State v. Caldwell

322 N.W.2d 574, 1982 Minn. LEXIS 1697

• Court: Supreme Court of Minnesota
• Decided: August 6, 1982
• Docket: 49437, 51505
• Status: Published

Opinions

AMDAHL, Chief Justice.

This is a consolidated appeal by Roger Sipe Caldwell from his first-degree murder conviction and from the denial of his motion for a new trial on the ground of newly-discovered evidence. We reverse and remand.

Roger Caldwell was arrested on July 6, 1977, in connection with the June 27 murders of Elisabeth Congdon, an elderly Duluth heiress, and her nurse, Velma Pietila. On August 5, 1977, a St. Louis County grand jury indicted him on two counts of murder in the first degree. Because of the extensive publicity surrounding the matter, Caldwell moved for and was granted a change of venue to Crow Wing County. He was found guilty as charged and was given two consecutive life sentences. His wife, Marjorie Caldwell, subsequently was arrested and charged with aiding and abetting and conspiracy to commit murder. She was tried and acquitted of all charges.

Appellant married Marjorie Congdon LeRoy, the adopted daughter of Elisabeth Congdon, in 1976, shortly after Marjorie moved to Colorado. Both had been married previously. Marjorie was one of the beneficiaries of several trusts established by the Congdon family, some of which were to terminate at specified times after the death of Elisabeth Congdon. The total value of the inheritance that Marjorie was eventually to receive as a result of the death of Elisabeth Congdon was estimated at $8,200,000. At the time of the murders, Marjorie was receiving trust income of $22,-000 per year from one of the trusts, and appellant was unemployed.

Marjorie Caldwell had a history of extravagant spending. By the spring of 1977, the Caldwells were in serious financial trouble. They had purchased property that they intended to use as a horse ranch, but they were unable to make the payments and lost the property. They then moved into the Holland House Hotel in Golden, Colorado, where they lived until June 28, 1977, when they went to Duluth for Elisabeth Congdon’s funeral. Despite their financial problems, they bought a horse for Rick LeRoy, Marjorie’s 16-year-old son for $5,500. In January of 1977, the Cald-wells also purchased some turquoise and silver jewelry for $3,500, and took a vacation at a mountain resort at a cost of $5,100. The check that appellant gave the resort was returned, however, because the account had been closed.

On May 25, 1977, appellant went to Duluth, intending to try to obtain from the Congdon trustees $750,000 with which to purchase a ranch and a $50,000 loan to pay debts. Appellant brought with him two letters from Rick LeRoy’s doctor that stated living on a ranch would benefit Rick’s health. One of them, which falsely stated that Rick had cystic fibrosis and was involved in testing an experimental drug for the FDA, later proved to have been forged. The trustees turned down appellant’s request for funds.

The Caldwells had previously received an insurance settlement of $74,000 to compensate them for property that had been stolen from their home. The check had been issued to Marjorie Caldwell and two copayees to whom Marjorie owed $51,000. After receiving the check, the Caldwells persuaded the insurance company to reissue it to Marjorie and a fictitious payee. Appellant then endorsed the check to Marjorie in the name of the fictitious payee. On June 1, he told Marjorie’s cousin, Thomas Congdon, who was one of the trustees of the Congdon trusts as well as a beneficiary, that he was worried that criminal charges would arise from this matter and from the bad check he gave the resort. At a second meeting with Congdon on June 18, appellant told Cong-don that they had no money, and he requested $25,000 from the trusts to hire F. Lee Bailey to represent them in connection with their financial difficulties. The following day, Thomas Congdon gave the Holland House Hotel a personal check for $400 to keep the Caldwells from being evicted from their rooms.

On June 20, 1977, the Golden State Bank in Golden, Colorado, repossessed the Cald-wells’ three cars. An arrangement was made with the bank whereby Rick LeRoy was allowed to use one of the cars for transportation to work if he returned it to the bank parking lot every night. On June 22, a gas station attendant took from appellant and Rick LeRoy a Carte Blanche credit card that had been obtained in the name of E. M. Congdon. The Caldwells had run up $756.85 on the account, which was never paid. On the following day, Marjorie Caldwell and appellant pawned some jewelry and received in return a check for $3,000. They cashed the check at a bank, receiving $10 and $20 bills. Some of this money was used to pay overdue horse boarding bills.

Despite these difficulties, Marjorie Caldwell continued to look for real estate to buy. She attempted to enter into several purchase agreements in early 1977, which soon fell through when the Caldwells failed to make payments. Nevertheless, on the weekend preceding the murders, Marjorie asked her real estate agent to show her certain property with a sale price of $1,300,-000.

On Friday, June 24, Rick LeRoy found a note from appellant on his bed at the Holland House Hotel. The note stated that appellant and Marjorie would be with real estate people all day Saturday and Sunday and that Rick could stay out until 12:30 both nights. Accompanying the note was $50 in cash, which appellant left for Rick to use for dates and gasoline. The real estate agent never saw appellant during that weekend. Rick LeRoy did not see him between Wednesday, June 22, and Monday, June 27, although he claimed to have seen two bodies sleeping in the bed in his mother’s room at about 1:30 a. m. on June 27.

At about 7:00 on the same morning, Elisabeth Congdon’s day nurse discovered the body of Velma Pietila on the landing on the main stairway of the Congdon mansion in Duluth. She ran to Elisabeth Congdon’s bedroom and found Miss Congdon lying dead with a pillow covering her face. Police found strands of hair clutched in both of Velma Pietila’s hands, a dark-colored nylon stocking tied around her left wrist, and a damaged candlestick near the body. An autopsy showed that Pietila had died of a skull fracture and loss of blood. An autopsy of Elisabeth Congdon’s body revealed that the bruises on her body were inflicted shortly before her death. Marks on her left wrist and little finger indicated that she had worn a watch and a ring that were removed after she died. Miss Congdon was determined to have died of suffocation at approximately 2:00 on the morning of June 27.

Upon searching the mansion, police discovered what they suspected to be the intruder’s point of entry. A pane of glass in the upper sash of a basement window was broken, and a mark that appeared to have been caused by a foot impression was found on a sofa underneath the broken window. During an experiment conducted at appellant’s trial, a police officer whose arm was smaller in circumference than appellant’s was unable to reach through the broken window and unlatch the sash without dislodging a piece of glass. Various parts of the mansion were dusted for fingerprints. Police found no latent fingerprints in Miss Congdon’s bedroom, but discovered a small, poor-quality latent print on the candlestick. Appellant was eliminated as a possible source of this fingerprint, and none of his fingerprints were found elsewhere in the Congdon home. However, an analysis of hairs found near Velma Pietila’s body showed that they “could have” been appellant’s hairs. Bloodstains that were collected from the bathroom and the stairway were compared with blood samples taken from Pietila, Congdon, and appellant. All were discovered to have type 0 blood. Blood found on a pillowcase near Miss Congdon’s head had one of the same enzyme types as appellant’s.

