Eugene R. Boos, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1678

 

Eugene R. Boos, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed August 3, 2004

Affirmed

Anderson, Judge

 

 

Hennepin County District Court

File No. 93025829

 

 

Eugene Ryan Boos, OID #175877, MCF Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

            Considered and decided by Harten, Presiding Judge; Anderson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

G. BARRY ANDERSON, Judge

Appellant Eugene R. Boos challenges the district court's denial of his petition for postconviction relief from his 1994 conviction of second-degree intentional murder, arguing that he is entitled to a new trial or the benefit of a previously rejected plea bargain on the basis of (1) newly discovered exculpatory evidence withheld by the state at trial and (2) ineffective assistance of counsel at trial.  Appellant also raises three additional grounds for postconviction relief: (1) the district court made erroneous evidentiary rulings; (2) the prosecutor committed misconduct in closing argument; and (3) there was insufficient evidence to support his conviction.  We affirm.

FACTS

            In April 1993, the state charged appellant with one count of second-degree murder in violation of Minn. Stat. § 609.19, subds. 1, 2 (1992).  At trial, appellant testified that in March 1993 he and Samuel Denham whom he had not previously met had a verbal altercation on a sidewalk in downtown Minneapolis.  Appellant testified that he saw Denham reach into his pocket as if to retrieve a weapon and stabbed Denham in the chest in self-defense.  Several eyewitnesses testified that they did not see Denham reach into his pocket before appellant stabbed him.  Although the district court allowed appellant to support his self-defense claim by presenting testimony regarding Denham's reputation for "violence or quarrelsomeness," the court did not allow appellant to present evidence of specific instances of Denham's conduct to establish those traits. 

The jury found appellant guilty as charged and the district court sentenced him to 306 months in prison, the presumptive sentence.  Appellant challenged his conviction, which was affirmed by this court, and the supreme court denied his petition for further review.

            In May 2003, appellant filed a petition for postconviction relief in district court, alleging that (1) he had discovered new, exculpatory evidence in the form of a police report describing an assault involving Denham that allegedly occurred approximately ten months before the crime of which appellant was convicted, which appellant maintained would substantiate his self-defense claim by showing Denham's propensity for violence and appellant's reasonable apprehension thereof; (2) the state withheld the police report from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); and (3) he received ineffective assistance of counsel at trial because his attorney misinformed him about the presumptive sentence for the crime charged, thereby influencing him to reject a plea bargain.  At the postconviction hearing, appellant and his trial counsel testified, the latter stating that appellant was never interested in the plea bargain and that she had no specific recollection about informing him of the presumptive sentence. 

The district court denied appellant's petition.  The court found that appellant had failed to show either newly discovered evidence or a Brady violation sufficient to warrant a new trial because the police report of Denham's alleged earlier act was inadmissible to show Denham's violent character; the district court further observed that "[t]he issue of the admissibility of [Denham's] specific prior bad acts . . . was fully litigated at trial."  As to appellant's contention that he received ineffective assistance of counsel, the district court "specifically [found] the testimony of [appellant's counsel] credible [and] specifically [found] the testimony of [appellant] not credible," observing that appellant "has every reason to be dishonest at this point in order to get a new trial."  This appeal follows.

D E C I S I O N

            A petitioner who seeks postconviction relief "has the burden of establishing, by a fair preponderance of the evidence, facts [that] warrant a reopening of the case."  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  A postconviction court's factual findings will be sustained if they are supported by sufficient evidence, but this court makes an independent determination of the law as it applies to the facts.  Doan v. State, 306 Minn. 89, 91, 234 N.W.2d 824, 826 (1975).  Absent an abuse of discretion, a postconviction court's decision will not be disturbed.  Rainer, 502 N.W.2d at 787.

"[W]here direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief."  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  "[O]nly where a claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided will postconviction relief be allowed."  Case v. State, 364 N.W.2d 797, 800 (Minn. 1985).

We first observe that appellant filed his petition for postconviction relief in May 2003, almost nine years after his conviction and sentencing, and he did not raise the issues asserted in his postconviction petition either at his sentencing hearing or on direct appeal.  A "delay in seeking relief is a relevant consideration in determining whether that relief should be granted."  Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991). 

Appellant alleges that he is entitled to a new trial because he has newly discovered exculpatory evidence known to but withheld by the state at trial.  The evidence consists of a police report describing an incident that allegedly occurred in April 1992 in which victim Samuel Denham threatened his girlfriend with a knife.  The state never referred the incident for prosecution.  Appellant contends that evidence of Denham's prior act of violence would support his self-defense claim by showing that Denham had a violent character and was likely the aggressor in the confrontation that culminated in Denham's death.

