Pierre Scott Glass, 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This opinion is nonprecedential except as provided by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
A21-0789

Pierre Scott Glass, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 14, 2022
Affirmed
Cochran, Judge

Ramsey County District Court
File No. 62-CR-13-9348

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

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

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant Coun ty Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
This appeal follows the district court’ s denial of appellant’s second petition for
postconviction relief. Appellant argues that the district court erred by determining that he
was not entitled to a new trial based on a witness’ s alleged recantation of trial testimony.
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Because the district court did not abuse its discretion by determining that appellant failed
to meet the requirements for a new trial based on witness recantation, we affirm.
FACTS
The state charged appellant Pierre Gl ass in December 2013 with attempted
second-degree murder and second-degree assault. The state later amended the complaint
to add additional attempted-murder and assault charges, bringing the total number of counts
to ten. The charges in the complaint stem med from allegations th at Glass fired a gun
multiple times into a crowd, striking and injuring a 15-year-old girl. The complaint further
alleged that the injured girl was not the intended target.
Jury Trial and Convictions
The case proceeded to a jury trial. Several witnesses testified about the
circumstances surrounding the shooting. On the night of November 30, 2013, a large group
of teenagers attended a house party in St. Paul. At one point, several people arrived at the
party, including Glass. One person who was already at the party identified Glass as an
“opp,” meaning a member of a different ga ng. Glass and the newcomers looked around
and then left the party almost immediately.
When the party ended around 11:30 p.m., a group of 20 to 30 people left and walked
to a bus stop. A car with four or five oc cupants pulled up alongside the group. The car
was playing loud music, and some people in the group started dancing. The song contained
the lyric “Shoot the whole crowd for one specific person.” At that point in the song, a
person stepped out of the car and said, “Ha. Ha. Ha. Y’all ready?” The person then ran
toward the group and fired multiple shots, one of which struck the victim in the abdomen.
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As the victim’s friends tried to help her, a different person ran up and said, “I’m sorry. We
didn’t mean to hit you,” and then ran away. The victim later identified Glass as the shooter.
She also identified the person who said that they did not mean to shoot her as a member of
Glass’s gang.
Other witnesses also identified Glass as the shooter. One witness testified that she
saw Glass in the passenger seat of the car that pulled up to the group. That witness said
that Glass then got out of the car and started shooting toward the group, though he appeared
to be “trying to get to one person.” The witness told the jury that she saw that Glass had a
gun before he even got out of the car and that she could see him lift the gun as he started
running.
The jury also heard testimony from L.K. -H., who was believed to be the intended
target of the shooting. L.K.-H. testified that he had known Glass for four or five years and
had been a member of Glass’s ga ng, but that he was no longer associated with that gang.
According to L.K.-H., Glass got out of the car and called L.K.-H.’s name, at which point
L.K.-H. started running away. L.K.-H. heard multiple gunshots as he ran. Importantly for
this appeal, L.K.-H. testified that he did not see whether Glass had a gun. He told the jury,
“I’m not going to sit there and stare at the ma n and let him shoot at me. So I ran when I
[saw] him hop out [of] the car.”
The jury found Glass guilty on all ten counts. The district court imposed a sentence
of 165 months’ imprisonment on one count and a concurrent sentence of 200 months’
imprisonment on another count. This court affirmed Glass’s convictions on direct appeal.
State v. Glass, No. A14-2003, 2015 WL 9263956, at *1, *5 (Minn. App. Dec. 21, 2015),
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rev. denied (Minn. Mar. 15, 2016). Glass later petitioned for postconviction relief based
on ineffective assistance of counsel, which the district court denied.
Current Postconviction Proceedings
In August 2020, Glass file d a second postconviction pe tition, which is the subject
of this appeal. The petition alleged that Gl ass had “obtained newly discovered evidence
showing his innocence.”
Glass’s postconviction petition was accompanied by an affidavit by L.K.-H. In the
affidavit, L.K.-H. offered a somewhat different version of events about the shooting than
he had testified to at trial. L.K.-H. stated that, when he left the party, he saw a car pull up
and Glass get out. He “then saw Pie rre Glass fire his gun into the air and then get back
into the car.” (Emphasis added .) L.K.-H. asserted that he “[did] not know who shot [the
victim], but [he knew] that it could not have b een Pierre Glass.” L.K.-H. explained that,
“when [he] was called to testify at trial, [he] said that [he] had seen Pierre Glass get out of
the car, but did not see him with a gun.” L.K .-H. asserted that in reality, “[he] did see
Pierre Glass with a gun, and [he] watched him fire into the air, so [L.K.-H. knew] that
[Glass] cannot be the person who shot [the victim].”
The district court held an evidentiary hearing on Glass’s postconviction petition in
January 2021. L.K.-H. testifie d at the hearing but his tes timony was not consistent with
his affidavit. When Glass’s attorney questio ned L.K.-H. about the night of the shooting,
L.K.-H. initially claimed not to remember many details. L.K.-H. then denied seeing Glass
get out of the car that pulled up immediately before the shooting. The attorney reminded
L.K.-H. that he had previously told the attorney that he did see Glass exit the car. The
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attorney eventually asked L. K.-H. to explain his version of what happened. L.K.-H.
responded:
I [saw] the car pull up to th e side of the crowd where I
was at. And I [saw] [Glass] hop[] out and he shot in the air.
But before I even heard any other shots I started running. So I
don’t know if he stopped shooting in the air. I mean I was
worried about my life. I star ted running. I don’t know who
else was shooting.

