De-Aunteze Lavion Bobo,

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STATE OF MINNESOTA

IN SUPREME COURT

A21-0440

Hennepin County Gildea, C.J.

De-Aunteze Lavion Bobo,

Appellant,

vs. Filed: February 9, 2022
Office of Appellate Courts
State of Minnesota,

Respondent.

________________________

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heights, Minnesota , for
appellant.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

________________________

S Y L L A B U S
1. The district court did not abuse its discretion when it refused to admit hearsay
statements by a witness under Minn. R. Evid. 804(b)(3).
2. Because the admissible evidence presented by appellant did not qualify under
the newly discovered evidence exception in Minn. Stat. § 590.01, subd. 4(b)(2) (2020), the
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district court did not abuse its discretion when it denied appellant’s postconviction request
for a new trial.
Affirmed.
Considered and decided by the court without oral argument.
O P I N I O N
GILDEA, Chief Justice.
In 2007, De-Aunteze Bobo was convicted of murder and sentenced to life in prison.
In this appeal, Bobo challenges the district court’s denial of his fifth petition for
postconviction relief. The district court refused to admit hearsay evidence under Minn. R.
Evid. 804(b)(3) and concluded that Bobo failed to satisfy the newly discovered evidence
exception in Minn. Stat. § 590.01, subd. 4(b)(2) (2020). Because we conclude that the
district court did not abuse its discretion, we affirm.
FACTS
Our opinions in Bobo’s previous appeals set fort h the facts underlying his murder
conviction. See State v. Bobo (Bobo I ), 770 N.W.2d 129 (Minn. 2009); Bobo v. State
(Bobo II), 820 N.W.2d 511 (Minn. 2012); Bobo v. State (Bobo III), 860 N.W.2d 681 (Minn.
2015). In this case, we focus on the facts and procedure relevant to the newly discovered
evidence claim raised in Bobo’s fifth petition for postconviction relief.
At approximately 2:30 a.m. on June 2, 2006, J ames Roberts and R obert Nichols
were sitting in a car outside of Stand Up Frank’s, a bar in Northeast Minneapolis, when a
large dark-colored SUV drove past and made a U-turn. When the SUV came by a second
time, someone fired gunshots at the car, killing R oberts and wounding N ichols. Police
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were initially unable to identify any suspects. But police later recovered the gun used in
the drive -by shooting while executing an arrest warrant for Bobo’s cousin , Leonard
Slaughter, on unrelated charges. Police then began investigating Bobo as a known
associate of Slaughter.
About 3 months after the shooting, Samuel James came forward with information.
At the time, James—a relative and friend of Bobo’s —was being held in custody awaiting
sentencing for aggravated robbery. James told police that Bobo talked to him about the
shooting while they were both being held in the Hennepin County jail. According to James,
Bobo and Slaughter were at Slaughter’s mother’s house before the shooting. After leaving
the house, Bobo drove his two-door, black Chevy Blazer with Slaughter as the passenger.
Bobo allegedly told James that he instructed Slaughter to get a gun out—the gun recovered
by police—and when they pulled up alongside another vehicle, Bobo told Slaughter to
shoot both occupants. Afte r the shooting , Bobo and Slaughter went back to Slaughter’s
mother’s house and then got a ride to south Minneapolis. James explained that Slaughter
had shown James the murder weapon several months before the shooting occurred—along
with several other handguns —while Bobo, Slaughter, and another person were cooking
crack at Slaughter’s mother’s house.
As part of an agreement to avoid further jail time for his robbery conviction, James
testified before a grand jury and implicated Bobo as the driver involved in the shooting .
James explained that his information about the shooting came from multiple conversations
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with Bobo. James’s grand jury testimony largely mirrored his earlier statements to police.1
When James was asked whether he is afraid or “fearful” of Bobo and Slaughter , he
responded, “Yeah, in a way, yes.”
James signed two affidavits denying that he had provided any information to police
about Bobo’s criminal activity , which he gave to Bobo’s mother . James signed the first
affidavit after giving his statements to police and the second after testifying before the
grand jury.
Bobo was subsequently charged with several crimes related to the shooting. During
the jury trial, the State presented evidence that Bobo had access to multiple SUVs similar
to the one described by eyewitnesses as being involved in the shooting and that cell phone
tower records placed Bobo and Slaughter around Stand Up Frank’s at the time of the
shooting. When James was called to testify at the trial, several alleged gang members
entered the courtroom. James refused to testify , den ied knowing anything about the
shooting, and repeatedly shouted that Bobo was innocent. The jury was excused from the
courtroom and the district court heard from the State about several alleged attempts to
intimidate James not to testify. Later, w hen James returned to the witness stand, defense
counsel cross-examined James and elicited testimony that his statements to the grand jury

