*1 your jurors, fellow that would real- would hold that counsel did not admit question? be the ly guilt. A Prtine’s remand to determine whether Prtine consented is not therefore response, “yes.” In J.B. said necessary. whole, as a testimony Based J.B.’s giving and due deference to district DIETZEN, Justice in (concurring part, ability to court’s observe her demeanor in dissenting part). during answers to the questions her all of dire, during voir I defer posed would in join I the concurrence dissent of credibility court’s determination that Justice Gildea. truthful J.B. was when she said she juror. be a fair impartial “could” I (con- ANDERSON, H., PAUL Justice would court
therefore hold did not curring part, in dissenting in part). abuse its discretion when it denied Prtine’s join part I in B of Justice Gildea’s con- motion to strike J.B. for cause. currence and dissent. B. ANDERSON, (con- H„ PAUL Justice I also disagree majority’s with the con- part, in curring dissenting part). clusion we need to remand this matter I join opinion majority for a of determination of whether Prtine con- except V, for Part V. With Part respect sented his counsel’s concession on I in doing dissent and question join of so in Part B of alleges intent. Prtine that he Justice Gildea’s dissent. received ineffective of assistance counsel because, closing argument, lawyer his you intentionally “that
admitted caused the death someone [has] never been miss- ing” majority from the case. The con-
cludes that this admission one guilt unless Prtine consented to this admission, his counsel was ineffective. I disagree. Minnesota, Respondent, STATE I would hold that counsel did not con- guilt. notes, cede Prtine’s majority As the Prtine’s defense at trial was not that he Eugene ANDERSEN, Kenneth Rather, not kill did Ward. Prtine’s conten- Appellant. tion was that he killed inWard self-de- No. A08-1521. majority notes,
fense. As also “[wjhether justified is using deadly one Supreme Court of Minnesota. objective is an inquiry force ... not an June 2010. subjective evaluation of the defendant’s Moreover, state mind.” majority as the concludes, correctly
also “a criminal defen- subjective dant’s intent to kill does not negate a self-defense claim.” Because
counsel’s statement conceded most
subjective intent to kill and Prtine’s self- claim defense negated thereby, I
OPINION
ANDERSON, BARRY, G. Justice. appeal This arises out of the murder of Swedberg. 34-year-old A Becker Chad An- County jury appellant found Kenneth first-degree premeditated guilty dersen 609.185(a)(1) murder, (2008), § MinmStat. shooting An- Swedberg. for the death *4 arguments ap- dersen makes several (1) peal: application the search-warrant misrepresentations and contained material cause; probable provide not otherwise did (2) insufficient for a con- the evidence was premeditated mur- first-degree viction (3) der; be to required the State should that evidence from trial not de- show did and of An- monitoring recording rive from at- phone dersen’s conversations his with brief, torney. supplemental In a se pro also the district plain ques- error in its court committed jurors of certain about incidents tioning the courtroom. We affirm. outside wife, Swedberg his Leslie lived with Fain, County. in rural A number Becker Swedberg lived with Fain’s relatives also son, Fain; Fain: her Jesse Jesse’s and children; their and Leslie wife and three Swedberg, Ken nephew. Fain’s sister and brother, nearby Swedberg’s older lived their three children. with his wife and murder, morning April The process maple to Swedberg planned the his friend Albert syrup help plan for Fain. The was Baker and Jesse camp Swedberg syruping to arrive at in order and Jesse Fain than Baker earlier and evaporator cut wood to fuel General, Swanson, Attorney John Lori by the the oth- camp ready time have General, Galus, Attorney Assistant St. B. morning. in the Swed- ers arrived later MN; Fritz, Paul, Becker and Michael house left berg delayed and Lakes, MN, for County Attorney, Detroit a.m. around 8 respondent. Swedberg’s departure, Gaitas, Shortly after Public Theodora Assistant State from gunshots loud Paul, MN, Fain heard two Defender, for Leslie appellant. St. approximate syruping any direction notice blood. Fain told the officers it This concerned her because was camp. looking she went for her husband hunting thought there hearing gunshots repeatedly not season she after two gunshots failing no for phone. reason that area. to reach him on his cell Swedberg’s phone cell after Brehm Fain called and Stromme then examined under hearing gunshots. Although was Swedberg’s she coat and shirt and noticed exactly sure what time Swedberg’s right not she heard the blood on Two side. shots, hearing emergency she testified that after medical technicians arrived at immediately began she for shots look 10:11 a.m. phone her cell to call her Her husband. yielded physical scene crime little call Swedberg first was at a.m. 8:13 despite investigation. evidence extensive There was no answer. subsequently She Four led to clearing: trails 8:15, 8:27, 8:45, a.m.; him called and 8:56 south, east, one to the one one he did answer of these calls. Fain northwest, and one to the On north. gun-
was worried because she had heard trail, County the northbound a Becker in- *5 Swedberg answering shots and was not his vestigator scene, that had arrived at the phone. got ready go She to to work and Sieling, Officer John saw what he believed calling him then tried one more time. frost, footprints to be two tracks of in the again answer, was no Fain going When there one track north going and the other the syruping walked down trail south toward the murder Ken scene.1 Swedberg and found motion- camp lying Swedberg Captain McArthur, and Joseph . on ground. County less the No blood or gunshot deputy a Becker sheriff who had immediately residence, wounds were Fain Swedberg visible. arrived at the drove brother, Swedberg’s Swedberg, looking called Ken around They for tracks. did not at 9:55 a.m. and then called 9:57 anything significant, 911 at find other than some initially Swedberg a.m. She Ken called be- evidence foot of traffic believed to be from thought emergency person- cause she the Swedberg. They also across walked Fish Lake, nel would not be able to find looking the location of Hook for tracks. Swedberg’s body without assistance. The medical examiner testified that Earth Tribal Swedberg
