A16-0648

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STATE OF MINNESOTA

IN SUPREME COURT

A15-1402
A16-0648

Hennepin County Lillehaug, J.

Jerrell Michael Brown,

Appellant,

vs. Filed: May 24, 2017
Office of Appellate Courts
State of Minnesota,

Respondent.

________________________

Jerrell Michael Brown, Stillwater, Minnesota, pro se.

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

________________________

S Y L A B U S

1. The postconviction court did not abuse its discretion when it denied appellant’s
witness-recantation claim under the Larrison standard.
2. The postconviction court did not abuse its discretion when it denied appellant’s
claim that the State had engaged in prosecutorial misconduct.
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3. The postconviction court did not abuse its discretion when it denied appellant’s
untimely filed postconviction claim that the State knowingly used false evidence.
4. The postconviction court did not abuse its discretion when it denied appellant’s
untimely filed postconviction claim that a State witness testified falsely at trial.
5. The postconviction court did not abuse its discretion when it denied appellant’s
untimely filed postconviction claims that he received ineffective assistance of trial counsel
and appellate counsel.
Affirmed.
Considered and decided by the court without oral argument.
O P I N I O N
LILLEHAUG, Justice.
On March 8, 2010, a jury found appellant Jerrell Michael Brown guilty of first-degree
murder committed for the benefit of a gang. We affirmed Brown’s conviction on direct
appeal, as well as the postconviction court’s denial of his first petition for postconviction
relief. State v. Brown, 815 N.W.2d 609 (Minn. 2012). The day before the postconviction
statute of limitations expired (December 9, 2014), he filed his second petition. Over the
next six months, he filed various addenda and attachments to his second petition. Brown
also filed a third petition on October 23, 2015, wherein he raised additional claims and
moved for discovery. By motion filed November 25, 2015, Brown also requested re-testing
of certain trial evidence. The postconviction court denied both petitions and Brown’s other
requests without an evidentiary hearing, concluding that his claims were each untimely
filed or procedurally barred, or failed on the merits. We affirm.
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FACTS
On August 29, 2008, Darius Miller was fatally shot outside a nightclub in downtown
Minneapolis. After a police investigation, the State presented evidence against Brown to a
grand jury, which indicted Brown on four counts of murder, all on an accomplice-liability
theory: (1) first-degree murder, Minn. Stat. §§ 609.05, subd. 1 (2016), 609.185(a)(1) (2016);
(2) first-degree murder committed for the benefit of a gang, Minn. Stat. §§ 609.05, subd. 1,
609.185(a)(1), 609.229, subd. 2 (2016); (3) second-degree intentional murder, Minn. Stat.
§§ 609.05, subd. 1, 609.19, subd. 1(1) (2016); and (4) second-degree intentional murder
committed for the benefit of a gang, Minn. Stat. §§ 609.05, subd. 1, 609.19, subd. 1(1),
609.229, subd. 2.
The case went to trial. The State presented evidence that a bullet casing found next
to Miller was fired from the same firearm that Brown admitted to firing in connection with
a June 2008 reckless-discharge conviction. The State also presented surveillance video from
the nightclubs surrounding the murder scene, eyewitness testimony describing the shooter
(matching Brown), testimony from two of Brown’s fellow inmates at Hennepin County Jail
that Brown had confessed to the murder, and more. In total, the State presented testimony
from twenty-five witnesses: six Minneapolis Police Department officers, eight civilian
eyewitnesses, four witnesses related to the 2008 reckless-discharge conviction, two inmates,
two forensic experts, a medical examiner, a jail records custodian, and Miller’s mother.
A jury found Brown guilty of all four counts of murder. The trial court convicted
Brown of first-degree murder committed for the benefit of a gang.
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Brown filed a direct appeal. He also filed his first petition for postconviction relief,
which was denied, appealed, and consolidated by this court with his direct appeal. We
affirmed Brown’s conviction on direct appeal, as well as the postconviction court’s denial
of his first petition for postconviction relief. Brown, 815 N.W.2d at 622. Brown then filed
a petition with the United States Supreme Court for a writ of certiorari, which was denied
on December 10, 2012.
On December 9, 2014, Brown filed his second petition for postconviction relief. In
that petition, Brown alleged that D.M.— a State witness who testified at trial that Brown
confessed to the crime while the two were in Hennepin County Jail—had recanted.
On December 26, 2014, a Minneapolis Police Sergeant visited D.M. at the Faribault
Correctional Facility to discuss the alleged recantation. D.M. explained to the sergeant that
Brown had written multiple letters threatening D.M. if he did not recant. D.M. also said
that Brown’s postconviction attorney had contacted D.M. and visited him in prison three
times, and had coerced D.M. to provide written answers to a questionnaire that would help
exonerate Brown. D.M. told the sergeant that he answered all of the questions as Brown’s
