculpatory witness to present the same defense he was asserting at trial.”             

            On appeal to this court for the third time, appellant claims that his codefendants’ statements constitute newly discovered evidence because although appellant knew at trial that Powers’s and Christian’s testimony would be critical, “the exact nature of that testimony was not available or discoverable until relatively recently.”  He further argues that his inability to obtain the information at trial was not due to lack of due diligence because his codefendants had a right not to testify at their own trial. 

The Minnesota Supreme Court has applied the newly discovered evidence test to a claim of newly available evidence under the rationale that “courts should be cautious in considering evidence from an accomplice who is ‘unavailable’ at trial because such evidence may be untrustworthy, in that a convicted, sentenced accomplice has little to lose, and possibly something to gain, by providing such evidence.”  State v. Warren, 592 N.W.2d 440, 450 (Minn. 1999) (footnotes omitted).  In Warren, the appellant claimed that he was entitled to a new trial based on the “newly available” testimony of his accomplice.  Id. at 449.  The supreme court rejected appellant’s argument because even though the accomplice may have been unavailable to testify at the appellant’s trial because he invoked the Fifth Amendment, appellant knew the substance of the testimony that the accomplice might have provided at the time of his trial.  Id. at 450. 

            Here, appellant failed to establish that he did not know, nor could he have discovered through reasonable diligence, the content of his codefendants’ affidavits at the time of his trial.  As to codefendant Powers, not only was his testimony both available and discoverable, but Powers also testified at trial.  As to codefendant Christian, appellant stated in his postconviction petition that he challenged the joinder issue before trial because both Christian and Powers were key witnesses to his defense because they could exculpate him.  Therefore, appellant’s claim that Christian’s testimony is newly discovered evidence fails for the same reason that that argument failed in Warren.  Christian did not testify at trial because he had the constitutional right not to do so, but the record indicates that appellant knew the exculpatory substance of the testimony that Christian would provide.

            Moreover, even if appellant had not known of the nature of his codefendants’ “newly available” testimony, he has not established that their testimony would likely produce an acquittal or more favorable result.  Powers’s and Christian’s affidavits merely reiterate the theory that appellant unsuccessfully advanced at trial, that he was unaware of his codefendants’ criminal scheme on the night of the murders in Austin and only drove them because they had had too much to drink.  Appellant has not shown that testimonial support from the two affiants, one of whom is his brother and both of whom are serving lengthy prison sentences for their participation in the underlying crimes, would necessarily sway a jury in appellant’s favor. 

            Because appellant did not establish that he was unaware of the substance of his codefendants’ affidavit testimony at the time of his trial and that such content would produce an acquittal or more favorable result, we conclude that the district court did not abuse its discretion by denying appellant’s petition for postconviction relief based on newly discovered evidence.

II.

            Appellant again asks this court to consider whether the district court improperly joined him with his codefendants at trial.  Appellant contends that the postconviction court abused its discretion by denying his petition for a new trial based on improper joinder.  We disagree.

The district court rejected this argument as procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).  Noting multiple instances in which Minnesota courts had considered and rejected the joinder issue as raised by appellant or by his two codefendants, the court concluded that it “cannot conceive of an issue that has been more thoroughly addressed than the joinder of the defendants at this trial.”

After unsuccessfully opposing joinder at trial, appellant raised an improper joinder claim upon his direct appeal in 2002.  Christian, 2002 WL 31415382, at *8-*9.  Appellant argued that joinder was improper and resulted in substantial prejudice to him.  Id.  This court considered that argument and rejected it.  Id.  

A postconviction court “may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.”  Minn. Stat. § 590.04, subd. 3 (1998).  The Minnesota Supreme Court has explained that “where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.  Because this court considered and rejected appellant’s joinder argument upon his direct appeal, we conclude that the postconviction court did not abuse its discretion by holding that appellant was procedurally barred from raising that argument again. 

            Affirmed.