Thomas Daniel Rhodes v. State of Minnesota, A13-560

RHODES, Appellant, Thomas Daniel Minnesota, Respondent.

STATE A13-0560,

Nos. A15-0136.

Supreme Court Minnesota.

Feb. 2016 .

See also 627 N.W.2d 74. Schultz, Mondry, T. Jesse D.

David LLP, MN; Minneapolis, and Julie Maslon Wolf, Jonas, Project Marie Innocence' Park, MN, Minnesota, ap- Saint Louis pellant. General, Swanson, Attorney

Lori Frank, Attorney Assistant Gen- Matthew Baker, Paul, MN; eral, and Shane Saint Willmar, Kandiyohi County Attorney, Minnesota, respondent. neck, struck multiple her with the

OPINION boat times, subsequently police' lied WRIGHT, Justice. about the location of her drowning. Dr. Thomas July appellant On McGee, Michael a medical for the of first-de Daniel Rhodes convicted .was part testified relevant murder, gree premeditated type victim “received some of trauma to 609.185(a)(1) (2014), § to and sentenced the surface skin in outer of the the neck mandatory imprisonment, life ... enough- area force to cause break- 609.185(a); 244,05, § § see also Minn.Stat. age of blood if vessels.” When asked (1996). 4 is our This fourth review subd. external neck trauma could “have been (Rhodes of See Rhodes v. State this case. ‘hand, particular done with a in a hand III), (Minn.2007); State 735 N.W.2d 315 V, used ... the position,” Dr. McGee (Rhodes II), 823 Rhodes replied, “I believe is possible, yes.” .that (Rhodes I), (Minn.2003); State v. Rhodes He injuries also the on both testified that (Minn.2001). present The sides of the face been victim’s could have from denial of appeal summary arises from, of multiple caused strikes the hull for petitions, and fourth Rhodes’s third contrast, By a boat. expert Dr. defense relief. The postconviction issue Lindsey injuries opined Thomas this appeal whether the to both of sides the victim’s face were limitations, statute, of Minn.Stat.. blood that drained into her had 4(a) (2014), petitions. these We bars injury. from a forehead face court did not hold that disagreement at among There trial was denying abuse its discretion summarily experts regarding drowning loca petitions post- for relief because Rhodes’s and, tion specifically, when victim’s untimely conviction relief under the body expected have could to resur been postconviction statute of limitations. given Captain face the lake conditions. that, the vic William Chandler testified I. tim’s “had in1 lake body sunk Minnesota 2, 1996, night August of On the Rhodes deep,” water 40 feet which approximately and his wife took a boat on Green ride drowning on depth was the location Lake, Spicer.1 near Rhodes returned reported po Green Lake Rhodes police shore told that his acciden- wife lice, to four would have “three taken tally Approximately 13 fell overboard.. body weeks” for the victim’s to resurface. later, body found hours wife’s Captain “starting Ghandler testified- floating The near shore. cause her down, temper the-bottom about 30-feet drowning. Following police death was year lake any. of Minnesota round ature investigation, indicted that this degrees.” explained about He grand second-degree jury first- and temperature decomposition cold slows the pleaded guilty murder. Rhodes lengthens rate of a body, drowned trial. demanded body to period the time resurface. trial, Morry argued At Defense Dale testified that Rhodes from lake temperature forced his wife overboard water lake to with a-blow varies I, our set 1. We discussion of the facts and are. forth limit N,W.2d 77-81, aspects those of the that are case directly, appeal. relevant More de- at 828-32. descriptions underlying tailed facts and h lake,- Wright ing. Dr. Ronald testified that dept on the depending lake, hemorrhaging the victim’s could and the above-surface size pres- of thumb’ have been caused some temperature, but “as ‘rule kind but, likely, equally in.40 sure'to thé'throat person feet water who drowned during days.” been caused the drown- eight in five would resurface ing process. Dr. reaffirmed his Captain Chandler and McGee testimony. Drs. expert Morry supported the And Thomas' defense re- theory that Rhodes lied Plunket testified that based their about State’s articles, drowning, they the vic medical be- location of view recent hemorrhaging the victim’s floating tim’s was found near lieved the during she neck that occurred shore hours after approximately process postmortem was a result fell overboard. allegedly breaking of mortis. hypostasis rigor or a first- guilty of The found Rhodes postconviction The court de- subsequently filed second-degreé' and murder. Rhodes request postconviction for nied Rhodes’s stayed which wé to allow appeal, a direct relief, concluding the trial counsel’s that a postconviction petition. him time to file objectively not performance was unreason- I, first Rhodes 627 N.W.2d at In his able and that the discovered Rhodes ah postconviction petition, asserted not a new medical evidence did warrant claim, al- ineffective-assistance-of-counsel stay trial. then our of We vacated trial counsel to suffi- leging failed that his II, appeal. Rhodes’s consolidated Rhodes ob- ciently Dr. and cross-examine McGee at 839. testimony, present to and to ject failed that In we the evidence medical evidence counter Rhodes held available convic testimony. support Rhodes also asserted was sufficient Rhodes’s newly-discovered-evidence consist- claim tion. The evidence included who witnesses zigzagging yelling ing of medical articles related saw boat heard recent occupants; Attached inconsistencies peti- forensics. to his from its drowning tion, statements; physical from submitted an Rhodes’s evidence Rhodes affidavit Plunket, not pathologist. body a forensic sunk Dr. John victim’s by he- .opined that the internal at the location marked Rhodes and Dr. Plunket hours; probably discovery of morrhaging victim’s resurfaced Í3 neck “during body process the victim’s nine-tenths' a mile occurred Rhodes; mo struggle for at 82. from that location marked Id. survival.” peti- including pro tive life insurance postconviction denied ceeds, debt, evidentiary hear- extra holding tion without household affair; testimony marital that ing. appealed. at 83. In and medical Id. Rhodes I, were ’injuries Rhodes we Rhodes’s direct the victim’s head consolidated consistent by a boat and her appeals. rejected 'multiple We strikes stayed evidentiary challenges, injuries Rhodes’s1 external II, 657 pressure. and remanded to See Rhodes appeal, consolidated N.W.2d 829-32, evidentiary for an postconviction court 839-42. hearing to whether trial coun- determine II Our decision Rhodes also affirmed performance objectively sel’s unrea- was the denial Rhodes’s first 85-86, sonable. Id. 88-89. at 846. held petition. 657 N.W.2d We McGee, Thomas, Wright, performance

