Antonio Deandre Johnson, Jr., petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0765

Antonio Deandre Johnson, Jr., petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 8, 2021
Reversed and remanded
Gaïtas, Judge

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

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

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

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

Considered and decided by Slieter, Pres iding Judge; Gaïtas, Judge; and Rodenberg,
Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
GAÏTAS, Judge
In this appeal from an order denying postconviction relief, appellant Antonio
Deandre Johnson, Jr., argues that the postco nviction court erred in failing to find a Brady
violation. Specifically, he argues that th e postconviction court in correctly determined,
after an evidentiary hearing, that the preponderance of the ev idence did not establish that
the prosecution suppressed a witness-cooperation agreement. Because the postconviction
court made clearly erroneous findings of fa ct, and because the remaining facts establish
suppression by a preponderance of the evid ence, we reverse Johnson’s conviction and
remand for a new trial.
FACTS
In January 2017, drug task-fo rce officers executed a search warrant at the residence
of J.H., an admitted heroin user, after obser ving J.S., another heroin user, conducting
suspected drug sales from the residence. The officers had information that nonlocal heroin
dealers were using J.H.’s apartment as a base for sales, which J.H. permitted in exchange
for drugs.
When the officers entered the apartment, Johnson was one of several individuals
inside. Johnson attempted to flee by runni ng down a hallway but was apprehended, and
the officers found over $3,000 cash in his possession. They also found a large amount of
heroin in the hallway. J.S. wa s in the apartment at time of the search and, in a later
interview, told officers that she was receiving heroin from Johnson and another individual,
C.P., and was selling it. J.H. was not home at the time of the search.

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The state charged Johnson with aiding and abetting first-degree sale of a controlled
substance in violation of Minnesota Statutes sections 152.021, subdivision 1(3), and
609.05, subdivision 1 (2016). Johnson waived his right to a jury trial, and the district court
held a bench trial. Before Johnson’s tria l, J.H. and J.S. each entered cooperation
agreements with the state as pa rt of their own plea deals, ag reeing to testify against their
codefendants (including Johnson) in exchan ge for reduced charges and sentences. At
Johnson’s trial, his attorney used J.S.’s cooperation agreement to impeach her credibility
during cross-examination, and he highlighted the coopera tion agreement in his written
closing argument. In contrast, Johnson’s attorney made no reference to the state’s
cooperation agreement with J.H., and the prosecutor did not refer to it either. Indeed, the
prosecutor asked J.H. during direct examinati on whether they had “met prior to today,”
and J.H. replied that they had not. The prosec utor then clarified in the next question that
J.H. “had a case that [he] prosecuted,” but that they “never actually had any discussions.”
He did not add that the referenced case was connected to Johnson’s case and that J.H. had
agreed to testify against Johnson as part of her plea deal.
The trial court found Johnso n guilty and sentenced him to 105 months in prison.
Johnson appealed, and this court stayed th e appeal for postconviction proceedings at
Johnson’s request. Then, Johnson filed a petiti on for postconviction re lief in the district
court, claiming the prosecutor had failed to disclose J.H.’s cooperation agreement before

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trial. Johnson argued the state’s lack of disclosure amounted to a Brady violation1 and
prosecutorial misconduct. Johnson requested an evidentiary hearing to establish his claims.
The postconviction court deni ed Johnson’s request for relie f without an evidentiary
hearing.
After reinstating Johnson’s appe al, we reversed and remanded. State v. Johnson ,
No. A18-0037, 2019 WL 3543175 (Minn. App. Aug. 5, 2019). We concluded that two of
the three elements of a Brady violation were satisfied—the evidence in question, J.H.’s
cooperation agreement, was favorable to the defense and was material. Id. at *3 (citing
Zornes v. State , 903 N.W.2d 411, 417 (Minn. 2017)). But we determined that the third
Brady element—that the prosecutor suppressed the evidence—involved a factual dispute,
which required an evidentiary hearing. Id. We accordingly remanded to the postconviction
court for an evidentiary hear ing on the dispositive question of “whether the prosecutor
suppressed J.H.’s cooperation agreement.” Id.
Postconviction evidentiary hearing
On remand, the postconviction court he ld an evidentiary hearing and heard
testimony from Johnson’s trial attorney and th e trial prosecutor. Johnson’s trial attorney
testified that he served the prosecutor with a discovery dema nd for any “potentially
exculpatory” material, which included information about witnesses. He did not recall the

