                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A14-1395

Hennepin County                                                               Gildea, C.J.
                                                                  Took no part, Hudson, J.
Rene Julian McKenzie,

                      Appellant,

vs.                                                             Filed: December 23, 2015
                                                                Office of Appellate Courts
State of Minnesota,

                      Respondent.

                               ________________________


Rene Julian McKenzie, Rush City, Minnesota, pro se.

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant Hennepin
County Attorney, Minneapolis, Minnesota, for respondent.
                           ________________________


                                      SYLLABUS

       1.     Because appellant failed to prove that the State substantially interfered with

the decisions of appellant’s witnesses regarding whether to testify at the postconviction

hearing, appellant’s constitutional claims fail.

       2.     Because appellant did not prove that the State’s actions constituted

“egregious misconduct” under State v. Peirce, 364 N.W.2d 801 (Minn. 1985), the

postconviction court properly refused to grant use immunity to appellant’s witnesses.


                                              1
       3.     Because    appellant   produced    insufficient    evidence   to   satisfy the

postconviction court that a trial witness’s testimony was false, the court did not abuse its

discretion when it denied appellant’s request for a new trial.

       Affirmed.

       Considered and decided by the court without oral argument.

                                       OPINION

GILDEA, Chief Justice.

       This case comes to us on appeal from the denial of Rene Julian McKenzie’s petition

for postconviction relief. McKenzie filed a petition for postconviction relief based on two

third-party affidavits, alleging that a witness had recanted his trial testimony.       The

postconviction court granted an evidentiary hearing to determine the credibility of the

alleged recantation. At the hearing, the assistant county attorney informed the trial witness

who allegedly recanted of the consequences should he testify falsely. The trial witness and

the affiants invoked their Fifth Amendment right to remain silent, and the postconviction

court refused to grant use immunity to appellant’s witnesses. Following the hearing, the

postconviction court denied the petition, explaining that it was not well satisfied that the

trial witness’s testimony was false. McKenzie appeals, arguing the State violated his

Fourteenth Amendment right to due process by substantially interfering with the decisions

of his witnesses about whether to testify at the postconviction hearing. He also argues that

the postconviction court erred by not granting use immunity to his witnesses and by finding

that he presented insufficient evidence to warrant a new trial. Because McKenzie failed to

prove that the State substantially interfered with the witnesses’ decisions about whether to


                                             2
testify, and because the postconviction court did not abuse its discretion by refusing to

grant use immunity or by denying the postconviction petition, we affirm.

       Following a jury trial, McKenzie was convicted of first-degree murder for the death

of Perry Pajunen.1 Pajunen was shot four times while visiting the home McKenzie shared

with his friend and died as a result of the shooting. At trial, McKenzie argued that his

friend was the one who shot Pajunen, and that he assisted in disposing of the body because

his own life was threatened. A witness for the State, Wendell Martin (Martin Sr.), testified

that McKenzie had confessed to the killing while the two of them shared a holding cell.

The jury found McKenzie guilty of first-degree premeditated murder, and the district court

convicted McKenzie and sentenced him to life in prison. We affirmed the conviction. State

v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994). McKenzie filed his first petition for

postconviction relief in 2007, and we held that those claims were procedurally barred under

State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). McKenzie v. State, 754 N.W.2d

366, 370 (Minn. 2008).

       McKenzie filed his current petition for postconviction relief on November 26, 2012,

alleging that Martin Sr. provided false testimony at McKenzie’s murder trial. McKenzie

produced affidavits of LaMonte Martin (Martin Jr.) and Heidi Mastin, Martin Sr.’s son and

ex-wife, respectively, in which each asserted that Martin Sr. told them that he had lied at

McKenzie’s trial. The postconviction court granted an evidentiary hearing to assess the

credibility of Mastin, Martin Jr., and Martin Sr.


1
       A full statement of the facts underlying the conviction can be found in our decision
on direct appeal, State v. McKenzie, 511 N.W.2d 14, 15-16 (Minn. 1994).

                                             3
       Prior to the hearing, however, Martin Jr. and Mastin pleaded guilty to bribery and

witness tampering in relation to Martin Jr.’s own petition for postconviction relief.

Mastin’s plea agreement contained a provision prohibiting her from testifying in

McKenzie’s postconviction matter, and on advice of counsel, she withdrew the affidavit

she had provided McKenzie. During a conference prior to the evidentiary hearing on

McKenzie’s petition, the postconviction court declared this provision in Mastin’s plea

agreement unenforceable.

