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Larry Demetrius Pearson vs. State of Minnesota
Date: 03-25-2017
Case Number: A16-0882
Judge: Margaret H. Chutich
Court: STATE OF MINNESOTA IN SUPREME COURT
Plaintiff's Attorney: Lori Swanson, Attorney General
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney
Defendant's Attorney:
Zachary Longsdorf |
Description:
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The State charged Pearson with first-degree premeditated murder, Minn. Stat.
§ 609.185(a)(1) (2016); second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1)
(2016); and the unlawful possession of a firearm, Minn. Stat. § 624.713, subd. 1 (2006), in
connection with the shooting death of Corodarl Merriman.1 Pearson pleaded not guilty on
all counts.
At trial, the State presented the following evidence. On April 22, 2006, Merriman
and W.M. drove a van to Pearson’s apartment building to purchase controlled substances
from Pearson. When they arrived, Pearson told W.M., the van’s driver, to step out of the
van. W.M. followed his instructions, leaving Merriman in the front passenger seat. When
W.M. asked to see the drugs, Pearson pulled out a gun and fired a shot at W.M.’s head.
The bullet missed and W.M. retreated toward an alley. Pearson approached the van and
began shooting. As Merriman attempted to move from the front passenger seat to the back
of the van, Pearson fired one shot into the van’s front passenger window, breaking it.
Pearson then opened the front passenger door of the van, kneeled over the seat, and fatally
shot Merriman. According to the assistant medical examiner, Merriman’s death was
caused by multiple gunshot wounds. She opined that the gunshot wound to Merriman’s
right thigh was consistent with a bullet that traveled through the front passenger window,
striking Merriman while he was sitting in the front passenger seat.2 When the prosecutor
asked W.M. whether Merriman was “ever in trouble,” W.M. replied: “No. He was
basically a peacemaker. I mean, he had his, you know, problems, but he was a
peacemaker.”
Pearson chose to testify. He told the jurors that W.M. told him to get in the
passenger seat of the van. Once inside the van, Pearson saw that W.M. had a baseball bat.
W.M. told Pearson, “[Y]ou know what it is,” at which point, Merriman, who was seated in
the rear of the van, pulled out a gun. Pearson retrieved his own gun from the front right
pocket of his jeans and shot Merriman in the leg. W.M. then ran away from the van.
Pearson tried to follow W.M. out the driver’s side of the van, but Merriman pulled
Pearson’s arm toward him so Pearson shot Merriman a second time. Pearson testified that
after shooting Merriman the second time, Merriman again pulled him into the back of the
van, at which point Pearson shot Merriman a third time.
The jury found Pearson guilty of first-degree premeditated murder and unlawful
possession of a firearm. The district court sentenced him to life in prison without the
possibility of release for the first-degree premeditated murder conviction and, concurrently,
to 60 months for the unlawful possession of a firearm conviction.
Pearson filed a direct appeal, which was stayed to allow him to pursue
postconviction relief. In his first petition for postconviction relief, Pearson argued, among
other things, that his trial counsel was ineffective in her cross-examination of W.M.
Specifically, Pearson argued that after W.M. testified that Merriman was a peacemaker,
trial counsel should have asked W.M. if he was aware of prior bad acts that Merriman
committed as a juvenile. The postconviction court denied Pearson’s petition. In a
consolidated appeal, we affirmed Pearson’s convictions and the denial of his first
postconviction petition. State v. Pearson, 775 N.W.2d 155, 158 (Minn. 2009). We
explained in part that Pearson’s claim of ineffective assistance of trial counsel failed
because the decision not to cross-examine W.M. involved unreviewable trial strategy. Id.
at 165.
In December 2014, Pearson filed a second petition for postconviction relief in which
he raised three primary claims.3 First, he alleged that newly discovered evidence existed
in the form of an affidavit signed by J.B., who claimed he witnessed the shooting.4 Second,
Pearson alleged that trial counsel was ineffective when she advised him to decline a plea
offer for second-degree murder. Third, he alleged that he received ineffective assistance
from the attorney who represented him in his first postconviction proceeding. According
to Pearson, postconviction counsel was ineffective in (1) failing to call W.M. to establish
a claim of ineffective assistance of trial counsel and (2) advising Pearson to withdraw a
conflict of interest claim against his trial attorney.5 Although the State agreed that the
postconviction court should hold an evidentiary hearing on the newly discovered evidence
claim, it argued that the claims for ineffective assistance of counsel not only lacked merit
but also were barred by Minnesota Statutes § 590.01, subd. 4(a), (c) (2016), and State v.
Knaffla, 243 N.W.2d 737, 741 (Minn. 1976).
The postconviction court summarily denied Pearson’s claims of ineffective
assistance of counsel and scheduled an evidentiary hearing on the claim of newly
discovered evidence. At the evidentiary hearing, J.B. testified as follows. He has a child
with Pearson’s sister and also helped raise her older child from a very young age.6 He also
was in prison with Pearson in the Oak Park Heights Correctional Facility at various times
before November 2014. Although J.B. never saw the court files, briefs, or other materials
relating to Pearson’s direct appeal or first petition for postconviction relief, he did see our
opinion on the matter. In July 2015, nine years after the shooting and almost six years after
our opinion was filed in Pearson’s first appeal, J.B. signed an affidavit alleging that he
witnessed the shooting.
According to J.B., a tan van with two occupants backed into a parking spot outside
Pearson’s apartment building. J.B., who was at an apartment in the same building with
Pearson’s sister, testified that he heard the driver call Pearson to the van and saw Pearson
enter its front passenger side. J.B. could not hear anything that occurred inside the van,
but he did see the van “rock” a minute or two after Pearson entered. J.B. provided
inconsistent descriptions of the timing of the gunshots. For example, J.B. testified that he
heard only “one gunshot” before W.M. exited the van but that he saw “several flashes
inside the van” over the same period. J.B. admitted that he never saw Pearson, W.M., or
Merriman with a gun. After the shooting, J.B. went inside and told Pearson’s sister what
he saw. J.B. admitted that shortly after the shooting, he spoke with the police and told
them that he did not see anything and that he was somewhere else when the shooting
occurred. J.B. claimed that he lied to the police because he did not want to be involved.