White Police Officers Scott shot was twice—once the right Brehm and Nicholas Stromme arrived a back shoulder and once or minute two after 10:00 a.m. Ken Swed- left buttock. The examiner determined at berg met them the gunshot residence and told that the Swedberg wounds caused them that his brother was dead and his bleed a to to death within matter of min- 1,000 body yards was about down trail. any stippling utes. The lack of gunpow- or The officers used Ken’s all-terrain vehicle der around the led wounds the examiner to scene, get path to to the homicide as the believe that Swedberg had not been shot muddy was difficult navigate. and to The at close A range. firearms examiner de- officers found Fain crying screaming. and termined that the bullets removed from pointed She to her husband’s near body Swedberg’s body from a came .30-caliber process weapon. the cooker that he to “reasonably used his was examiner Brehm, maple syrup. Officer as he was certain” that the were bullets Winchester checking body life, signs but, for not Supreme Silvertips, did Ballistic because photographs footprints might 1. No perpetrator tak- were still be the area. As the en, part problems higher sky, footprints because of technical but moved in the sun disappeared. also because there was concern that phone bullets, morning. used his cell to not able to Andersen damage was to weight Baker at a.m. asked Baker to or call 7:52 identify determine positively by way Swedberg’s to stop his resi- the bullets. to a tank dence look at Andersen wanted Ken- Investigators spoke appellant, agreed to use to store leeches. Baker but Andersen, days few after a Swed- neth buy groceries wanted to first. Andersen a suspect Andersen was not death. berg’s at supposed claimed Baker be and Andersen point. Swedberg at that a.m., by Baker his house 8:30 testified and were described grown up together had togo that Andersen knew Baker needed to August On by some as best friends. groceries first and that get Waubun were Swedberg and Andersen while any specific not set time to Andersen did in Roseau pole building a constructing arrive at Andersen’s home. theft of an County, reported there (ATV) from the resi- vehicle all-terrain had police Andersen that he a tax told Swedberg and Andersen where dence at 9:00 or preparer’s appointment 9:30 point, At some Andersen working. were with a morning appointment an bank- Swedberg confessed a.m., and left er at 11:00 that he for had stolen the that Andersen step-nephew between 8:30 and 9:00 a.m. appointments In 2006 the Becker mid-November ATV. But, first his cousin a Andersen called County Department located Sheriffs a.m. to for little before 9:17 ask ride Swedberg’s ATV residence. stolen behind agreed cousin to drive Fargo. Andersen’s investigation revealed that Further Fargo; 9:34 a.m. Andersen *6 registered ATV to Andersen’s was stolen cousin, his his while cousin again contacted knowledge Swedberg denied mother. route, asked his cousin to meet was en and called Andersen police the ATV to and house, which him at sister’s Andersen’s listening and investigator an was while to house. An- way on the Andersen’s was investigator. the phone then handed the to so he and Ander- cousin did and dersen’s charged the theft of Andersen was with meet with An- left for Mahnomen to sen that Swedberg unhappy ATV and was the tax preparer. dersen’s Swedberg the ATV found near was preparer’s at tax Andersen arrived his residence. a.m. An- 9:45 and 10:00 sometime between that he did not want Swedberg decided at or was not 9:00 appointment dersen’s Andersen; working continue Swed- to claimed, a.m., rather at 2:00 as he 9:30 agreed Swedberg berg and Fain that for Ander- day. that It was common p.m. Swedberg job. look would for different very for very early or late sen to arrive Swedberg to Fain that intended told Jesse meeting with his tax After appointments. Approxi- Andersen. stop working with to went to Moorhead Andersen preparer, death, Swedberg’s mately one before week did have a loan. He not attempt obtain Swedberg participate not to also decided he day for that told appointment an leeching in a with Andersen business. meet supposed was police, but rather of a financial manager phone his to call with branch Andersen used cell An- 13, 2007, While April 2007. Swedberg April 7:46 a.m. on institution man- meeting with the branch he day police murder. He told dersen and he answered phone rang Far- his cell ager, for a ride to Swedberg looking called conversation, he told loan, phone but Swed- it. After the apply in order to for a go part- manager that his business Swedberg and Bak- the branch berg declined because had to leave. shot and he syrup make that ner had been maple er intended cousin, But Andersen to his when returned Andersen consented the search of his vehicle, waiting who was in the police house. When were proceeding to brother, Swedberg’s told him that Ken however, search outbuildings, Ander- Swedberg, shot. had been This was incon- brother, angry sen became and his said sistent with Andersen’s statement to the Frank, owned buildings those and said manager Swedberg branch because Ken Frank did police searching not want the was not business partner. An- Frank, however, buildings. only had that police dersen told his told niece him said to Andersen that Frank did want shot, Swedberg had Ken been his house searched without a warrant. shortly called a time she second there- The firearms examiner test-fired the after and told Andersen that Ken Swed- Tikka rifle in the outbuilding found But berg was dead. Andersen’s niece concluded because of the absence of only spoke maintained she to Andersen unique marks it not possible to defini- once, and she told Andersen that Swed- tively say that the Tikka rifle fired shot, berg had been not Ken Swedberg. bullets removed from Swedberg’s body, funeral, day Swedberg’s On Ander- but the Tikka rifle could have fired the opened sen a bank account and told the Swedberg’s bullets removed from body. manager yet story bank another about The examiner also concluded that bullets happened day murder, what found in during Andersen’s house namely, stopped by Andersen had search had characteristics similar to the Swedberg’s if Swedberg home to see want- bullets removed from Swedberg’s body. buy ed to go South Dakota to leech traps. jury guilty found Andersen of first- 18, 2006, September On well before the degree premeditated murder and this ap- murder, Swedberg bought Andersen a Tik- peal followed. ka T3 Lite .300 Winchester magnum short
rifle Nikon Buckmaster rifle scope *7 I. at Sporting Walker, Reed’s Goods store argues Andersen police Minnesota. When first the asked Andersen that district rifle, about court suppress this Andersen claimed erred when it failed that the Swedberg had traded it in for two evidence found in the proper- muzzle- search of his 23, ty. loaders on November 2006.2 The Tik- Andersen claims there were material Andersen, ka Swedberg bought rifle for misrepresentations and omissions of fact in however, was day found later that con- the application search-warrant and that cealed under the of an insulation outbuild- without misrepresentations these and ing near Andersen’s house. Andersen’s omissions of fact the application did not palm print was found on the gun. supply Officers probable cause. The State testified that suspi- Andersen also acted that representations the contested and ciously during the execution of the search omissions were not material because even ultimately that warrant led to the representations discov- when the contested are set ery of the Swedberg bought rifle for An- included, aside and the omissions are police dersen. The initially did not application tell still supplied probable cause to they a had search warrant support the search warrant. 2. possible ly Andersen offered exchanged several different been for two muzzleloaders. supposed- locations where the Tikka rifle had
327
See, e.g.,
novo standard.