attorney instructed because D.M. was told that his answers were not legally binding. D.M.
then told the sergeant that his trial testimony was the truth and signed a notarized affidavit
to that effect.
The sergeant informed D.M. that the State had moved to vacate several plea
agreements between D.M. and the State —in cases unrelated to the events surrounding
Brown’s case—wherein D.M. had promised to provide truthful testimony at Brown’s trial.
The sergeant told D.M. that the whole incident would hopefully be moot because D.M. was
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signing the notarized affidavit stating that D.M.’s trial testimony was the truth.
Over the next several months, Brown filed several documents raising claims that
were not raised in his second petition for postconviction relief. On March 6, 2015, Brown
filed an “Addendum to Petition for Postconviction Relief ,” dated February 12, 2015. In
that addendum, Brown raised a new allegation that another State witness, A.A., provided
false eyewitness testimony. On April 10, 2015, Brown filed a second addendum, this time
raising new claims of ineffective assistance of trial and appellate counsel, and requesting
discovery of surveillance video evidence from the trial. On April 15, 2015, Brown filed
an affidavit from D.S. allegedly supporting Brown’s claim regarding A.A. On June 5,
2015, Brown filed another affidavit, this one from L.J., allegedly supporting Brown’s claim
regarding A.A.
On July 23, 2015, the postconviction court denied all relief , including Brown’s
request for an evidentiary hearing. Brown appealed to this court, but the appeal was stayed
on Brown’s motion because he planned to file a third petition for postconviction relief.
On October 23, 2015, Brown filed his third petition for postconviction relief, raising
new claims and expanding on other claims previousl y raised in the second petition and its
addenda. Specifically, Brown alleged prosecutorial misconduct regarding the State’s
dealings with D.M., false testimony by the State’s firearms expert at trial, and additional
grounds for his claims of ineffective assistance of trial and appellate counsel. On
November 25, 2015, he requested re- testing of bullets that had been found at the crime
scene. The postconviction court again denied all relief , including his request for an
evidentiary hearing.
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Brown appealed to our court. We consolidated his appeals from the postconviction
proceedings on his second and third petitions. We affirm.
ANALYSIS
We review a district court’s denial of a petition for postconviction relief and an
evidentiary hearing for an abuse of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn.
2012). “A postconviction court abuses its discretion when its decision is based on an
erroneous view of the law or is against logic and the facts in the record.” Id. (citation
omitted) (internal quotation m arks omitted). “We review a postconviction court’s legal
determinations de novo, and its factual findings for clear error.” Martin v. State, 865
N.W.2d 282, 287 (Minn. 2015) (citing Riley, 819 N.W.2d at 167).
In determining whether an evidentiary hearing is required, a postconviction court
considers the facts alleged in the petition as true and construes them in the light most
favorable to the petitioner. Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012). The petition
must allege “more than argumentative assertions without factual support.” Lynch v. State,
749 N.W.2d 318, 320 (Minn. 2008) (citations omitted) (internal quotation marks omitted).
“An ‘evidentiary hearing is not required unless the petitioner alleges such facts which, if
proved by a fair preponderance of the evidence, would entitle him or her to the requested
relief.’ ” Sutherlin v. State, 574 N.W.2d 428, 436 (Minn. 1998) (quoting Rainer v. State,
566 N.W.2d 692, 695 (Minn. 1997)); Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996) .
When the facts alleged in the petition conclusively establish that the petition is untimely
filed under the postconviction statute of limitations, Minn. Stat. § 590.01, subd. 4(a)-(c)
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(2016), there is no need to hold an evidentiary hearing. Taylor v. State, 874 N.W.2d 429,
431 (Minn. 2016).
I.
Brown argues that the district court abused its discretion when it denied his second
petition for postconviction relief without holding an evidentiary hearing. According to
Brown, he is entitled to postconviction relief because D.M. allegedly recanted his trial
testimony. D.M. testified at trial that Brown confessed to the murder while in Hennepin
County Jail awaitin g trial. The State argues that, even if the facts alleged in the second
petition were proven by a fair preponderance of the evidence at an evidentiary hearing,
they fail to satisfy the second requirement of the Larrison standard.
A petitioner is entitled to a new trial due to witness recantation of trial testimony if:
(1) the court is reasonably well-satisfied that the testimony given by a
material witness was false; (2) . . . without the testimony, the jury might have
reached a different conclusion; and (3) . . . the party seeking the new trial
was taken by surprise when the false testimony was given and was unable to
meet it or did not know of its falsity until after the trial.

Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005) (citing Opsahl v. State, 677 N.W.2d
414, 422-23 (Minn. 2004)); see also Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.
1928), overruled by United States v. Mitrione, 357 F.3d 712, 71 7-18 (7th Cir. 2004)
(modifying the Larrison standard). “The first two prongs of the Larrison standard are
compulsory.” Caldwell v. State, 853 N.W.2d 766, 772 (Minn. 2014).
Brown’s claim, even if true, fails the second prong of Larrison. The absence of
D.M.’s trial testimony does not support the notion that the jury might have reached a
different conclusion. D.M. was only one of two jailhouse witnesses to testify that Brown
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had confessed to the murder. Moreover, the State presented overwhelming evidence
establishing Brown’s guilt through forensic evidence, eyewitness testimony, and
surveillance videos. Given the cumulative nature of D.M’s testimony and the strength of
the State’s case, D.M.’s alleged recantation does not satisfy the second prong of Larrison.
Accordingly, the postconviction court did not abuse its discretion when it summarily
denied Brown’s second petition for postconviction relief on this claim.
II.
Brown next argues that the State engaged in prosecutorial misconduct when it
allegedly intimidated D.M. into withdrawing his alleged recantation. The State responds
that its motions to withdraw D.M.’s plea agreements were supported by the law and that it
was Brown who improperly intimidated D.M.
As explained above, D.M. entered into plea agreements with the State in several
unrelated cases that included the promise that he would provide truthful testimony in
Brown’s case. D.M. then testified at Brown’s trial that Brown, while incarcerated with
D.M., confessed to the murder. Brown alleged that D.M. recanted, based on answers to a
questionnaire procured by Brown’s attorney. If the answers to the questionnaire were true,
D.M. would have violated a term of his plea agreements. “It is well settled that an
unqualified promise which is part of a plea arrangement must be honored or else the guilty
plea may be withdrawn.” Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979) (citing
Olness v. State, 186 N.W.2d 706 (Minn. 1971); Santobello v. New York, 404 U.S. 257
(1971)); see State v. Williams, 418 N.W.2d 163, 168 (Minn. 1988) (“A plea agreement is
in many ways analogous to a contract whose terms will not be enforced to benefit a
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breaching party.” (citations omitted)). Accordingly, the prosecutor’s motions to vacate
D.M.’s guilty pleas and plea agreements were not misconduct.
The sergeant also met with D.M. to investigate the alleged recantation. He notified
D.M. of the motions to vacate and told D.M. that, if he did lie in Brown’s trial, the State
could not uphold the deals previously made. Those statements were not inaccurate. Thus,
because the State’s conduct in addressing D.M.’s alleged recantation did not constitute
improper intimidation , see Opsahl v. State, 710 N.W.2d 776, 783 (Minn. 2006), the
postconviction court did not abuse its discretion by denying Brown’s claim.
III.
We next consider Brown’s argument that the postconviction court abused its
discretion by denying the claim in his third petition that the State knowingly used false
evidence at trial. The State’s firearms expert, K.R., testified that a bullet casing from the
scene of Miller’s death matched a bullet casing from a firearm that Brown had possessed
in connection with a reckless-discharge conviction from June 2008. Brown alleges that the
State “produced and placed” this casing at the crime scene to frame him. He further claims
that the postconviction court abused its discretion in denying his motions for re-testing of
fired bullets found at the crime scene. Specifically, Brown requests re-testing of the bullet
recovered from Miller’s head, along with another fired bullet and several bullet fragments
recovered from the crime scene.
K.R. tested four discharged bullet casings that were recovered from the scene of
Miller’s death. She determined that three were nickel and one was brass, and that the nickel
casings had been fired by a different firearm than the brass casing. K.R. compared all four
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casings to a casing from the firearm at issue in Brown’s 2008 reckless-discharge