Drs. not objectively hear- counsel unreasonable. Plunket testified at the was also if his- Id. at 843. concluded even wife’s We found almost nine- the new medical literature offered tenths of a mile where he told search ground-breaking “presented] re ers that he had last seen post- -her. The search,” to satisfy id. failed summarily conviction court denied the sec prong newly-discover the Rainer ond and we affirmed its decision. test, requires ed-evidence a showing III, (Minn. 2007). “will so, doing explained we acquittal probably produce either an at a ha[d] shown that informa “Rhodes , retrial a result more favorable tion about the ‘uneven bottom’ the lake petitioner.” Id. (quoting at 845 Race v. was not available to-him or' his counsel State, (Minn.1987)); during his trial his failure learn see Rainer v. 695 of it before trial was lack due ' (cid:127) (Minn.1997). point, On we concluded: diligence.” Id. allegedly newly This available medical shortly In 2007, after our released evidence does diminish circum- III, decision 2-year statute stantial evidence and considered heard limitations Rhodes to jury. There sufficient evi- postconviction relief expired. See Minn. independent the medical evi- (“No § 590.01, 4(a), Stat. peti- dence, including physical-and motive evi- tion for postconviction relief be filed dence, conduct, toas Rhodes’ (1) more years than two after the later of: and inconsistencies in -Rhodes’ state- .entry judgment of or of conviction ments, to conclude that [the victim’s] filed; (2) sentence if appeal no .direct death a premeditated homicide.... an appellate disposition court’s petition- of. not established .... that Rhodes has direct, 2, 2005, appeal,”); er’s Act of June produce probably [this evidence] would 136, 13,.2005 14, §. 901, ch. art. Minn.-Laws acquittal a more result favorable (providing that if a person’s convic- to.him on retrial. tion became final before the statute’s effec- (emphasis added). Id. at Consequent- 1, August 2005,' tive person date ly, we postconviction held “the has 2 date to years effective file did not its concluding discretion in abuse postconviction petition).2 is not to a Rhodes entitled new trial on grounds newly medi- 27, 2012, On November more than 5 cal evidence.” Id. years period after limitations had ex .the pired, filed for years appeal petition

Three after his third direct final, petition alleged Rhodes filed second for relief. This -his alleged relief. This petition gathered discovered evidence aby part in private investigator that he was entitled to a hew trial submitted based on years report in discovered evidence lake Rhodes 3 before dated explained 29, conditions purportedly September 2009. why report The contained Legislature 2. The long enacted of limi- statute statute of 1- limitations as the twice response tations in increase dramatic year bringing in statute of limitations federal postconviction petitions, many the number of corpus habeas claims. See 28 U.S.C. brought years of which involved old claims (“A 2244(d)(1) (2012) § 1-year period of limi- ap- after a conviction was on affirmed direct application to an apply tations shall a writ Hearing peal. Judiciary See on H.F. H. custody corpus person pur- habeas Comm., Policy Leg., Fin. 83d Minn. & Mar. court.”). judgment suant to the of a State (audio tape). 2-year Minnesota’s tion, (1) claims that Lake and which' two are maps-of Green GPS/Sonar First, (2) descriptions of data; general alleges the ef relevant here.3 (3) poisoning; claim, primarily newly-discovered-evidence of carbon'monoxide fects regarding the manner addressing statements on literature witness scientific based shore; returned drowning which Rhodes reports from ex- forensics and (4) regarding the statements witness vic perts applying that to this case literature injuries. Rhodes received tim’s head The literature addresses scientific ;;,one-page report from the supplemental injuries bodily changes-'in causes ,on 2Q10. October investigator private, cases, including drowning neck hemor- third Rhodes also of his part As rhaging, postmortem lividity (gravity-de- discovery alleged,-that committed blood), pendent pooling body buoyancy, failing .to violations some disclose (injuries caused scrap- travel abrasions private .investi shore), ing the and animal lake bed or posteonviction court gator’s reports. The predation.4 heavily on Rhodes relies most summarily the third based denied two scientific articles related to neck he- reports, concluding these' on dates of morrhaging, here as Pollanen referred to untimely be that Rhodes’s claims (2009) (2011),5 & Jentzen Alexander years they more than be “arose” cause changed allegedly establish filing of November petition’s thé date fore knowledge the causes of neck hemor- ‘See rhaging Pollanen cases. 4(c). also posteonviction court con body is concluded when a dead claims Rhodes’s third cluded (a angled posi- downwards down “head (cid:127) merits. Rhodes petition failed their tion”),' hemorrhagic lividity of the tis- soft summary denial of his third appealed the (extravascular rupture sue’ stayed appeal to allow We petition. leakage gravitation- blood vessels due posteonviction yet to file another death) occur, al-pressure after caus- n. o petiti ing “pseudo that lead bruises” 21, 2014, years injury.” “misidentification of neck almost 7 violent On March (2011), case study Alexander & Jentzem expired, had after the statute of limitations single posteonviction peti- that body, filed his fourth drowned concluded Rhodes 3, Although. pre raised an ineffective-assis be "not to evidence Rhodes cumulative trial"); State, at claim in his fourth v. 737 sented Leake tance-of-counsel 531, (Minn.2007) (providing it 535 if a to this court. that failed address brief he result, “raised,” "known,” claim or issue is forfeited. Powers v. was "should As a that 559, (Minn.2004). appeal, n. 1 known” on that 560 have been direct 688 ' Moreover, subsequent de claim "will not be considered in was raised and the same issue II, (citing ip petition posteonviction 657 N.W.2d at 843. relief” State cided Knaffla, 309 Minn. 243 N.W.2d 737 . (1976))) presented in the evidence We address body buoyancy, trav related Jentzen, abrasions, predation Jeffrey only 5. Russell & M. el and animal T. Alexander posteonviction Hemorrhage Drowning, 56 that court did not Neck and Scleral conclude tire 2011) (Mar. it Sci. [hereinafter ‘its discretion when determined that J. Forensic 522 abuse (2011)]; Pol either Alexander & Jentzen Michael S. evidence was cumulative Knaff- lanen, trial, al., Hemorrhagic Lividity et presented at the Neck: ifwas la-barred because posteonviction Hypostat previous proceedings, or on Controlled Induction Postmortem t appeal. Hemofrhages, 30 Forensic Med. & direc 657 ic Am. J. N,W;2d 832-35; 2009) (Déc. Pathology Pol- at [hereinafter see Minn.Stat. subd, (2009) 4(b)(2) (requiring ]. lanen discovered feet, hemorrhaging depth neck muscles at a- of 40 anterior was 68.9 de- pres- explained grees, can be elevated Captain venous whereas Chandler testified congested sure and rupture temperature blood the lake at that depth degrees. during reactions drown- Although vessels the State con- ing, such coughing, gagging, vomiting, as the lake’s higher cedes temperature would According abdominal contractions. resurfacing have reduced the time of the affidavit, Dr. Jent- body Jentzen’s Alexander & week, victim’s to 1 weeks it zen disproved the scientific commu- that this contends immaterial nity’s hemorrhages in earlier belief that impacted because not would have the anterior theory trial, muscles “do not occur neck State’s At case. drowning always and should sus- argued raise the Rhodes lied about the picion After'reviewing play.” of foul Dr. the drowning Captain location of defense, autopsy report, Dr." expert Morry Jentzen Chandler both opined hemorrhage that; that “the vic- agreed [the drowning had occurred during could Rhodes, tim’s] have occurred the location indicated postmortem, op- as- process body victim’s have resurfaced 13 posed to pre-mortem external-pressure.” hours Consequently, later. the State con- added.) that, (Emphasis even if tends time resurface the location indicated only (20Ó9), After reviewing Pollanen Alexan- week, plainly victim did drown at (2011), der affi- & Jentzen that location because her resurfaced by Rhodes, davits offered Dr. McGee later. hours affidavit, signed July dated stating postconvictibn that he still opinions summarily believed “the de- the testimony provid- conclusions in I fourth petition, nied the concluding that postconviction evidentiary ed trial and Rhodes failed to satisfy newly-discov- , exception to the correct related ered-evidence the statute §.590.01, victim].” death assert- [the Dr. McGee limitations. Minn.Stat. ’' (2014). 4(b)(2) hemorrhaging in the This exception ed allows .unlike the. neck, victim’s hemorrhaging untimely post- court to described hear study in the Alexander & Jentzen relief when conviction .was “confined to fascial surfaces petitioner alleges the existence of muscle.” asserted Moreover, McGee evidence, including sci- had looked at each evidence, entific of his “findings in isolation and misinter- by been ascertained of the exercise due preted both the nature and cause of each diligence by petitioner the or petitioner’s finding.” attorney period within two-year the time for filing postconviction petition, a

