HUDSON, Justice.
In 2008, appellant Lincoln Lamar Caldwell was convicted of first-degree murder for the benefit of a gang on an accomplice-liability theory. We affirmed Caldwell's conviction and the denial of his first two postconviction petitions in August 2011. See State v. Caldwell (Caldwell I), 803 N.W.2d 373 (Minn.2011). Caldwell subsequently filed a third postconviction petition in May 2012, in which he alleged that three witnesses presented false testimony at his trial. The postconviction court summarily denied Caldwell's petition. Caldwell appealed to our court, arguing that the postconviction court abused its discretion when it did not grant him an evidentiary hearing. We reversed the postconviction
Following an evidentiary hearing, the postconviction court denied Caldwell's third postconviction petition. Caldwell appeals, arguing that the State and the postconviction court intentionally misstated the law and intimidated Shawntis Turnage, a recanting witness, when they apprised Turnage of his Fifth Amendment rights. Caldwell also alleges that the postconviction court erred when it struck the testimony Turnage gave before invoking his Fifth Amendment privilege. For the reasons that follow, we affirm the denial of Caldwell's third postconviction petition.
In June 2006, 18-year-old Brian Cole died from injuries he sustained during a drive-by shooting near the corner of Eighth Avenue and Penn Avenue in North Minneapolis. Cole was the unintended victim of a gunshot fired through the open window of an SUV. After conducting an investigation, police officers determined that Cole was standing near members of the One-Nine gang when he was shot. Although Cole was not a member of a gang, the One-Nine gang was engaged in an ongoing rivalry with the LL gang at the time. Witnesses identified Caldwell, who was a member of the LL gang, as the driver of the SUV from which the gunshot originated. Witnesses identified the shooter as another member of the LL gang. Relying on this and other evidence, the State prosecuted Caldwell and the shooter for Cole's murder. Caldwell I, 803 N.W.2d at 381.
At Caldwell's trial, the State's witnesses included Carnell Harrison, William Brooks, and Shawntis Turnage. Harrison and Brooks were both passengers in the SUV when Cole was shot, and they testified about Caldwell's role in the shooting. Turnage, who was a friend of Caldwell, was not present during the shooting but testified that Caldwell spoke to him about the shooting at a friend's house shortly afterward. According to Turnage, Caldwell had "got down with the One-Nine[s]," which Turnage understood to mean "fighting or shooting or [a] brawl or something." Turnage testified that Caldwell told him that "Ill Will," one of the leaders of the One-Nine gang, was the "intended target." Caldwell revealed to Turnage that the gun used was a grey and black 9mm Smith and Wesson semiautomatic handgun. Based on Caldwell's description, Turnage recognized the gun as one that he had seen in Caldwell's possession on several occasions.
Following the trial, the jury found Caldwell guilty of all six counts of murder that were charged in the indictment. In June 2008, the district court convicted him of first-degree murder for the benefit of a gang — the most serious offense — and sentenced him to life in prison without the possibility of release.
Caldwell filed a direct appeal of his conviction in September 2008. We stayed his direct appeal while Caldwell filed two petitions for postconviction relief. The postconviction court denied both of Caldwell's postconviction petitions, and Caldwell appealed. We consolidated Caldwell's three appeals. In August 2011, we affirmed Caldwell's conviction and the denial of both petitions for postconviction relief. See Caldwell I, 803 N.W.2d at 377.
In May 2012, Caldwell filed his third petition for postconviction relief, in which he alleged that Harrison, Brooks, and Turnage presented false testimony at his trial. In support of his petition, Caldwell submitted a statement from each of the three witnesses, along with a signed and notarized
Caldwell appealed the denial of his third postconviction petition and argued that the postconviction court abused its discretion when it denied his petition without holding an evidentiary hearing. Caldwell II, 853 N.W.2d at 768. On appeal, we determined that the postconviction court erred when it summarily denied Caldwell's petition. Id. We concluded that Caldwell alleged facts that, if proven, would entitle him to relief. Id. Therefore, we remanded the case to the postconviction court for an evidentiary hearing to determine the credibility of the recantations. Id. at 778.