United States v.
search
“[a]
have said
We
(2d
void,
Awadallah,
42,
Cir.2003);
and the fruits
349 F.3d
65
warrant
is
excluded,
Elkins,
638,
application
if the
be
United States v.
300 F.3d
649
search must
(6th Cir.2002);
Bertrand,
misrepre
or reckless
includes intentional
States v.
United
(9th
findings
838,
Cir.1991);
material to the
sentations of fact
926 F.2d
842-43
Unit-
Moore,
(10th
v.
438
723,
cause.” State
probable
Page,
v.
F.2d
729
ed States
808
(Minn.1989)
101,
(discussing Cir.1987).
105
analysis
N.W.2d
Because
of federal
two-prong
developed
test
reasoned,
applying
courts is well
we conclude that
Delaware,
154, 171-
438 U.S.
in Franks v.
clearly
erroneous standard controls
2674,
(1978),
72,
57 L.Ed.2d
98 S.Ct.
findings
our review of a district court’s
288, 291-
Causey,
v.
257 N.W.2d
and State
issue of whether the affiant deliberate-
(Minn.1977)). When a defendant seeks
ly made statements
were false or
warrant,
two-prong
to invalidate
disregard
reckless
of the truth.3 We also
to show
requires
Franks test
defendant
that the de novo standard con-
conclude
(1)
“deliberately made a
the affiant
our
of a district
trols
review
court’s deter-
that was false or
reckless
statement
alleged
mination of
misrepre-
whether
(2)
truth,”
“the state
disregard of
sentations or omissions were material
probable
cause
ment was material
probable
cause determination.
McDonough, 631
determination.” State v.
The district court denied Ander
(Minn.2001).
misrepre
A
N.W.2d
suppress, explaining
motion to
sen’s
if,
omission is material
when
sentation or
the search warrant was valid because the
or the
misrepresentation is set aside
alleged misrepresentations and omissions
issue
supplied, probable cause to
omission
were not
application
in the search-warrant
longer
warrant no
exists. State
the search
agree.
material. We
(Minn.2006);
Mems,
v.
N.W.2d
(Minn.
247, 252
Doyle,
misrepresentations
336 N.W.2d
alleged
State
Most of the
1983).
appli-
and omissions
the search-warrant
center
property
cation for Andersen’s
generally
have
stat
Although we
about various
around statements made
findings will not
ed that a district court’s
The search-
weapons Andersen owned.
they
clearly
are
errone
be set aside unless
application stated that
warrant
ous,
McDonough, 631 N.W.2d
see
“a Tikka
had sold Andersen
step-nephew
squarely addressed the review
we have not
brand,
action rifle.”
Mag,
300 Short
bolt
*8
to a district court’s
applied
standard to be
application was
Before the search-warrant
two-prong Franks
test.
analysis of the
drafted, however,
the affiant had con-
courts have held that
Several federal
firmed,
in
applica-
did not include
deliberately
of whether an affiant
issue
warrant,
Tikka rifle
tion for the
that the
in
were false or
made statements
that
by
step-nephew had
sold to Andersen
his
of the truth involves
disregard
reckless
to the murder.
pawned prior
been
under
question that is reviewed
fact-based
standard,
application also stat-
The search-warrant
clearly
erroneous
one officer that
that a taxidermist told
materiality presents
ques
a mixed
ed
issue of
he shot a
the taxidermist
that
reviewed under the de Andersen told
tion of law
is
cases,
disregard of the truth. See
previous
we
in reckless
our
or
3.
In at least one of
(Minn.
Randa,
clearly
applied the
erroneous standard
342 N.W.2d
have
State v.
findings
1984).
whether an affiant
of review to
deliberately
that were false
made statements
Mag
fisher “with a 300 Short
rifle.” But
to borrow a rifle for an
hunt in
elk
October
also told the affiant that
taxidermist
2006. Andersen argues that because Fain
Andersen had said he shot the fisher with
could not
if Swedberg
pur-
remember
had
rifle,
a .222
which is what Andersen told
Andersen,
chased the rifle for
this renders
police. The taxidermist’s statement about
the search-warrant application insufficient.
a .222
in
rifle
not included
the search-
making
But in
argument
this
Andersen
application.
warrant
ignores the other
appli-
statements
cation
gun.
about this
argues
Andersen
that the remaining al-
legations in the search-warrant application
argues
Andersen
that
careful review
“[a]
did not connect Andersen to a Tikka rifle
application
search-warrant
reveals
weapon.
or
other .30-caliber
We dis-
precisely
it was
suggest
drafted to
agree. There were two different Tikka
...
the rifle that was sold to [Ander-
application:
rifles referenced
one
by
sen
step-nephew]
Andersen’s
ulti-
bought
that Andersen
step-neph-
from his
mately pawned before the murder —was
(and
pawned)
ew
which was later
and one
suspected
murder
But
weapon.”
