STATE оf Minnesota, Respondent, v. Roger Sipe CALDWELL, Appellant, and Roger Sipe CALDWELL, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
Nos. 49437, 51505.
Supreme Court of Minnesota.
Aug. 6, 1982.
Warren Spannaus, Atty. Gen., St. Paul, Alan L. Mitchell, County Atty., John E. DeSanto and Mark S. Rubin, Asst. County Attys., Duluth, for respondent.
AMDAHL, Chief Justice.
This is a consolidated appeal by Roger Sipe Caldwell from his first-degree murder conviction and from the denial of his motion for a new trial on the ground of newly-discovered evidence. We reverse and remand.
Roger Caldwell was arrested on July 6, 1977, in connection with the June 27 murders of Elisabeth Congdon, an elderly Duluth heiress, and her nurse, Velma Pietila. On August 5, 1977, a St. Louis County grand jury indicted him on two counts of murder in the first degree. Because of the extensive publicity surrounding the matter, Caldwell moved for and was granted a change of venue to Crow Wing County. He was found guilty as charged and was given two consecutive life sentences. His wife, Marjorie Caldwell, subsequently was arrested and charged with aiding and abetting and conspiracy to commit murder. She was tried and acquitted of all charges.
Appellant married Marjorie Congdon LeRoy, the adopted daughter of Elisabeth Congdon, in 1976, shortly after Marjorie moved to Colorado. Both had been married previously. Marjorie was one of the beneficiaries of several trusts established by the Congdon family, some of which were to terminate at specified times after the death of Elisabeth Congdon. The total value of the inheritance that Marjorie was eventually to receive as a result of the death of Elisabeth Congdon was estimated at $8,200,000. At the time of the murders, Marjorie was receiving trust income of $22,000 per year from one of the trusts, and appellant was unemployed.
Marjorie Caldwell had a history of extravagant spending. By the spring of 1977, the Caldwells were in serious financial trouble. They had purchased property that they intended to use as a horse ranch, but they were unable to make the payments and lost the property. They then moved into the Holland House Hotel in Golden, Colorado, where they lived until June 28, 1977, when they went to Duluth for Elisabeth Congdon‘s funeral. Despite their financial problems, they bought a horse for Rick LeRoy, Marjorie‘s 16-year-old son for $5,500. In January of 1977, the Caldwells also purchased some turquoise and silver jewelry for $3,500, and took a vacation at a mountain resort at a cost of $5,100. The check that appellant gave the resort was returned, however, because the account had been closed.
On May 25, 1977, appellant went to Duluth, intending to try to obtain from the Congdon trustees $750,000 with which to purchase a ranch and a $50,000 loan to pay debts. Appellant brought with him two letters from Rick LeRoy‘s doctor that stated living on a ranch would benefit Rick‘s health. One of them, which falsely stated that Rick had cystic fibrosis and was involved in testing an experimental drug for the FDA, later proved to have been forged. The trustees turned down appellant‘s request for funds.
The Caldwells had previously received an insurance settlement of $74,000 to compensate them for property that had been stolen from their home. The check had been issued to Marjorie Caldwell and two copayees to whom Marjorie owed $51,000. After receiving the check, the Caldwells persuaded the insurance company to reissue it to Marjorie and a fictitious payee. Appellant then endorsed the check to Marjorie in the name of the fictitious payee. On June 1, he told Marjorie‘s cousin, Thomas Congdon, who
On June 20, 1977, the Golden State Bank in Golden, Colorado, repossessed the Caldwells’ three cars. An arrangement was made with the bank whereby Rick LeRoy was allowed to use one of the cars for transportation to work if he returned it to the bank parking lot every night. On June 22, a gas station attendant took from appellant and Rick LeRoy a Carte Blanche credit card that had been obtained in the name of E. M. Congdon. The Caldwells had run up $756.85 on the account, which was never paid. On the following day, Marjorie Caldwell and appellant pawned some jewelry and received in return a check for $3,000. They cashed the check at a bank, receiving $10 and $20 bills. Some of this money was used to pay overdue horse boarding bills.
Despite these difficulties, Marjorie Caldwell continued to look for real estate to buy. She attempted to enter into several purchase agreements in early 1977, which soon fell through when the Caldwells failed to make payments. Nevertheless, on the weekend preceding the murders, Marjorie asked her real estate agent to show her certain property with a sale price of $1,300,000.
On Friday, June 24, Rick LeRoy found a note from appellant on his bed at the Holland House Hotel. The note stated that appellant and Marjorie would be with real estate people all day Saturday and Sunday and that Rick could stay out until 12:30 both nights. Accompanying the note was $50 in cash, which appellant left for Rick to use for dates and gasoline. The real estate agent never saw appellant during that weekend. Rick LeRoy did not see him between Wednesday, June 22, and Monday, June 27, although he claimed to have seen two bodies sleeping in the bed in his mother‘s room at about 1:30 a. m. on June 27.
At abоut 7:00 on the same morning, Elisabeth Congdon‘s day nurse discovered the body of Velma Pietila on the landing on the main stairway of the Congdon mansion in Duluth. She ran to Elisabeth Congdon‘s bedroom and found Miss Congdon lying dead with a pillow covering her face. Police found strands of hair clutched in both of Velma Pietila‘s hands, a dark-colored nylon stocking tied around her left wrist, and a damaged candlestick near the body. An autopsy showed that Pietila had died of a skull fracture and loss of blood. An autopsy of Elisabeth Congdon‘s body revealed that the bruises on her body were inflicted shortly before her death. Marks on her left wrist and little finger indicated that she had worn a watch and a ring that were removed after she died. Miss Congdon was determined to have died of suffocation at approximately 2:00 on the morning of June 27.
Upon searching the mansion, police discovered what they suspected to be the intruder‘s point of entry. A pane of glass in the upper sash of a basement window was broken, and a mark that appeared to have been caused by a foot impression was found on a sofa underneath the broken window. During an experiment conducted at appellant‘s trial, a police officer whose arm was smaller in circumference than appellant‘s was unable to reach through the broken window and unlatch the sash without dislodging a piece of glass. Various parts of the mansion were dusted for fingerprints. Police found no latent fingerprints in Miss Congdon‘s bedroom, but discovered a small, poor-quality latent print on the candlestick. Appellant was eliminated as a possible source of this fingerprint, and none of his fingerprints were found elsewhere in the Congdon home. However, an analysis of hairs found near Velma Pietila‘s body showed that they “could have” been appel
The car that Velma Pietila drove to the Congdon mansion on the night of June 26 was missing when the police arrived the following morning. A maintenance man discovered the keys to that car in a trash can at the Minneapolis-St. Paul International Airport at 8:30 a. m. The police found the car itself at 11 a. m. in the airport‘s short-term parking lot, and they discovered the parking ticket for the car in the same trash can in which the maintenance man found the keys. The time stamped on the ticket was 6:35 a. m. No fingerprints were found on the ticket, and the only fingerprint in the car that was identified proved to be that of Mrs. Pietila‘s husband. A blood stain of Type O blood was found on the floor of the car.
