*1 HEREBY ORDERED that re- IT IS Perez, Jr., is suspended
spondent Alfred of law Minnesota practice
from the disci- final
pending determination 16(e), under proceedings Rule
plinary clients, notify Respondent
RLPR. shall and tribunals this sus-
opposing counsel Rule RLPR. required as under
pension
BY THE COURT: H. Paul Anderson
/s/
Associate Justice
Darby OPSAHL, petitioner, Jon
Appellant, Minnesota, Respondent.
STATE A03-298.
No.
Supreme of Minnesota. Court
April
OPINION MEYER, Justice.
This case comes to us from the district court’s denial of an evidentiary hearing for post-conviction relief. On October appellant, convicted Darby Opsahl, Jon of the 1986 Marga- murder of ret Rehmann. The state based its case on statements made to during the initial investigation of the crime and on *4 testimony Opsahl’s acquain- several of tances who claimed to have heard Opsahl make certain admissions about the mur- der. Opsahl We affirmed. brought then posteonviction this claim for relief. In support claim, Opsahl of his presented affi- davits that allege several state witnesses provided fabricated or unreliable tes- timony, with some of the trial witnesses claiming that the prosecuting attorney pressured testifying them into falsely. The district court posteonviction denied re- lief without granting evidentiary hear- ing. We reverse and remand for a hear- ing. 16, 1986,
On the afternoon of October Margaret Rehmann was murdered in her Prairie, home in rural Lester Minnesota. County The McLeod Department Sheriffs conducted an investigation extensive but initially was unable to trace the crime to a later, suspect. Nearly year Jeff Olson police informed Opsahl that he believed and John Kannianen were involved Magarian, Edward B. Christopher A. Rehmann murder. Based on in- Jerde, Young, Redmond, Shari Heather D. leads, criminating and other statements Jancik, Thomas M. Dorsey Whitney & Opsahl charged was with first- and second- LLP, MN, Minneapolis, Appellant. degree murder in violation of Minn.Stat. 609.185(3); 609.05, 1; §§ Hatch, 609.19(1), General, Paul, subd. Attorney Mike St. (2) (1986). MN, Michael K. Junge, County McLeod Attorney, Amy Olson, E. Asst. McLeod Olson spoke police, When first he County Glencoe, MN, Attorney, for Re- Deputy Larry called Wittsack of the Car- spondent. County Department. ver Sheriffs In re- call,
sponse Deputy Wittsack Wayne Detectives Vinkemeier and Richard Waage arranged a meeting with Olson and accompanied Opsahl told ment and Vinkemeier residence. Opsahl at Olson’s Hutchinson, Minnesota, hardware store to acquaintance, that he and an Vinkemeier identify weapon alleg- that Kannianen Kannianen, high got often drunk John Opsahl pointed in the edly used murder. around the Lester and drove drugs handgun. a .44 caliber A .44 caliber out burglar- looking for homes Prairie area shooting. was used that, gun during one of related Opsahl ize. cruises,” in the waited Opsahl “booze these informed house, up to a car Kannianen went while Kannianen could not have been involved in in a by middle-aged woman greeted murder, was in the Rehmann as he New shirt, heard a and went inside. red In a inter- Jersey October 1986. later, minutes “poof’ approximately ten view, changed story told he subsequently identified to which he investigators. Opsahl previ- recanted Op- gunshot. According officers as statements, claiming ous that neither he story, came out of the sahl’s Kannianen in the mur- nor Kannianen were involved twenty about minutes later house der, agreed place and that he and Olson coins, he Opsahl. which showed to some the blame for murder on Kannianen Rehmann, the murder victim’s hus- Irvin *5 Olson did not like Kannianen. because band, that a can of confirmed he stored trial, Irvin that At Rehmann testified he laundry coins underneath the half-dollar p.m. home at 5:45 approximately arrived taped Opsahl In a room sink. statement of on the afternoon the murder and found Kan- police, Opsahl indicated that gave to jamb garage on the door “bust- a told him that he had shot woman nianen and the door in. ed” kicked Once in the house. 