State Of Minn. v. Andersen

• Decision Date: 30 June 2010
• Docket Number: No. A08-1521.,A08-1521.
• Citation: 784 N.W.2d 320
• Parties: STATE of Minnesota, Respondent,v.Kenneth Eugene ANDERSEN, Appellant.
• Court: Minnesota Supreme Court

784 N.W.2d 320

STATE of Minnesota, Respondent,v.Kenneth Eugene ANDERSEN, Appellant.

No. A08-1521.

Supreme Court of Minnesota.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. Alleged misrepresentations and omissions in the search-warrant application were not material to the finding of probable cause.

2. There was sufficient evidence to convict appellant of first-degree premeditated murder.

3. Appellant's constitutional right to counsel was not violated by the unannounced recording of appellant's phone calls to his attorney where the district court's finding that investigators did not listen to the phone calls was not clearly erroneous.

4. Appellant's pro se claims lack merit.

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

Theodora Gaitas, Assistant State Public Defender, St. Paul, MN, for appellant.

OPINION

ANDERSON, G. BARRY, Justice.

This appeal arises out of the murder of 34-year-old Chad Swedberg. A Becker County jury found appellant Kenneth Andersen guilty of first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2008), for the shooting death of Swedberg. Andersen makes several arguments on appeal: (1) the search-warrant application contained material misrepresentations and did not otherwise provide probable cause; (2) the evidence was insufficient for a conviction of first-degree premeditated murder; (3) the State should be required to show that evidence from trial did not derive from monitoring and recording of Andersen's phone conversations with his attorney. In a pro se supplemental brief, Andersen also argues that the district court committed plain error in its questioning of certain jurors about incidents outside the courtroom. We affirm.

Swedberg lived with his wife, Leslie Fain, in rural Becker County. A number of Fain's relatives also lived with Swedberg and Fain: her son, Jesse Fain; Jesse's wife and their three children; and Leslie Fain's sister and nephew. Ken Swedberg, Swedberg's older brother, lived nearby with his wife and their three children.

The morning of the murder, April 13, 2007, Swedberg planned to process maple syrup with the help of his friend Albert Baker and Jesse Fain. The plan was for Swedberg to arrive at the syruping camp earlier than Baker and Jesse Fain in order to cut wood to fuel the evaporator and have the camp ready by the time the others arrived later in the morning. Swedberg was delayed and left the house around 8 a.m.

Shortly after Swedberg's departure, Leslie Fain heard two loud gunshots from the approximate direction of the syruping camp. This concerned her because it was not hunting season and she thought there was no reason for gunshots in that area. Fain called Swedberg's cell phone after hearing the gunshots. Although she was not sure exactly what time she heard the shots, she testified that after hearing the shots she immediately began to look for her cell phone to call her husband. Her first call to Swedberg was at 8:13 a.m. There was no answer. She subsequently called him at 8:15, 8:27, 8:45, and 8:56 a.m.; he did not answer any of these calls. Fain was worried because she had heard gunshots and Swedberg was not answering his phone. She got ready to go to work and then tried calling him one more time.

When there was again no answer, Fain walked down the trail to the syruping camp and found Swedberg lying motionless on the ground. No blood or gunshot wounds were immediately visible. Fain called Swedberg's brother, Ken Swedberg, at 9:55 a.m. and then called 911 at 9:57 a.m. She initially called Ken Swedberg because she thought the emergency personnel would not be able to find the location of Swedberg's body without assistance.

White Earth Tribal Police Officers Scott Brehm and Nicholas Stromme arrived a minute or two after 10:00 a.m. Ken Swedberg met them at the residence and told them that his brother was dead and his body was about 1,000 yards down the trail. The officers used Ken's all-terrain vehicle to get to the homicide scene, as the path was muddy and difficult to navigate. The officers found Fain crying and screaming. She pointed to her husband's body near the cooker that he used to process his maple syrup. Officer Brehm, as he was checking the body for signs of life, did not notice any blood. Fain told the officers that she went looking for her husband after hearing two gunshots and repeatedly failing to reach him on his cell phone. Brehm and Stromme then examined under Swedberg's coat and shirt and noticed blood on Swedberg's right side. Two emergency medical technicians arrived at 10:11 a.m.

