Andersen v. State

• Decision Date: 13 June 2018
• Docket Number: A17-0658
• Parties: Kenneth Eugene ANDERSEN, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

913 N.W.2d 417

Kenneth Eugene ANDERSEN, Appellant,

v.STATE of Minnesota, Respondent.

A17-0658

Supreme Court of Minnesota.

Filed: June 13, 2018

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heights, Minnesota, for appellant.

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul, Minnesota; and Tammy L. Merkins, Becker County Attorney, Detroit Lakes, Minnesota, for respondent.

Considered and decided by the court without oral argument.

OPINION

LILLEHAUG, Justice.

In 2008 a jury found appellant Kenneth Eugene Andersen guilty of first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2016), for the April 2007 shooting death of Chad Swedberg in Becker County. We affirmed his conviction on direct appeal, State v. Andersen (Andersen I ), 784 N.W.2d 320, 323 (Minn. 2010), and affirmed the postconviction court’s summary denial of his first postconviction petition, Andersen v. State (Andersen II ), 830 N.W.2d 1, 14 (Minn. 2013).

Now before us is Andersen’s second petition for postconviction relief, claiming newly discovered evidence, ineffective assistance of trial counsel, and a Brady violation. The postconviction court denied the petition without holding an evidentiary hearing. We affirm in part, reverse in part, and remand for further proceedings.

FACTS

Chad Swedberg lived in Becker County with his wife, Leslie Fain, her son, Jesse Fain, and other members of the Fain family. On the morning of April 13, 2007, Swedberg left his home to work at a nearby maple syruping camp. Shortly thereafter, two shots were fired, and Swedberg’s body was found at the camp. Almost no evidence was found at the scene, but suspicion soon fell upon Andersen after he made several misrepresentations to investigators. Andersen was indicted by a grand jury on one count of murder in the first degree, and at trial the State presented the following evidence.¹

Swedberg and Andersen were good friends, but their friendship had soured in the months before Swedberg’s death. In August 2006, an ATV was reported stolen from a residence where Swedberg and Andersen were performing construction work. Andersen later confessed to Swedberg that he had stolen the ATV, and a few months later the ATV was found on Swedberg’s property. Andersen was charged with theft of the ATV, and Swedberg was not happy that it was found near his home.² Also, about one week before Swedberg was killed, he decided not to participate with Andersen in a leeching business. Leslie Fain testified that Swedberg planned to start a greenhouse business instead.

At 7:46 a.m. on April 13, 2007, Andersen called Swedberg and asked him for a ride to Fargo so he could apply for a loan. Swedberg told Andersen that he could not give him a ride that morning because he was making maple syrup with Al Baker. Six minutes later, at 7:52 a.m., Andersen called Baker and asked him to stop by Andersen’s house on the way to the camp. Baker agreed to stop by the house, but told Andersen that he first needed to buy groceries.

According to Leslie Fain, she heard two gun shots at approximately 8:13 a.m. Concerned for Swedberg’s well-being, she called his cell phone several times. After getting no answer, she went to investigate the campsite. There she found Swedberg’s body. Swedberg was shot twice—once in the right shoulder and once in the left buttock—and had bled to death. The bullets were not fired from close range. A firearms examiner determined that the bullets came from a .30-caliber weapon.

Investigators first spoke with Andersen a few days after Swedberg’s death. Andersen was not a suspect, but during that conversation he made several statements that aroused suspicions. First, Andersen told investigators that he had a meeting with his tax preparer at 9:00 or 9:30 a.m. on the morning of the murder. He did meet with his tax preparer in Mahnomen around 10:00 a.m., but the meeting had been scheduled for 2:00 p.m. Second, Andersen told investigators that he had an appointment with a banker at 11:00 a.m. Although he met with a banker in Moorhead that day, he did not have a scheduled appointment. Third, Andersen told investigators that he left for these appointments between 8:30 and 9:00 a.m. But he did not call his relative for a ride until about 9:17 a.m., and he did not leave for Fargo until at least 9:34 a.m. In short, the timeline could not account for Andersen’s whereabouts at the time of the shooting.

Investigators secured a search warrant for Andersen’s home, which was located 1.3 miles from where the shooting occurred. Andersen told investigators that he owned "a 410 ... a pump action shotgun, a 12 gauge shotgun, a 222 and a muzzle loader," but did not volunteer that he also owned a .30-caliber rifle. At the time, the public was not aware that a .30-caliber rifle had fired the fatal shots.