'kitchen, lying he found his wife dead on Vinkemeier, ap- According Opsahl floor. Murphy, the kitchen Daniel offi- * * * eyed peared “very teary later, nervous footprint arrived a on cer who found * * * somewhat emotional about [and] the exterior of the door that was kicked in. meeting, After initial conversation.” their That bore footprint impression a officers Vinkemeier and two other sheriffs design shoe tread but was never matched on a car accompanied Opsahl Olson and any specific shoe. County. Dur- through ride rural McLeod The state’s case on relied statements the Reh- trip, Opsahl that focused on ing by Opsahl acquaintances made to several by and com- they mann residence as drove him implicated that murder. Ross place” that it “could where mented be testified that he heard Olson tell Reinitz Op- allegedly Kannianen shot Rehmann. they always that take Opsahl “could care that farm site sahl commented another [Opsahl’s neighbor] [they] like took care drive, Op- familiar. also looked After of that old bitch Lester Prairie.” Allan similar informa- provided sahl provided testimony. Kroells similar Laura
tion in a recorded statement. Opsahl Roberts testified that told her that later, during robbery had hurt a Approximately week Vinkemeier he someone Winsted, Sigafoos Dennis of the Bureau a small near Lester Agent and near town (BCA) Allan, Apprehension met with Prairie. Marina former of Criminal palm girlfriend, during his and that Opsahl fingerprints and took live-in testified any prints. Opsahl up of these matched told or I’m prints fight None her “shut palm you left at to shoot I did that little old fingerprints prints going like 1989, lady.” Rogowski Richard testified that at scene of the crime. On June July Opsahl Opsahl provided police party with another state- a Fourth 29, 2002, burglarized to him he On Opsahl admitted October filed this where was shot. Dean house someone relief in district Opsahl County. told him that court in Opsahl Johnson testified McLeod claimed during had shot a woman that he or, he and killed was entitled to a new trial Beckman, burglary. to Robert According alternatively, hearing, him Olson shot a based Opsahl told woman recanted prosecutorial handgun. addition, in the head with a .44 caliber misconduct. Op- Corey argued Telthoester that Olson sahl testified told that he was entitled to a new burglarized him that he trial or Opsahl a Schivartz juror based on shot an Opsahl house and that older wom- misconduct. he Finally, alleged that he inan the house was on way deprived while Olson his Sixth his Amendment right out the house. window of the The state effective assistance of counsel presented physical linking no his Op- fully counsel’s failure to investigate possible sahl to the murder. exculpatory evidence. The state opposed each claim on the merits and ar- own testified in his defense but gued that lapse in time between con- no called other witnesses. He denied that viction Opsahl’s petition should bar murder, Rehmann he was involved in the him obtaining postconviction from relief. burglary that he was at a scene in McLeod County, anyone or that told In support petition, he ever sub- had he committed a murder. ad- mitted in which affidavits three of the cruising” mitted to “booze with Kannianen state’s witnesses recant their testimony. Rogowski around the time of murder. He testi- claims that he “made up the Olson, fied that was familiar story” with entire and never even attended a *6 activities, Opsahl’s and Fourth July party Opsahl. Kannianen’s asked of with Reinitz Opsahl if could prosecutor Kannianen have been in- states that he told the that he in Opsahl exchange volved did not murder. testified hear the between Opsahl cooperated that he in clearly with order and Olson and that he was unsure help investigation by original them in their in- of who made the comment about forming that, them that Kannianen could have murder. Reinitz further states at conversation, explained committed the He the time crime. that of the he knew of emotionally during he reacted and investigation investi- murder assumed that because of gation photographs joking. Similarly, the de- two were Roberts victim him large ceased reminded of his states that she amounts of own used illicit grandmother. Opsahl making any drugs denied time of around the the events to testified, at a Rogowski admissions to Fourth of which she which affected her addition, July party 1988, claiming in memory. instead that In she states that her he display knowledge attended fireworks in Minne- of the Rehmann murder was apolis. gleaned from a written letter to her Kannianen. jury Opsahl
The
convicted
two counts
second-degree
Opsahl
and one count
murder
also submitted the affidavits of
first-degree murder. We affirmed the
individuals who claim to have heard certain
held,
conviction on
and
state
appeal
testimony.
