Brandon Darnell Barnes v. State of Minnesota ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1212
Brandon Darnell Barnes, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed March 7, 2016
Affirmed
Connolly, Judge
Dakota County District Court
File No. 19HA-CR-08-4164
Cathryn Middlebrook, Chief Appellate Public Defender, Carol Comp, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, G. Paul Beaumaster, Assistant County
Attorney, Hastings, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges his 2009 conviction of first-degree sale of a controlled
substance, arguing that the district court abused its discretion in denying his petition for
postconviction relief because problems discovered in 2012 with the St. Paul Police
Department Crime Lab (SPPDCL) testing procedures were newly discovered evidence;
(2) the district court erred in concluding that appellant did not receive ineffective assistance
of counsel in 2009 because his counsel did not assert this argument to the district court,
and (3) he was denied relief on his Brady violation claim. Because we see no abuse of
discretion, we affirm.
FACTS
On June 10, June 11, and July 3, 2008, appellant Brandon Barnes sold an undercover
police officer a substance later determined by the SPPDCL to be cocaine. After the July 3
sale, he admitted to an investigator that he had sold an ounce of cocaine that day and smaller
amounts of cocaine on the two previous days.
Appellant was arrested and charged with first-degree controlled substance crime on
the basis of the three incidents. In 2009, he pleaded guilty and was sentenced to 98 months
in prison; that sentence was stayed for 15 years, and appellant was placed on probation on
the condition that he serve 180 days in jail.
In 2012, a Dakota County case, State v. Jensen, led to the investigation, audit, and
closing of the SPPDCL. In 2013, appellant received a concurrent 120-month sentence on
another matter and requested execution of the 98-month sentence.
In July 2014, he filed a petition for postconviction relief, asking to withdraw his
2009 guilty plea based on the closing of the SPPDCL and arguing (1) newly discovered
evidence; (2) a Brady violation; (3) a due process violation; (4) that his plea was inaccurate,
involuntary, and unintelligent; and (5) ineffective assistance of counsel. The district court
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order granted his request for an evidentiary hearing on withdrawal of his guilty plea and
denied relief on the Brady violation.
Respondent State of Minnesota requested reconsideration of the grant of an
evidentiary hearing in light of Roberts v. State, 856 N.W.2d 287, 292 (Minn. App. 2014)
(holding that SPPDCL problems are not newly discovered evidence), review denied (Minn.
Mar. 28, 2015). The district court let the hearing go forward but said respondent could
argue whether relief was time-barred in post-hearing briefs. At the hearing, appellant, the
attorney whom he claims provided ineffective assistance, two scientists from the SPPDCL,
the attorney in Jensen, and two expert witnesses testified.
Following the hearing, the district court concluded that the SPPDCL litigation was
not newly discovered evidence and that appellant had not been denied effective assistance
of counsel and denied his motion for postconviction relief. Appellant challenges the denial,
arguing that the district court abused its discretion in concluding that the problems with the
SPPDCL were not newly discovered evidence, that appellant did not receive effective
assistance of counsel, and that there had been no Brady violation.
DECISION
“The denial of a new trial by a postconviction court will not be disturbed absent an
abuse of discretion and review is limited to whether there is sufficient evidence to sustain
the postconviction court’s findings.” State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000).
1. Newly Discovered Evidence
Appellant did not file a direct appeal. When no direct appeal is filed, a petition for
postconviction relief must be filed within two years of the entry of judgment of conviction
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or sentence. Minn. Stat. § 590.01, subd. 4(a) (2014). But an exception to this limitation
occurs when five criteria are met: (1) the petitioner alleges the existence of newly
discovered evidence; (2) the evidence could not have been discovered by the exercise of
the due diligence of the petitioner or the petitioner’s attorney within the two-year period
following the entry of judgment of conviction or sentence; (3) the evidence is not
cumulative to that presented at trial, (4) the evidence is not introduced for impeachment,
and (5) the evidence “establishes by a clear and convincing standard that the petitioner is
innocent of the offense or offenses for which the petitioner was convicted.” Minn. Stat.
§ 590.01, subd. 4(b)(2) (2014); see also Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997)
(holding that a new trial may be granted on the basis of newly discovered evidence when
the defendant proves “(1) that the evidence was not known to the defendant or his/her
counsel at the time of the trial; (2) that the evidence could not have been discovered through
due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful;
and (4) that the evidence would probably produce an acquittal or a more favorable result”).
