Pippitt v. State

• Decision Date: 16 August 2007
• Docket Number: No. A06-2106.,A06-2106.
• Parties: Brian Keith PIPPITT, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

737 N.W.2d 221

Brian Keith PIPPITT, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. A06-2106.

Supreme Court of Minnesota.

August 16, 2007.

Robert A. O'Malley, Minneapolis, MN, for Appellant.

Lori Swanson, Attorney General, St. Paul, MN, John J. Sausen, Assistant County Attorney, Brainerd, MN, for Respondents.

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

OPINION

GILDEA, Justice.

This case comes to us on appeal from the postconviction court's denial of petitioner Brian Keith Pippitt's petition for postconviction relief. Pippitt was convicted of the first-degree premeditated murder of Evelyn Malin and first-degree murder while committing burglary. For these crimes, Pippitt received two concurrent life sentences. On direct appeal we vacated the conviction for first-degree murder while committing burglary and affirmed the conviction for first-degree premeditated murder. State v. Pippitt, 645 N.W.2d 87, 96 (Minn.2002). We held, among other things, that the evidence was sufficient to convict Pippitt of first-degree premeditated murder. Id. at 94.

Approximately three years after we decided his direct appeal, Pippitt petitioned for postconviction relief. After an evidentiary hearing, the postconviction court denied the petition. Pippitt now appeals to this court claiming that the postconviction court erred when it found that he was not entitled to a new trial based on new evidence, prosecutorial misconduct and ineffective assistance of trial counsel.¹ We affirm.

The facts underlying the crime and the evidence against Pippitt are set forth in our opinion in Pippitt's direct appeal. See Pippitt, 645 N.W.2d at 89-92. We discuss in this opinion only those facts and evidence relevant to the issues Pippitt raises in this appeal.

Pippitt's new evidence claim involves the trial testimony of Raymond Misquadace (Raymond), Peter Arnoldi and Merle Malin. We begin with a discussion of this testimony and the evidence received at the postconviction hearing related to this testimony.

Much of the evidence of Pippitt's involvement in the crime came from the testimony of Raymond, who was an accomplice. Raymond testified that he, Pippitt and three other men stopped at the Dollar Lake Store on February 24, 1998, at 9 or 10 p.m. The victim, Evelyn Malin, owned and operated the Dollar Lake Store, which was attached to her home. According to Raymond, the store was already closed when they arrived, but Pippitt and two of the other men decided to enter the store to get beer. Pippitt walked to the store's front door while the other two men walked around the store. Raymond heard a thump or a crash and then noticed that the front door was open, Pippitt was no longer standing at the front door and shadows were moving inside the store. A short while later, Raymond saw the three men return to the car where he was waiting, but he did not see from which direction they came. The men were carrying cigarettes and beer and one stated that he had choked Malin while Pippitt hit her.

Pippitt argued to the postconviction court that Raymond had recanted. But Pippitt did not present testimony from Raymond to the postconviction court. Instead, Pippitt supported this argument through statements from Jeri Severson. Severson, who had been the crime victims' advocate for the Aitkin County Sheriff's Department at the time of Pippitt's arrest and trial, testified and swore by affidavit that in April 2005, Raymond told her that he had been pushed into a false confession by law enforcement and that "he told them what he thought they wanted to hear because he thought it would be better for him, but instead it ruined his life." Severson later attempted to contact Raymond before the hearing, but was not able to do so.

Also relevant to this appeal is the testimony from Peter Arnoldi, who corroborated Raymond's testimony at trial. Arnoldi had been in custody with Pippitt and he testified that Pippitt confessed to the murder. As we noted on direct appeal, "Arnoldi's credibility was seriously called into question" during trial. Pippitt, 645 N.W.2d at 94. In the postconviction proceeding, Pippitt challenged Arnoldi's testimony through an affidavit from Craig Licari. In his affidavit, Licari claimed that he had met Pippitt and Arnoldi at the state hospital in St. Peter and that Arnoldi had told him that Pippitt was charged with murder but that he was innocent and that Pippitt's relatives had implicated him in the hope of receiving reward money. Licari also stated, "Mr. Arnoldi had told me consistently in May of 1999 that his conversations with Mr. Pippitt, along with his reading of Mr. Pippitt's case materials, had led him to a firm belief that Mr. Pippitt was innocent. And he never told me that Mr. Pippitt had also confessed to the crime."