conviction. She concluded that the brass casing was fired from the same firearm that led
to his 2008 reckless-discharge conviction.
K.R. also examined the two fired bullets and bullet fragments. She concluded that
the two bullets were fired from different firearms. She also concluded that the bullet
fragments could not be matched to the bullet recovered from Miller’s head. K.R.’s
examination of the fired bullets, the bullet fragments, and the bullet casings was peer-
reviewed and confirmed by another firearms expert.
Brown alleges that the State, during its investigation of Miller’s death, replaced a
nickel casing with the brass casing to frame Brown. He developed this theory after
watching an episode of the television show “The First 48,” which covered law
enforcement’s investigation of Miller’s death. Brown asserts that the casing depicted o n
the show was silver in color, i.e., nickel rather than brass. Further, Brown links the other
fired bullet and bullet fragments to the nickel casings, in contradistinction to the brass
casing and the bullet from Miller’s head. He argues that re-testing the bullets and bullet
fragments may reveal that the bullet from Miller’s head is consistent with the other bullet
and the bullet fragments.
The State responds that Brown’s claim was untimely filed under the postconviction
statute of limitations and fails on the merits. The State notes that colored photographs of
the bullet casings were entered into evidence at trial. The State also notes that Brown has
offered nothing more than unsubstantiated allegations and has not explained why re-testing
the bullets and bullet fragments would provide any new or different information.
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A petition for postconviction relief must be filed no more than two years after “an
appellate court’s disposition of petitioner’s direct appeal.” Minn. Stat. § 590.01, subd.
4(a)(2). A court may consider such a petition, notwithstanding the statute of limitations, if
the petitioner alleges “newly discovered evidence . . . that could not have been ascertained
by the exercise of due diligence by the petitioner or petitioner’s attorney within the two -
year time period . . . and establishes by a clear and convincing standard that the petitioner
is innocent . . . .” Id., subd. 4(b)(2).
A court may also consider a petition for postconviction relief, notwithstanding the
statute of limitations, if “the petitioner establishes to the satisfaction of the court that the
petition is not frivolous and is in the interests of justice.” Id., subd. 4(b)(5). Under the
interests-of-justice exception, the petitioner must identify “an injustice that delayed the
filing of the petition.” Hooper v. State, 888 N.W.2d 138, 142 (Minn. 2016). In Hooper,
we held that the petitioner’s argument did not “establish a valid interests-of -justice claim
. . . because it relate[d] to the merits of [the] petition rather than the reason for the delay.”
Id. By contrast, we held in Rickert that a petitioner’s otherwise untimely claim satisfied
the interests-of -justice exception where the untimeliness was caused by a third party’s
dilatory conduct. See Rickert v. State, 795 N.W.2d 236, 238, 242 (Minn. 2011).
A claim based on the newly -discovered-evidence or interests-of -justice exception
must be filed within two years after the claim arises. Minn. Stat. § 590.01, subd. 4(c). A
claim arises when the petitioner knew, or should have known, of the claim giving rise to
the exception. Sanchez v. State, 816 N.W.2d 550, 560 (Minn. 2012).
Brown’s claim was untimely filed under Minn. Stat. § 590.01, subd. 4(a)(2). Brown
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was presented with color photographs of the shell casings at the time of trial; the silver
coloration of the casing is apparent in the photograph, meaning he had sufficient
information then to raise the claim. The United States Supreme Court denied his petition
for a writ of certiorari on December 10, 2012. The statute of limitations began to run on
that date and expired on December 10, 2014. Because Brown did not raise this claim until
his third petition, which was filed on October 23, 2015, his claim is untimely . Therefore,
for our court to consider his claim, Brown must meet the newly -discovered-evidence or
interests-of-justice exceptions.
Brown’s claim fails to meet the newly -discovered-evidence exception. The State
produced color photographs of the casings at trial and, by our rules, the casings themselves