The postconviction court found J.B.’s testimony to be doubtful for several reasons:
(1) J.B. admitted prior untruthfulness to police; (2) J.B.’s statement was made nine years
after the shooting; (3) J.B. was serving time in the same prison as Pearson when he made
the statement; (4) J.B.’s statement was not corroborated by others (including Pearson’s
sister); and (5) J.B.’s statement was “fuzzy and contradictory” on several important details.
Based on these findings, the court concluded that Pearson failed to establish one of the
requirements of the newly discovered evidence test set forth in Rainer v. State, 566 N.W.2d
692, 695 (Minn. 1997) (explaining that the third requirement of the newly discovered
evidence test is that the evidence not be “cumulative, impeaching, or doubtful”).7 The
postconviction court therefore denied Pearson’s motion for a new trial based on his claim
of newly discovered evidence and dismissed his postconviction petition. This appeal
followed.
ANALYSIS
Pearson contends that the postconviction court abused its discretion when it denied
his request for a new trial based on a claim of newly discovered evidence and denied his
claims for ineffective assistance of counsel. We review the denial of a petition for
postconviction relief for an abuse of discretion. Erickson v. State, 842 N.W.2d 314, 318
(Minn. 2014). A postconviction court abuses its discretion when it has “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.” Rhodes v. State, 875 N.W.2d 779,
786 (Minn. 2016) (quoting Brown v. State, 863 N.W.2d 781, 786 (Minn. 2015)). Legal
issues are reviewed de novo, but our review of factual issues “is limited to whether there
is sufficient evidence in the record to sustain the postconviction court’s findings.” Matakis
v. State, 862 N.W.2d 33, 36 (Minn. 2015) (quoting Vance v. State, 752 N.W.2d 509, 512
(Minn. 2008)). Put differently, “[w]e do not reverse the postconviction court’s findings
unless they are clearly erroneous.” Carridine v. State, 867 N.W.2d 488, 496 (Minn. 2015).
I.
We first address Pearson’s contention that the postconviction court abused its
discretion when it denied his request for a new trial based on a claim of newly discovered
evidence.
[T]o [obtain] a new trial based upon newly discovered evidence, a defendant must prove the following: (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.
Rainer, 566 N.W.2d at 695 (emphasis added). Because the requirements of the Rainer test
are stated in the conjunctive, Pearson must satisfy all four. Miles v. State, 840 N.W.2d 195,
201 (Minn. 2013).
Pearson contends that the record does not support the postconviction court’s finding
that J.B.’s testimony was doubtful. According to Pearson, J.B.’s testimony is compatible
with the physical evidence and any inconsistencies in his testimony are immaterial.
Whether the newly discovered evidence is doubtful is a question of fact. See Carridine,
867 N.W.2d at 497 (applying the clearly erroneous standard to the postconviction court’s
credibility findings); Doppler v. State, 771 N.W.2d 867, 875 (Minn. 2009) (same).
After carefully reviewing the record from the evidentiary hearing, we conclude that
the postconviction court’s finding that J.B.’s testimony was doubtful is not clearly
erroneous. J.B. initially told the police that he did not witness the shooting. Nine years
later, after serving time in the same prison as Pearson, J.B. claimed that he witnessed the
shooting. J.B.’s statement is not corroborated by others (including Pearson’s sister) and
his statement was, as the postconviction court put it, “fuzzy and contradictory” on several
important details. Finally, J.B.’s testimony did not account for the shattered van window.
Because the record supports the postconviction court’s finding that J.B.’s testimony was
doubtful, the court did not abuse its discretion when it denied Pearson’s request for a new
trial based on a claim of newly discovered evidence.
II.
We next address Pearson’s contention that the postconviction court abused its
discretion when it summarily denied his claim that trial counsel was ineffective when she
advised him to reject a plea offer for second-degree murder because she believed that the
State could not prove the element of premeditation. According to the State, the
postconviction court did not abuse its discretion in summarily denying this claim because
Pearson’s claim is procedurally barred by Knaffla, 243 N.W.2d at 741.
A postconviction court need not conduct an evidentiary hearing when the petitioner
alleges facts that, if true, are legally insufficient to entitle him to the requested relief. Bobo
v. State, 820 N.W.2d 511, 516 (Minn. 2012); see Minn. Stat. § 590.04, subd. 1 (2016).
Accordingly, a postconviction court may summarily deny a claim that is procedurally
barred by the Knaffla rule. Colbert v. State, 870 N.W.2d 616, 622 (Minn. 2015). Under
the Knaffla rule, “once a direct appeal has been taken, all claims raised in the direct appeal
and all claims that were known or should have been known but were not raised in the direct
appeal are procedurally barred.” Id. at 626 (emphasis omitted) (citing Black v. State, 560
N.W.2d 83, 85 (Minn. 1997)). A claim of ineffective assistance of trial counsel that cannot
be decided on the district court record because it requires additional evidence, however,
need not be brought on direct appeal and may be brought in a postconviction petition.
Torres v. State, 688 N.W.2d 569, 572 (Minn. 2004). But if such a claim could have been
raised in a previous postconviction petition, the Knaffla rule bars consideration of the claim
in a subsequent petition for postconviction relief. Williams v. State, 869 N.W.2d 316, 318
(Minn. 2015).
Here, Pearson knew or should have known about his claim of ineffective assistance
of trial counsel based on rejection of the plea offer no later than May 23, 2007, when the
jury returned a guilty verdict on the charge of first-degree premeditated murder. Thus,
even if the claim could not have been decided on the trial court record, the Knaffla rule still
applies because Pearson failed to raise this claim in his first petition for postconviction
relief.