The crime scene yielded little physical evidence despite extensive investigation. Four trails led to and from the clearing: one to the east, one to the south, one to the northwest, and one to the north. On the northbound trail, a Becker County investigator that had arrived at the scene, Officer John Sieling, saw what he believed to be two tracks of footprints in the frost, one track going north and the other going south toward the murder scene.¹ Ken Swedberg and Captain Joseph McArthur, a Becker County deputy sheriff who had arrived at the Swedberg residence, drove around looking for tracks. They did not find anything significant, other than some evidence of foot traffic believed to be from Swedberg. They also walked across Fish Hook Lake, looking for tracks.

The medical examiner testified that Swedberg was shot twice-once in the back of the right shoulder and once in the left buttock. The examiner determined that the gunshot wounds caused Swedberg to bleed to death within a matter of minutes. The lack of any stippling or gunpowder around the wounds led the examiner to believe that Swedberg had not been shot at close range. A firearms examiner determined that the bullets removed from Swedberg's body came from a .30-caliber weapon. The examiner was “reasonably certain” that the bullets were Winchester Supreme Ballistic Silvertips, but, because of damage to the bullets, was not able to positively identify or determine the weight of the bullets.

Investigators spoke with appellant, Kenneth Andersen, a few days after Swedberg's death. Andersen was not a suspect at that point. Swedberg and Andersen had grown up together and were described by some as best friends. On August 17, 2006, while Swedberg and Andersen were constructing a pole building in Roseau County, there was a reported theft of an all-terrain vehicle (ATV) from the residence where Swedberg and Andersen were working. At some point, Andersen confessed to Swedberg and Andersen's step-nephew that Andersen had stolen the ATV. In mid-November 2006 the Becker County Sheriff's Department located the stolen ATV behind Swedberg's residence. Further investigation revealed that the stolen ATV was registered to Andersen's mother. Swedberg denied any knowledge of the ATV to police and called Andersen while an investigator was listening and then handed the phone to the investigator. Andersen was charged with the theft of the ATV and Swedberg was unhappy that the ATV was found near the Swedberg residence.

Swedberg decided that he did not want to continue working with Andersen; Swedberg and Fain agreed that Swedberg would look for a different job. Swedberg told Jesse Fain that Swedberg intended to stop working with Andersen. Approximately one week before Swedberg's death, Swedberg also decided not to participate with Andersen in a leeching business.

Andersen used his cell phone to call Swedberg at 7:46 a.m. on April 13, 2007, the day of the murder. He told police he called Swedberg looking for a ride to Fargo in order to apply for a loan, but Swedberg declined because Swedberg and Baker intended to make maple syrup that morning. Andersen used his cell phone to call Baker at 7:52 a.m. and asked Baker to stop by on his way to Swedberg's residence to look at a tank Andersen wanted to use to store leeches. Baker agreed but wanted to buy groceries first. Andersen claimed that Baker was supposed to be at his house by 8:30 a.m., but Baker testified that Andersen knew Baker needed to go to Waubun to get groceries first and that Andersen did not set any specific time to arrive at Andersen's home.

Andersen told police that he had a tax preparer's appointment at 9:00 or 9:30 that morning and an appointment with a banker at 11:00 a.m., and that he left for the appointments between 8:30 and 9:00 a.m. But, Andersen first called his cousin a little before 9:17 a.m. to ask for a ride to Fargo. Andersen's cousin agreed to drive Andersen to Fargo; at 9:34 a.m. Andersen again contacted his cousin, while his cousin was en route, and asked his cousin to meet him at Andersen's sister's house, which was on the way to Andersen's house. Andersen's cousin did so and he and Andersen left for Mahnomen to meet with Andersen's tax preparer.

Andersen arrived at his tax preparer's sometime between 9:45 and 10:00 a.m. Andersen's appointment was not at 9:00 or 9:30 a.m., as he claimed, but rather at 2:00 p.m. that day. It was common for Andersen to arrive very early or very late for appointments. After meeting with his tax preparer, Andersen went to Moorhead to attempt to obtain a loan. He did not have an appointment for that day as he told the police, but rather was supposed to meet with the branch manager of a financial institution on April 12, 2007. While Andersen was meeting with the branch manager, his cell phone rang and he answered it. After the phone conversation, he told the branch manager that his business partner had been shot and he had to leave. But when Andersen returned to his cousin, who was waiting in the vehicle, Andersen told him that Swedberg's brother, Ken Swedberg, had been shot. This was inconsistent with Andersen's statement to the branch manager because Ken Swedberg was not Andersen's business partner. Andersen told police that his niece told him that ...