Gilbert v. State

982 N.W.2d 763

Larry Jonnell GILBERT, petitioner, Respondent,

v.STATE of Minnesota, Appellant.

A21-1560

Court of Appeals of Minnesota.

Filed November 28, 2022

Mark D. Nyvold, Fridley, Minnesota (for respondent)

Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Minneapolis, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Larkin, Judge; and Halbrooks, Judge.^*

LARKIN, Judge

In this appeal from the postconviction court's order granting respondent a new trial, the state argues that the postconviction court erred by not determining whether respondent's claims were procedurally barred and by granting a new trial based on purportedly false testimony. We reverse.

FACTS

In 2019, law enforcement stopped a vehicle registered to respondent Larry Jonnell Gilbert. Gilbert was riding in the passenger seat, and there were three other people in the vehicle. Officers searched the vehicle and found a firearm in a backpack in the trunk. Gilbert had prior felony convictions and was not authorized to possess a firearm. The state charged him with unlawful possession of a firearm.

At trial, Amber Folsom, a forensic scientist with the Bureau of Criminal Apprehension (BCA), testified that she received DNA samples from Gilbert and another passenger in the vehicle. Folsom also received a DNA swab from the firearm. That swab contained a DNA mixture from four or more individuals. The major profile matched Gilbert's DNA sample and did not match the other passenger's sample.

Because it had "briefly rain[ed]" while the firearm was removed from the trunk of Gilbert's vehicle, the prosecutor asked Folsom if the rain could have affected the DNA test results:

Q: Would you expect a firearm being exposed to rain for approximately one minute to have any effect on a DNA sample left on that firearm?

A: No, that's a very short amount of time. I wouldn't expect the DNA to get washed away in a minute.

Q: How long do you think it would take?

A: Depending on how hard it's raining, if it's a light mist, it could be all day; if it's a hard rain, maybe hours.

Defense counsel cross-examined Folsom regarding that point:

Q: Just because you just mentioned this rain thing, have you conducted any studies on rain and DNA washing away or are you guessing?

A: It's just my opinion. I haven't studied it, no.

Q: Has anyone studied it?

A: I don't recall reading any journal articles on the topic so it's just my guess or opinion.

Later, the prosecutor asked Folsom about "transfer DNA":

Q: [H]ave you seen cases of DNA transfer in your experience and education and training?

A: Yes.

Q: And in those cases ... what is the cause of this transfer of DNA?

A: It's usually a transfer from something that has a good amount of DNA already there. So, like, blood or saliva, something that has ... a very good source of DNA to begin with could get transferred to another item that that person didn't actually have contact with.

Q: Now in a situation where there is not blood or saliva, would you expect there to be a similar type of transfer or would you expect there not to be a similar type of transfer?

.....

A: If there is not blood or some sort of DNA-rich sample that we're talking about transferring to another item, I would expect there to be a low amount of DNA that would get transferred and would result in showing up in the minor types, if there is a mixture. I wouldn't expect this low amount of DNA to transfer and end up being a major profile.

The jury found Gilbert guilty, and the district court sentenced him to serve 60 months in prison. He appealed his conviction, claiming that the district court erred in accepting a stipulation and in instructing the jury. State v. Gilbert , No. A20-0530, 2021 WL 668011, at *1 (Minn. App. Feb. 22, 2021), rev. denied (Minn. May 18, 2021). This court affirmed the conviction, and the supreme court denied further review. Id. at *5.

In March 2021, Gilbert petitioned for postconviction relief. He argued that Folsom "testified falsely about the dissipation of DNA with water and transfer DNA as it relates to major profiles." He requested a new trial or, in the alternative, an evidentiary hearing. Along with his petition, Gilbert filed an affidavit from a "forensic attorney," Jeffrey Benson. Benson stated that part of the BCA's required reading "for all analysts that work on DNA" was an article on DNA transfer, which indicated that "secondary transfer" of DNA "can result in a major profile."