Having concluded that the Knaffla rule bars Pearson’s claim that trial counsel was
ineffective, we next consider whether Pearson’s failure to raise the claim in an earlier
proceeding should be excused under one of the two exceptions to the Knaffla rule. Under
the first exception, a defendant’s failure to raise a claim may be excused when the claim is
“so novel that the legal basis was not available” in the earlier proceeding. Buggs v. State,
734 N.W.2d 272, 274 (Minn. 2007). Under the second exception, a defendant’s failure to
raise a claim may be excused when the claim has substantive merit and the petitioner did
not deliberately and inexcusably fail to raise the claim in a prior proceeding. Deegan v.
State, 711 N.W.2d 89, 94 (Minn. 2006). Pearson contends that his claim of ineffective
assistance of trial counsel satisfies both exceptions.
Pearson first argues that when he filed his first postconviction petition, no legal basis
existed for his claim of ineffective assistance of counsel. Specifically, he asserts that he
did not have the benefit of Lafler v. Cooper, in which the United States Supreme Court
said, “Defendants have a Sixth Amendment right to counsel, a right that extends to the
plea-bargaining process.” 566 U.S. 156, 162 (2012); see also Missouri v. Frye, 566 U.S.
133, 148-49 (2012).8 We disagree with Pearson’s argument.
Although Pearson did not have the benefit of Lafler and Frye when he filed his first
postconviction petition, he did have available to him the United States Supreme Court’s
decision in Hill v. Lockhart, 474 U.S. 52 (1985), and our decision in State v. Powell, 578
N.W.2d 727 (Minn. 1998). In Hill, the Supreme Court explained that its decision in
Strickland v. Washington, 466 U.S. 668 (1984) (establishing a two-prong test for
ineffective assistance claims) is “applicable to ineffective-assistance claims arising out of
the plea process.” 474 U.S. at 57. And, in Powell, we used a Strickland analysis when
considering the defendant’s claim that trial counsel was ineffective during plea
negotiations. 578 N.W.2d at 731-33. In light of Hill and Powell, Pearson’s claim of
ineffective assistance of trial counsel in the context of plea negotiation is not so novel that
the legal basis for this claim was unavailable to him earlier.
Pearson next argues that his claim of ineffective assistance of trial counsel satisfies
the second exception to the Knaffla rule because his claim has substantive merit and he did
not deliberately and inexcusably fail to raise the claim in the earlier proceedings. This
contention is meritless.
To succeed on the merits of his claim that trial counsel was ineffective when she
advised him to reject a plea offer for second-degree murder, Pearson was required to show
that (1) counsel’s performance fell below an objective standard of reasonableness and
466 U.S. at 694). Under the second requirement, a defendant must demonstrate a
“reasonable probability” that the defendant “would have accepted the plea,” “the plea offer
would have been presented to the court,” “the court would have accepted its terms,” and
the sentence “under the offer’s terms would have been less severe.” Id. at 164. Yet, in
support of his claim, Pearson simply alleged:
In or around June, 2006, the state offered Mr. Pearson a deal to plead guilty to second-degree murder, which had a maximum penalty of 40 years in prison and have all remaining counts dismissed. . . . Petitioner’s counsel deficiently advised Petitioner that the state could not prove the element of premeditation. Due to counsel’s deficient advice, Mr. Pearson elected to go to trial on the first-degree murder charges, was found guilty of that crime, and received a life sentence.
Because Pearson failed to allege any probability, much less a reasonable probability, that
he would have accepted the plea agreement and that the district court would have accepted
the plea agreement, his claim does not have substantive merit on its face. Moreover, an
erroneous strategic prediction about the outcome of a trial is not necessarily deficient
performance. See State v. Vang, 847 N.W.2d 248, 267-68 (Minn. 2014) (concluding that
if trial counsel advised Vang to reject the State’s plea offer and proceed to trial on a claim
of self-defense, the recommendation was not objectively unreasonable when Vang
presented evidence that he feared the victim, did not have an opportunity to retreat, and the
jury was instructed regarding self-defense).
In sum, Pearson’s claim that trial counsel was ineffective when she advised him to
reject a plea offer for second-degree murder because she believed that the State could not
prove the element of premeditation is procedurally barred. Pearson failed to raise the claim
in the earlier proceedings and he has not satisfied either of the exceptions to the Knaffla
rule.9 Accordingly, the postconviction court did not abuse its discretion by summarily
denying the claim.
III.
Finally, we consider Pearson’s contention that the postconviction court abused its
discretion when it summarily denied his claims of ineffective assistance of postconviction
counsel. For the reasons that follow, we conclude that the postconviction court did not
abuse its discretion because, even if the facts alleged in the petition were proven by a fair
preponderance of the evidence, they fail to satisfy the Strickland requirements.10
Pearson argues that postconviction counsel provided him with ineffective assistance
at the first postconviction hearing in two separate ways. First, he asserts that
postconviction counsel was ineffective when she failed to call W.M. to testify at the first
postconviction hearing. According to Pearson, postconviction counsel should have called
W.M. to show that trial counsel’s failure to cross-examine W.M. during trial about
Merriman’s prior bad acts (to impeach W.M.’s statement that Merriman was a
“peacemaker”) was ineffective assistance. Second, Pearson contends that postconviction
counsel was ineffective in advising him to withdraw a claim of ineffective assistance of
trial counsel that was based on an alleged conflict of interest due to trial counsel’s previous
representation of Merriman.
To prevail on a claim of ineffective assistance of postconviction counsel that is
based on counsel’s alleged failure to raise an ineffective assistance of trial counsel claim,
a defendant must first establish that trial counsel was ineffective. Fields v. State, 733
N.W.2d 465, 468 (Minn. 2007) (“[B]ecause we conclude that all of Fields’ ineffective
assistance of trial counsel claims fail, we also conclude that all of Fields’ ineffective
assistance of appellate counsel claims fail.”). Trial counsel is ineffective if her
representation fell below an objective standard of reasonableness and a reasonable
probability exists that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. State v. Robertson, 884 N.W.2d 864, 876-77 (Minn. 2016). In
determining whether the defendant has satisfied the prejudice requirement, we consider the
totality of the evidence before the jury. State v. Rhodes, 657 N.W.2d 823, 842 (Minn.
