*1 trustee, agent and to any as staff
Director, any acts taken on or after
this in the of official date course trustee
duties.
BY THE COURT: Page C.
/s/Alan
Associate Justice DOPPLER, petitioner,
David James
Appellant, Minnesota, Respondent.
STATE
No. A08-1782.
Supreme Court of Minnesota.
Sept.
OPINION DIETZEN, Justice. *3 1996,
In appellant June David first-degree was found guilty premedi- tated shooting murder for the death of Sargent. Michael L. Appellant a di- filed rect appeal requested that the case be postconviction remanded to consider his petition that his trial counsel was ineffec- tive. Following an evidentiary hearing, petition. district court denied On appeal, we affirmed the conviction postconviction denial of petition. I), v. Doppler (Doppler 590 N.W.2d (Minn.1999). In March appellant petition filed a alleging second ineffective appellate assistance counsel. The conviction appellant’s court denied petition, concluding proeedurally that his claim was barred. We affirmed. v. State II), CDoppler 803-04 In August appellant petition filed a third for re- lief alleging evidence and other Following claims.
hearing, court denied petition for relief. This appeal followed. We affirm. appellant’s underlying convic- I, tion are set forth in in Doppler detail Briefly, 629-32. body April was found in 1995 near an access road Little Blackhoof Lake Crow Wing County. Sargent’s body had gunshot sustained four wounds—one to Ellis, Paul, MN, appel- Deborah St. for chin, right leg, one and two to lant. investigation head. An extensive led Swanson, General, Attorney Lori St. During police appellant. interview MN, Paul, Ryan, Wing Donald F. Crow agents with from the Bureau Criminal Brainerd, MN, County Attorney, for re- (BCA), Apprehension appellant confessed spondent. Sargent. shooting Appellant reiterated some confession added detail, testifying that
additional him shot after came at mo- both the testifying at trial were denied Also with knife. brother) postcon- and the reopen and tion Doppler (appellant’s relief, ineffec- uncle). concluding viction that the They Berry (appellant’s Richard claim appellate tive counsel assistance killed and 800-01. procedurally barred. appellant’s version corroborated convicted shooting. Subsequently, of the appeal, On we affirmed denial first-degree premeditated appellant petition, that the ineffective holding of Minn.Stat. murder violation *4 was appellate counsel claim assistance (2008). 609.185(a)(1) § Id. at We procedurally barred. 803-04. the second concluded I, appellant’s In we considered Doppler finding court’s that at the time of his direct alleged in which he appeal direct his knew of the basis for appeal Doppler to his support evidence was insufficient appellate counsel ineffective assistance of I, Doppler first-degree murder conviction. at supported by claim the record. Id. at 635. also considered We that on Specifically, Doppler admitted appel- court’s denial of postcon- several occasions before first relief petition lant’s first for hearing ap- viction and before direct alleging of trial coun- ineffective assistance to peal expressed appellate that he his failed to: grounds sel on the that counsel counsel his desire to contest trial counsel’s (2) (1) indictment; object grand jury to failure to Id. call witnesses. appellant’s intoxi- evidence of (3) cation; request and instruction subject is petition, In his third which We af- on intoxication. Id. 633-35. appellant of this claimed to the appeal, firmed the conviction on basis that (1) postconviction court that: the confes- to support evidence was sufficient provided to police sion should jury’s postconvic- verdict and affirmed the (2) trial; been his intoxication excluded ground appellant tion court on the his night shooting on the of the inhibited to failed establish that his trial counsel was ability to describe the events of the ineffective. Id. 634-36. to shooting; of the and he was entitled evi- a new trial based on In Doppler March filed Appellant dence. submitted affidavits relief, which al- for Hanestad, Logan, Albert Rhonda Heather leged of appellate ineffective assistance Josh Doppler, Doppler. postcon- and II, at 800. counsel. viction denied the first two claims on predicated appellate The claim was grounds they procedurally were appeal counsel’s failure to raise on for granted appellant’s request barred and not call three wit- counsel’s decision to evidentiary hearing an the tes- consider Plunkett, expert nesses—Dr. John timony of Heather and Josh but supported appel- could witness who not Albert or Rhonda Hanestad. claim, lant’s self-defense and Rhonda and Hanestad, Scott have testified who would evidentiary hearing, At as to for violence. propensity testified Josh testified. Heather mother, Id. his brother Doppler, appellant’s that she met Keith brother, Subsequently, testified at the Id. of 2002 in summer reopen the rec- They separat- filed motion married in 2003. Id. The in in June testify. ord allow Plunkett ed December 2005 and divorced evidentiary hearing 2007.1 She testified that in November consider testi- mony her he of Logan Keith told felt bad and Hanestad on the grounds jail something for did brother was it not constitute newly- did, that “if wouldn’t have reached discovered evidence and procedurally [Keith] seat, barred. none under the of this would have if
