Andersen v. State

• Decision Date: 11 March 2020
• Docket Number: A19-0745
• Citation: 940 N.W.2d 172
• Parties: Kenneth Eugene ANDERSEN, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

940 N.W.2d 172

Kenneth Eugene ANDERSEN, Appellant,

v.STATE of Minnesota, Respondent.

A19-0745

Supreme Court of Minnesota.

Filed: March 11, 2020

Zachary A. Longsdorf, Longsdorf Law Firm, P.L.C., Inver Grove Heights, Minnesota, for appellant.

Keith Ellison, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul, Minnesota; and Brian McDonald, Becker County Attorney, Detroit Lakes, Minnesota, for respondent.

OPINION

THISSEN, Justice.

In 2008, appellant Kenneth Eugene Andersen was convicted of first-degree premeditated murder. In this appeal, Andersen challenges the district court’s denial of his second petition for postconviction relief. In Andersen v. State (Andersen III ), 913 N.W.2d 417, 421 (Minn. 2018), we reversed in part the district court’s denial of Andersen’s second postconviction petition and remanded to the district court for its determination of whether an evidentiary hearing was required to consider the evidence set forth in the affidavits of Geraldine Bellanger and Stacy Weaver. After hearing from over a dozen witnesses, the district court found that the testimony by Bellanger and Weaver was not credible.

We conclude that Andersen did not establish that he is entitled to a new trial under the tests we set forth in Rainer v. State , 566 N.W.2d 692, 695 (Minn. 1997), and State v. Caldwell , 322 N.W.2d 574, 584–85 (Minn. 1982) (citing Larrison v. United States , 24 F.2d 82, 87–88 (7th Cir. 1928), overruled by United States v. Mitrione , 357 F.3d 712, 718 (7th Cir. 2004) ). We hold that the district court properly declined to grant him a new trial. The remainder of Andersen’s arguments also do not entitle him to relief. We therefore affirm.

FACTS

In 2008, a jury found Andersen guilty of first-degree premeditated murder for the April 2007 shooting death of Chad Swedberg. Andersen challenged his conviction on direct appeal and we affirmed the conviction. Andersen v. State (Andersen I ), 784 N.W.2d 320, 323 (Minn. 2010).

In 2010, Andersen filed his first postconviction petition. He raised claims of newly discovered evidence, violation of his right to counsel, prosecutorial misconduct, Confrontation Clause violations, and ineffective assistance of trial and appellate counsel. Andersen v. State (Andersen II ), 830 N.W.2d 1, 6 (Minn. 2013). The petition was summarily denied by the district court and we affirmed. Id. at 14.

In September 2016, Andersen filed his second postconviction petition. See Andersen III , 913 N.W.2d at 417. In support of his postconviction petition, he alleged that newly discovered evidence, including affidavits from Geraldine Bellanger and Stacy Weaver, required an evidentiary hearing. Id. at 421–22. He also alleged a violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and ineffective assistance of trial counsel. Andersen III , 913 N.W.2d at 425 n.8 ; id. at 429 n.14. Andersen argued that his claims could be considered based on the newly-discovered-evidence and interests-of-justice exceptions to the 2-year time bar on postconviction claims set forth in Minn. Stat. § 590.01, subd. 4 (2018). Without conducting an evidentiary hearing to assess credibility, the district court summarily denied Andersen’s second petition, concluding, among other things, that the Bellanger and Weaver affidavits were not credible. 913 N.W.2d at 422.

Andersen appealed. We affirmed in part, upholding the district court’s summary denial of most claims raised in his second petition. Id. We rejected without prejudice claims based on post-trial interviews of witnesses and others conducted by an investigator that Andersen retained. We concluded that the investigator’s unsworn reports were insufficient to support a claim for postconviction relief.

Because the district court rejected the Bellanger and Weaver affidavits as not credible without conducting an evidentiary hearing, however, we reversed in part and remanded. Id. at 424. We instructed the district court to assume that the facts in the affidavits were true and assess whether an evidentiary hearing was necessary. Id. If it concluded that a hearing was necessary, we directed that the district court promptly conduct the hearing to determine whether Andersen was entitled to relief based on the affidavits. Id.

On remand, the district court concluded that Andersen was entitled to an evidentiary hearing on the allegations in the Bellanger and Weaver affidavits because, when taken as true, they satisfied the newly-discovered-evidence exception to the statute of limitations. The district court held an evidentiary hearing and heard testimony from over a dozen witnesses. After the hearing, Andersen moved to reopen and expand the record to include evidence relating to claims that were not alleged in the second postconviction petition. The district court denied the motion. Based on the testimony of witnesses at the hearing, the court ultimately concluded that the Bellanger and Weaver evidence was not credible and that Andersen was not entitled to relief because the evidence failed to clearly and convincingly prove that Andersen was innocent of the offense. Andersen appealed.