direct
inter
witnesses
recant
alia,
O’Keefe,
that
private investigator
the record contained
William
sufficient
counsel,
support
hired
the conviction. State
describes an
(Minn.
Opsahl, 513
Although
interview with Dean Johnson.
1994).
Johnson did not
the substance of
alter
his
postconvic-
that he
team filed
implied to O’Keefe
fense
testimony, he
that he
tion relief October 2002.
when he testified
lied on the stand
of the
just opened up his first beer
had
court reviewed the
incriminating
night
Opsahl made his
when
and
Opsahl
affidavits submitted
con-
Beaulier,
attorney
Maury
an
statements.
recanting
witnesses’
cluded
asser-
Opsahl in
states
represented
who
“inherently suspect,”
tions were
as
wit-
completely
Allan
recanted her
that Marina
acquaintances
were all
nesses
friends
him,
she fabri-
testimony
claiming
Opsahl.
The court also found
there
anger
Op-
her
out of
cated
“numerous
witnesses” who tes-
were
other
boyfriend.
sahl,
had been
abusive
made,
Opsahl
tified to statements
such
that the recantations could not have affect-
misconduct claims
Opsahl’s prosecutorial
jury’s
These
ed
verdict.
conclusions
with
recantations he
are intertwined
deny Opsahl’s
the court to
claims for
led
According
each of
presents.
Opsahl,
prosecutorial
relief that rested on
miscon-
mislead-
recanting
provided
witnesses
testimony. Similarly,
duct and recanted
ing testimony
pressure
under
from the
rejected
the court
the ineffective assis-
prosecutor.
Rogowski
Reinitz and
were
juror
of counsel
misconduct ar-
tance
at the time of the trial
probation
guments
Opsahl’s petition
and denied
with-
incriminating tes-
they provided
claim that
evidentiary hearing.
out
from the
timony
response
threats
appeals, claiming
now
pro-
prosecutor that he would revoke their
postconviction court abused its discretion
they
testify favorably
did not
bation if
by denying
his motion for an
addition,
states
state.
Roberts
a new
trial. The
that,
informing the
despite
her affidavit
discretion,
argues,
court abused
prosecutor
unreliability,
her
he encour-
concluded,
because the
without the
“testify
aged
qualification”
her to
without
evidentiary hearing,
of an
benefit
had
allegedly
conversation
about the
she
recanting witnesses were unreliable and
Furthermore,
claims
Opsahl.
would not have reached
differ-
of the
to dis-
prosecutor
that the failure
testimony.
ent result without
recanted
*7
violat-
substance
these threats
close the
Bra-
process rights
ed
due
under
Opsahl’s
I.
1194,
83,
dy Maryland, 373 U.S.
83 S.Ct.
v.
Opsahl
postcon-
claims
(1963).