Pippitt's new evidence claim also involves the testimony of Merle Malin, the victim's son. As indicated above, Raymond suggested that Pippitt went into the Dollar Lake Store through the front door, while the other two men went around to the back.² At trial, Malin testified that because the front door sagged, his mother was not physically capable of lifting it sufficiently to engage the dead bolt.³ Malin's testimony thus suggested that the front door was not dead bolted and could have been used to enter the store. The state offered this testimony to corroborate Raymond's testimony regarding Pippitt's point of entry.⁴

At the postconviction hearing, which was held eight years after the murder and five years after the trial, Merle Malin testified that his mother always locked the front door and that he did not recall whether the door had a dead bolt. After seeing a picture of the front door, Merle Malin testified that the door did have a dead bolt, and that his mother could lock it. Malin said that he did not recall his trial testimony regarding the dead bolt issue, and stated that because he had not been to the store for four or five months before the murder, he did not know if the dead bolt worked at the time of the murder.

In addition to his new evidence claim involving the testimony of Raymond, Arnoldi, and Malin, Pippitt also raises an issue in this appeal relating to the statements made and testimony provided by Michael Misquadace (Michael), an alibi witness the defense offered at trial. Michael testified that he and Pippitt were at the casino in Mille Lacs until sometime in the evening, then went to the home of Michael's fiancée before returning to Pippitt's mother's home where they stayed for the remainder of the evening. Michael's fiancée also testified that Pippitt had accompanied Michael to her home the evening of the 24th. Her sister and her sister's fiancé testified that Pippitt had stopped by the home with Michael some evening in late February.

The police interviewed Pippitt twice before his arrest and once after he was in custody, but Pippitt did not tell the police during these interviews that he was with Michael on the night of the murder. At trial, the only explanation that Pippitt gave for failing to inform the police of his alibi was, "I'm not going to give any testimony to a law enforcement officer that I don't know at the time is true." At the postconviction hearing, Pippitt explained that he was not aware that February 24, 1998, was the day that he had gone to the casino with Michael until his mother visited him in jail and reminded him. He stated that he was first questioned about the murder 11 or 12 months after it had happened and that he had no reason to recollect what he was doing that long ago.

As indicated above, Pippitt contends the postconviction court erred when it denied his petition. On review of a postconviction decision, we determine whether there is sufficient evidence to support the postconviction court's findings. White v. State, 711 N.W.2d 106, 109 (Minn. 2006). The postconviction court's decision will not be overturned unless the court has abused its discretion. Id. A postconviction court's legal determinations are reviewed de novo, but its factual findings will not be set aside unless they are clearly erroneous. Schleicher v. State, 718 N.W.2d 440, 445 (Minn.2006); Doppler v. State, 660 N.W.2d 797, 801 (Minn.2003). Finally, Pippitt has the burden of showing that he is entitled to relief. See Wilson v. State, 726 N.W.2d 103, 106 (Minn.2007).

I.

We first address whether the postconviction court erred when it concluded that Pippitt was not entitled to a new trial based on newly discovered evidence. Pippitt argues that witness recantations provide the new evidence that entitles him to a new trial. Specifically, he argues that Severson's testimony leads to the conclusion that Raymond's testimony was false, that Licari's affidavit shows that Arnoldi's testimony was false, and that Malin's testimony at the postconviction hearing constitutes a recantation of his trial testimony. The postconviction court concluded that Pippitt's new evidence was "doubtful, impeaching or cumulative," and therefore did not entitle him to a new trial.

When considering whether a defendant is entitled to a new trial based on newly discovered evidence, we consider four factors. See Race v. State, 417 N.W.2d 264, 266 (Minn.1987). The defendant must show that (1) the evidence was not known to him or his counsel at the time of trial; (2) the failure to learn of the new evidence was not because of a lack of diligence; (3) "the evidence is material (or as we have sometimes said, is not impeaching, cumulative or doubtful)"; and (4) the evidence will probably produce an acquittal at a retrial or a more favorable result for the defendant. Id.; see also Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997).

But when the newly discovered evidence is in the nature of a recantation by a witness who testified at trial, we use the three-prong Larrison⁵ test. Wilson, 726 N.W.2d at 106 (citing Larrison test and distinguishing it from the four-prong newly discovered evidence test). Under the Larrison test, we...