                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A14-2165


Hennepin County                                                              Dietzen, J.


Darryl Colbert, petitioner,

                      Appellant,

vs.                                                             Filed: October 21, 2015
                                                              Office of Appellate Courts
State of Minnesota,

                      Respondent.
                             ________________________

Zachary A. Longsdorf, Inver Grove Heights, Minnesota, for appellant.

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant Hennepin
County Attorney, Minneapolis, Minnesota, for respondent.
                           ________________________

                                      SYLLABUS

       1.     Harmless error analysis applies to a claim that a government actor

interfered with a defense witness’s decision to testify.

       2.     The postconviction court did not abuse its discretion by summarily denying

appellant’s witness intimidation claim because the alleged conduct was harmless beyond

a reasonable doubt.




                                              1
       3.     The postconviction court did not abuse its discretion by concluding that

appellant’s juror-misconduct claim is procedurally barred under State v. Knaffla, 309

Minn. 246, 243 N.W.2d 737 (1976).

       4.     The postconviction court did not abuse its discretion by summarily denying

appellant’s altered-exhibit claim because it lacks merit on its face.

       Affirmed.

       Considered and decided by the court without oral argument.

                                       OPINION

DIETZEN, Justice.

       Appellant Darryl Colbert was found guilty by a Hennepin County jury of the first-

degree murder of Robert Mitchell in December 2003, and was sentenced to life

imprisonment without the possibility of release. We affirmed Colbert’s conviction on

direct appeal. State v. Colbert (Colbert I), 716 N.W.2d 647, 649 (Minn. 2006). In July

2014, Colbert filed his sixth postconviction petition under Minn. Stat. § 590.01 (2014).

The postconviction court summarily denied the petition without an evidentiary hearing.

Because the record conclusively shows that Colbert’s claims are harmless beyond a

reasonable doubt, procedurally barred, or meritless, we affirm.

       On December 26, 2003, Robert Mitchell was shot and killed on the 2800 block of

Columbus Avenue in Minneapolis. Colbert was arrested and indicted for first-degree

premeditated murder, Minn. Stat. § 609.185(a)(1) (2014), and second-degree intentional

murder, Minn. Stat. § 609.19, subd. 1(1) (2014), for Mitchell’s death. Following a trial,

the jury found Colbert guilty of first-degree murder.


                                              2
      The State introduced testimony of the events leading up to the shooting death of

Mitchell on the evening of December 26, 2003, and a related shooting involving Colbert

and Troy Parker, which occurred on the evening of December 27, 2003. 1 Surveillance

video footage established that Colbert arrived at Sunny’s, a bar and restaurant on Lake

Street and Chicago Avenue in Minneapolis, around 5:33 p.m. on December 26 wearing a

brimmed, fedora-style hat and long topcoat. At the time, Mitchell, his fiancée, Gladys

Rogers, and several friends including Kathleen Washington and Clarence Ealey were also

at Sunny’s to celebrate the engagement of Mitchell and Rogers. Washington testified that

she saw Colbert talking to Mitchell, and overheard part of the conversation in which $50

was mentioned.    Washington then saw Colbert leave Sunny’s with Mitchell.          The

surveillance tape from Sunny’s showed Colbert talking to Mitchell at 5:50 p.m., and the

two of them leaving together at 6:13 p.m. Rogers testified that Mitchell told her he was

going to buy a television for $50 and was leaving with someone named “Darryl.”

      Shortly after Colbert and Mitchell left Sunny’s, three individuals separately

witnessed two cars parked trunk-to-trunk approximately one and one-half blocks north of

Sunny’s on the 2800 block of Columbus Avenue. One of the cars was described as an

older model white car with a “boxed-shaped” or “squared-off” back end. Two men were

seen standing near the cars. The witnesses saw one of the men, who was wearing a dark,

brimmed hat and a long, dark topcoat, shoot the other man. The shooter drove away in

the older model white car. Colbert drove a white, 1988 Chrysler New Yorker, which

1
      The underlying facts are set forth in detail in Colbert I, 716 N.W.2d at 649–53.
We limit our discussion to the facts directly relevant to this appeal.


