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This opinion will be unpublished and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
A18-0080

State of Minnesota,
Respondent,

vs.

Tyree Earl Chapman,
Appellant.

Filed April 20, 2020
Affirmed
Segal, Judge

Hennepin County District Court
File No. 27-CR-17-13449

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and Segal,
Judge.
U N P U B L I S H E D O P I N I O N
SEGAL, Judge
Appellant challenges his conviction of first-degree criminal sexual conduct and the
denial of his petition for postconviction relief, arguing that the district co urt erred by

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denying part of his pretrial motion to suppress statements made to law enforcement after
he invoked his right to counsel, that the police investigator for the case improperly testified
about a suppressed statement , and that he is entitled to p ostconviction relief based on a
witness’s recantation and newly discovered evidence. We affirm.
FACTS
This case arises out of allegations that appellant Tyree Earl Chapm an sexually
assaulted his seven-year-old daughter. Chapman had lived with the child and the child’ s
mother.1 Chapman moved out after he physically assaulted mother, but they continued a
romantic relationship. Chapman also spent time with the child.
In early May 2017, Chapman sent mother a text message and told her that he needed
to speak with her about something serious. When Chapman and mother were together, he
proceeded to tell her that he wanted to “express what happened” with the child and then
said he “didn’t know if [the child] did suck his dick.” Chapman indicated that the incident
happened a few years prior at mother’s house but that he could not remember the exact
date.
While mother was speaking with Chapman, the child was at her aunt’s house. The
child was having issues with fighting at school and was there to speak with her aunt about
her behavioral issues. The aunt also decided that it would be an appropriate time to have
a “good touch , bad touch talk” with the child. The child became upset during the
conversation and eventually told her aunt that Chapman had touched her. The aunt asked

1 The child and mother have the same initials. For clarity, we will refer to them as “the
child” and “mother” throughout this opinion.

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the child where Chapman had touched her, and the child replied her “butt” and her “coon,”
which is what the child calls her vaginal area. The child also stated that Chapman’s
“private part” had touched her butt and mouth. The a unt called child-protection services
the next morning to report the sexual abuse.
The day after Chapman talked with mother about “what happened,” mother asked
the child if there was anything that she should know that had gone o n between the child
and Chapman. The child started crying and said, “Yes, [Chapman] did this to me.” She
then stated that Chapman had shown her pornography and forced his penis into her mouth.
Mother asked the aunt to report what the child had said to the police.
Mother also took the child for a forensic interview at CornerHouse. During the
interview, the child reported that Chapman had shown her his “private” on ten occasions.
The child stated that, on one occasion, Chapman “took his private out” and “pushed it in
[her] mouth,” which made her feel like she was choking. She reported she then felt “stuff”
was “drinking in [her] neck” and had a gray and white substance in her mouth. The child
also made allegations of both vaginal and anal penetration.
Respondent State of Minnesota charged Chapman with first-degree criminal sexual
conduct. On June 1, 2017, a sergeant with the Minneapolis Police Department conducted
a recorded custodial interview of Chapman. Chapman is hearing impaired and the
interview was conducted with the assistance of two interpreters certified in American Sign
Language. The sergeant asked Chapman if he knew why he had been arrested, and
Chapman began to talk about the allegations made by the child. The sergeant then realized
that he had not read Chapman the Miranda warning and proceeded to provide Chapman