L.K.-H. acknowledged that he did not see Glass shoot the gun other than the shot he fired
into the air. He also said th at he did not know who shot th e victim. When asked how he
knew (as he claimed in his affidavit) that Gl ass could not have been the person who shot
the victim, L.K.-H. said, “Because he shot in the air. . . . If I’m shooting at somebody I’m
not going to shoot in the air and then shoot at somebody after.”
After the hearing, the district court de nied Glass’s postconviction petition. The
district court determined that Glass was not entitled to a new trial based on witness
recantation because the district court was “not satisfied that [L.K .-H.’s] recantation is
genuine,” and because it determined that L.K .-H.’s testimony at th e evidentiary hearing
would not produce a more favorabl e result for Glass. In support of its determination, the
district court noted that L.K.-H.’s testimony at the evidentiary hearing was inconsistent
with the assertions in his affidavit because at the evidentiary hearing L.K.-H. did not say
that he saw Glass get back into the car like he did in his affida vit. The district court also
found that, at the time L.K.-H. signed the affidavit, he had an active warrant for his arrest
and therefore faced potential prison time. Conversely, when he testified at the
postconviction hearing, the warrant was no longer in effect, and he no longer faced prison
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time. And, as emphasized by the district c ourt in its order, L.K.-H.’s testimony at the
postconviction hearing was “almost completely consistent with what [L.K.-H.] testified to
at trial.” Regarding L.K.-H.’s basis for be lieving that Glass could not have been the
shooter, the district court rejected his tes timony as not “useful or credible” because
L.K.-H.’s “opinion about how he would shoot a gun under these circumstances is not
relevant evidence.” Finally, the district court determined that L.K.-H.’s testimony did not
exculpate Glass “in any meaningful way” and “arguably inculpates [Glass] even further
because unlike his testimony at trial, he identifie[d] [Glass] as having a gun” at the time of
the shooting. Thus, the district court conclu ded that Glass was not entitled to a new trial
on the basis of L.K.-H.’s alleged recantation.
Glass appeals.
DECISION
Glass challenges the district court’s denial of his petition for pos tconviction relief.
We review the denial of a postconviction petition for an abuse of discretion. Miles v. State,
840 N.W.2d 195, 200 (Minn. 2013). A dist rict 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.” Bobo v. State , 860 N.W.2d 681, 684 (Minn. 2015). We review factual
determinations for clear error and legal conclusions de novo. Miles, 840 N.W.2d at 200.
A person convicted of a crime may s eek postconviction relief by filing a petition
with the district court. Minn. Stat. § 590.01, subd. 1 (2020). At an evidentiary hearing on
a postconviction petition, the petitioner bears th e burden of proof to establish the facts
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alleged in the petition “by a fair preponderance of the eviden ce.” Minn. Stat. § 590.04,
subd. 3 (2020).
When a defendant seeks a new trial based on a clai m of witness recantation,
Minnesota courts apply the three-prong Larrison test. Sutherlin v. State, 574 N.W.2d 428,
433 (Minn. 1998) (applying test for false wi tness testimony adopted by federal courts in
Larrison v. United States , 24 F.2d 82, 87-88 (7th Cir. 1928)). 1 The three prongs of the
Larrison test are: (1) the district court “is reasonably well-satisfied that the testimony given
[at trial] by a material witness was false”; (2) “without the testimony, the jury might have
reached a different conclusion”; and (3) the de fendant “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
trial.” Martin v. State, 825 N.W.2d 734, 740 (Minn. 2013 ). A defendant must establish
the first two prongs of the Larrison test, but the third prong is not required.
State v. Turnage, 729 N.W.2d 593, 597 (Minn. 2007).
Here, the district court determined that Glass’s claim failed under the first and
second prongs of the Larrison test. 2 Because the record supports the district court’s