The car that Velma Pietila drove to the Congdon mansion on the night of June 26 was missing when the police arrived the following morning. A maintenance man discovered the keys to that car in a trash can at the Minneapolis-St. Paul International Airport at 8:30 a. m. The police found the car itself at 11 a. m. in the airport’s short-term parking lot, and they discovered the parking ticket for the car in the same trash can in which the maintenance man found the keys. The time stamped on the ticket was 6:35 a. m. No fingerprints were found on the ticket, and the only fingerprint in the car that was identified proved to be that of Mrs. Pietila’s husband. A blood stain of Type 0 blood was found on the floor of the car.

At 9:30 on the same morning, appellant came into the Golden State Bank in Golden, Colorado to notify a loan officer, John Han-nagan, that Rick LeRoy had to take one of the Caldwell cars from the bank parking lot at an earlier time than usual in order to get to work by 8:30.¹ Hannagan noticed nothing unusual about appellant’s demeanor or appearance.

At approximately 1:45 that afternoon, Bertha Huskins, the desk clerk at the Holland House Hotel, received a telephone call from appellant. He instructed her to leave a message for Marjorie to pick him up. When Ms. Huskins asked him where Marjorie should go, appellant replied, “It doesn’t matter, she knows.”

At 7:00 on the morning of Tuesday, June 28, appellant telephoned the owner of the Wild Wood Farms, where the Caldwells boarded a horse, and stated that his mother-in-law had been killed and that the inheritance “of about $10,000,000” would cover the bills and the purchase of a horse for Rick. Later that day appellant went to the Golden State Bank to pick up the money for the trip to Duluth for the funeral. John Hannagan noticed that appellant seemed nervous and in a hurry, and that he had a scratch on his lip and one swollen hand. Appellant told Hannagan that he had cut himself shaving and that a horse had stepped on his hand.² While he was at the bank, appellant opened a safe deposit box and placed some papers in it. One of these papers was a handwritten document, written and signed by Marjorie Caldwell and dated June 24, 1977, in which Marjorie conveyed irrevocably to appellant all of the money — approximately $2,000,000 — due her from the Chester A. Congdon Trust upon the death of Elisabeth Congdon.

Appellant, Marjorie Caldwell, and Rick LeRoy arrived at the Minneapolis airport on Tuesday, June 28. They were met by Marjorie’s attorney, David Arnold, who noticed that appellant had a cut above his eyebrow and one near his lip. They flew to Duluth the same day, and checked into Rooms 801 and 803 of the Duluth Radisson Hotel, where they stayed the nights of June 28 and 29. Police officers who met with Marjorie, appellant, and David Arnold at the Duluth police department on June 29 also noticed that appellant had a cut or scratch on his lip and that his right hand was swollen.

On June 29, appellant telephoned Marjorie Caldwell’s riding instructor from Duluth and told her to arrange for the purchase of a horse for Rick. The estimated cost of a horse of the type appellant requested would have been between $40,000 and $75,000. Appellant did not mention the death of Elisabeth Congdon during this conversation.

On the evening of June 30, several Duluth police detectives went to the Duluth Radisson to interview the Caldwells. Upon learning that the Caldwells had left the hotel that afternoon, they obtained permission to search rooms 801 and 803. They found an old suitcase, which was identified as one appellant had brought from Colorado, and two boxes from a Duluth clothing store. Attached to the suitcase was a North Central Airlines baggage tag numbered 86349 from the Caldwells’ flight from Minneapolis to Duluth on June 28. Inside one of the discarded boxes police found a sales receipt from Host of Minneapolis, a gift shop in the Minneapolis Airport. No latent fingerprints were found on the receipt.

On July 5, the Duluth police, having discovered that the Caldwells were then registered at Room 307 of the Holiday Inn in Bloomington, obtained a search warrant for that room. The Caldwells were not present when the police arrived because appellant had become ill that morning and had been rushed to Methodist Hospital in St. Louis Park. In the hotel room, police found clothing lying on the beds, apparently in preparation for packing, and a wicker case or basket similar to one missing from Elisabeth Congdon’s bedroom closet. They also found a tan suede garment bag and, inside the drawer of a nightstand, a blue plastic container filled with jewelry. Some of the jewelry was identified as having belonged to Elisabeth Congdon; the watch and the ring missing from her body were among the items in the container. Seventeen other pieces of jewelry that were missing from the Congdon home were never recovered. Most of the other jewelry found in the container was identified as belonging to Marjorie Caldwell. The North Central Airlines tag on the garment bag was numbered 86350. This baggage tag was consecutive in number to the tag attached to the old suitcase that appellant brought from Colorado to Duluth and left in the room at the Duluth Radisson. The name on the identification tag on the bag appeared to have been written in appellant’s handwriting. The items found in the Caldwells’ room at the Holiday Inn were processed for latent fingerprints, but none were produced.

By approximately 10:30 a. m. on June 27, Colorado police had been notified that appellant was a suspect in the murders, and they immediately began an investigation. On July 2, Bertha Huskins, the Holland House desk clerk, told police that a Radis-son Duluth envelope, which was addressed to appellant in what appeared to be appellant’s own handwriting, had arrived at the hotel on June 29. The letter was postmarked Duluth, June 27, 1977. The police seized the envelope pursuant to a warrant, and found inside it a smaller, folded envelope that contained a gold coin. The coin was identified as one that was missing from a display case in Elisabeth Congdon’s bedroom. A latent fingerprint identified as appellant’s was found on the back of the envelope. No identifiable fingerprints were found on the coin itself.

On July 1, Duluth police interviewed two employees of the Host Gift Shop in the Minneapolis Airport. Both told police that a man carrying a wicker case had purchased a suede garment bag early on the morning of June 27. They looked at six photographs. One of the employees, Sandra Schwarzbauer, identified appellant’s photograph as depicting someone she had seen before. On July 5, Ms. Schwarzbauer picked out a different picture of appellant, but then stated that she was not sure that appellant was the man who bought the bag because the man in the shop had been wearing glasses. The other witness eliminated appellant as the man in the shop; she instead identified another photograph as possibly depicting the person in the gift shop.

At 12:20 a. m. on Wednesday, July 6, Duluth police officers and local police went to Methodist Hospital and arrested appellant for the murders of Congdon and Pieti-la.

At appellant’s trial, the State’s fingerprint expert, Steven Sedlacek, testified that the fingerprint on the envelope that contained the gold coin was identical to the known print of appellant’s right thumb. Sedlacek’s testimony was based upon his comparison on July 2 and 3 of the developed fingerprint on the envelope with appellant’s known fingerprints. Sedlacek developed the fingerprint, using a chemical called nin-hydrin, on the night of July 2, 1977, immediately after he received the envelope. He photographed the print as soon as he developed it because nin-hydrin prints gradually deteriorate. Using the negative of that photograph, Sedlacek later made an enlargement of a part of the print to use for demonstrative purposes at the trial. During the trial 1 year later, appellant’s attorney took the envelope, the enlargement, and appellant’s known prints to another expert, who examined only the enlargement and agreed that the fingerprint appeared to be appellant’s. Defense counsel therefore did not call the expert at trial. The State’s handwriting expert testified at the trial that the handwriting on the envelope was that of appellant, although she admitted that certain discrepancies existed between the writing on the envelope and appellant’s handwriting exemplars. Appellant’s expert testified that the writing had been done slowly and was probably a forgery.