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with the warning. Chapman indicated that he would like to have a lawyer, and the sergeant
stated that he was ending the interview. The sergeant then asked several questions abo ut
Chapman’s personal and contact information and Chapman’s relationship with the child’s
mother. Chapman began speaking about his strained relationship with mother, and then
stated that one night after he and mother had sexual intercourse he fell asleep and woke up
to the child “sucking on” his “private.” The sergeant responded “that was something that
should have been on the Miranda” and Chapman replied that he “bette r shut up.” The
sergeant reiterated that anything Chapman said could be used against him, and asked again
if Chapman wanted a lawyer. After Chapman asked several questions about what charges
he may face and how long he could spend in prison , the sergeant ended the interview and
stopped the recording.
The sergeant then took Chapman to a holding area to wait until he could be brought
back to the jail . While there , Chapman spontaneously said that he wa nted to clear his
conscience, “would never force his daughter to have sex with him” and, if he was going to
jail, “it should be for selling weed and not rape.”
Chapman moved to suppress the statements he made to the sergeant. He argued that
the statements were obtained after he invoked his right to counsel and therefore should be
suppressed. Following an evidentiary hearing, the district court granted the motion in part
and denied it in part . The district court determined that Chapman invoked his right to
counsel and therefore the statements he made during the custodial interview were
inadmissible and granted the motion to suppress those statements, but determined that ,

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following the conclusion of the custodial interview, Chapman voluntarily reinitiated
conversation in the holding area and denied the motion to suppress those statements.
The case went to trial and the jury found Chapman guilty of first -degree criminal
sexual conduct . In its answers to special-verdict questions , the jury found beyond a
reasonable doubt that Chapman “engaged in fellatio w ith” the child. But the jury did not
find beyond a reasonable doubt that Chapman’s conduct involved sexual penetration on
three or more occasions (a more serious offense) or that Chapman had engaged in four
other specified sexual acts with the child. The district court entered judgment of conviction
for first-degree criminal sexual conduct and sentenced Chapman to 201 months in prison.
On January 16, 2018, Chapman filed a notice of appeal. This court stayed the appeal
to allow Chapman to pursue post conviction relief. On July 27, 2018, Chapman filed a
petition for postconviction relief. He argued that he was entitled to a new trial based on
witness recantation and newly discovered evidence. In suppor t of his petition, Chapman
submitted a letter from mother in which she recanted her trial testimony and stated that she
had recently learned that t he child was forced by her aunt to lie in retaliation for how
Chapman treated mother during their relationship. Following an evidentiary hearing at
which mot her testified, the postconviction court denied the petition . This court then
dissolved the stay and reinstated the appeal.

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D E C I S I O N
I.
District Court Denial of Motion to Suppress Statement Made in the Holding Area
When reviewing a pretrial order on a motion to suppress, we review the district
court’s factual findings for cl ear error and the legal determinations de novo. State v.
Gauster, 752 N.W.2d 496, 502 (Minn. 2008).
The United States and Minnesota Constitutions protect criminal defendants from
compelled self -incrimination. State v. Risk , 598 N.W.2d 642, 647 (Minn. 1999). To
protect this right, our caselaw establishes that, if a suspect clearly invokes his right to
counsel during a custodial interrogation, all questioning must cease until an attorney is
present or the suspect reinitiates the conversation. Id. This rule is designed, in part, to
prevent police from badgering a suspect into waiving his rights. Davis v. United States ,
512 U.S. 452, 458, 114 S. Ct. 2350, 2355 (1994). If the interrogation does not cease, any
evidence that is obtained after the invocation of the right to counsel is inadmissible. Risk,
598 N.W.2d at 647. Once it has been established that an individual invoked his right to
counsel, “courts may admit responses t o further questioning only on finding that the
accused (a) initiated further discussions with the police, and (b) knowingly and intelligently
waived the right invoked.” State v. Munson , 594 N.W.2d 128, 138 -39 (Minn. 1999)
(quotation omitted).
We review the district court’s findings of fact regarding the circumstances
surrounding a suspect’s statement for clear error, but make “an independent subjective