When the investigators arrived, Andersen initially consented to the search. But when police began to search the outbuildings on his property, Andersen became angry. The police told him that a search warrant had been issued. The search of one of the outbuildings—the barn—uncovered a Tikka T3 Lite .300 Winchester short magnum rifle.³ The rifle had been concealed under insulation and Andersen’s palm print was on it. Investigators also found bullets in the home. A firearms examiner concluded that the rifle could have fired the bullets removed from Swedberg’s body, and that the bullets found in Andersen’s home had characteristics similar to the bullets removed from Swedberg’s body. The serial number on the rifle matched the serial number of a gun that Swedberg had purchased the prior year.

The jury found Andersen guilty of first-degree premeditated murder, and he was sentenced to life in prison without the possibility of release. We affirmed Andersen’s conviction on direct appeal, rejecting his arguments regarding search warrant deficiencies, attorney-client phone calls being monitored, jurors being improperly questioned, and the sufficiency of the evidence. Andersen I , 784 N.W.2d at 323, 329, 332–36.

Andersen brought his first postconviction petition in 2010, raising six claims: (1) newly discovered evidence existed in an affidavit from his mother, (2) recordings of phone calls Andersen made while in jail were admitted in violation of his right to counsel, (3) the prosecutor committed misconduct by arguing that Andersen was the only person who possessed a "secret" .30-caliber gun, (4) the State withheld evidence, (5) evidence was introduced in violation of the Confrontation Clause, and (6) ineffective assistance of trial and appellate counsel, in part because trial counsel did not properly investigate the case. Andersen II , 830 N.W.2d at 6–8, 13. The petition was summarily denied by the postconviction court, and we affirmed. Id. at 5.

In September 2016, Andersen filed his second postconviction petition, now before us, alleging the existence of 16 pieces of newly discovered evidence found in 15 underlying documents, most of which were obtained by a private investigator. According to Andersen, his second petition was proper because it satisfied the newly-discovered-evidence and interests-of-justice exceptions to the postconviction statute’s 2-year statute of limitations. In the alternative, he asked the postconviction court to use its supervisory powers to order a new trial in the interests of justice. Andersen argued that the newly discovered evidence shows the following:

1. An interview with Al Baker and an affidavit from Geraldine Bellanger showing that: (1) Baker was at the syruping camp as early as 8:00 a.m. and found a bullet and cigarette butts left by the shooter, and (2) Baker sent his .308-caliber rifle to his brother in Illinois, not to his niece in Alaska. Bellanger’s statement also recounts a conversation that she had with Lisa Swedberg, wherein Lisa told Bellanger that Baker told Lisa that "voices in his head told him to kill [Swedberg]."

2. Almost 10 minutes of an interview with Baker allegedly showing that Baker received two phone calls from someone claiming to have killed Swedberg.

3. A witness contact form showing that Andersen did not leave his tax preparer’s office with a copy of his taxes, but instead only left with a reference copy.

4. An interview with Wanda Nelson showing that Andersen called his tax preparer’s office to request that she fax his tax returns to his bank, and that he did not physically return to the office to get a copy of his taxes.

5. An interview with Douglas Haverkamp showing that Haverkamp was unwilling to speak with Andersen’s investigator before trial because he was afraid of Andersen.

6. An interview with Bradley Riggle also showing that Haverkamp and Riggle intended to drive to Ulen to have Haverkamp’s taxes done.

7. An interview with Officer Jeffrey Nelson showing that, contrary to Officer Nelson’s trial testimony, Swedberg knew that the stolen ATV was hidden on his property.

8. Andersen’s trial investigator "obtained a recording of Liz Andersen handing an envelope of cash to [Swedberg and Leslie Fain] inside a Wal-Mart, corroborating [Andersen’s] statement [that] he had sold the Tikka rifle to [Swedberg]...."

9. Several documents showing that Andersen’s cell phone was in such poor condition on April 13 that he could not use it for more than a few moments at a time unless it was plugged in.

10. An interview with Tonya Gunderson showing that Swedberg was having an affair with her shortly before his death.

11. An affidavit from Stacy Weaver stating that Leslie Fain, Jesse Fain, and possibly Leslie’s brother "were seen driving on Highway 34 between 7:30 and 8:00 a.m. on April 13...."

12. An interview with Steven Lhotka showing that Lhotka never spoke with Leslie Fain or Swedberg about selling them a greenhouse.

13. A statement from Gary Underdahl showing that Swedberg’s brother, Kenneth, rolled Swedberg’s body over to search his pockets, which "provided an opportunity to know of the bullet hole size."

14. A statement from Josh Bogatz that he "dropped off

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