In December 2014, the postconviction court held the evidentiary hearing. The postconviction court first determined that it would not admit any witness's recorded statement unless the witness testified. Thereafter, Turnage took the stand. After Turnage was sworn in, the postconviction court gave the following warning:
The court subsequently asked Turnage if he understood his rights, and Turnage replied that he did. The court proceeded to ask Turnage whether he needed time to talk to an attorney or if he could testify that day. Turnage in return inquired whether talking to an attorney "would ... prolong this" to which the court responded, "Yes." Turnage then said he did not want to talk to an attorney.
Following that colloquy, Caldwell's counsel began his examination of Turnage. Turnage recanted his previous trial testimony, explaining that he had not seen Caldwell on the day of the shooting and had never seen Caldwell with a gun. Additionally, Turnage stated that he did not visit a friend's house with Caldwell on the day of Cole's death or hear Caldwell say he "got down with the One-Nines" at that time. Turnage also explained why his testimony had changed since the trial in 2008. According to Turnage, he was young at the time that he testified and was "intimidated about it."
The State then attempted to show why Turnage might have changed his testimony. The State asked Turnage if he was approached in prison about his testimony and if he recalled providing multiple statements to investigators that two prisoners threatened to stab him if he did not change his testimony. Turnage said, "No," and immediately asked the court whether he had to continue answering the State's questions. At that time, the postconviction court reminded Turnage:
Turnage asked if he was going to be "incriminated more" as a result of testifying, and if he could just say "I plead the Fifth or somethin' like that." The postconviction court explained that it tried to communicate this point to Turnage earlier:
Turnage replied, "Sure thing."
The State continued its cross-examination and at one point asked Turnage if he acknowledged that he was perjuring himself now on the stand or did so at the trial in 2008. Turnage indicated that he did not really understand what perjury was, but that he was "gonna get charged with perjury any way it goes." A few questions later, the State asked Turnage: "Are you aware that in addition to perjury charges you could face charges related to aiding an offender, accomplice after the fact?" Turnage said that he was now aware. The State continued, "By doing so, you know, you could be sentenced up to half of what the Petitioner received in his case, meaning half of a life sentence if really you wanna sit there and say you lied in 2008?" Turnage laughed and said, "What is you tryin' to do, intimidate, man?"
The postconviction court then intervened and told Turnage, "Whether the State ... can charge you or not is not something that they can't say for sure right now." Turnage asked if he was "gonna get the half of a life sentence?" to which the court responded,
Turnage said, "yeah, I change my mind, I don't want no positives no more. So is that good enough?"
After a bench conference with counsel, the following exchange occurred:
The postconviction court recessed Turnage's testimony to allow Turnage to seek counsel, and he did so. Caldwell's counsel noted on the record that he "thought there was some intimidation going on" regarding the "potential charges of aiding an offender after the fact." The postconviction court determined that the prosecutor was not "attempting to intimidate," but rather was "vigorously cross examining on the witness'[s] possible exposure by testifying differently from trial and in a way that would benefit the [d]efendant." The postconviction court explained, however, that the cross-examination
In early March 2015, the postconviction court resumed the evidentiary hearing. By that time, Turnage was represented by counsel from the Public Defender's office. Turnage was re-sworn, invoked his Fifth Amendment privilege against self-incrimination, and refused to answer further questions. After Turnage was excused, the postconviction court struck Turnage's testimony from the record of the December evidentiary hearing. The court reasoned that Turnage's December 2014 waiver was not complete, knowing, and voluntary because Turnage was not apprised of the possible charge of aiding an offender, which carries a much more serious penalty than perjury, of which Turnage was advised. Caldwell's counsel objected and asked for additional time to research the question of whether Turnage's testimony should be stricken. The court told Caldwell's counsel it would entertain
Caldwell subsequently filed a motion for reconsideration of the postconviction court's order to strike Turnage's testimony. The following day, the court resumed the evidentiary hearing. Brooks could not be located, and Caldwell's counsel was still working on getting Harrison to court to testify. The postconviction court once again addressed Turnage's stricken testimony. The postconviction court gave the State an opportunity to respond in writing to Caldwell's motion, and the State argued that an alternative basis for striking the testimony was that the State did not have an opportunity to cross-examine Turnage on his other statements. The court again recessed the hearing.
