Andersen v. State

• Decision Date: 02 May 2013
• Docket Number: No. A11–0541.,A11–0541.
• Parties: Kenneth Eugene ANDERSEN, Jr., petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

830 N.W.2d 1

Kenneth Eugene ANDERSEN, Jr., petitioner, Appellant,

v.STATE of Minnesota, Respondent.

No. A11–0541.

Supreme Court of Minnesota.

March 20, 2013.

Rehearing Denied May 2, 2013.

Syllabus by the Court

The postconviction court properly determined that the petition and the files and records of the proceeding conclusively showed that appellant was not entitled to relief because his claims are either meritless on their face or barred by the Knaffla rule.

Gary R. Wolf, Minneapolis, MN, for appellant.

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, and Michael Fritz, Becker County Attorney, Detroit Lakes, MN, for respondent.

Considered and decided by the court without oral argument.

OPINION

DIETZEN, Justice.

Appellant Kenneth Eugene Andersen was found guilty by a Becker County jury of first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2012), arising out of the shooting death of Chad Swedberg. The district court entered a judgment of conviction, and sentence was imposed. On direct appeal, we affirmed Andersen's conviction. State v. Andersen, 784 N.W.2d 320, 323 (Minn.2010). After his direct appeal, Andersen filed a petition for postconviction relief alleging seven separate grounds that he contends warrant a new trial. The postconviction court summarily denied Andersen's petition, explaining that Andersen's claims are either meritless on their face or barred by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). In this appeal, Andersen argues the postconviction court erred in denying his petition for postconviction relief. Because we conclude the postconviction court did not err in summarily denying Andersen's petition for postconviction relief, we affirm.

A grand jury indicted Andersen of first-degree premeditated murder arising out of the April 13, 2007 shooting death of Chad Swedberg.¹ Andersen demanded a jury trial. While awaiting trial, Andersen was held at a local jail that monitored and recorded most phone calls, including some of Andersen's calls with his attorneys and private investigator.

At trial, the State presented the following evidence. Chad Swedberg lived with, among others, his wife, Leslie Fain, and her son, Jesse Fain, in rural Becker County. On the morning of the murder, Swedberg, his friend Albert Baker, and Jesse Fain planned to process maple syrup at a nearby syruping camp. Swedberg left his home at about 8:00 a.m. to get everything ready before the others arrived. Shortly after Swedberg left, Leslie Fain heard two gunshots from the direction of the camp. Since it was not hunting season she became concerned, and called Swedberg's cell phone at 8:13 a.m. After trying to reach Swedberg several times without an answer, she walked to the camp. At the camp, she found Swedberg's body and called 911.

During the investigation, police discovered that Andersen and Swedberg were friends and worked together, but the relationship had recently deteriorated. Based on interviews of Andersen and other witnesses, the investigation quickly focused on Andersen. The police determined that Andersen called Swedberg at 7:46 a.m. on the morning of the murder. 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 syruping camp, ensuring that Baker would not be at the syruping camp until later that morning. Moreover, Andersen was familiar with the area surrounding the camp, having previously visited the camp and hunted in the area.

Pursuant to a search warrant, police found bullets in Andersen's house that had similar characteristics to the bullets recovered from Swedberg's body. The police also found a Tikka T3 Lite .300 Winchester short magnum rifle concealed under the insulation of an outbuilding near Andersen's house. Andersen attempted to concealhis ownership and possession of the Tikka rifle, but made no attempt to conceal his ownership or possession of other guns that did not fire .30–caliber bullets. The State's palm-print expert, Patrick Warrick, testified that he had issued a report stating that a palm print identified as Andersen's was found on the rifle. Warrick further explained that he had sent images of the rifle and print to a second examiner, and that pursuant to his office policy, if a second analyst disagrees with a palm-print identification, the result is deemed inconclusive.