1 Under the United States S upreme Court’s holding in Brady v. Maryland, a prosecutor’s
suppression of material evidence violates the defendant’s constitutional due-process rights.
373 U.S. 83, 87, S. Ct. 1194, 1196-97 (1963). Courts have since referred to an alleged or
proven violation of this principle as a “Brady violation.” See, e.g., Campbell v. State, 916
N.W.2d 502, 510 (Minn. 2018).

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prosecutor disclosing a cooperation agreement with J.H., either orally or in writing. The
trial attorney testified that he maintained a case file, which included records of any material
conversations with the prosecutor, and that his file contained no reference to a cooperation
agreement involving J.H.
But Johnson’s trial attorney did reca ll the prosecutor disclosing the state’s
cooperation agreement with J. S., though he could not reme mber whether the disclosure
was made orally or in writing. He testified that it would not surprise him if it was not made
in writing. Johnson’s trial attorney stated that he believed that J.S.’s cooperation agreement
was helpful to Johnson’s defense, and he used it at trial to impeach J.S.’s credibility. He
testified that if he had been aware of th e state’s cooperation agreement with J.H., he
“definitely” would have used it during cross-examination the same way that he used J.S.’s
agreement. According to the attorney, the fact that he did not reference J.H.’s cooperation
agreement led him to conclude “[ t]hat at the time of trial . . . [he] wasn’t aware or didn’t
recall any information about a cooperation agreement with [J.H.]”
The prosecutor acknowledged that he never provided a written disclosure to
Johnson’s trial attorney regarding J.H.’s cooperation agreement. He recalled, however, a
conversation that he had with Johnson’s attorney about the plea agreemen ts in J.S.’s and
J.H.’s cases. Specifically, Johnson’s attorney had asked for a disposition similar to those
offered to J.S. and J.H. The prosecutor declined to make a similar offer, as he believed that
Johnson was “a dealer who had only come to town to profit off the heroin epidemic in [the]
community,” unlike J.S. and J.H., who were seemingly involved in drug sales “to support
their addiction.” Yet the prosecutor did not recall whether, in the course of this

6
conversation, he disclosed that J.H.’s plea agreement required her to testify against
Johnson. The prosecutor believed this conversation occurred in the spring of 2017, but he
could not recall the date more precisely. He did concede, though, that he believed the
conversation occurred before J.H. pleaded guilty in her case at the end of May.
The prosecutor also testified that he had not planned to call J.H. at Johnson’s trial,
even though he had subpoenaed her as a witness. J.H. had an active warrant for her arrest,
and nobody from his office had sp oken with her about testif ying. On the morning of
Johnson’s trial, though, law enforcement loca ted J.H., served her with the subpoena, and
brought her to the courthouse. The prosecutor did not believe that the requirement for J.H.
to testify against Johnson was a “large factor” in J.H.’s plea deal. But he conceded that
J.H. would have technically violated the agreement if she had not cooperated in Johnson’s
case.
Following the evidentiary he aring, the postconviction court again denied Johnson’s
request to reverse his convicti on and order a new tr ial, concluding th at Johnson had not
shown by a preponderance of the evidence that the pr osecutor suppressed J.H.’s
cooperation agreement.
This appeal follows.
DECISION
The Fourteenth Amendment to the Unite d States Constitution guarantees every
person the right to due process of law before a deprivation of liberty. U.S. Const. amend.
XIV, § 1. In the context of a criminal case, the due-process guarantee requires that a
criminal defendant receive a fair trial. See Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct.