At 9:30 on the same morning, appellant came into the Golden State Bank in Golden, Colorado to notify a loan officer, John Hannagan, that Rick LeRoy had to take one of the Caldwell cars from the bank parking lot at an earlier time than usual in order to get to work by 8:30.1 Hannagan noticed nothing unusual about appellant‘s demeanor or appearance.
At approximately 1:45 that afternoon, Bertha Huskins, the desk clerk at the Holland House Hotel, received a telephone call from appellant. He instructed her to leave a message for Marjorie to pick him up. When Ms. Huskins asked him where Marjorie should go, appellant replied, “It does not matter, she knows.”
At 7:00 on the morning of Tuesday, June 28, appellant telephoned the owner of the Wild Wood Farms, where the Caldwells boarded a horse, and stated that his mother-in-law had been killed and that the inheritance “of about $10,000,000” would cover the bills and the purchase of a horse for Rick. Later that day apрellant went to the Golden State Bank to pick up the money for the trip to Duluth for the funeral. John Hannagan noticed that appellant seemed nervous and in a hurry, and that he had a scratch on his lip and one swollen hand. Appellant told Hannagan that he had cut himself shaving and that a horse had stepped on his hand.2 While he was at the bank, appellant opened a safe deposit box and placed some papers in it. One of these papers was a handwritten document, written and signed by Marjorie Caldwell and dated June 24, 1977, in which Marjorie conveyed irrevocably to appellant all of the money—approximately $2,000,000—due her from the Chester A. Congdon Trust upon the death of Elisabeth Congdon.
Appellant, Marjorie Caldwell, and Rick LeRoy arrived at the Minneapolis airport on Tuesday, June 28. They were met by Marjorie‘s attorney, David Arnold, who noticed that appellant had a cut above his eyebrow and one near his lip. They flew to Duluth the same day, and checked into Rooms 801 and 803 of the Duluth Radisson Hotel, where they stayed the nights of June 28 and 29. Police officers who met with Marjorie, appellant, and David Arnold at the Duluth police department on June 29 also noticed that appellant had a cut or scratch
On June 29, appellant telephoned Marjorie Caldwell‘s riding instructor from Duluth and told her to arrange for the purchase of a horse for Rick. The estimated cost of a horse of the type appellant requested would have been between $40,000 and $75,000. Appellant did not mention the death of Elisabeth Congdon during this conversation.
On the evening of June 30, several Duluth police detectives went to the Duluth Radisson to interview the Caldwells. Upon learning that the Caldwells had left the hotel that afternoon, they obtained permission to search rooms 801 and 803. They found an old suitcase, which was identified as one appellant had brought from Coloradо, and two boxes from a Duluth clothing store. Attached to the suitcase was a North Central Airlines baggage tag numbered 86349 from the Caldwells’ flight from Minneapolis to Duluth on June 28. Inside one of the discarded boxes police found a sales receipt from Host of Minneapolis, a gift shop in the Minneapolis Airport. No latent fingerprints were found on the receipt.
On July 5, the Duluth police, having discovered that the Caldwells were then registered at Room 307 of the Holiday Inn in Bloomington, obtained a search warrant for that room. The Caldwells were not present when the police arrived because appellant had become ill that morning and had been rushed to Methodist Hospital in St. Louis Park. In the hotel room, police found clothing lying on the beds, apparently in preparation for packing, and a wicker case or basket similar to one missing from Elisabeth Congdon‘s bedroom closet. They also found a tan suede garment bag and, inside the drawer of a nightstand, a blue plastic container filled with jewelry. Some of the jewelry was identified as having belonged to Elisabeth Congdon; the watch and the ring missing from her body were among the items in the container. Seventeen other pieces of jewelry that were missing from the Congdon home were never recovered. Most of the other jewelry found in the container was identified as belonging to Marjorie Caldwell. The North Central Airlines tag on the garment bag was numbered 86350. This baggage tag was consecutive in number to the tag attached to the old suitcase that appellant brought from Colorado to Duluth and left in the room at the Duluth Radisson. The name on the identification tag on the bag appeared to have been written in appellant‘s handwriting. The items found in the Caldwells’ room at the Holiday Inn were processed for latent fingerprints, but none were produced.
By approximately 10:30 a. m. on June 27, Colorado police had been notified that apрellant was a suspect in the murders, and they immediately began an investigation. On July 2, Bertha Huskins, the Holland House desk clerk, told police that a Radisson Duluth envelope, which was addressed to appellant in what appeared to be appellant‘s own handwriting, had arrived at the hotel on June 29. The letter was postmarked Duluth, June 27, 1977. The police seized the envelope pursuant to a warrant, and found inside it a smaller, folded envelope that contained a gold coin. The coin was identified as one that was missing from a display case in Elisabeth Congdon‘s bedroom. A latent fingerprint identified as appellant‘s was found on the back of the envelope. No identifiable fingerprints were found on the coin itself.
On July 1, Duluth police interviewed two employees of the Host Gift Shop in the Minneapolis Airport. Both told police that a man carrying a wicker case had purchased a suede garment bag early on the morning of June 27. They looked at six photographs. One of the employees, Sandra Schwarzbauer, identified appellant‘s photograph as depicting someone she had seen before. On July 5, Ms. Schwarzbauer picked out a different picture of appellant, but then stated that she was not sure that appellant was the man who bought the bag because the man in the shop had been wearing glasses. The other witness eliminated appellant as the man in the shop; she instead identified another photograph as possibly depicting the person in the gift shop.
At appellant‘s trial, the State‘s fingerprint expert, Steven Sedlacek, testified that the fingerprint on the envelope that contained the gold coin was identical to the known print of appellant‘s right thumb. Sedlacek‘s testimоny was based upon his comparison on July 2 and 3 of the developed fingerprint on the envelope with appellant‘s known fingerprints. Sedlacek developed the fingerprint, using a chemical called ninhydrin, on the night of July 2, 1977, immediately after he received the envelope. He photographed the print as soon as he developed it because ninhydrin prints gradually deteriorate. Using the negative of that photograph, Sedlacek later made an enlargement of a part of the print to use for demonstrative purposes at the trial. During the trial 1 year later, appellant‘s attorney took the envelope, the enlargement, and appellant‘s known prints to another expert, who examined only the enlargement and agreed that the fingerprint appeared to be appellant‘s. Defense counsel therefore did not call the expert at trial. The State‘s handwriting expert testified at the trial that the handwriting on the envelope was that of appellant, although she admitted that certain discrepancies existed between the writing on the envelope and appellant‘s handwriting exemplars. Appellant‘s expert testified that the writing had been done slowly and was probably a forgery.
