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.
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