Vance v. State, No. A07-1552.

• Citation: 752 N.W.2d 509
• Decision Date: 10 July 2008
• Docket Number: No. A07-1552.
• Parties: Philip VANCE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Supreme Court of Minnesota (US)

752 N.W.2d 509

Philip VANCE, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. A07-1552.

Supreme Court of Minnesota.

July 10, 2008.

Philip Vance, MCF-Stillwater, Bayport, MN, for Pro Se Appellant.

Lori Swanson, Attorney General, St. Paul, MN, James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Hastings, MN, for Respondent.

Considered and decided by the court en banc without oral argument.

OPINION

PAGE, Justice.

Appellant Philip Vance appeals the district court's summary denial of his petition for postconviction relief. We affirm.

Vance was convicted in 2004 of the December 22, 2002, murder of Khaled Al-Bakri.¹ In his direct appeal, Vance asserted that the district court erred by (1) excluding alternative-perpetrator evidence and reverse-Spreigl evidence; (2) allowing, without providing a cautionary instruction, testimony that State witnesses were fearful; (3) failing to give an instruction regarding unredacted police statements that suggested Vance was untruthful; and (4) excluding a letter from Al-Bakri's brother to a witness for the State. See State v. Vance, 714 N.W.2d 428, 436-44 (Minn. 2006). Vance also claimed that he had newly discovered evidence in the form of a recantation by a witness for the State and that the prosecutor committed misconduct by crying during the trial and closing arguments. Id. at 444. We found no prejudicial errors and affirmed the conviction. Id.

In May 2007, Vance filed a petition for postconviction relief with the district court. The district court summarily denied the petition, concluding that "[t]he claims in the petitions were either raised and decided on appeal already, or were known and not raised at the time of appeal." Additionally, according to the district court, Vance's claims for relief "are baseless, lack specificity and are without merit."

Vance argues on appeal that he is entitled to postconviction relief based on (1) ineffective assistance of trial and appellate counsel; (2) newly discovered evidence of witness recantation; (3) the insufficiency of the indictment in light of recanted witness testimony; (4) prosecutorial misconduct; (5) failure to submit his charge pursuant to Minn.Stat. § 609.11 (2006) to the grand jury or the jury; and (6) cumulative errors preventing him from receiving a fair trial. He further argues that the district court abused its discretion by denying him an evidentiary hearing. We affirm.

I.

When reviewing postconviction proceedings, we are to "`extend a broad review of both questions of law and fact.'" Butala v. State, 664 N.W.2d 333, 338 (Minn.2003) (quoting State ex rel. Pittman v. Tahash, 284 Minn. 365, 368, 170 N.W.2d 445, 447 (1969)). We review legal issues de novo, but our review of factual matters is limited to whether there is sufficient evidence in the record to sustain the postconviction court's findings. Id. A petitioner has the burden of establishing by a preponderance of the evidence facts that would warrant relief. Blom v. State, 744 N.W.2d 16, 17 (Minn.2007).

A postconviction court is required to hold an evidentiary hearing only when there are disputed material facts that must be resolved to determine the merits of the postconviction claims. King v. State, 562 N.W.2d 791, 794 (Minn.1997). In reviewing a postconviction court's denial of relief without an evidentiary hearing, "we resolve any doubts about whether an evidentiary hearing is required in favor of the petitioner." Patterson v. State, 670 N.W.2d 439, 441 (Minn.2003). However, no evidentiary hearing is required if the petition and record conclusively show that the petitioner is not entitled to relief. Id.

"Once a direct appeal has been taken, all claims raised in that appeal, all claims known at the time of that appeal, and all claims that should have been known at the time of that appeal will not be considered in a subsequent petition for postconviction relief." Leake v. State, 737 N.W.2d 531, 535 (Minn.2007) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). There are two exceptions to this rule: "(1) if a novel legal issue is presented, or (2) if the interests of justice require review." White v. State, 711 N.W.2d 106, 109 (Minn.2006).

II.

Vance argues that he received ineffective assistance of both trial and appellate counsel. Claims of ineffective assistance of counsel involve mixed questions of law and fact, which we review de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003). A petitioner is entitled to an evidentiary hearing to develop the facts supporting his ineffective assistance claims only if he alleges facts in the petition that, if proved, would "affirmatively show that his attorney's representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different." Wilson v. State, 582 N.W.2d 882, 885 (Minn.1998). If no further facts need to be developed, the claim should be raised on direct appeal. See Robledo-Kinney v. State, 637 N.W.2d 581, 585 (Minn.2002).