       Martin Sr. failed to appear at the evidentiary hearing. A warrant was issued for his

arrest, and he turned himself in the next morning. The assistant county attorney then met

briefly with Martin Sr. At the meeting, Martin Sr. told the assistant county attorney that

his trial testimony was the “absolute truth.”

       At the rescheduled evidentiary hearing, the assistant county attorney informed the

court that he had a reasonable and substantial belief that if Martin Sr. “were to testify that

he would potentially be providing false testimony.” The assistant county attorney further

explained that he had told Martin Sr.’s attorney that the State “would pursue charges

consistent with that” belief if Martin Sr. were to testify falsely.

       Based on the advice of counsel, Mastin, Martin Jr., and Martin Sr. all invoked their

Fifth Amendment right against self-incrimination. McKenzie argued that the assistant

county attorney acted improperly when he met with Martin Sr. without Martin Sr.’s

appointed counsel present, and by threatening and intimidating McKenzie’s witnesses.

Because of this alleged misconduct, McKenzie asked the postconviction court to grant use




                                                4
immunity to the three witnesses under Minn. Stat. § 609.09, subd. 1 (2014), for their

testimony.

       The postconviction court found that Martin Sr. was not represented by counsel when

he met with the assistant county attorney and refused to grant use immunity to McKenzie’s

witnesses. Based on the record before it, the court was not well satisfied that Martin Sr.’s

trial testimony was false, and therefore it denied McKenzie’s petition for postconviction

relief. McKenzie appeals from the order denying relief.

       We review the denial of postconviction relief for an abuse of discretion. Reed v.

State, 793 N.W.2d 725, 729 (Minn. 2010). In doing so, we review the postconviction

court’s legal conclusions de novo, Davis v. State, 784 N.W.2d 387, 390 (Minn. 2010), and

its findings of fact for clear error, Doppler v. State, 771 N.W.2d 867, 875 (Minn. 2009).

                                             I.

       We first consider McKenzie’s contention that his Fourteenth Amendment right to

due process was violated because the State substantially interfered with his witnesses’

decisions about whether to testify at the postconviction hearing.2 Although we have

considered claims that a government actor interfered with a defense witness before or


2
        McKenzie asserts in his brief that this same alleged interference also violated his
Sixth Amendment right to compulsory process. In Burrell v. State, we recognized that
neither our court nor the Supreme Court has ever held that the right to compulsory process
extends to postconviction proceedings. 858 N.W.2d 779, 786 (Minn. 2015). We need not
discuss this issue further in this case, however, because McKenzie makes no argument to
support his assertion that his Sixth Amendment right, assuming it applies, was violated.
See Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (requiring appellant’s allegations
to be “more than argumentative assertions without factual support” (quoting Beltowski v.
State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971))).


                                             5
during a criminal trial, see, e.g., State v. Graham, 764 N.W.2d 340, 348-50 (Minn. 2009),

we have never considered a claim that a government actor interfered with a witness before

or during a postconviction evidentiary hearing.3

       In this case, we need not decide the exact form of assistance that due process

requires in a postconviction proceeding.           Even assuming McKenzie’s rights are

coextensive with those of a criminal defendant at trial, he is not entitled to any relief

because he failed to prove that the State substantially interfered with the decisions made

by his witnesses about whether to testify at the postconviction hearing.

       Under the test that would be applied in the context of a criminal defendant at trial,

the defendant must prove that (1) a government actor interfered with a defense witness’s

decision to testify; (2) the interference was substantial; and (3) the defendant was

prejudiced by the conduct. Colbert v. State, 870 N.W.2d 616, 625 (Minn. 2015); Graham,

764 N.W.2d at 349 (“In determining whether the State has infringed on a defendant’s

constitutional right to present a defense . . . ‘the dispositive question in each case is whether

the government actor’s interference with a witness’s decision to testify was


3
         When a government actor substantially interferes with a defense witness before or
during a criminal trial, a defendant’s Fourteenth Amendment right to due process is
implicated. Webb v. Texas, 409 U.S. 95, 98 (1972); Graham, 764 N.W.2d at 349. Although
it is clear that the Fourteenth Amendment imposes no obligation on the states to provide
postconviction relief mechanisms, Carlton v. State, 816 N.W.2d 590, 611 (Minn. 2012)
(citing Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987)), it is unclear what form of
assistance, if any, must be provided when a state chooses to offer help to those seeking
relief from convictions. See Dist. Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 68-69 (2009). Due process does not “dictate the exact form such assistance
must assume”; instead, each state has “flexibility in deciding what procedures are needed
in the context of postconviction relief.” Id. (quoting Finley, 481 U.S. at 559).


