Any Error In Excluding Out of Court Statements Was Harmless Beyond a Reasonable Doubt; Court Upholds Aiding & Abetting First Degree Premeditated Murder Conviction.

State v. Hawes, Minn.S.Ct., 8/24/2011.  A jury convicted Ms. Hawes of aiding and abetting the first degree premeditated murder of her brother Edwin Hawes.  The state alleged that Ms. Hawes’ helped her other brother, Andrew, commit the murder.  Ms. Hawes, on the other hand, claimed that Andrew did the murder without her help.

Ms. Hawes and Andrew believed that Edwin had stolen money from the business that the brothers operated.  These suspicions festered for well over a year.  Eventually authorities notified Ms. Hawes that the theft accusations against Edwin were unfounded.  Ms. Hawes continued to track Edwin’s every movement, the explanation for which was the untrue claim that authorities were about to arrest Edwin for theft.  Edwin got wind of this and got a retraining order against Ms. Hawes.

Not too much after that Anoka county deputies came upon Ms. Hawes at a golf course at two or so in the morning, claiming to be visiting a friend who, it turned out, didn’t live near the golf course.  Edwin, however, did live nearby and so the deputies, who knew of the family feud, decided to see how he was doing.  On the way, the deputies came upon Andrew “staggering in the middle of the street.”  Edwin, the deputies learned, wasn’t home.

Where he was, was a fire pit on land that Andrew owned in southern Minnesota.  When those deputies came upon the fire pit, Ms. Hawes was tending the fire.  The investigation into Edwin’s death produced lots of forensic and other evidence which, when presented to the jury, resulted in her conviction  She argued that this evidence was not sufficient to support the conviction but the supreme court rejected his argument.

Ms. Hawes also complained that the trial court had been wrong to prevent her from testifying to out of court statements that Andrew made to her, and that this error violated her constitutional right to present a complete defense.  In her written offer of proof, Ms. Hawes indicated that she would testify that Andrew made the following statements to her between October 29 and October 31, 2008:

(1) Andrew confessed to Hawes the planning and murder of Edwin; (2) Andrew told Hawes that he picked Kristina Dorniden up at her parents’ house around 5:30 p.m. driving a grey Volkswagen Beetle and that Dorniden was to drop him off hear Edwin’s residence in Andover; (3) Andrew told Hawes that he waited in the woods near Edwin’s property for Edwin to arrive and there were weapons that he had previously placed around the property; (4) Andrew stated that Edwin arrived home, Andrew confronted him, and Andrew eventually shot Edwin with a crossbow that he pulled out from under a pile of leaves; (5) after shooting Edwin, Andrew continued to struggle with him, hitting him with a hammer and eventually driving over him with the Passat and covering his body with a pile of leaves; (6) Andrew drove the Passat to the Hawes Lawn Service building in north Minneapolis and called Hawes’ husband, Daniel Romig; (7) Romig helped Andrew clean up; (8) Andrew drove the Passat to a church parking lot in Golden Valley; (9) Andrew and Romig drove to a Rainbow Foods in south Minneapolis in an attempt to create an alibi by being shown on surveillance camera footage; (10) Andrew tricked Hawes into going to Edwin’s residence in the early morning hours of October 30; and (11) Romig helped Andrew dispose of the body and clean up the murder scene.

The supreme court ducks the question all together by deciding that even if this was a mistake it was a harmless one.  It seems that during her trial testimony she was allowed to refer to statements that Andrew made to her; she just couldn’t say the words that comprised those statements.  The jury had to guess the rest.  This, the supreme court, concludes, put the information that had been excluded out there for the jury to consider.

After the conviction, Andrew apparently gave Ms. Hawes’ counsel an affidavit that he would now waive his Fifth Amendment privilege and testify that his sister had nothing to do with Edwin’s murder.  Relying on Whittaker v. State, 753 N.W.2d 668 (Minn. 2008), see here, the supreme court declines to grant a new trial.  Because trial counsel knew of Andrew’s possible testimony she can’t satisfy the newly available evidence requirement that counsel not have known of it.  Not only that, the court said that this evidence was available to Ms. Hawes at the time of her trial despite Andrew’s Fifth Amendment assertion.  The court also declined to address this Catch-22 by modifying the requirement to substitute knowledge for availability.