The medical examiner testified that Swedberg was shot twice—once in the back of the right shoulder and once in the left buttock. As a result, he bled to death. Based on the physical evidence, the examiner concluded that Swedberg was not shot at close range. The State's firearm expert, Nathaniel Pearlson, opined that the bullets recovered from Swedberg's body were from a .30 caliber weapon and that he was “reasonably certain” the bullets were Winchester Supreme Ballistic Silvertip bullets. In reaching his opinion, the firearm expert relied on marketing material he received in an email from a Winchester representative, who did not testify at trial. Defense counsel explicitly declined to object to the introduction of the marketing material at trial.

The jury found Andersen guilty of first-degree premeditated murder. At the sentencing hearing, defense counsel moved for a mistrial, arguing that the State violated Minn. R.Crim. P. 9.01 by failing to timely disclose a police report in which Baker admitted to possessing a .30–caliber rifle. The district court denied the motion and sentenced Andersen to life in prison without the possibility of release.

In his direct appeal, Andersen argued: (1) there were misrepresentations in the search warrant application used to obtain his gun that invalidated the warrant; (2) there was insufficient evidence to support his conviction for first-degree premeditated murder; (3) his right to counsel was violated because calls to his attorney's cell phone were monitored and recorded; and (4) the district court erroneously questioned jurors, bailiffs, and witnesses about incidents that occurred outside of the trial. We rejected all of his arguments and affirmed Andersen's first-degree murder conviction. Andersen, 784 N.W.2d at 323.

In December 2010, Andersen filed the present petition for postconviction relief alleging that he is entitled to a new trial because: (1) there was newly discovered evidence that was both material and exculpatory; (2) recordings of phone calls he made while in jail were admitted at trial in violation of his constitutional right to counsel; (3) testimony by firearm and palm-print experts and an exhibit displaying several types of Winchester bullets were admitted at trial in violation of his Sixth Amendment right of confrontation; (4) the State committed misconduct during closing argument; (5) the State withheld certain evidence until after trial; (6) his trial counsel was ineffective; and (7) his appellate counsel was ineffective. The postconviction court summarily dismissed Andersen's claims. Because Andersen's claims are either meritless on their face or barred by the Knaffla rule, we affirm.

I.

Andersen first argues that the postconviction court erred in concluding that the newly-discovered-evidence claim in his petition lacked merit. We review a postconviction court's legal conclusions de novo. Davis v. State, 784 N.W.2d 387, 390 (Minn.2010). But we will not reverse the court's factual findings unless they are clearly erroneous. See Doppler v. State, 771 N.W.2d 867, 875 (Minn.2009).

A person convicted of a crime who claims that his or her conviction was obtained in violation of the person's constitutional or statutory rights may file a petition for postconviction relief under Minn.Stat. § 590.01, subd. 1(1) (2012). The postconviction court must hold an evidentiary hearing “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2012).

To obtain a new trial on the basis of newly discovered evidence, a petitioner must establish: “(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.” ²Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997). But “[a]n evidentiary hearing is unnecessary if the substance of the affidavit purporting to contain newly discovered evidence, when taken at face value, is insufficient to entitle the petitioner to the relief requested.” Scherf v. State, 788 N.W.2d 504, 508 (Minn.2010). Andersen alleges that an affidavit from his mother, Geraldine Bellanger, constitutes newly discovered evidence that entitles him to a new trial or an evidentiary hearing. Bellanger claims that Ken Swedberg, Chad Swedberg's brother, told her and Lisa Swedberg that he saw a blue pick-up truck leave Chad Swedberg's property at 8:45 a.m. on the morning of the murder, and that the driver of the blue pick-up truck was “Brian,” who was the boyfriend of one of the occupants of Swedberg's house. The record reflects that Ken Swedberg told police he did not see a blue pick-up truck leave Chad Swedberg's residence on the morning of the murder. Ken Swedberg, however, later clarified that he told Bellanger that he wondered where the blue pick-up truck was on the morning of the murder. The postconviction court concluded that the Bellanger affidavit did not satisfy the third prong of the Rainer test. We affirm on a different ground.

We conclude Andersen failed to satisfy the fourth prong of Rainer that the evidence would probably produce an acquittal or more favorable result. It is improbable that Bellanger's testimony would produce an acquittal or more favorable result, especially when the murder did not occur at the Swedberg house and there is no evidence...