Dale v. State

• Decision Date: 04 August 1995
• Docket Number: No. C8-94-15,C8-94-15
• Citation: 535 N.W.2d 619
• Parties: James Irving DALE, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

Page 619

535 N.W.2d 619

James Irving DALE, Petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. C8-94-15.

Supreme Court of Minnesota.

Aug. 4, 1995.

Syllabus by the Court

1. A petition for postconviction relief based on newly discovered evidence is properly denied where the petitioner fails to establish that the newly discovered evidence is material.

2. The evidence presented at trial is sufficient to sustain appellant's conviction.

John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Michael O. Freeman, Hennepin County Atty., Gayle C. Hendley-Zappia, Asst. County Atty., Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

PAGE, Justice.

A Hennepin County jury convicted James Irving Dale of attempted first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(e)(i) (1994) and Minn.Stat. § 609.17 (1994). The trial court sentenced Dale to 52 months' imprisonment. Dale petitioned for postconviction relief seeking to have his conviction reversed or, in the alternative, a new trial. The postconviction court denied the petition and the court of appeals affirmed.

Here, on appeal, Dale argues that: (1) his conviction should be vacated and a new trial ordered because of newly discovered evidence; and (2) his conviction should be reversed because the evidence presented at trial is insufficient to sustain the conviction. By pro se brief, Dale also asks this court to examine the issues raised in his pro se brief to the court of appeals. We affirm.

The testimony at trial disclosed that Dale and the complainant, Melanie Llewellyn, met at a party in Osseo, Minnesota, on October 18, 1991. Dale and Llewellyn left the party together and spent the remainder of that night, all of the next morning, and the early hours of the next afternoon partying together at various locations in south Minneapolis. According to the state, Dale attempted to rape Llewellyn during the afternoon of October 19 when he directed Llewellyn, who was driving him home, into a dead-end alley. Dale's theory of the case was that Llewellyn fabricated the rape charge in order to get back at him for not giving her more crack cocaine when she wanted it. At trial, Llewellyn denied ever smoking crack cocaine and specifically denied that she or anyone else smoked crack cocaine while she was with Dale. Dale, in contrast, testified that both he and Llewellyn smoked crack cocaine throughout the time they were together, and that the "attempted rape" was nothing more than an argument that began when he refused to give her more.

The jury returned its guilty verdict on January 29, 1992, and Dale was sentenced on February 26, 1992. Nearly one year later, on January 13, 1993, Dale filed a petition for postconviction relief, challenging his conviction and sentence. A hearing on the petition was held September 13, 1993.

Dale supported the petition with the affidavits of two of his friends, Jeanine Hetrick and Stephen Wentling. In their affidavits and testimony, Hetrick and Wentling stated that they were at a party in January 1992 when a woman, whom Wentling identified as Llewellyn, accused a man, whom Hetrick and Wentling did not know, but suspected of being a drug dealer, of "shorting" her. Llewellyn threatened the man, saying that she had put the last guy who had shorted her in jail for a long time. Shortly before the postconviction hearing, Dale provided, as additional support for the petition, police reports indicating that Llewellyn had been arrested on April 21, 1993, for loitering with intent to buy narcotics and for possession of drug paraphernalia. Three days after the postconviction hearing, Dale filed with the court the affidavit of Peter Linwick, who was acquainted with both Dale and Llewellyn. In his affidavit, Linwick stated that in April 1993, when he asked Llewellyn about what had happened between her and Dale, Llewellyn told him that "[Dale] ripped me off, and won't be ripping me or anyone else off again for a long time."

The postconviction court denied the relief requested in Dale's petition, concluding that Llewellyn's alleged statements at the January 1992 party and subsequent arrest did not justify a new trial because the evidence is merely impeaching. The court also concluded that the evidence presented at trial is sufficient to sustain Dale's conviction. The court of appeals affirmed, holding that: (1) the newly discovered evidence does not justify a new trial because it is merely impeaching; (2) the evidence is sufficient to sustain Dale's conviction; (3) Dale was not entitled to jury instructions on the impossibility of attempt and abandonment of criminal intention; and (4) statements by the prosecutor in his closing argument did not constitute misconduct. Dale v. State, No. C8-94-15, slip op. at 4, 1994 WL 593909 (Minn.App. November 1, 1994).

A petitioner seeking postconviction relief must establish, by a fair preponderance of the evidence, facts which warrant the requested relief. Minn.Stat. § 590.04, subd. 3 (1994); Wieland v. State, 457 N.W.2d 712, 714 (Minn.1990). We review postconviction proceedings to determine whether there is sufficient evidence in the record to sustain the postconviction court's findings. State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993).

Dale's first argument is that he is entitled to a new trial because of the newly discovered evidence contained in the affidavits and testimony of Hetrick and Wentling, in the affidavit of Linwick, and in the police reports. Dale contends that his conviction turned on whether the jury believed his story that Llewellyn was a cocaine user and that the newly discovered evidence established that she lied at trial about her cocaine use.

Generally, in order to obtain a new trial on the ground of newly discovered evidence, the defendant must establish (1) that the evidence was not known to him or his counsel at the time of trial, (2) that his failure to learn of it before trial was not due to a lack of diligence, (3) that the evidence is material (or as we have sometimes said, is not impeaching, cumulative or doubtful), and (4) that the evidence will probably produce either an acquittal at a retrial or a result more favorable to the petitioner.

Race v. State, 504 N.W.2d 214, 217 (Minn.1993) (Race III ) (quoting Race v. State, 417 N.W.2d 264, 266 (Minn.1987) (Race II )). Absent an abuse of discretion by the postconviction court, this court will not disturb its decision denying a new trial, where the decision turns on newly discovered evidence. Wieland, 457 N.W.2d at 714.

In this case Dale has established that the newly discovered evidence was not known to him or his counsel at the time of trial and that his failure to learn of it before trial was not due to a lack of diligence. The evidence was not known and could not have been discovered before trial because it simply did not exist. Dale has failed, however, to establish that the newly discovered evidence is material. ¹

Dale's newly discovered evidence is not material because some of the evidence is impeaching, cumulative, and doubtful, and some of the evidence lacks probative value. At the trial, Llewellyn denied using crack cocaine, but at least three defense witnesses, including Dale, testified that Llewellyn had smoked crack during the events leading up to the attempted rape. The newly discovered evidence merely provides further support for Dale's contention, apparently rejected by the jury, ² that Llewellyn was a crack user. Thus, the newly discovered evidence does no more than impeach Llewellyn's testimony, and is cumulative in light of the testimony given at trial. In addition, much of the new evidence is doubtful. Hetrick and Wentling, who as admitted friends of Dale are subject to bias, were unable to testify with certainty that Llewellyn was using or buying drugs at the January 1992 party or that the man she accused of "shorting" her was a drug dealer. The fact that there was a delay between the filing of the affidavits and the events that they relate--12 months in the case of the Hetrick and Wentling affidavits and 5 months in the case of the Linwick affidavit--also casts doubt on the statements contained in the affidavits. Finally, evidence that Llewellyn may have been using drugs at the January 1992 party and evidence of...