Vance first contends that he did not receive a fair trial due to the ineffective assistance of trial counsel, based on his trial counsel's failure to conduct an investigation, to talk to any witnesses, and to call any witnesses to testify on his behalf.² However, Vance has not alleged facts that, if proved, would "affirmatively show that his attorney's representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different." Wilson, 582 N.W.2d at 885. Thus, the postconviction court was not required to hold an evidentiary hearing to develop the record. Id.

The essence of Vance's claim is that his trial counsel did not interview or otherwise talk to a number of the State's witnesses before trial. Those witnesses include Colleen McManus, Maynard Cross, Eric Griffin, Melissa Stites, Regina Hagerman, Geronimo Estrada, Isaac Hodge, John Nunn, Dontay Reese, Tyrone Crawford, and Kathleen Johnson. Vance does not explain, however, how the failure to interview or otherwise talk to these witnesses before trial resulted in prejudice to him, nor is it apparent from the record. Nor does Vance explain how prejudice could have resulted, considering that his trial counsel conducted cross-examinations of the State's trial witnesses, including McManus Griffin, Stites, Hagerman, Hodge, Nunn, Reese, and Crawford. Absent such explanations, we conclude that Vance has failed to allege facts affirmatively showing that, but for his trial counsel's alleged errors, the result of his trial would have been different. Therefore, there is no basis to conclude that his trial counsel was ineffective with respect to this claim.

Further, the allegations that Vance's trial counsel failed to conduct an investigation, talk to any witnesses, and call any witnesses to testify are all claims the underlying facts of which Vance either knew or should have known at the time of his direct appeal. Because Vance either knew or should have known of the claims at the time of his direct appeal and the claims could have been adjudicated on the basis of the trial record and briefs, the claims are barred under the rule set out in Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. Therefore, Vance's ineffective-assistance-of-trial-counsel claim fails.

Vance also argues that his appellate counsel was ineffective for failing to raise on direct appeal his trial counsel's ineffective assistance. When a petitioner bases his ineffective-assistance-of-appellate-counsel claim on appellate counsels failure to raise an ineffective-assistance-of-trial-counsel claim, he first must show that trial counsel was ineffective. Zenanko v. State, 688 N.W.2d 861, 865 (Minn.2004). Here, as noted above, Vance has failed to make such a showing. We therefore conclude that Vance's ineffective-assistance-of-appellate-counsel claim fails.

III.

Vance next asserts that John Martin and Dontay Reese, two of the State's trial witnesses, have, by affidavit, recanted part of their trial testimony. Although evidentiary hearings usually are necessary to evaluate the reliability of the recantation, there must be sufficient "indicia of the trustworthiness" of the recantation to merit a hearing. State v. Ferguson, 742 N.W.2d 651, 660 (Minn.2007).

We conclude that Vance is not entitled to an evidentiary hearing based on his claim of recanted testimony. With respect to Martin's affidavit, we do not believe there are sufficient "indicia of the trustworthiness" of his recantation. Id. The recantation comes several years after the murder and after Martin has testified under oath. At trial, Martin testified that he met Vance and Dominic Johnson at the Radisson bar in downtown St. Paul around 7 or 8 p.m. on December 22, 2002. According to Martin's testimony, while neither Vance nor Johnson mentioned a robbery or going to South St. Paul, "[Vance and Johnson] made a phone call to go to South St. Paul * * * on [their] way to leave." Vance and Johnson told Martin that they were calling "Yvonne and Nicole," whom Johnson called the "South St. Paul girls." The three men left the bar around 8:30 or 9 p.m. Before getting on his bus, Martin saw Yvonne and Nicole's car, a dark blue four-door Corsica, come around the block. In his affidavit, Martin states that, contrary to his testimony, the day he was with Vance and Johnson at the Radisson bar was not a Sunday, which means it could not have been the night of the shooting. According to Martin, he now remembers—after talking to Vance—that he and Vance discussed going to a liquor store, so they could not have met at the Radisson bar on December 22, 2002, which was a Sunday. There is no explanation, however, as to why his memory is better now than it was at the time of trial. Further, at least one other witness at trial testified that Vance was present at the Radisson bar on Sunday evening, December 22, 2002. No part of that witness's testimony has...