                                           3
witnesses testified was similar to the shooter’s car. Two of the witnesses called 911

immediately after the shooting. The first call was logged at 6:17 p.m.

       At 6:21 p.m., surveillance video from Sunny’s showed a white Chrysler New

Yorker driving past Sunny’s on Chicago Avenue.          Colbert admitted that the white

Chrysler New Yorker seen driving past Sunny’s belonged to him and that he was driving

it. Police officers testified that it would take 50–53 seconds to drive from Sunny’s to the

murder scene.

       The next day, Colbert was involved in a separate incident involving the gun used

in Mitchell’s murder. Troy Parker testified that Colbert brought the gun to the apartment

of Colbert’s nephew, M.C., that a fight between Colbert and Parker occurred in the

apartment, and that Colbert shot Parker and then accidentally shot himself.           Guy

Richardson, who was M.C.’s neighbor in the apartment building at the time, testified that

Colbert came to Richardson’s apartment and asked if he had seen Parker, and that Colbert

used Richardson’s phone to call Parker. When Colbert left the apartment he put his

hands behind his back, Richardson heard a sound like a gun cocking, and Colbert said,

“mind your business about what you hear over here or I’m going to come back.” A few

minutes later, Richardson heard Parker’s voice and then three gun shots.

       Colbert denied that he was involved in the shooting of Mitchell. He testified that

he arrived at Sunny’s at 5:33 p.m. on December 26 wearing a long coat and brimmed hat,

and that he briefly spoke to Mitchell. According to Colbert, he left Sunny’s alone,

Mitchell left behind him, and they went their separate ways. After Colbert left Sunny’s

he walked to his car, which was parked in the KFC parking lot approximately one-half


                                            4
block north of Sunny’s, drove out of the KFC parking lot, and then headed south on

Chicago Avenue. Colbert relied on an aerial photograph of the neighborhood where the

murder occurred (Exhibit 4) to testify that it would have been impossible for him to leave

Sunny’s, drive to the crime scene, commit the crime, and then drive back past Sunny’s

during the eight-minute time period between 6:13 p.m. and 6:21 p.m.

       Additionally, Colbert disputed his role in the December 27 incident. Colbert

stated that Parker asked him to come over to M.C.’s apartment and “cook up some crack

for him.” At the apartment, Parker accused Colbert of stealing his drugs and pointed a

gun at Colbert. During an ensuing struggle Parker shot both of Colbert’s legs, and when

Colbert grabbed for the gun, Parker was shot. Colbert admitted that an earlier version of

the incident he told police was a lie.

       Howard Wilder testified that he and Colbert drove to M.C.’s apartment building in

Colbert’s car and that Colbert left the car saying he would be back shortly. According to

Wilder, Colbert did not appear to be carrying a gun when he left the car. Wilder testified

further that Colbert stumbled out of the apartment building about twenty minutes later

saying “he shot me.” As Colbert entered the car, Wilder saw a man holding a gun

emerge from M.C.’s apartment building. On cross-examination, Wilder admitted there

were several inconsistencies between his testimony and a prior statement he had given to

the police.

       On direct appeal, Colbert challenged his conviction based on: (1) the sufficiency

of the evidence; (2) an alleged discovery violation by the State; and (3) prosecutorial

misconduct. Colbert I, 716 N.W.2d at 649. To support his sufficiency of the evidence


                                            5
claim, Colbert cited the inconsistent witness descriptions of the shooter, the

implausibility of Parker’s version of the December 27 incident, and the narrow time-

frame between the time Colbert left Sunny’s and the time he was observed driving past

Sunny’s at 6:21 p.m., shortly after the murder occurred. Id. at 653. We affirmed

Colbert’s conviction, concluding that the evidence was sufficient to support Colbert’s

conviction and that Colbert’s other claims were meritless. Id. at 653–57.