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determination as to whether the waiver was voluntary.” State v. Earl , 702 N.W.2d 711,
719 (Minn. 2005).
Here, it is undisputed that Chapman invoked his right to counsel. After Chapman
invoked his right to counsel, he made a statement in the interview room that on one
occasion he woke up and the child was “sucking on” his “private.” This is the statement
suppressed by t he district court. But the district court denied the motion to suppress the
statement made in the holding area because the court determined that Chapman voluntarily
reinitiated conversation with the sergeant after the formal interview ended. Chapman
argues that the district court erred in denying his motion to suppress the statement made in
the holding area. He argues he could not have voluntarily reinitiated conversation with the
sergeant because the initial interview never stopped. We disagree.
The district court made the following findings regarding the circumstances
surrounding Chapman’s statements. After Chapman invoked his right to counsel , the
sergeant asked a series of routine booking questions that do not require a Miranda warning.
See State v. Widell, 258 N.W.2d 795, 797 (Minn. 1977). During these questions, Chapman
made an incriminating statement and the sergeant reiterated the Miranda warning, asked
again if Chapman wanted an attorney, and formally ended the interview. The sergeant then
prepared to return Chapman to jail, left the interview room, and walked to the holding area.
The sergeant did not speak with Chapman or ask him any questions after the formal
interview ended. While in the holding area, Chapman made a series of spontaneous
statements. The sergeant did not respond or attempt to elicit further information. Based

8
on these circumstances, we agree with the district court that Chapman voluntarily
reinitiated conversation with the sergeant while in the holding area.
Chapman next argues that , even if the holding area statement was voluntary, the
district court erred by failing to determine whether he validly waived his right to counsel.
The state argues that the district court was not required to determine that Chapman waived
his right to counsel because he was not subject to interrogation at that time. In Edwards v.
Arizona, the Supreme Court addressed the admissi bility of statements made to law
enforcement after a suspect invoked the right to counsel. 451 U.S. 477, 482, 101 S. Ct.
1880, 1883 (1981). The Supreme Court explained that “[t]he Fifth Amendment right
identified in Miranda is the right to have counsel present at any custodial interrogation”
and “[a]bsent such interrogation, there would have been no infringement of the right that
[the suspect] invoked and there would be no occasion to determine whether there had been
a valid waiver.” Id. at 485-86, 101 S. Ct. at 1885. Accordingly, a determination as to
whether a suspect validly waives the right to counsel is only required when the suspect is
subject to interrogation.
Interrogation includes both express question s and their “functional equivalent,”
which includes actions on the part of police that are reasonably likely to elicit an
incriminating response. Earl, 702 N.W.2d at 719. The “central question” is whether “the
evidence in the record shows that the officers should have known” that their conduct “was
reasonably likely to elicit an incriminating response from the suspect or to get the suspect
to revoke his right to counsel.” Id. (quotations omitted). Here, the evidence in the record
does not suggest that the sergean t should have known that his conduct was likely to elicit

9
an incriminating response. After the sergeant ended the formal interview and escorted
Chapman to the holding area, he did not initiate conversation with Chapman or ask any
questions. He merely sto od in the holding area with Chapman, who made the statements
spontaneously. After Chapman began speaking , the sergeant told him to stop and did not
ask any follow -up questions or attempt to elicit further information. On these facts , we
conclude that Chapman was not subject to interrogation when in the holding area.
Consequently, the district court was not required to determine whether Chapman waived
his right to counsel. Because Chapman voluntarily reinitiated conversation with law
enforcement and was not subject to interrogation, the district court did not err by denying
Chapman’s motion to suppress the statements made in the holding area.
II.

Challenges to Sergeant’s Trial Testimony
Chapman argues that the sergeant violated the pretrial suppression order by
impermissibly referencing the suppressed statement. When a jury hears inadmissible
evidence, an appellate court will not reverse a verdict unless “there is a reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict.” State
v. Jaros, 932 N.W.2d 466, 472 (Minn. 2019). In the absence of constitutional error, the
burden is on the appellant to establish “a reasonable possibility that the jury wou ld have
reached a different verdict had the wrongfully admitted testimony not come in.” Id. When
the evidentiary error transforms into a constitutional error, the burden of establishing that
the error was harmless beyond a reasonable doubt shifts to the state. Id. at 472-74.

