Burrell v. State, A13–1769.

Citation858 N.W.2d 779
Decision Date04 February 2015
Docket NumberNo. A13–1769.,A13–1769.
PartiesMyon Demarlo BURRELL, Appellant, v. STATE of Minnesota, Respondent.
CourtSupreme Court of Minnesota (US)

Daniel S. Adkins, The Adkins Law Group, Chartered; and Mark J. Miller, Mark J. Miller, P.A., Minneapolis, MN, for appellant.

Lori Swanson, Attorney General, Saint Paul, MN Michael O. Freeman, Hennepin

County Attorney, Michael Richardson, Assistant Hennepin County Attorney, Minneapolis, MN, for respondent.

Considered and decided by the court without oral argument.

OPINION

ANDERSON, Justice.

Appellant Myon Demarlo Burrell was convicted of premeditated first-degree murder and attempted premeditated first-degree murder for the 2002 shooting death of 11–year–old Tyesha Edwards and the attempted murder of Timothy Oliver. In this postconviction appeal, Burrell argues that he is entitled to a new trial primarily based on newly discovered evidence and the recantation of two witnesses. After granting multiple continuances for Burrell to attempt to secure the appearance of favorable witnesses and then holding an evidentiary hearing, the postconviction court denied his petition. On appeal, Burrell argues that the court abused its discretion when it failed to compel the appearances of favorable witnesses. He also challenges the effectiveness of his trial counsel and the legality of the sentence imposed after a remand from his direct appeal. Because we conclude that (1) the postconviction court did not abuse its discretion when it refused to compel the appearance of witnesses at an evidentiary hearing, and (2) Burrell forfeited his ineffective-assistance-of-counsel argument, we affirm on the merits. Because the sentence was improper, we remand for resentencing consistent with our direction in State v. Burrell (Burrell II), 772 N.W.2d 459 (Minn.2009).

I.

Burrell originally was convicted of four counts of attempted first-degree murder in Oliver's shooting and four counts of first-degree murder for Edwards's 2002 death, and sentenced to life in prison. We reversed and remanded. State v. Burrell (Burrell I), 697 N.W.2d 579 (Minn.2005). On remand, following a bench trial, Burrell was acquitted of four of the counts, but convicted again of two counts of murder and two counts of attempted murder. We affirmed the convictions on direct appeal, but remanded to correct Burrell's sentence, holding that the district court in the second trial erred in imposing a longer sentence than that imposed in Burrell's first trial. Burrell II, 772 N.W.2d at 469–470.

The facts underlying Burrell's convictions are set forth in detail in Burrell II, 772 N.W.2d at 461–65, so we only briefly recount them here. On November 22, 2002, Tyesha Edwards, whose family lived next door to the aunt of Gangsters Disciple gang member Timothy Oliver, was killed by a stray bullet that pierced the wall of her family's South Minneapolis home and struck her in the chest. Id. at 461–62. At Burrell's first trial, Oliver testified that on the day of the murder he saw a maroon car that he believed belonged to rival gang member Hans Williams drive toward his aunt's house. Id. A man he knew as “Ike” was driving the car, and a man he knew as “Little Skits” was in the front passenger seat. Id. at 462. Oliver also testified that he heard nine or ten gunshots minutes after observing the car, and that he saw Little Skits standing between two houses, pointing a gun at him and pulling the trigger. Id. When police responded to calls from Edwards's house, they found Edwards lying on the dining room floor, having been killed by a .40 caliber bullet. Id. Oliver later identified photos of Isaiah “Ike” Tyson as having been in the maroon car, and Burrell as Little Skits, the shooter. Id.

A Hennepin County jury found Burrell guilty of four counts of first-degree murder, Minn.Stat. §§ 609.185(a)(1), (3) ; 609.229, subd. 2 (2014) (premeditated murder, premeditated murder for the benefit of a gang, intentional drive-by murder, and intentional drive-by murder for the benefit of a gang); and, four counts of attempted first-degree murder, Minn.Stat. §§ 609.185(a)(1), (3) ; 609.229, subd. 2 (attempted premeditated murder, attempted premeditated murder for the benefit of a gang, attempted intentional drive-by murder, and attempted intentional drive-by murder for the benefit of a gang). The district court convicted Burrell of two of the eight counts and sentenced him to life in prison plus 12 months for first-degree murder for the benefit of a gang and to a consecutive 186–month term for attempted first-degree murder for the benefit of a gang.