happened,” given hadn’t David We review the of a post- denial “all the but drugs,” say then would conviction an abuse more. Heather noticed that when he said Ferguson discretion. things, these he was “hollow” and “showed An eviden- no She emotions.” admitted that Keith “ tiary required hearing ‘whenever ma drugs, history used that Keith had a dispute terial facts that ... must be fabricating things, and that she resolved order to determine issues making know if he admission or ” raised on the merits.’ (quoting Hodg *5 not. State, (Minn. 515, v. son 540 N.W.2d 517 Doppler, Josh who is a cousin David 1995)). words, In evidentiary other “[a]n Doppler, and Keith testified that he asked hearing required petition is ‘unless the at a gathering Keith social in 1998 or 1999 the files and records of proceeding about what of the happened mur- conclusively show that the petitioner is ” Josh, According der. told him Keith State, Hooper entitled to no relief.’ v. 680 privately “that there was a lot more to the (Minn.2004) 89, N.W.2d 92 Minn. (quoting story knew,” than everybody and that 590.04, (2002)). § Stat. subd. 1 To war rather, Sargent; David did not kill Keith evidentiary rant an hearing, petitioner was the one who did. Josh admitted that that, allege must proved, if would known braggart was a and not al- entitle him or her to the requested relief. ways truthful. (Minn. 345, State v. Kelly, 535 N.W.2d 1995). allegations be must “more Following postconvic- the hearing, the argumentative than assertions without fac tion court denied the concluding, support.” Ferguson, tual 645 N.W.2d at among things, other the court was (citation omitted) (internal quotation “not testimony that the convinced trial omitted). Any marks doubts about wheth false,” er an necessary testimony Heather and Josh party should be resolved favor not requirements did meet the for a new requesting ex rel. Roy newly-discovered trial based on evidence. Tahash, 238, 244, 277 Minn. 152 N.W.2d appeal This followed. (1967). 301, 305 a I. To receive new trial based on evidence, newly-discovered Appellant argues that the postconviction must show: denying court erred in his claim for (1) conviction relief. He contends that the evidence was not known to denying court erred in request for an the defendant or at the counsel his/her divorce, Subsequent parties 1. to the Heather and the court refer to changed her name to Heather Schultz. Her her as Heather Schultz. signed affidavit is but the (2) Lo- trial; was not satisfied that conviction court that the evidence time of false, through gan’s been discovered or could not have (3) trial; that the diligence would Logan due before not testified that cumulative, conclusion; impeaching, is not evidence reached a different there- doubtful; evidence fore, prongs the first two Larrison acquittal or probably produce an Opsahl, 677 were not met. See test result. more favorable N.W.2d Rainer v. Sar Logan, who was killed, two gent regarding testified Doppler. Dop conversations he had with But when evi I, First, Lo pler 631-32. by in the of a recantation dence is nature death, gan Sargent’s that before testified apply who we witness testified kill told him that he would like to Pippitt v. three-prong Larrison test. but take it Sargent, Logan serious (Minn.2007) State, 737 Also, ly. Logan Id. at 632. stated States, 24 F.2d (citing Larrison v. United death, him Doppler told after (7th Cir.1928), by overruled 87-88 something with” that he “had to do it. Mitrione, 357 F.3d United States v. make also testified that he did not Cir.2004)). (7th Under the Larrison in order any deals with the State *6 test, grant deciding peti when whether in against him for his role the indictment request for a new trial based on tioner’s dismissed. the death testimony, postconviction recanted the (1) court should consider three factors: in affi- Subsequently, Logan stated “reasonably the court is well-sat whether “I postconviction davit to the court that false; testimony that was isfied” the prosecutor agents and the BCA told the (2) testimony whether “without that getting to avoid what