Second, alleges false-testimony a the evidence evi- cumulative claim report 2006 lake survey based a trial, presented at for im- by Department conducted the Minnesota peachment purposes, and establishes (DNR). of Natural Resources This DNR convincing clear standard report allegedly the establishes petitioner is innocent of offense or witness, Chandler, Captain State’s testified for petitioner offenses which the was incorrectly tempera- at trial regarding convicted. ture of night Lake on of the Green

drowning. report, to the According explained DNR Id. The court that, the temperature August of Lake in if accept Green “even the Court were as 786 of resurfacing 13-hour time the vic- the re- actual everything contained within

true tim. [Rhodes] cited cent scientific literature fo- opinions [Rhodes’s] offered appealed the denial of proffered evi- pathologists,”

rensic postconviction petition. vacated our We prove clear and convinc- “not dence did stay appeal postconvic- of his third is innocent.” ing [Rhodes] evidence that appeal tion and this consolidated Rather, expert opinions literature followed. general proposition simply support injuries “may have been that the victim’s II. drowning pro- natural by ... added.) (Emphasis review denial

cess.” We relief, postconviction- for as well as the report on the water Regarding DNR evidentiary hearing, an denial Lake, postcon- temperature of Green State, Riley abuse discretion. v. 819 viction court that Rhodes failed concluded 162, (Minn.2012). postcon- A N.W.2d diligence” requirement satisfy “due viction does its court not abuse discretion excep- newly-discovered-evidence 4(b)(2). unless in an tion, has “exercised its discretion manner, that, arbitrary capricious its court because the DNR based The found law, ruling on an erroneous view of published 2006 and the data report as report publicly clearly findings.” made available erroneous factual State, early report could been v. Brown diligence 2- (Minn.2015). before the due postconvic We review the year expired statute limitations legal tion court’s de novo and conclusions concluded, The alter- findings of its fact for clear error. Greer water-temperature natively, that the claim State, (Minn.2013). First, its merits for two failed on reasons. An evidentiary hearing peti posttrial the State affidavit in filed tion is are' when there material required that, opined regardless Captain Chandler in dispute facts not resolved at témperature at 40 whether the water trial must be resolved to rule on the (several degrees feet was 39 weeks re- Riley,' merits the issues raised. surface) degrees or 68.9 (approximately legal 167. The standard re resurface), body one the victim’s week quired to an evidentiary obtain “is within 13 hours have resurfaced than that required lower for a new trial.” if she had at' the location marked drowned (Minn. Bobo v. Second, expert Morry Rhodes. defense ’ 2012). Any to con doubts about whether if individual testified evidentiary hearing duct an are water, resolved in 40 feet of it would take drowns petitioner. post- favor But Id. days least 5 to re- the drowned conviction is not re postconvictiori court conclud- surface. quired therefore, alleges when the ed, petitioner facts Captain if Chan- even true, legally are insufficient had not to an incorrect water dler testified Id.; grant the requested relief. see also temperature, outcome 590.04, § (directing Minn.Stat. subd. 1 the same would been have ’ from court hold an testimony'* have heard “[u]m petition both the and the less the files and records defense proceeding 40 of the resurfacing conclusively minimum time at feet is at show that relief’). days, longer petitioner least 5 which is far than the is entitled to no

787 Accordingly, posteonviction court from a private investigator. The dates of summarily deny untimely claim. Minn. reports conclusively establish that (2014); § 590.01, 4 v. Stat. subd. Colbert “knew should have1known” of State, 616, (Minn.2015). 870 622 N.W.2d petition the claims raised in his third more years than 2 before he filed -his third post- '

III. Sanchez, conviction petition; See 816 first address We Rhodes’s posteonviction court, at 560. The N.W.2d Here, posteonviction petition. third therefore,' did not abuse its discretion posteonviction whether the consider determining that petition Rhodes’s third by determining abused its discretion 4(e). untimely was under subdivision petition untimely third was under 590.01, § Although subd. 4. Minn.Stat. IV. exceptions there are five to the statute Turning to posteonvic- fourth Rhodes’s limitations, 590.01, 4(b), § Minn.Stat. subd. tion presented the issue is petitioner has period limited time posteonviction whether the court abused “Any exceptions. these invoke its discretion it when this determined that petition invoking exception ... must petition untimely posteon- under years of date filed within two the claim viction statute limitations. Id., added). 4(c) (emphasis arises.” subd. 4(c) A claim arises under subdivision when It undisputed is that' Rhodes petitioner “the or should have known knew posteonviction petition filed State, he had a claim.” v. Sanchez years nearly ’expiration 7 after (Minn.2012). 550, aWhen posteonviction statute' limitations.6 petition posteonviction for relief is filed Consequently, is he entitled relief than 2 years more after the claim arose he unless can establish one the five 4(e), posteonviction under subdivision Minn.Stat; 590.01, § exceptions set forth court does not its it abuse discretion when 4(b). exclusively subd. Rhodes relies' on Greer, summarily the petition. denies newly-diseovered-evidence exception.7 523; State, Wayne v. N.W.2d 832 To exception establish this applies, 831, (Minn.2013); McDonough N.W.2d allege Rhodes must State, 423, (Minn.2013); v. evidence, sci- including Colbert, 811 at 105-06. evidence, entific ascertained, petition been