At the trial, both of the Host Gift Shop employees positively identified appellant as the man who bought the suede garment bag on the morning of June 27, 1977. They testified that the man was carrying a wicker basket, which he attempted to put inside the suede bag after making the purchase. The witness from whom the man purchased the bag testified that the bag was of the same type as the one found in appellant‘s hotel room, and that the man paid for it with three $20 bills. One of the witnesses described the man in the shop as 5′ 10″ tall, weighing about 190 lbs., about 45–47 years old, paunchy, with short, curly hair and a light complexion, and wearing tinted glasses and a short-sleeved yellow shirt. The other witness described the man as 5′ 10″ tall, 180–190 lbs., with short sideburns, a large stomach, and wearing white, tinted glasses, blue jeans and an alpaca sweater. Despite the differences in their descriptions, however, both witnesses identified appellant in the courtroom. Because the witnesses had seen in the news media some of the same photographs of appellant that police previously had shown them, appellant argued that the in-court identification was unreliable and should not have been admitted into evidence. The trial court denied his motion to strike the identifications.
After deliberating for 3 days, the jury returned two verdicts of guilty of murder in the first degree. Approximately 1 year later, appellant‘s wife, Marjorie Caldwell, was acquitted of all charges of aiding and abetting and conspiracy to commit murder. After Marjorie‘s acquittal, appellant petitioned the court for a new trial on the grounds of newly-discovered evidence, discovery violations by the prosecution, and prosecutorial misconduct. The court denied the motion.
Appellant has raised the following issues in this appeal:
- Whether the postconviction court abused its discretion by denying appellant‘s motion for a new trial based upon newly-discovered evidence that is alleged to have resulted in the acquittal of Marjorie Caldwell;
- Whether the postconviction court erred by failing to order a new trial on the grounds of the prosecutor‘s alleged violation of discovery rules and appellant‘s constitutional rights;
- Whether appellant was denied his right to a fair trial by statements made by the prosecutor in his closing argument and by testimony elicited in violation of a court order;
- Whether the verdict form, which required the jury to determine appellant‘s guilt or innocence, was an incorrect state
ment of the law that required the jury to use an improper standard to determine his guilt; - Whether the in-court identification of appellant by the employеes at the Host Gift Shop after they had seen the same photographs of appellant in the newspapers that police showed them before the trial created a substantial likelihood of misidentification; and
- Whether the evidence presented at the trial was sufficient to support appellant‘s conviction.
1. Appellant argues that if certain evidence that was introduced at Marjorie Caldwell‘s trial had been available to him, he probably would have been acquitted. He also asserts that much of this evidence was known to the prosecutor and that the prosecutor‘s failure to disclose it was a violation of discovery rules. The evidence that appellant characterizes as newly discovered and thus entitling him to a new trial is: expert testimony, based on a negative allegedly not available at appellant‘s trial, that the fingerprint on the envelope that contained the gold coin was definitely not appellant‘s; testimony of Candice Byers, a waitress at the Holland House Hotel, that she saw appellant at about 10 p. m. on the night of June 26, 1977; a statement by appellant‘s former wife that appellant‘s “coin collection” was merely a jar of pennies; a statement by Thomas Congdon in which he told a Duluth police officer that he had hired private detectives immediately after the murders to follow the Caldwells; and statements made by the private detectives.
The envelope containing the gold coin is significant because it is the only evidence
In a subpoena issued prior to appellant‘s trial, appellant‘s attorney had directed the prosecutor to produce all documents relating to the fingerprint evidence, but he did not specifically request the negative. A report that Sedlacek had prepared did not mention the negative, although Sedlacek stated at trial that his report included all matters relating to the identification of the fingerprint. Appellant‘s attorney had never received the negative and was not specifically informed of its existence.
By the time of Marjorie Caldwell‘s trial 1 year later, the original fingerprint had become almost invisible. Sedlacek testified then that he had noticed some deterioration at the time of appellant‘s trial; however, he had not disclosed this fact either to appel
Candice Byers, a waitress at the Holland House Hotel, testified at Marjorie Caldwell‘s trial that she saw appellant in the hotel lobby at about 10 p. m. on June 26, 1977. This testimony is significant because if appellant actually had been in Golden at 10 p. m. Colorado time, it is highly unlikely that he could have traveled to Duluth and committed the murders at 2 a. m. Minnesota time, the estimated time of the victims’ deaths. Appellant contends that Byers’ testimony was newly-discovered evidence that could not have been discovered through reasonable diligence by the time of the trial. Byers’ name was not on the prosecutor‘s list of prospective witnesses. Furthermore, because Byers told Colorado police on July 1, 1977, that she did not recall having seen the Caldwells on June 26, and because on July 9 she gave the police a written statement to the same effect, appellant‘s counsel did not consider her to be a likely source of favorable defense testimony. Appellant therefore argues that the failure to interview Byers before the trial did not constitute a lack of diligence.
On April 19, 1979, an investigator and an attorney for Marjorie Caldwell interviewed Byers in Colorado. She told them that she had seen Roger Caldwell on the night of June 26, 1977, and that she was certain of the day because she remembered that at the time she saw him she was “sneaking” a beer from the hotel bar, which was closed on Sundays. She stated at the trial that she did not disclose this information to police in June 1977 because she was not then aware of its significance. The State contends that Byers’ testimony is not newly-discovered evidence because she was known to appellant‘s counsel at the time of the trial, and that her testimony is untrustworthy in light of her previous statements to police.
The cornerstone of appellant‘s defense is his contention that he was framed by other members of the Congdon family, and that much of the evidence adduced at trial supports this theory. Appellant‘s frameup defense as presented at his trial was based in large measure on the State‘s lack of evidence proving that he had flown to and from Colorado on the 26th and 27th of June and on the apparent absurdity of the theft of Elisabeth Congdon‘s jewelry when the alleged motive for the murder was to hasten Marjorie Caldwell‘s receipt of her inheritance. Appellant did not produce any positive evidence at trial that he had been framed.
