State v. Nissalke

• Decision Date: 13 July 2011
• Docket Number: No. A09–1829.,A09–1829.
• Citation: 801 N.W.2d 82
• Parties: STATE of Minnesota, Respondent,v.Jack Willis NISSALKE, Appellant.
• Court: Minnesota Supreme Court

801 N.W.2d 82

STATE of Minnesota, Respondent,
v.
Jack Willis NISSALKE, Appellant.

No. A09–1829.

Supreme Court of Minnesota.

July 13, 2011.

[801 N.W.2d 88]

Syllabus by the Court

1. The district court's entry into the jury room to deliver corrected verdict forms and the trial exhibits a few minutes after the sworn bailiffs escorted the jury from the courtroom to the jury room did not constitute error requiring automatic reversal because the judge's conduct did not invade the integrity of the jury's deliberative process or the independent role and function of the jury during its deliberations.

2. The district court's response to two juror-initiated generic procedural questions outside appellant's presence was harmless.

3. The district court did not abuse its discretion by excluding certain alternative perpetrator testimony because appellant failed to establish that the evidence he sought to offer had an inherent tendency to connect the alternative perpetrator to the commission of the charged crime.

4. The State did not commit prejudicial misconduct during its opening statement or closing argument.

5. The district court's erroneous failure to remove a biased potential juror for cause was harmless.

6. There was sufficient evidence to support appellant's conviction.

[801 N.W.2d 89]

7. The State's failure to preserve physical evidence did not violate appellant's due process rights because appellant did not demonstrate that the evidence was lost or destroyed in bad faith.

8. Appellant was not denied effective assistance of counsel.

Lori Swanson, Attorney General, St. Paul, MN; and Charles E. MacLean, Winona County Attorney, Thomas E. Gort, Assistant County Attorney, Winona, MN, for respondent.David W. Merchant, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, MN, for appellant.

OPINION GILDEA, Chief Justice.

A jury found appellant, Jack Willis Nissalke, guilty of premeditated murder in the first degree, in violation of Minn.Stat. § 609.185(a)(1) (2010), and other crimes in connection with the death of Ada Senenfelder. The district court convicted Nissalke of first-degree premeditated murder and sentenced Nissalke to life imprisonment. This direct appeal follows. We affirm.

On June 6, 1985, Ada Senenfelder was found murdered in her home in Winona, Minnesota. Senenfelder was cut and stabbed 33 times and bled to death from a stab wound to the heart. Senenfelder's murder went unsolved for decades. But in 2006, Spotlight on Crime, a non-profit organization that works in cooperation with law enforcement agencies on cold cases, offered a $50,000 reward and held a press conference highlighting Senenfelder's murder. Witnesses eventually came forward with information linking Nissalke to the murder.

A grand jury subsequently indicted Nissalke on one count of first-degree premeditated murder in violation of Minn.Stat. § 609.185(a)(1), one count of murder in the first degree while witness tampering in violation of Minn.Stat. § 609.185(a)(3) (2010), and two counts of aiding and abetting first-degree murder in violation of Minn.Stat. §§ 609.05 and 609.185(a)(1) (2010) (premeditation), and Minn.Stat. §§ 609.05 and 609.185(a)(3) (witness tampering). The case thereafter went to trial.

The State presented evidence at trial to support its theory that Nissalke and Linda Erickson murdered Senenfelder because Senenfelder told the police that Nissalke's friend, James Bolstad, had sexually assaulted someone. Erickson was James Bolstad's girlfriend. Nissalke “hung out” with Erickson, James Bolstad, and other Bolstad family members. As a result of Senenfelder's allegations, James Bolstad was taken into custody for violating his probation in the spring of 1985 and shortly before the murder.

The State connected Nissalke with the murder because he was part of Erickson's efforts to get Senenfelder to withdraw her allegations against James Bolstad. Erickson tried to make Senenfelder sign a document saying that Senenfelder was lying. Erickson told others that Senenfelder “will have to sign that or she's going to have to pay for it. That bitch will die.” During a jail phone call with James Bolstad, Erickson said that she was “pissed off” and that Senenfelder should sign a statement to say that James Bolstad did not commit the assault and to “make sure that she had it notarized.” Erickson said that, “she would kill her, she could kill [Senenfelder].”

Nissalke assisted Erickson according to the State. Specifically, Erickson and Nissalke went to Senenfelder's apartment to get her to drop the charges against James Bolstad so that he could be released from

[801 N.W.2d 90]

jail. They broke the lock on Senenfelder's front door to get inside because Senenfelder refused to open the door. Erickson and Nissalke told Senenfelder to drop the charges in an “angry” manner, and Senenfelder appeared “terrified.” Nissalke and Erickson spoke to Senenfelder frequently after they broke into her apartment in a continuing effort to get her to drop her allegations against James Bolstad.