wanted hear jury might have reached a different con Logan stated “I a life sentence.” also that (3) clusion”; whether “the that did not kill Mike know David at by surprise was taken trial or did not postconviction con- Sargent.” The court Op until trial.” falsity know of after did Logan’s cluded that affidavit not clear- State, 414, (Minn. sahl N.W.2d 423 v. 677 testimony or ly recant his trial state 2004). The of the test is prong third not testimony was false. Because Lo- his trial precedent granting condition for a new gan eyewitness, was not an the court de- trial, but rather a factor the court should unlikely jury was that the termined that it in its making consider determination. See have reached different conclusion would id. Thus, testimony. Logan’s trial without Logan’s concluded that affidavit did court Logan A. Affidavits and Hanestad evidentiary hearing. not merit postconviction We review first Lo We that even without conclude denying evidentiary
court’s decision unlikely it is gan’s testimony, hearing to consider of Al- acquitted appellant. Doppler have bert Rhonda Hanestad. It is Sargent, that he killed confessed undisputed Logan, long-time friend so, not dispute and he did at and therefore intended do Doppler, testified Dop- at trial. applicable. part The of his confession Larrison test is 629, I, (1976). 631. pier 590 N.W.2d at Richard Similarly, N.W.2d our Berry only and Keith other rule bars claims that were raised Knaffla persons at scene on could been raised in an earlier killed, State, dispute Dop petition. also did not Powers v. (Minn.2007). 731 N.W.2d pler Sargent. killed Id. at There 629-31. (1) exceptions two rule: prosecution presented also evidence at tri Knaffla if the novelty claim’s was so great that its al that had a motive Sar to kill legal basis was reasonably not available gent step and took the purchasing taken; appeal direct gun that was used kill Sargent. Id. when fairness so requires and when the
631.
with
angry
petitioner did not deliberately and inexcus
brother, Keith,
getting with
involved
ably fail to raise
appeal.
the issue on direct
drugs
threatening,
Dop
front of
v.
Sanchez-Diaz
nieces,
pler’s
to kill Keith.
629.
846-47
Thus,
we
conclude that
deny
discretion
abuse its
In his second
petition, ap-
ing
for an
appellant’s request
pellant asserted that trial counsel was inef-
on Logan’s
based
affidavit. See
failing
fective for
to call Hanestad to testi-
Turnage,
II,
fy.
See
(Minn.2007)
un
(stating
question
The postconviction court denied the claim
der
prong
the second
Larrison
800-01,
and we affirmed.
Id. at
803-04.
the jury
might
found
Because
record indicates
at the
not guilty
defendant
if the
wit
recanting
petitioner’s
time
testified).2
ness
petition he
grand jury
was aware of
testi-
mony by
implicating
Hanestad
Dop-
Rhonda Hanestad’s affidavit al
murder,
pler
appellant’s claim
*7
leged that around
time of Sargent’s
the
evidence
on
based
Doppler
death she saw Keith
throw items Hanestad’s
concerning
statements
Keith
to
belonging
bridge
off a
that
Doppler’s guilt is Knaffla-barred.
Keith threatened to kill her if she revealed
the
to
The
anyone.
incident
B. Heather and
Affida-
Doppler
Josh
court concluded that
the new evidence
Testimony
vits and
claim based on Hanestad’s affidavit was
Knajfla-b&vred.
direct appeal
When a
has
Appellant next contends that the
taken,
been
all claims that were raised or
testimony and
affidavits
Heather and
could have been
will not
raised
be consid
Doppler
Josh
constitute newly-discovered
ered in a
relief.
requiring
Specifical
evidence
a new trial.
State,
(Minn.
272,
Buggs v.
734
ly,
N.W.2d
274
the
appellant argues
hearing
that
testi
2007);
v. Knaffla,
mony
State
309 Minn.
of Heather and Josh
re-
Logan's
2.
evidentiary hearing.
The dissent
Ferguson,
contends that
statement
See
"I know that David
did not kill Mike
by
supported
at 446. It
be
N.W.2d
must
Sargent”
warrants an
that,
proved,
if
entitle
would
to
acknowledges,
But as the dissent
this state-
requested
Logan's
relief. Id.
assertion of
ment
is at best
"bare bones”
assertion
by
petitioner’s
unsupported
any
innocence
petitioner’s innocence. And as we
stated
by
It does not
warrant
facts.
itself
an eviden-
Ferguson,
allegation
an
must be
than
more
tiary hearing
Logan's
on
affidavit.
just
argumentative
assertion warrant
test,
postconvic-
Under the Larrison
between the trial
solves the inconsistencies
also
that Heather’s
tion court
concluded
physical
pre-
evidence
testimony and the
testimony did not establish that
The
con-
trial.
appellant’s
sented
testimony or that his testimo-
recanted his
by ap-
evidence submitted
tends that the
ny
Opsahl,
false. See
a new
based
does not warrant
pellant
Thus,
did not consider
court
newly-discovered evidence.
