Doppler v. State

ANDERSON, PAUL H., Justice

(concurring in part and dissenting in part).

I concur in part and respectfully dissent in part. I agree with the majority that the affidavit of Rhonda Hanestad was properly Knaffla-barred, and that the affidavits and testimony of Heather Doppler Schultz and Joshua Doppler did not satisfy the Larri-son or Rainer tests. But I disagree with the majority’s conclusion that Albert Logan’s affidavit did not merit an evidentiary hearing.

A petitioner’s burden of proof for a post-conviction evidentiary hearing is lower than his burden for a new trial. Opsahl v. State, 677 N.W.2d 414, 423 (Minn.2004). The postconviction court must hold an evi-dentiary hearing and make findings of fact and conclusions of law “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn.Stat. *876§ 590.04, subd. 1 (2008). To satisfy the requirements of Minn.Stat. § 590.04, subd. 1, the petitioner must allege in his petition “facts that, if proven, would entitle him to the requested relief.” Opsahl, 677 N.W.2d at 423 (citation omitted). The allegations must have factual support, and the post-conviction court must grant the evidentia-ry hearing whenever material facts are in dispute. Id. If the postconviction court has any doubts about whether to conduct a postconviction hearing, the doubts should be resolved in favor of granting the hearing. Id.

In paragraph 10 of a sworn affidavit submitted with petitioner’s third postcon-viction petition, Albert Logan stated, “I know that David Doppler did not kill Mike Sargent. At the time I was convinced David could not be helped.”1 The post-conviction court did not address this factual allegation when it denied petitioner’s request for an evidentiary hearing on Logan’s affidavit. In fact, it appears that the postconviction court may have had some doubts about what to do on this issue, because the court apparently neglected to remove a drafting comment from its February 28, 2008, Order and Memorandum indicating it struggled with how to address Logan’s allegation. The comment reads simply, “Logan and paragraph 10? ? ?”

Petitioner disputes that any shot he fired was or could have been the fatal shot. Rather, he contends that Keith Doppler also shot Sargent and that it was the bullets fired by Keith Doppler that caused Sargent’s death. Thus, whether petitioner fired the bullets that killed Sargent is a material fact in dispute here. We have already determined in State v. Doppler (Doppler I), 590 N.W.2d 627, 629 (Minn.1999), that the evidence presented at petitioner’s trial was sufficient to convict him of first-degree premeditated murder; nevertheless, substantial inconsistencies exist between the physical evidence and witnesses’ testimony at trial. The jury resolved those inconsistencies in a way that favored its guilty verdict. Under our standard of review, we did and should have affirmed that verdict. But new evidence could emerge that resolves those inconsistencies in petitioner’s favor.

The medical examiner who performed the autopsy on Michael Sargent testified at trial about the physical evidence presented in this case. The examiner testified that Sargent had sustained four gunshot wounds. In the examiner’s opinion, they occurred in the following order: the first shot grazed Sargent’s chin, the second shot hit Sargent in the back of the right thigh, the third shot was fired from above and into the back left side of Sargent’s head, and the fourth was fired directly into the back of Sargent’s head, from within three feet. The examiner testified that of these four shots, only the final two were serious enough to result in Sargent’s death. The examiner noted that the final shot passed through the back of Sargent’s sweatshirt and vest. This evidence suggests that Sargent had been pulled or picked up by his clothes before the firing *877of the final shot such that the clothes bunched up at the back of his head sometime between the firing of the first three shots and the firing of the final shot. A homicide inspector testified that there were powder burns on Sargent’s sweatshirt, which indicated that the final shot had been administered from close range. The inspector also testified that after Sargent was killed, his body was placed behind a tree.

In his confession, petitioner claimed that he was alone with Sargent the night of the shooting, but he later testified at trial that he omitted details about Keith Doppler’s and Rick Berry’s presence that night in an attempt to protect them from being implicated in the murder. Petitioner stated in his confession that he and Sargent had gotten out of the car to go to the bathroom, and that petitioner went back to the car, grabbed a gun that was underneath the seat, and shot Sargent. Petitioner said he was unsure how many times he shot Sargent. He indicated that Sargent did not try to run away. Petitioner stated that he did not move or hide the body and that he did not take anything from Sargent’s body. Petitioner provided no other details about the shooting in his confession.

At trial, petitioner expanded on his confession. He testified that he and Sargent had been arguing before pulling the car over to the side of the road and that their argument continued after they got out of the car. Petitioner testified that Sargent said “I’m going to kill you” and came at petitioner with a knife. Petitioner then shot a gun he had taken from the car into the air to warn Sargent. When Sargent continued coming at petitioner with the knife, petitioner pointed the gun at the ground and shot. Petitioner shot progressively higher as Sargent walked toward him. Petitioner testified he does not remember anything more about the incident until he, Keith Doppler, and Rick Berry drove away from the scene.

