Duncan v. State

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Carlos Kendall Duncan, petitioner, Appellant, v. State of Minnesota, Respondent.

No. A22-1487

Court of Appeals of Minnesota

July 31, 2023

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Ramsey County District Court File No. 62-CR-17-132

Howard Bass, Bass Law Firm, PLLC, Burnsville, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and John J Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Segal Chief Judge; and Slieter, Judge.

REILLY, Judge

Appellant challenges the denial of his petition for postconviction relief following his conviction of attempted second-degree murder. He argues that the postconviction court abused its discretion by denying relief because (1) he received ineffective assistance of trial counsel; and (2) newly discovered evidence that the victim recanted his trial testimony entitles him to a new trial. Because the postconviction court did not abuse its discretion in denying appellant's petition for postconviction relief, we affirm.

FACTS

In January 2017, respondent State of Minnesota charged appellant Carlos Kendall Duncan with two counts of second-degree assault. The state later amended the complaint to include two more counts of attempted second-degree intentional murder. The complaint alleged that Duncan was responsible for a shooting that occurred on January 3, 2017. The facts at trial established that on that day, a silver Mercedes SUV pulled up next to two men, X.S. and D.M., who were sitting in a car in the Dorothy Day Center parking lot in St. Paul. The driver of the silver Mercedes fired five shots into the car of X.S. and D.M. before driving off. The two men managed to drive to a nearby hospital, where they were treated for non-life-threatening injuries.

When the shooting occurred, two St. Paul sewer workers were nearby, and one called 911 to report the incident. The worker reported seeing the driver and described him as a "stocky" Black male, around 24 or 25 years old with "a scar or tattoo on his left eye," driving a silver Mercedes. The worker provided the 911 operator with the license plate of the car. Meanwhile, a police officer went to interview D.M. at the hospital. At first, D.M. was not forthcoming and told the officer that an unknown male in an unknown vehicle shot him. As the conversation continued D.M. described the shooter as a Black male with face tattoos driving a silver-colored vehicle. The officer was familiar with Duncan who went by the street name "Los" and believed that he fit the description D.M. provided. The officer asked D.M. whether it was possible that Los was responsible for the shooting. D.M. nodded and said, "yes." The officer showed D.M. a photo lineup that had been generated by a computer using randomly selected photographs based on the description of the shooter. D.M. identified Duncan in the photo lineup as the shooter. When the officers arrested Duncan a few days later, he was driving a silver Mercedes SUV with a license plate matching the one given by the city sewer worker.

In August 2017, the case proceeded to a jury trial. D.M. was served with a subpoena to testify on behalf of the state but failed to appear as ordered and indicated that he did not wish to testify. The district court issued a warrant. D.M. was arrested and placed in the Ramsey County jail until he testified. Duncan was also housed in the same jail during the trial. Duncan tried unsuccessfully to persuade D.M. not to testify.

When D.M. testified, he told the jury that on January 3, he and X.S. were sitting in the Dorothy Day parking lot when a "silver car" approached their car and "bullets just started flying from it." The prosecutor asked D.M. if he saw the person in the driver's seat of the silver vehicle and D.M. responded, "Yeah, I seen who it was." D.M. then identified Duncan in the courtroom as the driver who shot into their vehicle. D.M. testified that he saw the vehicle and thought he saw a little of Duncan's face but quickly turned away when the shooting started. He testified that he knew Duncan was the shooter because he had seen him once before driving the same silver vehicle. D.M. testified that he later identified Duncan in a photo lineup at the hospital and was "certain about [his] identification."

After court adjourned for the day, Duncan was returned to the Ramsey County jail where he made a few phone calls that were recorded. In the calls, Duncan recounted to the person on the other line that he told D.M., "Hey man, you ain't got to do this sh-t, bro. I don't even have no problem with you. It wasn't personal. The [person] I had a problem with, he dead, bro." Duncan told the person that D.M. "testified on [him]." In a second call, Duncan instructed the person on the other line to tell someone "to put on Facebook that [D.M.] just testified on me. Screenshot [D.M.'s] picture off his Facebook." The district court allowed the recording to be admitted over Duncan's objection, finding that the statements made by Duncan were relevant to the issues of identity and intent.