Swedberg
purchased for Andersen.
rifle sold to
by
step-nephew
Andersen
his
Andersen
pro-
the information
is not mentioned until two pages after the
vided about the Tikka
rifles
the search-
Swedberg
Tikka rifle
purchased for An-
application
warrant
was not sufficient to
Thus,
dersen is discussed.
while the affi-
show he owned a Tikka
Although
rifle.
it
ant could have identified the Tikka rifle
always
gun
is not
clear which
is referred to
by
sold to Andersen
his step-nephew as
in the
application,
search-warrant
there
having
pawned
murder,
been
before the
are several
-in
application
references
there were substantial allegations that An-
the rifle that Swedberg purchased for An-
dersen owned another
.30-caliber Tikka
dersen.
rifle at the time of the murder that was
The
application
search-warrant
states
gun
not the
purchased
Andersen had
from
that, according to an interview with Ander-
step-nephew.
his
Even with the addition
brother,
sen’s
purchased
a “300 of the fact that one Tikka
pawned
rifle was
mini-mag” at Reed’s Sporting Goods some- before the murder and that
the taxider-
application
time
2006.4 The
noted that
mist said Andersen claimed to
have used
although no records were
indicating
found
type
different
of firearm than the taxider-
that Andersen
purchased
had
a firearm
previously stated,
mist had
there was a
Reed’s,
records confirmed that on
fair probability that evidence of a crime
18, 2006,
September
Swedberg purchased
would be found on
property
brand,
a “Tikka
Mag
Short
caliber”
(i.e., a rifle like that used to commit the
rifle at Reed’s Sporting Goods.
appli-
murder).
Gates,
See Illinois v.
462 U.S.
cation states that Fain remembered Swed-
213, 238,
103 S.Ct.
329 justify of probable that the bul- lished cause to issuance only stated report examiner’s consistent warrant. therefore do not Swedberg were the search We found lets alleged misrepre- But later if the type that of bullet. need determine with to the fact affiant refers or were deliberate or application, the sentations omissions Supreme bullets are Causey, 257 at 291- that the Winchester reckless. See N.W.2d recovered with the bullets “consistent 93. Thus, the body Swedberg.” Chad at terminology use the correct affiant did II. once. least argues that there was argues that the search- Andersen also to convict him of first- insufficient evidence improperly character- application
warrant Recently, v. degree murder. State by McAr- Captain the evidence found ized Stein, review we addressed the standard of Swedberg. The search- and Ken thur in circumstantial evidence cases. 776 Captain states that application warrant (Minn.2010) 709, (plurality N.W.2d foot evidence of “possible McArthur found three-justice plurality opin In a opinion). “possible later refers to the traffic” and ion, suffi reviewing we said that when McAr- by Captain footprints discovered evidence, first ciency of circumstantial “our fact not include the thur.” The affiant did identify task is to the circumstances only print Swedberg saw heel that Ken Stein, proved.” (plural 776 N.W.2d from his print believed the heel and circum ity opinion). identifying In objects to the use brother. Andersen defer, proved, “we consistent stances only when there was “footprints” the term review, jury’s accep our standard una- arguments are print. a heel These proof tance of the of these circumstances vailing. rejection of evidence the record clearly application The search-warrant proved with the circumstances conflicted indi- footprints, which would says possible “in by generally Id. Juries are the State.” tracks prudent reader that the cate to credibility of position weigh the best strong or of eviden- were not well-defined and thus determine which the evidence addition, In the affiant testi- tiary value. weight much to believe and how witnesses hearing that he did not fied at the omnibus Hughes, testimony.” State v. give their about Ken Swed- include the information (Minn.2008). 307, Our 749 N.W.2d footprints belonged berg’s belief that the independently “examine step second is to affiant also omitted Swedberg, but the of all inferences the reasonableness Swedberg Swedberg Ken stated the circumstances might be drawn from type of Andersen wore the same inferences consis proved”; this includes omis- The inclusion of both of these boots. guilt. other than hypothesis with a tent impact proba- no on the sions would have Stein, opin (plurality at 716 776 N.W.2d Finally, the bulk ble cause determination. ion). words, “all the circum In other application focused of the search-warrant be consistent with proved stances must firearms, footprints. possible guilty the accused is hypothesis that hypothesis rational any inconsistent with assembling care in greater While Johnson, guilt.” that of his State preferable, except have been we application would Minn. 217 N.W. alleged not believe that do (1928). give we the deference were ma- Unlike misrepresentations or omissions *10 “we reviewing proved, circumstances when probable terial to the cause determination. fact finder’s no deference to the application give estab- We conclude that camp. choice between reasonable inferences.” Baker informed Andersen that he Stein, (plurality Thus, at 716 opin- buy groceries. needed to N.W.2d Andersen ion). “In assessing the inferences drawn was aware that going Baker was not to the from proved, inquiry syruping camp the circumstances until later. Andersen was generally simply is not whether the familiar with the inferences lead- area around ing guilt Swedberg’s syruping camp; to are reasonable. Although that Andersen had convict, visited the syruping camp must be true in to before and hunt- order it must ed the surrounding also be true that woods. Andersen there are no other rea- sonable, lived approximately away 1.3 miles rational inferences that are incon- syruping camp. guilt.” sistent with Id. Stated another way, the proved circumstances must be Swedberg left go his house to guilt consistent and inconsistent with syruping camp shortly after 8:00 a.m. Af- hypothesis except rational that of left, Swedberg ter Fain gun- heard two guilt. But will not “[w]e overturn a convic- shots, worried, became and called Swed- tion based on circumstantial evidence on 8:13, berg’s phone 8:15, 8:27, and 8:45 conjecture.” basis of mere State v. a.m., but Swedberg did not answer her Lahue, (Minn.1998). 585 N.W.2d Swedberg calls. was shot between 8:00 The State does not have the burden of and 8:13 a.m. doubt,
removing all
but
removing
all
Andersen made false
po-
statements to
Hughes,
reasonable doubt.
749 N.W.2d at
lice about his whereabouts around the time
313. We conclude that
proper
this is the
Swedberg
shot.
police
was
Andersen told
approach in analyzing sufficiency of the
he met his cousin at his cousin’s house
evidence claims in circumstantial evidence between 8:30 and
9:00 a.m.
order to go
adopt
cases and
it
our
standard.
to a 9:00
appointment
or 9:30 a.m.
with a
preparer,
tax
but
fact he did not leave
Here,
light
when taken in a
most
appointment
for the
until after 9:30 a.m.
State,
favorable to the
proves
the evidence
arranged
when Andersen
to have his cous-
the following
Shortly
circumstances.
be
in pick him up at Andersen’s sister’s
murder,
fore the
Andersen and Swed-
But
appointment
house.
berg’s
relationship
had
deteriorated.
actually scheduled for
p.m.,
2:00
not 9:00
Swedberg
longer
no
wanted to work with
or 9:30 a.m.