Rhodes filed his of due third exercise 27, diligence posteonviction by petitioner' petitioner’s on relief November at- torney newly-discover 2012. His under the two-year claim within time period 590.01, § exception, filing ed-evidence posteonviction petition, Minn.Stat. 4(b), reports, subd. was based two dat cumulative evi- the evidence 29, 19, trial, September ed 2009 and October is not for im- 2010, respectively, which Rhodes received peachment purposes, and' establishes 6. Because Rhodes’s conviction became final 7. also raised the “interests 1, 2005, August before the effective date of the justice" § exception, limitations, years statute two had 4(b)(5), but this issue be- forfeited posteonvic- date to file a after that effective argued cause brief to not- 2, 2005, 136, petition. 14, of June tion Act ch. Wayne court. art. 2005 Minn. Laws 1098. (Minn.201-5). & 2 n. Rhodes filed his fourth March (2009) heavily on Pollanen relies convincing that standard

a clear and (2011), of the offense which he innocent & Jentzen petitioner is Alexander petitioner changed alleges scientific knowl- establish offenses convicted.,. , hemorrhaging edge on causes of neck drowning in cases since he was convicted. 4(b)(2) 590.01, (empha § subd. Minn.Stat. (2009) that, in in added). cases clear-and-eonvincing-inno- Pollanen concluded sis 4(b)(2) is downward which a dead rests requirement cence subdivision newly-discovered- stringent than hemor- angle, position,” or a down more “head peti applies timely that evidence test rhagic soft of the lividity tissue neck which, in rejecting tions, applied we “pseudo that result cause bruises” discovered claim Rhodes’s similar injury.” of violent neck a “misidéntification N.W.2d evidence Rhodes medical (2011) concluded that & Jentzen Alexander we prong innocence at 845-46. The hemorrhaging in the anterior neck muscles than “un more mere apply requires here explained by pres- can be elevated venous guilt. a petitioner’s certainty” about by drowning-related bodily re- sure caused State; 863 Brown v. According to Dr. actions. affida- Jentzen’s (Minn.2015). convinc the clear and Under vit, disproved Jentzen & Alexander standard, ing evidence proffered must community’s earlier' belief the scientific probable, and unequivocal,-intrinsically be hemorrhages in the neck anterior State, 787 free from Gassier v. frailties. not occur in muscles “do (Minn.2010). foul always suspicion raise the should if the sci even We conclude play.” fourth entific in Rhodes’s evidence, however, does were, This scientific to be at an proven true that Dr. trial testi establish satisfy evidentiary hearing, would not mony was incorrect. McGee did not newly-discover prong innocence testify hemorrhages that neck never occur exception.8 This is ed-evidence because drowning process. naturally during the the scientific evidence does establish Rather, he testified that he believed convincing “by a standard clear and type of trauma victim “received some Minn.Stat. innocent.”9 [Rhodes] 590.01, 4(b)(2). § the outer surface subd. skin because, contends, 4(c), Although he for "shifted analysis 8. subd. our focuses science,” satisfy prong, innocence we publication failure date an article observe the affidavits Rhodes's does the date on which science not determine being impeach are maintains, offered Dr. McGee’s so, changed. .This is he ,To testimony. satisfy newly-discover knowledge "gradually” evolves however, exception, evi the new ed-evidence through multiple experts and articles .impeachment be offered "for dence must not argument, community. in- With this 590.01, § subd. purposes.” Minn.Stat. adopt vites a novel "shifted science” us Moreover, 4(b)(2). "gener held that rule, in which the accrual date under subdivi- ally, expert does not constitute 4(c) depends sion on the date that new scien- justifying a new knowledge generally accepted. tific becomes exper discovery of a because "if tenth trial” pro- We decline to address merits t trial, warranting no a new new evidence because, posed even "shifted science” rule Blasus, would ever final.” verdict 4(c) satisfied, peti- Rhodes's subdivision (Minn.1989). meet legally tion still would be insufficient requirement publication under Minn.Stat. argues date the innocence also 590.01, 4(b)(2). § is not date his the scientific literature claim "arises" under enough area ... with force to cause establish that break Rhodes did not kill his wife. age of asked The.alleged blood vessels.” When wheth scientific evidence is thus le er that external-neck trauma gally to insufficient entitle relief could.“have hand, particular been with done newly-discovered-evidence- under the exc ... Dr. hand used V position,” eption.11 The innocence prong subdivi replied, “I is possible, McGee believe that 4(b)(2) sion requires “more than uncertain yes.” reviewing autop After Dr. Brown, ty” guilt about Rhodes’s . sy report, opine that Jentzen did not Dr. at 787. injuries by the victim’s neck were caused Finally, even we assume that the al- Instead, drowning process. opined the he leged fully scientific evidence Dr. refutes victim’s], hemorrhage that “the neck [the testimony, assump- McGee’s medical that drowning during have occurred tion is legally insufficient establish the process postmortem, opposed pré- as prong because, innocence as held in we pressure.” (Emphasis mortem external ’ II, Rhodes’s murder conviction is added.) opinion of . The another by independently supported nonmedical by support Rhodes to his .hired (i.e., nonsciéntific) evidence. 657 N.W.2d Rao, equivocation. Dr. included similar II, at 846. Rhodes we asshmed that the She stated: “Recent scientific literature newly discovered medical evidence was my conclusion that supports hemor on ground-breaking “based research.” Id. rhages in [the victim’s] neck could be at And held even under the less something tributable to than other exter test, Rainer Rhodes was not en- stringent added.) pressure.”10 nal (Emphasis relief titled based' discover- Thus, theory if this even' were evidence, including ed medical literature proven hearing, not at establish in' “hémorrhage the neck by and other convincing clear and that evidence postmortem changes in drowning cases” differently, Rhodes is innocent. Put independent neck because “sufficient hemorrhages victim’s internal evidence ' ' ' ” “could” medical evidence supported have been caused natural processes not drowning unequivocally (emphasis does Rhodes’s convictibn. add- Id. supporting guilt, 10. Other hired were some see Rhodes 846, as equivocal application what their of this discussed below. less (Alexander 2011; science & Jentzen Pollanen 2009) hemorrhages. legal victim's neck This is true even under standard dissent, Hyma hemorrhages Bruce simply stated that neck articulated re- during drowning process quires "can prove ,by occur" clear defendant .convincing hemorrhages reasonable-jury "[t]he in the neck do that "no would,have guilt appear proof beyond not to have been caused external found pressure.” Wigren Dr. Carl stated doubt.” That reasonable D.2. Infra hemorrhages "likely hemorrhages victim's ex victim’s neck "could” been plained" by processes proposed by drowning processes Alex caused does by natural (2011) ander Jentzen preclude & and Pollanen not consider- a reasonable type hemorrhage ing totality vic finding guilt proof tim's neck is "not beyond associated blunt force a reasonable .. doubt, injury." Even opinions hypothetical if we consider these Unlike the DNA dissent's . true, D-10, evidence, they arid if wé assume that are vic- the fact that the infra ,neck merely impeaching hemorrhages of Dr. testi McGee’s trial tim’s internal "could” 590.01, subd. 4(b)(2), mony, see have been the natural they process alter hypotheti- still would not our does meet conclusion the dissent’s prong Rhodes cannot . probability” the innocence cal establish "99.99% that Rhodes did there is sufficient nonsciéntific evi kill wife. required. support To ed). dentiary nonmedical evidence included evidence, contention, testimony relies on the this the dissent “physical motive conduct, postconviction and inconsistencies fact at Rhodes’s hear to Rhodes’ as de- legal Id. Our ing expert in statements.” in Dr. opined Rhodes’ one that apply equal II in Rhodes testimony terminations was most McGee’s medical “the ' if Rhodes Even force here.12 trial.” at paramount entire the Infra groundbreaking scientific conclusions However, rejected implicitly D-4 n. 2. we injuries, of the victim’s the causes testimony any that Dr. McGee’s assertion Dr, testimony if McGee’s and even .were “paramount to the entire trial” science, present under erroneous II, independent Rhodes when held that legal our determina- not overcome could testimony, of Dr. McGee’s tíie medical that conviction tion in Rhodes II supports jury’s the nonmedical evidence by nonscien- independently supported finding pre that the death was a victim’s tific Gassier evidence. Cf. homicide. 657 at 846. meditated (Minn.2010) (holding that II The attempt rewrite Rhodes dissent’s of unreliable ballis- despite the admission when, unavailing. especially so is This is science,, petitioner tics was not entitled the here, opinion of as relies on the dissent the supported other because relief predates that our expert a defense decision conviction). , the evidence Because II. the Despite in Rhodes dissent’s asser Rhodes, true, if conclu- proffered even any dispute tion to contrary, factual fails to establish the innocence sively testimony Dr. between under Minn.Stat. prong, expert opinions scientific literature .and 4(b)(2), court did not postconviction proffered support Rhodes’s fourth by summarily denying its discretion abuse because, not This is is “material.” scienti- claim II, as. in Rhodes a reasonable we held fic evidence. rely solely on the nonmedical evi e beyond that contends the factual dence and find reasonable doubt Th dissent premeditated Dr. and Rhodes’s committed a dispute McGee between “material,” an experts is therefore evi- homicide.13 13. The that 'a remand dissent that we must reassess dissent also contends The contends evidentiary required for an' evidence because Rhodes has the nonmedical postconviction applied wrong court compelling sci- purportedly new and offered legal granting standard disagree. D-ll. We entific evidence. at Infra order, hearing. In post- at D-7. its Infra change'in the nonmedical There has been no stated, light court "In conviction the con- facts, including- fact the victim could presented, tradicting testimony by equally drowned at identified location qualified pathologists, the can- Court forensic 13 hours because her resurfaced ' conclude that literature and scientific II, McGee's we removed later. Dr. (even opinions offered if [Rhodes] equation testimony analytical from the true) highly probable [Rhodes] make there was sufficient evi- still concluded that statement, the con- innocent.” This tends, dissent that the victim’s was a find death demonstrates that the premeditated if assume homicide. Even we court the facts failed consider compelling reásons are now more that there light most favorable to the in a Dr. from the to remove McGee's Riley, petition. er, 819 N.W.2d at 167. Howev- change equation/ that does Rhodes II's is not a remand indepen- that the nonmedical conclusion facts above, any As warranted. we conclude factu- finding dently support jury's vic- dispute al and Rhodes's between McGee premeditated was a tim’s death homicide. because, is not “material” we held 846," in Rhodes a reasonable literature, Apart resurfacing period Rhodes minimum based (cid:127) presents report also a Minnesota DNR temperatures warmer included temperature that establishes report. Therefore, DNR even an evi- August Green Lake a-depth dentiary held, hearing were the State’s feet, degrees was about Fahren- 68.9 theory that Rhodes lied about the drown- heit, degrees than 39 as Captain rather say? ing location—that he the victim fall Chandler testified. overboard a 40-foot depth re- —would production concluded because, main unaffected is no there evi- report satisfy DNR dili- faded the “due resurfacing dence a 13-hour time is gence” requirement newly-discover- the possible from depth, regardless of the 590.01, exception, § Minn.Stat. ed-evidence temperature. sum, water Rhodes has 4(b)(2). postconviction subd. The de- court raised material dispute factual report, that this which termined included his would establish innocence under a clear early, data available as as convincing Accordingly, standard. diligence been discovered with due before report DNR legally, is to entitle insufficient 2-year postconviction statute of limita- posteonviction or relief an evi- tions expired report in because the dentiary hearing... in published postconviction 2006. The alternatively court concluded that wa-

