State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0037

State of Minnesota,
Respondent,

vs.

Antonio Deandre Johnson, Jr.,
Appellant.

Filed August 5, 2019
Reversed and remanded
Worke, Judge

St. Louis County District Court
File No. 69DU-CR-17-335

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Christopher J. Pinkert, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Worke, Judge; and Peterson,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant appeals his conviction for first-degree drug sale, and, following a stay and
remand for postconviction proceedings, challenges the summary denial of his petition for
postconviction relief, arguing that he did not receive a fair trial and that the postconviction
court abused its discretion by denying his petition without a hearing. Because appellant is
entitled to an evidentiary hearing, we reverse and remand.
FACTS
On January 25, 2017, police officers obtained a search warrant for the residence of
a known drug user, J.H. , after observing another known drug user , J.S., conducting
suspected drug deals from the residence. The officers had information t hat the residence
had been used by non-local heroin dealers as a b ase for operations. Three prior search
warrants had been executed on the residence while J.H. was living there, and through those
searches officers had learned that she would allow heroin dealers to use her residence in
exchange for drugs.
When officers entered the residence, one officer observed appellant Antonio
Deandre Johnson Jr. run from a back bedroom, down a hallway t oward a bathroom .
Johnson was apprehended, and a large amount of heroin was found in the hallway along
the path Johnson took from the bedroom. He was also found in possession of over $3,000.
In the bedroom from which Johnson fled, t he officers found a scale, heroin, money, C.P.,
another known drug user, and N.R. Approximately seven other heroin users were present
in the residence during the search. J.H. was not present when the warrant was executed,

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although she had been at the residence that day during police surveillance. At least two of
the heroin users, including J.S., informed officers that they had received heroin directly
from either Johnson or C.P. Johnson, C.P., and J.S. all had prior controlled -substance
convictions.
Johnson was charged with first-degree aiding and abetting the sale of a controlled
substance. Prior to Johnson’s court trial, J.H. and J.S. signed cooperation agreements with
the state in exchange for their testimony against Johnson. J.H.’s agreement allowed her to
avoid jail time. At trial, the following exchange occurred between J.H. and the prosecutor:
Q: [J.H.], we’ve never actually met prior to today; is that
right?
A: No.
Q: You had a case that I prosecuted, but we’ve never
actually had any discussions; correct?
A: No; correct.

Johnson’s counsel did not cross-examine J.H. However, counsel did question J.S.,
and used her cooperation agreement to impeach her testimony. In August 2017, the district
court found Johnso n guilty of the charged offense and s entenced him to 105 months in
prison. Johnson filed a direct appeal.
While the case was on appeal, i n a June 2018 email exchange between Johnson’s
appellate counsel and trial counsel , trial counsel indicated that he di d not recall the
prosecutor disclosing J.H.’s cooperation agreement. Johnson then moved to stay the direct
appeal to pursue postconviction proceedings and, after this court granted the motion, filed
a postconviction petition. In the petition Johnson alleged that the prosecutor committed a

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Brady1 violation by failing to disclose J.H.’s cooperation agreement and that the prosecutor
committed misconduct by eliciting allegedly false testimony from J.H. that the two had
never had prior discussions. The prosecutor responded in an affidavit that he had orally
disclosed both cooperation agreements during plea negotiations and outlined all contact he
had with J.H. prior to questioning her during Johnson’s trial.
The postconviction court denied Johnson’s petition without an evidentiary hearing,
and the appeal was reinstated.
D E C I S I O N
A postconviction court must hold an evidentiary hearing unless the petition and the
files and records of the proceeding conclusively show that the petitioner is not entitled to
relief. Minn. Stat. § 590.04, subd. 1 (201 8). “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. ” Brown v. State , 895
N.W.2d 612, 618 ( Minn. 2017). A postconviction court “may not find a postconviction
affiant unreliable without first holding an evidentiary hearing to assess the affiant’s
credibility.” Andersen v. State , 913 N.W.2d 417, 423 ( Minn. 2018). In r eviewing 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). “[W]e review a denial of a petition

1 See Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194 , 1196-97 (1963) (holding that
prosecutor’s suppression of evidence material to the defense violates due process).