Andersen in construction. Approximately
death,
one week
Swedberg’s
before
Swed-
Andersen also made false statements
berg changed his mind and decided not to
about his ownership
possession
Andersen,
participate with
in a leeching Tikka T3 Lite .300 Winchester short mag-
business.
phone
rifle,
Andersen used his cell
to num
which shoots .30-caliber bullets.
call Swedberg at
day
7:46 a.m. on the
At a time
general public
when the
believed
the murder. Swedberg informed Ander
that Swedberg had been shot with a
sen that Swedberg
going
to make
gun
smaller caliber
because of information
maple syrup with Baker that morning,
provided by
so
police,
Andersen neverthe-
Andersen knew Swedberg would be at
attempted
less
police
to mislead the
con-
syruping camp that morning.
cerning
his ownership
possession
then used
phone
his
call
rifle,
cell
Baker at
the Tikka
try
he did not
7:52 a.m. and asked Baker to drive to
conceal
ownership
his
guns.
other
Fur-
Andersen’s house in
ther,
order to look at a
Andersen initially gave consent to the
leech tank.
agreed
Baker
police
house,
drive to An
to search his
but later when
dersen’s
going
before
syruping
police
were
about
search the out-
*11
house around 9:30
ob-
arrived at his sister’s
angry and
became
buildings, Andersen
Thus,
proved
the circumstances
do
to
a.m.
false statement
made another
jected. He
of events that would
not reflect a timeline
them that his brother
by telling
police
a reasonable inference that Ander-
support
police
the
to search
not want
Frank did
sen could not have been the shooter.
Tikka T3 Lite .300
outbuildings. The
the
rifle, capable of
magnum
short
Winchester
argues
Andersen also
State’s
that killed Swed-
of bullets
firing
type
convincingly
not
rule out Bak-
evidence did
concealed
the insulation
berg, was found
Swedberg
perpetrators
as
er or Ken
An-
on Andersen’s land.
outbuilding
anof
But
Swedberg.
murder of
we must as-
Bul-
gun.
on the
print was
palm
dersen’s
that at
time
jury
sume that the
found
had charac-
in Andersen’s house
lets found
shot,
at home or
Swedberg was
Baker was
to the bullets recovered
teristics similar
Swedberg
Ken
picking up groceries and
body.
Swedberg’s
from
his
with his wife
making
food for
bees
working
garage.
in his
Once these
determine whether
must next
We
true,
they
not
accepted
facts are
do
that can be drawn
inferences
reasonable
hypothesis that Bak-
support a reasonable
proved are consis-
the circumstances
Swedberg was the shooter.
er or Ken
inconsistent with
guilt
with
tent
than Andersen’s
hypothesis other
rational
the State
argues
Andersen
Stein,
(plu-
at 718
N.W.2d
guilt. See
a motive.
convincingly
did not
demonstrate
rality opinion).
State, however,
required
not
is
McArthur,
prove motive. See State
arguments
makes several
Andersen
(Minn.2007).
44, 49-50
Nonethe
N.W.2d
claim that the State failed
support of his
less,
Swedberg
relationship
between
proof
that he was the
meet its burden
had deteriorated and Swed-
and Andersen
the timeline of
shooter. He
recently decided to end his busi
berg had
inference
supports a reasonable
events
relationship with Andersen.
ness
shooter,
not have been
that he could
his
the distance between
particularly given
rea-
suggests alternative
Andersen also
camp and that “it
syruping
and the
home
have concealed the
why
might
he
sons
difficult for
[Andersen]
would have been
of an outbuild-
Tikka rifle
the insulation
return to his
[Swedberg]
kill
and then
fact that
it was the
ing, other than the
only
instance,
business.” But Andersen
normal
Andersen
weapon.
murder
For
syr-
from the
approximately 1.3 miles
lived
the Tikka
may
claims that he
have hidden
proved
The circumstances
uping camp.
apparent that
in fear when it became
rifle
Andersen used his cell
Swedberg’s
establish that
death was
investigation of
Swedberg at 7:46 a.m. and
circum-
to call
But the
phone
focusing on Andersen.
Swedberg
a.m.
was shot
that Andersen at-
proved
Baker at 7:52
establish
stances
a.m. The
ownership
8:00 and 8:13
to conceal his
tempted
sometime between
public
knew that
jury
reject
general
the assertion
rifle before the
was free
Swedberg.
kill
rifle
used to
at his home when he used
.30-caliber
Andersen was
own-
attempt
a.m.
to conceal
Swedberg
call
at 7:46
Andersen did
phone
his cell
Further,
spoke
he
guns
other
when
although
ership
a.m.
Baker at 7:52
Further,
angry
became
phone
police.
his cell
to call his
Andersen used
searching outbuild-
police
started
a.m. from an unknown loca- when
sister at 8:34
rifle was
property where the
tion,
ings
on the
jury
assume the
believed
we must
found,
objected to
ultimately
and he
Andersen’s where-
evidence that
State’s
he had
outbuildings when
for until he
search of the
could not be accounted
abouts
*12
given consent for his house to be searched. man who had a Tikka T3 Lite .300 Win-
only
hypothesis
rational
to be drawn
chester
magnum
falsely
short
rifle that he
from this is that Andersen hid the rifle
owning
denied
and attempted to hide from
police
because he did not want the
to And
Further,
police.