Thomas Congdon testified at appellant‘s trial, by means of a videotape deposition, regarding certain of his activities following the murders. Appellant contends that it was not until Marjorie‘s trial that appellant‘s counsel discovered that, immediately after the murders, Congdon had hired a private detective agency to follow and observe the Caldwells. On June 29, 1977, Congdon had conversed by telephone with Sergeant Greene of the Duluth Police Department. During this conversation, which was recorded, Congdon explained to Greene that he had hired detectives to protect his family, and that “information can be bought so I gave some money to a group called Colorado Private Investigators, a guy named William Furman, and I told him to go out in the street and use the funds in a
Appellant argues, however, that this conversation is persuasive evidence that he was framed by someone who hired Furman and Fick to plant incriminating evidence such as the jewelry and the garment bag in his hotel rooms in Duluth and Bloomington. The State contends that both the transcript of the conversation and the police report accompanying it were given to appellant‘s counsel in September of 1977, not in May of 1978 as appellant claims. According to the State, at the beginning of appellant‘s cross-examination of Thomas Congdon on May 26, 1978, the prosecutor handed a copy of the police report and the attached transcript of the telephone conversation to appellant‘s attorney, stating “I believe you have a copy of it.” As appellant‘s attorney took the report and transcript, he replied, “I just didn‘t have it in front of me, here.” The State contends that this interchange must lead to the conclusion that appellant‘s counsel actually had a copy of the report and statement before the trial. Appellant‘s counsel insists, however, that he had a copy of the police report and a summary of the conversation, but that he never received a copy of the transcript itself. The postconviction сourt nevertheless found that the transcript had been disclosed to appellant‘s counsel and therefore clearly did not constitute newly-discovered evidence.
In April of 1978, the prosecutor received transcripts of conversations between an agent of the Colorado Bureau of Investigation and two of Congdon‘s private detectives, William Furman and Gary Fick. During one of these conversations, Furman told the CBI agent that he and Fick had gone to Duluth on June 28, 1977, had followed the Caldwells to the Duluth Radisson, and that at about 11:50 that night, they “were able to overhear the Caldwells at their door stating, ‘I hope we can get away with this.’” Furman and Fick both had been listed as prosecution witnesses, but the State later concluded that they were not telling the truth and decided not to call them as witnesses. Appellant neither specifically requested nor received copies of the transcripts of Fick‘s and Furman‘s conversations.
William Furman testified at Marjorie Caldwell‘s trial but refused to answer questions on the ground of self-incrimination relating to the extent of his investigation in Minnesota. Furman admitted that Thomas Congdon had hired him, but denied ever having been to Duluth or to the Caldwells’ Bloomington hotel room. It appeared that Furman had falsified some of the reports he made to Congdon in an effort to justify his fees, and that he refused to answer questions about his investigation of the Caldwells in order to avoid prosecution under Colorado law.
Appellant asserts that the statements of Furman and Fick, together with the transcript of Thomas Congdon‘s conversation with Sergeant Greene, constitute newly-discovered evidence that Furman, Fick, or other employees of the detective agency had been present at all of the places in which incriminating evidence was found, and that the prosecutor‘s failure to produce Furman‘s and Fick‘s statements merely because he believed that thеy were lying constituted a violation of
The State had introduced as evidence in appellant‘s trial a copy of a divorce decree awarding appellant a coin collection. The prosecutor used this document as evidence that appellant had an interest in coins that would motivate him to steal the gold coin from Elisabeth Congdon‘s bedroom and mail it to Colorado. Appellant‘s counsel attempted to show that appellant was not a serious coin collector and that the “collection” in question was merely a jar of pennies. After appellant‘s conviction but before Marjorie Caldwell‘s trial, Marjorie Caldwell‘s lawyer obtained from the prosecutor a statement made by appellant‘s former wife, Martha Caldwell, to the effect that appellant did not own a coin collection as such, but had been awarded only some pennies, nickels, and dimes worth a total of $50 to $100. Appellant contends that Martha Caldwell‘s statement also should be regarded as newly-discovered evidence.
Of all of the material appellant urges this court to hold to be newly-discovered evidence entitling him to a new trial, the most troubling is the fingerprint on the envelope. The State argues that, since appellant‘s counsel undoubtedly knew or shоuld have known that the enlargements of the fingerprint had to have been made from a negative, he failed to exercise due diligence because he did not make a specific request for the negative. The postconviction court agreed, and held further that the State did not violate discovery rules by failing to disclose or to produce the negative.
We agree that the prosecutor did not violate the discovery rules with respect to the negative.
The federal courts traditionally have applied two different rules to requests for new trials on the ground of newly-discovered evidence. The traditional test is whether the new evidence “is so material that it would probably produce a different verdict if the new trial were granted.” Berry v. State, 10 Ga. 511, 527 (1851). In certain cases, however, where the evidence in question is not actually “newly-discovered” but where a witness has recаnted or it has been discovered that false testimony was given at the trial, the so-called “Larrison rule” applies.6 This rule provides that a new trial may be granted on the grounds of false or perjured testimony where:
(b) That without it the jury might have reached a different conclusion.
(c) That 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.
Larrison v. United States, 24 F.2d 82, 87–88 (7th Cir. 1928) (emphasis in original); see, e.g., United States v. Johnson, 327 U.S. 106, 111 n.5, 66 S.Ct. 464, 466 n.5, 90 L.Ed. 562 (1946); United States v. Wallace, 528 F.2d 863 (4th Cir. 1976); Newman v. United States, 238 F.2d 861 (5th Cir. 1956); Gordon v. United States, 178 F.2d 896 (6th Cir. 1949), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); United States v. Persico, 339 F.Supp. 1077 (E.D.N.Y.), aff‘d, 467 F.2d 485 (2d Cir. 1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1360, 35 L.Ed.2d 613 (1973). 2 C. Wright, Federal Practice and Procedure, § 557 at 525 (1969).
The Court of Appeals for the Ninth Circuit has criticized the Larrison rule, arguing that no reason exists for treating false testimony differently from newly-discovered evidence. United States v. Krasny, 607 F.2d 840, 844 (9th Cir. 1979) cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980). We disagree. In the case of ordinary newly-discovered evidence, as, for example, where a witness comes forward who did not testify at the defendant‘s trial, a heightened standard of materiality—that the new evidence “probably” would produce a different result—seems to be necessary because this new evidence has not been tried. The trial court is thus required to anticipate the effect on a second trial of evidence of unknown reliability. To avoid
[O]n an ordinary motion for a new trial the court is concerned with the probable effect which the newly discovered evidence might have had upon another trial. In contrast, where the motion is based upon false swearing, the concern of the court must be as to the probable effect produced on the trial already had. In the former case, the court looks to the future, in the latter to the past, and the sole question is whether the defendant‘s right
to a fair trial has been prejudiced by reason of the false testimony.
Id. at 44. The same court went on to point out:
There is no way for a court to determine that the perjured testimony did not have controlling weight with the jury, and, notwithstanding the perjured testimony was contradicted at the trial, a new light is thrown on it by the admission that it was false, so that, on a new trial, there would be a strong circumstance in favor of the losing party that did not exist and therefore could not have been shown, at the time of the original trial.
Id. (quoting Martin v. United States, 17 F.2d 973, 976 (5th Cir. 1927)).