ter-temperature claim failed its merits y. victim’s not have conclusively record The establishes hours, resurfaced 13 even if the within Rhodes knew should have.known temperature degrees water 68.9 at a claims raised in his postconviction third depth of 40 feet. 27,2010 (2 petition years before November report the DNR is insuf- legally Because he postconviction pe- before filed third his ficient to prong establish innocence tition). Therefore,,his petition third is un- 590.01, 4(b)(2), § need Minn.Stat. subd. timely 2-year under the statute limita- diligence not decide whether the due re- Minn.Stat, 590.01, § provided by tions : quirement if Captain is satisfied. Even -4(c). Also, subd. even evi- provided, Chandler had incorrect , support in postconvic- of his fourth temperatures on water a 3-to-4 week petition proven tion true be at an time, still resurfacing jury de- heard evidentiary hearing, this evidence would Merry’s testimony fense convincing fail to establish a clear and body at a drowned 40-foot takes at depth is innocent. There- standard.that Moreover, least 5 days to resurface. Cap- fore, petition untimely his under fourth tain a posttrial Chandler filed affidavit newly-discovered-evidence exception, stating that, light even of the 68.9- in 4(b)(2). Ac- degree temperature from DNR report, cordingly, we postconviction affirm the it “still would have approximately taken court’s denial third fourth victim’s],body one week refloat” [the petitions untimely postconvic- under the depth. from a 40-foot Rhodes has not tion statute limitations. .expert offered evidence that defense any changed Morry 5-day opinion has on a Affirmed. guilty premeditated could find Rhodes dence. solely homicide based on the nonmedical' evi- to, light J., having most favorable