       Colbert subsequently petitioned for a writ of habeas corpus in federal district court

asserting the same three grounds for relief he had raised in his direct appeal. See Colbert

v. Minnesota, No. 06-4407, 2007 WL 4224214 (D. Minn. Nov. 28, 2007). The court

denied the writ. Id. at *5.

       In March 2008 Colbert filed his first petition for postconviction relief.2 The

postconviction court denied Colbert’s petition without a hearing. Colbert filed his second

petition for postconviction relief in July 2008.3 The postconviction court again denied

Colbert’s petition without a hearing. Colbert attempted to appeal the denial, but we

dismissed the appeal because he failed to timely file a notice of appeal. See Colbert v.

State, A09-858, Order at 2 (Minn. filed May 27, 2009). In December 2009, Colbert filed




2
       In his first petition, Colbert alleged that (1) the evidence was insufficient to
convict him; (2) the State committed a discovery violation; and (3) additional forensic
testing would prove his innocence.
3
      In his second petition, Colbert argued (1) that he received ineffective assistance of
counsel and (2) that the State used illegally seized evidence against him at trial.


                                             6
his third petition for postconviction relief.4 Colbert amended this petition with additional

claims in February 2010 (Colbert’s fourth request for postconviction relief).5           The

postconviction court summarily denied these petitions. In January 2011, Colbert filed his

fifth petition for postconviction relief.6 The postconviction court summarily denied the

petition and Colbert appealed.       We affirmed the postconviction court’s denial of

Colbert’s fifth petition, concluding that the petition was untimely under Minn. Stat.

§ 590.01, subd. 4(a). Colbert v. State (Colbert II), 811 N.W.2d 103, 105 (Minn. 2012).

       Colbert filed his sixth petition for postconviction relief on July 29, 2014, alleging

(1) newly discovered evidence that a defense witness was threatened by a state actor prior

to testifying at trial; (2) newly discovered evidence that the State altered Exhibit 4 and

used the altered exhibit to make improper arguments at trial; (3) juror misconduct; and

(4) that the cumulative errors require a new trial in the interests of justice.          The

postconviction court denied Colbert’s petition without an evidentiary hearing.



4
     In Colbert’s third petition he asserted multiple deficiencies by his trial counsel
amounting to ineffective assistance of counsel.
5
       In his fourth petition, Colbert argued that his state and federal constitutional rights
were violated at trial because (1) he was innocent; (2) the prosecutor had committed
misconduct by using false evidence and manipulating the testimony; and (3) the State’s
forensic video analyst did not qualify as an expert witness.
6
        In his fifth petition, Colbert alleged: (1) the police used unnecessarily suggestive
identification techniques to coerce witnesses into positively identifying his car as the one
at the crime scene; (2) an expert witness for the State impermissibly based his testimony
on illegally seized evidence; and (3) the prosecutor committed misconduct by, among
other things, introducing an altered aerial photograph of the neighborhood where the
murder occurred.


                                              7
                                              I.

       On appeal, Colbert argues the postconviction court abused its discretion in

denying his petition by concluding: (1) the witness intimidation claim lacks merit; (2) the

claim based on Exhibit 4 is time-barred under Minn. Stat. § 590.01, subd. 4(a); and (3)

the juror misconduct and the cumulative error claims are procedurally barred under State

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

       We review the denial of a petition for postconviction relief, as well as a request for

an evidentiary hearing, for an abuse of discretion. Riley v. State, 819 N.W.2d 162, 167

(Minn. 2012). We review legal issues de novo, but we review factual matters under the

clearly erroneous standard. Brown v. State, 863 N.W.2d 781, 786 (Minn. 2015); Riley,

819 N.W.2d at 167. A postconviction court need not grant a hearing on a claim if the

files and records of the proceeding conclusively establish that the petitioner is not entitled

to relief. Minn. Stat. § 590.04, subd. 1 (2014). Accordingly, a postconviction court may

summarily deny a claim that is untimely under the postconviction statute of limitations,

Minn. Stat. § 590.01, subd. 4(a), or procedurally barred under Knaffla. See, e.g., Lussier

v. State, 853 N.W.2d 149, 153 (Minn. 2014); Riley, 819 N.W.2d at 170–71.