The fingerprint expert‘s testimony was damning—and it was false. It was unquestionably material; its significance should not be underestimated. Although the subsequent determination that someone other than appellant made the fingerprint does not eliminate the possibility that appellant was in Duluth on June 26 and 27, the State produced no evidence other than the fingerprint and the handwriting on the envelope that showed him to have been there on those dates. Sedlacek‘s testimony, uncontroverted at trial because appellant‘s expert apparently had been unable to make an acсurate identification from the enlarge
An appellate court cannot retry the facts, but must take the view most favorable to the State and must assume that the jury believed the state‘s witnesses and disbelieved any contrary evidence. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). If, as we must assume, the jury believed that the fingerprint was appellant‘s and that therefore he must have been in Duluth at the time the murders were committed, it relied in part on totally incorrect evidence in finding appellant guilty. He has the right to be tried, insofar as possible, on the basis of true and correct evidence; to deny him this right is to deny him a fair trial.9
Some courts have held that the Larrison rule‘s less stringent standard of materiality is appropriate only where the witness’ testimony was deliberately false. See, e.g., United States v. Strauss, 443 F.2d 986, 989–90 (1st Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971). Although the rule is generally used in cases involving perjured or recanted testimony,10 the court in Larrison actually relied on Martin v. United States,11 17 F.2d 973 (5th Cir. 1927), in which the court stated:
In our opinion it is the duty of a trial court to grant a new trial, where a witness at the original trial subsequently admits on oath that he committed perjury, or even that he was mistaken in his testimony, provided such testimony related to a material issue, and was not cumulative.
Id. at 976 (emphasis added); see LaFever, Inc. v. All-Star Insurance Corp., 571 F.2d 1367 (5th Cir. 1978) (dictum); United States v. McBride, 463 F.2d 44, 51 (5th Cir.), cert. denied, 409 U.S. 1027, 93 S.Ct. 475, 34 L.Ed.2d 320 (1972) (Rives, J., dissenting on other grounds). We believe this approach is preferable to that which requires a showing of deliberate falsehood on the part of the witness; we do not believe that the witness’ state of mind necessarily should be the factor that determines whether a defendant is entitled to a new trial. In fact, the discovery in this case that the fingerprint expert had misidentified the fingerprint lacks the dubious character of a recantation. We therefore hold that, under the unusual circumstances of this case, where the uncontroverted testimony of the state‘s expert subsequently proves to be incorrect and that testimony was the basis of the only circumstantial evidence tending to establish that appellant was in Duluth on the date of the murders, appellant is entitled to a new trial. Although Sedlacek never “recanted” his own testimony, there appears to be no doubt that the fingerprint was misidentified, and the postconviction court did not
We also hold that under the unique circumstances of this case, the alibi testimony of Candice Byers may be considered newly-discovered evidence. A new trial may be granted on the basis of newly-discovеred evidence if the petitioner shows that the evidence could not have been discovered through the exercise of due diligence before the trial; that at the time of the trial the evidence was not within petitioner‘s or his counsel‘s knowledge; that the evidence is not impeaching, cumulative, or doubtful; and that it would probably produce a result different from or more favorable than that which actually occurred. See, e.g., Martin v. State, 295 N.W.2d 76, 78 (Minn.1980); State v. Klotter, 274 Minn. 58, 64, 142 N.W.2d 568, 572 (1966). The testimony of this alibi witness, who stated at Marjorie Caldwell‘s trial that she saw appellant in the hotel in Colorado on the same night that the murders were committed in Duluth, could be material enough to meet the “probability” requirement of the Berry test for newly-discovered evidence. Furthermore, although appellant‘s counsel received a copy of the witness’ statement, which then contained information unfavorable to appellant, her name did not appear on the prosecutor‘s list of 207 prospective witnesses. While we caution that the size of a case and the number of witnesses involved may never be used as an excuse for an inadequate investigation, we do not believe that due diligence necessarily requires defense counsel in a case of this magnitude to reinterview persons who are not listed as prospective witnesses and whose prior statements indicate that they possess no information helpful or relevant to the case. We also disagree with the State‘s argument that even if appellant‘s counsel had exer
The statement of Martha Caldwell regаrding the coin collection was not newly-discovered evidence. The postconviction court concluded correctly that appellant‘s counsel‘s failure to interview Martha Caldwell constituted a lack of due diligence and that her statement would not have materially affected the outcome of the case.
2. We concur with the postconviction court‘s holding that, while the statements of the private detectives Fick and Furman should not be considered newly-discovered evidence, the prosecutor violated
3. Appellant also contends that he was denied his right to a fair trial by certain prejudicial statements he alleges the prosecutor made in his closing argument and by the prosecutor‘s elicitation of testimony in violation of a court order. Appellant asserts that during the trial the prosecutor deliberately elicited evidence regarding certain bad checks appellant allegedly wrote, despite the trial court‘s ruling that such evidence was inadmissible because the prej
In his closing argument, the prosecutor made two remarks suggesting that appellant had manufactured evidence. Following each of the comments, appellant moved for a mistrial. The court denied appellant‘s motions, but instructed the jury to disregard the prosecutor‘s remarks. Later in his argument, the prosecutor commented on appellant‘s “absence of activities” during the time the murders were committed. Defense counsel objected, and the court instructed the jury that appellant was not required to prove his innocence.
In State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974), we defined the test for prosecutorial misconduct as follows:
The test of determining whether prosecutorial misconduct was harmless depends partly upon the type of misconduct with which we are dealing. That is, the more serious the misconduct, the more certain of its effect this court has felt that it should be before labeling the error harmless. Thus, in cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has
applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.
Id. at 127–28, 218 N.W.2d at 200. Appellant contends that, “viewed collectively,” the prosecutor‘s “attempts to subvert the court‘s order constitute prosecutorial misconduct of the highest order.” The State responds that the prosecutor did not deliberately elicit statements regarding the checks, and, in fact, attempted to prevent one witnеss from mentioning them. The State also points out that the letter offered into evidence was received without appellant‘s objection. Failure of the defendant to object is a significant factor in a decision whether to order a new trial on the ground of prosecutorial misconduct. See State v. Caron, 300 Minn. at 127, 218 N.W.2d at 200.
The State argues that the alleged misconduct was harmless, although the trial court believed that the admission of statements regarding the checks was prejudicial. It is not clear that the prosecutor deliberately attempted to elicit the testimony in question; additionally, the fact that defense counsel failed to object to the offering into evidence of the letter militates against a finding of serious prosecutorial misconduct. If the misconduct is not extremely serious, the second part of the Caron test applies; in this case, the introduction of evidence that appellant and his wife wrote three checks while their checking account contained insufficient funds probably did not by itself play a substantial part in influencing the jury to convict appellant.