                                               6
“substantial.” ’ ” (quoting United States v. Serrano, 406 F.3d 1208, 1216 (10th Cir.

2005))). We apply this test to the decisions Mastin and Martin Sr. made about whether to

testify at the postconviction hearing.4

                                             A.

       As to Heidi Mastin, McKenzie asserts that the State improperly coerced her into a

plea agreement in a collateral matter that restricted her from testifying on behalf of

McKenzie. Mastin did enter a plea agreement with the State that purported to prevent her

from providing testimony in McKenzie’s case, but the postconviction court declared this

provision unenforceable during a conference prior to the evidentiary hearing. The plea

provision therefore had been deemed unenforceable when Mastin asserted her Fifth

Amendment privilege at the evidentiary hearing. Mastin could have resubmitted the

affidavit that she had previously withdrawn or could have testified consistent with her

statement. Instead, and on advice of counsel, she invoked her Fifth Amendment privilege

and freely chose not to testify. Based on our review of the record, we conclude that the

State did not substantially interfere with Mastin’s decision about whether to testify at the

postconviction hearing.

                                             B.

       McKenzie also argues that the assistant county attorney substantially interfered with

Martin Sr.’s decision to testify at the postconviction hearing by (1) interviewing Martin Sr.



4
       Although McKenzie argues that the State intimidated all three witnesses who
refused to testify at the evidentiary hearing, he produces no evidence that the State acted
improperly in regard to Martin Jr. and so we do not consider this aspect of his claim.

                                             7
either shortly before or after he was appointed counsel, and (2) threatening Martin Sr. with

a perjury prosecution should he testify falsely.

                                             1.

       McKenzie contends that because the assistant county attorney interviewed Martin

Sr. without the presence of counsel to represent Martin Sr., the assistant county attorney’s

behavior amounts to improper interference. For McKenzie’s argument to have merit, the

assistant county attorney must have interviewed Martin Sr. outside the presence of counsel

after the postconviction court had appointed counsel to represent Martin Sr.5 This fact was

disputed below. The postconviction court resolved this dispute in the State’s favor, finding

that Martin Sr. was not represented by counsel at the time of the interview. If we affirm

this finding of fact, we need not reach the question of whether an interview conducted

outside the presence of counsel constitutes improper interference for purposes of the due

process test. We therefore begin our analysis by reviewing the postconviction court’s

finding of fact.

       We review a postconviction court’s findings of fact for clear error. Martin v. State,

865 N.W.2d 282, 290 (Minn. 2015).           If there is sufficient evidence to support a

postconviction court’s finding, the finding will stand. Ferguson v. State, 645 N.W.2d 437,

442 (Minn. 2002).

       The postconviction court found that the assistant county attorney’s interview with

Martin Sr. occurred before he was appointed counsel, at 11:30 a.m., on November 22,


5
       McKenzie cites no legal authority to support his contention that an interview with
an unrepresented witness is improper.

                                              8
2013. Because Martin Sr. was not represented by counsel when the assistant county

attorney interviewed him, the postconviction court reasoned, there was no ethical violation.

See Minn. R. Prof. Conduct 4.2 (“In representing a client, a lawyer shall not communicate

about the subject of the representation with a person the lawyer knows to be represented

by another . . . .”). In making its determination, the postconviction court relied on court

documents to establish the time of appointment and cited official e-mail notifications from

the court clerk to confirm the timeline. The documents the court cited support the court’s

findings. Accordingly, we hold that the postconviction court’s finding that Martin Sr. was

not represented by counsel at the time of the interview was not clearly erroneous.

                                               2.

       McKenzie also alleges that the assistant county attorney substantially interfered

with Martin Sr.’s decision regarding whether to testify at the evidentiary hearing by

threatening prosecution should Martin Sr. testify falsely. The postconviction court did not

address this argument at the evidentiary hearing or in its order. If an issue was not

addressed by the district court, we generally will not consider the issue, even if it was raised

below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We may, however, “decide

an issue not determined by a trial court where that question is decisive of the entire

controversy and where there is no possible advantage or disadvantage to either party in not

having a prior ruling on the question.” Harms v. Indep. Sch. Dist. No. 300, LaCrescent,

450 N.W.2d 571, 577 (Minn. 1990); see also Foss v. Kincade, 766 N.W.2d 317, 323 (Minn.

2009) (agreeing with the court of appeals’ decision to address, “in the interest[s] of judicial

economy,” an issue that was raised below but not resolved by the district court). We have


                                               9
determined that a party was not disadvantaged when the previously unaddressed issue

involved a legal question and the parties had an opportunity to brief the question. Woodhall

v. State, 738 N.W.2d 357, 363 n.6 (Minn. 2007). Because both parties have had an

opportunity to brief this issue, and because the facts are not in dispute, we turn to the merits

of McKenzie’s claim that the assistant county attorney violated McKenzie’s rights by

threatening Martin Sr. with prosecution should he testify falsely.