                                              II.

       Colbert first argues he was deprived of a fair trial due to the State’s intimidation of

a trial witness. Colbert relies on the affidavit of Howard Wilder, which states that he was

interviewed by a man and a woman “from the district attorney’s office” before trial and

that later, at trial, the man told Wilder that if he said anything to help Colbert the

prosecutor would make his life “a living hell.” Because Wilder believed the man was a


                                              8
prosecutor and that he “would follow up on his threats,” Wilder did not report the

conversation. The State argues that Colbert’s witness-intimidation claim is time-barred

under Minn. Stat. § 590.01, procedurally barred under Knaffla, and lacks substantive

merit.

         Assuming without deciding that Colbert’s witness-intimidation claim is not time-

barred under Minn. Stat. § 590.01 or procedurally barred under Knaffla, we turn to the

merits of that claim. The parties do not agree on the standard we should apply in

assessing the witness intimidation claim. Colbert argues that the government actor’s

interference with Wilder’s decision to testify violated his due process rights and is

harmful per se. See, e.g., United States v. Thomas, 488 F.2d 334 (6th Cir. 1973). The

State argues that Colbert must show prejudice to be entitled to a new trial. State v.

Graham, 764 N.W.2d 340, 349 (Minn. 2009).

         The U.S. Supreme Court has recognized that a defendant’s right to present his own

witnesses in order to establish a defense is a fundamental element of due process.

Washington v. Texas, 388 U.S. 14, 19 (1967); see also Taylor v. Illinois, 484 U.S. 400,

408 (1988) (“Few rights are more fundamental than that of an accused to present

witnesses in his own defense. Indeed, this right is an essential attribute of the adversary

system itself.” (internal citation omitted)). A defendant’s right to present a complete

defense includes the right to compel the attendance, and present the testimony, of his own

witnesses. Washington, 388 U.S. at 18–19. The same rights are protected under the

Minnesota Constitution. Minn. Const. art. I, § 7 (“No person shall be held to answer for a

criminal offense without due process of law.”). Indeed, the right to present a complete


                                             9
defense specifically encompasses “the right to call witnesses.” State v. LeDoux, 770

N.W.2d 504, 513 (Minn. 2009) (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

       In Webb v. Texas, the Supreme Court concluded that a defendant’s due process

rights had been violated when the trial judge gratuitously and severely admonished the

sole witness proffered by the defense, who had a criminal record and was then serving a

prison sentence, on the dangers of perjury, and the witness subsequently refused to

testify. 409 U.S. 95, 97–98 (1972). In reversing the conviction, the Court stated that “the

unnecessarily strong terms used by the judge could well have exerted such duress on the

witness’ mind as to preclude him from making a free and voluntary choice whether or not

to testify.” Id. at 98.

       In United States v. Thomas, the Sixth Circuit addressed whether the due process

rights of three defendants had been violated when a secret service agent involved in the

case told a prospective witness he would be prosecuted if he testified in the case, and the

witness subsequently refused to testify. 488 F.2d 334 (6th Cir. 1973). The Thomas court

relied on Webb to reverse the co-defendants’ convictions and order a new trial. Id. at

336. The Thomas court rejected the government’s argument that Webb required a finding

of prejudice. Id. The court concluded that the government’s actions “substantially

interfered with any free and unhampered determination the witness might have made as

to whether to testify and if so as to the content of such testimony,” and even if a showing

of prejudice were required, nothing short of offering the witness complete immunity

could have “restored his free and voluntary choice, eliminating the prejudice.” Id.




