Opsahl v. State

GILBERT, Justice (concurring in part, dissenting in part). While I concur in the majority’s discussion of this case in sections I, II, IV & V and its decision that the postconvietion court did not abuse its discretion in denying appellant’s petition for a new trial, I respectfully dissent as to the majority’s decision to remand this case for a further evidentiary hearing based on the alleged recanted testimony of five trial witnesses. Appellant chose to submit his evidence to *426 the postconviction court in affidavit form— a form of evidence that is provided for by MinmStat. § 590.04, subd. 3 (2002) — but the majority nevertheless holds that the postconviction court abused its discretion in failing to grant an evidentiary hearing. Furthermore, the majority errs in concluding that the postconviction court abused its discretion because the allegations, even if true, do not attack the overwhelming amount of inculpatory (non-recanted) evidence supporting the guilty verdict. For these reasons, I would affirm the postcon-viction court’s decision to deny a further evidentiary hearing. Minnesota Statutes § 590.04, subd. 3 (2002), provides that “[i]n the discretion of the court, it may receive evidence in the form of affidavit, deposition, or oral testimony.” Contrary to this clear language, the majority today holds that the postcon-viction court abused its discretion because it did not “evaluate] the credibility of the witnesses at an evidentiary hearing,” presumably meaning it erred in not taking oral testimony. This is an unwarranted expansion of the need for an evidentiary hearing that we recognized in Ferguson v. State, 645 N.W.2d 437, 446 (Minn.2002). In Ferguson , we held that a statement by the father of the primary witness against the defendant that the witness told him he lied at trial entitled the defendant to an eviden-tiary hearing on his claim. Id. We did so because “the state’s case against Ferguson was wholly circumstantial” and the witness’s testimony “was pivotal to Ferguson’s conviction.” Id. The state’s case against appellant, in contrast, was more than circumstantial and not dependent on the testimony of the alleged recanting witnesses. In affirming appellant’s conviction on direct appeal, we held that there was more than sufficient evidence to sustain the conviction including, but not limited to, numerous incriminating statements and admissions against penal interest made by appellant that could have only been known by someone at the crime scene. State v. Opsahl, 513 N.W.2d 249, 255 (Minn.1994). Appellant’s admissions occurred during four separate statements that he made to the police in 1987, 1988, 1989, and 1990. Appellant identified the .44 caliber weapon that was used in the murder by pointing out a similar weapon at a local hardware store and provided a description of the residence after driving by it with the police. Appellant also knew details about the farm where the murder occurred. After the police confronted appellant about his false alibi with John Kannianen, appellant responded that if Kannianen had done it, then he was not involved. Appellant took the stand and had an opportunity to present his theory of the case, provide rebuttal testimony to what numerous witnesses had testified to, and to explain to the jury why he had initially lied. In appellant’s direct appeal, we applied the traditional standard of viewing the evidence presented in the light most favorable to the verdict. See id. The alleged recanted testimony in this case was not pivotal to appellant’s conviction. The postconviction court in this case made 39 pages of findings. “We review a postconviction proceeding to determine if there is sufficient evidence to sustain the postconviction court’s findings, and we will not disturb the court’s decision absent an abuse of discretion.” State v. Rhodes, 627 N.W.2d 74, 86 (Minn.2001). Furthermore, determining the credibility of witnesses is best left to the district court. The post-conviction court judge who made these findings was also the original trial judge. 1 The postconviction court pointed out that *427 the alleged recanting witnesses were all appellant’s personal friends and may have felt remorse after appellant had served over 10 years in jail. The manner and quality of the “recanted” testimony was taken into consideration by the postconviction court through sworn affidavits, as was the effect of cross-examination by defense counsel during the initial trial of these same witnesses. Contrary to what the majority holds, the postconviction court did evaluate the credibility of the witnesses. The court found their recantations to be “inherently suspect” and further found that appellant “has not shown by a fair preponderance of the evidence that material facts are in dispute.” Because this court has decided to remand this matter for a further evidentiary hearing, and the matter may well appear before us again, I do not deem it necessary or prudent to detail my views on each of the witness’s recantations. Suffice it to say, I would affirm the postconviction court’s finding that these recantations were “inherently suspect” based on the record before us. I agree with the post-conviction court, which aptly stated: In the final analysis and upon review of the affidavits of the recanting witnesses, one can speculate that we are dealing with a chorus of liars, with the only question being whether the concert was at the trial, or is it now, at the motion for a retrial. If it was at the trial, then they are perjurers all and if it is now, then they have the unique ability to have their memory sharpen with the passage of time. I also agree with the postconviction court’s findings and conclusion that whether these witnesses were lying in 1992 at the time of trial or now, the jury would not have reached a different result without the recanted testimony. The postconviction court did not harbor any doubts as to whether to conduct an evidentiary hearing. See King v. State, 649 N.W.2d 149, 156 (Minn.2002). Furthermore, although there was no physical evidence linking appellant to the murder, there was significant incul-patory evidence linking appellant to the murder, including statements against his penal interest that he made on numerous occasions. I would affirm the postconviction court’s finding based on the record before it that any error caused by the testimony of these witnesses was harmless. 2 Finally, because this court has decided to remand the case for a further evidentia-ry hearing, the postconviction court will have to consider the potential prejudice that would face the state if the postconviction court were to order a new trial. In section V, the majority appropriately discusses some of the factors that the post-conviction court should take into consideration on remand. The murder took place 17 years ago and the trial took place 11 years ago. Two material witnesses who testified at trial have since died and two others apparently cannot be located. Prejudice to the state may be a legitimate problem in this case should the postconviction court determine on remand that a new trial would otherwise be warranted. . Unfortunately, the distinguished trial judge, the Honorable L.W. Yost, died on December *427 31, 2003. His untimely death further complicates a remand because he had the opportunity to judge the credibility of the witnesses at the trial in 1992. . Two of the affidavits submitted alleging recanted testimony are affidavits of attorneys currently representing appellant on appeal. It should be a rare circumstance in which an attorney decides to malte himself or herself a material witness in a case he or she is arguing on appeal.