2003). We need not address both requirements if one is determinative. Id.
Although findings of fact made during the course of deciding an ineffective
assistance claim are subject to the clearly erroneous standard, the postconviction court’s
analysis of the two Strickland requirements is subject to de novo review because “the
performance and prejudice components of the ineffectiveness inquiry [involve] mixed
questions of law and fact.” Strickland, 466 U.S. at 698; see also Rhodes, 657 N.W.2d at
842 (“As ineffective assistance of counsel claims involve mixed questions of law and fact,
our standard of review is de novo.”).
For the reasons that follow, we conclude that even if the facts alleged in the petition
were proven by a fair preponderance of the evidence, they fail to establish that trial counsel
was ineffective. Therefore Pearson is entitled to no relief on his claims of ineffective
assistance of postconviction counsel.
To show that he was prejudiced by trial counsel’s failure to cross-examine W.M.
about Merriman’s prior bad acts, Pearson alleged that W.M. knew that Merriman had been
adjudicated delinquent for several violent offenses, including a robbery in which the victim
was shot after Merriman entered the victim’s vehicle. According to Pearson, if trial counsel
had impeached W.M.’s testimony with evidence regarding Merriman’s involvement in this
robbery, a reasonable probability exists that the outcome of the trial would have been
different.
Based on our review of the totality of the evidence before the jury, we disagree. The
physical evidence, including the broken window and the bullet trajectories, completely
undermined Pearson’s claim of self-defense. Moreover, Pearson’s own testimony failed to
explain how he was able to retrieve his revolver from the front pocket of his jeans and fire
it three separate times, which required him to cock the gun each time before firing, without
Merriman being able to fire his gun once—despite Merriman being the first to draw a
weapon, according to Pearson.
17
Given this evidence, we conclude that no reasonable probability exists that the
outcome of the trial would have been different had trial counsel cross-examined W.M.
about Merriman’s prior bad acts. Because the facts alleged by Pearson fail to establish that
he was prejudiced by trial counsel’s failure to cross-examine W.M. about Merriman’s prior
bad acts, Pearson is not entitled to relief on his claim that postconviction counsel was
ineffective when she failed to call W.M. as a witness at the first postconviction hearing in
support of the underlying claim of ineffective assistance of trial counsel.11
To demonstrate that trial counsel was ineffective based on an alleged conflict of
interest, Pearson asserted that trial counsel represented Merriman in a proceeding in March
2005; trial counsel represented Pearson at the trial for Merriman’s murder in which
Pearson’s strategy was to claim self-defense; the claim of self-defense required counsel to
show that Merriman had “a history of violence”; and to show this history, counsel arguably
needed to cross-examine W.M. on Merriman’s prior bad acts. Even if proven by a
preponderance of the evidence, the facts do not demonstrate that trial counsel actively
represented conflicting interests; nor do they demonstrate that the supposed conflict
adversely affected Pearson’s trial counsel’s performance.
“[T]he possibility of conflict is insufficient to impugn a criminal conviction.”
Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (emphasis added). Generally, “any
deficiencies in counsel’s performance must be prejudicial . . . to constitute ineffective
assistance,” Strickland, 466 U.S. at 692, but in some contexts, prejudice is presumed, id.
For conflicts of interest, “[p]rejudice is presumed only if the defendant demonstrates that
counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest
adversely affected his lawyer’s performance.’ ” Id. (quoting Cuyler, 446 U.S. at 350).
“[U]ntil a defendant shows that his counsel actively represented conflicting interests, he
has not established the constitutional predicate for his claim of ineffective assistance.”
Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991).
To determine whether a lawyer has a conflict of interest, we turn to the Minnesota
Rules of Professional Conduct. See State v. Patterson, 812 N.W.2d 106, 112 (Minn. 2012)
(applying the Minnesota Rules of Professional Conduct to determine whether an attorney
had a conflict of interest in a criminal case). To establish that his trial counsel had a conflict
of interest, Pearson must show that “a significant risk” existed that his lawyer’s
representation would be materially limited by the lawyer’s responsibilities to a former
client. Minn. R. Prof. Conduct 1.7 (stating that “a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest,” which includes responsibilities
to a former client). “A lawyer who has formerly represented a client in a matter . . . shall
not thereafter: . . . use information relating to the representation to the disadvantage of the
former client except . . . when the information has become generally known.” Minn. R.
Prof. Conduct 1.9(c)(1).
Here, trial counsel did not need to use confidential information from her previous
representation of Merriman to cross-examine W.M., and her representation of Merriman
in 2005 was unrelated to her representation of Pearson in 2007. See Patterson, 812 N.W.2d
at 112 (concluding that a conflict of interest existed when a prior representation was
substantially related to a current representation and that to effectively cross-examine a
former-client witness, a substantial risk existed that counsel would use confidential
information obtained through the prior representation to materially advance the defense).
Moreover, as the postconviction court observed, Merriman’s “juvenile record, although
confidential, was known to the Defense before trial not by virtue of any confidential
information trial counsel received from [Merriman], but was instead contained in a
computer printout defense obtained, likely through discovery, prior to the trial.” Under the
Minnesota Rules of Professional Conduct, the use of such generally known information is
permitted. Because the facts alleged by Pearson fail to establish that trial counsel was
ineffective based on a conflict of interest, Pearson is not entitled to relief on his claim that
postconviction counsel was ineffective when she advised him to withdraw the claim of
ineffective assistance of trial counsel. Accordingly, the postconviction court did not abuse
its discretion when it summarily denied this claim.
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The State charged Pearson with first-degree premeditated murder, Minn. Stat.