                                            10
       Subsequent federal cases have used the “substantially interfered” language in

Thomas as the test for determining when a government actor’s conduct violates a

defendant’s right to present a complete defense. See, e.g., United States v. Serrano, 406

F.3d 1208, 1216 (10th Cir. 2005); United States v. Jackson, 935 F.2d 832, 846 (7th Cir.

1991); Demps v. Wainwright, 805 F.2d 1426, 1433 (11th Cir. 1986); Peeler v. Wyrick,

734 F.2d 378, 381 (8th Cir. 1984); United States v. Teague, 737 F.2d 378, 383 (4th Cir.

1984); United States v. Little, 753 F.2d 1420, 1439 (9th Cir. 1984); United States v.

Crawford, 707 F.2d 447, 449 (10th Cir. 1983); United States v. Goodwin, 625 F.2d 693,

703 (5th Cir. 1980); United States v. Henricksen, 564 F.2d 197, 198 (5th Cir. 1977).

Similarly, we have stated that to determine “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 ‘substantial.’ ” State v. Graham, 764 N.W.2d 340, 349 (Minn. 2009) (quoting

Serrano, 406 F.3d at 1216).7 We therefore use the phrase “substantial interference test”

when referring to this test.


7
        The inquiry into whether the governmental interference is substantial is
“extremely fact specific.” United States v. True, 179 F.3d 1087, 1090 (8th Cir. 1999).
Interference may involve threats of prosecution, e.g., United States v. Smith, 478 F.2d
976, 979 (D.C. Cir. 1973), or other intimidating conduct, see, e.g., United States v.
MacCloskey, 682 F.2d 468, 479 (4th Cir. 1982) (prosecutor’s “eleventh hour” telephone
call to witness’s attorney reminding him of potential fifth amendment problem if witness
took stand), that were designed to intimidate, see, e.g., United States v. Whittington, 783
F.2d 1210, 1219 (5th Cir. 1986); United States v. Little, 753 F.2d 1420, 1440 (9th Cir.
1984). When, under the totality of the circumstances, the substance of what the state
actor communicates to the witness “is a threat over and above what the record indicates is
necessary, and appropriate, the inference that the prosecutor sought to coerce a witness
                                                        (Footnote continued on next page.)

                                             11
       In State v. Beecroft, a plurality opinion, the substantial interference test was

applied to assess whether the prosecutor and the medical examiner had violated the

defendant’s due process rights by interfering with defense witnesses’ decisions to testify.

813 N.W.2d 814, 839 (Minn. 2012). The witness interference in Beecroft was discovered

during the trial. Id. at 828-30. Although the defendant in Beecroft made a number of

requests for relief, she did not assert a due process claim. Id. Due to her failure to

specifically object on due process grounds at trial, three members of the court would have

applied plain-error analysis to the witness-interference claim. Id. at 836 (citing State v.

Jenkins, 782 N.W.2d 211, 229-30 (Minn. 2010)). Unlike the defendant in Beecroft,

Colbert did not discover the witness-interference claim until after trial. Because Colbert

could not make a timely objection at trial to the witness interference, his case does not

implicate the principle underlying the forfeiture doctrine: “encourage[ing] defendants to

object while in the district court so that errors can be corrected before their full impact is

realized.” State v. Pearson, 775 N.W.2d 155, 161 (Minn. 2009). Consequently, the

present case provides us with the opportunity to decide whether harmless-error analysis

or a harmful per se rule should apply to a claim that a government actor interfered with a

defense witness’s decision to testify.

       Generally, there are two types of error: structural error and trial error. State v.

Kuhlmann, 806 N.W.2d 844, 851 (Minn. 2011). On the one hand, “[s]tructural errors are


(Footnote continued from previous page.)
into silence is strong.” United States v. Jackson, 935 F.2d 832, 847 (7th Cir. 1991)
(internal quotation omitted).


                                             12
‘defects in the constitution of the trial mechanism.’ ” Id. (quoting Arizona v. Fulminante,

499 U.S. 279, 309 (1991)). Such errors affect the entire trial from beginning to end and

undermine the structural integrity of the criminal tribunal itself. Id. On the other hand, a

trial error is an error that “may [] be quantitatively assessed in the context of the other

evidence presented in order to determine whether [it was] harmless beyond a reasonable

doubt.” Fulminante, 499 U.S. at 307–08.

