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Thirkield v. State8/1/2000
s not within the defendant's or his counsel's knowledge; (2) the evidence could not have been discovered through the exercise of due diligence before trial; (3) the evidence is not impeaching, cumulative, or doubtful; and (4) the granting of a new trial would "probably" produce a different result. State v. Race, 504 N.W.2d 214, 217 (Minn. 1993) (quotation omitted); State v. Weiland, 457 N.W.2d 712, 714 (Minn. 1990). Although the evidence offered by appellant, which includes an affidavit in which appellant states that Keith Gary confessed to him, handwritten statements from Gary, and the report of an investigator who interviewed Gary, arguably meets the first two requirements, it fails to satisfy the last two.
First, Gary's confession is doubtful and lacks credibility. As the post-conviction court noted:
Gary's confession is not credible. He was not able to describe the victim with any clarity. Taking the purse but not removing any money and discarding the purse and a coat on a very cold January day when not being pursued is incredible. Gary's denial of injuring the victim, thus keeping within his plea agreement of no prosecution, does not fit the facts of the present case. Gary says he did not see [appellant] that day as he supposedly ran from the crime scene. It very hard to believe that [appellant] walked into Gary's tracks after Gary had run by [appellant] in light of the police testimony that they saw the suspect running ahead of them and the suspect did not stop. It does not fit with the police testimony that [appellant] was running very fast, breathing heavily and [appellant] admitted taking the purse.
A post-conviction court may refuse to grant relief based upon newly discovered evidence in the form of a witness who surfaces after trial, where the witness's testimony is internally contradictory and inconsistent. See Berry v. State, 364 N.W.2d 795, 796 (Minn. 1985).
Next, Gary's confession is somewhat cumulative because it merely provides additional support for appellant's claim that someone else robbed J.N. that morning. This claim formed the basis for appellant's defense and was already presented to the jury through the testimony of appellant's two alibi witnesses. See Dale v. State, 535 N.W.2d 619, 622 (Minn. 1995) (post-conviction court properly denied new trial where newly discovered evidence was cumulative because it merely provided further support for defendant's claim that victim used crack cocaine, which was presented at trial through testimony of at least three defense witnesses and which was apparently rejected by jury).
Finally, admission of Gary's confession at any retrial probably would not produce a result more favorable to appellant. See Race, 504 N.W.2d at 218 (affirming post-conviction court's conclusion that new testimony would "probably not produce a more favorable result at a new trial"). The jury would again hear the testimony of the officers and J.N., who would relate the events of that morning and again identify appellant as the assailant. And Gary's credibility would be questionable, given his prior convictions and his internally inconsistent and implausible story. Under these circumstances, it is highly probable that the jury would again reject appellant's alibi evidence and find him guilty.
II.
Appellant argues that the trial court abused its discretion by ruling that four prior felony convictions were admissible to impeach him if he chose to testify at trial. Those convictions include: (1) a 1985 conviction of aggravated robbery; (2) a 1986 conviction of felon in possession of a pistol; (3) two 1987 convictions for aggravated robbery; and (4) a 1991 conviction of second-degree assault.
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