The argument that the 2012 investigation of SPPDCL was newly discovered
evidence that could entitle petitioners convicted before 2012 to postconviction relief was
addressed and rejected in Roberts, 856 N.W.2d at 292 (“[The petitioner] has not met his
burden to establish that the new evidence regarding [SPPDCL] could not have been
discovered with due diligence or that the new evidence clearly and convincingly establishes
his innocence.”).
The district court here relied on Roberts, noting that it
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focused on two elements of the newly discovered evidence
exception, due diligence and actual innocence. [Roberts, 856
N.W.2d] at 290. In doing so, the court [of appeals] found that
[Roberts] had not demonstrated that the information regarding
the crime lab could not have been discovered through the
exercise of due diligence. Id. at 291. Additionally, the court
[of appeals] did not find that the [SPPDCL] evidence
established [Roberts]’s innocence by clear and convincing
evidence. Id. Similarly, . . . [appellant] has failed to establish
that the evidence could not have been discovered through due
diligence or that the evidence establishes his innocence.
We agree with the district court.
a. Due diligence
Roberts explained that:
The complaint against Roberts alleged that the crime lab
analyzed the substance in this case and identified it as cocaine.
Roberts therefore knew that the charge against him was based
on the crime lab’s test results. He had access to the test results
under the discovery rules. He could have challenged the
foundational reliability of the test results. If Roberts was
financially unable to obtain expert review of the test results, he
could have requested public funds for that purpose.
Roberts does not claim that he made any effort to
investigate the validity of the test results. Nor does he claim
that anyone prevented him from doing so. Instead, he merely
asserts that the deficiencies in the crime lab’s procedure could
not have been discovered with due diligence because no one
had reason to suspect problems at the crime lab. That assertion
is belied by Roberts’s postconviction submissions, which show
that the defendant in the 2012 Dakota county case [i.e., Jensen]
discovered the deficiencies. Thus, Roberts has not
demonstrated that the information regarding the crime lab
could not have been discovered through the exercise of due
diligence.
Id. (quotations and citations omitted). The district court, having heard testimony from the
attorney involved in Jensen, applied Roberts:
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[Appellant] asserts that he informed his attorney [in the 2008
case that] . . . he had reason to question whether the substance
sold was, in fact, cocaine. However, [appellant’s attorney] has
no recollection of [appellant] challenging the drug evidence,
nor did she make a note in her file to indicate this. [Appellant]
was aware that the allegations against him were based upon the
crime lab’s results. Additionally, he and his attorney received
the lab report as part of the state’s discovery. [Appellant] could
have challenged the foundational reliability of this
evidence. . . . As with the appellant in Roberts, [appellant] did
not make any effort to investigate the validity of the test[]
results.
Appellant argued to the district court, as he argues on appeal, that due diligence of
himself or his attorney could not have led to the discovery of the SPPDCL problems
because the attorney in Jensen “went above and beyond due diligence and has specialized
science training that alerted [her] to the problems.” The district court, having heard
testimony from the Jensen attorney, noted that she
testified that she had no specialized knowledge about drug
testing at the time she began to realize problems existed [at
SPPDCL.] [Her] testimony and the way in which she
discovered the issues at [SPPDCL] belies [appellant’s]
argument that due diligence was not enough to uncover the
deficiencies.
[The attorney’s] curiosity and desire to learn more about
drug testing led to discovery of the deficiencies at [SPPDCL].
She did not have specialized training. Any attorney could have
requested the full discovery file and asked to meet with a crime
lab analyst as she and her colleague did. Therefore, [appellant]
cannot satisfy the due diligence prong of the newly discovered
evidence exception.