       The United States Supreme Court has observed that most constitutional errors are

trial errors, which are reviewed under a “prejudicial-impact” or harmless-error analysis to

determine whether they require reversal and a new trial. Neder v. United States, 527 U.S.

1, 8 (1999); see, e.g., Carella v. California, 491 U.S. 263, 266 (1989) (per curiam) (jury

instruction containing erroneous conclusive presumption); Crane v. Kentucky, 476 U.S.

683, 691 (1986) (exclusion of the defendant’s testimony regarding the circumstances of

his confession); see also State v. Finnegan, 784 N.W.2d 243, 251 n.6 (Minn. 2010)

(continuing the trial in the defendant’s absence). Structural errors resulting in automatic

reversal occur only in a “very limited class of cases.” Neder, 527 U.S. at 8; see, e.g.,

Sullivan v. Louisiana, 508 U.S. 275, 281–82 (1993) (constitutionally deficient

reasonable-doubt jury instruction); Waller v. Georgia, 467 U.S. 39, 49–50 (1984) (denial

of the right to a public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (denial

of the right to self-representation at trial); Gideon v. Wainwright, 372 U.S. 335, 345

(1963) (total deprivation of the right to counsel at trial); Tumey v. Ohio, 273 U.S. 510,

531–32 (1927) (deprivation of the right to an impartial judge); State v. Logan, 535

N.W.2d 320, 324 (Minn. 1995) (failure to dismiss a biased juror for cause). In United


                                            13
States v. Hasting, the Court acknowledged that certain errors may involve “rights so basic

to a fair trial that their infraction can never be treated as harmless error,” but the Court

concluded that “it is the duty of a reviewing court to consider the trial record as a whole

and to ignore errors that are harmless, including most constitutional violations.” 461 U.S.

499, 508-09 & n.6 (1983).

       We conclude that harmless-error analysis applies to a claim that a government

actor interfered with a defense witness’s decision to testify. The majority of federal

circuits that have considered the issue have applied harmless-error analysis.8 In favoring

harmless error over a per se test, these circuits have acknowledged the Supreme Court’s

preference towards treating most errors as trial errors rather than structural errors. Thus,

to obtain a new trial under the substantial interference test a defendant must prove (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.




8
       See, e.g., United States v. Combs, 555 F.3d 60, 64 (1st Cir. 2009); United States v.
Dogskin, 265 F.3d 682, 686 (8th Cir. 2001); United States v. Foster, 128 F.3d 949, 953
(6th Cir. 1997); United States v. Saunders, 943 F.2d 388, 392–93 (4th Cir. 1991); United
States v. Pinto, 850 F.2d 927, 933 (2d Cir. 1988); United States v. Simmons, 670 F.2d
365, 371 n.4 (D.C. Cir. 1982). In fact, even the Sixth Circuit has moved away from the
harmful per se analysis adopted in Thomas. See, e.g., United States v. Foster, 128 F.3d
949, 953 (6th Cir. 1997) (applying harmless-error test). Moreover, the authority for
applying a harmful per se rule to instances of substantial governmental interference with
a defense witness’s decision to testify, all predate the Supreme Court’s decision in
Hasting. United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980); United States v.
Morrison, 535 F.2d 223, 228 (3d Cir. 1976). Later opinions have acknowledged that a
per se analysis is no longer viable in the wake of Hasting. See, e.g., Combs, 555 F.3d at
64.