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At trial, the sergeant was asked about the comments Chapman made to him in the
holding area. He testified that Chapman “said that he wanted to talk to me, that he wanted
to clear things up, and that he admitted to, uh, [the child] s ucking on his penis.” The
admission to “[the child] sucking on his penis,” however, was not made in the holding area,
but rather was the statement suppressed by the district court that was made during the
formal interview. On cross -examination, the sergeant was asked to review his report and
conceded that the report did not state that Chapman admitted that the child sucked his penis.
He also testified that his report was an accurate record of the statement made by Chapman
in the holding area. On redirect, the prosecutor attempted to establish that the “incident”
the sergeant testified about was Chapman’s statement to mother about the child sucking on
his penis. But during this line of questioning, the sergeant stated, “[Chapman] had made a
statement prior that he had woke up to [the child] suck” when his sentence was cut short
because the district court ordered him to stop. The district court then instructed the jury to
disregard the statement, and the prosecutor stated, “Sergeant . . . I want to be very clear
here. [Chapman] had made a statement to [mother] about [the child] sucking on his penis,
correct?” and the sergeant responded yes. After this testimony and outside the presence of
the jury, defense counsel moved for a mistrial, which was denied.
We conclude that any error was harmless beyond a reasonable doubt. Chapman
argues that the error was not harmless because the jury found him guilty only of
“engag[ing] in fellatio” with the child, which was the very act referenced in the suppressed
statement. The jury found Chapman not guilty of committing the other alleged sexual acts.
But the evidence presented at trial establishes that Chapman reached out to mother, told

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her he wanted to discuss something serious, and then stated that he “didn’t know if [the
child] did suck his dick.” Chapman made this statement before the child disclosed the
information to her aunt or mother. And while the child did make allegations of other sexual
acts, her report that Chapman “pushed” his “private” into her mouth was significantly more
detailed than the other allegations and remained consistent in her descriptions of the
incident to mother, aunt, the forensic interviewer and at trial. The child’s allegations
regarding the other sexual acts were vague and inconsistent.
Moreover, the potential prejudice from the improper testimony was mitigated
through cross -examination and redirect. After the sergeant referenced the suppressed
statement, defense counsel was able to effectively cross-examine the se rgeant about the
police report. During the cross-examination, the sergeant conceded the statement was not
in the report and stated that his report was an accurate record of the statement Chapman
made in the holding area. This lessened the prejudice of the sergeant’s testimony because
the jury was unaware of the suppressed interview and could conclude that the lack of
inclusion of the statement in the report reflected that Chapman had not made the statement.
The prosecutor also emphasized and conf irmed that the sergeant was referring to the
statement Chapman made to mother, which was admissible and was corroborated by
mother at trial. Finally, the district court gave a curative instruction for the jury to disregard
the statement from the sergeant’ s testimony, and this court assumes that the jury follows
the district court’s instructions. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998). On
this record, any error was harmless beyond a reasonable doubt and Chapman is therefore
not entitled to a new trial.

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III.

Denial of Petition for Postconviction Relief
Chapman argues that the district court abused its discretion by denying his petition
for postconviction relief because he is entitled to relief based on mother’s recantation and
newly discovered evidence. We address each argument in turn.
We review the denial of a petition for postconviction relief for an abuse of
discretion. Matakis v. State , 862 N.W.2d 33, 36 (Minn. 2015). We apply a clear -error
standard of review to determine “whether there is sufficient evidence in the record to
sustain the postconviction court’s findings.” Id. (quotation omitted). The petitioner bears
the burden of establishing that he is entitled to relie f. Pippitt v. State , 737 N.W.2d 221,
226 (Minn. 2007).
A. Witness Recantation

Chapman argues that he is entitled to postconviction relief based on mother’s
recantation. If a criminal offender seeks a new trial based on a witness’s recantation of
trial testimony, a postconviction court should grant a new trial if:
(1) the court is reasonably well -satisfied that the testimony
given by a material witness is false; (2) without it 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.