1 There were minor discrepancies between James’s statements to police and his grand
jury testimony. James testified before the grand jury that Bobo was driving a two -door,
black GMC Jimmy rather than a two -door, black Chevy Blazer. At the grand jury, James
elaborated that the gun used in the shooting was hidden in a “stash box ,” which he
described as a compartment under the center console where Bobo hid guns and drugs.
James also testified at the grand jury that the reason Bobo instructed Slaughter to shoot the
passenger was to eliminate any possible witnesses.
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were false and that police had offered him a deal on his aggravated robbery conviction if
he framed Bobo. Following the cross-examination, the district court permitted the State to
introduce James’s grand jury testimony as evidence of a prior inconsistent statement under
Minn. R. Evid. 801(d)(1)(A).
Bobo did not testify during the jury trial but did present an alibi defense through the
testimony of Slaughter’s mother, who told the jury that Bobo had left her house shortly
before the shooting , along with Bobo’s child and the child’s mother . The defense also
presented testimony that another person had been a suspect in the murder but was
ultimately ruled out by police because the suspect did not associate with Slaughter.
The jury found Bobo guilty of first -degree murder while committing a drive -by
shooting, second-degree intentional murder, and second-degree murder while committing
a drive-by shooting in connection with the death of R oberts. The jury also found Bob o
guilty of drive-by shooting in connection with the wounding of Nichols. The district court
convicted Bobo of first -degree murder and sentenced him to life in prison. Bobo filed a
timely direct appeal which was stayed to allow him to pursue postconviction claims of
ineffective assistance of counsel and juror misconduct. The district court denied Bobo’s
first petition for postconviction relief. We affirmed Bobo’s conviction and the district
court’s denial of his first petition for postconviction relief. Bobo I, 770 N.W.2d at 133.
In 2010, Bobo filed second and third petition s for postconviction relief. In the
second petition, Bobo presented an affidavit from James that reiterated testimony from the
jury trial but did not implicate James in the shooting. Bobo’s third petition for
postconviction relief asserted a newly discovered evidence claim that James had confessed
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to Demetrius Tyson and Jesse Clark that he was the driver. The district court summarily
denied Bobo’s second and third petitions for postconviction relief. We affirmed the
dismissal of Bobo’s second petition but reversed and remanded for an evidentiary hearing
on the newly discovered evidence claims in his third petition. Bobo II, 820 N.W.2d at 520.
Before we decided Bobo II, Bobo filed a fourth petition asserting another newly
discovered evidence claim that an eyewitness had identified James as the driver, not Bobo.
The district court held an evidentiary hearing on Bobo’s remanded third petition and the
claim in his fourth petition. Bobo presented evidence from Tyson , the new eyewitness
Jermaine Mack-Lynch, and James. Tyson testified that , while they were both in prison,
James confessed to being in the car during the shooting. Mack -Lynch testified that he
witnessed the shooting, and that James was in the driver’s seat. Mack -Lynch explained
that it was only later, when he and James were in jail together, that he recognized James as
the driver of the vehicle involved in the shooting.
James’s testimony during the postconviction evidentiary heari ng was mostly the
same as his testimony during the jury trial —including that Bobo is innocent—but did
contain some new information. James told the district court that he was initially implicated
in the shooting and was under the influence of alcohol or high on ecstasy when he provided
his statements to police. James claimed that he did not testify during the grand jury
proceeding but was forced to attend. James explained that he is currently incarcerated for
two murders and his earliest release date is 2047. On the second day of the postconviction
evidentiary hearing, James refused to testify further and invoked his Fifth Amendment right
against self-incrimination.
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The district court found Tyson ’s and Mack -Lynch’s testimony not credible and
denied Bobo’s third and fourth petitions for postconviction relief.2 Bobo appealed, and we
affirmed. Bobo III, 860 N.W.2d at 683.
In 2020, Bobo filed his fifth postconviction petition for relief alleging another newly
discovered evidence claim, which included an affidavit signed in 2018 by James asserting
that he was the driver of the vehicle involved in the shooting, not Bobo . The petition also
included an affidavit from the mother of Bobo’s child claiming that she was with Bobo on
the night of the shooting.
The district court granted Bobo’s request for an evidentiary hearing . The district
court allowed testimony from Bobo and James during the evidentiary hearing , but James
exercised his Fifth Amendment right and refused to respond to most of the questions.
James did testify for the first time, however, that he was with Bobo at Slaughter’s mother’s
house after 10 p.m. the night of the shooting, and when he left, Bobo was still at the house
with his child and the child’s mother .3 The district court excluded the affidavit and
testimony of the m other of Bobo’s child because this evidence did not qualify as newly