                                            14
       Colbert has failed to satisfy the third requirement of the substantial interference

test. Wilder testified as expected and corroborated Colbert’s version of the events. A

review of his testimony reveals that Wilder had no reluctance to tell his story, and even

embellished the details he provided to the prosecutor in an earlier taped statement in a

way that was favorable to Colbert. Moreover, Wilder’s testimony did not foreclose the

possibility that Colbert possessed the gun used in the December 27 shooting. Both

Parker and Richardson testified that Colbert had a gun at M.C.’s apartment on December

27. Consequently, even assuming the allegations in Wilder’s affidavit are true, and

assuming that this conduct constitutes a “substantial interference” with Wilder’s decision

to testify, Colbert has failed to prove he was prejudiced in any way by the conduct.

Therefore, the postconviction court did not abuse its discretion by summarily denying

Colbert’s witness intimidation claim because the alleged conduct is harmless beyond a

reasonable doubt.

                                             III.

       Second, Colbert challenges the postconviction court’s summary denial of his claim

that he is entitled to a new trial due to juror misconduct. Colbert relies on the affidavit of

a co-worker of one of the jurors at his trial, which states that the juror was emotional and

felt she had been pressured into voting guilty, despite her better judgment.             The

postconviction court concluded this claim was procedurally barred under Knaffla because

it was known but not raised at the time of Colbert’s direct appeal and previous

postconviction petitions.    Specifically, the court determined that Colbert’s counsel

received the co-worker’s affidavit on February 23, 2005, and submitted a request for a


                                             15
Schwartz hearing, which was denied by the district court on July 11, 2005. Because

Colbert knew of the facts underlying his juror-misconduct claim at the time of his direct

appeal and previous postconviction petitions but failed to raise it until nearly nine years

later, the court concluded that this claim is procedurally barred under Knaffla.

Nonetheless, Colbert argues that the claim should be reviewed under the interests-of-

justice exception to the Knaffla rule.

       The Knaffla rule originally provided that “where direct appeal has once been

taken, all matters raised therein, and all claims known but not raised, will not be

considered upon a subsequent petition for postconviction relief.” Knaffla, 309 Minn. at

252, 243 N.W.2d at 741. In Black v. State, 560 N.W.2d 83, 85 (Minn. 1997), we

reformulated the Knaffla rule as follows: 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. See also Andersen v. State,

830 N.W.2d 1, 8 (Minn. 2013); Boitnott v. State, 640 N.W.2d 626, 630 (Minn. 2002).

Additionally, the Knaffla rule bars consideration of claims that were raised, or could have

been raised, in a previous postconviction petition. Hooper v. State, 838 N.W.2d 775, 787

(Minn. 2013). Under the interests-of-justice exception to the Knaffla rule, the court may

review a claim as fairness requires when the claim has substantive merit and the




                                            16
petitioner did not deliberately and inexcusably fail to raise the issue in the direct appeal

or a previous postconviction petition.9 Evans v. State, 788 N.W.2d 38, 44 (Minn. 2010).

       We have consistently followed the rule that a jury’s deliberations must remain

inviolate and its verdict may not be reviewed or set aside on the basis of affidavits or

testimony concerning that which transpired in the course of those deliberations. See, e.g.,

State v. Pederson, 614 N.W.2d 724, 730–31 (Minn. 2000); State v. Hoskins, 292 Minn.

111, 125–26, 193 N.W.2d 802, 812 (1972).          The usefulness of a juror’s statement

regarding a verdict is limited by Minn. R. Evid. 606(b), which provides:

       Upon an inquiry into the validity of a verdict or indictment, a juror may not
       testify as to any matter or statement occurring during the course of the
       jury’s deliberations or to the effect of anything upon that or any other
       juror’s mind or emotions as influencing the juror to assent to or dissent
       from the verdict or indictment or concerning the juror’s mental processes in
       connection therewith, except that a juror may testify on the question
       whether extraneous prejudicial information was improperly brought to the
       jury’s attention, or whether any outside influence was improperly brought
       to bear upon any juror, or as to any threats of violence or violent acts
       brought to bear on jurors, from whatever source, to reach a verdict. Nor
       may a juror’s affidavit or evidence of any statement by the juror concerning
       a matter about which the juror would be precluded from testifying be
       received for these purposes.