The evidentiary hearing continued in late June 2015. The postconviction court heard testimony from Harrison, who recanted his trial testimony. Because Brooks still could not be located, his statement to the defense investigator was not admitted into evidence. Caldwell's attorney rested, the State did not call any witnesses, and the postconviction court took the matter under advisement.
At the end of July, the postconviction court issued its order denying Caldwell's third postconviction petition and his motion for reconsideration of the decision to strike Turnage's testimony. The court found that Harrison's testimony was not credible. The court further explained that even if Turnage's testimony were credible, "Caldwell could not meet his burden under the second Larrison
Now proceeding pro se, Caldwell appeals from the denial of his third postconviction petition. Caldwell appears to make three main arguments.
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 and its findings of fact for clear error. McKenzie v. State, 872 N.W.2d 865, 870 (Minn.2015).
Turning to Caldwell's arguments, we first address whether the postconviction court or the prosecutor substantially interfered with Turnage's decision to testify at the postconviction evidentiary hearing. Caldwell argues that the postconviction court and the prosecutor "sat-out [sic] to scare, intimidate and threaten [Turnage] with false and misleading statement[s] of the law." Although Caldwell's brief does not mention the Fourteenth Amendment right to due process, Caldwell seems to be arguing that his due process right to present a complete defense was violated by the prosecutor's and the postconviction court's actions during the hearing. See State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) ("Due process requires that every defendant be `afforded a meaningful opportunity to present a complete defense.'" (quoting State v. Richards, 495 N.W.2d 187, 191 (Minn.1992))), accord U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. Specifically, Caldwell contends that because of the conduct of the postconviction court and the prosecutor, Turnage decided to exercise his Fifth Amendment right against self-incrimination rather than continue to testify at the hearing. See Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) ("The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, ... [The defendant] has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.")). But see State v. Graham, 764 N.W.2d 340, 349 (Minn.2009) ("A defendant's constitutional right to present a defense is not an unfettered right; it does not permit a defendant to compel a prospective witness to waive her Fifth Amendment privilege against self-incrimination.").
McKenzie v. State, 872 N.W.2d 865, 870 (Minn.2015) was the first time we considered a claim that a government actor interfered with a witness during a postconviction hearing. There, we assumed without deciding that the Fourteenth Amendment right to present a complete defense applied to postconviction proceedings. Id. at 871. Because of this assumption, we applied the "substantial interference" test from Colbert v. State, 870 N.W.2d 616, 624-25 (Minn. 2015). McKenzie, 872 N.W.2d at 871. Under that test, a 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." Id. (citing Colbert, 870 N.W.2d at 625; and 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 "substantial."'")).
Caldwell seems to argue that the unobjected-to perjury warnings the postconviction court gave to Turnage throughout his testimony substantially interfered with Turnage's decision to testify. Because Caldwell did not object to the postconviction court's warnings, we review for plain error. United States v. Binker, 795 F.2d 1218, 1228-29 (5th Cir.1986) (applying the plain-error standard when the defendant failed to object to alleged witness interference and concluding that the defendant's due process rights were not violated); see State v. Beecroft, 813 N.W.2d 814, 836 (Minn.2012) (plurality opinion) (applying the plain-error standard to the defendant's witness-interference claim absent objection on due process grounds at trial); State v. Griller, 583 N.W.2d 736, 740 (Minn.1998) (explaining that when a defendant does not object, we have the discretion to consider the unobjected-to error on appeal if it is a plain error affecting substantial rights).
