This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-450

 

 

Richard Arthur Williams,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed April 17, 2007

Affirmed

Klaphake, Judge

 

Anoka County District Court

File No. K0-89-8381

 

 

Douglas H.R. Olson, Samuel J.H. Sigelman, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN  55402 (for appellant)

 

Lori R. Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Robert M.A. Johnson, Anoka County Attorney, Robert Goodall, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Richard Arthur Williams challenges the postconviction court’s order denying his petition for relief following an evidentiary hearing.  Because there is sufficient evidence to sustain the postconviction court’s findings and its decision, the court did not abuse its discretion.  We therefore affirm.

D E C I S I O N

            Remand Instructions

            On remand, the district court must execute the mandate of the appellate court strictly according to the terms of the remand.  Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982).  Appellant argues that the postconviction court failed to follow the remand instructions of this court by refusing to hear expert testimony on the reliability of eyewitness identification or to rule on the credibility of the victim’s eyewitness identification.  See Williams v. State, No. A04-1075, 2005 WL 832056, at *4 (Minn. App. Apr. 12, 2005). 

            The reliability of the victim’s identification was an issue at the omnibus hearing and in appellant’s direct appeal.  See State v. Williams, No. C2-90-518, 1990 WL 204278, at *1-3 (Minn. App. Dec. 18, 1990) (discussing whether photo identification procedures were impermissibly suggestive), review denied (Minn. Jan. 14, 1991).  Courts were admitting expert testimony about the reliability of eyewitness identification long before appellant was tried in 1989.  See State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980) (declining to find district court abused its discretion by refusing to admit expert testimony regarding eyewitness identification). 

            Issues that have been previously raised or claims that were known but not raised in a direct appeal will not be considered in a subsequent petition for postconviction relief.  Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005) (discussing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)).  The reliability of the victim’s identification and questions about the reliability of eyewitness identification in general are issues and claims that either were previously raised or were known at the time of the direct appeal.  The postconviction court’s refusal to consider the expert testimony was not an abuse of discretion.  See Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990) (stating that “generally expert testimony does not constitute newly discovered evidence warranting a new trial”).  The remand from this court directed the district court to consider the credibility of the newly discovered evidence, which involved a more recent confession by Larry Padgett, not to reconsider issues previously raised or known.

            Credibility of Confession

            This court reviews the decisions of a postconviction court for an abuse of discretion.  Opsahl v. State, 677 N.W.2d 414, 422 (Minn. 2004).  “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).  The petitioner bears the burden of establishing facts that would warrant relief by a preponderance of the evidence.  Ferguson v. State, 645 N.W.2d 437, 442 (Minn. 2002). 

            When the petition for relief is based on newly discovered evidence, the petitioner must prove that

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

 

Wilson v. State, 726 N.W.2d 103, 106 (Minn. 2007).    

            The postconviction court here concluded that Padgett’s confession was doubtful and unlikely to produce an acquittal or more favorable result.  Generally, credibility determinations are exclusively the province of the fact-finder.  State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998).  The postconviction court made specific findings based on detailed observations of Padgett’s demeanor; those findings support the court’s conclusion that Padgett was not a credible witness and that the newly discovered evidence was doubtful.

            In particular, the postconviction court found that (1) Padgett claimed to have been drinking and smoking “strong” marijuana the night of the offense, which would suggest an impaired memory and which rendered incredible his detailed account of the offense; (2) Padgett failed to mention this assault, despite the fact that pleas he entered shortly after he first claimed he was the assailant were contingent on his providing information about other assaults; (3) Padgett’s claim that he contacted the county attorney in 1989 about this assault was not credible because the county attorney’s office had no record of the contact, casting doubt on his credibility; (4) there were discrepancies between Padgett’s description of the assault and the victim’s testimony, which was given shortly after the assault in 1989; and (5) while Padgett and appellant had been convicted of several sexual crimes, Padgett’s usual modus operandi differed from appellant’s and this assault was more like appellant’s usual routine.

            All of these discrepancies led the postconviction court to conclude that Padgett’s testimony was doubtful and would probably not lead to an acquittal.  The court’s findings are supported by evidence and its findings support the conclusions of law.  We conclude that the postconviction court’s denial of relief was not an abuse of discretion.         

            Affirmed.