421 would differ his have proceeding presented have been counsel should evidence ” n State, 558, v. 398 561 Opsahl’s ent.’ N.W.2d that car would likely Gates not have (Minn.1987) (quoting v. Wash Strickland created tire tracks left outside the 668, 687-88, 104 466 U.S. S.Ct. ington, Rehmann residence. Opsahl now offers (1984)). 2052, objec L.Ed.2d 674 That 80 evidence that Camaro such as “representation is defined as tive standard drove would have left tire distinctive attorney exercising customary by an tracks, Deputy yet report Vinkemeier’s reasonably com diligence and that a skills stated that the marks at the scene attorney simi petent perform would under pattern “showed no definite or characteris- Gassler, v. 505 lar circumstances.” State tics.” (Minn.1993) 62, (quoting 70 White N.W.2d Similarly to the defendants Jones State, 476, 481,
v. 309 Minn. 248 N.W.2d Scruggs, attacks decisions that re- (1976)). stat repeatedly We have flect on strategy his counsel’s rather than generally we will review at ed that not performance. his counsel’s in no We are See, e.g., counsel’s trial strategy. tacks on position second-guess counsel’s decision State, v. Boitnott N.W.2d strategy focus other on defenses his (Minn.2001). The extent of in counsel’s investigating instead of Winkleman is considered a of trial vestigation part Westphal suspects. as Counsel’s decision Jones, strategy. See State v. not to pursue tire track simi- 224, 236 larly within falls the realm of defense Our reluctance to trial scrutinize strategy. Opsahl only challenges Because grounded policy public is tactics strategy, his counsel’s defense we not will flexibility counsel to allowing “have the district challenge the court’s conclusion extent represent client to the fullest provided that adequate” counsel “most Jones, Id. For possible.” example, representation. therefore hold We, counsel defendant claimed his trial court did not its abuse for, among things, other was ineffective failing to grant discretion a new trial investigator to hire an inter failing ineffec- Opsahl’s reject We prospective view witnesses. Id. tive assistance of counsel claim. claim, reasoning defendant’s it ed the than strategy attacked the rather II. professional performance of Id. counsel. now turn td claim We State, in relied on Jones in Scruggs We abused rejected coun which we a claim that trial denying juror discretion misconduct call failing sel was ineffective for three hearing. granting claim a Schwartz without *8 potential Scruggs witnesses. v. 484 hearings on review denials of Schwartz We 21, (Minn.1992). 26-27 N.W.2d V. an abuse of discretion standard. State Opsahl argues that coun (Minn.1998). Church, 715, 721 577 N.W.2d conduct a failing sel was ineffective for in which thorough investigation petitioner into two alternative In cases misconduct, court juror and were left the trial suspects alleges the tire tracks that jurors were investigat may with at the crime scene. order alleged in the suspects, privy ed Mark and misconduct those Winkleman Westphal, following presence parties. in the the all Minn. Kevin weeks of interested 26.03, 9; murder, v. eventually but their R.Crim. P. subd. Schwartz abandoned Co., Second, argues that' Suburban Bus 258 Minn. investigation. Opsahl Minneapolis 422 (1960). juror that 301, Opsahl Al- of misconduct. claims
325, 328, 303 104 N.W.2d generally consider court its discre- though a court 'will not the abused impeaching the ver- jurors by affidavits of affidavit discrediting tion Lentsch’s dict, juror that a may it considering hear By with that of Gerald Worm. prejudicial influenced “extraneous affidavit, was Opsahl argues Worm’s reaching a verdict. Minn. information” in holding district violated our 606(b); Minn. P. R. Evid. see also R.Crim. juror affi- Church that a court consider a 606(b) 26.03, 19(6); R. subd. Minn. Evid. “standing unchallenged.” alone and davit To Advisory Committee’s Note. obtain that Opsahl’s allegations postconvic- petitioner has the hearing, Schivartz unper- tion its court abused discretion are adducing of “sufficient evidence burden presented was suasive. The court which, unchallenged, and standing alone affi- affidavit that contradicted the Lentsch of mis- would warrant the conclusion Opsahl davit on which relies. The Church, N.W.2d at 720 conduct.” 577 may upon the have relied fact that Lentsch Larson, 481, (quoting State v. N.W.2d “to the qualified that his statements were (Minn.1979)). The court is never obli- recollection,” of best whereas Worm’s [his] accept allegations party gated Therefore, unqualified. were the court verdict, however, may challenging acted within its discretion when it conclud- contradictory affidavits from the consider that had not Opsahl prima ed made out a Larson, hearing. See party opposing the showing juror misconduct. facie at 281 N.W.2d jury’s Opsahl decision alleges III. juror tainted one learned of when