       The United States Court of Appeals for the Second Circuit has stressed that “a due

process violation does not arise merely . . . because the government warns a defense

witness of the consequences of committing perjury.” United States v. Williams, 205 F.3d

23, 29 (2d Cir. 2000). A warning of possible self-incrimination violates due process only

when “the government actor’s interference with a witness’s decision to testify [is]

‘substantial.’ ” Graham, 764 N.W.2d at 349 (quoting Serrano, 406 F.3d at 1216). The

requisite warnings may not be given in a fashion that exerts “such duress on the witness’[s]

mind as to preclude him from making a free and voluntary choice whether or not to testify.”

Webb v. Texas, 409 U.S. 95, 98 (1972). Factors to consider when determining whether a

government actor’s action substantially interferes with a witness’s decision to testify

include “the manner in which the prosecutor or judge raises the issue, the language of the

warnings, and the prosecutor or judge’s basis in the record for believing the witness might

lie.” United States v. True, 179 F.3d 1087, 1090 (8th Cir. 1999) (quoting United States v.

Vavages, 151 F.3d 1185, 1190 (9th Cir. 1998)). Courts have not found due process

violations in cases in which there was a high probability that the witness would commit




                                              10
perjury, id., and those in which the defense witness was independently represented by

counsel, State v. Swyningan, 304 Minn. 552, 557, 229 N.W.2d 29, 33 (1975).

       Our review of the record convinces us that the assistant county attorney’s statement

did not substantially interfere with Martin Sr.’s decision to testify. First and perhaps most

importantly, Martin Sr. stated on the record that he was “not worried about [the State]

prosecuting [him],” and that fear of prosecution was “not why [he was] not testifying.”

Additionally, the assistant county attorney had a strong basis to believe that Martin Sr.

might lie under oath, as Martin Sr. had been previously implicated in Martin Jr.’s witness

bribery scheme. The assistant county attorney reasonably believed that Martin Sr. testified

truthfully at McKenzie’s trial and that he told the truth during the November 22, 2013

interview, in which Martin Sr. maintained that he “knew what [] McKenzie was trying to

do” and confirmed that his trial testimony was “the absolute truth.” Moreover, the assistant

county attorney’s statement that he “had information that if Wendell Martin Senior were

to testify that he would potentially be providing false testimony” and that the State “would

pursue charges consistent with that,” merely informed Martin Sr. of the consequences

should he testify falsely. Martin Sr. was not threatened with prosecution regardless of the

content of his testimony, but only if he testified falsely. Cf. Swyningan, 304 Minn. at 556-

57, 229 N.W.2d at 33 (citing Commonwealth v. Jennings, 311 A.2d 720 (Pa. Super. Ct.

1973) (finding a due process violation when the state threatened prosecution regardless of

the content of the witness’s testimony)).         Finally, Martin Sr. was represented by

independent counsel at the evidentiary hearing and asserted his Fifth Amendment privilege

only after consulting his attorney. Considering all of this evidence, it is clear that


                                             11
McKenzie did not prove that the assistant county attorney interfered with Martin Sr.’s

decision. Therefore, we hold that McKenzie’s claim under the Fourteenth Amendment

fails.

                                              II.

         We next consider whether the postconviction court erred in failing to grant statutory

use immunity to Mastin, Martin Jr., and Martin Sr. for their testimony. McKenzie argues

that because the State substantially interfered with his witnesses’ decisions about whether

to testify at the postconviction hearing, the postconviction court should have granted use

immunity to the witnesses.

         As an initial matter, “[i]t is unclear whether Minnesota’s immunity statute applies

to a postconviction hearing.” Martin v. State, 865 N.W.2d 282, 289 (Minn. 2015).