on
jury
would have reached
hearing testimony of
The
affidavit
testimony.3
different
result without
Josh
focused
Heather and
State,
See
Williams
sepa-
made
that
statements
(Minn.2005)
that
(stating
them.
rately to each of
appellant
court
that
conviction
concludes
affidavit and tes-
analyzed
court
Heather’s
Larrison,
prong
meet
first
failed to
and Larrison
timony under the Rainer
may
jury
it
not consider whether the
need
test, the
the Rainer
court
tests. Under
result without
have reached a different
appellant
failed
establish
testimony).
concluded
witness’s
to Heather were
that Keith’s statements
con-
Similarly, the
court
cumulative,
or
impeaching,
not
doubtful.
testi-
that the affidavit
cluded
N.W.2d
See Rainer v.
state-
regarding
mony
of Josh
Instead,
court
found
him,
Keith made to
ments that
Keith’s
statements
Rainer or
requirements
meet the
in nature”
that Keith’s “his-
“doubtful
court
tests. The
found
Lamson
big, and
tory
drug usage, talking
fabri-
to Josh were “doubtful”
Keith’s statements
cating generates enormous doubt” that
know Keith
and that Josh did not
if
or material.”
statements were “truthful
Rainer,
truth
not. See
telling the
Keith’s state-
The court observed that
at 695. The court also concluded
by
have been motivated
may
ments
if the
appellant
failed
establish
providing drugs
appellant
on the
guilt
statements,
jury had heard Keith’s
Additionally,
of the murder.
a differ-
probably
would
reached
appellant
failed to
court concluded
reasons,
ent
these
result.
For
establish under Rainer
state-
testimony did
that Josh’s
court concluded
probably
produced
ments
Further,
satisfy
Rainer.
*8
appellant.
more favorable result for
reasonably
that it
not
satis-
concluded
testimony
ap-
of
875 the posteonvietion should not have been to implicate We conclude used him finding that Keith’s statements to court’s According appellant, at trial. the con- Josh were doubtful Heather and only fession partially accurate because by clearly the record and supported is not his intoxication on the of the shoot- State, See v. 621 erroneous. Dukes ing inhibited his ability describe what (Minn.2001) (stating N.W.2d happened. postconviction prop- court reviewing not will reverse find- erly rejected this Knqffla-harred. claim as ings postconviction of a court unless known, Appellant’s claim was either or erroneous). clearly finding This rests him, should have been known at the credibility largely upon determinations in time of his or appeal direct his two previ- which defer to we court. ous petitions. State, See v. Opsahl N.W.2d (Minn.2006). Further, supports the record Affirmed.
the conclusion that is unlikely it newly-discovered probably evidence (con- ANDERSON, H., PAUL Justice produced a different result trial. curring in part dissenting part). Rainer, See at 695. Based part I respectfully concur in upon presented the evidence in- dissent trial cluding appellant’s part. confession and tes- I with agree majority timony, along corroborating with the testi- affidavit of Rhonda properly Hanestad was Berry, mony unlikely Richard it is that Knaffla-barred, and that the affidavits would have reached a different testimony Schultz and had conclusion testified. See satisfy Joshua did not the Larri- Turnage, State v. tests. I disagree son Rainer But with (Minn.2007) (holding that under the second majority’s conclusion that Lo- Albert prong, question Larrison ... is “[t]he affidavit did not gan’s merit jury might found guilty recanting defendant not if the wit- A petitioner’s proof burden of for a testified”). Consequently, ness evidentiary hearing conviction lower court did not abuse its than his for a trial. Opsahl burden new in denying appellant’s request discretion for a new evi- Rainer, evi-
dence under or for recanted or The court must hold an Larrison,4 false under dentiary hearing fact findings and make peti- “[u]nless
and conclusions
law
II.
pro-
tion and the files and records of the
ceeding conclusively
peti-
Finally,
show
appellant claims
*9
in
lacking
“specificity”
confession
tioner is entitled to no
Minn.Stat.
relief.”
