Opinion
No. C9-00-468.
Filed August 1, 2000.
Appeal from the District Court, Hennepin County, File No. 98-007353.
John R. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, (for appellant)
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Keith Thirkield was convicted of first-degree aggravated robbery under Minn. Stat. § 609.245, subd. 1 (1996). He filed this petition for postconviction relief, seeking a new trial on the basis of newly discovered evidence, which consisted of an alleged confession from another person who claimed that he, not appellant, had committed the robbery. The postconviction court denied the motion, concluding that the evidence was not credible and probably would not produce a more favorable result on retrial. We agree and affirm.
FACTS
On a Sunday morning in January 1998, J.N. was standing in a Minneapolis bus shelter when she noticed a black man wearing a black jacket and black pants cross the street. The man entered the shelter and stood next to J.N., mumbling to himself. J.N. left the shelter and stood by the bus stop sign. The man approached J.N. from behind, called her a "bitch," and knocked her to the ground. He struck her several times and grabbed her purse.
The man then fled on foot across the street. J.N. flagged down a passing police car, described her assailant, and pointed the officers in the direction that he had fled. The officers glimpsed a black man wearing a black jacket and hat running down an alley.
The officers drove into the alley and saw only one set of footprints in the newly fallen snow. They followed the footprints and found a purse hanging on a fence. One of the officers exited the squad car, jumped the fence, and followed the footprints through a yard. He jumped over a second fence and found a hat, neck warmer, and jacket lying in the snow. The officer also observed appellant running across the street. The officer believed appellant was the same man he had been chasing. He yelled "police" and ordered appellant to stop. When stopped, appellant was breathing heavily and had fresh snow on his shoes.
The officers returned appellant to the bus stop, where J.N. identified him as her assailant, but explained that he was no longer wearing the black jacket. She also identified her purse and confirmed that none of its contents was missing. One of the officers testified that while appellant was sitting in the squad car, he was "excitedly uttering that he was high [on crack and that] he took the purse from the bitch."
The court granted the state's motion in limine to admit for impeachment purposes evidence of appellant's four prior felonies. Appellant chose not to testify at trial, but called two alibi witnesses. The first testified that he was with appellant the morning of the offense, sitting in a car getting high on crack cocaine, and that he saw appellant being arrested after appellant left the car to urinate. The second testified that he saw a black man snatch a white woman's purse at a bus stop that morning, but that the man was not appellant. Both witnesses were impeached with prior convictions, including each giving false information to police.
The jury found appellant guilty of first-degree aggravated robbery. Appellant claims that before sentencing and while he was in jail, another inmate named Keith Gary confessed that he committed the robbery. Appellant moved for a new trial, citing this newly discovered evidence; the trial court denied his motion as untimely and sentenced appellant. Appellant thereafter filed a direct appeal challenging the denial of his new trial motion. He chose to dismiss that direct appeal and file a petition for postconviction relief.
DECISION I.
To prevail on a claim for a new trial based on newly discovered evidence, a defendant must establish that (1) at the time of trial, the evidence was not within the defendant's or his counsel's knowledge; (2) the evidence could not have been discovered through the exercise of due diligence before trial; (3) the evidence is not impeaching, cumulative, or doubtful; and (4) the granting of a new trial would "probably" produce a different result. State v. Race, 504 N.W.2d 214, 217 (Minn. 1993) (quotation omitted); State v. Weiland, 457 N.W.2d 712, 714 (Minn. 1990). Although the evidence offered by appellant, which includes an affidavit in which appellant states that Keith Gary confessed to him, handwritten statements from Gary, and the report of an investigator who interviewed Gary, arguably meets the first two requirements, it fails to satisfy the last two.
First, Gary's confession is doubtful and lacks credibility. As the postconviction court noted:
Gary's confession is not credible. He was not able to describe the victim with any clarity. Taking the purse but not removing any money and discarding the purse and a coat on a very cold January day when not being pursued is incredible. Gary's denial of injuring the victim, thus keeping within his plea agreement of no prosecution, does not fit the facts of the present case. Gary says he did not see [appellant] that day as he supposedly ran from the crime scene. It [is] very hard to believe that [appellant] walked into Gary's tracks after Gary had run by [appellant] in light of the police testimony that they saw the suspect running ahead of them and the suspect did not stop. It does not fit with the police testimony that [appellant] was running very fast, breathing heavily and [appellant] admitted taking the purse.
Gary was in jail because he had just pleaded guilty to aggravated robbery. Under the terms of his plea, the state agreed not to prosecute Gary for any other robberies in Hennepin County as long as they did not involve personal injury.
A postconviction court may refuse to grant relief based upon newly discovered evidence in the form of a witness who surfaces after trial, where the witness's testimony is internally contradictory and inconsistent. See Berry v. State, 364 N.W.2d 795, 796 (Minn. 1985).