Andersen created for
particular
firearm.
opportunity
himself the
to kill Swedberg
when Andersen asked Baker to come to
Finally,
argues
Andersen
that the lack
evidence,
his house and
physical
of
such as
confirmed that Baker would
footprints,
scene, coupled
around the crime
not
with the
be at the syruping camp right away.
during
timeframe
which
Moreover,
Andersen would
shortly after the time of the
have had to walk to the syruping camp murder,
steps
Andersen took
to ensure
back,
area and
indicates that he could not
that he would
by
be out of the area
getting
have committed the murder without leav-
town,
a ride out of
repeatedly
and he
made
ing any
above,
evidence. But as discussed
false
police
statements to
in an attempt to
the tight
timeframe on which Andersen
Thus,
an
create
alibi.
in-
reasonable
part
relies is not
of the circumstances
ferences that can be drawn from the cir-
proved.
addition,
In
Sieling testified that
cumstances proved are consistent with An-
he saw what he believed to be two tracks
being
dersen
the killer and inconsistent
footprints
in the
on a
leading
frost
trail
any
with
other rational hypothesis.
to the north and west of the syruping
argues
Andersen next
that even if the
camp
general
in the
direction of Ander-
produced
State
enough evidence to demon-
house;
sen’s
one track went south toward
killer,
strate that he was the
it did not
the murder scene and one track went
produce sufficient
prove pre-
evidence to
north. Because the other investigators
meditation.
looking
who were
We consider evidence
for tracks
about
noticed that
motive,
they
tracks,
planning,
were
leaving any
not
and the
killing
the ab-
manner of
sence of
probative
tracks is of no
when considering
value
whether there was suffi-
when there is no doubt that the killer was
cient evidence
prove premeditation.
present at
Therefore,
the murder
McArthur,
scene.
III.
produced directly
indirectly by
or
the in
that
consti
Andersen contends
his
(2)
trusion,
by
govern
the
the intrusion
to counsel was violated when
right
tutional
(3)
intentional,
ment was
prosecution
the
attorney’s
phone
phone
his
cell
his
calls to
received otherwise confidential information
argues
recorded.
were monitored and
He
about trial preparations or defense strate
him
nearly impossible
that
it is
for
to
(4)
intrusion,
gy as a
of
or
result
prove
prosecution
to
listened
overheard conversations and other infor
prejudicial
these
infor
calls and obtained
any way
mation were used in
to the sub
Consequently,
calls.
he
mation from the
stantial detriment of the claimant.
Id. at
case for
hearing
asks
to remand the
a
us
554, 558, 97
837. The federal
S.Ct.
courts
should be
to
required
which the State
appeals agree
that a
claiming
defendant
prove that none of
evidence introduced
a
right
violation of the
to counsel must
obtained,
by
directly
the State was
either
intrusion,
show
to an
something
addition
indirectly,
or
from these calls. The State
differing
required
but have
views on the
investiga
none of
that because
See,
factors and
apply
e.g.,
how to
them.
these
recordings,
tors
to
listened
782,
Roper,
United States v.
F.2d
874
790
listening
as
stopped
but rather
as soon
(11th Cir.1989) (holding that defendant had
they
attorney,
the calls were to an
realized
prove
evidence,
there was tainted
a
prejudice
there
no
remand is
or his
strategy
defense
was communicated
necessary.
not
prosecution,
purposeful
or there was
A
right
has a constitutional
defendant
intrusion);
Singer,
United States v.
785
Const,
XIV;
VI,
amends.
counsel.5 U.S.
(8th Cir.1986)
228,
(concluding
F.2d
234
Const,
I, §
The attorney-
Minn.
art.
6.
that a
must
that the
defendant
show
state
statutory
a
Minn.
privilege
right,
client
is
knowingly
attorney-client
into the
intruded
1(b) (2008),
595.02,
§
Stat.
subd.
not
relationship
intrusion
and that the
demon
Mey
right.
constitutional
See Maness v.
defendant);
strably prejudiced the
United
15,
ers,
449,
584,
n.
95
466
S.Ct.
U.S.
(2d
823,
Ginsberg,
v.
F.2d
States
(1975);
ship, such an intrusion does not automati- IV.
cally into a violation of a translate defen- right dant’s to counsel. Andersen makes several addition al pro claims his se brief. Andersen The district court determined *14 argues first that there was not sufficient prejudice that no to there was Andersen evidence to convict him first-degree investigators’ testimony based on the at arguments murder. These parallel those hearing they that omnibus ceased lis made on his behalf in this appeal and are tening any call once it was determined addressed in Section II of opinion. this the call was between Andersen and his argues Andersen also that the district further, attorney, they did not hear court plain committed error ques when it anything relating addition, In case. jurors, bailiffs, tioned various and wit the district court found there was no evi nesses about incidents that occurred out anyone dence that else anything overheard side of the trial. argument This is without relating give to the case. great We defer merit for several reasons. findings ence to a district court’s of fact juror-related The first questioning in- and will not set them aside clearly unless juror volved N.K. and a co-worker of N.K. Stephenson, erroneous. See State v. 310 co-worker, The aware that N.K. was serv- (1976). 229, 231, 621, Minn. 245 N.W.2d 623 ing jury, on a asked him how it was going. Findings clearly if, of fact are erroneous replied N.K. that there was a lot of “con- evidence, on the entire we are left with the troversy” about the case and “[t]his one definite and firm conviction that a mistake says, says, this one says.” this one The 231, 623; occurred. Id. at 245 N.W.2d at district court asked the co-worker if N.K. Evans, 854, State v. 756 N.W.2d 870 any made jurors indication that the other (Minn.2008). Our review of the record way felt the same or if any there was confirms that the findings made on this indication that N.K. had discussed this clearly issue were not erroneous. There is jurors. with other The co-worker re- no indication that the intrusions in were sponded in negative. tentional, that presented evidence at trial produced by intrusions, was that the The district court questioned then N.K. prosecution received confidential informa who claimed he never said anything be- tion about trial preparations or yond defense what could be newspa- found strategy, or that information pers. response In questions, N.K. indi- any way calls was used in jurors sometimes, cated that the amongst not, not, detriment.6 We need themselves, and do would make comments about defendant, articulate a standard that a or facial expressions, or that something State, must show prevail on a claim particularly seemed important to an attor- that an attorney-client intrusion into the ney. At no time did object relationship amounted to a violation of the questioning juror. of the witness or right to counsel because we conclude that N.K. was objection dismissed without for recording 6. phones of inmate calls to cell came calls to the attention of the district jail policy. was a court, There was no evidence that the court ordered the cessation of re- recordings anything issue here were cording of attorney. Andersen's calls to his Further, recording routine. when the