Appellant also contends that the court‘s corrective instructions were insufficient to overcome the prejudicial effects of the prosecutor‘s remarks. With respect to the propriety of the prosecutor‘s statement that appellant‘s absence would not be explained, we noted in State v. Bell, 294 Minn. 189, 199, 199 N.W.2d 769, 772 (1972), that:
While we do not believe remarks made by the prosecutor were so prejudicial as to amount to a denial of a fair trial, we do note with disapproval counsel‘s comment upon the failure of the defense to call witnesses to support de
fendant‘s alibi. * * * [W]e indicated that such argument by the prosecution, while not necessarily warranting a new trial, does not meet with the approval of this court. In this instance, the trial court‘s carefully worded instructions to the jury adequately prevented any prejudice to defendant from occurring as a result of counsel‘s indiscretion.
Id. at 192, 199 N.W.2d at 771 (citation omitted). In State v. Fossen, 282 N.W.2d 496 (Minn.1979), we stated that “[w]hether the prosecutor acted improperly in his final argument to the jury is largely a matter within the sound discretion of the trial court.” Id. at 503 (footnote omitted). In Fossen, the prosecutor implied in his closing argument that the defense had tampered with certain evidence and that defense counsel had acted unethically by attempting to raise inaccurate inferences. Id. at 503–05. We concluded that the trial court‘s cautionary instructions and the effective rebuttal by defense counsel of the State‘s arguments prevented any improper considerations from influencing the jury‘s verdict. The difference in the instant case is that the prosecutor made questionable statements on three separate occasions; appellant argues that the cumulative effect of the repeated remarks could not be overcome by the court‘s instructions.
This court has held that the giving of cautionary instructions by the trial court is a significant factor favoring the denial of a motion for a mistrial. See State v. Carlson, 264 N.W.2d 639, 642 (Minn.1978). Although we need not decide whether the prosecutor‘s conduct by itself warrants reversal,16 we are concerned with its effect on the jury in conjunction with the false fingerprint evidence. The prosecutor‘s remarks implying that evidence had been falsified and his comment regarding the failure of appellant to explain his absence were absolutely inappropriate and impermissible, and it is questionable whether, under the circumstances of this case, the court‘s cautionary instructions could have prevented the jury from reaching conclusions that were unduly prejudicial to appellant. We noted in State v. Reardon, 245 Minn. 509, 73 N.W.2d 192 (1955) that where “the impact of the prejudicial remark may be such as to impart to the minds of the jury substantial prejudicial evidence not properly a part of the case, it
4. Appellant argues, in addition, that the jury verdict form submitted to the jurors contained an improper statement of the law that prejudiced his right to be found guilty only on the basis of proof beyond a reasonable doubt. The jury had been instructed that it would be given the following verdict forms to take into the jury room:
We, the jury in the above-entitled action, find the Defendant, Roger Sipe Caldwell, not guilty; or
We, the jury in the above-entitled action, find the Defendant, Roger Sipe Caldwell, guilty of murder in the first degree.
The verdict form that the jury actually received, however, read as follows:
We, the jury impaneled and sworn to try the guilt or innocence of the above-named Defendant, find said Defendant, Roger Sipe Caldwell, guilty (emphasis added).
Immediately after the verdict was returned, appellant moved for a mistrial, contending that because the jury may consider whether the defendant is guilty or not guilty but not whether he is innocent, the verdict form erroneously stated the law. The State contends that appellant waived his right to challenge the verdict form on appeal because his counsel failed to examine it before it was given to the jury.
In State v. Brouillette, 286 N.W.2d 702 (Minn.1979), we held that the use of the very same verdict form, along with the court‘s statement that the function of the jury was to determine the defendant‘s guilt or innocence, did not justify reversal of the defendant‘s conviction because the defendant did not object to the alleged misstate
In Brouillette, we upheld the defendant‘s conviction in part because it was apparent that the jury was not misled regarding the proper presumption of innocence. Since the court had on two occasions correctly instructed the jury on the State‘s burden of proof and the presumption of innocence, we concluded that the instructions, taken as a whole, were insufficiently defective to justify reversal. In the instant case, on the morning after receiving the instructions, the jury requested a rereading of the rules on circumstantial evidence. The court reread the rules, and added the following remark:
All that the defendant has to do, is bring into your minds such a condition that when you consider all the evidence you are not able to say that he is guilty beyond a reasonable doubt; he doesn‘t have to prove his innocence. The State must prove him guilty by proof beyond a reasonable doubt.
Read as a whole, all of the court‘s instructions to the jury might have been sufficient to impress upon them the proper burden of proof and presumption of innocence. We
5. Appellant‘s objection to the in-court identification of appellant as the purchaser of the garment bag at the Host Gift Shop on the grounds of the witnesses’ pretrial exposure to media photographs of appellant is without merit. Appellant states that the witnesses could not have clearly observed the man in the store. However, one of them saw him at close range while he was the only customer in the store. More important is the fact that the accuracy of the witnesses’ identification and the likelihood that they were influenced by pretrial publicity are matters going to the weight to be given the identification, rather than to its admissibility. See State v. Senske, 291 Minn. 228, 230, 190 N.W.2d 658, 660 (1971). The jury was in a position to consider the credibility of the witnesses and to hear defense counsel challenge the accuracy of the identification during cross-examination, and was aware that the witnesses had previously seen appellant‘s photograph in the newspaper. Consequently, we hold that the identification was not unduly prejudicial.
6. We need not decide whether the evidence presented at trial was sufficient to sustain appellant‘s conviction, since we have ordered a new trial on other grounds; however, we note that on the basis of the evidence as it was presented at appellant‘s trial, the jury, acting in accordance with the presumption of innocence and proof beyond a reasonable dоubt, could have reasonably concluded that appellant was guilty as charged. See State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). The problem is that certain material evidence later proved to be false. Our decision that appellant should receive a new trial is based not on a conclusion that the State‘s evidence as the jury heard it was insufficient to sustain the verdict, but on the fact that the jury heard false testimony of a highly incriminating nature. As a result, he did not receive a fair trial. In State v. Reardon, 245 Minn. 509, 514, 73 N.W.2d 192, 195 (1955), we remarked that there was “cogent evidence to support the verdict; and it may be expected that on a second trial the result would be the same. But to allow factually strong cases to erode such a basic right is to deny the existence of the right.” Id. It may well be that when the appellant presents these new matters to a jury, the State‘s evidence will still prove sufficient to convict him, but we believe that to allow a conviction to be based even in part upon such manifestly inaccurate and prejudicial testimony as the fingerprint identification would be a serious injustice.
Reversed and remanded.
KELLEY, J., took no part in the consideration or decision of this case.
PETERSON, Justice (dissenting).