At the trial, both of the Host Gift Shop employees positively identified appellant’ as the man who bought the suede garment bag on the morning of June 27, 1977. They testified that the man was carrying a wicker basket, which he attempted to put inside the suede bag after making the purchase. The witness from whom the man purchased the bag testified that the bag was of the same type as the one found in appellant’s hotel room, and that the man paid for it with three $20 bills. One of the witnesses described the man in the shop as 5' 10" tall, weighing about 190 lbs., about 45-47 years old, paunchy, with short, curly hair and a light complexion, and wearing tinted glasses and a short-sleeved yellow shirt. The other witness described the man as 5' 10" tall, 180-190 lbs., with short sideburns, a large stomach, and wearing white, tinted glasses, blue jeans and an alpaca sweater. Despite the differences in their descriptions, however, both witnesses identified appellant in the courtroom. Because the witnesses had seen in the news media some of the same photographs of appellant that police previously had shown them, appellant argued that the in-court identification was unreliable and should not have been admitted into evidence. The trial court denied his motion to strike the identifications.

After deliberating for 3 days, the jury returned two verdicts of guilty of murder in the first degree. Approximately 1 year later, appellant’s wife, Marjorie Caldwell, was acquitted of all charges of aiding and abetting and conspiracy to commit murder. After Marjorie’s acquittal, appellant petitioned the court for a new trial on the grounds of newly-discovered evidence, discovery violations by the prosecution, and prosecutorial misconduct. The court denied the motion.

Appellant has raised the following issues in this appeal:

1. Whether the postconviction court abused its discretion by denying appellant’s motion for a new trial based upon newly-discovered evidence that is alleged to have resulted in the acquittal of Marjorie Caldwell;

2. Whether the postconviction court erred by failing to order a new trial on the grounds of the prosecutor’s alleged violation of discovery rules and appellant’s constitutional rights;

3. Whether appellant was denied his right to a fair trial by statements made by the prosecutor in his closing argument and by testimony elicited in violation of a court order;

4. Whether the verdict form, which required the jury to determine appellant’s guilt or innocence, was an incorrect statement of the law that required the jury to use an improper standard to determine his guilt;

5. Whether the in-court identification of appellant by the employees at the Host Gift Shop after they had seen the same photographs of appellant in the newspapers that police showed them before the trial created a substantial likelihood of misidentification; and

6. Whether the evidence presented at the trial was sufficient to support appellant’s conviction.

1. Appellant argues that if certain evidence that was introduced at Marjorie Caldwell’s trial had been available to him, he probably would have been acquitted. He also asserts that much of this evidence was known to the prosecutor and that the prosecutor’s failure to disclose it was a violation of discovery rules. The evidence that appellant characterizes as newly discovered and thus entitling him to a new trial is: expert testimony, based on a negative allegedly not available at appellant’s trial, that the fingerprint on the envelope that contained the gold coin was definitely not appellant’s; testimony of Candice Byers, a waitress at the Holland House Hotel, that she saw appellant at about 10 p. m. on the night of June 26, 1977; a statement by appellant’s former wife that appellant’s “coin collection” was merely a jar of pennies; a statement by Thomas Congdon in which he told a Duluth police officer that he had hired private detectives immediately after the murders to follow the Caldwells; and statements made by the private detectives.

The envelope containing the gold coin is significant because it is the only evidence introduced at appellant’s trial that actually showed him to have been in Duluth at the time the murders were committed. Steven Sedlacek’s initial identification of the fingerprint was based upon a comparison of the developed print with appellant’s known fingerprints. No expert other than Sedla-cek saw the original developed print until nearly 1 year later, during appellant’s trial, when appellant’s attorney gave another expert the envelope, a card with appellant’s fingerprints, and the enlargement Sedlacek made for display purposes. Unknown to appellant’s counsel, however, was the fact that by the time of the trial the original print had deteriorated. Appellant states that because of the deterioration,³ which would have been apparent only to an expert, his expert used Sedlacek’s enlargment of part of the print rather than the original as the basis for his conclusion that the print on the envelope was appellant’s.⁴ He did not mention the deterioration to appellant’s attorney.

In a subpoena issued prior to appellant’s trial, appellant’s attorney had directed the prosecutor to produce all documents relating to the fingerprint evidence, but he did not specifically request the negative. A report that Sedlacek had prepared did not mention the negative, although Sedlacek stated at trial that his report included all matters relating to the identification of the fingerprint. Appellant’s attorney had never received the negative and was not specifically informed of its existence.

By the time of Marjorie Caldwell’s trial 1 year later, the original fingerprint had become almost invisible. Sedlacek testified then that he had noticed some deterioration at the time of appellant’s trial; however, he had not disclosed this fact either to appellant’s attorney or to the prosecutor. Because the print itself was no longer useful for identification purposes, only the negative of the photograph that Sedlacek took at the time of his initial identification was sufficiently accurate for use in Marjorie’s trial. Marjorie Caldwell’s attorney requested the prosecutor to produce the negative, which at that time was on file with the Colorado Bureau of Investigation. After examining the negative and the enlargements and contact prints prepared from it, another fingerprint expert testified that the fingerprint on the envelope was a very poor latent print to try to identify, but that it was not appellant’s. He also testified that the enlargement that Sedlacek had prepared for a comparison chart to be shown to the jury in appellant’s trial had been mounted at an incorrect angle. Two other experts also agreed that the print could not have been appellant’s. The prosecutor then stated to the court that he would ask the jury to disregard the latent print as a misidentified fingerprint.

Candice Byers, a waitress at the Holland House Hotel, testified at Marjorie Caldwell’s trial that she saw appellant in the hotel lobby at about 10 p. m. on June 26, 1977. This testimony is significant because if appellant actually had been in Golden at 10 p. m. Colorado time, it is highly unlikely that he could have traveled to Duluth and committed the murders at 2 a. m. Minnesota time, the estimated time of the victims’ deaths. Appellant contends that Byers’ testimony was newly-discovered evidence that could not have been discovered through reasonable diligence by the time of the trial. Byers’ name was not on the prosecutor’s list of prospective witnesses. Furthermore, because Byers told Colorado police on July 1,1977, that she did not recall having seen the Caldwells on June 26, and because on July 9 she gave the police a written statement to the same effect, appellant’s counsel did not consider her to be a likely source of favorable defense testimony. Appellant therefore argues that the failure to interview Byers before the trial did not constitute a lack of diligence.

On April 19, 1979, an investigator and an attorney for Marjorie Caldwell interviewed Byers in Colorado. She told them that she had seen Roger Caldwell on the night of June 26, 1977, and that she was certain of the day because she remembered that at the time she saw him she was “sneaking” a beer from the hotel bar, which was closed on Sundays. She stated at the trial that she did not disclose this information to police in June 1977 because she was not then aware of its significance. The State contends that Byers’ testimony is not newly-discovered evidence because she was known to appellant’s counsel at the time of the trial, and that her testimony is untrustworthy in light of her previous statements to police.

The cornerstone of appellant’s defense is his contention that he was framed by other members of the Congdon family, and that much of the evidence adduced at trial supports this theory. Appellant’s frameup defense as presented at his trial was based in large measure on the State’s lack of evidence proving that he had flown to and from Colorado on the 26th and 27th of June and on the apparent absurdity of the theft of Elisabeth Congdon’s jewelry when the alleged motive for the murder was to hasten Marjorie Caldwell’s receipt of her inheritance. Appellant did not produce any positive evidence at trial that he had been framed.

