Carlos Kendall Duncan, 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This opinion is nonprecedential except as provided by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
A22-1487

Carlos Kendall Duncan, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 31, 2023
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CR-17-132

Howard Bass, Bass Law Firm, PLLC, Burnsville, Minnesota (for appellant)

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

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

Considered and decided by Reilly, Presiding Judge; Segal, Chief Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges the denial of his petition for postconviction relief following
his conviction of attempted second-degree murder. He argues that the postconviction court
abused its discretion by denying relief because (1) he received ineffective assistance of trial
2
counsel; and (2) newly discovered evidence that the victim recant ed his trial testimony
entitles him to a new trial. Because the postconviction court did not abuse its discretion in
denying appellant’s petition for postconviction relief, we affirm.
FACTS
In January 2017, respondent State of Minnesota charged appellant Carlos Kendall
Duncan with two counts of second -degree assault. The state later amended t he complaint
to include two more counts of attempted second-degree intentional murder. The complaint
alleged that Duncan was responsible for a shooting that occurre d on January 3, 2017. The
facts at trial established that on that day, a silver Mercedes SUV pulled up next to two men,
X.S. and D.M., who were sitting in a car in the Dorothy Day Center parking lot in St. Paul.
The driver of the silver Mercedes fired fi ve shots into the car of X.S. and D.M. before
driving off. The two men managed to drive to a nearby hospital , where they were treated
for non-life-threatening injuries.
When the shooting occurred, t wo St. Paul sewer workers were nearby , and one
called 911 to report the incident. The worker reported seeing the driver and described him
as a “stocky” Black male, around 24 or 25 years old with “a scar or tattoo on his left eye,”
driving a silver Mercedes. The worker provided the 911 operator with the license plate of
the car. Meanwhile, a police officer went to interview D.M. at the hospital. At first, D.M.
was not forthcoming and told the officer that an unknown male in an unknown vehicle shot
him. As the conversation continued, D.M. described the shooter as a Black male with face
tattoos driving a silver -colored vehicle. The officer was familiar with Duncan who went
by the street name “Los” and believed that he fit the description D.M. provided. The officer
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asked D.M. whether it was possible that Los wa s responsible for the shooting. D.M.
nodded and said, “yes.” The officer showed D.M. a photo lineup that had been generated
by a computer using randomly selected photographs based on the description of the
shooter. D.M. identified Duncan in the photo lineup as the shooter. When the officers
arrested Duncan a few days later, he was driving a silver Mercedes SUV with a license
plate matching the one given by the city sewer worker.
In August 2017, the case proceeded to a jury trial. D.M. was served with a subpoena
to testify on behalf of the state but failed to appear as ordered and indicated that he did not
wish to testify. The district court issued a warrant. D.M. was arrested and placed in the
Ramsey County jail until he testified. Duncan was also housed in the same jail during the
trial. Duncan tried unsuccessfully to persuade D.M. not to testify.
When D.M. testified , he told the jury that on January 3, he and X.S . were sitting in
the Dorothy Day parking lot when a “silver car” approached their car and “bullets just
started flying from it.” The prosecutor asked D.M. if he saw the person in the driver’s seat
of the silver vehicle and D.M. responded, “Yeah, I seen who it was.” D.M. then identified
Duncan in the courtroom as the driver who shot into their vehicle . D.M. testified that he
saw the vehicle and thought he saw a little of Duncan’s face but quickly turned away when
the shooting started. He testified that he knew Duncan was the shooter because he had
seen him once before driving the same silver vehicle. D.M. testified that he later identified
Duncan in a photo lineup at the hospital and was “certain about [his] identification.”
After court adjourned for the day, Duncan was returned to the Ramsey County jail
where he made a few phone calls that were recorded. In the calls, Duncan recounted to the
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person on the other line that he told D.M., “Hey man, you ain’t got to do this sh- t, bro.
I don’t even have no problem with you. It wasn’t personal. The [person] I had a problem
with, he dead, bro.” Duncan told the person that D.M. “testified on [him].” In a second