Assuming the statute does apply, Minn. Stat. § 609.09, subd. 1 (2014), states that a judge

may order immunity from prosecution “if it appears a person may be entitled to refuse to

answer a question . . . on the ground that the person may be incriminated thereby, and if

the prosecuting attorney, in writing, requests the . . . judge . . . to order that person to

answer the question,” but only if the judge “finds that to do so would not be contrary to the

public interest.” The plain language of the statute indicates that the court may grant

immunity to witnesses only after a request from the prosecutor. Id. No such request was

made here.

         We have interpreted the power to grant immunity narrowly, rejecting the notion that

the court has an inherent power to order immunity. See State v. Peirce, 364 N.W.2d 801,

808-09 (Minn. 1985). Relying on cases from the Second and Fifth Circuits, we have held


                                              12
that “to allow defense witness immunity would be an impermissible intrusion into

prosecutorial discretion which must remain with the executive branch, and that such

immunity would be vulnerable to manipulation and abuse by codefendants and others with

a common interest in evading guilt.” Id. at 809 (referencing United States v. Thevis,

665 F.2d 616 (5th Cir. 1982) and United States v. Turkish, 623 F.2d 769 (2d Cir. 1980)).

Absent “egregious prosecutorial misbehavior,” denying immunity to defense witnesses

does not violate a defendant’s constitutional rights. Id.

       Despite McKenzie’s assertion to the contrary, there was no egregious misconduct

in this case. As discussed above, the State did not substantially interfere with the witnesses’

decisions regarding whether to testify at the postconviction hearing.6 Accordingly, we hold

that the postconviction court properly refused McKenzie’s request to grant use immunity

to McKenzie’s witnesses.

                                             III.

       Finally, we consider whether the postconviction court abused its discretion in

concluding that McKenzie failed to demonstrate, by a preponderance of the evidence, that

he was entitled to a new trial under the Larrison test. We will overturn the denial of relief

on a witness-recantation claim only if the postconviction court has abused its discretion.

Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006). Our review of issues of fact is limited

to a determination of whether the evidence is sufficient to support the postconviction



6
       We need not further define the scope of activity that would constitute “egregious
misconduct” under Peirce, because under any definition, the State’s actions in this case fall
short of such misconduct.

                                              13
court’s findings. Id. Traditionally, “[c]ourts have . . . looked with disfavor on motions for

a new trial founded on alleged recantations unless there are extraordinary and unusual

circumstances.” State v. Hill, 312 Minn. 514, 523, 253 N.W.2d 378, 384 (1977). And we

have recognized that the postconviction court does not abuse its discretion in denying relief

“[w]here the ‘newly discovered’ evidence is of doubtful character and the particular

circumstances of a case do not lend credence to the appellant’s claim.” Id. (quoting State

v. Wofford, 262 Minn. 112, 115, 114 N.W.2d 267, 270 (1962)).

       We evaluate recantations using the three-prong Larrison test, which examines

whether:

       (1) the court [is] reasonably well-satisfied that the testimony in question was
       false; (2) without that testimony the jury might have reached a different
       conclusion; and (3) the petitioner was taken by surprise at trial or did not
       know of the falsity until after trial.

Opsahl, 710 N.W.2d at 782. In order to satisfy the first prong under Larrison, “the

recantation must contain ‘sufficient indicia of trustworthiness’ ” leading the court to be

“reasonably certain that the recantation is genuine.” Martin, 865 N.W.2d at 290 (quoting

Martin v. State, 825 N.W.2d 734, 741 (Minn. 2013)). The showing required for a new trial

is higher than that required to receive an evidentiary hearing. Opsahl v. State, 677 N.W.2d

414, 423 (Minn. 2004). In Ferguson, 645 N.W.2d at 445-46, and Dobbins v. State,

788 N.W.2d 719, 732-34 (Minn. 2010), we held that although evidence in the form of a

third-party hearsay affidavit was sufficient to warrant an evidentiary hearing, it did not

entitle the petitioner to a new trial.




                                             14
       Like the evidence in Dobbins and Ferguson, the evidence before the postconviction

court—Martin Jr.’s affidavit—was a third-party hearsay affidavit. We have never held that

third-party hearsay affidavits, standing alone, bear “sufficient indicia of trustworthiness”

to warrant a new trial under Larrison. Moreover, the record contains evidence of Martin

Jr.’s history of bribing and intimidating witnesses to falsify affidavits. Finally, McKenzie

makes no argument that the affidavit is admissible under a hearsay exception. Based on

our review of the record, we hold that the postconviction court did not abuse its discretion

when it concluded that McKenzie had not presented evidence sufficient to satisfy the first

prong of Larrison.

       Affirmed.


       HUDSON, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




                                             15