On Burrell's direct appeal, we reversed and remanded for a new trial on the grounds that (1) Burrell's Miranda waiver was ineffective, (2) the admission of expert testimony vouching for a witness's credibility was error, and (3) the district court erred when it refused to compel discovery of the State's plea negotiations with Burrell's codefendants. Burrell I, 697 N.W.2d at 597, 601, 605.

In 2004, between Burrell's first and second trials, Oliver, the intended target of the shooting, was shot and killed. After a second trial, Burrell was found guilty of four of the original eight felony counts—premeditated first-degree murder, premeditated murder for the benefit of a gang, attempted premeditated first-degree murder, and attempted premeditated murder for the benefit of a gang. Burrell II, 772 N.W.2d at 464. The district court convicted Burrell of premeditated first-degree murder committed for the benefit of a gang and attempted premeditated first-degree murder committed for the benefit of a gang. Id. The court sentenced Burrell to life in prison plus 60 months for the first-degree premeditated murder conviction and to a consecutive term of 186 months in prison for the conviction of attempted premeditated first-degree murder committed for the benefit of a gang. Id. at 465. We affirmed Burrell's convictions following the second trial but remanded to correct the sentence because the district court had improperly imposed a longer sentence in the second trial, in violation of State v. Holmes, 281 Minn. 294, 296, 161 N.W.2d 650, 652 (1968). Burrell II, 772 N.W.2d at 469. We therefore vacated Burrell's sentence for his first-degree murder conviction and remanded for resentencing with instructions to the district court to impose a sentence of no longer than life plus 12 months on that count. Id. at 470.

Burrell filed a petition for postconviction relief in August 2011, seeking relief under four theories: newly discovered evidence, witness-recantation evidence, ineffective assistance of counsel for failure to call a witness, and police misconduct in coercing witness statements. In the petition, Burrell claimed the following: a new witness, Rita Brown, had come forward with allegedly exculpatory evidence; two witnesses from the second trial, Terry Arrington and Anthony Collins, had recanted their testimony; codefendant Isaiah Tyson, who had testified at the second trial that he was the actual shooter, had recalled new details that would prove he was the shooter; and Antoine Williams, a witness from the first trial who did not testify at the second trial, also had “new evidence” about the shooting. None of this information was presented to the postconviction court in the form of affidavits directly from the witnesses or in sworn, notarized statements. Instead, Burrell submitted affidavits from a private investigator, Michael Morley,1 who interviewed the witnesses and summarized their prospective testimony. In some instances, Morley attached handwritten, unnotarized statements or transcriptions of audio-recorded phone interviews to his own summaries. Brown, however, refused to write a letter or sign an affidavit, and there is no transcript of her interview with Morley.

The postconviction court summarily denied Burrell's claims based on ineffective assistance of counsel and police misconduct, but granted an evidentiary hearing to permit the testimony of Brown, Collins, Arrington, and Tyson. At the evidentiary hearing, on May 29, 2012, just one of the four witnesses, Tyson, appeared to testify. Collins and Brown could not be located. Burrell's counsel told the court that he had talked with Collins's supervised-release agent, and that there was a warrant out for Collins's arrest because he had failed to check in. Arrington did not testify because he was in federal custody in Sherburne County, and according to counsel, had not been “writted over.” The court continued the hearing for two days to provide time to locate Brown and to arrange transport for Arrington.

When the hearing reconvened on May 31, 2012, the three witnesses again did not appear. Burrell's counsel told the postconviction court he had reached Brown via telephone, and she said she was not going to come testify and that she recanted her statements....” Counsel did not pursue the Brown matter further at that time. Instead, he moved to declare Collins an unavailable witness and to admit a recorded statement that Collins previously had provided. He also moved for a continuance to “attempt to secure” Arrington's testimony after indicating that it would take one week for the U.S. Marshals to transport him to the hearing. The court denied both motions.

In June 2012, following a substitution of counsel, Burrell requested that the court reconvene the evidentiary hearing, based on assurances that proof would be provided that the witnesses had been subpoenaed again and that their whereabouts were known. In an offer of proof submitted in support of the request, counsel stated that he would provide new affidavits from the witnesses “or alternatively, proper notarization or attestation to its previously offered affidavits.” The postconviction court granted the request and scheduled another evidentiary hearing for December 12 and 13, 2012. But, no new affidavits or notarizations were in fact provided to the postconviction court.

Because defense counsel did not subpoena witnesses in time for the December...

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