call, Duncan instructed the person on the other line to tell someone “to put on Facebook
that [D.M.] just testified on me. Screenshot [D.M.’s] picture off his Facebook.” The
district court allowed the recording to be admitted over Duncan’s objection, finding that
the statements made by Duncan were relevant to the issues of identity and intent.
After the state presented its witnesses and evidence, Duncan declined to testify on
his behalf and the defense did not call any witnesses. The jury deliberated and returned a
verdict of guilty on all counts. The district court sentenced Duncan to 367 and one-half
months in prison.
Direct Appeal
After his conviction, Duncan filed a direct appeal, arguing that the district court
erred in admitting evidence of t he two phone calls he made from jail and that it was plain
error to admit testimony from three police officers about prior contacts with Duncan. State
v. Duncan, No. A17-2049, 2019 WL 1006792, at *1 (Minn. App. Mar. 4, 2019), rev. denied
(Minn. May 28, 2019). This court held that the district court did not abuse its discretion in
admitting the phone call statements into evidence. Id. at *3-4. This court also concluded
that the district court did not commit plain error when it allowed three officers to testify at
trial about prior contacts with Duncan because the identity of the shooter was a primary
issue in the case and the admission of testimony did not affect Duncan’s substantial rights.
Id. at *5. Finally, this court addressed Duncan’s pro se arguments noting that they were
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outside the record or unsupported by legal argument. Id. at *6. Thus, this court affirmed
Duncan’s convictions.
Petition for Postconviction Relief
In October 2019, Duncan filed a pro se petition for postconviction relief. He argued
that he was denied effective assistance of trial counsel because his trial attorney failed to
investigate witnesses for his defense. He also argued that he received ineffective assistance
of appellate counsel because his appellate counsel failed to raise ineffective assistance
claims on direct appeal.
Shortly before the scheduled hearing on the petition, D.M. wrote a letter recanting
his testimony. D.M. said that he was under the influence of drugs and alcohol and did not
see the shooter or the vehicle. He wrote that he only testified against Duncan so that the
state would drop drug charges that he was facing around that time. In a later affidavit,
D.M. again asserted that his testimony was untrue.
Duncan hired an attorney to represent him in the postconviction proceedings. The
postconviction court allowed Duncan to withdraw his pro se petition for postconviction
relief and file a new petition with assistance of counsel. The new petition for
postconviction relief asserted that Duncan received ineffective assistance from both trial
and appellate counsel and that the recantation of D.M.’s testimony entitled Duncan to a
new trial. The postconviction court granted a n evidentiary hearing, finding that the facts
viewed in a light most favorable to Duncan, if true, could exonerate him of the crime he is
incarcerated for.
6
Postconviction Relief Hearing
The postconviction court held an evidentiary hearing. The state presented testimony
of Duncan’s trial attorney who testified that she received the state’s notice to introduce
evidence of a photo lineup when she first was assigned the case but made the decision not
to pursue a suppression motion. She testified that she researched the district court judge’s
prior rulings on suppression motions and consulted colleagues about whether it was
worthwhile to pursue the motion. Ultimately, the trial attorney did not move to suppress
because she “didn’t think a suppression motion would be successful on the matter” and that
her energy was “better spent elsewhere.”
The trial attorney also testified that she receiv ed Duncan’s case after his original
attorney retired and investigated several potential witnesses that the original attorney had
identified. One witness was a woman who claimed to be with Duncan on the day of the
shooting. Another witness asserted that s he owned the silver Mercedes in question and
that it was in the vehicle repair shop on the day of the shooting. The trial attorney testified
that she had multiple conversations with both women and eventually ruled them out as
witnesses.
As for the owner of the silver Mercedes, the trial attorney testified that the potential
witness could not provide information about who had access to the silver Mercedes or who
possessed it on the relevant dates. The trial attorney also testified that she often had trouble
getting in contact with the woman who claimed that she was with Duncan on the day of
the shooting and had trouble tracking her do wn before trial. She testified that she was
worried about the potential witness being cross-examined because she did not “come across
7