§ 609.185(a)(1) (2016); second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1)
(2016); and the unlawful possession of a firearm, Minn. Stat. § 624.713, subd. 1 (2006), in
connection with the shooting death of Corodarl Merriman.1 Pearson pleaded not guilty on
all counts.
At trial, the State presented the following evidence. On April 22, 2006, Merriman
and W.M. drove a van to Pearson’s apartment building to purchase controlled substances
from Pearson. When they arrived, Pearson told W.M., the van’s driver, to step out of the
van. W.M. followed his instructions, leaving Merriman in the front passenger seat. When
W.M. asked to see the drugs, Pearson pulled out a gun and fired a shot at W.M.’s head.
The bullet missed and W.M. retreated toward an alley. Pearson approached the van and
began shooting. As Merriman attempted to move from the front passenger seat to the back
of the van, Pearson fired one shot into the van’s front passenger window, breaking it.
Pearson then opened the front passenger door of the van, kneeled over the seat, and fatally
shot Merriman. According to the assistant medical examiner, Merriman’s death was
caused by multiple gunshot wounds. She opined that the gunshot wound to Merriman’s
right thigh was consistent with a bullet that traveled through the front passenger window,
striking Merriman while he was sitting in the front passenger seat.2 When the prosecutor
asked W.M. whether Merriman was “ever in trouble,” W.M. replied: “No. He was
basically a peacemaker. I mean, he had his, you know, problems, but he was a
peacemaker.”
Pearson chose to testify. He told the jurors that W.M. told him to get in the
passenger seat of the van. Once inside the van, Pearson saw that W.M. had a baseball bat.
W.M. told Pearson, “[Y]ou know what it is,” at which point, Merriman, who was seated in
the rear of the van, pulled out a gun. Pearson retrieved his own gun from the front right
pocket of his jeans and shot Merriman in the leg. W.M. then ran away from the van.
Pearson tried to follow W.M. out the driver’s side of the van, but Merriman pulled
Pearson’s arm toward him so Pearson shot Merriman a second time. Pearson testified that
after shooting Merriman the second time, Merriman again pulled him into the back of the
van, at which point Pearson shot Merriman a third time.
The jury found Pearson guilty of first-degree premeditated murder and unlawful
possession of a firearm. The district court sentenced him to life in prison without the
possibility of release for the first-degree premeditated murder conviction and, concurrently,
to 60 months for the unlawful possession of a firearm conviction.
Pearson filed a direct appeal, which was stayed to allow him to pursue
postconviction relief. In his first petition for postconviction relief, Pearson argued, among
other things, that his trial counsel was ineffective in her cross-examination of W.M.
Specifically, Pearson argued that after W.M. testified that Merriman was a peacemaker,
trial counsel should have asked W.M. if he was aware of prior bad acts that Merriman
committed as a juvenile. The postconviction court denied Pearson’s petition. In a
consolidated appeal, we affirmed Pearson’s convictions and the denial of his first
postconviction petition. State v. Pearson, 775 N.W.2d 155, 158 (Minn. 2009). We
explained in part that Pearson’s claim of ineffective assistance of trial counsel failed
because the decision not to cross-examine W.M. involved unreviewable trial strategy. Id.
at 165.
In December 2014, Pearson filed a second petition for postconviction relief in which
he raised three primary claims.3 First, he alleged that newly discovered evidence existed
in the form of an affidavit signed by J.B., who claimed he witnessed the shooting.4 Second,
Pearson alleged that trial counsel was ineffective when she advised him to decline a plea
offer for second-degree murder. Third, he alleged that he received ineffective assistance
from the attorney who represented him in his first postconviction proceeding. According
to Pearson, postconviction counsel was ineffective in (1) failing to call W.M. to establish
a claim of ineffective assistance of trial counsel and (2) advising Pearson to withdraw a
conflict of interest claim against his trial attorney.5 Although the State agreed that the
postconviction court should hold an evidentiary hearing on the newly discovered evidence
claim, it argued that the claims for ineffective assistance of counsel not only lacked merit
but also were barred by Minnesota Statutes § 590.01, subd. 4(a), (c) (2016), and State v.
Knaffla, 243 N.W.2d 737, 741 (Minn. 1976).
The postconviction court summarily denied Pearson’s claims of ineffective
assistance of counsel and scheduled an evidentiary hearing on the claim of newly
discovered evidence. At the evidentiary hearing, J.B. testified as follows. He has a child
with Pearson’s sister and also helped raise her older child from a very young age.6 He also
was in prison with Pearson in the Oak Park Heights Correctional Facility at various times
before November 2014. Although J.B. never saw the court files, briefs, or other materials
relating to Pearson’s direct appeal or first petition for postconviction relief, he did see our
opinion on the matter. In July 2015, nine years after the shooting and almost six years after
our opinion was filed in Pearson’s first appeal, J.B. signed an affidavit alleging that he
witnessed the shooting.
According to J.B., a tan van with two occupants backed into a parking spot outside
Pearson’s apartment building. J.B., who was at an apartment in the same building with
Pearson’s sister, testified that he heard the driver call Pearson to the van and saw Pearson
enter its front passenger side. J.B. could not hear anything that occurred inside the van,
but he did see the van “rock” a minute or two after Pearson entered. J.B. provided
inconsistent descriptions of the timing of the gunshots. For example, J.B. testified that he
heard only “one gunshot” before W.M. exited the van but that he saw “several flashes
inside the van” over the same period. J.B. admitted that he never saw Pearson, W.M., or
Merriman with a gun. After the shooting, J.B. went inside and told Pearson’s sister what
he saw. J.B. admitted that shortly after the shooting, he spoke with the police and told
them that he did not see anything and that he was somewhere else when the shooting
occurred. J.B. claimed that he lied to the police because he did not want to be involved.
The postconviction court found J.B.’s testimony to be doubtful for several reasons:
(1) J.B. admitted prior untruthfulness to police; (2) J.B.’s statement was made nine years
after the shooting; (3) J.B. was serving time in the same prison as Pearson when he made
the statement; (4) J.B.’s statement was not corroborated by others (including Pearson’s
sister); and (5) J.B.’s statement was “fuzzy and contradictory” on several important details.