Under the plain-error doctrine, a defendant must establish (1) an error, (2) that is plain, and (3) the error must affect substantial rights. Griller, 583 N.W.2d at 740. If these three prongs are met, then we assess whether we should address the error to ensure fairness and the integrity of the judicial proceedings. Id. A "plain" error is an error that is "clear or obvious" at the time of appeal. State v. Peltier, 874 N.W.2d 792, 799 (Minn.2016); State v. Kelley, 855 N.W.2d 269, 277 (Minn.2014). "An error is clear or obvious if it `contravenes case law, a rule, or a standard of conduct.'" State v. Little, 851 N.W.2d 878, 884 (Minn.2014) (quoting State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006)). We examine the law in existence at the time of appellate review, not the law in existence at the time of the district court's error, to determine whether an error is plain. Kelley, 855 N.W.2d at 277.
In a criminal trial, "`a due process violation does not arise merely ... because the government warns a defense witness of the consequences of committing perjury.'" McKenzie, 872 N.W.2d at 872 (quoting United States v. Williams, 205 F.3d 23, 29 (2d Cir.2000)). A warning of possible self-incrimination violates due process — i.e., substantially interferes with a witness's decision to testify — if the warning is "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.'" Id. at 873 (alteration in original) (quoting Webb, 409 U.S. at 98, 93 S.Ct. 351). "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.'" Id. (quoting U.S. v. True, 179 F.3d 1087, 1090 (8th Cir. 1999)). "Courts have not found due process violations in cases in which there was a high probability that the witness would commit perjury, ... and those in which
Here, the manner in which the postconviction court raised the perjury issue and the language of its warnings did not exert such duress on Turnage's mind as to preclude him from making a free and voluntary choice on whether to testify. In fact, we commend the postconviction court for its efforts to apprise Turnage of his rights and to intervene sua sponte to counter any potential misstatements by the prosecutor. But even assuming that the postconviction court's warnings exerted such duress on Turnage that he felt compelled to invoke his Fifth Amendment rights, the postconviction court's actions did not affect Caldwell's substantial rights. The postconviction court specifically determined that even if Turnage's testimony were credible, "Caldwell could not meet his burden under the second Larrison
Caldwell next claims that the objected-to cross-examination by the prosecutor interfered with Turnage's decision to testify at the evidentiary hearing because the prosecutor impermissibly threatened to prosecute Turnage for aiding an offender if he testified falsely. During the prosecutor's cross-examination of Turnage, the prosecutor asked the following questions:
Caldwell's attorney told the court that he "thought there was some intimidation going on as to the questioning and the allegations that — or potential charges of aiding an offender after the fact." Shortly after these questions, Turnage indicated that he had changed his mind about whether he wanted to continue to testify. Although Turnage did not specifically invoke his right against self-incrimination at that time, the court recessed the hearing so Turnage could obtain counsel.
At the conclusion of the hearing that day, the postconviction court explained that it
Again, we assume without deciding that the substantial-interference test applies to Caldwell's second claim. Although this is an "`extremely fact specific'" inquiry, Graham, 764 N.W.2d at 350 (quoting True, 179 F.3d at 1090), and a closer call, under these circumstances, we conclude that the prosecutor's line of questioning did not substantially interfere with Turnage's decision to testify. The prosecutor's cross-examination was inartful at times, but did not cross the constitutional line. Graham, 764 N.W.2d at 349. Moreover, the postconviction court specifically found that the prosecutor was not attempting to intimidate Turnage, but rather to vigorously cross-examine him. The postconviction court was in the best position to make such a determination, having heard the tone of the questioning, and we defer to its finding. McKenzie, 872 N.W.2d at 870 (explaining that we defer to the postconviction court's findings of fact unless there is clear error). This finding is not clearly erroneous.
Even assuming that the prosecutor substantially interfered with Turnage's decision to testify, Caldwell has failed to satisfy the third prong of the substantial-interference test from Colbert: showing prejudice. As previously discussed, the postconviction court determined that even if Turnage's testimony were credible, "Caldwell could not meet his burden under the second Larrison prong with respect to Turnage" because "the jury would not likely have reached a different verdict had the State not called Turnage as a witness at trial." Instead, it was the "combined impact" of the allegedly false testimony of Turnage, Brooks, and Harrison that might have caused the jury to reach a different conclusion regarding Caldwell's guilt. Caldwell, 853 N.W.2d at 776-78. Turnage's testimony, standing alone, would not have been enough to satisfy the Larrison standard for a new trial. Thus, the postconviction court did not err when it rejected Caldwell's witness-intimidation claim because the alleged conduct was harmless beyond a reasonable doubt. See Colbert, 870 N.W.2d at 625.