incriminating information was not in Opsahl post- claims that that information with evidence shared conviction court abused discretion jurors. affi- Opsahl his fellow submits the denying for a on his his motion new trial juror davit of Lentsch who states Omer claim that for the state several witnesses recollection,” he that “to the best of [his] ar gave testimony. Alternatively, false he family, em- learned from the Worm gues that the court abused its discretion time of ployer of and Olson granting of his claim disposing without murder, early left work evidentiary hearing. post- review We day and that Olson the murder proceedings conviction determine day. remained at all Lentsch claims work sup sufficient whether there is voting that he relied information in on this port findings. court’s to convict that “to the best Ferguson recollection,” jurors he told other [his] post- not We will disturb response, about the conversation. ruling conviction court’s absent an abuse submits affidavit of state Gerald discretion. Id. Worm, spoke who admits he Lentsch about the case contends the con- but three-prong Minnesota follows the year versation occurred six months one States, test set in Larrison v. forth United the trial after concluded. (7th Cir.1928),1 24 F.2d 87-88 in deter *9 mining grant a whether new based postconviction The court concluded Caldwell, affidavit, v. taken alone and un- witness recantations. State Lentsch’s (Minn.1982). 574, the 584-85 challenged, support did not conclusion 322 N.W.2d 712, Cir.2004). Mitrione, (7th 1. Overruled States v. 357 F.3d 719 United
423 trial, new petitioner postconviction order receive a the courts must consider the following prongs must establish the three nature of the presented evidence at trial. Rhodes, (Minn. 74, of preponderance of Larrison a fair the State v. 627 N.W.2d 88 (1) 2001). Therefore, reasonably evidence: court must be the we noted have that evi- testimony ques- well-satisfied that the dentiary hearings particularly appro are (2) false; testimony tion was without that priate petition when the important attacks jury might have reached a different a Fergu circumstantial case. (3) conclusion; son, petitioner tak- and was 645 at N.W.2d 446. en trial or know of surprise at did not postconviction The court stated that it falsity trial. Ferguson, until after 645 “reasonably was not well satisfied” that N.W.2d at 442. We have held the, the' of recanting witnesses prong third a condition precedent is not upon was false based Opsahl’s showing. trial, for a fac- granting new but rather trial, Based on its of recollection tor a deciding court should consider when court concluded that Marina Allan’s recan- petitioner’s request.
whether to grant tation was not The court reliable. conclud- Id. ed that Reinitz and Roberts had a better of recollection events at trial than at the showing pe required The for postconviction stage. respect With hearing titioner to an evidentiary receive is Johnson, the court noted that Johnson did required lower than that a new receive change not testimony. substance trial. Id. at 446. Minnesota Statutes The court did not address affidavit of 590.04, (2002), § 1 mandates subdivision Rogowski. upon evaluations, Based these court hold an evi- the court concluded it “dealing dentiary and make of fact hearing findings liars, with a only ques- chorus with the “[ujnless law peti and conclusions of being trial, tion whether the concert was at pro tion the files records of the * * * at the motion a retrial.” for The conclusively ceeding peti show that concluded that the also would tioner is entitled no relief.” have We not reached a result have different without interpreted peti to require this section testimony. upon the recanted Based that, allege tioner to facts if would proven, credibility of the assessment the wit- requested Fergu entitle him to the relief. case, strength nesses and the state’s son, 645 allegations N.W.2d at 446. These “ the court denied motion for a new argumentative must be ‘more than asser ” granting evidentiary trial without an hear- support.’ (quot tions without factual Id. ing. State, 215, 217, ing Beltowski v. 289 Minn. (1971)). 563, However, 183 allegations N.W.2d 564 in Opsahl’s court must grant evidentiary hearing supporting affidavits meet minimal “whenever dispute evidentiary material facts are in for an standard under * * * (2002). 