Dukes v. State

• Decision Date: 01 February 2001
• Docket Number: No. C7-00-808.,C7-00-808.
• Citation: 621 N.W.2d 246
• Parties: Derrick Ramon DUKES, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

621 N.W.2d 246

Derrick Ramon DUKES, Petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. C7-00-808.

Supreme Court of Minnesota.

February 1, 2001.

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

OPINION

PAUL H. ANDERSON, Justice.

In 1994, Derrick Dukes was convicted of first-degree murder, first-degree attempted murder, and attempted aggravated robbery and sentenced to life in prison plus 180 months. Dukes appealed and we affirmed his conviction. Dukes subsequently filed a petition for postconviction relief alleging denial of his Sixth Amendment Confrontation Clause rights, erroneous admission of an accomplice's guilty plea, erroneous evidentiary rulings, ineffective assistance of trial and appellate counsel, improper sentencing, and discovery of falsified evidence. The postconviction court denied relief, finding that some claims were procedurally barred because they either were raised and decided or should have been raised on direct appeal and that Dukes' other claims lacked merit. We affirm the postconviction court on all but two claims; however, we remand Dukes' ineffective assistance of trial counsel claim and his newly-discovered falsified evidence claim for further proceedings.

A detailed statement of the facts can be found in State v. Dukes, 544 N.W.2d 13 (Minn.1996); therefore, we will set out only the facts relevant to this appeal. On the afternoon of April 1, 1994, Derrick Dukes, Steve Morrison, and Kevin Lewis drove to Saint Paul in Dukes' car. Dukes was driving the car. In two separate incidents, Morrison and Lewis attempted to rob Bennie Chaney and Joe McKinney. During the attempted robberies, Morrison fired a gun at Chaney, who was not injured, and Morrison and Lewis each fired a gun at McKinney, who was killed by a gunshot wound to the back of his head. Dukes claims that he was unaware of the criminal intentions of Morrison and Lewis.

Eyewitnesses reported Dukes' license plate number to the police and the police tracked him to Gatsby's bar in Saint Paul, where he, Morrison, and Lewis worked as bouncers. The police arrested Dukes and impounded his car. Later that evening, the manager of Gatsby's notified the police that Dukes' jacket was still at the bar. The police then returned to Gatsby's to retrieve the jacket and in the pocket they found a .32 caliber pistol, which was later determined to be the gun used to kill McKinney. There is some evidence that Morrison and Lewis were present at Gatsby's when Dukes was arrested, but Morrison and Lewis were not arrested at that time. Dukes asserts that this sequence of events gave either Morrison or Lewis or both the opportunity to place the gun in his jacket.

Lewis confessed to his involvement in the crimes and pleaded guilty to first-degree attempted murder and second-degree intentional murder. The first-degree murder and aggravated robbery charges against Lewis were then dropped in exchange for his testimony against Dukes and Morrison. At his plea hearing, Lewis implicated both Dukes and Morrison in the murder, attempted murder, and robbery.

Dukes and Morrison were indicted on charges of murder in the first degree, attempted murder in the first degree, and attempted aggravated robbery in violation of Minn.Stat. §§ 609.185(3) (1994), 609.17 (2000), 609.245 (2000), 609.11 (1994), and 609.05 (2000). At the beginning of Dukes' trial, Lewis withdrew his guilty plea and refused to testify. A redacted version of Lewis' plea testimony was then admitted against Dukes. The jury found Dukes guilty of all charges and he was sentenced to a life term for first-degree murder plus 180 months for first-degree attempted murder, to be served consecutively. The court did not sentence Dukes for aggravated robbery because the robbery arose out of the same behavioral incident as the attempted murder. Lewis also was convicted of the same offenses, but was sentenced to life without parole for first-degree murder to be served concurrently with 230 months for attempted murder. Morrison was subsequently acquitted of all charges. At Morrison's trial, the court denied the admission of much of Lewis' plea testimony.

On his direct appeal, Dukes challenged four of the district court's rulings: the admission of Lewis' withdrawn guilty plea testimony; the refusal to instruct the jury on the lesser-included offense of second-degree murder; the refusal to sever the offenses into two trials; and the imposition of consecutive, rather than concurrent, sentences. Dukes, 544 N.W.2d at 15. We affirmed Dukes' convictions in a unanimous opinion. Id.