Nissalke admitted to the police that about a week before the murder, Nissalke, Edward Bolstad, James Bolstad's brother, and others stole Senenfelder's bike and radio to get her to drop the allegations she made against James. Nissalke also threatened Senenfelder before the murder and yelled at Senenfelder to make sure she changed her statement.

Senenfelder eventually did recant her statement to James Bolstad's probation officer. Nissalke made a tape recording of Senenfelder's recantation. Erickson was “happy” after hearing the tape, so she decided to throw a party on June 5, 1985. Nissalke, Erickson, Edward Bolstad, and other individuals, including several of the State's witnesses, attended the party. Senenfelder did not.

At some point during the party, Erickson took a phone call in the bedroom. When Erickson came out, she told everyone that the tape-recorded recantation “didn't work” and that James “wasn't getting out of jail.” Erickson was “very upset” and “mad” when she delivered the news. Erickson told the partygoers that something had to be done about Senenfelder. Erickson said “she would pay somebody to kill the f–––ing bitch.” Nissalke asked Erickson “[w]hat she would pay to have her done in and if she would be willing to and somebody would get rid of her.” Nissalke also said in a “harsh tone” that “[t]he bitch could be killed easy” and “the bitch has to go[,] ... [s]he has to die.” Nissalke and Erickson then left the party, saying, “kill the bitch.”

A photo the State entered into evidence taken of Nissalke on the night of the party depicted Nissalke carrying a knife that Nissalke wore “all the time.” R.B. testified that on the night of Senenfelder's murder, Nissalke went to R.B.'s apartment, which was in the same building as Senenfelder's apartment, and asked R.B. for a flashlight. Nissalke told R.B. that he needed the flashlight “because he had lost a knife” and needed to look underneath the car for it. R.B. testified that when she saw Nissalke that night, he “had a white rag wrapped around his hand” that had a “[r]eddish and pinkish” stain on it. When R.B. asked Nissalke what happened to his hand, Nissalke said that he had cut it while cutting the head off of a turtle. R.B. testified that she saw the cut and that it appeared “fresh.”

The next morning, on June 6, 1985, R.B. heard about the murder and went over to Senenfelder's apartment. When R.B. arrived, she saw Nissalke walking “zigzaggy” near Senenfelder's apartment, “looking on the ground like he was looking for something.” Later, R.B. heard Erickson ask Nissalke, “Did you ever find the knife?” Nissalke responded, “No.”

R.B. also testified that the same morning, she saw Edward Bolstad and another individual take two bags and a blanket out of a car and put them in the dumpster. Edward Bolstad had a cut on his finger, and Edward Bolstad told R.B. that he had cut his finger slicing some turtle meat. Edward Bolstad also asked R.B. if she could wash some clothes for him, and R.B. agreed.

Nissalke and Erickson asked P.C. to come over to help them clean Erickson's apartment that same morning. Erickson instructed P.C. to “throw [away] all of the

[801 N.W.2d 91]

clothes” that were in black garbage bags. Erickson also paid P.C. about $400 to help Erickson and Nissalke clean the inside of Erickson's apartment with ammonia and bleach. P.C. testified that they “went through eight gallons and it still was not enough.” Nissalke also asked P.C. to look for a missing knife, which P.C. understood to mean the buck knife that Nissalke “always wore” on his side. Nissalke asked P.C. in an “anxious” manner “probably ... four times” whether she had found the knife.

Later that day, Erickson and Nissalke told the party attendees that Senenfelder had been killed and that everyone needed to get their “story straight.” Erickson instructed everyone to say that “nobody left the house, everybody stayed there all night,” even though that was not true. Nissalke told the attendees that “nobody had better say anybody left or else.”

J.B. told Nissalke during that meeting that she would not say no one left the party because “it would be a lie.” Nissalke told J.B. that if she told the truth, then Nissalke “would kill [her] like he did Ada.” Nissalke said that he “sliced [Ada's] throat and stabbed her in the heart” and that J.B. “would get the same thing if [she] didn't shut up.” Nissalke threatened, “I will get you like I did Ada, once through the heart.” ¹

R.B. was also at the meeting, and she testified that Nissalke said: “ ‘Yeah, she died slow.’ ‘She didn't die quickly.’ ‘I stabbed her in the heart.’ ‘I cut her throat,’ ” and then Nissalke made a “motion like [he was] cutting across the throat.”

The State's theory was that Erickson paid Nissalke to kill Senenfelder. According to J.B., Nissalke confessed to J.B. that “[Erickson] paid him” for “doing Ada.” J.B. also testified that before the murder, Nissalke “[d]idn't...