terribly believabl[e].” The trial attorney testified that she knew that the witness was present
during trial and was willing to testify for the defense . But the trial attorney spoke with
Duncan, and they made the joint decision not to call the witness because they believed she
may be more harmful than helpful to his defense.
Duncan’s postconviction counsel presented testim ony from an expert defense
lawyer. The e xpert witness testified that after reviewing the record , she concluded that
Duncan’s trial attorney was constitutionally ineffective. She testified that the trial attorney
did not provide effective representation w hen she failed to challenge the photo lineup—the
key issue in the case —as unreasonably suggestive because Duncan was the only Black
male with visible tattoos. The expert witness believed the failure to challenge the lineup
was not “sound trial strategy.” Similarly, she testified that the failure to call the owner of
the silver Mercedes and the women who claimed to be with Duncan during the shooting as
witnesses constituted ineff ective assistance of counsel and was also not “sound trial
strategy.” But she agreed that she did not speak to the alibi witnesses as part of her review
of the case and had no way to predict how the witness es would come across to the jury.
Postconviction counsel for Duncan also called D.M. to testify at the evidentiary
hearing, but D.M. did not show up for the hearing. D.M. was later arrested and taken into
custody. The postconviction court granted a second evidentiary hearing to allow D.M. to
testify. At the second hearing, D.M. said that the testimony he gave at Duncan’s 2017 trial
was false and that he provided the false testimony in exchange for a promise to not be
prosecuted for an unrelated drug offense. H e first testified that he did not remember what
happened on the day of the shooting. When pressed further, he testified that he
8
remembered being in a vehicle when someone started shooting at him, but that he did not
see who it was or know who they were. D.M. also testified that he never identified Duncan
from the photo lineup. On cross -examination, when asked further about whether he saw
the shooter, D.M. testified, “I don’t even know this man, didn’t see no car pull up or
nothing. I just heard gunshots and ducked, that’s a natural reaction. Y ’all asking me all
these questions, and I’m get confused in a minute. I really don’t know what happened.”
Following the hearing, the postconviction court denied Duncan’s petition for
postconviction relief. In doing so, the postconviction court found the testimony of the trial
attorney and the expert witness to be credible but that D.M. was not credible because he
“contradicted himself, seemed confused, and failed to provide an understandable and
credible reason for his alleged [] false testimony .” The postconviction court found that
Duncan failed to show that his trial attorney’s representation was ineffective and that her
decisions not to move to suppress the photo lineup or call certain witness were reasonable
matters of trial strategy. And because the postconviction court found that Dunca n’s
ineffective-assistance-of-trial-counsel claim failed, the postconviction court found that
Duncan’s ineffective -assistance-of-appellate-counsel claim also failed because it was
premised on the trial-counsel claim.
The postconviction court also concluded that Duncan was not entitled to a new trial
based on D.M.’s recantation. The postconviction court found that it was “not reasonably
well satisfied by a preponderance of the evidence that [D.M.’s ] trial testimony was false.”
The postconviction court found that, although D.M. recanted essential portions of his trial
testimony, he failed to provide “sufficient indicia of trustworthiness to assure this court
9
that the recantation was genuine.” The postconviction court found that D.M.’s testimony
at the evidentiary hearing was elicited with mostly leading questions and that it was unclear
what induced D.M. to falsely testify at Duncan’s trial. But the postconviction court found
that D.M.’s testimony during Duncan’s trial was “direct, specific[,] and responsive” and
that he “made what appeared to be a confident identification[.]” 1
This appeal follows.
DECISION
Duncan argues that the postconviction court abused its discretion in denying his
postconviction petition. This court reviews a postconviction court’s decision to deny
postconviction relief for an abuse of discretion. Chavez -Nelson v. State, 948 N.W.2d 665,
671 (Minn. 2020). We will not reverse the postconviction court’s decision unless the court
“exercised its discretion in an arbitrary or capricious manner, based its ruling on an
erroneous view of the law, or made clearly erroneous factual findings.” Hannon v. State,
957 N.W.2d 425, 432 (Minn. 2021) (quotation omitted).
I. The postconviction court did not abuse its discretion in determining that
Duncan is not entitled to relief on his ineffective -assistance-of-counsel claim.