2 The district court found that Tyson, a self-proclaimed gang member and three-time
felon, struggled to testify consistently with his affidavit and that James was not even in the
same prison as Tyson when their alleged conversations occurred. The district court found
that Mack -Lynch—incarcerated for second -degree murder at the time, a member of a
different gang, and who had previously provided false testimony in another murder case in
exchange for payment —provided vague and contradictory testimony, was provided a
narrative by Bobo before he prepared his affidavit, and “admitted to serially lying.”

3 James testified that Slaughter’s mother is his aunt.

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discovered evidence. 4 The district court also excluded recordings of jail calls between
James and a reporter, as well as James’s 2018 affidavit, because they failed to meet the
standards for admissibility under Minn. R. Evid. 804(b)(3). Finally, the district court
excluded the testimony of the private investigator who obtained James’s signature on the
2018 affidavit to the extent that it was being offered solely to lay foundation for the
affidavit.
After the evidentiary he aring, t he district court denied Bobo’s fifth petition for
postconviction relief. Bobo now appeals.
ANALYSIS
On appeal, Bobo argues that the district court improperly excluded James’s affidavit
and the recordings of jail calls as not admissible under Minn. R. Evid. 80 4(b)(3). Bobo
also contends that the newly discovered evidence is sufficient to justify a new trial. We
review a district court’s decision to admit or exclude evidence and the decision to deny a
postconviction petitioner a new trial for an abuse of discr etion. Ferguson v. State ,
826 N.W.2d 808, 812, 815 (Minn. 2013). But “[w]e review legal issues de novo and factual
findings for clear error.” Campbell v. State, 916 N.W.2d 502, 506 (Minn. 2018).
I.
We turn first to Bobo’s argument that the district court abused its discretion when it
excluded James’s 2018 affidavit and the recordings of jail calls as not admissible under
Minn. R. Evid. 804(b)(3).

4 Bobo does not challenge this decision on appeal.
9
The parties do not dispute that James’s affidavit and the recorded jail calls are
hearsay, see Minn. R. Evid. 801(c) (defining hearsay as “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted”), and thus inadmissible unless an exception to hearsay applies,
see Minn. R. Evid. 802 (“Hearsay is not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court or by the Legislature.”). But Bobo argues that
the district court erred by refusing to admit the affidavit under Rule 804(b)(3) as an
exception to the hearsay rule.
Rule 804(b)(3) states that “[a] statement which . . . at the time of its making . . . so
far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in
the declarant’s position would not have made the statement unless believing it to be true”
is “not excluded by the hearsay rule if the declarant is unavailable as a witness.” Minn. R.
Evid. 804(b)(3). But “[a] statement tending to expose the declarant to criminal liability
and offered in a criminal case is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.” Id. (emphasis added).
Here, because James exercised his Fifth Amendment right against self-incrimination
to avoid testifying, he is “unavailable” for purposes of Rule 804(b). See State v. Ford ,
539 N.W.2d 214, 227 (Minn. 1995) (“Unavailability can be established by a w itness
deciding to invoke his/her Fifth Amendment right against self incrimination.”). Further,
James’s affidavit and the recordings of the jail calls subject him to criminal liability
because he confesses to being the driver in the shooting, for which Bobo was sentenced to
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life in prison. Thus, the remaining question is whether “corroborating circumstances
clearly indicate the trustworthiness of” James’s statements. Minn. R. Evid. 804(b)(3).
We have identified six factors (the Ferguson factors) that “serve as guidance ” for
“determining whether the ‘corroborating circumstances’ requirement of Rule 804(b)(3) has
been satisfied.” See Ferguson, 826 N.W.2d at 813–14.5 Ultimately, “[t]he trustworthiness
of a hearsay statement under Rule 804(b)(3) depends on the totality of the circumstances.”
Id. at 814.
Here, the district court’s order provided extensive analysis on why James’s affidavit
and the recordings of the jail calls are not sufficiently trustworthy to be admissible under
Rule 804(b)(3). The dis trict court emphasized that James’s affidavit and jail call s are
inconsistent with his prior testimony and that his “overall credibility and character” weigh
against the admission of the evidence. See Ferguson, 826 N.W.2d at 813 (identifying these
factors as relevant in the Rule 804(b)(3) analysis).
The district court did not abuse its discretion in determining, after an evidentiary
hearing, that James’ s testimony was not sufficiently trustworthy to be admissible under