In reversing defendant‘s conviction for first-degree murder, the majority of the court departs from the traditional “probability” standard for determining whether newly discovered evidence warrants a new trial, adopts the Larrison “possibility” rule and applies the rule in circumstances where it has never before been applied by any state or federal court. I disagree with the ultimate decision to reverse defendant‘s conviction and the manner in which the majority arrives at its decision. The majority fails to explain why the traditional rule is inadequate in these circumstances, why it chooses to follow the Larrison rule or why the application of the Larrison rule is justified where the testimony at issue is merely erroneous rather than deliberately false. I believe that the time-hоnored probability standard, which has always been adhered to in Minnesota before this case, should be followed, and, for this reason, I dissent.
Under the traditional standard for determining whether newly discovered evidence warrants a new trial, the threshold inquiry
A new trial may be granted on the basis of newly discovered evidence under the traditional Minnesota standard only where the new evidence is such as will probably produce a different result on retrial. Martin v. State, 295 N.W.2d 76, 78 (Minn.1980); State v. Klotter, 274 Minn. 58, 64, 142 N.W.2d 568, 572 (1966); State v. Weis, 186 Minn. 342, 344, 243 N.W. 135, 135–36 (1932). As this court has stated:
One of the controlling inquiries in determining whether a new trial should be granted on [the ground of newly discovered evidence] is whether the new evidence, if produced, will be likely to change the result; and unless it has a substantial tendency towards showing the innocence of defendants, a new trial should not be granted.
State v. Nelson, 91 Minn. 143, 155, 97 N.W. 652, 657 (1903).
Respected courts in other jurisdictions have held that it is “not sufficient for [the defendant] to bring in new evidence from which a jury could find him not guilty—it must be evidence which persuades the judge that a jury would find him not guilty.” Lombardo v. State, 172 Conn. 385, 391, 374 A.2d 1065, 1068 (1977). Accord Commonwealth v. Markham, — Mass.App. —, 411 N.E.2d 494, 496 (1980). Other courts have similarly instructed that “the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached.” State v. Miles, 402 So.2d 644, 649 (La.1981). Accord State v. Terroni, 270 A.2d 75, 78 (Me.1970). Justice Benjamin Cardozo, then judge of the New York Court of Appeals, considered this problem in a case where the newly discovered evidence concerned state witnesses who had recanted their trial testimony. Concurring in the judgment of the court denying a new trial, he stated that the trial court, when presented with the new trial motion, should not abandon the search for truth and turn it over to a jury. He said:
That would have been an easy avenue of escape from a solemn responsibility, but I cannot satisfy myself that along that avenue lay the path of duty. I think it was the duty of the trial judge to try the facts, and determine as best he could where the likelihood of truth lay. * * * He was not at liberty to shift upon the shoulders of another jury his own responsibility.
People v. Shilitano, 218 N.Y. 161, 180, 112 N.E. 733, 739 (1916) (Cardozo, J., concurring).
The fundamental issue concerns whether a new trial should be granted on the basis of newly discovered evidence where expert witnesses for both the state and the defense mistakenly identified a fingerprint as being defendant‘s.2 The resolution of that issue
The overwhelming likelihood of truth in this case is that defendant was properly found guilty of first-degree murder. The fingerprint on the envelope containing the gold coin is not, as the majority asserts, “the only circumstantial evidence tending to establish that [defendant] was in Duluth on the date of the murders.” (Supra at 587). The state‘s handwriting expert testified that the handwriting on the envelope was that of defendant. As the majority notes, this court must take the view most favorable to the state and must assume that the jury believed the state‘s witness and disbelieved any contrary evidence. (Supra at 586). Beyond this physical evidence placing defendant in Duluth at the time of the murder, there was a significant amount of other incriminating evidence against defendant. Defendant had an undisputably strong motive for murdering Elisabeth Congdon; witnesses positively identified defendant as the man who was in a gift shop at Minneapolis-St. Paul International Airport the morning of the murder; the gold coin in the envelope addressed to defendant in defendant‘s handwriting was taken from Elisabeth Congdon‘s bedroom; and jewelry missing from Elisabeth Congdon‘s body was found in defendant‘s hotel room. Still other evidence further implicated defendant: hair and blood found near the dead bodies were similar to defendant‘s hair and blood type; the day after the murder defendant had cuts on his face and a swollen hand; the day after the murder defendant opened a safe deposit box and placed in it a document signed by his wife in which she conveyed to defendant all of the money due her from a trust upon the death of Elisabeth Congdon; and a wicker basket similar to one missing from Elisabeth Congdon‘s bedroom was found in de
The majority‘s sole basis for reversing defendant‘s conviction is the erroneous fingerprint identification by the state expert. For this reason, the majority‘s reference to the alibi testimony of Candice Byers is curious. Ms. Byers, who did not testify at defendant‘s trial, stated at Marjorie Caldwell‘s trial that she saw defendant in a Colorado hotel at about 10 p. m. on June 26, 1977, the night the murders were committed in Duluth. However, on July 1, 1977, Ms. Byers told the Colorado police that she did not recall seeing defendant on June 26, and on July 9 she gave the police a written statement to the same effect. Moreover, following oral argument in this case, the state submitted affidavits and a handwritten statement by Ms. Byers stating that she had testified untruthfully at Marjorie Caldwell‘s trial. Under these circumstances, and in light of the other evidence which the majority concedes is sufficient to sustain defendant‘s conviction (supra at 592), I find it implausible to believe that Ms. Byer‘s testimony is sufficiently material to meet the traditional probability test for newly discovered evidence. The majority‘s ambiguous assertion that her testimony “could” be material enough to meet this test (supra at 588) is makeweight, and belies the actual ground upon which the conviction is being reversed.3
The majority expresses no disagreement with the conclusion that defendant‘s conviction should not be reversed under the probability standard on the basis of the erroneous fingerprint evidence but determines that it should be reversed under the Larrison possibility standard. I disagree with the application of this less stringent standard for the following reasons:
First, there are no cogent reasons for discarding our time-tested probability standard. Neither federal nor state constitutional law requires the possibility standard;3
no Minnesota statute mandates it; and Minnesota common law has always adhered to the probability standard.4 Due regard for the binding force of our past decisions does not require a blind adherence to precedent but it does impose an obligation to forthrightly explain departures from our common law. The majority inexplicably treats the case as one of first impression and fails to explain why the traditional probability standаrd is inadequate for determining whether the discovery of erroneous testimony warrants a new trial.5Second, the Larrison rule has severe deficiencies. As one court reasons:
[The Larrison] test, if literally applied, should require reversal in cases of perjury with respect to even minor matters, especially in light of the standard jury instruction that upon finding that a witness had deliberately proffered false testimony in part, the jury may disregard his entire testimony. Thus, once it is shown that a material witness had intentionally lied with respect to any matter, it is difficult to deny that the jury, had it known of the lie, “might” have acquitted. We recognize that those who have professed adherence to the Larrison test do not appear to share our concern over the problems arising from its speculative nature. Indeed, notwithstanding the looseness of the test, most courts have not hesitated to deny new trials in cases where they have purported to apply it. However, rather than adopt the Larrison test and violate it in application, we believe, for the reasons indicated, that the time-honored “probability” standard is the more appropriate one for determining whether perjury calls for a new trial. In addition to its other virtues the rule enables a court to act forthrightly in making its determination.
