Bobo v. State
| Decision Date | 19 September 2012 |
| Docket Number | A11–1671.,Nos. A11–0070,s. A11–0070 |
| Citation | 820 N.W.2d 511 |
| Parties | De–Aunteze Lavion BOBO, Appellant, v. STATE of Minnesota, Respondent. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. The postconviction court did not err when it failed to hold an evidentiary hearing on appellant's ineffective-assistance-of-appellate-counsel claim because appellant failed to allege facts that, if proven by a fair preponderance of the evidence, would satisfy the first prong of the Strickland test.
2. The postconviction court erred when it failed to hold an evidentiary hearing on appellant's newly discovered evidence claim because the record does not conclusively establish that appellant failed to allege facts that, if proven by a fair preponderance of the evidence, could satisfy the Rainer test.
De–Aunteze Lavion Bobo, pro se.
Lori Swanson, Attorney General, Saint Paul, MN, and Michael O. Freeman, Hennepin County Attorney, Elizabeth Johnston, Assistant County Attorney, Minneapolis, MN, for respondent.
Considered and decided by the court without oral argument.
Appellant De–Aunteze Lavion Bobo was convicted of first-degree murder while committing a drive-by shooting, Minn.Stat. § 609.185(a)(3) (2010), and drive-by shooting, Minn.Stat. § 609.66, subd. 1e (2010), for his role in a shooting that killed James Roberts and injured R.N. We affirmed Bobo's conviction on direct appeal. State v. Bobo, 770 N.W.2d 129 (Minn.2009). In this case, Bobo appeals the summary denial of his second petition for postconviction relief, which alleges a claim of ineffective assistance of appellate counsel, and his third petition for postconviction relief, which alleges a claim of newly discovered evidence. We affirm the postconviction court's summary denial of the second postconviction petition because the record conclusively shows appellate counsel was not ineffective. But we reverse the court's summary denial of the third postconviction petition and remand for an evidentiary hearing because the record fails to conclusively show that Bobo is not entitled to relief based on his claim of newly discovered evidence.
The facts surrounding the drive-by shooting are set forth in detail in Bobo, 770 N.W.2d at 133–35. We limit our discussion of the facts to those directly related to this appeal. At approximately 2:30 a.m. on June 2, 2006, James Roberts and R.N. were sitting in a parked car, waiting for their friend to finish his work day. As they waited, an SUV drove past their car and then made a U-turn. When the SUV drove by their car a second time, someone in the SUV fired multiple shots, killing Roberts and injuring R.N. The police initially had no suspects.
While executing an arrest warrant for Leonard Slaughter on unrelated charges, the police discovered the gun used in the June 2, 2006 shooting. Because Bobo was a known associate of Slaughter, the police began investigating Bobo. During the investigation, Bobo allegedly gave his cell phone number to the lead investigator, Sergeant Bruce Folkens. Phone records revealed that 5 minutes before the shooting, Bobo's cell phone triggered a cell tower one block from the crime scene. Slaughter's phone also triggered the same tower just before the shooting.
Folkens also learned that Samuel James (James) might have information about the shooting. Folkens subsequently met with James, who was in custody on an aggravated robbery conviction. James told Folkens that Bobo admitted telling Slaughter to shoot Roberts and R.N. because of a past altercation between Roberts, Slaughter, and Bobo.
After reviewing the State's evidence, which included testimony by James regarding Bobo's involvement in the shooting, a grand jury indicted Bobo with first-degree murder while committing a drive-by shooting. Bobo pleaded not guilty and demanded a jury trial.
At trial, Folkens testified about the police investigation. The State also called James as a witness, but he refused to answer the prosecutor's questions and repeatedly shouted that Bobo was innocent. On cross-examination, James said that his testimony to the grand jury was false, that Bobo never told him anything about the crime, that he only implicated Bobo to get a deal from the police, and that he had received special considerations from the police after he agreed to testify against Bobo.
Bobo did not testify at trial and instead presented an alibi defense through Slaughter's mother, S.E., who testified that Bobo, the mother of his child, and their child were at her home in north Minneapolis during the time of the shooting. Bobo also presented an alternative perpetrator theory based on Folkens's investigation of M.S. Specifically, Roberts's son and M.S. had a girlfriend in common and, on at least one occasion, they had fought regarding the girlfriend.