5 The six Ferguson factors are:

(1) whether other evidence corroborates the facts in the hearsay statement;
(2) the extent to which the hearsay s tatement is consistent with the
declarant’s prior testimony and other statements; (3) the relationship
between the declarant and other witnesses and parties, including the
defendant; (4) whether the declarant has reason to fabricate the statement;
(5) the overall credibility and character of the declarant; and (6) the timing
of the statement.

Ferguson, 826 N.W.2d at 813.
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Rule 804(b)(3). James has g iven multiple statements in Bobo’s case. But p rior to th is
postconviction proceeding, James had never testified that he was the driver during the
shooting or was with Bobo prior to the murder. Instead, James testified to the grand jury
and provided statements to law enforcement that Bobo was the driver during the shooting.
Moreover, James has repeatedly given different versions of what he claims the facts to be.
The district court, which has heard all these different versions from James, was well within
its discretion in concluding that James was simply not a credible witness.
Bobo’s numerous arguments to the contrary are unavailing. Bobo’s main argument
suggests that James’s affidavit is inherently reliable because the affidavit is a written,
signed, and notarized sworn document. We disagree that the form of the affidavit makes
it inherently reliable. In fact, w e have consistently refused to admit such affidavit s under
Rule 804(b)(3). See, e.g., Campbell, 916 N.W.2d at 507 (noting that while “the affidavit
is notarized, it contains multiple layers of hearsay”); Jackson v. State , 883 N.W.2d 272,
275–78 (Minn. 2016) (refusing to admit a witness’s written statement under Rule 804(b)(3)
after he asserted his Fifth Amendment right against self -incrimination); Ferguson,
826 N.W.2d at 812 –13 (same); State v. Richardson , 393 N.W.2d 657, 665 –67 (Minn.
1986) (same). Further, the Ferguson factors focus on the declarant’s credibility, potential
biases, and whether other facts support the hearsay statement , and not just on the form of
the hearsay statement . See Ferguson , 826 N.W.2d at 813. Finally, James’s own
contradictory actions demonstrate why we do not consider his notarized affidavits to be
inherently reliable. For example, a fter providing statements to police about Bobo’s
involvement in the shooting, James signed an affidavit stating that he never spoke to police
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about Bobo. Later, after testifying before the grand jury about Bobo’s involvement in the
shooting, James signed another affidavit, stating that he never provided the police with
information about Bobo.
Bobo suggests, however, that it was improper for the district court to focus on
James’s credibility. This argument ignores that the fifth Ferguson factor explicitly
instructs the court to examine “the overall credibility and character of the declarant .” Id.
While Bobo cites federal case law to support his position , those cases do not support
Bobo’s argument. Rather, the cases instruct courts to consider the declarant’s
trustworthiness, just as the district court did here . See, e.g., United States v. Atkins ,
558 F.2d 133, 135 (3d Cir. 1977) (“Rule 804(b)(3) directs the court to the trustworthiness
of the declarant . . . .”).
Reversing course, Bobo argues that James’s “overall credibility and character”
supports the admissibility of his hearsay statements. Because James previously implicated
someone else in a different drive-by shooting before admitting to that crime, Bobo suggests
that James’s decision to provide the truth in the end bolsters James’s overall credibility and
character. The fact that James presented conflicting testimony in another case does not
bolster James’s overall credibility in this case such that we can conclude that the district
court abused its discretion.
Moreover, Bobo is mistaken in contending that Rule 804(b)(3) requires
corroboration that the declarant made the hearsay statement, not that the facts contained in
the statement are true. Minnesota law requires corroboration of the contents of a hearsay
statement. See Ferguson , 826 N.W.2d at 813 (describing on e factor as “ whether other
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evidence corroborates the facts in the hearsay statement” (emphasis added) ). Therefore,
the fact that it is James’s own voice in the recordings of the jail calls and the private
investigator could have testified that it was Jame s who signed the affidavit is simply not
relevant to the Rule 804(b)(3) analysis.
Finally, Bobo contends that because the State’s case against him “was not built on
any physical evidence or eyewitnesses,” less corroboration of James’s hearsay statements
is required to admit them. We rejected this very argument in Ferguson: “even if we agreed
with [the petitioner] that the evidence supporting his convictions was weak, that would not
preclude [the declarant] from fabricating a recantation.” Id. at 815. Thus, even if the
evidence at trial that contradicts James’s affidavit is weak, Bobo is not excused from
carrying his burden to show that the hearsay statement is sufficiently trustworthy . See id.
Here, the corroborating evidence that exists is not sufficient to carry that burden.
Ultimately, we conclude that the district court did not abuse its discretion when it
determined that James’s affidavit and recordings of the jail calls were not admissible under
Rule 804(b)(3).6