were available for inspection by Brown and his counsel. Further, Brown fails to explain
why re -testing the bullets and bullet fragments would provide any new or different
information.
For similar reasons, Brown’s claim also fails to meet the interests-of -justice
exception. Nothing prevented Brown from raising the issue on direct appeal. Brown failed
to allege facts which would establish an exception to the postconviction statute of
limitations, even if proven by a preponderance of the evidence. Accordingly, we conclude
that the postconviction court did not err when it summarily denied this untimely claim.
We also affirm the postconviction court’s denial of Brown’s motion for re-testing
as facially insufficient. Brown bases his motion on testimony by K.R. regarding the quality
of the testing methods available at the time of trial. He argues that the technology for bullet
testing may have improved since that time, apparently in reference to Minn. Stat. § 590.01,
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subd. 1a. That subdivision, however, only authorizes postconviction testing for
fingerprints and forensic DNA. Id. Even assuming that this subdivision included testing
of bullets and bullet fragments, Brown’s claim fails because he has not alleged the actual
development of new technology that “was not available at the time of the trial” and that
“has the scientific potential to produce new, noncumulative evidence materially relevant
to the defendant’s assertion of actual innocence.” Minn. Stat. § 590.01, subd. 1a(a)(2),
(c)(2). Brown merely speculates that the technology must have improved with the passage
of time. The statute requires more.
IV.
Brown next argues that he is entitled to postconviction relief because another State
witness, A.A., testified falsely to seeing a person matching Brown’s description shoot
Miller. Brown also claims that the postconviction court abused its discretion in denying
his motion for discovery of surveillance-video evidence that would allegedly show that
A.A. was not present at the time of the shooting.
To support his claim, Brown submitted affidavits from D.S. and L.J. as addenda to
his second petition for postconviction relief. Those affidavits stated that A.A. was not
present at the time of the shooting. The State responds that Brown’s claim was untimely
filed, procedurally barred, and fails on the merits.
Brown’s claim regarding A.A. was not filed within the 2-year postconviction statute
of limitations. Brown made the discovery request on April 10, 2015, as an addendum to
his second petition, and on October 23, 2015, in his third petition. He filed the affidavits
from D.S. and L.J. on April 15 and June 5, 2015, also as addenda to his second petition.
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But the second petition focused on the entirely unrelated issue of D.M.’s alleged
recantation. Because the discovery request and affidavits address an unrelated issue, they
were not timely filed.1 Thus, they must meet the newly-discovered-evidence or interests-
of-justice exception. They meet neither.
The information in the affidavits is not newly discovered evidence; it could have
been ascertained with due diligence before the 2-year postconviction statute of limitations
expired. Brown knew at the time of trial whether he was at the scene of the crime, and thus
whether A.A. could have seen him there. Further, Brown was with D.S. on the night of the
shooting, and thus knew that D.S. could say whether he saw A.A. Similarly, A.A. testified
at trial to being with L.J. on the night of the shooting, so Brown knew that L.J. could say
whether A.A. was present.
Moreover, the affidavits do not establish Brown’s innocence. D.S.’s affidavit says
only that he does not recall seeing A.A. that night; whether one witness saw another witness
under the circumstances of this case does not establish Brown’s innocence. L.J.’s affidavit
is more strongly worded, saying that A.A. left “before everything had happened,” but that
still does not prove innocence. Neither of these affidavits establishes Brown’s innocence
under a clear-and-convincing-evidence standard. See Minn. Stat. § 590.01, subd. 4(b)(2).
Accordingly, Brown’s claim does not meet the newly-discovered-evidence exception.
Brown’s claim also fails under the interests- of-justice exception. There was no
interference or dilatory conduct by a third party that prevented Brown from raising this

