Gassler v. State Of Minn., No. A09-1534.

• Decision Date: 02 September 2010
• Docket Number: No. A09-1534.
• Citation: 787 N.W.2d 575
• Parties: Robert Daniel GASSLER, Jr., petitioner, Appellant,v.STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

787 N.W.2d 575

Robert Daniel GASSLER, Jr., petitioner, Appellant,v.STATE of Minnesota, Respondent.

No. A09-1534.

Supreme Court of Minnesota.

Sept. 2, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. An appellant who fails to establish his innocence by the clear and convincing standard as required by Minn.Stat. § 590.01, subd. 4(b)(2) (2008), is not entitled to have his petition for postconviction relief considered under the newly discovered evidence exception to the time bar set out in Minn.Stat. § 590.01, subd. 4(c) (2008).

2. The postconviction court erred when it failed to consider whether Minn.Stat. § 590.01, subd. 4(b)(5)'s (2008), interests of justice exception to the statutory time bar permitted appellant's postconviction petition to be heard.

3. The interests of justice do not require that appellant's untimely petition for postconviction relief be considered. David W. Merchant, Chief Appellate Public Defender, Michael F. Cromett, Assistant State Public Defender, St. Paul, MN, for appellant.

Lori Swanson, Attorney General, Wm. F. Klumpp, Jr., Assistant Attorney General, St. Paul, MN; and Charles Rasmussen, Todd County Attorney, Long Prairie, MN, for respondent.

Julie Ann Jonas, St. Paul, MN, for amicus curiae The Innocence Project of Minnesota.

OPINION

PAGE, Justice.

In 1992, appellant, Robert Daniel Gassler, Jr., was found guilty of first-degree murder in Todd County District Court for his involvement in the shooting death of Dale Yungk and sentenced to life in prison. Along with other evidence, the State presented the testimony of a Federal Bureau of Investigation (FBI) agent who, relying on Composite Bullet Lead Analysis (CBLA),¹ testified that a pellet recovered from Yungk's body came from a box of ammunition tied to Gassler. Gassler's conviction was affirmed on September 3, 1993, and consequently became final on December 2, 1993.² See State v. Gassler, 505 N.W.2d 62 (Minn.1993). In 1997, a postconviction court denied, without an evidentiary hearing, Gassler's pro se petition for postconviction relief, and in 1999 we affirmed the postconviction court. Gassler v. State, 590 N.W.2d 769 (Minn.1999).

In 2005, the legislature amended the postconviction statute, Minn. Stat § 590.01 (2004), to provide, “No petition for postconviction relief may be filed more than two years after the later of: (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court's disposition of petitioner's direct appeal.” Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Laws 901, 1097-98. With regard to the effective date of the amendment, the legislature provided, “Any person whose conviction became final before August 1, 2005, shall have two years after the effective date of this act [August 1, 2005] to file a petition for postconviction relief.” Id. The legislature also created five exceptions to the two-year statute of limitations for filing a petition for postconviction relief. The second exception applies to allegations of newly discovered evidence that could not have been ascertained by the exercise of due diligence, that is not cumulative, that is not for impeachment, and that establishes by clear and convincing evidence that the petitioner is innocent. Minn.Stat. § 590.01, subd. 4(b)(2) (2008). The fifth exception applies when “the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.” Minn.Stat. § 590.01, subd. 4(b)(5) (2008).

In November 2007, Gassler saw a news report that indicated that CBLA evidence cannot establish the origin of bullets. On March 31, 2008, Gassler filed a second petition for postconviction relief arguing that he had been convicted on the basis of false evidence. Gassler invoked the newly discovered evidence and interests of justice exceptions to the two-year statute of limitations for filing a petition for postconviction relief. Gassler also filed a discovery motion, seeking to compel the State to obtain and disclose “FBI Laboratory principal and auxiliary examiner benchnotes” created during the CBLA testing.

The postconviction court denied Gassler's discovery motion, explaining that the State had no duty to disclose records that it did not possess. The postconviction court also summarily denied Gassler's second petition for postconviction relief. The postconviction court explained that Gassler's petition was barred by the two-year statute of limitations and no exception was applicable. Specifically, the postconviction court held that the newly discovered evidence exception did not apply because Gassler failed to prove his innocence by clear and convincing evidence. Concluding that Gassler's petition fell “squarely within the purview of the ‘newly discovered evidence’ exception,” the postconviction court did not reach the issue of whether Gassler satisfied the requirements of the interests of justice exception. Gassler appealed.