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for postconviction relief, including a denial of relief without an evidentiary hearing, for an
abuse of discretion.” State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).
Johnson asserts that the postconviction court abused its discretion by denying relief
without an evidentiary hearing because it failed to treat the allegations in his postconviction
petition as true and view them in the light most favorable to him. The postconviction court
determined that Johnson was not entitled to an evidentiary hearing because the
postconviction court concluded that, even if taken as true that the prosecutor committed a
Brady violation by failing to disclose J.H. ’s cooperation agreement and committed
misconduct by eliciting false testimony to conceal that violation, it would not have changed
the outcome of the trial. But the postconviction court’s statements do not view Johnson’s
allegations in the light most favorable to him and instead evaluate the materiality of the
alleged Brady violation and misconduct without allowing an opportunity for Johnson to
present argument to the contrary. We disagree with this treatment of Johnson’s
postconviction petition.
The standard for evidentiary hearings set out in Minn. Stat. § 590.04, subd. 1,
supports the conclusion that the postconvict ion court should have held an evidentiary
hearing because the record does not conclusively show that Johnson is not entitled to relief
under the Brady test or the standard for prosecutorial misconduct.
Brady violation
The state must disclose evidence that is material to the defense. Brady, 373 U.S. at
87, 83 S. Ct. at 1196 -97; State v. Williams , 593 N.W.2d 227, 234 (Minn. 1999). To
constitute a Brady violation, three requirements must be established:

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(1) the evidence must be favorable to th e defendant because it
would have been either exculpatory or impeaching;
(2) the evidence must have been suppressed by the prosecution,
intentionally or otherwise; and
(3) the evidence must be material—in other words, the absence
of the evidence must have caused prejudice to the defendant.

Zornes v. State, 903 N.W.2d 411, 417 (Minn. 2017) (quotation omitted). “Because a Brady
materiality analysis involves a mixed question of law and fact, [appellate courts] review a
district court’s materiality determination de novo.” Id. (quotation omitted).
Here, the first requirement for a Brady violation is met, because evidence of J.H.’s
cooperation agreement would have been impeaching to her testimony. Johnson’s trial
counsel used a similar cooperation agreement to impeach J.S.’s testimony.
The second Brady requirement is at issue because there are conflicting accounts as
to whether the cooperation agreement was disclosed. The only evidence in the record that
the state failed to disclose J.H.’s cooperation agreement is an email between Johnson’s
appellate counsel and trial counsel, but the only evidence that the agreement was in fact
disclosed is the prosecutor’s affidavit, filed in relation to Johnson’s postconviction petition.
This factual dispute is critical in determining whether Johnson is entitled to any relief.
The postconviction court does not have the discretion to find Johnson ’s allegations
unreliable and the prosecutor’s version of events reliable without first holding an
evidentiary hearing. See Andersen, 913 N.W.2d at 423. Indeed, “[a]n evidentiary hearing
on a petition is mandated whenever material facts are in dispute which have not been
resolved in the proceedings resulting in conviction and which must be resolved in order to
determine the issues raised on the merits. ” Riley v. State , 819 N.W.2d 162, 167 (Minn.

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2012) (quotation omitted). On this record, the postconviction court abused its discretion
by resolving the factual dispute without an evidentiary hearing. Absent the ability to use
J.H.’s cooperation agreement to impeach her testimony , she may have appeared to be a
more credible witness than otherwise. Her testimony was significant as it corroborated that
of J.S. And the district court found that J.H.’s testimony “was not impeached” and was
“credible in linking [Johnson] to the sale of heroin” at the residence . Consequently, the
record indicates that J.H.’s cooperation agreement was material to Johnson’s conviction.
We therefore reverse and remand for the postconviction court to conduct an evidentiary
hearing on whether the prosecutor suppressed J.H.’s cooperation agreement.
Misconduct
A prosecutor is an officer of the court , charged with the affirmative obligation to
achieve justice and fair adjudication, not merely convictions. State v. Ramey, 721 N.W.2d
294, 300 (Minn. 2006). “Generally, a prosecutor’s acts may constitute misconduct if they
have the e ffect of materially undermining the fairness of a trial. ” State v. Fields , 730
N.W.2d 777, 782 (Minn. 2007) . When, as here, the defendant fails to object to alleged
prosecutorial misconduct at trial , we review the conduct under a modified plain -error
standard. Ramey, 721 N.W.2d at 302. If the defendant shows error that is plain, then under
the “prejudice” prong, the state bears the burden of proving that there is no reasonable
likelihood that the absence of the alleged misconduct would have had a significant effect
on the verdict or outcome. Id.
Johnson alleged in his postconviction petition that the “prosecutor elicited false
testimony from [J.H.] that she had no prior relationship with t he prosecution.” The

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postconviction court denied this allegation stating, “[t]he transcript from the trial does not
support this assertion.” The postconviction court therefore did not accept Johnson’s
allegations as true or view them in the light most favorable to Johnson. This issue requires
an evidentiary hearing, because the record does not conclusively show anything regarding
the relationship between J.H. and the prosecutor. When Johnson’s claim is viewed in the
light most favorable to him, the prosecutor’s relationship with J.H. a nd subsequent trial
conduct demand further examination. Johnson alleges that the prosecutor intentionally
concealed the nature of his relationship with J.H., and, treating that allegation as true, an
evidentiary hearing is appropriate. If such a hearing elicits evidence of misconduct, then
the state bears the burden of proving such misconduct did not materially undermine the
fairness of Johnson’s trial.
Reversed and remanded.