Thomas Congdon testified at appellant’s trial, by means of a videotape deposition, regarding certain of his activities following the murders. Appellant contends that it was not until Marjorie’s trial that appellant’s counsel discovered that, immediately after the murders, Congdon had hired a private detective agency to follow and observe the Caldwells. On June 29, 1977, Congdon had conversed by telephone with Sergeant Greene of the Duluth Police Department. During this conversation, which was recorded, Congdon explained to Greene that he had hired detectives to protect his family, and that “information can be bought so I gave some money to a group called Colorado Private Investigators, a guy named William Furman, and I told him to go out in the street and use the funds in a sense to see what he could find out.” He also told Sergeant Greene that a detective was in Duluth keeping the Caldwells under surveillance at that time, and that the detectives were “doing some things I don’t think sometimes you guys are allowed to do.” Congdon testified at Marjorie Caldwell’s trial that by the latter remark he was referring only to electronic eavesdropping and the purchase of information.

Appellant argues, however, that this conversation is persuasive evidence that he was framed by someone who hired Furman and Fick to plant incriminating evidence such as the jewelry and the garment bag in his hotel rooms in Duluth and Bloomington. The State contends that both the transcript of the conversation and the police report accompanying it were given to appellant’s counsel in September of 1977, not in May of 1978 as appellant claims. According to the State, at the beginning of appellant’s cross-examination of Thomas Congdon on May 26, 1978, the prosecutor handed a copy of the police report and the attached transcript of the telephone conversation to appellant’s attorney, stating “I believe you have a copy of it.” As appellant’s attorney took the report and transcript, he replied, “I just didn’t have it in front of me, here.” The State contends that this interchange must lead to the conclusion that appellant’s counsel actually had a copy of the report and statement before the trial. Appellant’s counsel insists, however, that he had a copy of the police report and a summary of the conversation, but that he never received a copy of the transcript itself. The postcon-viction court nevertheless found that the transcript had been disclosed to appellant’s counsel and therefore clearly did not constitute newly-discovered evidence.

In April of 1978, the prosecutor received transcripts of conversations between an agent of the Colorado Bureau of Investigation and two of Congdon’s private detectives, William Furman and Gary Fick. During one of these conversations, Furman told the CBI agent that he and Fick had gone to Duluth on June 28, 1977, had followed the Caldwells to the Duluth Radisson, and that at about 11:50 that night, they “were able to overhear the Caldwells at their door stating, T hope we can get away with this.’ ” Furman and Fick both had been listed as prosecution witnesses, but the State later concluded that they were not telling the truth and decided not to call them as witnesses. Appellant neither specifically requested nor received copies of the transcripts of Fick’s and Furman’s conversations.

William Furman testified at Marjorie Caldwell’s trial but refused to answer questions on the ground of self-incrimination relating to the extent of his investigation in Minnesota. Furman admitted that Thomas Congdon had hired him, but denied ever having been to Duluth or to the Caldwells’ Bloomington hotel room. It appeared that Furman had falsified some of the reports he made to Congdon in an effort to justify his fees, and that he refused to answer questions about his investigation of the Cald-wells in order to avoid prosecution under Colorado law.

Appellant asserts that the statements of Furman and Fick, together with the transcript of Thomas Congdon’s conversation with Sergeant Greene, constitute newly-discovered evidence that Furman, Fick, or other employees of the detective agency had been present at all of the places in which incriminating evidence was found, and that the prosecutor’s failure to produce Fur-man’s and Fick’s statements merely because he believed that they were lying constituted a violation of Minn.R.Crim.P. 9.01 subd. l(l)(a). The postconviction court held that appellant’s counsel knew or should have known about the detectives from Congdon’s statement and from news reports, and that he failed to exercise due diligence by not requesting Furman’s or his employee’s statements or interviewing Furman. The court also held that the prosecutor had committed a violation of the discovery rules by failing to disclose the statements, since Fur-man and Fick had been listed as prospective witnesses,⁵ but that the state’s nondisclosure was not material and therefore not a violation of due process.

The State had introduced as evidence in appellant’s trial a copy of a divorce decree awarding appellant a coin collection. The prosecutor used this document as evidence that appellant had an interest in coins that would motivate him to steal the gold coin from Elisabeth Congdon’s bedroom and mail it to Colorado. Appellant’s counsel attempted to show that appellant was not a serious coin collector and that the “collection” in question was merely a jar of pennies. After appellant’s conviction but before Marjorie Caldwell’s trial, Marjorie Caldwell’s lawyer obtained from the prosecutor a statement made by appellant’s former wife, Martha Caldwell, to the effect that appellant did not own a coin collection as such, but had been awarded only some pennies, nickels, and dimes worth a total of $50 to $100. Appellant contends that Martha Caldwell’s statement also should be regarded as newly-discovered evidence.

Of all of the material appellant urges this court to hold to be newly-discovered evidence entitling him to a. new trial, the most troubling is the fingerprint on the envelope. The State argues that, since appellant’s counsel undoubtedly knew or should have known that the enlargements of the fingerprint had to have been made from a negative, he failed to exercise due diligence because he did not make a specific request for the negative. The postconviction court agreed, and held further that the State did not violate discovery rules by failing to disclose or to produce the negative.

We agree that the prosecutor did not violate the discovery rules with respect to the negative. Minn.R.Crim.P. 9.01 subd. 1(4) requires the prosecutor to disclose and to provide defense counsel with access to results or reports of fingerprint identification; the prosecutor complied fully with this rule by providing appellant with the envelope bearing the original fingerprint, the photographs developed from the negative, appellant’s known fingerprints, and the identification results reached by the State’s expert. The prosecutor also complied with Minn.R.Crim.P. 9.01 subd. 1(6), which requires the disclosure of exculpatory information. Because both the State’s and appellant’s expert initially identified the fingerprint as appellant’s, the negative would have been incriminating rather than exculpatory evidence; therefore the prosecutor did not violate the rule by failing to disclose or produce the negative. Nevertheless, we have concluded that the discovery, subsequent to the trial, that Steven Sedla-cek’s testimony regarding the fingerprint was incorrect entitles appellant to a new trial.

The federal courts traditionally have applied two different rules to requests for new trials on the ground of newly-discovered evidence. The traditional test is whether the new evidence “is so material that it would probably produce a different verdict if the new trial were granted.” Berry v. State, 10 Ga. 511, 527 (1851). In certain cases, however, where the evidence in question is not actually “newly-discovered” but where a witness has recanted or it has been discovered that false testimony was given at the trial, the so-called “Larrison rule” applies.⁶ This rule provides that a new trial may be granted on the grounds of false or perjured testimony where:

(a) The court is reasonably well satisfied that the testimony given by a material witness is false.

(b) That without it the jury might have reached a different conclusion.

(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.

Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928) (emphasis in original); see, e.g., United States v. Johnson, 327 U.S. 106, 111 n.5, 66 S.Ct. 464, 466 n.5, 90 L.Ed. 562 (1946); United States v. Wallace, 528 F.2d 863 (4th Cir. 1976); Newman v. United States, 238 F.2d 861 (5th Cir. 1956); Gordon v. United States, 178 F.2d 896 (6th Cir. 1949), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); United States v. Persico, 339 F.Supp. 1077 (E.D.N.Y.), aff’d, 467 F.2d 485 (2d Cir. 1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1360, 35 L.Ed.2d 613 (1973). 2 C. Wright, Federal Practice and Procedure, § 557 at 525 (1969).

The Court of Appeals for the Ninth Circuit has criticized the Larrison rule, arguing that no reason exists for treating false testimony differently from newly-discovered evidence. United States v. Krasny, 607 F.2d 840, 844 (9th Cir. 1979) cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980). We disagree. In the case of ordinary newly-discovered evidence, as, for example, where a witness comes forward who did not testify at the defendant’s trial, a heightened standard of materiality — that the new evidence “probably” would produce a different result — seems to be necessary because this new evidence has not been tried. The trial court is thus required to anticipate the effect on a second trial of evidence of unknown reliability. To avoid retrying defendants in all cases in which any new evidence, no matter how dubious or inconsequential, is discovered after trial, it became necessary to impose a rule permitting new trials only in those unusual circumstances in which the newly discovered evidence probably would produce a different result. The situation is different, however, where the evidence meets the requirements of the Larrison rule. In those cases, because the witness has recanted⁷ or other discovery has been made regarding the falsity of the testimony, the court has already been able to make a determination that the testimony actually was false; thus the matter of credibility, as it concerns a second trial, is less important. The “newly-discovered evidence” in such eases, in fact, is the absence of certain testimony, rather than the addition of new material, at a second trial. Thus the court is really considering what impact the false testimony had on the jury in the first trial; under Larrison, it is necessary only that the jury “might⁸ have reached a different conclusion” if the testimony had not been given. Larrison v. United States, 24 F.2d at 87 (emphasis in original). In United States v. Johnson, 149 F.2d 31 (7th Cir. 1945), the court analyzed the difference between the two rules as follows:

[O]n an ordinary motion for a new trial the court is concerned with the probable effect which the newly discovered evidence might have had upon another trial. In contrast, where the motion is based upon false swearing, the concern of the court must be as to the probable effect produced on the trial already had. In the former case, the court looks to the future, in the latter to the past, and the sole question is whether the defendant’s right to a fair trial has been prejudiced by reason of the false testimony.

Id. at 44. The same court went on to point out:

There is no way for a court to determine that the perjured testimony did not have controlling weight with the jury, and, notwithstanding the perjured testimony was contradicted at the trial, a new light is thrown on it by the admission that it was false, so that, on a new trial, there would be a strong circumstance in favor of the losing party that did not exist and therefore could not have been shown, at the time of the original trial.

Id. (quoting Martin v. United States, 17 F.2d 973, 976 (5th Cir. 1927)).

The fingerprint expert’s testimony was damning — and it was false. It was unquestionably material; its significance should not be underestimated. Although the subsequent determination that someone other than appellant made the fingerprint does not eliminate the possibility that appellant was in Duluth on June 26 and 27, the State produced no evidence other than the fingerprint and the handwriting on the envelope that showed him to have been there on those dates. Sedlacek’s testimony, uncon-troverted at trial because appellant’s expert apparently had been unable to make an accurate identification from the enlargement and the deteriorated original print, not only placed appellant in Duluth but destroyed the credibility of the testimony of appellant’s handwriting expert that the address on the envelope was forged.

An appellate court cannot retry the facts, but must take the view most favorable to the State and must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). If, as we must assume, the jury believed that the fingerprint was appellant’s and that therefore he must have been in Duluth at the time the murders were committed, it relied in part on totally incorrect evidence in finding appellant guilty. He has the right to be tried, insofar as possible, on the basis of true and correct evidence; to deny him this right is to deny him a fair trial.⁹

Some courts have held that the Lar-rison rule’s less stringent standard of materiality is appropriate only where the witness’ testimony was deliberately false. See, e.g., United States v. Strauss, 443 F.2d 986, 989-90 (1st Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971). Although the rule is generally used in cases involving perjured or recanted testimony,¹⁰ the court in Larrison actually relied on Martin v. United States,11 17 F.2d 973 (5th Cir. 1927), in which the court stated:

In our opinion it is the duty of a trial court to grant a new trial, where a witness at the original trial subsequently admits on oath that he committed perjury, or even that he was mistaken in his testimony, provided such testimony related to a material issue, and was not cumulative.

Id., at 976 (emphasis added); see LaFever, Inc. v. All-Star Insurance Corp., 571 F.2d 1367 (5th Cir. 1978) (dictum); United States v. McBride, 463 F.2d 44, 51 (5th Cir.), cert. denied, 409 U.S. 1027, 93 S.Ct. 475, 34 L.Ed.2d 320 (1972) (Rives, J., dissenting on other grounds). We believe this approach is preferable to that which requires a showing of deliberate falsehood on the part of the witness; we do not believe that the witness’ state of mind necessarily should be the factor that determines whether a defendant is entitled to a new trial. In fact, the discovery in this case that the fingerprint expert had misidentified the fingerprint lacks the dubious character of a recantation. We therefore hold that, under the unusual circumstances of this case, where the uncon-troverted testimony of the state’s expert subsequently proves to be incorrect and that testimony was the basis of the only circumstantial evidence tending to establish that appellant was in Duluth on the date of the murders, appellant is entitled to a new trial. Although Sedlacek never “recanted” his own testimony, there appears to be no doubt that the fingerprint was misidentified, and the postconviction court did not question the inaccuracy of Sedlacek’s testimony. This, in our opinion, satisfies the first requirement of the Larrison rule. Furthermore, we find that the second requirement, that a jury might have reached a different result, is satisfied.¹² It is true that the state produced highly credible evidence that appellant had a motive for murdering Elisabeth Congdon. Other evidence of his guilt included the discovery of some of the missing jewelry and the wicker basket in his motel room, the injuries to his face and hand, and the testimony of the airport gift shop employees. Nevertheless, the State’s ease is not without significant flaws. For example, an experiment undertaken at the trial showed that appellant’s arm was too large to fit through the broken window at the Congdon home. Appellant’s fingerprints were not found anywhere on the premises. Additionally, the State was unable to produce any record from any airline’s passenger lists of appellant’s having traveled from Colorado to Minnesota and back on the dates in question. In light of such weaknesses in the State’s case, we are unable to conclude that in a second trial at which the fingerprint testimony is not introduced, appellant would necessarily be found guilty. We also conclude that the third requirement of the rule has been met. It is evident that appellant’s counsel did not know, and we do not believe that under the circumstances he could have been expected to know,¹³ that Sedlacek misidentified the fingerprint.