In accord with the jury's verdict, the district court convicted Bobo of first-degree murder while committing a drive-by shooting and imposed a life sentence. The court also convicted Bobo of drive-by shooting and imposed a concurrent 98–month sentence.
Bobo appealed his conviction, but sought a stay of his direct appeal while he pursued a petition for postconviction relief in the district court. In a consolidated appeal, we affirmed Bobo's convictions and the postconviction court's denial of postconviction relief. Bobo, 770 N.W.2d at 133.
A year later, Bobo filed a second petition for postconviction relief. In his petition, Bobo claimed appellate counsel provided him ineffective assistance in his direct appeal. Bobo argued that appellate counsel was ineffective in part because she did not raise an ineffective-assistance-of-trial-counsel claim based on trial counsel's failure to assert a Miranda challenge to the cell-phone testimony.1 The second postconviction petition also alleged a newly discovered evidence claim. The newly discovered evidence involved monies the police allegedly paid to James. In support of the second postconviction petition, Bobo signed a sworn affidavit stating that he asked trial and appellate counsel to raise issues relating to his cell phone number. Bobo also submitted a sworn affidavit from James stating that the police had provided James money, that Bobo never confessed to the crime, and that James was willing to testify to those facts. James signed the affidavit in 2010.
Without holding an evidentiary hearing, the postconviction court summarily denied Bobo's second postconviction petition. The court explained that the record conclusively showed that Bobo was not entitled to relief because the ineffective-assistance-of-appellate-counsel claim lacked merit and the newly discovered evidence was largely cumulative to James's trial testimony that he received special consideration for testifying against Bobo.2
Bobo appealed the summary denial of his second postconviction petition. He argued in part that Folkens obtained his cell phone number during a conversation that occurred after his arrest and detention, and that Folkens did not read him a Miranda warning during that conversation.
While his appeal from the denial of the second postconviction petition was pending, Bobo filed a third petition for postconviction relief. In his third petition, Bobo raised a single claim of newly discovered evidence. The newly discovered evidence involved post-trial confessions James allegedlymade to fellow inmates J.C. and D.T. In a sworn affidavit, D.T. averred that in May 2009, James admitted he was with Slaughter on the day of the shooting and that he “put the case off on” Bobo just like he tried to do in another murder. 3 J.C. also signed a sworn affidavit stating that in 2008, James told J.C. that he lied when he implicated Bobo and that James was the one who committed the murder with Slaughter. Both affidavits state that James explained there had been a prior fight downtown and when James later saw one of the men involved in the fight, he made a U-turn and shot at the man. James also allegedly told both J.C. and D.T. that he did not want to put the case on Bobo, but that he really wanted to get out of jail and needed the money the police were offering. Both affidavits were executed just before Bobo filed the third petition, and Bobo alleged he did not know of the evidence contained in the affidavits before that time.
Without holding an evidentiary hearing, the postconviction court summarily denied Bobo's third postconviction petition. Although the court acknowledged James's post-trial confessions could not have been discovered earlier, the court concluded that the record conclusively showed that Bobo was not entitled to relief because the newly discovered evidence was both cumulative and inadmissible hearsay. More specifically, the court concluded that the newly discovered evidence was cumulative because James had testified at trial that Bobo was not responsible for the shooting. The court also concluded that James's hearsay statements were not admissible as a statement against interest under Minn. R. Evid. 804(b)(3) for two reasons. First, the statements were not against James's penal interests because he was serving two consecutive 30–year sentences when he allegedly confessed to D.T. and J.C. Second, there were no corroborating circumstances to show that the statement was trustworthy because the evidence was brought forward by two felons years after the admissions were allegedly made and the admissions were inconsistent with James's 2010 affidavit. SeeMinn. R. Evid. 804(b)(3) ().
Bobo appealed the summary denial of his third postconviction petition, and we consolidated that appeal with his appeal from the summary denial of his second postconviction petition. As discussed below, we conclude that although the record conclusively shows that appellate counsel was not ineffective, the record fails to conclusively show that Bobo is not entitled to relief based on the...
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