HUDSON, been State, Riley at the time of v. of this court N.W.2d member (Minn.2012). submission, part postconviction no in the. court “must took grant decision of whenever case.. consideration dispute.” Wilson material facts are ANDERSON, (dissenting). Justice State, (Minn.2007). opinion, III of the in Part court’s join I “Any doubts about conduct whether court’s which affirms evidentiary hearing should -resolved petition third denial Rhodes’s summary Bobo, 820 petitioner].” favor [the I disagree But relief. added). (emphasis at 516 And an TV, Part decision the court’s im “particularly summary of Rhodes’s denial affirms impor petition portant when ‘attacks’ The postconviction petition. fourth case.” tant evidence a .circumstantial deny by summarily discretion its abused Wilson, (emphasis add because this ing ed) (citing Opsahl v. questions, fact an entire rriaterial raises (Minn.2004)). 414, wholly a This is 423 case, that must be re ly circumstantial v. case. State Rhodes circumstantial (cid:127) Con evidentiary hearing. an solved at II), (Minn. (Rhodes 827 N.W.2d 657 conclusion, Rhodes’s trary the to court’s 2003) (stating that "“the evidence in this legally sufficient to estab is petition fourth circumstantial”). wholly is case prong to the “innocence” overcome lish the limitations, court holds that Rhodes’s of 2-year Minn.Stat. statute to 4(b)(2) petition fails establish “innocence” (2014). spe the 590.01, § More subd. newly-discovered-evi under the prong has the alleged Rhodes existence cifically, exception postconviction to the stat that, if and true considered of evidence . 590.01, § of ute 'limitations petition, favorable to the most light the 4(b)(2). ' re prong subd. The innocence convincing by a clear and establish would allege quires Rhodes to the existence jury no would reasonable standard that that, true, by' establish a evidence would newly the dis have Rhodes -had convicted convincing clear standard presented at trial. beeri evidence covered id.; State, Miles 800 is innocent. See Therefore, for I would remand an eviden- t. (Minn.2011). But the N.W.2d hearing. respectfully I tiary dissen prece our recent court discuss does ’ I. this meaning application dent the to statute; Contrary ap prong. Minn. innocence the the Under court, 590.04, (2014), suggested by a the postconvic- proach § the word subd. Stat. grant requires evi- in this statute promptly “shall” “innocent” neither tion court incriminating complete a contradiction of hearing petition postcon- dentiary showing at trial nor unless “the evidence viction relief petitioner certainly “unequivocally” did proceeding conclu- files records petitioner not commit crime which he was sively show that the is entitled added.) not supported To This is (Emphasis approach de- convicted. no relief.” moreover, and, precedent is would be termine whether á impossible such a standard in court must as- to meet required, Rather, our alleged prece facts circumstantial case. sume the State, true, prong this innocence 516 dent Bobo v. N.W.2d indicates rule, (Minn.2012), those facts refers the “actual innocence” which and consider jury possible, yes.” when no believe that established reasonable Based on this guilt beyond testimony, proof argued would have found that “[Rhodes] his wife out of knock[ed] Brown v. doubt. See reasonable ; boat with In (Minn.2015) my blow to Riley,. neck.” 787-88 entirely view of the State’s circumstantial specifically, at 170.1 More case, McGee—that prong Minn. satisfy innocence under Jane’s neck hemorrhaging was caused 4(b)(2), must Stat. critically external force—was most in- discov have existence evidence the entire trial.2 criminating ered evidence and considered if-true petition, light most favorable In his fourth posteonviction . convincing would establish a clear and presents scientific evidence jury standard that no would reasonable allegedly refutes Dr. McGee’s conclusions Rhodes, guilty have of his wife’s found regarding the cause neck hemor- Jane’s doubt, beyond murder a reasonable had rhaging. This recent includes pre been discovered evidence literature on the causes addition, any sented hemorrhaging, fo- reports from seven trial.. claim necessari newly-discovered-evidence experts rensic hired the Minnesota In- ly new did not jury involves Project in 2012 and 2013, who nocence it, posteonviction before Jane’s autopsy examined and the evidence should assess how reasonable Rhodes’s trial. in- overall, newly supplemented react examiners, several chief clude medical pro- record, judgment about requires of pathology prominent fessors universi- ties, as its likely a and reputable effect pathologists. whole and forensic jane’s jurors in the rea applying reasonable hemorrhag- In the context of neck ing, sonable-doubt standard. and re- expert Rhodes’s