Finally, we address whether the postconviction court erred when it struck the
We have not previously articulated the appropriate standard of review to apply in reviewing a postconviction court's decision to strike a witness's entire testimony after the witness invokes the Fifth Amendment. We conclude, however, that the approach recently taken by the United States Court of Appeals for the Eighth Circuit in United States v. Wilkens, 742 F.3d 354, 360 (8th Cir.2014) is persuasive, and today we adopt an abuse of discretion standard of review. In Wilkens, the Eighth Circuit concluded that a trial court's decision to strike a witness's testimony after the witness asserts his or her Fifth Amendment privilege against self-incrimination is reviewed for an abuse of discretion, and "only in a case of abuse of such discretion resulting in obvious prejudice should an appellate court intervene." Id. at 360 (quoting United States v. Brierly, 501 F.2d 1024, 1027 (8th Cir.1974)). This approach is logical because, to provide a fair truth-seeking process, testimony should be stricken when its truth cannot be tested. Id. (citing Smith v. United States, 331 F.2d 265, 277 (8th Cir.1964)).
Despite Caldwell's objection, the postconviction court ultimately excluded Turnage's testimony on two grounds. First, the postconviction court noted that it was within the court's discretion to strike Turnage's testimony because the State did not have an opportunity to complete its cross-examination of him. Second, the postconviction court determined that Turnage's waiver of his Fifth Amendment right was invalid. Therefore, we must determine whether either of these grounds was a proper basis to strike Turnage's testimony.
We first consider whether the State had an opportunity to meaningfully cross-examine Turnage. The postconviction court determined, and the State argues here, that Turnage's exercise of his Fifth Amendment right against self-incrimination frustrated the State's opportunity for cross-examination. We have previously looked to the federal courts for guidance on whether a trial court abuses its discretion when it strikes a witness's prior testimony after the witness invokes the Fifth Amendment. See State v. Spencer, 311 Minn. 222, 228-29, 248 N.W.2d 915, 919 (1976). In Spencer, we recognized that "courts have made a distinction between cases where the assertion of the privilege precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness has testified on direct examination." Id. at 228, 248 N.W.2d at 919 (citing United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.1963)).
The Eighth Circuit has also noted that if a witness — "by invoking the privilege — precludes inquiry into the details of his direct testimony so that there is a substantial danger of prejudice, the direct testimony should be stricken in whole or in part."
Doddington, 822 F.2d at 822.
Here, Turnage's testimony on cross-examination related to why he changed his trial testimony. When Turnage indicated that he did not want to answer any more questions, the State made an offer of proof regarding its intent to cross-examine Turnage further about the reasons that he had changed his testimony, including bribery and threats of violence. Such an inquiry went directly to the heart of Turnage's direct testimony, but the State was denied the opportunity to subject that testimony to cross-examination.
Ultimately, even if the postconviction court improperly struck Turnage's testimony, any error was harmless beyond a reasonable doubt because the postconviction court specifically found that Caldwell could not satisfy the second prong of the Larrison test regarding Turnage. Indeed, following the postconviction evidentiary hearing, both Harrison's and Brooks's trial testimony still stand, meaning that Turnage's allegedly false trial testimony, standing alone, would not have had an impact on the jury's verdict. Because the State did not have a meaningful opportunity to cross-examine Turnage, we need not decide whether Turnage's waiver of his Fifth Amendment right was knowing, voluntary, and intelligent. We therefore hold that the postconviction court did not abuse its discretion when it struck Turnage's testimony from the record.
For the foregoing reasons, we affirm the postconviction court's denial of relief.
Affirmed.
McKEIG, 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.