335 anything court- heard or saw that the case outside of the would have talking about to a amounted violation of the court’s or room. not to the case. All attorneys der discuss objected to that is not Conduct agreed summary an accurate plain-error at trial is reviewed under happened. what Andersen now Caine, v. 746 N.W.2d standard. See State something may during have occurred (Minn.2008); Reed, 339, State v. 737 light those interviews that would shed (Minn.2007). 572, Plain- 583-84 N.W.2d prejudice ju whether occurred because of requir analysis three-prong is a test error ror misconduct. But Andersen has not there ing appellant to establish alleged any specific information from those (3) (1) (2) error, plain that was interviews that would be relevant. See defendant’s substantial affected Jackson, v. State 773 N.W.2d Griller, rights. State N.W.2d (Minn.2009) (citing Schoepke v. Alexander (Minn.1998). prongs If these three Co., Minn. Carpet Smith & Sons *15 met, are we then assess whether we (1971) (“An 519-20, 187 N.W.2d fair address the error to ensure “should of error assignment based on mere asser integrity judicial pro ness and the by any supported argument tion and not ceedings.” Id. in appellant’s or authorities brief is waived that Andersen’s substantial We conclude appeal and will not be considered on unless rights were not affected here. He in prejudicial error is obvious on mere gained insight valuable into that the State spection.”)). jurors thinking. But both what the were pres- counsel and the State were defense Finally, court the district interviewed in- questioning equally ent at juror, cousin Andersen’s and another knowledgeable about the inci- formed R.F., about a that conversation occurred questioning of importantly, dent. More According the two of them. between juror yielded very little information cousin, R.F., he saw a former glean- of real value. All that was was co-worker, during at a the trial. gas station juror, ultimately was that at least one ed that R.F. managed The cousin to deduce dismissed, a lot of felt there was “contro- jury. serving on Andersen’s When versy” in the case there was con- because jury, the cousin asked if R.F. was on that testimony. not tradictory Andersen does replied that could not talk about it. R.F. he specifically allege how the State could have cousin told R.F. that Andersen then changed, change, presentation its or did good to him. his cousin and to be Thus, it based on the information learned. again responded that he was not R.F. once af- rights Andersen’s substantial were not R.F. speak allowed to about the matter. not, need and do Consequently, fected. we the cousin’s account of the con- confirmed not, decide whether the district court com- and further stated he did not versation plain. an error that was mitted ability to fair. it would affect his be believe N.K., argued that R.F. should be ex- juror the The State
After the incident that he did if cused. Andersen indicated court interviewed all the bailiffs to learn excused, juror contin- any improper conversa want R.F. and the they had observed argues jurors. ued to serve. Andersen now tions between These interviews information might But after these R.F. have shared this were done off the record. interviews, might have jurors, with other and that this the court stated the record of- negative had a effect. But Andersen that none of the bailiffs indicated there argument. any nothing support or that fers this were concerns the bailiffs again, there is no indication that physical Once the timeline and evidence rights Andersen’s substantial were affect- support a hypothesis rational other than not, Consequently, ed. we need and do review, guilt. our Under standard of not, the district decide whether court com- “[cjircumstantial evidence must form a plain. mitted an error that was complete that, chain in view of the evi- whole, directly dence as a leads so sum, carefully In we have An- reviewed guilt of the defendant beyond exclude pro arguments, dersen’s se and find them any reasonable doubt reasonable infer- to be without merit. ence other than guilt.” Taylor, State Because we conclude that the district (Minn.2002); 650 N.W.2d see also properly rejected court Andersen’s chal- McArthur, State v. 730 N.W.2d warrant, lenge to the search there (Minn.2007) (holding when a convic- was sufficient evidence to convict Ander- evidence, tion is based on circumstantial murder, first-degree premeditated sen of “that evidence must be consistent with the and that Andersen failed to establish hypothesis that the guilty accused is prejudice recording phone from the calls inconsistent with any hy- other rational attorney, to his we affirm his conviction. (citation pothesis except guilt”) that of Affirmed. omitted) (internal quotation marks omit- ted). In that the reasonable inferences PAGE, (concurring). Justice *16 from the timeline and physical evidence result, I concur in the but I write sepa- support a hypotheses rational other than rately my disagreement to note with the guilt, question the becomes whether the court’s statement of and application of our evidence taken as a whole makes such standard of review for convictions based theories seem unreasonable. Taylor, See on circumstantial evidence. 650 at (stating “possibili- N.W.2d 206 To the extent that the court’s statement ties of innocence require do not reversal of application of and of our standard of re- jury a long verdict so as the evidence view sufficiency for the of in the evidence taken whole makes such theories circumstantial evidence cases is inconsis- unreasonable”) (citations omitted) seem Meyer’s tent with Justice articulation of (internal omitted). quotation marks Al- Stein, 709, the rule State v. 776 N.W.2d though, on the record before us the answer (Minn.2010) (Meyer, J., 720-26 concur- question one, to that is a close I believe I ring), would follow the standard articu- totality of remaining evidence by Meyer. lated Justice may Juries be in is sufficient to establish guilt Anderson’s position the best credibility determine beyond a reasonable doubt. evidence, weigh and we defer to their of determination the circumstances (con- ANDERSON, H., PAUL Justice proved, jury’s choice between rea- curring). sonable inferences to be drawn from the proved circumstances is not entitled to def- join I in the concurrence of Justice
erence. Page. here, In its decision the court ignores
the fact that neither the timeline nor the MEYER, (concurring). Justice physical exclusively evidence supports an guilt. join inference of That I say, is to in the concurrence of Justice reasonable inferences that Page. can be drawn
337 MEYER, (concurring). circumstantial incorpo- Justice evidence standard proof sufficiency rates the burden of Page join I in the concurrence Justice Tscheu, review....” v. State 758 N.W.2d separately to restate that but write (Minn.2008) 849, J., (Meyer, 869 concur- analytical “unduly framework majority’s ring). review narrows our traditional standard of by replacing evidence
for circumstantial
Johnson,
State v.
the seminal authority
‘cir-
the term ‘circumstantial evidence’ with
limiting
cited for
review to circumstances
proved’
restricting
and then
cumstances
verdict,
in the
implied
involved the theft of
proved’
only
‘circumstances
review of
potatoes
bushels
from a farmer’s root
by the court
those circumstances deemed
543, 544,
683,
cellar. 173 Minn.
