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Crow Wing County anderson, G. Barry, J. David Michael Tscheu v. Office of Appellate Courts

April 24, 2013

CROW WING COUNTY ANDERSON, G. BARRY, J. DAVID MICHAEL TSCHEU, PETITIONER, APPELLANT,
v.
OFFICE OF APPELLATE COURTS STATE OF MINNESOTA, RESPONDENT.



SYLLABUS BY THE COURT

SYLLABUS 1. The post-conviction court's credibility determinations are supported by the post-conviction evidentiary hearing record and are not clearly erroneous. 2. The post-conviction court's conclusion that newly discovered evidence was not likely to produce a result more favorable to the petitioner was not an abuse of discretion because it was supported by the court's credibility determinations.

The opinion of the court was delivered by: Anderson, G. Barry, Justice.

Affirmed.

Considered and decided by the court without oral argument.

OPINION

Appellant David Michael Tscheu was convicted of first-degree murder while committing first-degree criminal sexual conduct causing personal injury, Minn. Stat. § 609.185(a)(2) (2012), in connection with the death of Bonita Thoms. We affirmed Tscheu's conviction on direct appeal. State v. Tscheu, 758 N.W.2d 849, 865 (Minn. 2008). Tscheu filed a petition for post-conviction relief, alleging a claim of newly discovered evidence. After an evidentiary hearing, the post-conviction court concluded that Tscheu's newly discovered evidence was not credible and, therefore, was not likely to produce a result more favorable to Tscheu. Because the record supports the post-conviction court's credibility determinations, we affirm.

I.

The facts surrounding the death of Bonita Thoms are set forth in detail in Tscheu, 758 N.W.2d at 852-57. We limit our discussion to the facts directly related to this appeal. Police found Thoms dead in her bathtub on February 26, 2005. Thoms died sometime between 3:18 p.m. and 9:18 p.m. on February 25, 2005, as a result of asphyxia from drowning. A sexual assault exam revealed semen matching Tscheu's DNA inside Thoms' rectum.

After Tscheu's semen was discovered, he was arrested and indicted by a grand jury for first-degree murder while committing first-degree criminal sexual conduct causing personal injury, Minn. Stat. § 609.185(a)(2). Tscheu pleaded not guilty. At trial, the defense's theory was that Tscheu had consensual sex with Thoms the night before her death and a third party later murdered her. The defense identified M.H. as a potential third-party perpetrator. A jury found Tscheu guilty of the charged offense. The district court convicted Tscheu and sentenced him to life in prison. Tscheu appealed his conviction and we affirmed. Tscheu, 758 N.W.2dat 865.

In 2009, Tscheu filed a petition for post-conviction relief pursuant to Minn. Stat. § 590.01 (2012), requesting a new trial based on newly discovered evidence. Tscheu claims the new evidence offered by A.C. and Thoms' stepson supports his trial theory that M.H., and not Tscheu, murdered Thoms.

At a post-conviction evidentiary hearing, A.C. testified to the following events. M.H., M.H.'s girlfriend, and A.C. left the girlfriend's apartment together at midnight on the morning of February 25, 2005. The group drove to the home of M.H.'s half-brother-across the street from Thoms' house. Both M.H. and his girlfriend went inside Thoms' house. When M.H. and his girlfriend returned to the car, M.H. asked A.C. to turn the heat up because he was wet and cold, the girlfriend was upset, and M.H. was carrying a bag. The group drove to Starbuck where they stayed for approximately 5 to 7 days after the incident at Thoms' house. A.C. also testified that he did not know Thoms' stepson.

While testifying, A.C. also admitted to inconsistencies between his testimony and affidavits he signed in 2009 and 2010. Specifically, A.C.'s testimony regarding the time and the day the group arrived at Thoms' house was inconsistent. At the post-conviction hearing, A.C. testified the group left the apartment around midnight on the morning of February 25, 2005. But in an October 2010 affidavit, A.C. stated the group left the apartment sometime between 7:00 p.m. and 10:00 p.m. on the evening of February 25, 2005. A.C. also admitted that affidavits he signed in 2009 and 2010 were inconsistent as to other details, including: whether M.H. was on the phone when A.C. arrived at the apartment; how long M.H. and his girlfriend were inside Thoms' house; the time the group left Thoms' house; how wet M.H. was when he left Thoms' house; whether the girlfriend was "hysterical"; and whether A.C. was "forced" to stay in Starbuck.

At the post-conviction evidentiary hearing, Tscheu also presented a letter, addressed to Tscheu's mother, and an affidavit, both allegedly written by Thoms' stepson.*fn1 But the stepson did not testify at the hearing. In the affidavit, the stepson claimed he was "very sick" and did not "want a[n] innocent man to be punished for something he did not do." The affidavit described his version of the February 25, 2005 events. The stepson was in Minnesota with M.H. at the time of Thoms' death. The stepson drove M.H. to Thoms' house so M.H. could collect money from Thoms. The stepson waited in the car and M.H. returned with Thoms' purse and keys. M.H. planned to keep the purse and keys until Thoms paid him. The stepson returned to California. The stepson's letter recited a similar series of events.

After the hearing, the post-conviction court found that A.C.'s affidavits and testimony were "conflicting, not credible, and . . . not likely to produce a result more favorable to" Tscheu. As to the letter and affidavit by the stepson, the court found the evidence was in direct conflict with evidence that M.H. was in Starbuck on the afternoon and evening of February 25, 2005. Because the newly discovered evidence was not credible, the post-conviction court concluded that it was "not likely to ...


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