1 We do not consider whether the discovery request or affidavit would have been
timely filed had they been related to the underlying claims in the petition.
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claim within the statute-of-limitations period. We conclude that, because Brown failed to
allege facts which, even if proven by a preponderance of the evidence would establish an
exception to the postconviction statute of limitations, the postconviction court did not err
when it summarily denied this claim.
V.
Finally, Brown asserts that he received ineffective assistance of trial and appellate
counsel. As to trial counsel, Brown argues that counsel failed to: investigate whether A.A.
was present at the crime scene; learn of the State’s allegedly false evidence regarding the
shell casings when cross-examining K.R.; and hire a firearm examiner to analyze the
bullets that were f ired at the crime scene. The State responds that Brown’s claims were
untimely filed, procedurally barred, and fail on the merits.
Each of Brown’s claims was filed outside the 2- year postconviction statute of
limitations. As already discussed, Brown knew at the time of trial whether or not he was
at the scene of the crime, and thus whether or not A.A. could have seen him there.
Similarly, Brown’s claim regarding the shell casings and the bullets was known to him at
the time of trial. Accordingly, Brown could have raised a claim for ineffective assistance
of trial counsel on these issues on direct appeal and in his first petition. However, Brown
did not raise these claims until after the statute of limitations had expired.
Further, no exception is available. For the reasons already discussed, Brown has
not presented any newly discovered evidence that could not have been ascertained with
due diligence before the statute of limitations expired. Nor has he established that his
claims are not frivolous and in the interests of justice. Because the facts alleged in the
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petition conclusively establish that the petition is untimely filed under the postconviction
statute of limitations, the postconviction court did not abuse its discretion when it denied
Brown’s request for postconviction relief without holding an evidentiary hearing.
As to appellate counsel, Brown argues that counsel failed to: challenge the
sufficiency of evidence for accomplice liability; challenge the verdict form reading guilty
or not guilty “of murder” rather than of “aiding and abetting”; file a discovery request for
color pictures of the bullet casings; raise a claim for ineffective assistance of trial counsel
regarding the cross-examination of A.A.; and challenge self-incriminating statements from
the pre-sentence investigation report prepared for sentencing on Brown’s 2008 conviction
for reckless discharge of a firearm. The State responds that Brown’s claims were untimely
filed, procedurally barred, and fail on the merits.
We have already rejected Brown’s arguments regarding accomplice liability and the
reckless-discharge conviction in his direct appeal. Brown, 815 N.W.2d at 618-21. We will
not consider arguments that simply rehash claims already raised and decided. Buckingham
v. State, 799 N.W.2d 229, 232 (Minn. 2011).
Brown’s remaining claims regarding appellate counsel were untimely filed. The
claim regarding discovery of color pictures was raised in Brown’s third petition. The claim
regarding appellate counsel’s failure to challenge trial counsel’s alleged ineffectiveness
was raised in his April 10, 2015, addendum to his second petition. Both of these claims
could have been raised during the two years after the Supreme Court denied Brown’s
petition for a writ of certiorari, but Brown failed to do so. Accordingly , these claims are
time-barred.
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Here, too, no exception is available. Brown does not allege any newly discovered
evidence that could not have been ascertained with due diligence. Similarly, responsibility
for the untimeliness of the claims rests solely with Brown. Because the facts alleged in the
petition conclusively establish that the petition is untimely filed under the postconviction
statute of limitations, the postconviction court did not abuse its discretion when it denied
Brown’s request for postconviction relief without holding an evidentiary hearing.
In sum, each of the claims Brown raised in his second and third petitions for
postconviction relief, as well as the claims raised in the addenda to the second petition, fail.
Accordingly, the postconviction court did not abuse its discretion in denying these claims
without an evidentiary hearing.
CONCLUSION
For the foregoing reasons, we affirm the decision of the postconviction court.
Affirmed.