ports rely heavily most on two scientific articles, II. to & referred as Alexander Jent- (2011) (2009). zen Pollanen and trial, McGee, At Dr. a Rhodes’s Michael expert for medical testified in Alexander .& Jentzen advances wife, Jane, part relevant “re- Rhodes’s knowledge scientific hemor- regarding new type ceived of trauma to outer some rhaging in certain neck caused muscles ... surface skin in neck area previ- of drowning, allegedly refutes enough breakage with force to of cause ously knowledge accepted scientific blood vessels.” When asked that exter- in hemorrhaging “do[es] such muscles always nal neck trauma could “have been done occur in should raise and .,,. hand,, in particular a of suspicion According hand used foul play.” Jentzen, “I Dr. this position?” replied, V Dr. McGee article established U.S, Brown, 364, 1068, Winship, 1. The rule from innocence” S.Ct. '.‘actual 787-88, (1970)). Riley, and L.Ed.2d 368 language "no uses the reasonable convict,” helpful unpack but it would posteonviction hearing in At place word “convict” and it within well- opined one that Dr. medical McGee’s conviction,' “proof established standard for' testimony paramount of was "the most ‘ beyond E.g., reasonable doubt.” question entire trial” and the hand in Peterson, (Minn.2004) question. position "the murder "V” ("[T]he requires Process the state Due Clause question: That’s the he Mil her?” Did prove every charged of offense element doubt.”) beyond (citing In re a reasonable (2009); of hemor- type Pollanen knowledge was “erroneous” previous this in rhaging can Jane’s neck “not associated hemorrhaging neck be such ”; injury blunt pressure and with and venous explained elevated force vessels, hemorrhages were “not consistent with congested blood rupture of coughing, injury force to the neck.” (Empha- such as blunt drowning reactions added.) opinions The vomiting, and abdominal contrac- sis Rhodes’s ex- gagging, whole, perts particular as in tions. by Dr. Hyma Wigren, conclusions (2009) article proposed The Pollanen completely contradict Dr. critical angled body is down- dead when that Jane’s neck hethor- (a position;” which com- down ward “head rhages were caused external trauma “to bodies), hemor- occurs drowned monly in the outer of the skin the neck surface of the neck soft tissue rhagic lividity enough ... with force to area cause break- (extravascular leakage rupture age blood vessels.”3 pressure to gravitational due blood vessels death), “pseudo causes bruises” after selectively emphasizes the neck that lead “misidentifica- experts, Drs. Jentzen and two Rhodes’s injury.” tion of violent neck Rao, equivocal language parts used reports. They “the stated that hem their the evidence Rhodes’s analyzing After orrhage in have oc [Jane’s] the relevant applying trial and during' drowning process curred literature, forensic con- postmortem, opposed pre-mortem as ex misinterpreted McGee] cluded that “[Dr. “hemorrhages pressure”; ternal and the inju- postmortem artifacts as antemortem [Jane’s] neck could attributable ries”; “I there is evidence do believe something pressure.” other than external with the [premortem] trauma —consistent added.) (Emphasis any But concern about accidently fell overboard story Jane] [that equivocation, two seven drowned”; hemorrhages “the experts, goes weight of forensic to the “I postmortem”; [Jane’s] neck alleged, which must be evaluated homicide”; consider death anat where these ex have been classified the death “should perts experts and the state’s be would specifically, an based on accident.” More cross-examined, testify, to to allowed be of application the science from Alexander explain (2009), to further their and conclusions. (2011) Dr. Pollanen & Jentzen and stage, only question At this the is whether opined hemorrhages in Hyma “[t]he the alleged to been Rhodes of do not existence appear the neck relief, (Emphasis legally to pressure.” caused warrant by external sufficient added.) requires which Wigren postconviction concluded that the court to Dr. Jane’s true, “likely explained” the hemorrhages light neck are consider the evidence as Rhodes, natural, processes any to by pro- most with doubts the internal favorable (2011) in his posed by “light resolved favor. Under Alexander & Jentzen and merely explain apply newly experts not offered offered Rhodes’s are evidence, McGee, "impeach” as the court scientific from Alexander & Dr. states. Jentzen (2009), taking experts merely sup- Rhodes’s are not a sec- and Pollanen record, disagreeing application plemented record. is the ond at the same trial It look McGee, evidence, merely reaching con- Dr. different scientific hind- whiph clusions, pro- sight disagreements by experts, new impeachment be which Dr, 4(b)(2). are sci- hibited shows that McGee's conclusions erroneous, Rather, entifically experts are here Rhodes’s forensic standard, only most fair favorable” an summary on a —not petition assessment Rhodes’s denial. Even importantly, more the fact whole, including expert all seven postconviction 'court apparently scientific,literature, reports and the is that determined that Rhodes’s and lit ” testimony Dr. McGee’s about external erature were “contradicted] Dr. erroneous, trauma testimony McGee’s is actually a basis hemorrhages Jane’s neck requiring an evidentiary hearing, not de Moreover, drowning processes. natural one, nying pres because -the contradiction if I assumed that there was ‘ even dispute ents a of material Riley, fact. See “complete” of Dr. contradiction 167; Wilson, 726 N.W.2d at testimony,, complete such contradiction is 8 . 107-0 required warrant The scientific presented by least, very At hearing. Rhodes’s Rhodes, when considered as true and in presents dispute mate light most to the petition, favorable fact, rial which at an must be.resolved alleges important issues fact material evidentiary hearing. Wilson v. regarding newly-discovered-evi- 103, 107-08 (Minn.2007). claim, which be at an must' resolved summary In the court’s evidentiary hearing. Even if we deter- of Rhodes’s fourth it erro denial mine that Rhodes is not ‘to a entitled new neously following reached the conclusion: us, trial on the record before an evidentia- light “In contradicting testimony ry if hearing must be held issues of mate- presented by equally pa forensic qualified Wilson, rial fact remain. See thologists, Court cannot conclude that Wilson, 106-08. opinions expert the scientific literature and petitioner presented an affidavit a foren- (even true) make- it [Rhodes] offered expert, who questioned sic the scientific highly probable that is innocent.” [Rhodes] methods and of a State witness added.) (Emphasis This conclusion related to ballistics tests. Id. at 106-06. court, light district made “in of contradict Although held the record bé- ing testimony” by qualified foren “equally us, petitioner fore “not entitled pathologists” sic (referring to ex trial,” a new we remanded for an eviden- perts expert McGee), State’s tiary petitioner ‘because an abuse of discretion. This is an errone important “raised issues material fact grant ous application standard by submitting [the forénsic affida- ing evidentiary hearing, requires vit, serious questions which] raise[d] con facts about the methods used ... and light true and most favor sidered as opinion testimony by [police offi- petition. By able to the weighing the added). at (emphasis cer].” Id. 106-07 “contradicting” “equally qualified” and tes We an evidentiary hearing concluded that McGee, Dr. timony by the postconviction required expert’s because forensic court to properly' apply failed this stan (cid:127) affidavit, true, “if the offi- indicates that it did can only dard. And what be done cer’s testimony may have been inaccurate hearing. evidentiary an Whether after or even at 108. unfounded.” Id. opinions “equally qualified,” McGee’s are here, according to compared Similarly with the litera- the forensic offered Rhodes, by is question credibility reports presented by ture and and weight, evidentiary petition, regarding can be Rhodes’s fourth which consid . only by testimony changes knowledge ered and resolved at in scientific drown- live on “apply II years ago hemorrhaging, sions Rhodes ing-related internal neck equal force here.” testimony at trial Jane’s with Dr. McGee’s hemorrhages exter- conclu problem is that Rhodes II’s or even un- “inaccurate nal force least apply equally do not here for at sions Indeed, today’s science. founded” under at obviously, two' reasons. First and most .favorable”, standard, most “light under the II was considered time that Rhodes it is inaccurate based we must assume (2002-2008), as presently and decided .presented on- the contradictious serted, knowledge scientific on the new - evidence. Because scientific Rhodes’s drowning-related hemorrhaging causes in fourth considered Rhodes’s (Alexander & Jentzen Pollanen Rhodes, raises light most favorable “im- yet not expert reports) and the seven did material “seri- issues of fact” portant Despite holding IPs on the Rhodes exist. testimony opinion about questions” ous evidence, at sufficiency of the McGee, is of Dr. presented science in Wilson, 106-08, at required, new, distinct, much petition'1is fouith important” here be- “particularly which is damaging to critically Dr. McGee’s more “attacks” petition cause Rhodes’s evi compared medical testimony with most critical evidence the State’s II. asserted in Rhodes The evidence dence (cit- case, wholly circumstantial id. petition changes this record 428); ing Opsahl, 677 see jury, been heard would have II, (stating that 657 N.W.2d at 827 supplemented this must be new record wholly in this is circum- “the case evidence whole, melding as a and not considered stantial”).4 ago years our conclusion from 14 different, alternative, on much advanced In the concludes based less that, that the scientific evidence related to causes “even we assume injuries. years fully Our scientific refutes Dr. conclusion Jane’s ago testimony, assump medical that the medical evidence asserted to establish first legally tion insufficient the Rhodes’s because, for prong innocence as we insufficient relief Rhodes II does held 846,] determination now [657 necessitate independently sup murder conviction is scientific here distinct 'evidence nonscientific) (i.e., eviden- ported legally nonmedical insufficient warrant an evidence,” including tiary hearing evi “physical and motive nonscientific because evidence, conduct, supported as to the conviction. The court Rhodes’ presents dichotomy in Rhodes’ state false between scien inconsistencies evidence, tific ments.” The court holds that its conclu nonscientific 4(c) on depends 4. The court declines address "shifted date under subdivision dates, proposed by publication on that new science” rule over- but the date coming knowledge generally ac- 2-year of limitations under statute scientific becomes .4(c). rule, some cepted. adopt I (cid:127)Minn.Stat. Rhodes ar- it, science,” gues and remand of "shifted version context publication expert testimony to include date does wheth- article alleged in the date when the shifted science determine science er-and changed "generally scientific consensus Rhodes's fourth became evolves communi- “gradually” through multiple accepted" and ar- relevant argument, ty. 191 & community. Roby v. ticles in With this See (Minn.2010); Tanksley, adopt also impliedly us to a novel n. 3 see invites rule, (Minn.2012), 1 “shifted in which the accrual 708 n. science” no any newly under which scientific evidence of supplemented record and out type would.ever be sufficient to weighed by exonerate distinctly' compelling scientific in Rhodes because II concluded evidence that -refutes the critical evi most nonscientific evidence was. suffi by dence offered the State at trial. cient. This cannot be Imagine, correct. Second, the list of “nohmedical” evi hypothetically, a defendant’s.-convic dence sufficient for conviction, as tion was appeal affirmed on direct because decision, described Rhodes II now evidence was sufficient nonscientific has holes that must be addressed and can Then, support the a postcon- verdict. simply pasted current, be into the new viction proceeding, present the defendant ly supplemented record. ofOne the items ed discovered DNA evidence that list, “physical evidence,” refers en showed, to a 99.99% probability, that the tirely to the State’s expert'testimony from , not kill defendant did the victim. Would Captain regarding Chandler expected this court hold that DNA is evidence resurfacing time body drowned Of based legally insufficient for an hear temperature on the water depth at the concluded, ing it already because under II, location. See Rhodes appeal, earlier direct that certain nonscien 829-30, 840, (“Chandler N.W.2d at tific support evidence was sufficient to found it improbable that a could sink conviction? Of point course not. The in Green Lake [at the 40-foot-depth loca is in newly-discovered-evidence here tion by Rhodes], resurface, identified case, newly supplemented record must then float hours, nine-tenths of a inmile anew, whole, considered as given the temperature..’.. lake [Physical newly alleged -may push evidence e , proves evidenc circum under the pull on the remainder evidence stances, a body under 40 feet of water (or trial from previous postconviction pro would not refloat three to four ceedings) in ways, new or different such [P]hysical weeks.... suggests balanced record re Jane part fell overboard in a different quire a reasonable to reach a different lake.”). of the words, conclusion. other merely be But Captain cause . we now previous scientific evidence in a know Chandler pro testified ceeding outweigh incorrectly regarding could trial nonscientif ic temperature water preclude depth then does not a 40-foot new resulting and distinct scientific 3-to-4 tip resurfacing evidence from week ping here, that balance now. As applied Although Captain time. Chandler testified the nonscientific at trial evidence from that Green degrees, Lake was 39 longer no be independently suffi we now know that temperature, the actual to support conviction, cient according survey held in to a Minnesota DNR, fully it is degrees.5 Thus, considered within a the list of circumstances, 5. The concluded that Rhodes's diligence, due report the DNR untimely under the "due discover this DNR data and file a diligence” requirement newly-discover- postconviction relief on that basis before exception, ed-evidence 2007. And the disput- evidence here is not a 4(b)(2), report because the DNR otherwise, opinion, expert ed or some oth- diligence have been discovered due before ephemeral er kind of evidence where the 2-year expired statute of limitations passage fading of time or memories makes I that Rhodes's submission conclude problematic; admission temperature report of this DNR untimely is not because it data maintained agency official State expect petitioner not reasonable to with distinct scienti supplemented record nonmedical “sufficient” Now, critical state testi fic evidence that refutes longer holds all we up. II no Rhodes concluding motive;6 mony; that and Rhodes’s evidence of are left with is weak legally insufficient, with is- regarding conflicting witness to ac allowing out an Rhodes;7 relatively conduct innocuous weigh tually rec supplemented Lake;8 on a boat observations of Green ord. minor inconsistencies relatively and statements, given separate three