7
940, 948 (1982). In Brady v. Maryland , the United States Supreme Court held that a
prosecutor’s suppression of material evidence renders a trial unfair and thereby violates the
defendant’s due-process rights. 373 U.S. at 87-88, S. Ct. at 1196-97.
Johnson claims that he was denied a fair trial when the state committed a Brady
violation by failing to disclose J.H.’s cooperation agreement. See id. To establish a Brady
violation, Johnson must prove three elements: (1) the evidence in question is favorable to
his case because it is “exculpat ory or impeaching;” (2) the state withheld the evidence,
“intentionally or otherwise;” and (3) the evid ence is material because its absence would
“have caused prejudice to the defendant.” Zornes, 903 N.W.2d at 417. Only the second
element is at issue here; we already concluded that Johnson’s claim satisfies elements one
and three. Johnson, 2019 WL 3543175, at *3.
At a postconviction evidentiary hear ing, the petitioner bears the burden of
establishing the petitioner’s claims by a preponderance of the evidence. Hummel v. State,
617 N.W.2d 561, 564 (Minn. 2000). To satisfy the preponderance of the evidence standard,
the evidence must demonstrate th at it is “more probable that th e fact exists than that the
contrary exists.” City of Lake Elmo v. Metro. Council, 685 N.W.2d 1, 4 (Minn. 2004). “If
evidence of a fact or issue is equally balan ced, then that fact or issue has not been
established by a preponderance of the evidence.” Id.
An appellate court evaluating a postconv iction court’s decision examines whether
the postconviction court “has exercised its discretion in an arbitrary or capricious manner,
based its ruling on an erroneous view of th e law, or made clearly erroneous factual
findings.” Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017) (quotation omitted). The

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appellate court reviews legal issues de novo, but its review of factual issues “is limited to
whether there is sufficient ev idence in the record to su stain the postconviction court’s
findings.” Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015) (quotation omitted). In other
words, a reviewing court will “not reverse the postconviction court’s findings unless they
are clearly erroneous.” Pearson, 891 N.W.2d at 596 (quotation omitted). When an issue
presents a mixed question of law and fact, an appellate court reviews the postconviction
court’s factual findings for clear erro r and its legal conclusions de novo. State v. Nicks,
831 N.W.2d 493, 503 (Minn. 2013).
As an initial matter, the parties disagree about the applicable standard of review.
Johnson asserts two challenges on appeal, arguing first that the postconviction court made
two erroneous factual findings; and second, th at a preponderance of the evidence shows
that the state suppressed J.H.’s cooperation agreement. As to the specific factual findings
that Johnson challenges, both parties concur that the clearly-erroneous standard of review
applies, and we agree. Pearson, 891 N.W.2d at 596. The pa rties disagree, though, as to
how this court should review the postconviction court’s determination that Johnson did not
meet his burden of showing that suppressi on occurred. Johnson characterizes this
determination as a legal conclusion wa rranting de novo review, while the state
characterizes it as a factual finding subject to clear-error review.
After examining the postconviction court’s findings of fact, conclusions of law, and
order, we agree with Johnson that his second challenge is not to a factual finding. The
postconviction court evaluated the evidence a nd made findings of fa ct, and then applied
the law to those facts to determine whether Johnson had shown, by a preponderance of the

9
evidence, that suppression occu rred within the meaning of Brady. In other words, the
postconviction court did not make a finding that the prosecutor disclosed J.H.’s cooperation
agreement. Instead, faced w ith the attorneys’ competi ng testimony and the lack of
documentation, the postconviction court weighed the evidence and ultimately decided that
Johnson had not met his burden of showing suppression.
We conclude that, in this specific case, Johnson’s challenge to the postconviction
court’s determination that he failed to meet his burden of proof involves a mixed question
of law and fact, and we accordingly apply de novo review in consid ering that issue. Cf.
Pederson v. State , 692 N.W.2d 452, 460 (Minn. 2005) (determining that the materiality
prong of the Brady-violation test, which asks whether the absence of the evidence caused
prejudice to the defendant, involves a mixed issue of law and fact that requires de novo
review).
With the applicable standards of review in mind, we turn to Johnson’s specific
allegations of error.
I. The postconviction court made clearly erroneous factual findings.