Based on these findings, the court concluded that Pearson failed to establish one of the
requirements of the newly discovered evidence test set forth in Rainer v. State, 566 N.W.2d
692, 695 (Minn. 1997) (explaining that the third requirement of the newly discovered
evidence test is that the evidence not be “cumulative, impeaching, or doubtful”).7 The
postconviction court therefore denied Pearson’s motion for a new trial based on his claim
of newly discovered evidence and dismissed his postconviction petition. This appeal
followed.
ANALYSIS
Pearson contends that the postconviction court abused its discretion when it denied
his request for a new trial based on a claim of newly discovered evidence and denied his
claims for ineffective assistance of counsel. We review the denial of a petition for
postconviction relief for an abuse of discretion. Erickson v. State, 842 N.W.2d 314, 318
(Minn. 2014). A postconviction court abuses its discretion when it has “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.” Rhodes v. State, 875 N.W.2d 779,
786 (Minn. 2016) (quoting Brown v. State, 863 N.W.2d 781, 786 (Minn. 2015)). Legal
issues are reviewed de novo, but our review of factual issues “is limited to whether there
is sufficient evidence in the record to sustain the postconviction court’s findings.” Matakis
v. State, 862 N.W.2d 33, 36 (Minn. 2015) (quoting Vance v. State, 752 N.W.2d 509, 512
(Minn. 2008)). Put differently, “[w]e do not reverse the postconviction court’s findings
unless they are clearly erroneous.” Carridine v. State, 867 N.W.2d 488, 496 (Minn. 2015).
I.
We first address Pearson’s contention that the postconviction court abused its
discretion when it denied his request for a new trial based on a claim of newly discovered
evidence.
[T]o [obtain] a new trial based upon newly discovered evidence, a defendant must prove the following: (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.
Rainer, 566 N.W.2d at 695 (emphasis added). Because the requirements of the Rainer test
are stated in the conjunctive, Pearson must satisfy all four. Miles v. State, 840 N.W.2d 195,
201 (Minn. 2013).
Pearson contends that the record does not support the postconviction court’s finding
that J.B.’s testimony was doubtful. According to Pearson, J.B.’s testimony is compatible
with the physical evidence and any inconsistencies in his testimony are immaterial.
Whether the newly discovered evidence is doubtful is a question of fact. See Carridine,
867 N.W.2d at 497 (applying the clearly erroneous standard to the postconviction court’s
credibility findings); Doppler v. State, 771 N.W.2d 867, 875 (Minn. 2009) (same).
After carefully reviewing the record from the evidentiary hearing, we conclude that
the postconviction court’s finding that J.B.’s testimony was doubtful is not clearly
erroneous. J.B. initially told the police that he did not witness the shooting. Nine years
later, after serving time in the same prison as Pearson, J.B. claimed that he witnessed the
shooting. J.B.’s statement is not corroborated by others (including Pearson’s sister) and
his statement was, as the postconviction court put it, “fuzzy and contradictory” on several
important details. Finally, J.B.’s testimony did not account for the shattered van window.
Because the record supports the postconviction court’s finding that J.B.’s testimony was
doubtful, the court did not abuse its discretion when it denied Pearson’s request for a new
trial based on a claim of newly discovered evidence.
II.
We next address Pearson’s contention that the postconviction court abused its
discretion when it summarily denied his claim that trial counsel was ineffective when she
advised him to reject a plea offer for second-degree murder because she believed that the
State could not prove the element of premeditation. According to the State, the
postconviction court did not abuse its discretion in summarily denying this claim because
Pearson’s claim is procedurally barred by Knaffla, 243 N.W.2d at 741.
A postconviction court need not conduct an evidentiary hearing when the petitioner
alleges facts that, if true, are legally insufficient to entitle him to the requested relief. Bobo
v. State, 820 N.W.2d 511, 516 (Minn. 2012); see Minn. Stat. § 590.04, subd. 1 (2016).
Accordingly, a postconviction court may summarily deny a claim that is procedurally
barred by the Knaffla rule. Colbert v. State, 870 N.W.2d 616, 622 (Minn. 2015). Under
the Knaffla rule, “once a direct appeal has been taken, all claims raised in the direct appeal
and all claims that were known or should have been known but were not raised in the direct
appeal are procedurally barred.” Id. at 626 (emphasis omitted) (citing Black v. State, 560
N.W.2d 83, 85 (Minn. 1997)). A claim of ineffective assistance of trial counsel that cannot
be decided on the district court record because it requires additional evidence, however,
need not be brought on direct appeal and may be brought in a postconviction petition.
Torres v. State, 688 N.W.2d 569, 572 (Minn. 2004). But if such a claim could have been
raised in a previous postconviction petition, the Knaffla rule bars consideration of the claim
in a subsequent petition for postconviction relief. Williams v. State, 869 N.W.2d 316, 318
(Minn. 2015).
Here, Pearson knew or should have known about his claim of ineffective assistance
of trial counsel based on rejection of the plea offer no later than May 23, 2007, when the
jury returned a guilty verdict on the charge of first-degree premeditated murder. Thus,
even if the claim could not have been decided on the trial court record, the Knaffla rule still
applies because Pearson failed to raise this claim in his first petition for postconviction
relief.
Having concluded that the Knaffla rule bars Pearson’s claim that trial counsel was
ineffective, we next consider whether Pearson’s failure to raise the claim in an earlier
proceeding should be excused under one of the two exceptions to the Knaffla rule. Under
the first exception, a defendant’s failure to raise a claim may be excused when the claim is
“so novel that the legal basis was not available” in the earlier proceeding. Buggs v. State,
734 N.W.2d 272, 274 (Minn. 2007). Under the second exception, a defendant’s failure to
raise a claim may be excused when the claim has substantive merit and the petitioner did
not deliberately and inexcusably fail to raise the claim in a prior proceeding. Deegan v.