The state opposed Gilbert's postconviction petition, arguing that it was procedurally barred under Knaffla because Gilbert was aware of Folsom's testimony "at the time of his direct appeal." In an informal letter, Gilbert's counsel responded to the state's procedural argument and asserted that she spoke with Gilbert's appellate attorney before he filed the direct appeal and "alerted him of the issue of what [she] believed to be false testimony of [Folsom]." She argued that the failure of Gilbert's appellate attorney to raise the false-testimony issue on direct appeal was either a result of "ineffective assistance of counsel" or because, until Benson provided his affidavit, the issue was "not yet ripe."¹

In July 2021, the postconviction court ordered an evidentiary hearing on Gilbert's petition. The court's order did not address the state's argument that Gilbert's claim was procedurally barred.

At the evidentiary hearing, Gilbert called Cynthia Cale, a forensic DNA consultant. Cale testified that she was unaware of any studies regarding water dissipation of DNA. Cale also testified about transfer DNA, stating, "There's been studies showing, you know, the transfer of body fluids, which are -- tend to be the higher level DNA samples. But there's other publications on the transfer of skin cells and documented secondary transfer of skin cells." Cale testified that "you can't use the quality of the profile to predict the mode of transfer."

Cale testified that Folsom's trial testimony regarding the likelihood of a non "DNA-rich" sample showing up as the major profile was incorrect. Cale testified, "I don't believe that's true. I had contributor inversions occur in my research from having just a ten-second handshake up to a two-minute handshake."² Cale further testified:

And there's other research that has shown that while the -- typically, the person that handles it is going to be the most prominent profile, it's -- that's not always the case. There's always a chance that you can see that contributor inversion, and it's not -- it's dependent on the person: you know, how long they had contact with the individual that actually handled the weapon, those other factors influencing transfer such as activities performed before, you know, if some kind of touching happens between two people, and then the person that actually ultimately ended up touching the weapon did some other activities, that can influence transfer.

Following the hearing, the postconviction court determined that Folsom's testimony regarding water dissipation and DNA transfer was "false." As to water dissipation, the postconviction court reasoned that Folsom's "opinion testimony was purely speculative." Based on the additional information from Cale, the postconviction court concluded "that there, in fact, are no studies related to water dissipation of DNA" and that "Folsom's testimony related to the same was false." As to DNA transfer, the postconviction court reasoned that "[t]he information to which [Cale] referred and the studies she had done herself illustrate that [Folsom's] testimony was incorrect and misleading." Although the postconviction court did not find that Folsom "was intentionally misleading or false in her testimony," the postconviction court determined that "the information presented to the jury was" and that "[g]iven this picture, it is clear that [Folsom's] testimony related to transfer DNA was false." Finally, the postconviction court determined that Folsom's "false testimony was material to the jury's determination, and impacted its determination." The postconviction court therefore granted Gilbert's request for a new trial.

The state appeals.

ISSUES

I. Did the postconviction court abuse its discretion by granting Gilbert's request for relief without first determining that his claim was not procedurally barred under Knaffla ?

II. Did the postconviction court abuse its discretion in concluding that Folsom's testimony was false and granting a new trial on that basis?

ANALYSIS

A person convicted of a crime who claims that the conviction violated the person's constitutional or statutory rights may petition for postconviction relief. Minn. Stat. § 590.01, subd. 1 (2020). We review a postconviction court's decision to grant a new trial for an abuse of discretion. State v. Hurd , 763 N.W.2d 17, 34 (Minn. 2009). In doing so, we review the postconviction court's underlying factual findings for clear error and its legal conclusions de novo. Martin v. State , 825 N.W.2d 734, 740 (Minn. 2013). An abuse of discretion occurs if a postconviction court exercises its discretion in an arbitrary or capricious manner, errs in its application of the law, or makes clearly erroneous factual findings. Onyelobi v. State , 966 N.W.2d 235, 237 (Minn. 2021).

I.

The state argues that the postconviction court abused its discretion by granting Gilbert's request for postconviction relief without first determining that Gilbert's claim was not procedurally barred. An appellate court generally does not consider issues that were not raised and decided in district court. State v. Roby , 463 N.W.2d 506, 508 (Minn. 1990) ; see Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). That practice prevents parties from attempting to raise new issues or theories for the first time on appeal. See State v. Grunig , 660 N.W.2d 134, 136 (Minn. 2003) ("The waiver rule is an administrative rule dictating that appellate courts will not decide issues that were...