Next, Gary's confession is somewhat cumulative because it merely provides additional support for appellant's claim that someone else robbed J.N. that morning. This claim formed the basis for appellant's defense and was already presented to the jury through the testimony of appellant's two alibi witnesses. See Dale v. State, 535 N.W.2d 619, 622 (Minn. 1995) (postconviction court properly denied new trial where newly discovered evidence was cumulative because it merely provided further support for defendant's claim that victim used crack cocaine, which was presented at trial through testimony of at least three defense witnesses and which was apparently rejected by jury).
Finally, admission of Gary's confession at any retrial probably would not produce a result more favorable to appellant. See Race, 504 N.W.2d at 218 (affirming postconviction court's conclusion that new testimony would "probably not produce a more favorable result at a new trial"). The jury would again hear the testimony of the officers and J.N., who would relate the events of that morning and again identify appellant as the assailant. And Gary's credibility would be questionable, given his prior convictions and his internally inconsistent and implausible story. Under these circumstances, it is highly probable that the jury would again reject appellant's alibi evidence and find him guilty.
II.
Appellant argues that the trial court abused its discretion by ruling that four prior felony convictions were admissible to impeach him if he chose to testify at trial. Those convictions include: (1) a 1985 conviction of aggravated robbery; (2) a 1986 conviction of felon in possession of a pistol; (3) two 1987 convictions for aggravated robbery; and (4) a 1991 conviction of second-degree assault.
Minn.R.Evid. 609(a)(1) allows the admission, for impeachment purposes, of evidence of prior felony convictions for crimes not involving dishonesty or false statement if the probative value of the evidence outweighs its prejudicial nature. A trial court must consider the following factors: (1) the impeachment value; (2) the date of the conviction and the defendant's subsequent history; (3) the similarity of the past crime to the present offense; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. State v. Ihnot, 575 N.W.2d 581, 588 (Minn. 1998) (citing State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978)); State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).
The trial court's decision to admit appellant's prior convictions is only weakly supported by several of the Jones factors: none of the offenses directly implicates veracity, the two prior aggravated robbery convictions appear identical to the offense here, and the 1985 and 1986 convictions are over ten years old and stale. Nevertheless, upon closer examination of the dates of each offense and the time appellant spent either incarcerated or on supervised release, these four convictions demonstrate a continuous pattern of criminal conduct. See Ihnot, 575 N.W.2d at 586 (where pattern of lawlessness shown, prior offenses do not lose "any relevance by the passage of time"). Finally, any potential that the jury might use this evidence substantively because of the similarity of the crimes would have been lessened or alleviated by a limiting instruction. See State v. Bellcourt, 305 N.W.2d 340, 342 (Minn. 1981) (admitting prior aggravated robbery conviction at aggravated robbery trial).
A conviction is considered "stale" if it is more than ten years old. See Minn.R.Evid. 609(b). Because appellant was not placed on supervised release for the two 1987 aggravated robbery convictions until September 1990, those convictions are within the ten-year time period.
Importantly, the last two Jones factors weigh heavily in favor of admitting appellant's prior convictions. The jury heard appellant's theory of the case through his alibi witnesses, and his own testimony was not that crucial to his case. State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (court may exclude prior conviction if admission might "cause the defendant not to testify and if it is more important for the jury to hear [the] defendant's version of the case"). And because appellant failed to make an offer of proof on what his testimony would have been, we cannot determine whether his credibility would have been an issue. See Inhot, 575 N.W.2d at 587. Further, other convincing, circumstantial evidence supports appellant's conviction, including the fact that the officers saw only one set of footprints, followed them, and came upon appellant, who was jacketless, breathing heavily, and had fresh snow on his shoes. We, therefore, conclude that the trial court did not abuse its discretion by ruling appellant's prior convictions admissible for impeachment purposes.
III.
Appellant has filed a pro se supplemental brief in which he claims, for the first time on appeal, that the eyewitness identifications were unconstitutional and highly suggestive as "cross racial identification[s]," "because he was the only African American in the courtroom." As the state argues, this claim does not implicate any constitutional violation; rather, appellant seeks to attack the credibility of the victim and police officers. The jury had an opportunity to evaluate the evidence and testimony, and obviously chose to reject the testimony of appellant's alibi witnesses and disbelieve appellant's version of the events. See State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998) (identification is question of fact for jury to determine).
Appellant also alleges "Perjury, Tampering with Evidence, Giving a False Police Report, [and] Civil Rights Violations." He complains that J.N.'s purse was returned to her and was not photographed or inventoried until the following day, and that the police were not given the black leather purse allegedly stolen, but an "old torn light blue Fanny Pack." Again, appellant failed to raise this issue below and has failed to adequately brief or fully develop this issue. Moreover, our review of the record fails to disclose any evidence to support his claims. We, therefore, reject the issues raised in appellant's pro se brief as meritless. See State v. Wallace, 558 N.W.2d 469, 473-74 (Minn. 1997) (rejecting issues raised in pro se supplemental brief as meritless).