217 N.W.
implicit
guilty
to be
verdict.” State
(1928).
The State’s evidence was cir-
(Minn.2010)
Stein,
N.W.2d
cumstantial.
Id.
N.W. at 683.
(Anderson,
J.,H.,
concurring).
Paul
Given
pre-
defendant denied
theft and
abandoning
are
our traditional
that we
testimony
sented his own
and that of two
review, I
trial
standard of
believe
544-45,
others to establish an alibi. Id. at
jury
courts should instruct the
on the law
affirming
on behalf of the defendant
(1952)
omitted)
circumstances,
(emphasis
N.W.2d
tent facts and
not conclu-
(footnotes omitted);
Stein,
see also
jury may
which the
sively proved, and
J.,
(Meyer,
concurring)
N.W.2d at 723
reject
to and. do
as not
right
have a
(noting that
since
least
Minnesota
logical
Followed to its
conclu-
proved.
jury
courts instructed the
on the law of
sion,
secondary
rule stated reverts
evidence).
circumstantial
For,
rule.
back to the reasonable doubt
if
more circumstances found
States,
one or
In
Holland
United
the U.S. Su-
guilt,
or
proved are inconsistent
preme
proper
Court determined
a
innocence, then a
consistent with
reason-
reasonable-doubt
instruction obviated the
guilt
a rational-hypothesis
able doubt as to
arises.
need for
instruction:
petitioners
The
assail the
refusal
(citation
545-46,
Id. at
339 subjective happened of near certitude because he wasn’t there a state reach accused, the standard didn’t commit the guilt of the crime. society symbolizes significance that our Id. at 484. to the criminal sanction and thus attaches Moreover, analogy proof beyond a liberty itself.” Id. reasonable people doubt to decisions act pattern Minnesota’s reasonable-doubt in upon important their own most affairs is
jury instruction reads:
misplaced:
beyond
Proof
a reasonable doubt is such
In
people
the decisions
make in the most
ordinarily
proof
prudent
men and
affairs,
important of their own
resolution
in
upon
women would act
their most
past
of conflicts about
events does not
A
important affairs.
reasonable doubt is
Indeed,
usually play major
a
role.
deci-
upon
a doubt based
reason and common
important
sions we make
the most
sense.
It does not mean a fanciful or
affairs of our
a
choosing spouse, a
lives—
doubt,
it
capricious
nor does mean be-
live,
job,
place
a
gener-
and the like—
all
of doubt.
yond
possibility
ally
very
a
heavy
involve
element of
Ass’n,
Judges
Minn. Dist.
Minnesota
uncertainty
risk-taking. They
10
are
Guides,
Jury Instruction
Crim-
wholly
jurors
unlike the
ought
decisions
Practice —
2006).
(5th
inal,
3.03
This
CRIMJIG
ed.
to make in criminal cases.
incorporates
instruction neither
the Win-
Nebraska,
1, 24,
Victor v.
511
114
U.S.
ship concept
impressing upon
jury
(1994) (Gins-
1239,
S.Ct.
sure that do not take the beyond doubt too far ... Proof a reasonable doubt is add[ ] reasonable firmly proof you the burden that a defendant must meet that leaves convinced of very are government fairly guilt. when the has a weak the defendant’s There evidence, things case based on circumstantial few in this world that we know certainty, and the defendant does not have with absolute criminal good explanations require proof alternative of what cases the law does not If, every possible supe- doubt. Federal Judicial Center instruction
overcomes
formulations”).
rior to the traditional
the
your consideration of
evi-
based on
dence,
you
firmly
are
convinced
The evaluation of circumstantial evidence
guilty
charged,
is
of the crime
defendant
requires
jury
closely
examine the
guilty.
him
If on the
you must find
evidence and determine what
inferences
hand, you think there is a real
other
a minor fact
can and should be drawn from
guilty, you
not
must
possibility that he is
or
of minor facts to establish a
series
him the benefit of the doubt and
give
principal
rational-hypothesis
fact. The
in-
guilty.
him
find
jury’s
struction directs the
attention to the
appropriate
evaluating
method for
this evi-
Ctr.,
Jury
Pattern
Fed. Judicial
Criminal
dence. Given the frailties in Minnesota’s
Instructions,
See, e.g.,
Instruction 21.
instruction,
reasonable-doubt
it would be
(Utah
305,
Reyes,
116 P.3d
State
in-
difficult for me to conclude that
2005) (authorizing use of the model Feder-
one,
qualifies
proper
struction
as a
suffi-
instruction);
al
Center
see also R.
Judicial
preclude
for the rational-
cient
need
Richards,
An
Jason
Reasonable Doubt:
hypotheses
contemplated
instruction as
Jury
and Examination
In-
Overview
appellate
Holland. Now that
courts re-
Colorado,
Law., Aug.
structions in
Colo.
only
view
implicit
those circumstances
85, 88,
(citing
at
91 nn.
federal
89-90
verdict,
on cir-
special
instruction
approving
courts
model Federal
and state
cumstantial evidence is essential to avert
instruction).
Judicial Center
undermining
presumption
of innocence
impress
jury
Ginsburg
upon
endorsed the Federal Ju-
the need to
Justice
reach a
guilt
state of certitude of the
dicial Center
instruction in her concur-
accused.
Victor,
rence in
reasonable doubt standard er. comprehensibly.”). Commentators find the Federal Judicial Center instruction su- (con- ANDERSON, H., Justice PAUL
perior to instructions similar to Minneso- curring). See, e.g., ta’s formulation. Jon O. New- man, Doubt," Beyond “Reasonable join I Mey- the concurrence of Justice (1993) (“Notably L.Rev. N.Y.U. er. absent from Judicial Cen- [Federal charge misleading model is the ter’s]
phrase about doubt ‘based on reason’ and the ambiguous language ‘hesitating about ”); Solan, important supra, matters.’ study (citing by psychol-
482-83 conducted ogist Irwin Horowitz and evidence scholar Kirkpatrick “[o]nly
Laird in which Judicial instruction [Federal Center] acquittals achieved when the case was *20 weak, and convictions the case was when Richards,
strong”); supra, (finding at 88