State, 711 N.W.2d 89, 94 (Minn. 2006). Pearson contends that his claim of ineffective
assistance of trial counsel satisfies both exceptions.
Pearson first argues that when he filed his first postconviction petition, no legal basis
existed for his claim of ineffective assistance of counsel. Specifically, he asserts that he
did not have the benefit of Lafler v. Cooper, in which the United States Supreme Court
said, “Defendants have a Sixth Amendment right to counsel, a right that extends to the
plea-bargaining process.” 566 U.S. 156, 162 (2012); see also Missouri v. Frye, 566 U.S.
133, 148-49 (2012).8 We disagree with Pearson’s argument.
Although Pearson did not have the benefit of Lafler and Frye when he filed his first
postconviction petition, he did have available to him the United States Supreme Court’s
decision in Hill v. Lockhart, 474 U.S. 52 (1985), and our decision in State v. Powell, 578
N.W.2d 727 (Minn. 1998). In Hill, the Supreme Court explained that its decision in
Strickland v. Washington, 466 U.S. 668 (1984) (establishing a two-prong test for
ineffective assistance claims) is “applicable to ineffective-assistance claims arising out of
the plea process.” 474 U.S. at 57. And, in Powell, we used a Strickland analysis when
considering the defendant’s claim that trial counsel was ineffective during plea
negotiations. 578 N.W.2d at 731-33. In light of Hill and Powell, Pearson’s claim of
ineffective assistance of trial counsel in the context of plea negotiation is not so novel that
the legal basis for this claim was unavailable to him earlier.
Pearson next argues that his claim of ineffective assistance of trial counsel satisfies
the second exception to the Knaffla rule because his claim has substantive merit and he did
not deliberately and inexcusably fail to raise the claim in the earlier proceedings. This
contention is meritless.
To succeed on the merits of his claim that trial counsel was ineffective when she
advised him to reject a plea offer for second-degree murder, Pearson was required to show
that (1) counsel’s performance fell below an objective standard of reasonableness and
466 U.S. at 694). Under the second requirement, a defendant must demonstrate a
“reasonable probability” that the defendant “would have accepted the plea,” “the plea offer
would have been presented to the court,” “the court would have accepted its terms,” and
the sentence “under the offer’s terms would have been less severe.” Id. at 164. Yet, in
support of his claim, Pearson simply alleged:
In or around June, 2006, the state offered Mr. Pearson a deal to plead guilty to second-degree murder, which had a maximum penalty of 40 years in prison and have all remaining counts dismissed. . . . Petitioner’s counsel deficiently advised Petitioner that the state could not prove the element of premeditation. Due to counsel’s deficient advice, Mr. Pearson elected to go to trial on the first-degree murder charges, was found guilty of that crime, and received a life sentence.
Because Pearson failed to allege any probability, much less a reasonable probability, that
he would have accepted the plea agreement and that the district court would have accepted
the plea agreement, his claim does not have substantive merit on its face. Moreover, an
erroneous strategic prediction about the outcome of a trial is not necessarily deficient
performance. See State v. Vang, 847 N.W.2d 248, 267-68 (Minn. 2014) (concluding that
if trial counsel advised Vang to reject the State’s plea offer and proceed to trial on a claim
of self-defense, the recommendation was not objectively unreasonable when Vang
presented evidence that he feared the victim, did not have an opportunity to retreat, and the
jury was instructed regarding self-defense).
In sum, Pearson’s claim that trial counsel was ineffective when she advised him to
reject a plea offer for second-degree murder because she believed that the State could not
prove the element of premeditation is procedurally barred. Pearson failed to raise the claim
in the earlier proceedings and he has not satisfied either of the exceptions to the Knaffla
rule.9 Accordingly, the postconviction court did not abuse its discretion by summarily
denying the claim.
III.
Finally, we consider Pearson’s contention that the postconviction court abused its
discretion when it summarily denied his claims of ineffective assistance of postconviction
counsel. For the reasons that follow, we conclude that the postconviction court did not
abuse its discretion because, even if the facts alleged in the petition were proven by a fair
preponderance of the evidence, they fail to satisfy the Strickland requirements.10
Pearson argues that postconviction counsel provided him with ineffective assistance
at the first postconviction hearing in two separate ways. First, he asserts that
postconviction counsel was ineffective when she failed to call W.M. to testify at the first
postconviction hearing. According to Pearson, postconviction counsel should have called
W.M. to show that trial counsel’s failure to cross-examine W.M. during trial about
Merriman’s prior bad acts (to impeach W.M.’s statement that Merriman was a
“peacemaker”) was ineffective assistance. Second, Pearson contends that postconviction
counsel was ineffective in advising him to withdraw a claim of ineffective assistance of
trial counsel that was based on an alleged conflict of interest due to trial counsel’s previous
representation of Merriman.
To prevail on a claim of ineffective assistance of postconviction counsel that is
based on counsel’s alleged failure to raise an ineffective assistance of trial counsel claim,
a defendant must first establish that trial counsel was ineffective. Fields v. State, 733
N.W.2d 465, 468 (Minn. 2007) (“[B]ecause we conclude that all of Fields’ ineffective
assistance of trial counsel claims fail, we also conclude that all of Fields’ ineffective
assistance of appellate counsel claims fail.”). Trial counsel is ineffective if her
representation fell below an objective standard of reasonableness and a reasonable
probability exists that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. State v. Robertson, 884 N.W.2d 864, 876-77 (Minn. 2016). In
determining whether the defendant has satisfied the prejudice requirement, we consider the
totality of the evidence before the jury. State v. Rhodes, 657 N.W.2d 823, 842 (Minn.
2003). We need not address both requirements if one is determinative. Id.