6 Bobo also raised a due process argument, claiming that he has a constitutional right
to present James’s confession to a jury because h e “only is required to present evidence
having an inherent tendency of linking the alternative perpetrator to the offense.” But, as
Bobo himself concedes , “[w]hen seeking to admit evidence related to a third -party
perpetrator, the defendant must comply with procedural and evidentiary rules.” Therefore,
Bobo is not entitled to a new trial because James’s affidavit and the recorded jail calls are
inadmissible hearsay.

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II.
Having concluded that the district court properly excluded the recordings of the jail
calls and James’s affidavit as inadmissible hearsay, we now consider whether the district
court abused its discretion when it denied Bobo’s request for a new trial based on the
evidence that was admitted . A district “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.” Riley
v. State, 792 N.W.2d 831, 833 (Minn. 2011).7
Minnesota Statutes § 590.01, subd. 4 (2020) , requires that petitions for
postconviction relief be filed within 2 years of the later of conviction, sentencing, or the
disposition of a petitioner’s direct appeal. More than 10 years have passed since the final
disposition of Bobo’s direct appeal. See Bobo I, 770 N.W.2d 129 (Minn. 2009). But the
newly discovered evidence exception applies if the defendant presents evidence that (1) is
“newly discovered,” (2) “could not have been ascertained by the exercise of due diligence
by the petitioner or petitio ner’s attorney within the two -year time period for filing a
postconviction petition,” (3) “is not cumulative to evidence presented at trial,” (4) “is not
for impeachment purposes,” and (5) “establishes by a clear and convincing standard that
the petitioner is innocent of the offense or offenses for which the petitioner was convicted.”
Id., subd. 4(b)(2).

7 The district court concluded that Bobo was not entitled to a new trial under the
newly discovered evidence standard from Rainer v. State , 566 N.W.2d 692, 695 (Minn.
1997). The court should have applied the test from Minn. Stat. § 590.01, subd. 4(b)(2).
See Onyelobi v. State , 966 N.W.2d 235, 237 n.3 (Minn. 2021). But t he error here is
harmless because even under the stricter statutory standard, as we explain, Bobo is not
entitled to relief. See Roby v. State, 808 N.W.2d 20, 27 n.6 (Minn. 2011).
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In this case, the district court determined that the only admissible and potentially
“newly discovered” evidence is James’s testimony during the postconvi ction evidentiary
hearing that he was at Slaughter’s mother’s house with Bobo sometime after 10 p.m. on
the night of the shooting, and Bobo was still at the house when James left. 8 But this
evidence necessarily fails the newly discovered evidence standard under the statute because
testimony “cannot be unknown when the petitioner was admittedly present at the time of
the events the witness purports to describe. ” Onyelobi v. State , 966 N.W.2d 235, 238
(Minn. 2021). Here, according to James, Bobo was with him at the time. Accordingly, the
testimony is not newly discovered under the statute. Because the district court correctly
concluded that James’s testimony during the postconviction evidentiary hearing was not
“newly discovered,” it was not an abuse of discretion to deny Bobo’s request for a new
trial.
CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Bobo’s fifth
petition for postconviction relief.
Affirmed.

8 The only other significant testimony from the evidentiary hearing is James ’s
reiteration that Bobo is innocent. James testified during the jury trial that Bobo is innocent.
James also testified during the evidentiary hearing on Bobo’s third and fourth
postconviction petitions that Bobo is innocent. As noted by the district court, this evidence
is not “newly discovered” and therefore does not qualify under the statutory exception.