At trial, the State presented evidence establishing the following facts. Dale Yungk was murdered early on the morning of April 14, 1990. His body was found on the side of a rural roadway in Todd County at around 7 a.m. Yungk was shot three times with a shotgun in the head and back and died from loss of blood.

The events leading to Yungk's death began in January 1990. On the night of January 14, 1990, police officers investigated a suspicious car outside a Roseville catering business, where it was later determined a burglary had been committed. Burglary tools, a sledgehammer, a large knife, and a .25 caliber semi-automatic pistol were found in the car, which was driven by Gassler with Yungk as the only passenger. Gassler was arrested at the time, but ultimately neither he nor Yungk were charged with the burglary.

At the time of this incident, Yungk and Dale Lessard were living at the residence of Gordon Beckman, and Gassler lived there sporadically. In late January 1990, Yungk admitted to Lessard that he and Gassler had burglarized a business in Roseville. Also in late January 1990, Gassler was seen in Beckman's garage sawing off a shotgun and applying surgical tape to the stock. According to Lessard, Gassler intended to kill Yungk with the shotgun because he believed Yungk was a “snitch” and because Yungk had not given him his share of the money from the burglary.

On the night of April 13, 1990, a friend of Yungk's attempted to contact him at Beckman's residence. The friend telephoned at around 9 p.m., and Yungk told him to call back. When the friend called back, he was told that Yungk had left the residence with Gassler and James Scott.³ The next morning, Yungk's body was discovered in Todd County. That same morning, Veronica Yarbough, a close friend of Gassler's, went to her mother's house and saw Gassler and Scott. Gassler told Yarbough that he and Scott had killed Yungk and left his body on the side of the road “to prove a point.” Gassler offered Yarbough a spent shotgun shell as a “souvenir,” but then changed his mind.

Ricky Foster testified that Scott and Gassler arrived at his home on April 14, and that Gassler had a sawed off shotgun that was wrapped in white surgical tape and smelled of gunpowder. Foster said that Gassler told him that he and Scott had committed some burglaries and that he had shot someone, although later Gassler claimed he was joking. Several days later, Scott and Gassler asked Foster's mother, Beverly Munoz, to keep a suitcase for them. She opened the suitcase and found a shotgun, ammunition, and other items. The next day Gassler said he wanted the shotgun back, but then refused to take the gun away. At the time, Gassler mentioned something about someone being murdered and that someone was trying to break into the house. Munoz ultimately turned the suitcase and its contents over to the St. Paul Police.

After obtaining the suitcase from the St. Paul Police, the Bureau of Criminal Apprehension (BCA), which was investigating Yungk's murder, determined that, in addition to the shotgun and ammunition, the contents included proceeds from burglaries. The BCA then asked Munoz to tape record several phone conversations with Gassler in connection with returning the shotgun to him. As a result of these conversations, Gassler was arrested by the St. Paul Police. When Gassler was interrogated by the BCA, he denied any involvement in Yungk's murder. However, he also indicated that he believed Yungk was a “snitch” and that he would tell the police nothing about Yungk's murder even if he knew who had done it.

In addition to presenting all of the evidence described above, the State also called two expert witnesses. The first expert testified that scratches on the shotgun shells indicated that they may have been fired from the shotgun recovered from Munoz, but the expert could not say so as to a scientific certainty. The second expert, FBI Special Agent John P. Riley, testified that he examined 10 pellets that were removed from Yungk's body and compared them against ammunition found in the suitcase recovered from Munoz. After noting that the same six elements were present in the pellets and the ammunition in the suitcase, Agent Riley testified that the pellets were likely to have been manufactured by Federal Cartridge on or about the same date and likely came from the same box of ammunition.

To understand Agent Riley's testimony, one must first understand CBLA. Bullet lead originates as a large “pot” of molten lead refined from recycled automotive batteries. William A. Tobin,⁴ Comparative Bullet Lead Analysis: A Case Study in Flawed Forensics, The Champion, July 2004, at 12, 13. The lead is then sent to a secondary refiner that uses the majority of the lead to make new batteries, but sends a small fraction (approximately five percent) of the recovered and refined lead to bullet manufacturers. Id. The lead is then cast into bullets and packaged in boxes stamped with packing codes (sometimes called “lot codes”) and shipped to...