ANALYSIS

We review a district court’s decision on a petition for postconviction relief for an abuse of discretion. See Zornes v. State , 903 N.W.2d 411, 416 (Minn. 2017). "A [district court] abuses its discretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record." Brown v. State , 895 N.W.2d 612, 617 (Minn. 2017) (citation omitted) (internal quotation marks omitted).

A district court’s credibility determinations are reviewed for clear error. Bobo v. State , 860 N.W.2d 681, 684 (Minn. 2015). We will disturb a district court’s credibility determinations only when, after a thorough review of the record, we are left with the definite and firm conviction that a mistake has been made. See Tscheu v. State , 829 N.W.2d 400, 403 (Minn. 2013).

I.

Andersen argues that the district court improperly applied the clear and convincing standard from Minn. Stat. § 590.01, subd. 4, to determine whether he was innocent of murder and therefore entitled to a new trial. He argues that, before granting an evidentiary hearing, the district court had determined that the Bellanger and Weaver affidavits, taken as true, surmounted the clear and convincing hurdle of the newly-discovered-evidence exception to the 2-year time bar on postconviction petitions. See id. , subd. 4(b)(2). Accordingly, he asserts that the court should have applied either the Rainer test for newly discovered evidence, 566 N.W.2d at 695, or the Larrison test for false or recanted testimony, Opsahl v. State , 677 N.W.2d 414, 422–23 (Minn. 2004), when substantively assessing the claims.

Under each test, the petitioner need satisfy his burden of proof only by a preponderance of the evidence, not by clear and convincing evidence. State v. Hurd , 763 N.W.2d 17, 34 (Minn. 2009) (discussing Rainer ); Opsahl , 677 N.W.2d at 423 (discussing Larrison ). But even under the less onerous standards of Rainer and Larrison , Andersen is not entitled to a new trial.

In Rainer , we established a test for determining whether to grant a new trial based on newly discovered evidence. To receive a new trial, a postconviction petitioner must show that the evidence (1) was not known to the defendant or defense counsel at the time of the trial; (2) could not have been discovered through due diligence before trial; (3) is not cumulative, impeaching, or doubtful; and (4) would probably produce an acquittal or a more favorable result. Rainer , 566 N.W.2d at 695. A petitioner’s failure to prove any element of the test dooms his claim. See Miles v. State , 840 N.W.2d 195, 201 (Minn. 2013).

We have adopted the Larrison test for determining whether to grant a new trial based on falsified or recanted witness testimony. See Opsahl , 677 N.W.2d at 422 ; see also Pippitt v. State , 737 N.W.2d 221, 227 (Minn. 2007) ("[W]e have also indicated that Larrison applies more generally, such as ‘when a court reviews an allegation that false testimony was given at trial.’ " (quoting Dukes v. State , 621 N.W.2d 246, 257 (Minn. 2001) )). To satisfy this test, a postconviction petitioner must be able to establish the following by a fair preponderance of the evidence: (1) the court must be reasonably well-satisfied that the testimony in question was false; (2) without that testimony the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial. Id. at 226–27 ; see also Williams v. State , 692 N.W.2d 893, 896 (Minn. 2005). Failing to prove one of the first two prongs of the test means the petitioner does not prevail. Campbell v. State , 916 N.W.2d 502, 507 (Minn. 2018) (holding that the court need not reach the second and third prongs of the Larrison test because the petitioner failed to satisfy the first prong).

Under either of these tests, the credibility of the new evidence is critical. To satisfy the third prong of Rainer , the evidence must not be doubtful. 566 N.W.2d at 695. When a district court concludes that testimony offered by a witness for the petitioner is not credible, it is not an abuse of discretion to conclude that the testimony is doubtful. Likewise, to satisfy the first prong of Larrison , the new evidence must demonstrate that trial testimony was false. Opsahl , 677 N.W.2d at 423. When a district court determines that postconviction testimony that challenges trial testimony is not credible, it is not an abuse of discretion to conclude that the postconviction testimony was insufficient to show that trial testimony was false.

Turning now to this petition, Bellanger’s affidavit and testimony alleged that the victim’s brother and sister-in-law told Bellanger that a man, A.B., had heard voices in his head telling him to kill the victim and had "about admitted to [them] that he did it." Bellanger’s affidavit...