We initially consider Johnson’s challenge to the substance of the postconviction
court’s factual findings, which we review for clear error. A district court’s factual findings
are clearly erroneous when the appellate court is “left with the definite and firm conviction
that a mistake ha s been made.” State v. Evans , 756 N.W.2d 854, 870 (Minn. 2008)
(quotation omitted). If “reasonable evidence” supports the district court’s factual findings,
the appellate court will not disturb them. Id.

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Johnson first challenges one of the postc onviction court’s factual findings regarding
the substance of the prosecutor’s testimony at the evidentiary hearing. According to the
postconviction court’s order, the prosecutor testified that, during Johnson’s plea
negotiations, Johnson’s attorney “was aware of the coopera tion agreements reached with
[J.S.] and [J.H.] and was reque sting a similar agreement for [Johnson].” Johnson points
out that, contrary to this finding, the prosecutor never testified that Johnson’s attorney was
specifically aware of J.H.’s cooperation agreement (that is, the part of the plea bargain
compelling her to testify agains t Johnson). Instead, the pros ecutor simply testified that
Johnson’s attorney knew about th e favorable plea deals that J.S. and J.H. were offered.
When asked whether he specifically recalled disclosing that J.H.’s plea agreement, which
required J.H. to testify against Johnson, the prosecutor stated that he did not.
We agree with Johnson that the record does not support, and indeed contradicts, the
postconviction court’s factual finding. A lthough the prosecutor’s testimony certainly
suggests that Johnson’s attorney generally kne w about J.H.’s and J.S.’s favorable plea
deals, the prosecutor also testified that he did not recall any specific discussion about the
cooperation component of J.H.’s plea agreement requiring her to testify against Johnson.
Accordingly, the postconviction court’s finding—which purports to convey the
prosecutor’s actual testimony—is clearly erroneous.
The second finding that Johnson challenges is the postconviction court’s statement
that Johnson’s attorney “has no recollecti on of any disclosure of the cooperation
agreements made with [J.S.] and [J.H.].” Johnson argues th at this finding is clearly

11
erroneous because his trial attorney testified that he did recall the prosecutor disclosing
J.S.’s cooperation agreement.
As Johnson observes, the postconviction court’ s factual finding is inconsistent with
the record. Johnson’s attorney testified that he recalle d the prosecutor disclosing J.S.’s
cooperation agreement, and this testimony was unrebutted. The trial attorney’s use of the
cooperation agreement to impeach J.S.’s trial testimony supported his recollection. While
Johnson’s attorney could not remember any specific details about the disclosure, the record
does not support the postconviction cour t’s finding that the attorney had “ no recollection
of any disclosure of the cooperation agreem ent[] made with [J.S.].” (Emphasis added.)
Accordingly, this finding is clearly erroneous.
II. The preponderance of the evidence shows that the state suppressed the
cooperation agreement.

Johnson next argues that the postconviction court erred in its ultimate determination
that there was no suppression of J.H.’s cooperation agreement, which as noted, is a decision
we review de novo. “[I]n cr iminal cases, the state has an affirmative duty to disclose
evidence that is favorable and material to the defense.” State v. Williams, 593 N.W.2d 227,
234 (Minn. 1999). When the state fails to disclose such evidence, whether intentionally or
not, the defendant’s cons titutional right to due process is violated. Walen v. State , 777
N.W.2d 213, 216 (Minn. 2010). Although the term “suppression” suggests some ill intent
on the part of the prosecutor, the pros ecutor’s intent is immaterial. See id. Whether “a
failure to disclose is in good faith or bad faith, the pros ecution’s responsibility for failing
to disclose known, favorable evidence ri sing to a material level of importance is