Duncan first argues that the postconviction court abused its discretion by failing to
grant a new trial on his ineffective -assistance-of-counsel claim. The right to effective
assistance of counsel is guaranteed to all criminal defendants by the United States and
Minnesota Constitutions. U.S. Const . amend. VI; Minn. Const. art. I, § 6. To prevail on

1 We note that the district court judge who presided over the postconviction proceedings
also presided over Duncan’s jury trial.
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his ineffective -assistance-of-counsel claim, Duncan must establish (1) “that counsel’s
representation fell below an objective standard of reasonableness ”; and (2) “there was a
reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different.” State v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013) (citing Strickland
v. Washington, 466 U.S. 668, 694 (1984)). An attorney provides reasonable assistance
when they exercise “the customary skills and diligence that a reasonably competent
attorney would perform under the circumstances.” Dukes v. State, 621 N.W.2d 246, 252
(Minn. 2001) (quotation omitted). “[T]here is a strong presumption that counsel’s
performance fell within a wide range of reasonable assistance.” Gail v. State, 732 N.W.2d
243, 248 (Minn. 2007). At an evidentiary hearing on a postconviction petition, the
petitioner bears the burden of proof to establish the facts alleged in the petition “ by a fair
preponderance of the evidence.” Minn. Stat. § 590.04, subd. 3 (2022).
In reviewing the denial of a petition for postconviction relief based on a claim of
ineffective assistance of counsel, we “will consider the court’s factual findings that are
supported in the record, conduct a de novo review of the legal implication of those facts on
the ineffective assistance claim, and either affirm the court’s decision or conclude that the
court abused its discretion because postconviction relief is warrante d.” Nicks, 831 N.W.2d
at 503-04.
Duncan argues that his trial attorney was constitutionally ineffective because she
(1) failed to challenge the photograph lineup; and (2) failed to investigate and call potential
witnesses. We begin by analyzing the fact s that Duncan alleged to support his claim that
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his trial attorney was ineffective for failing to challenge the photo lineup in a motion to
suppress evidence.
Failure to File Motion to Suppress Evidence
Duncan argues that his trial attorney’s failure to move to suppress evidence of the
photo lineup was a prejudicial error. He contends that the photo lineup was impermissibly
or unduly suggestive, creating a substantial likelihood of misidentification. “A claim of
ineffective assistance of counsel may not rest on the failure of an attorney to make a motion
that would have been denied if it had been made.” Johnson v. State, 673 N.W.2d 144, 148
(Minn. 2004). Thus, the actual prejudice prong here turns on whether the district court
would have granted a motion to suppress evidence of the photo lineup. See id. (noting that
the actual prejudice prong in a sexual assault case turned on whether the district court
“would have granted a motion to suppress the DNA evidence if one had been made”).
“The use of unduly suggestive identification procedures may constitute a violation
of a defendant’s right to due process.” State v. Fox , 396 N.W.2d 862, 864 (Minn. App.
1986) (citing Neil v. Biggers , 409 U.S. 188, 196 (1972)). A constitutional violation may
be found if the procedures used in a photo lineup “were so impermissibl y suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.” Id. (quotation
omitted). The determination of whether an identification procedure create d a substantial
likelihood of irreparable misidentification involves a two -part test. State v. Ostrem , 535
N.W.2d 916, 921 (Minn. 1995). First, we ask “whether the defendant was unfairly singled
out for identification.” Id. If so, we determine whether the “totality of the circumstances
establishes that the evidence was reliable.” Id.
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Here, the photo lineup consists of six pictures of Black males with black hair . All
six men are wearing white shirts. Five of the males appear to have some facial hair and all
appear to have similar features. Duncan argues that the photo lineup unfairly singles
Duncan out and is thus impermissibly suggestive because the photograph of Duncan is the
only photograph depicting a Black male with facial tattoos, the unique identifying feature
in this case. But his photograph, like all others in the lineup, shows his face from a head -
on angle. From that angle, Duncan’s facial tattoo is hardly visible, if at all. In Fox, this
court determined that a photo lineup in which the defendant’s photograph was the only one
with a scar on the left side of his face was not unduly suggestive because the scar was “not
so conspicuous as to render the line -up impermissibly sug gestive.” 396 N.W.2d at 864.
Like Fox, we conclude that the photo lineup did not single Duncan out and thus was not
impermissibly suggestive because the unique identifying feature is hardly visible and not
conspicuous.
Because we conclude that the photo lineup is not impermissibly suggestive, we also
conclude that Duncan did not suffer actual prejudice from his trial attorney’s failure to
move for the suppression of the photo lineup because the motion would have been denied
if made. See Johnson, 673 N.W.2d at 150- 51.
Failure to Investigate and Call Witnesses
Next, we analyze the facts that Duncan alleged to support his claim that his trial
attorney was ineffective for failing to investigate certain witnesses and call those witnesses
to testify to back up his alibi at trial. Duncan ar gues that his trial attorney’s performance
was objectively unreasonable because his counsel decided not to call the woman who
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owned the silver Mercedes or the woman who claimed to be with Duncan during the
shooting as trial witnesses.
Duncan bears the burden on appeal to show that a reasonably competent attorney
would have called the witnesses and the failure to do so prejudiced him. But the decision
about what witnesses to call at trial is generally considered a tactical t rial strategy properly
left to the discretion of his trial attorney. See Anderson v. State, 830 N.W.2d 1, 13 (Minn.
2013) (noting that the decision to call exculpatory witnesses falls within trial strategy and
is not reviewable on appeal) ; Carridine v. St ate, 867 N.W.2d 488, 494 (Minn. 2015)
(stating that strategic trial decisions include “what evidence to present to the jury, what
witnesses to call, and whether to object” to the state’s evidence) (quotation omitted); White
v. State, 711 N.W.2d 106, 111 (Minn. 2006) (“Trial strategy includes decisions about what
evidence to present to the jury.”). And we do not review ineffective -assistance-of-counsel
claims when the conduct involves trial strategy. Chavez-Nelson, 948 N.W.2d at 671;
Opsahl v. State, 677 N .W.2d 414, 421 (Minn. 2004) .
In sum, Duncan cannot show actual prejudice from his trial attorney’s decision to
not move to suppress evidence . A nd on appeal we do not review the trial attorney’s
decision to not call witnesses because it is a matter of trial strategy. We therefore conclude
that the postconviction court did not abuse its discretion in denying relief on Duncan’s
ineffective-assistance-of-counsel claim. 2