Ortega v. State , 856 N.W.2d 98, 103 (Minn . 2014) (citing Larrison v. United States ,
24 F.2d 82, 87 -88 (7 th Cir. 1928)). “While the first two prongs must be met for the
petitioner to be entitled to a new trial, the third prong is a relevant factor to be considered,

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but not an absolute condition precedent for granting a new trial.” Ferguson v. State ,
779 N.W.2d 555, 559 (Minn. 2010) (quotation omitted). “The first prong . . . is met only
when the court is reasonably certain that the recantation is genuine.” Id. at 559 -60
(quotation omitted). The circumstances surrounding a recantation may be considered when
determining whether the recantation is genuine. See State v. Walker, 358 N.W.2d 660, 661
(Minn. 1984).
Here, the postconviction court determined that mother’s recantation was not
genuine. The court considered the circumstances surrounding the recantati on and found
that mother’s testimony at the evidentiary hearing was not credible. The court noted that
after mother submitted the letter , but prior to the evidentiary hearing , she told a social
worker and victim witness advocate that she only wrote the letter due to pressure from
Chapman’s family and fear for her safety. She also gave inconsistent testimony at the
hearing about whether she intended to pursue a future relationship with Chapman. Finally,
the postconviction court noted that neither the child nor the aunt recanted or provided any
evidence to corroborate mother’s recantation.
Chapman argues that the postconviction court erred by determining that mother’s
recantation was not genuine. But “our standard of review reminds us that the
postconviction court is in a unique position to assess witness credibility, and we must
therefore give the postconviction court considerable deference in this regard.” Opsahl v.
State, 710 N.W.2d 776, 782 (Minn. 2006). The record reflects that the postconviction court
properly considered the circumstances surrounding mother’s recantation, including
inconsistencies in her statements and possible motivations for fabricating the recantation.

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Because the postconviction court was in “a unique position” to evaluate mother’s testimony
and credibility, we defer to the postconviction court’s determination that mother was not
credible and as a result her recantation was not genuine. Accordingly, Chapman failed to
establish the first prong of the test, and he is therefore no t entitled to postconviction relief
based on witness recantation.
B. Newly Discovered Evidence

Chapman also argues that he is entitled to postconviction relief based on newly
discovered evidence. He argues that mother’s letter submitted in support of his petition for
postconviction relief contains newly discovered evidence that the child and her au nt
fabricated the allegations against him in order to retaliate against him for how he treated
mother during their relationship.
To obtain a new trial based on newly discovered evidence, the petitioner must
establish:
(1) the evidence was not known to t he petitioner or counsel at
the time of trial; (2) the failure to learn of the evidence before
trial was not due to a lack of diligence; (3) the evidence is
material, not merely impeaching, cumulative, or doubtful; and
(4) the evidence would probably produce either an acquittal or
a more favorable result.

Roby v. State , 808 N.W.2d 20, 26 n.5 (Minn. 2011) (citing Rainer v. State , 566 N.W.2d
692, 695 (Minn. 1997)). A petitioner bears the burden of establishing each of the four
prongs in order to be entitled to relief. Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013).
The district court determined that Chapman failed to establish the third and fourth
prongs of the test —that the evidence was material and likely to produce an acquittal or

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more favorable result. Chapman argues that the district court erred in these determinations.
But “[t]o meet the materiality requirement, the evidence submitted must be credible.” Bobo
v. State, 860 N.W.2d 681, 684 (Minn. 2015). And as discussed above, we defer to the
postconviction court’s credibility determinations. Ospahl, 710 N.W.2d at 782. Here, the
evidence that the child and aunt fabricated the allegations against Chapman is supported
only by mother’s letter and hearing testimony, which the postconviction court d etermined
was not credible. Because the evidence submitted is not credible, it is not material. Bobo,
860 N.W.2d at 684. Chapman therefore cannot establish all four prongs of the test, and is
not entitled to postconviction relief based on newly discovered evidence.
Affirmed.