After the state presented its witnesses and evidence, Duncan declined to testify on his behalf and the defense did not call any witnesses. The jury deliberated and returned a verdict of guilty on all counts. The district court sentenced Duncan to 367 and one-half months in prison.

Direct Appeal

After his conviction, Duncan filed a direct appeal, arguing that the district court erred in admitting evidence of the two phone calls he made from jail and that it was plain error to admit testimony from three police officers about prior contacts with Duncan. State v. Duncan, No. A17-2049, 2019 WL 1006792, at *1 (Minn.App. Mar. 4, 2019), rev. denied (Minn. May 28, 2019). This court held that the district court did not abuse its discretion in admitting the phone call statements into evidence. Id. at *3-4. This court also concluded that the district court did not commit plain error when it allowed three officers to testify at trial about prior contacts with Duncan because the identity of the shooter was a primary issue in the case and the admission of testimony did not affect Duncan's substantial rights. Id. at *5. Finally, this court addressed Duncan's pro se arguments noting that they were outside the record or unsupported by legal argument. Id. at *6. Thus, this court affirmed Duncan's convictions.

Petition for Postconviction Relief

In October 2019, Duncan filed a pro se petition for postconviction relief. He argued that he was denied effective assistance of trial counsel because his trial attorney failed to investigate witnesses for his defense. He also argued that he received ineffective assistance of appellate counsel because his appellate counsel failed to raise ineffective assistance claims on direct appeal.

Shortly before the scheduled hearing on the petition, D.M. wrote a letter recanting his testimony. D.M. said that he was under the influence of drugs and alcohol and did not see the shooter or the vehicle. He wrote that he only testified against Duncan so that the state would drop drug charges that he was facing around that time. In a later affidavit, D.M. again asserted that his testimony was untrue.

Duncan hired an attorney to represent him in the postconviction proceedings. The postconviction court allowed Duncan to withdraw his pro se petition for postconviction relief and file a new petition with assistance of counsel. The new petition for postconviction relief asserted that Duncan received ineffective assistance from both trial and appellate counsel and that the recantation of D.M.'s testimony entitled Duncan to a new trial. The postconviction court granted an evidentiary hearing, finding that the facts viewed in a light most favorable to Duncan, if true, could exonerate him of the crime he is incarcerated for.

Postconviction Relief Hearing

The postconviction court held an evidentiary hearing. The state presented testimony of Duncan's trial attorney who testified that she received the state's notice to introduce evidence of a photo lineup when she first was assigned the case but made the decision not to pursue a suppression motion. She testified that she researched the district court judge's prior rulings on suppression motions and consulted colleagues about whether it was worthwhile to pursue the motion. Ultimately, the trial attorney did not move to suppress because she "didn't think a suppression motion would be successful on the matter" and that her energy was "better spent elsewhere."

The trial attorney also testified that she received Duncan's case after his original attorney retired and investigated several potential witnesses that the original attorney had identified. One witness was a woman who claimed to be with Duncan on the day of the shooting. Another witness asserted that she owned the silver Mercedes in question and that it was in the vehicle repair shop on the day of the shooting. The trial attorney testified that she had multiple conversations with both women and eventually ruled them out as witnesses.

As for the owner of the silver Mercedes, the trial attorney testified that the potential witness could not provide information about who had access to the silver Mercedes or who possessed it on the relevant dates. The trial attorney also testified that she often had trouble getting in contact with the woman who claimed that she was with Duncan on the day of the shooting and had trouble tracking her down before trial. She testified that she was worried about the potential witness being cross-examined because she did not "come across terribly believabl[e...