1 While the Seventh Circ uit has since overruled Larrison, see United States v. Mitrione ,
357 F.3d 712, 718 (7 th Cir. 2004) (replacing Larrison test with four-part reasonable-
probability test), Minnesota cour ts continue to apply the Larrison test to claims of false
witness testimony. See Andersen v. State, 940 N.W.2d 172, 178 (Minn. 2020) (“We have
adopted the Larrison test for determining whether to grant a new trial based on falsified or
recanted witness testimony.”).
2 In addition to applying the Larrison test, the district court analyzed Glass’s claim under
the four-prong Rainer test for newly discovered evidence. See Rainer v. State, 566 N.W.2d
692, 695 (Minn. 1997) (recognizing that a de fendant may be entitled to a new trial based
on newly discovered evidence if he proves that (1) the evidence was not known to him at
the time of trial; (2) the evidence could not have been discovered before trial through due
diligence; (3) the new evidence “is not cumulative, impeaching, or doubtful”; and (4) the
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determination that Glass failed to meet the first prong of the Larrison test, we limit our
analysis to that prong and do not reach the second prong. See id. at 598-600 (concluding
that appellant failed to meet one of the first two prongs of the Larrison test and therefore
declining to address the other prong).
Under the first prong of the Larrison test, the district court must be “reasonably
well-satisfied that the [trial] testimony gi ven by a material witness was false.” Martin,
825 N.W.2d at 740. The district court determin ed that Glass failed to meet this prong of
the Larrison test based on its finding that L.K.-H.’s recantation of his trial testimony was
not genuine.
Glass argues that the district court abused its discretion when it determined that the
first prong was not met because the district court did not adequately consider L.K.-H.’s
affidavit in determining whether L.K.-H.’s trial testimony was false. He maintains that the
district court should not have made an “off-h and determination” to “dismiss the affidavit
of [L.K.-H.] outright, without applying the nece ssary tests to evaluate the sufficiency of
the newly presented evidence.” The record belies Glass’s argument. The record shows
that the district court did not dismiss L.K.-H.’s affidavit as an off-hand determination.