At trial, Rick Berry testified that after the men pulled over he walked approximately 40 to 50 feet into the woods from the driver’s side of the car. He had his back to the car when he heard gunfire and dropped to the ground. When he turned around, Berry saw the muzzle flash of several gunshots. One shot went down and the other two went forward. He could not see who was doing the shooting. Berry ran back to the car after the shooting ended and saw petitioner holding a gun. Petitioner said, “Mike came at me with a knife, and I shot him.” Berry testified that he did not see Sargent’s body.

Keith Doppler also testified at trial. He testified that after the men pulled over he walked about 20 feet into the woods from the passenger side of the car. He heard petitioner and Sargent screaming at each other, heard a slap or a smack like somebody got hit, and heard Sargent say “I’m going to kill you.” He heard petitioner say “get away.” Then he saw a flash of a handgun go “up in the air” and heard petitioner yell “get the f* *k away.” Keith Doppler began to run back to the car and heard a second shot as he ran. He could see Sargent was still standing after this second shot. Then Keith Doppler heard rapid shooting. When Keith Doppler reached the car, he heard the gun going “click, click, click, click, click.” Petitioner was on his knees on the passenger side of car, only a couple of feet away from the bottom of Sargent’s feet, crying and screaming. Keith Doppler grabbed petitioner and threw him in the car. Then Berry arrived at the car. The three men *878got in the car and started to drive away, but Keith Doppler decided he should stop and check on Sargent. He ran “down there” to Sargent’s body, grabbed Sargent’s left hand and checked for a pulse. He testified that there was none. He then reached into Sargent’s pocket and took Sargent’s driver’s license. Keith Doppler testified that he did not move Sargent’s body.

Petitioner’s confession and testimony, and the testimony of Keith Doppler and Rick Berry, plainly contradict the physical evidence submitted at trial. Most significantly, the testimony that petitioner fired repeatedly at Sargent as Sargent ran at petitioner is inconsistent with the medical examiner’s testimony that Sargent was pulled or picked up by his clothes and then shot execution-style in the back of the head from close range. None of the witnesses claim to have moved Sargent’s body, but forensic evidence indicated Sargent’s body was moved behind a tree after the final shot was administered.

Petitioner’s trial counsel did not advance the theory that Keith Doppler actually killed Sargent. But petitioner now claims that Keith Doppler fired the fatal shots. As factual support for this allegation, he provides sworn affidavits from Joshua Doppler, Heather Doppler Schultz, and Rhonda Hanestad that claim Keith Doppler has admitted to committing the murder, and the sworn affidavit of Albert Logan in which Logan claims he has actual knowledge of petitioner’s innocence. Han-estad’s claims are properly Knaffla-barred, and the court correctly concluded that Heather Doppler Schultz and Joshua Doppler’s testimony and affidavits did not satisfy the Larrison or Rainer tests. But Logan’s statements were not procedurally barred, and they should have been explored in an evidentiary hearing.

Given that there is a factual dispute about who actually killed Sargent, and given that Albert Logan claims to have personal knowledge that can resolve that dispute, I conclude that the postconviction court abused its discretion by prohibiting an evidentiary hearing on Logan’s affidavit. Admittedly, the allegation of petitioner’s innocence contained in Logan’s affidavit is bare bones. We would typically require a more detailed allegation before we would order a hearing, but under the facts and circumstances present in this ease, specifically the inconsistencies between the physical evidence and the testimony presented at trial, an evidentiary hearing on Logan’s claim is warranted. As we said in Opsahl, any doubt as to whether the postconviction court should order an evidentiary hearing should be resolved in favor of the hearing. See Opsahl, 677 N.W.2d at 423. Moreover, the postconviction court did conduct a limited evidentiary hearing on the affidavits of Heather Doppler Schultz and Joshua Doppler. It would not have required a significant additional expenditure of judicial resources to have included Logan as part of that hearing. I would reverse the postcon-viction court’s ruling as to Logan’s affidavit and remand for an evidentiary hearing to explore the claim made in paragraph 10 of Logan’s affidavit.

. The other paragraphs contained in Logan's affidavit support (1) Logan's allegation that he gave information to prosecutors "to avoid getting a life sentence at the age of 16,” and (2) Logan's allegation that Keith Doppler asked Logan and petitioner on multiple occasions "how much would it be worth to get rid of Mike Sargent.” Neither of these allegations are specific recantations of Logan’s trial testimony. Instead, they are new facts supporting petitioner's innocence. The court should have reviewed these allegations, as well as the allegation contained in paragraph 10 of Logan’s affidavit, under the Rainer test for newly-discovered evidence, and not under the Larrison test for recanted testimony.