Rhodes’s Chapter provisions and our period.9 Rhodes a See times over provisions, 3-month those interpreting law are case Thus, the at 846. decision designed the burden of reduce meritless s troubling. more provi even Those postconviction proceedings. here become essence, only intended, however, relying.on is now the court are bar sions on on Rhodes II that claims merit. Based part of conclusion from issues evidence material factual sufficiency nonmedical petition,' I cannot hear Rhodes’s fourth conclu that was reached after sively say a Rhodes is entitled to no ing; adding conclusion to that that night drowning. foundational to testi- Green Lake on the Jane’s and data that is seeing mony the State’s Some of witnesses testified to a critical to case. these eight” patterns boat "nine and driving in with argued had a motive 6. The that speed sharp -.Rhodes rapid and Five of these circles. (1) a rela- kill Jane because nonsexual hearing witnesses sounds that testified tionship woman that ended another distressful, "laughter,” were not such as death; (2) a one-time before Jane’s months "hooting hollering,” "partying up,” it and attorney a consultation with divorce “having One and fun out there.” of these death; (3) before Jane’s life insur- months “moaning sounds” seven witnesses heard and ance; (4) a home and household debt from scream, "Stop. a woman’s voice No. It mortgage on a and loans and a boat. car police he Hurts.” Rhodes told while taking his wife were intimate boat night example, drowning, 7. on the For ride; they heard another saw and boat with- man, matching one a witness saw any lights "partying up” was out that description, boat shore. The drive man "tearing around.” . "top running” speed” off across “took Inn. wit- the Northern But another street inconsistencies, 9.These collected from state- ,ness man, matching testified that 3, 1996, August ments made on shore, description, boat to returned 15, 1996, August and October in- "walked” street to the Northern across the (1) following: the boat was clude that Jane, During Inn. the search witnesses going "top speed,” although "slow” or near observed conduct to be consistent Rhodes's police speedometer boat’s confirmed just lost one”—he with "someone who a loved (2) working properly; Jane fell was "cry- witnesses as was described various "back,” "side,” or overboard near the "frantic,” "very ing,” “very upset,” emotion- boat; (3) side” the boat “back was al,” wife,” agi- "wanting "deeply to save his shore headed north or headed at the toward tated," "huge sobs.” "devastated" with overboard; (4) time Jane fell when Jane although But one testified that "once witness overboard, fell missed the throttle [Rhodes would] in a while be emotional and grab the first and then turned around the cry,” any the witness did "notice tears.” boat, “immediately” or he turned around Another witness said “not (without mentioning grab whether throttle [crying] opinion,” although in my that witness missed); that Jane did not "couldn’t see face” and wasn't [Rhodes’s] overboard, or scream when she fell there "paying much attention.” “might have been like muffled scream” pure [but it] "cut off ... would be example, For scream seven witnesses testified to ' speculation my part.” seeing from boat on sounds 1; 590.04, § relief. Minn.Stat. subd. Wil Bobo,

son, 106-08; at see 726 N.W.2d Here, newly

N.W.2d at 516-20. dis true, evidence, if proven

covered to be light in the most favorable to

considered

Rhodes, by a clear-and- would establish that no

convincing standard reasonable

jury would have convicted Rhodes of first-

degree premeditated beyond a murder had the

reasonable doubt trial. See been Brown, 4(b)(2); 787-88; Riley, N.W.2d at prece

at 170. Under our well-established

dent, , “any must doubt’* be resolved holding

favor of hearing, holding “particularly such

important” where discovered evi important attacks

wholly circumstantial case like one.

Bobo, 516; Wilson, 107; Opsahl,

N.W.2d at reasons,

423. For these reverse I would I evidentiary hearing.

and remand for an

respectfully dissent.

LILLEHAUG, (dissenting). Justice join

I dissent Justice Anderson. Minnesota, Respondent, v.

STATE MYHRE, Appellant.

Joshua Lee

No. A14-0670.

Supreme Court Minnesota.

Feb.

Case Details

Case Name: Thomas Daniel Rhodes v. State of Minnesota, A13-560

Court Name: Supreme Court of Minnesota

Date Published: Feb 17, 2016

Citation: 875 N.W.2d 779

Docket Number: A13-560

Court Abbreviation: Minn.