Failure to Object on Confrontation Grounds to Relationship/Spreigl Evidence Not Ineffective Assistance of Counsel as any Confrontation Error was Harmless Beyond a Reasonable Doubt

Hawes v. Minnesota, Minn.S.Ct., 2/27/13.  A jury convicted Mr. Andrew Hawes of first degree premeditated murder of his brother, Edwin, and of obstructing an investigation.  The court sentenced him to life without possibility of release.  He claimed that he received ineffective assistance of counsel, and that the trial court was wrong to admit out of court statements from his sister and girlfriend to the police.

Recall that the state also charged Mr. Hawes’s sister, Elizabeth Hawes, with aiding and abetting this crime.  The Supreme Court upheld her conviction and sentence back in 2011.  Read here.  Here’s the gist of what happened:

Ms. Hawes and Andrew believed that Edwin had stolen money from the business that the brothers operated.  These suspicions festered for well over a year.  Eventually authorities notified Ms. Hawes that the theft accusations against Edwin were unfounded.  Ms. Hawes continued to track Edwin’s every movement, the explanation for which was the untrue claim that authorities were about to arrest Edwin for theft.  Edwin got wind of this and got a retraining order against Ms. Hawes.

Not too much after that Anoka county deputies came upon Ms. Hawes at a golf course at two or so in the morning, claiming to be visiting a friend who, it turned out, didn’t live near the golf course.  Edwin, however, did live nearby and so the deputies, who knew of the family feud, decided to see how he was doing.  On the way, the deputies came upon Andrew “staggering in the middle of the street.”  Edwin, the deputies learned, wasn’t home.

Where he was, was a fire pit on land that Andrew owned in southern Minnesota.  When those deputies came upon the fire pit, Ms. Hawes was tending the fire.  The investigation into Edwin’s death produced lots of forensic and other evidence which, when presented to the jury, resulted in her conviction  She argued that this evidence was not sufficient to support the conviction but the supreme court rejected his argument.

During Mr. Hawes’s trial the state introduced evidence of a time when Mr. Hawes rammed Edwin’s Passat, especially the part where Edwin told the investigating officer that it was his brother who rammed him.  Defense counsel objected, mostly on relationship and  Spreigl grounds, but not on either confrontation or hearsay grounds.  The trial court admitted this evidence.  Following a post conviction evidentiary hearing, the post conviction court said that there was no reasonable probability that the outcome of the trial could have been different had defense counsel objected on these additional grounds.  Justice Page, writing for the court (including Justice Wright), agreed.  Mr. Hawes’s argument was evidence of this event was the state’s strongest proof of premeditation.  Both the post conviction court and Justice Page disagreed with this assessment and support that disagreement with a summary of what the post conviction court considered the “planning/premeditation” evidence that the state produced:

The jury heard evidence that [Hawes] prepared deadly weapons to bring with when he went to confront Edwin. A black spray painted bat was recovered from the crime scene. The crossbow and arrows that were later recovered had been spray painted black. Latex gloves with black spray pain t were  found at [Hawes ’] home. These gloves had [Hawes’] DNA on them.

[O]ther weapons were found concealed around the property where Edwin was killed. A number of small maul-type hammers were found on the property. The owner of the property testified that the se hammers were not  his. A similar 3 or 4 pound hammer was found in the trunk of the Passat covered in Edwin’s blood. The jury heard testimony and saw evidence that [Hawes] practiced using the [crossbow] at his place of business.

. . . .

[Hawes] also  bought and distributed disposable cell-phones to be used during the repossession” of the Passat.  The jury was free to infer from this evidence that [Hawes] was engaged in more than a simple attempt to regain possession of the car.

Justice Page thought there was even more than that, but you get the point.

Turning to the Sixth Amendment claim, Justice Page dodged it all together.  The Court assumed that if error there was, it was harmless beyond a reasonable doubt.