We also hold that under the unique circumstances of this case, the alibi testimony of Candice Byers may be considered newly-discovered evidence. A new trial may be granted on the basis of newly-discovered evidence if the petitioner shows that the evidence could not have been discovered through the exercise of due diligence before the trial; that at the time of the trial the evidence was not within petitioner’s or his counsel’s knowledge; that the evidence is not impeaching, cumulative, or doubtful; and that it would probably produce a result different from or more favorable than that which actually occurred. See, e.g., Martin v. State, 295 N.W.2d 76, 78 (Minn.1980); State v. Klotter, 274 Minn. 58, 64, 142 N.W.2d 568, 572 (1966). The testimony of this alibi witness, who stated at Marjorie Caldwell’s trial that she saw appellant in the hotel in Colorado on the same night that the murders were committed in Duluth, could be material enough to meet the “probability” requirement of the Berry test for newly-discovered evidence. Furthermore, although appellant’s counsel received a copy of the witness’ statement, which then contained information unfavorable to appellant, her name did not appear on the prosecutor’s list of 207 prospective witnesses. While we caution that the size of a case and the number of witnesses involved may never be used as an excuse for an inadequate investigation, we do not believe that due diligence necessarily requires defense counsel in a case of this magnitude to rein-terview persons who are not listed as prospective witnesses and whose prior statements indicate that they possess no information helpful or relevant to the case. We also disagree with the State’s argument that even if appellant’s counsel had exercised due diligence, Ms. Byer’s testimony is not newly-discovered evidence because it is “doubtful.” Her testimony at Marjorie Caldwell’s trial, although inconsistent with her prior statement, remained unshaken throughout cross-examination. The credibility of her testimony, in any event, is a matter for a jury to assess, taking her prior statement into consideration.¹⁴

The statement of Martha Caldwell regarding the coin collection was not newly-discovered evidence. The postconviction court concluded correctly that appellant’s counsel’s failure to interview Martha Caldwell constituted a lack of due diligence and that her statement would not have materially affected the outcome of the case.

2. We concur with the postconviction court’s holding that, while the statements of the private detectives Fick and Furman should not be considered newly-discovered evidence, the prosecutor violated Minn.R.Crim.P. 9.01 subd. l(l)(a) by failing to disclose the statements to appellant. The prosecutor’s subsequent decision not to use the detectives’ testimony at trial did not justify the failure to provide their statements to appellant’s counsel at the outset.¹⁵

3. Appellant also contends that he was denied his right to a fair trial by certain prejudicial statements he alleges the prosecutor made in his closing argument and by the prosecutor’s elicitation of testimony in violation of a court order. Appellant asserts that during the trial the prosecutor deliberately elicited evidence regarding certain bad checks appellant allegedly wrote, despite the trial court’s ruling that such evidence was inadmissible because the prejudice likely to result to appellant would be disproportionate to the comparatively minor nature of the offense involved. The court denied appellant’s motions for a mistrial but offered to give cautionary instructions, which appellant’s counsel later decided to waive. The prosecutor asked another witness to repeat the substance of a conversation with appellant regarding problems with appellant’s bank. The witness answered that appellant had stated that he was paying off people who received bad checks with funds from a trust. The State also offered into evidence a letter the same witness had written to the Caldwells complaining about a check that had been returned twice. Appellant again moved for a mistrial. The motion was denied, but the court instructed the jury to disregard the witness’ statement and ordered it stricken from the record.

In his closing argument, the prosecutor made two remarks suggesting that appellant had manufactured evidence. Following each of the comments, appellant moved for a mistrial. The court denied appellant’s motions, but instructed the jury to disregard the prosecutor’s remarks. Later in his argument, the prosecutor commented on appellant’s “absence of activities” during the time the murders were committed. Defense counsel objected, and the court instructed the jury that appellant was not required to prove his innocence.

In State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974), we defined the test for prosecutorial misconduct as follows:

The test of determining whether prosecu-torial misconduct was harmless depends partly upon the type of misconduct with which we are dealing. That is, the more serious the misconduct, the more certain of its effect this court has felt that it should be before labeling the error harmless. Thus, in cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.

Id. at 127-28, 218 N.W.2d at 200. Appellant contends that, “viewed collectively,” the prosecutor’s “attempts to subvert the court’s order constitute prosecutorial misconduct of the highest order.” The State responds that the prosecutor did not deliberately elicit statements regarding the checks, and, in fact, attempted to prevent one witness from mentioning them. The State also points out that the letter offered into evidence was received without appellant’s objection. Failure of the defendant to object is a significant factor in a decision whether to order a new trial on the ground of prosecutorial misconduct. See State v. Caron, 300 Minn. at 127, 218 N.W.2d at 200.

The State argues that the alleged misconduct was harmless, although the trial court believed that the admission of statements regarding the checks was prejudicial. It is not clear that the prosecutor deliberately attempted to elicit the testimony in question; additionally, the fact that defense counsel failed to object to the offering into evidence of the letter militates against a finding of serious prosecutorial misconduct. If the misconduct is not extremely serious, the second part of the Caron test applies; in this case, the introduction of evidence that appellant and his wife wrote three checks while their checking account contained insufficient funds probably did not by itself play a substantial part in influencing the jury to convict appellant.

Appellant also contends that the court’s corrective instructions were insufficient to overcome the prejudicial effects of the prosecutor’s remarks. With respect to the propriety of the prosecutor’s statement that appellant’s absence would not be explained, we noted in State v. Bell, 294 Minn. 189, 199 N.W.2d 769 (1972), that:

While we do not believe remarks made by the prosecutor were so prejudicial as to amount to a denial of a fair trial, we do note with disapproval counsel’s comment upon the failure of the defense to call witnesses to support defendant’s alibi. * * * [W]e indicated that such argument by the prosecution, while not necessarily warranting a new trial, does not meet with the approval of this court. In this instance, the trial court’s carefully worded instructions to the jury adequately prevented any prejudice to defendant from occurring as a result of counsel’s indiscretion.

Id. at 192, 199 N.W.2d at 771 (citation omitted). In State v. Fossen, 282 N.W.2d 496 (Minn.1979), we stated that “[wjhether the prosecutor acted improperly in his final argument to the jury is largely a matter within the sound discretion of the trial court.” Id. at 503 (footnote omitted). In Fossen, the prosecutor implied in his closing argument that the defense had tampered with certain evidence and that defense counsel had acted unethically by attempting to raise inaccurate inferences. Id. at 503-OS. We concluded that the trial court’s cautionary instructions and the effective rebuttal by defense counsel of the State’s arguments prevented any improper considerations from influencing the jury’s verdict. The difference in the instant case is that the prosecutor made questionable statements on three separate occasions; appellant argues that the cumulative effect of the repeated remarks could not be overcome by the court’s instructions.

This court has held that the giving of cautionary instructions by the trial court is a significant factor favoring the denial of a motion for a mistrial. See State v. Carlson, 264 N.W.2d 639, 642 (Minn.1978). Although we need not decide whether the prosecutor’s conduct by itself warrants reversal,¹⁶ we are concerned with its effect on the jury in conjunction with the false fingerprint evidence. The prosecutor’s remarks implying that evidence had been falsified and his comment regarding the failure of appellant to explain his absence were absolutely inappropriate and impermissible, and it is questionable whether, under the circumstances of this case, the court’s cautionary instructions could have prevented the jury from reaching conclusions that were unduly prejudicial to appellant. We noted in State v. Reardon, 245 Minn. 509, 73 N.W.2d 192 (1955) that where “the impact of the prejudicial remark may be such as to impart to the minds of the jury substantial prejudicial evidence not.properly a part of the case, it is taking too much for granted to say its effect can be removed by an instruction from the court. * * * ‘The naive assumption that prejudicial effects can be overcome by instructions to the jury, * * * all practicing lawyers know to be unmitigated fiction.’” Id. at 513, 73 N.W.2d at 195 (quoting Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949)). We therefore view the prosecutor’s conduct as a material factor in our decision to grant appellant a new trial.