590.04, § must be resolved in 1 order Minn.Stat. subd. Al- determine the raised on merits.” though generally issues we are reluctant to chal- State, Hodgson conviction, lenge N.W.2d the basis for a we are (Minn.1995). If the to deny hearing post- more reluctant any harbors as to con doubts whether to conviction relief when our decision turns hearing, credibility duct it re recanting should on the witnesses. of granting By concluding solve those favor the hear that the recantations were ing. King v. evaluating unreliable without first standard, In addressing credibility this of the at an witnesses evidentia- *10 in- misap- court 301-02 For serious ry hearing, the and, misconduct, therefore, the prosecutorial § 590.04 stances of plied Minn.Stat. beyond “is prosecutor’s conduct harmless a its discretion. abused if doubt verdict rendered reasonable the of Lar- prong the the Turning to second the surely was unattributable to error.” that the district inquiry, we believe rison grant if a not Id. 302. Even court does by concluding its discretion court abused trial, however, grant a new it must an jury not have reached that the would hearing if evidentiary petitioner alleg- the without the recanted testi- different result that, proven, petition- es if the facts entitle and affidavits chal- mony. The 590.04, § subd. er relief. Minn.Stat. 1. believability of truth or five out lenge the they testified that witnesses who of seven The dismissed postconviction court the incriminating state- heard make Rogowski and Reinitz re- statements particular- are ments. These recantations prosecutorial garding misconduct. The was ly significant physi- because there no the implied statements were murder. linking cal evidence unreliable because these witnesses “ha[d] ques- calls Opsahl’s petition Because into axes grind” prosecutor, with the significant part tion the state’s such charged drug also them with offenses. case, conclude that the circumstantial we The asser- court concluded that Roberts’ postconviction court abused discretion tions were unreli- prosecutorial coercion by concluding that would have Opsahl’s able because she was friend of without the re- reached the same result and “a reluctant witness.” testimony. canted allegations As with the of falsified testi- mony, allegations we believe IV. prosecutorial Opsahl’s peti- misconduct in postconvic Opsahl argues tion supporting affidavits meet by failing tion court abused its discretion for minimal standard hear- evidentiary hearing grant on his 590.04, ing § 1. under Minn.Stat. subd. If prosecutor claim that threatened Reinitz, allegations Rogowski, probation of Reinitz and Ro- revoke credible, they are create a materi- Roberts testify they favorably if did not gowski al of fact with to the circum- respect issue state, provid Roberts into coerced surrounding conviction. stances misleading testimony.2 ing “argumentative These more than are mere assertions”; they proba to revoke the are sworn statements
Threatening they testify allege prosecuting attorney pres- do not tion of witnesses if prosecutori way clearly providing constitutes sured three witnesses into testi- certain mony R. knew al misconduct. See Minn. Prof. Con that he was false mislead- (d). cmt.; 8.4(c), remedy ing. evidentiary hearing, After an duct 3.8 posteonvietion may a new trial conclude that such misconduct is unless coming beyond only a reason these witnesses are for- misconduct harmless three Hunt, satisfy grudge against ward to their able doubt. State v. prosecutor's simply by would committed misconduct also claims that have rights process probation violated due under threatening conduct those witnesses with Brady Brady. requires prosecutor We, therefore, to dis- revocation. need not address exculpatory defense. close withholding this information effect of Opsahl's U.S. at S.Ct. 1194. If from defense. however, true, prosecutor allegations are
425 Nevertheless, peti- when a until prosecutor. presents the state evidence to the presents tioner sworn statements postconvietion court regarding the difficul- testimony some of the used to convict him ties it would encounter in a retrial. At product of improper time, was falsified and the the court is to findings make prosecution, allega- coercion such fact respect to the specific difficulties satisfy requirements tions the minimal for may experience state in a retrial. evidentiary postconvietion hearing. a The court should then make conclusions of