2 The district court determined that because Duncan failed to show his trial attorney was
ineffective, he also failed to show that his appellate attorney was ineffective for failing to
raise an ineffective -assistance-of-trial-counsel claim on appeal . See Vance v. State , 752
N.W.2d 509, 514 (Minn. 2008) (“When a petitioner bases his ineffective -assistance-of -
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II. The postconviction court did not abuse its discretion in determining that
Duncan is not entitled to relief based on his claim that a trial witness provided
false testimony.

Duncan next argues that he is entitled to a new trial because a witness for the state
recanted his t rial testimony. Minnesota courts apply the three -prong Larrison test when
evaluating false-testimony claims to determine whether a petitioner is entitled to a new
trial. Opsahl, 677 N.W.2d at 422 (citing Larrison v. United States, 24 F.2d 82, 87-88 (7th
Cir. 1928)). Under that test, a petitioner is entitled to a new trial if: (1) the court is
“reasonably well -satisfied that the testimony in question was false; (2) without that
testimony the jury might have reached a different conclusion; and (3) the petitioner was
taken by surprise at trial or did not know of the falsity until after trial.” Id. at 422-23. The
first two prongs are “compulsory,” while the third is a relevant factor a court should
consider. Martin v. State , 825 N.W.2d 734, 740 (Minn. 2013) . Under this test, “the
credibility of the new evidence is critical.” Andersen v. State, 940 N.W.2d 172, 178 (Minn.
2020).
Here, the postconviction court granted Duncan an evidentiary hearing based on
D.M.’s recantation letter. After the evi dentiary hearing, the postconviction court denied
Duncan’s request for relief, finding that D.M.’s postconviction evidentiary- hearing
testimony lacked sufficient indic ia of reliability and that his trial testimony was more
reliable because it was direct an d specific. And because the postconviction court found

appellate-counsel claim on appellate cou nsel’s failure to raise an ineffective-assistance-of -
trial-counsel claim, he first must show that trial counsel was ineffective.”). Duncan does
not challenge this determination on appeal.
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that D.M.’s evidentiary- hearing testimony was not credible, the postconviction court
determined that Duncan failed to establish the first prong: that D.M.’s trial testimony was
false. We discern no a buse of discretion in the postconviction court’s conclusion.
At trial, D.M. was asked whether he saw the person in the driver’s seat of the silver
Mercedes and D.M. responded, “Yeah, I seen who it was.” When asked to identify the
driver, D.M. immediately pointed to Duncan and testified that he was the driver. He
testified that he briefly saw Duncan’s face before being shot at and turning his head. He
testified that he had seen Duncan driving the same silver vehicle sometime in the past. And
he testified that when an officer showed him a photo lineup, he picked Duncan from the
photographs. D.M. testified that he was “certain about [his] identification.” In comparison,
at the postconviction evidentiary hearing, D.M. at first said he remembered nothing that
happened that day but, when pressed further, testified that he remembered being shot at but
saw no one. He also claimed that he never identified Duncan in a photo lineup. Throughout
his testimony, D.M. had trouble remembering details and admitted that he was confused.
Ultimately, he testified that he “really [did not] know what happened.”
The postconviction court found that D.M.’s testimony at the evidentiary hearing was
“shifting and confus[ing]” and largely elicited from leading questions. And the
postconviction court found that D.M. could not provide an explanation or clarification as
to what induced him to falsely testify. But the postconviction court found that D.M.’s trial
testimony was direct, spontaneous, and believable. “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 to show that
16
trial testimony was false.” Anders en, 940 N.W.2d at 178. Based on our review of the
evidentiary-hearing testimony and the postconviction court’s credibility determinations,
we conclude that the testimony does not satisfy the first prong of the Larrison test. Thus,
the postconviction court properly concluded that Duncan is not entitled to a new trial and
did not abuse its discretion in denying Duncan’s petition for postconviction relief.
Affirmed.