Appellant disagrees with the Roberts conclusion that due diligence could have led to the
discovery of the evidence and with the district court’s following of Roberts. But the district
court and this court are both obliged to follow this court’s published decisions, particularly
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those on which review has been denied. See Sefkow v. Sefkow, 427 N.W.2d 203, 213
(Minn. 1988).
b. Clear-and-Convincing Evidence of Innocence
To meet the newly discovered evidence criteria, the evidence must establish “actual
innocence.” Riley v. State, 819 N.W.2d 162, 170 (Minn. 2012). “Actual innocence is more
than an uncertainty about guilt. Instead, establishing actual innocence requires evidence
that renders it more likely than not that no reasonable jury would convict.” Id. Here,
appellant admitted to an investigator that he sold an ounce of cocaine on July 3 and sold
cocaine on two dates in June; he pleaded guilty to first-degree controlled substance crime
based on those sales, testifying that he had engaged in the sale of a substance he knew was
cocaine; he admitted to using cocaine from the same source himself; and he told a probation
officer doing the presentence investigation that he sold cocaine. In light of appellant’s
admissions immediately after arrest, at the plea hearing, and during the presentence
investigation, evidence about the problems at SPPDCL four years later would have been
unlikely to prevent a jury from finding appellant guilty or to establish his “actual
innocence.”
Although appellant testified in 2014 that he doubted whether the substance he sold
in 2008 was actually cocaine and that he pled guilty to avoid jail time, his 2008 attorney
testified that she had no recollection and no notes of appellant ever telling her that he
doubted the substance he sold was cocaine.
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The district court did not abuse its discretion in finding that, because the SPPDCL
findings were not newly discovered evidence, appellant was not entitled to postconviction
relief.
2. Ineffective Assistance of Counsel
“We review the denial of postconviction relief based on a claim of ineffective
assistance of counsel de novo because such a claim involves a mixed question of law and
fact.” Hawes v. State, 826 N.W.2d 775, 782 (Minn. 2013). For an ineffective-assistance-
of-counsel claim to succeed,
[t]he defendant must affirmatively prove that his counsel’s
representation fell below an objective standard of
reasonableness and that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations and citation omitted).
Appellant argues that his counsel’s failure to request the full lab report was
ineffective assistance. But, as the district court noted,
it was not customary for defense counsel to request the full lab
report in controlled substance cases at that time [i.e., in 2008.
Appellant’s] counsel had no reason to request the full lab report
then. The only evidence to suggest [appellant] told his attorney
that the substance may not have been cocaine is [appellant’s]
present self-serving statements. The [c]ourt does not find
[appellant’s] testimony credible. [His 2008 attorney] does not
recall [appellant] ever challenging that the substance was
cocaine nor did she make any note in her file to reflect such a
statement. [Appellant] elected to accept a plea bargain rather
than challenge the [SPPDCL] test results. The decision not to
pursue a challenge to the test results constitutes trial strategy.
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Appellant presents no evidence to refute the district court’s statements, and “due regard
shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”
Minn. R. Civ. P. 52.01.
Even if counsel’s failure to obtain the full lab report did fall below the standard of
reasonable representation, appellant’s ineffective-assistance claim would fail because,
again, evidence of his statements to the police, the investigator, and the parole officer that
he had sold cocaine would have precluded any result other than his conviction.
3. Brady Violation
This court conducts a de novo review of Brady-violation rulings. Pederson v. State,
692 N.W.2d 452, 460 (Minn. 2005). A Brady violation requires a showing that the
evidence was favorable to the defendant as exculpating or impeaching; the prosecution
suppressed the evidence, intentionally or otherwise; and the evidence was material, so the
defendant was prejudiced. Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010).
The district court concluded that appellant was not entitled to a hearing on his Brady
violation claim because he “failed to present any evidence that the [s]tate ha[d] any
knowledge of the [SPPDCL] issues in 2008” and, absent knowledge of the evidence, the
state could not have suppressed it. Appellant argues that “[i]f the evidence [of problems at
SPPDCL] was available at the time of trial, prosecutors should have disclosed it,” but does
not explain that such evidence was available at the time of trial. Appellant says further that
“[t]]here is a material question of fact as to whether the prosecutor or the police knew about
the problems at the lab at the time of [a]ppellant’s trial” but, again, he offers nothing to
indicate even the possibility of such knowledge. Finally, a Brady violation also requires a
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showing of prejudice, in this context “a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” State v.
Hunt, 615 N.W.2d 294, 299 (Minn. 2000) (quotation and citation omitted). Evidence of
appellant’s repeated admissions that he had sold cocaine preclude any reasonable
probability that a jury would not have convicted him.
Affirmed.
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