law as to whether those difficulties rise to V. prejudice.” level of “undue Because in argues The state the alternative fully the record is not developed on this lapse Opsahl’s in time between point, we decline to address until this issue filing petition conviction and the of his for the district court has held an evidentiary postconvietion preclude him relief should hearing. receiving postconvietion
from relief. The jurisdiction We retain over this case and argument. court did not address this remand it postconvietion court with grant Opsahl instructions to deliberate, evidentiary party’s
If a inexcus § under Minn.Stat. 590.04 on his delay in a filing petition postcon- able for claims of falsified testimony prosecuto- viction relief rises to the level of “an abuse rial misconduct. When the court judicial conducts process,” may of the the court hearing, it shall make find- deny reaching relief without the merits of ings of fact and State, conclusions of law on the the claim. v. McMaster N.W.2d 551 (Minn.1996). issues of 218, testimony recanted and prosecu- Notwithstanding 218-19 If, torial misconduct. based on the trial diligence petitioner, of a may testimony record and the at the evidentia- grant refuse to trial if new the state ry hearing, the district court “unduly shows that it would determines prejudiced” be trial, that Opsahl is entitled to a State, new it Hoagland a new trial. 518 shall address the 531, argu- state’s alternative N.W.2d 536 As the state out, ten-year ment that the lapse time be- points a court should consider the tween conviction filing and the lapse of time between conviction and a his petition postconvietion for relief should postconvietion for relief when it preclude him receiving from relief. grant determines whether or not to a retri State, al. Host v. 356 N.W.2d 682-83 in part, part, Affirmed reversed in (Minn.1984). Although the timeliness of a remanded. petition is a factor in deciding whether or trial, grant GILBERT, not to it disposi- new is not (concurring part, Justice tive. Hoagland, dissenting See in part). (holding that an eight-year delay filing I concur in majority’s While discus- postconvietion relief did not constitute I, II, sion of this case in sections IV & V judicial an abuse of process). A court and its decision that postconvietion should also examine the nature of the is court did not deny- abuse its discretion in sues and ability of the state to recon trial, ing appellant’s petition for a new I id.; struct its case on retrial. See Wens respectfully majority’s dissent as (Minn.
man v. 342 N.W.2d decision to remand this case for further 1984). evidentiary hearing alleged based on the prejudice may
The level of state recanted five witnesses. suffer from a retrial apparent Appellant will not be chose to submit his evidence to *12 than the con- in affidavit form— sufficient evidence to sustain court postconviction
the to, nu- including, viction but not limited provided by of evidence that is a form and ad- (2002) incriminating statements 590.04, merous § 3 subd. MinmStat. —but by made against penal missions interest holds that the majority the nevertheless appellant only that could known have been abused discretion postconviction court v. by at the State someone crime scene. evidentiary hearing. failing grant in to an (Minn.1994). Opsahl, 513 N.W.2d Furthermore, majority in errs conclud- the during Appellant’s admissions occurred court postconviction the abused its ing that four made to separate statements that he allegations, if the even discretion because 1987, 1988, 1989, police the in and 1990. true, overwhelming the not attack do weapon the Appellant identified .44 caliber (non-recanted) evi- inculpatory amount by pointing in the was used murder For supporting guilty the verdict. dence at weapon out local hardware similar reasons, I the postcon- affirm these would the description store provided deny court’s a further viction decision driving po- it with the residence after evidentiary hearing. lice. also about the Appellant knew details 590.04, § subd. 3 Minnesota Statutes farm the murder occurred. After where (2002), the discretion of provides “[i]n his appellant confronted about court, in the may it receive evidence Kannianen, appellant false alibi with John affidavit, or oral testi- deposition, form of it, responded that if had done Kannianen mony.” language, to this clear Contrary Appellant then not took he was involved. majority today postcon- holds that pres- and had an opportunity stand viction court abused its discretion because case, theory ent his of the rebuttal provide credibility of the it did not “evaluate] testimony to what witnesses had numerous evidentiary hearing,” pre- at an witnesses to, why explain jury and to testified in sumably meaning taking it erred not In initially he had lied. direct