9
       In 2005 the Legislature amended Minn. Stat. § 590.01, subd. 1 by adding a
sentence providing that “[a] petition for postconviction relief after a direct appeal has
been completed may not be based on grounds that could have been raised on direct
appeal of the conviction or sentence.” Act of June 2, 2005, ch. 136, art. 14, § 12, 2005
Minn. Laws 901, 1097. Based upon the 2005 amendments to the postconviction statute,
it is unclear whether the Knaffla exceptions remain applicable to petitions for
postconviction relief. Because that issue has not been raised by the State, we decline to
reach it in this case.



                                            17
See also Mattox v. United States, 146 U.S. 140, 148–49 (1892); Hoskins, 292 Minn. at

125, 193 N.W.2d at 812 (“[J]urors are not competent to disclose any matters which

inhere in the verdict, such as their mental processes in connection with it or any other

matter resting alone in their minds or consciences”).

       Colbert offers no explanation for his failure to raise the juror-misconduct claim in

his direct appeal or in any of his several prior postconviction petitions. Moreover,

Colbert’s juror-misconduct claim lacks merit because the affidavit Colbert relies upon

contains information about the juror’s thought processes, which is not admissible to show

misconduct under Minn. R. Evid. 606(b). Accordingly, the postconviction court did not

abuse its discretion by concluding that Colbert’s juror-misconduct claim is procedurally

barred under Knaffla, because Colbert failed to establish that his claim should be

reviewed under the interests-of-justice exception.

                                            IV.

       Colbert next argues that the State altered Exhibit 4 prior to trial and used the

altered exhibit to make improper arguments at trial. Colbert relies on the affidavit of

private investigator, William Ojile, which states that there has never been a direct route

from the KFC parking lot north through the alleyway to Columbus Avenue, without

going to Lake Street. Based on this evidence, Colbert argues that the State altered

Exhibit 4 to make it appear as though there was a direct route from the KFC parking lot

north through the alleyway to Columbus Avenue and used the altered exhibit to make

improper arguments at trial.




                                            18
       Colbert’s claim lacks merit. Specifically, the evidence he presents is not new

evidence. Exhibit 4 clearly shows that any possible direct route through an alley from the

KFC parking lot to the crime scene on Columbus Avenue is blocked by a fence or some

other impediment. Thus, the nonexistence of a direct route from the KFC parking lot

north through the alleyway to Columbus Avenue is not new information and could have

been discovered by examining the exhibit at the time of Colbert’s trial. Further, Colbert

has failed to establish that Exhibit 4 was altered or used improperly by the prosecutor.

The prosecutor argued that Colbert “drove out the back of the KFC lot, over to Columbus

Avenue, drove his car up, parked in the position where it was seen” by witnesses. The

prosecutor’s argument is consistent with Exhibit 4, which indicates that the only possible

route from the back of the KFC lot to Columbus Avenue is to take a left out of the KFC

lot, drive south through the alley, make a right turn on Lake Street, and another right turn

to head north on Columbus Avenue to the crime scene.

       In sum, because Colbert presents no new evidence and his claim is meritless, the

postconviction court did not abuse its discretion when it denied his altered exhibit

claim.10


10
        Colbert contends he should be granted a new trial due to the combined effect of
the claimed witness tampering, juror misconduct, and alteration of evidence, as well as
inconsistencies in the evidence presented. “Cumulative error exists when the ‘cumulative
effect of the * * * errors and indiscretions, none of which alone might have been enough
to tip the scales, operate to the defendant’s prejudice by producing a biased jury.’ ” State
v. Johnson, 441 N.W.2d 460, 466 (Minn. 1989) (alteration in original) (citing United
States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979)). To the extent that errors occurred
in this case, our careful review of the record convinces us that Colbert was not deprived
of a fair trial.


                                            19
                                            V.

       For the foregoing reasons, we affirm the postconviction court’s denial of Colbert’s

sixth petition for postconviction relief.

       Affirmed.




                                            20