Although findings of fact made during the course of deciding an ineffective
assistance claim are subject to the clearly erroneous standard, the postconviction court’s
analysis of the two Strickland requirements is subject to de novo review because “the
performance and prejudice components of the ineffectiveness inquiry [involve] mixed
questions of law and fact.” Strickland, 466 U.S. at 698; see also Rhodes, 657 N.W.2d at
842 (“As ineffective assistance of counsel claims involve mixed questions of law and fact,
our standard of review is de novo.”).
For the reasons that follow, we conclude that even if the facts alleged in the petition
were proven by a fair preponderance of the evidence, they fail to establish that trial counsel
was ineffective. Therefore Pearson is entitled to no relief on his claims of ineffective
assistance of postconviction counsel.
To show that he was prejudiced by trial counsel’s failure to cross-examine W.M.
about Merriman’s prior bad acts, Pearson alleged that W.M. knew that Merriman had been
adjudicated delinquent for several violent offenses, including a robbery in which the victim
was shot after Merriman entered the victim’s vehicle. According to Pearson, if trial counsel
had impeached W.M.’s testimony with evidence regarding Merriman’s involvement in this
robbery, a reasonable probability exists that the outcome of the trial would have been
different.
Based on our review of the totality of the evidence before the jury, we disagree. The
physical evidence, including the broken window and the bullet trajectories, completely
undermined Pearson’s claim of self-defense. Moreover, Pearson’s own testimony failed to
explain how he was able to retrieve his revolver from the front pocket of his jeans and fire
it three separate times, which required him to cock the gun each time before firing, without
Merriman being able to fire his gun once—despite Merriman being the first to draw a
weapon, according to Pearson.
17
Given this evidence, we conclude that no reasonable probability exists that the
outcome of the trial would have been different had trial counsel cross-examined W.M.
about Merriman’s prior bad acts. Because the facts alleged by Pearson fail to establish that
he was prejudiced by trial counsel’s failure to cross-examine W.M. about Merriman’s prior
bad acts, Pearson is not entitled to relief on his claim that postconviction counsel was
ineffective when she failed to call W.M. as a witness at the first postconviction hearing in
support of the underlying claim of ineffective assistance of trial counsel.11
To demonstrate that trial counsel was ineffective based on an alleged conflict of
interest, Pearson asserted that trial counsel represented Merriman in a proceeding in March
2005; trial counsel represented Pearson at the trial for Merriman’s murder in which
Pearson’s strategy was to claim self-defense; the claim of self-defense required counsel to
show that Merriman had “a history of violence”; and to show this history, counsel arguably
needed to cross-examine W.M. on Merriman’s prior bad acts. Even if proven by a
preponderance of the evidence, the facts do not demonstrate that trial counsel actively
represented conflicting interests; nor do they demonstrate that the supposed conflict
adversely affected Pearson’s trial counsel’s performance.
“[T]he possibility of conflict is insufficient to impugn a criminal conviction.”
Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (emphasis added). Generally, “any
deficiencies in counsel’s performance must be prejudicial . . . to constitute ineffective
assistance,” Strickland, 466 U.S. at 692, but in some contexts, prejudice is presumed, id.
For conflicts of interest, “[p]rejudice is presumed only if the defendant demonstrates that
counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest
adversely affected his lawyer’s performance.’ ” Id. (quoting Cuyler, 446 U.S. at 350).
“[U]ntil a defendant shows that his counsel actively represented conflicting interests, he
has not established the constitutional predicate for his claim of ineffective assistance.”
Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991).
To determine whether a lawyer has a conflict of interest, we turn to the Minnesota
Rules of Professional Conduct. See State v. Patterson, 812 N.W.2d 106, 112 (Minn. 2012)
(applying the Minnesota Rules of Professional Conduct to determine whether an attorney
had a conflict of interest in a criminal case). To establish that his trial counsel had a conflict
of interest, Pearson must show that “a significant risk” existed that his lawyer’s
representation would be materially limited by the lawyer’s responsibilities to a former
client. Minn. R. Prof. Conduct 1.7 (stating that “a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest,” which includes responsibilities
to a former client). “A lawyer who has formerly represented a client in a matter . . . shall
not thereafter: . . . use information relating to the representation to the disadvantage of the
former client except . . . when the information has become generally known.” Minn. R.
Prof. Conduct 1.9(c)(1).
Here, trial counsel did not need to use confidential information from her previous
representation of Merriman to cross-examine W.M., and her representation of Merriman
in 2005 was unrelated to her representation of Pearson in 2007. See Patterson, 812 N.W.2d
at 112 (concluding that a conflict of interest existed when a prior representation was
substantially related to a current representation and that to effectively cross-examine a
former-client witness, a substantial risk existed that counsel would use confidential
information obtained through the prior representation to materially advance the defense).
Moreover, as the postconviction court observed, Merriman’s “juvenile record, although
confidential, was known to the Defense before trial not by virtue of any confidential
information trial counsel received from [Merriman], but was instead contained in a
computer printout defense obtained, likely through discovery, prior to the trial.” Under the
Minnesota Rules of Professional Conduct, the use of such generally known information is
permitted. Because the facts alleged by Pearson fail to establish that trial counsel was
ineffective based on a conflict of interest, Pearson is not entitled to relief on his claim that
postconviction counsel was ineffective when she advised him to withdraw the claim of
ineffective assistance of trial counsel. Accordingly, the postconviction court did not abuse
its discretion when it summarily denied this claim.
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About This Case
What was the outcome of Larry Demetrius Pearson vs. State of Minnesota?
The outcome was: < For the foregoing reasons, we affirm the order denying Pearson’s second postconviction petition. Affirmed. >
Which court heard Larry Demetrius Pearson vs. State of Minnesota?
This case was heard in STATE OF MINNESOTA IN SUPREME COURT, MN. The presiding judge was Margaret H. Chutich.
Who were the attorneys in Larry Demetrius Pearson vs. State of Minnesota?
Plaintiff's attorney: Lori Swanson, Attorney General John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney. Defendant's attorney: Zachary Longsdorf.
When was Larry Demetrius Pearson vs. State of Minnesota decided?
This case was decided on March 25, 2017.