Dukes subsequently filed a petition for postconviction relief. In his petition, Dukes raised six arguments: (1) denial of Sixth Amendment Confrontation Clause rights by the admission of Lewis' plea testimony; (2) denial of his right to a fair trial by the admission of Lewis' guilty plea; (3) denial of equal protection when the same court made inconsistent evidentiary determinations on the admissibility of Lewis' testimony in Dukes' and Morrison's trials; (4) denial of effective assistance of trial and appellate counsel; (5) denial of equal protection and due process because the district court sentenced Lewis and Dukes differently for the same crimes; and (6) that he was entitled to a new trial due to the recent discovery of falsified trial evidence.

The postconviction court held an evidentiary hearing at which Dukes and an expert testified about Dukes' ineffective assistance of counsel claims. Dukes testified that he did not give his consent to his counsel to admit guilt to any of the charged offenses, but neither Dukes nor the state elicited the testimony of Dukes' trial counsel. After the evidentiary hearing, the postconviction court denied Dukes' petition and he appealed. On appeal, Dukes raises essentially the same arguments, together with a claim that the postconviction court abdicated its duties by adopting verbatim the state's proposed findings and order.

I.

We review a postconviction court's findings to determine whether there is sufficient evidentiary support in the record. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997). We afford great deference to a district court's findings of fact and will not reverse the findings unless they are clearly erroneous. State v. Bradford, 618 N.W.2d 782, 794 (Minn. 2000). The decisions of a postconviction court will not be disturbed unless the court abused its discretion. Perry v. State, 595 N.W.2d 197, 200 (Minn.1999). Each of Dukes' claims of error in the postconviction court's findings must be reviewed under this standard.

Dukes argues that the admission of Lewis' plea testimony violated his Sixth Amendment right of confrontation and that the admission of Lewis' guilty plea as the statement of an accomplice required a limiting instruction. The postconviction court held that these two claims were raised on direct appeal, so Dukes was not entitled to a second review. Once a party takes a direct appeal, any claim raised in that appeal will not be considered in a petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737, 741 (1976). Not only are claims previously raised barred from consideration, but consideration of claims known, but not raised, at the time of the direct appeal is also barred. See id. The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal or (2) a claim that the petitioner did not "deliberately and inexcusably" fail to raise on direct appeal when fairness requires its consideration. Roby v. State, 531 N.W.2d 482, 484 (Minn.1995). In Dukes' direct appeal, he raised the issue of whether the court improperly admitted Lewis' plea testimony. We affirmed the use of Lewis' plea testimony. State v. Dukes, 544 N.W.2d 13, 19 (Minn.1996) (distinguished by State v. Profit, 591 N.W.2d 451 (Minn.1999), cert. denied, 528 U.S. 862, 120 S.Ct. 153, 145 L.Ed.2d 130 (1999)). We specifically stated that the Lewis plea testimony "contained sufficient indicia of reliability to avoid violating the Confrontation Clause." Id. Therefore, we conclude the postconviction court did not abuse its discretion in finding that this claim was procedurally barred.

The claim of the admission of Lewis' plea as the statement of an accomplice is slightly different. Dukes relies on State v. Cermak for the proposition that evidence of a guilty plea of an accomplice may not be used as substantive evidence against the defendant and that, at a minimum, a limiting instruction should have been given to the jury. 365 N.W.2d 243, 247 (Minn.1985). We did not consider on direct appeal the use of Lewis' plea as the statement of an accomplice because Dukes did not raise this claim at that time. However, the legal basis for this claim was available at the time of Dukes' direct appeal and he has not provided any theory as to why fairness now dictates its consideration. Therefore, Dukes waived consideration of the use of Lewis' plea as the statement of an accomplice. Knaffla, 243 N.W.2d at 741.

Likewise, if Dukes wanted to challenge the lack of a jury instruction, he should have raised this claim on direct appeal. Roby, 531 N.W.2d at 484. Here, Dukes has provided no reason why we should take exception to the general rule barring postconviction review. The record reflects that Dukes knew at the time of his direct appeal that Lewis' plea was introduced against him and that no jury instruction was given. We conclude Dukes has waived consideration of the lack of a jury instruction because this claim was known, but not raised, on his direct appeal. Accordingly, we hold that the postconviction court did not abuse its discretion when it found these claims procedurally barred.

II.

Dukes next asserts that his Sixth Amendment rights were violated because his trial and appellate counsel were ineffective. The Sixth Amendment guarantees the right to assistance of counsel in order to ensure that a criminal defendant receives a fair...