4. Appellant argues, in addition, that the jury verdict form submitted to the jurors contained an improper statement of the law that prejudiced his right to be found guilty only on the basis of proof beyond a reasonable doubt. The jury had been instructed that it would be given the following verdict forms to take into the jury room:

We, the jury in the above-entitled action, find the Defendant, Roger Sipe Caldwell, not guilty; or

We, the jury in the above-entitled action, find the Defendant, Roger Sipe Caldwell, guilty of murder in the first degree.

The verdict form that the jury actually received, however, read as follows:

We, the jury impaneled and sworn to try the guilt or innocence of the above-named Defendant, find said Defendant, Roger Sipe Caldwell, guilty (emphasis added).

Immediately after the verdict was returned, appellant moved for a mistrial, contending that because the jury may consider whether the defendant is guilty or not guilty but not whether he is innocent, the verdict form erroneously stated the law. The State contends that appellant waived his right to challenge the verdict form on appeal because his counsel failed to examine it before it was given to the jury.

In State v. Brouillette, 286 N.W.2d 702 (Minn.1979), we held that the use of the very same verdict form, along with the court’s statement that the function of the jury was to determine the defendant’s guilt or innocence, did not justify reversal of the defendant’s conviction because the defendant did not object to the alleged misstatements at the time they were made and because all of the instructions, taken as a whole, clearly did not mislead or confuse the jury regarding the presumption of innocence. Id. at 708-09. This case differs from Brouillette, however, because here the court first told the jury that the verdict forms to be used would contain the words “guilty” or “not guilty.” Appellant’s counsel did not examine the verdict form before the jury received it, and did not discover until after the verdict had been returned that the form actually given to the jury contained a reference to “the guilt or innocence” of appellant. We held in Brouillette that the defendant’s failure to object to the court’s misstatements of the law precluded him from raising the issue on appeal. Id. at 708. In this case, however, the failure of appellant’s counsel to object to the verdict form seems to have been based on the reasonable assumption that the court was reading to the jury the exact verdict form that was to be used.

In Brouillette, we upheld the defendant’s conviction in part because it was apparent that the jury was not misled regarding the proper presumption of innocence. Since the court had on two occasions correctly instructed the jury on the State’s burden of proof and the presumption of innocence, we concluded that the instructions, taken as a whole, were insufficiently defective to justify reversal. In the instant case, on the morning after receiving the instructions, the jury requested a rereading of the rules on circumstantial evidence. The court reread the rules, and added the following remark:

All that the defendant has to do, is bring into your minds such a condition that when you consider all the evidence you are not able to say that he is guilty beyond a reasonable doubt; he doesn’t have to prove his innocence. The State must prove him guilty by proof beyond a reasonable doubt.

Read as a whole, all of the court’s instructions to the jury might have been sufficient to impress upon them the proper burden of proof and presumption of innocence. We do not decide whether the use of the incorrect verdict form, which is unquestionably a misstatement of the law, would have been sufficient by itself to warrant a reversal of appellant’s conviction; however, the cumulative effect of this instruction, the misidentified fingerprint, and the prosecutor’s improper remarks, was to cause undue prejudice to appellant.

5. Appellant’s objection to the in-court identification of appellant as the purchaser of the garment bag at the Host Gift Shop on the grounds of the witnesses’ pretrial exposure to media photographs of appellant is without merit. Appellant states that the witnesses could not have clearly observed the man in the store. However, one of them saw him at close range while he was the only customer in the store. More important is the fact that the accuracy of the witnesses’ identification and the likelihood that they were influenced by pretrial publicity are matters going to the weight to be given the identification, rather than to its admissibility. See State v. Senske, 291 Minn. 228, 230, 190 N.W.2d 658, 660 (1971). The jury was in a position to consider the credibility of the witnesses and to hear defense counsel challenge the accuracy of the identification during cross-examination, and was aware that the witnesses had previously seen appellant’s photograph in the newspaper. Consequently, we hold that the identification was not unduly prejudicial.

6. We need not decide whether the evidence presented at trial was sufficient to sustain appellant’s conviction, since we have ordered a new trial on other grounds; however, we note that on the basis of the evidence as it was presented at appellant’s trial, the jury, acting in accordance with the presumption of innocence and proof beyond a reasonable doubt, could have reasonably concluded that appellant was guilty as charged. See State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). The problem is that certain material evidence later proved to be false. Our decision that appellant should receive a new trial is based not on a conclusion that the State’s evidence as the jury heard it was insufficient to sustain the verdict, but on the fact that the jury heard false testimony of a highly incriminating nature. As a result, he did not receive a fair trial. In State v. Reardon, 245 Minn. 509, 73 N.W.2d 192 (1955), we remarked that there was “cogent evidence to support the verdict; and it may be expected that on a second trial the result would be the same. But to allow factually strong cases to erode such a basic right is to deny the existence of the right.” Id. at 514, 73 N.W.2d at 195. It may well be that when the appellant presents these new matters to a jury, the State’s evidence will still prove sufficient to convict him, but we believe that to allow a conviction to be based even in part upon such manifestly inaccurate and prejudicial testimony as the fingerprint identification would be a serious injustice.

Reversed and remanded.

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

1 . The state contends that Hannagan was mistaken in his testimony, and that he could not have seen appellant on the morning of June 27, for the following reasons: appellant told him that Rick needed the car to get to work by 8:30, but Rick left the hotel to go to the bank that morning without having seen or spoken with appellant; Rick had used the car, according to the arrangement with the bank, in order to get to his job with a Mr. Bartlett, for whom Rick no longer worked after Friday, June 24; appellant would have had to walk directly in front of Hannagan’s secretary’s desk in order to speak with Hannagan, but the secretary testified that she did not see appellant that morning; and appellant did not pick up the $300 that had been wired to him for travel costs until the following day, even though a message had been left for him on the afternoon of the 27th to come to the bank and pick up the money.

2 . Appellant later told Rick LeRoy that he received the cut when a horse knocked him against a wall.

3 . At Marjorie Caldwell’s trial, Sedlacek testified that:.

The durability of the nin-hydrin developed print itself can vary according to a number of factors. Generally, it is considered to be rather short-lived, and this is the reason that a nin-hydrin developed print is immediately photographed. The print can deteriorate in a matter of days or over a period of time, involving months or even possibly years, depending on a number of factors.

4 . Sedlacek had testified at appellant’s trial that:

We do not make examinations from photographs, especially enlargements, because it is easy in the photographs to get some distortion or change of perspective in there, which is not present in the actual items. We make our examination based on our training and experience from the actual prints, not from the photographic enlargements.