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inescapable.” Kyles v. Whitely , 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68 (1995)
(citation omitted).
Here, the postconviction court conclude d that Johnson did not establish by a
preponderance of the evidence that the prosec utor failed to disclose J.H.’s cooperation
agreement. The postconvictio n court reasoned that Johnson did not satisfy his burden
because he merely offered his trial attorney’s testimony that (1) the trial attorney could not
specifically recall the disclosure and (2) had disclosure occurre d, the trial attorney would
have used the cooperation agreement at trial as he used J.S.’s agreement. This testimony,
the postconviction court reasoned, “does not es tablish that the [s]tate suppressed [J.H.’s]
cooperation agreement any more than it leaves open the po ssibility the defense did not
utilize the agreement for some other reason.”
Our independent or de novo review of the record persuades us that, contrary to the
postconviction court’s conclusion, Johnson offered sufficient, unrebutted evidence to show
suppression. The following evidence supports Johnson’s claim.
First, it is undisputed that the prosecutor did not turn over J.H.’s written cooperation
agreement to Johnson or ma ke any other written disclosu re about the cooperation
agreement. J.H.’s plea agreement with the state was indeed reduced to writing and includes
the cooperation term. As Johnson points out, rule 9.01 of the Minnesota Rules of Criminal
Procedure requires prosecutors to disclose docu ments “that relate to the case.” Minn. R.
Crim. P. 9.01, subd. 1. It appears the prosecutor violated that rule.
Next, Johnson’s trial attorney testified th at he had no recollection of the prosecutor
disclosing the cooperation agreement orally. He testified that his file for the case, where

13
he recorded material conversations, did not contain a note about the disclosure. He also
testified unequivocally that, had the coopera tion agreement been disclosed to him, he
would have used it to impeach J.H.’s credibility at trial. This testimony was corroborated
by the fact that he did use J.S.’s cooperati on agreement with the state to impeach her
credibility on cross-examination and highlighted her potential bias in closing arguments.
To counter Johnson’s claim of nondisclosur e, the prosecutor testified that, although
he did not recall specifically disclosing J.H.’s cooperation agreement, defense counsel must
have been aware of it based on a conversation the two had during plea bargaining. During
this conversation, Johnson’s attorney requested a sentence similar to the sentences that J.S.
and J.H. were offered. Importantly, however, the prosecutor could not recall whether he
mentioned during the plea-bargain discussion that J.H.’s plea agreement was contingent on
her testifying against Johnson. But even mo re importantly, the prosecutor believed that
this conversation occurred before J.H. entered her guilty pl ea. In other words, the
prosecutor did not provide any testimony sugges ting that he disclosed J.H.’s cooperation
agreement with the state after the agreement was actually entered.
Although Johnson carried the burden of pr oof at the postconviction proceeding, the
state carries the affirmative obligation of disclosing Brady material. Williams, 593 N.W.2d
at 234. And Johnson only needed to show that it was more likely than not that the state
never disclosed J.H.’s cooperation agreement. See City of Lake Elmo , 685 N.W.2d at 4.
The undisputed evidence shows that the state provided no written disclosure of J.H.’s
cooperation agreement, which it should have done under the ru les of criminal procedure.
See Minn. R. Crim. P. 9.01, subd. 1.

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Johnson also offered compe lling evidence that the ag reement was not disclosed
orally, and the state could not point to a specific instance wh ere it did orally disclose the
cooperation agreement. The state instead relied on a conversation—which the prosecutor
believed occurred before the J.H. cooperation agreement was actually entered—to raise an
inference of disclosure. At most, this conversation shows that Johnson’s attorney had some
knowledge of the state’s general favorable plea agreements with J.S. and J.H.; it does not
show that the prosecuto r satisfied his affirmative obligation under Brady to disclose the
cooperation agreement. Stated otherwise, wh at the defense attorney did or did not know
about J.H.’s and J.S.’s cases is not the dispositive question. While his knowledge is
relevant evidence of whether a disclosure occurred, the question is still whether the
prosecutor in fact made the required disclosure.
The totality of the evidence compels us to conclude that Johnson met his burden of
showing that the prosecutor ne ver disclosed the cooperation agreement involving J.H. as
required under Brady. Because this court has already held that Johnson satisfied the other
two prongs of the Brady-violation analysis, see Johnson, 2019 WL 3543175, at *3, we
accordingly reverse Johnson’s conviction and remand for a new trial.
Reversed and remanded.