"[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."  Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963); see Minn. R. Crim. P. 9.01, subd. 1(6) (providing that the prosecutor "shall disclose to defense counsel any material or information within the prosecuting attorney's possession and control that tends to negate or reduce the guilt of the accused as to the offense charged").  Under the facts of this case, appellant's postconviction claims could be analyzed either as a claim of newly discovered evidence or as a Brady violation.  We choose the latter "[b]ecause the ultimate standard of materiality applicable to a Brady violation should be more lenient to the defense than the standard applied to newly discovered evidence."  Gorman v. State, 619 N.W.2d 802, 805 (Minn. App. 2000), review denied (Minn. Feb. 21, 2001). 

"To establish a Brady violation," appellant must demonstrate that he was prejudiced by the prosecution's willful or inadvertent suppression of exculpatory evidence.  Woodruff v. State, 608 N.W.2d 881, 886 (Minn. 2000).  The determination of prejudice "involves consideration of whether the evidence would have been admissible at trial and whether there was a reasonable probability that it would have made a difference in the result at trial."  Gorman, 619 N.W.2d at 806.  Appellant contends that the police report was admissible to show that he acted in self defense and that Denham was the aggressor.  We disagree.

Evidence of other specific crimes or bad acts is not admissible to prove that a person acted in conformity therewith on a particular occasion.  Minn. R. Evid. 404(b).  But "evidence of the victim's reputation for violence and quarrelsomeness may be admitted in self-defense cases for the purpose of determining (1) whether the defendant was reasonably put in apprehension of serious bodily harm or (2) who was the aggressor."  State v. Bland, 337 N.W.2d 378, 382 (Minn. 1983) (emphasis in original).  The defendant must have had prior knowledge of the victim's reputation in order to show reasonable apprehension, but "it is not necessary that the defendant knew the victim's reputation" beforehand to show the victim was the aggressor.  Id.  Nonetheless, "evidence of a specific act of violence is not admissible to prove who was the aggressor."  Id. 

Here, appellant does not assert that he was aware of Denham's reputation before the confrontation with Denham.  The police report was therefore inadmissible to establish that Denham's propensity for reacting violently put appellant in reasonable apprehension of Denham so as to justify defensive action.  See State v. Irby, 368 N.W.2d 19, 23 (Minn. App. 1985) (holding that evidence of specific instances of conduct of the victim offered by defendant to prove he had a reasonable apprehension of harm "may be admissible if the prior conduct indicates a violent or quarrelsome disposition and if the defendant is aware of the prior conduct"), review denied (Minn. July 11, 1985). 

As to appellant's argument that the police report would be admissible to establish that Denham was the aggressor regardless of whether appellant was aware of the report at the time of the altercation, the supreme court has specifically held that "evidence of a specific act of violence is not admissible to prove who was the aggressor."  Bland, 337 N.W.2d at 382.  Nor does the record support appellant's contention that he was prejudiced by the district court's refusal to admit the police report.  Several eyewitnesses to the stabbing testified that Denham did not act as the aggressor in the confrontation.  The jury rejected appellant's contention that he acted in self defense and concluded that Denham did nothing that would cause a reasonable person to stab him in the chest.

            Appellant next argues that he received ineffective assistance of counsel (1) at trial, where his attorney misinformed him as to the presumptive sentence for the charge, thereby influencing him to reject the plea bargain, and (2) when his attorney declined to assert, in appellant's petition for postconviction relief, appellant's theory that the April 1992 police report was admissible under Minn. R. Evid. 406, which governs the admissibility of evidence of habit and routine practice.   

            As to the first issue, the postconviction court after hearing testimony from both appellant and his trial counsel at the postconviction hearing specifically discredited appellant's contention that his attorney misinformed him as to the presumptive sentence.  Witness "credibility is not an issue for this court to consider on appeal."  State v. Garrett, 479 N.W.2d 745, 747 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).

Appellant's argument concerning rule 406 is without merit.  The rule provides that evidence of a person's "habit or routine practice" is relevant to prove that the person's conduct on a particular occasion was in conformity with the routine practice.  Minn. R. Evid. 406.  The single incident described in the contested police report is not qualitatively or quantitatively sufficient to establish a "habit" within the meaning of the rule.  See Hammer v. Investors Life Ins. Co. of N. Am., 473 N.W.2d 884, 891 (Minn. App. 1991) (holding that one instance of prior conduct is insufficient, as a matter of law, to establish a habit under rule 406), review denied (Minn. Sept. 25, 1991).  Appellant is not entitled to postconviction relief on the basis of ineffective assistance of counsel.

Finally, because the arguments raised in appellant's pro se supplemental brief were known to appellant and could have been or were raised on direct appeal, appellant may not now raise them in his petition for postconviction relief.  See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741 (stating that issues that have been or should have been raised on direct appeal may not be raised in a petition for post-conviction relief).  

            Affirmed.

 

 

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.