United States v. Stofsky, 527 F.2d 237, 245–46 (2d Cir. 1975), cert. denied, 429 U.S. 819, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976) (footnote omitted). Another court, noting that the Larrison rule creates an arbitrary distinction between perjured testimony and other new evidence, states:
One may always ask how courts can be certain that new evidence would not create a reasonable doubt in the mind of at least one juror. Yet, we have always required a showing that the new evidence would “probably” result in an acquittal upon a new trial. We are not convinced that all cases involving some perjured testimony necessarily require new trials. Yet, as the court in United States v. Stofsky * * * observed, this is exactly where the logic of such cases as Larrison * * * leads.
United States v. Krasny, 607 F.2d 840, 844 (9th Cir. 1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980).
The majority posits two reasons for treating false testimony differently from other newly discovered evidence. The majority first argues that a higher standard of mate
This first argument confuses reliability with materiality and, in any event, fails to justify the use of different standards of materiality. It is not true that, in the case of false testimony, the court has already made a determination that the testimony was actually false. The determination that ordinary newly discovered evidence is reliable, or that testimony presented at the first trial is false, is made at the same time—during the post-trial proceedings. Thus, ordinary newly discovered evidence and the discovery that testimony is false may not be legitimately distinguished on the basis of their inherent reliability, as the majority appears to suggest.
I assume that the majority is attempting to articulate a distinction grounded on the trial court‘s ability to determine the materiality of the evidence. Apparently, the majority is asserting that a trial court is better able to judge the impact that the absence of certain testimony will have at a second trial, than to judge the impact the addition of new material will have at a second trial. Even granting the validity of such an assertion, it does not support the use of different standards of materiality based on the source of the evidence. Indeed, common sense dictates thаt a lower standard should apply, if at all, when the trial court is less certain about the materiality of the evidence, i.e., when ordinary newly discovered evidence is at issue.
The majority‘s other argument, based on United States v. Johnson, 149 F.2d 31 (7th Cir. 1945), rev‘d on other grounds, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946), is that, while most new trial motions concern the probable effect of newly discovered evidence on a future trial, new trial motions based upon perjury concern the probable effect of the perjured testimony on the first trial. The court in United States v. Krasny, 607 F.2d at 844, responded to this argument as follows:
We cannot see any practical difference in this distinction. * * * [Johnson] does not suggest any effective difference between perjured testimony and other new evidence, and we can conceive of none. The focus of the inquiry is on what difference the evidence would have made to the trial, regardless of its source.
Third, the majority is applying the Larrison rule in circumstances where it has never before been applied by any state or federal court. The Larrison rule has been applied to perjured or deliberately false testimony but never to merely mistaken or erroneous testimony, much less to the good faith albeit mistaken interpretation of physical evidence by an expert.6
The state‘s expert erroneously identified a fingerprint as defendant‘s. There is no indication that the expert intentionally falsified his testimony. However, false testimony under the Larrison rule means “deliberately false or ‘false swearing.‘” United States v. Strauss, 443 F.2d 986, 989–90 (1st Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971). See United States v. Johnson, 142 F.2d 588, 592 (7th Cir. 1944), rev‘d on other grounds, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 567 (1946). In United States v. Munchak, 338 F.Supp. 1283 (S.D.N.Y.), aff‘d, 460 F.2d 1407 (2d Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 236, 34 L.Ed.2d 177 (1972), the court discussed this precise issue, reasoning:
The determination of this issue—whether [the government witness‘] answer was erroneous but inadvertent, or intentional and perjurious—gives direction to the standard to be applied in the motion for a new trial. * * *
* * * * * *
* * * The standard of materiality which must be satisfied to obtain a new trial on the basis of newly discovered evidence varies with the circumstances under which the defendant was deprived of knowledge of the existence of such evidence. Here, since there was no perjury, and since there is no charge of prosecutorial misconduct, nor any support for such a charge with respect to these tests, the defendant must show that knowledge and use of them “would probably produce a different verdict.”
Id. at 1289–91 (footnotes omitted).
The majority does not dispute that the Larrison rule has never before been applied in the context of merely erroneous testimony, but states that “we do not believe that the witness’ state of mind necessarily should be the factor that determines whether a defendant is entitled to a new trial.” (Supra at 590). This language obfuscates the real issue, which is whether the witness’ state of mind should be the factor that determines the proper standard to be applied in the motion for a new trial. The probability standard has always been applied in Minnesota cases where it was discovered after trial that a state witness had erroneously testified. See, e.g., State v. Meldahl, 310 Minn. 136, 245 N.W.2d 252 (1976); State v. Warren, 252 Minn. 261, 89 N.W.2d 702 (1958). In any event, the ramifications of the majority‘s reasoning are limitless. If there is no distinction between perjured testimony and merely erroneous testimony, why treat any new evidence in a different manner? Why not completely abandon the probability standard and apply the Larrison rule for all new evidence? If the witness’ state of mind is an illegitimate or irrelevant factor in determining entitlement to a new trial (or in determining the standard to be applied in the new trial motion), certainly the source of the evidence is an illegitimate or irrelevant factor for the same reasons. The majority leaves us with no principled basis for distinguishing in future cases between perjured or erroneous testimony, which it now proposes are to be treated identically, and all other new evidence for the purpose of determining whether such evidence warrants a new trial.
Finally, even if the Larrison rule is the governing standard under these circumstances, defendant‘s conviction should not be reversed. Under the Larrison rule, an admission of false testimony does not warrant a new trial, if, eliminating such evidenсe, there is still other evidence sufficient to support the judgment. Larrison, 24 F.2d at 87; State v. Compiano, 261 Iowa 509, 518, 154 N.W.2d 845, 850 (1967). See 4 F. Wharton, Criminal Procedure § 601 at 189 (C. Torcia 12th ed. 1976); 58 Am.Jur.2d New Trial § 175 at 391 (1971); 24 C.J.S. Criminal Law § 1454k at 189 (1961). The majority concedes that there is sufficient
YETKA, Justice.
I join in the dissent of Mr. Justice PETERSON.
James THAYER, et al., Appellants, v. AMERICAN FINANCIAL ADVISERS, INC., et al., Defendants, and Merrill Lynch, Pierce, Fenner & Smith, Inc., et al., Respondents.
No. 81-557.
Supreme Court of Minnesota.
Aug. 6, 1982.