5 . Minn.R.Crim.P. 9.01 subd. l(l)(a) provides:

The prosecuting attorney shall disclose to defense counsel the names and addresses of the persons whom he intends to call as witnesses at the trial together with their prior record of convictions, if any, within his actual knowledge. He shall permit defense counsel to inspect and reproduce such witnesses’ relevant written or recorded statements and any written summaries within his knowledge of the substance of relevant oral statements made by such witnesses to prosecution agents.

(Emphasis added).

6 . This rule also has been acknowledged by the courts of several states, including Minnesota. See, e.g., State v. Naeole, 62 Hawaii 568, 617 P.2d 820 (1980); State v. Hill, 312 Minn. 514, 253 N.W.2d 378 (1977); Whelan v. State, 298 Minn. 545, 214 N.W.2d 344 (1974); Marshall v. State, 305 N.W.2d 838 (S.D.1981); Pickering v. State, 260 N.W.2d 234 (S.D.1977).

7 . Courts tend to view recanted testimony with suspicion because of the possibility that it was obtained through coercion. See, e.g., State v. Hill, 312 Minn. 514, 523, 253 N.W.2d 378, 384 (1977); State v. Mastrian, 285 Minn. 51, 73, 171 N.W.2d 695, 708 (1969), cert. denied, 397 U.S. 1049, 90 S.Ct. 1381, 25 L.Ed.2d 662 (1970); State v. Arradondo, 260 Minn. 512, 520, 110 N.W.2d 469, 475 (1961). Therefore, even though the Larrison rule contains a less stringent materiality standard, new trials nevertheless will not be granted unless the court can be reasonably certain that the recantation is genuine.

8 . “Might” has been said to mean “something more than an outside chance although much less than the ‘would probably’ of the Berry rule.” Kyle v. United States, 297 F.2d 507, 512 (2d Cir. 1961).

9 . We do not feel the need to reach the constitutional issue of whether this may amount to a denial of due process; instead, our decision is based on our conclusion that the denial of a new trial in this case is “inconsistent with the correct administration of criminal justice * * * which it is our duty as an appellate court to supervise.” United States v. Consolidated Laundries Corp., 291 F.2d 563, 571 (2d Cir. 1961). See State v. Borst, 278 Minn. 388, 397, 154 N.W.2d 888, 894 (1967).

10 . We cited a version of the Larrison rule in Whelan v. State, 298 Minn. 545, 214 N.W.2d 344 (1972), in which we stated that a new trial should be granted in cases of recanted testimony “if (a) the defendant has acted with due diligence in seeking a new trial, and (b) the court is reasonably convinced that the witness has indeed recanted and that without this witness’ perjured testimony at trial the jury might well have reached a different verdict.” Id. at 545, 214 N.W.2d at 344; see State v. Hill, 312 Minn. 514, 522, 253 N.W.2d 378, 384 (1977).

11 .In Martin, the defendant petitioned the court for permission to apply to the district court for a new trial on the ground that a witness who testified at his trial had signed an affidavit stating that “all of [the] testimony was false and untrue, and [that the witness] now wishes to correct it.” 17 F.2d at 975. The prosecutor then submitted a counter affidavit, signed by the same witness, in which the witness stated that he had not been given the opportunity to read the affidavit carefully; that he had objected to the statement that what he had said at the trial was false; that he had been made to sign the affidavit as it was; and that his testimony at the trial had been true. Id. The next day, an affidavit was filed by a Mr. Kraus (apparently defendant’s attorney), in which he stated that the witness had signed the first affidavit of his own free will, with knowledge of its contents, after he had been given an hour to read it. Kraus also stated that the witness asked to amend the affidavit to say that his testimony was mistaken, but Kraus told him that that would not help the defendant. Id. Although the court noted (despite Kraus’ advice to the contrary) that a trial court has the duty to grant a new trial “even where [the witness] was mistaken in his testimony,” id. at 976, it held that the defendant was not entitled to a new trial in this case because the witness’ first affidavit appeared to have been obtained involuntarily. Id.

12 . Appellant argues that Marjorie Caldwell’s acquittal tends to show that the same evidence that was presented at her trial would also result in appellant’s acquittal. We emphasize, however, that the acquittal of Marjorie Caldwell of crimes different from those with which appellant was charged has no bearing on the issue of whether appellant should receive a new trial. See, e.g. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980); State v. Cegon, 309 N.W.2d 313 (Minn.1981).

13 . We note that even if we were to decide this issue using the Berry test for newly-discovered evidence, we would nevertheless disagree with the postconviction court’s holding that appellant’s counsel failed to exercise due diligence. Even assuming that appellant’s counsel knew or should have known of the existence of the negative, he reasonably could have concluded that the negative was unnecessary because he had access to the envelope itself. He had no reason to know that by the time of trial only the negative could have been used to show discrepancies between the print on the envelope and appellant’s known prints. Neither appellant’s counsel nor the prosecutor were aware that the developed nin-hydrin print on the envelope had deteriorated by the time of the trial, or that the expert retained by appellant might not have been able to make an accurate identification due to the deterioration of the original print and the possible distortion of the enlarged partial print.

14 . Following oral argument in this case, the court received affidavits to the effect that Candice Byers had recanted the testimony that she gave at Marjorie Caldwell’s trial. We do not here consider the effect or the validity of the alleged recantation in light of our decision to remand this matter for a new trial.

15 . The court nevertheless held that under the specific request test of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the statements were not material and their nondisclosure therefore was not a denial of due process. Having already concluded that appellant is entitled to a new trial on other grounds, we need not decide this issue.

16 . In Vess, Walking a Tightrope: A Survey of Limitations on the Prosecutor's Closing Argument, 64 J.Crim.L. & Criminology 22 (1973), the following factors were listed as those appellate courts generally consider when deciding whether a prosecutor’s remarks caused substantial prejudice:

First, the courts consider the strength of the evidence in the case, applying the standard harmless beyond a reasonable doubt. Thus, if the reviewing court finds overwhelming evidence of guilt, it will probably uphold the conviction, even though it may point to some improprieties which were properly preserved and before the court on review. But if the case is a close one, the court will be more likely to reverse. Some courts consider the punishment imposed in determining whether the jury was improperly influenced by the summation. Where an affirmative answer to this question appears and there is overwhelming evidence of guilt, the conviction will be sustained but the sentence will be modified.

Second, the court will consider the remarks in the context of the entire summation or a large part of it in order to determine the true extent and meaning of the disputed comments. Lengthy and repeated remarks are much more likely to result in reversal than are single or isolated references.

Third, the appellate court will consider whether the trial judge took the proper corrective action on the one hand, or further compounded the error by overruling the defense objection or by insufficiently curing the transgression, on the other.

Fourth, the court may take into account the length of the trial or the length of the argument. It may be that a misstatement in a short trial is not serious error, since the jurors should have an independent recollection of the evidence. On the other hand, a lengthy argument after a long trial is more likely to be imperfect, and minor transgressions in this setting may also be excused.

Fifth, the court may consider the atmosphere of the courtroom throughout the trial, and may be more reluctant to find reversible error where the case was “hotly contested” on both sides.

Finally, where the error in summation alone is not sufficient to require reversal, the court may then examine the cumulative effect of this impropriety in conjunction with other errors which occurred during the rest of the trial.

Id. at 54-55 (footnotes omitted).