evidence likely would have resu lted in an acquittal or more favorable result). Although
Minnesota courts have sometimes framed claims of witness recantation as newly
discovered evidence, see, e.g. , Sutherlin, 574 N.W.2d at 433 (addressing “newly
discovered evidence” of witnesses’ false tes timony), the supreme court has declined to
analyze such claims under the Rainer test when the defendant relies solely on the witness
recantation and does not present fact s constituting exculp atory evidence. Turnage,
729 N.W.2d at 599-600. Because the only evidence that Glass presented in support of his
postconviction claim was L.K.-H.’s reca ntation, we need not apply the Rainer test for
newly discovered evidence and instead apply just the Larrison test.
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Instead, the district court appropriately applied the Larrison test and fully considered the
affidavit, but found L.K.-H.’s st atements in his affidavit were not credible based on their
inconsistency with his testimony at the evidentiary hearing.
The record supports the district court’ s reasoning and its ultim ate conclusion that
the affidavit and postconviction testimony did not provide grounds for finding that
L.K.-H.’s trial testimony was false. At trial, L.K.-H. testified that he saw Glass get out of
the car, Glass said L.K.-H.’s name, and L.K.-H. immediately ran down the street. L.K.-H.
testified that he did not see whether Glass ha d a gun and that he hear d the gunshots as he
was running away from the scene. L.K.-H.’s affidavit contradicted his trial testimony
because, in his affidavit, L.K.-H. stated that he saw Glass fire his gun into the air and then
get back into the car. But, as the district court observed, L.K.-H. di d not testify to that
version of events at the postconviction evidentiary hearing. Instead, L.K.-H. first testified
that he did not see anyone exit the car before he started running. L.K.-H. later testified that
he saw Glass get out of the car and shoot in the air, and that L.K.-H. then started running
before he heard the next shots. L.K.-H. refused to confirm the assertion in his affidavit that
he saw Glass get back in the car after he fired the shot into the air. The district court did
not err in finding that L.K.-H.’s affidavit was not credible.
We similarly conclude that the district c ourt did not err in fi nding that L.K.-H.’s
testimony at the postconviction evidentiary he aring was not credible toward determining
Glass’s guilt or innocence. The only basis fo r L.K.-H.’s conclusion that Glass could not
have been the person who shot the victim was that he saw Gl ass shoot the gun in the air.
L.K.-H. testified, “If I’m shooting at somebody I’m not going to shoot in the air and then
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shoot at somebody after.” Th is statement is not evidence that Glass did not shoot the
victim. At best, it is an inference that L.K.-H. made based on his observations. But L.K.-H.
admitted that he did not see whether Glass c ontinued to fire shots after L.K.-H. started
running away, and that he did not see whether a different person shot the victim. Because
L.K.-H.’s testimony at the postconviction ev identiary hearing did not substantiate his
assertion that Glass was not the shooter, the district court did not err by rejecting the
testimony as not useful or credible.
In sum, neither L.K.-H .’s affidavit nor his tes timony at the postconviction
evidentiary hearing provided a basis for the dist rict court to conclude that L.K.-H.’s trial
testimony was false. Given L.K.-H.’s unwillin gness to confirm the allegations in his
affidavit and the failure of his postconviction testimony to support his contention that Glass
was not the shooter, we discern no abuse of discretion in the district court’s rejection of
L.K.-H.’s affidavit and postconviction testimony as not credible. 3 “When a district court
determines that postconviction testimony that challenges trial testimony is not credible, it
is not an abuse of discretion to conclude that the postconviction testimony was insufficient

3 As part of its discussion of L.K.-H.’s credibility, the district court also noted that L.K.-H.
had an active warrant for his arrest at the time he signed the affidavit, but he no longer
faced prison time at the time of the postconvic tion evidentiary hearing. At oral argument
before this court, Glass argued that the record was insufficient to support the district court’s
suggestion that L.K.-H. might have had an incentive to lie based on his active warrant. We
disagree and conclude that the record suppor ts the district court’s findings. At the
evidentiary hearing, the state’s attorney cross-examined L.K.-H. about his active warrant,
and L.K.-H. admitted that the warrant was active when he first visited Glass’s attorney and
signed the affidavit and that he faced the possibility of prison time. Moreover, in reaching
its credibility determination, the district court did not rely solely on the active warrant and
reached its determination based on the reasons discussed above.
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to show that trial testimony was false.” Andersen, 940 N.W.2d at 178. Thus, the district
court did not err in determining that it was not reasonably well-satisfied that L.K.-H.’s trial
testimony was false, as required under the first prong of the Larrison test.
Because the district court did not abuse its discretion when it found that Glass did
not satisfy the first prong of the Larrison test, we need not consider the second prong. See
Martin, 825 N.W.2d at 740 (recognizing th at the first two prongs of the Larrison test are
“compulsory” for a defendant to be entitled to a new trial). The district court therefore did
not abuse its discretion by conc luding that Glass was not en titled to a new trial, and it
appropriately denied his postconviction petition.
Affirmed.