804(b)(3)
party
hearsay
in
exception
Neither
addressed
its brief whether
the Rule
to the
However,
be
Keith's statements should
excluded as
rule. See
In his petitioner Berry claimed saw muzzle flash of he was alone with Sargent night gunshots. several One shot down went shooting, he but later testified at trial that other and the two went forward. He could he omitted Keith Doppler’s doing details about not see who was Ber- shooting. Berry’s and Rick presence ry ran back to the car after shooting protect attempt impli- them from being ended and saw petitioner holding gun. a said, cated in the murder. Petitioner stated Petitioner “Mike came at with me a knife, and Sargent confession he I Berry and shot him.” testified gotten go out the car to the bath- that he did not see body. room, that petitioner and went back Keith also testified at trial. He car, grabbed gun that was underneath that after men pulled testified he over seat, Sargent. and shot Petitioner walked about 20 into the feet woods from many said he was unsure how times he the passenger side of the car. He heard Sargent. shot He indicated that petitioner and Sargent screaming at each try did not to run away. Petitioner stated other, heard a a smack slap or like some- that he did not move or hide the and body hit, body got Sargent say and heard “I’m that he anything take from Sar- kill going you.” He petitioner heard gent’s body. provided Petitioner no other say “get away.” Then he saw a flash shooting details about the in his confes- handgun go “up in the air” and heard sion. yell petitioner “get away.” the f* *k trial, petitioner
At con- expanded on his to run began back to the fession. He he testified that car heard a shot ran. as he arguing had been car pulling before He see Sargent standing could was still over to side of the road and that Dop- their after this second shot. Then Keith argument they got pler continued after out of rapid shooting. heard When Keith car, the car. Petitioner testified that Sargent Doppler gun reached the he heard the “click, going click, click, click, said “I’m to kill you” going and came click.” Peti- petitioner with a knife. Petitioner then tioner was on passenger his knees gun car, shot a from only had taken the car into couple away side of of feet from air Sargent. feet, to warn When of Sargent’s crying bottom coming continued screaming. Doppler grabbed peti- with knife, petitioner pointed gun at the tioner threw him the car. Then ground and shot. Berry Petitioner shot car. progres- arrived at the The three men *11 dispute is a factual away, Given that there to drive in the and started
got car giv killed and actually Sargent, about who stop he decided should Doppler Keith but per Logan that Albert claims to en ran “down Sargent. He check on and dis can knowledge sonal resolve body, Sar- grabbed Sargent’s there” the postconviction I conclude that pute, pulse. a checked for left hand and gent’s by prohibiting court abused its discretion He then was none. He testified that there affida hearing Logan’s on evidentiary pocket and took Sargent’s reached into Admittedly, allegation petition of vit. Doppler license. Sargent’s driver’s Logan’s in affida er’s innocence contained Sargent’s did not move testified that he typically bare vit is bones. We body. before require allegation detailed more testimony, confession and Petitioner’s hearing, we would but under order Doppler and testimony of Keith and in this and circumstances Berry, physical contradict the plainly ease, Rick be specifically the inconsistencies signifi- the testi physical at trial. Most tween the evidence and evidence submitted evidentiary testimony mony presented fired cantly, petitioner claim is warranted. hearing Logan’s as ran at repeatedly as to Opsahl, any we said in doubt As with the medical petitioner inconsistent court should examiner’s should be evidentiary hearing order an picked by his and then pulled up or clothes Op in See hearing. resolved favor of the in execution-style the back of shot Moreover, sahl, at 423. range. of the wit- head from close None a limited postconviction court did conduct nesses claim to moved evidentiary of hearing on the affidavits body, evidence indicated Sar- but forensic Dop Heather Schultz and Joshua body after gent’s was moved behind a tree signifi pler. required It would not have the final shot was administered. re judicial expenditure cant additional advance trial counsel did not Petitioner’s part as Logan sources have included theory actually Keith Doppler hearing. postcon- I would reverse now claims Sargent. killed But ruling Logan’s as to affida viction court’s fired that Keith the fatal shots. evidentiary vit and for an remand allegation, factual support As this made in explore paragraph the claim affidavits provides sworn from Joshua Logan’s affidavit. Schultz, Doppler, Heather and MEYER, in (concurring part Justice Dop- Rhonda Hanestad claim part). and in dissenting committing has the mur-
pler admitted der, in join affidavit of Albert Lo- I the concurrence and dissent the sworn Justice Paul H. Anderson. in he has actual gan which claims Han- knowledge petitioner’s innocence. (con- ANDERSON, BARRY, G. Justice properly Knaffla-barred, estad’s claims curring dissenting part). part correctly concluded that join I concurrence and dissent Dop- Schultz and Joshua Paul Anderson. Justice H. testimony and affidavits did not sat- pler’s isfy Larrison Rainer tests. But
Logan’s procedurally statements
barred, should have been ex- in an
plored