appellant’s testimony. This is unwarranted oral appeal, applied we standard traditional for an expansion of the need in the viewing the evidence presented Ferguson that we in recognized light favorable to verdict. See id. most 437, 446 In 645 N.W.2d testimony The recanted in this alleged a statement Ferguson, we held that case convic- pivotal appellant’s was not against the primary father of the witness tion. told him he lied defendant the witness postconviction The in this case court trial an eviden- entitled the defendant pages made review findings. “We tiary hearing on claim. Id. We did so postconviction to determine if proceeding against Ferguson “the case because state’s there to sustain is sufficient evidence wholly and the wit- was circumstantial” postconviction findings, court’s and we will testimony pivotal Fergu- “was ness’s not disturb the court’s decision absent conviction.” Id. The state’s case son’s Rhodes, 627 abuse of discretion.” State v. contrast, was more against appellant, (Minn.2001). Furthermore, dependent not than circumstantial and is determining credibility of witnesses testimony recanting wit- alleged of the post- The best left to the district court. nesses. judge made these conviction judge.1 di- affirming findings original conviction on was also the trial appellant’s The out that pointed we there more appeal, rect held that was Yost, distinguished December Unfortunately, judge, the Honorable L.W. died on alleged lying were all recanting witnesses witnesses were 1992 at the time of personal may now, have friends and appellant’s trial or would have not had served appellant felt remorse after reached a different result re- without the years jail. over 10 The manner testimony. canted was quality the “recanted” any court did not harbor doubts as postconvic- taken into consideration whether to conduct an evidentiary hearing. affidavits, as through tion court sworn *13 King See of cross-examination defense the effect (Minn.2002). Furthermore, although there initial of these during counsel the trial physical linking was no evidence appellant Contrary witnesses. to what the same murder, there significant incul- holds, postconviction majority patory linking appellant evidence the wit- credibility did evaluate murder, including against statements recanta- The court found their nesses. penal that he interest made on numerous be and fur- “inherently suspect” tions to occasions. I would affirm postconvic- that appellant ther found “has not shown finding tion court’s based on the record preponderance a fair of the any before it that error caused in dispute.” that material facts are testimony of these witnesses was harm- this court has to re- Because decided less.2 matter for a mand this further Finally, because this court has decided may appear and the matter hearing, well to remand the case for a further evidentia- again, necessary us I do not before deem it ry hearing, postconviction will my to detail each of prudent views on potential prejudice have to consider the it to the witness’s recantations. Suffice if postconvic- would face state would affirm say, I tion court to order a were new trial. finding that court’s these recantations V, majority section dis- appropriately “inherently on suspect”
were based of the post- cusses some factors that the post- before us. I agree record with conviction court should take into consider- court, aptly conviction which stated: ation on remand. The murder took place analysis final upon In the review of years ago and the trial took place witnesses, the affidavits of the recanting years Two material ago. witnesses speculate dealing one can that we are testified at trial have since died two liars, only with chorus of apparently others cannot be located. being question whether the concert was Prejudice may the state a legitimate be trial, now, at the or is it motion at the problem in this case should postconvic- trial, retrial. If it for a was at the then tion on new court determine remand that a now, they perjurers are all and if it is trial would otherwise be warranted. they unique ability then have the to have memory sharpen passage their with the time. agree
I also with the court’s
findings and conclusion that these whether untimely compli- currently representing appellant appeal. 2003. His death further on opportuni- cates a remand because he had the a rare It should be circumstance in which an ty credibility judge the of the witnesses attorney decides to malte himself or herself in 1992. arguing in a material witness case he or she is appeal. alleging of the re- Two affidavits submitted attorneys are canted affidavits of