Andersen, Jr., v. State, Minn.S.Ct., 3/20/2013. A jury convicted Mr. Andersen of first degree premeditated murder of Chad Swedberg. Mr. Swedberg was apparently shot from some distance while at his maple syruping camp. The supreme court affirmed his conviction, about which you can read here. Mr. Andersen is now back on post conviction, complaining, among other things, that both his trial and appellate counsel did not provide effective assistance of counsel. The post conviction court summarily denied the petition and the supreme court, Justice Dietzen writing for a 5-2 majority, affirms the post conviction court. Here are the seven grounds for relief that Mr. Andersen presented:
(1)there was newly discovered evidence that was both material and exculpatory ; (2) recordings of phone calls he made while in jail were admitted at trial in violation of his constitutional right to counsel; (3) testimony by firearm and palm -print experts and an exhibit displaying several types of Winchester bullets were admitted at trial in violation of his Sixth Amendment right of confrontation ;(4) the State committed misconduct during closing argument; (5) the State withheld certain evidence until after trial; (6) his trial counsel was ineffective; and (7) his appellate counsel was ineffective.
The court rejected the newly discovered evidence claim, saying that it would not have made a difference to the outcome of the trial. The court then rejected claims 2, 4 and 5 as Knafla barred, throwing in a footnote suggesting that the court may not consider the exceptions to Knafla to exist anymore now that the legislature has codified the holding of Knafla. without including those exceptions.
Continuing its mischief, it tosses claim 3 by concluding that the forensic evidence was either not “testimonial” or its admission did not constitute reversible error. One of the items of evidence was an exhibit that the firearms expert used. He was testifying about bullets that were recovered from the victim, that they were characteristic of some of the bullets that a particular manufacturer uses. The exhibit in dispute was photo display of some of these bullets sent from the marketing department of this manufacturer. The court said that the exhibit was not prepared for litigation but was an ad, and thus was not “testimonial.” The other item of evidence was more ethereal. The fingerprint examiner, who said that a print that he examined belonged to Mr. Andersen, Jr., said that he’d sent images of the print to a second examiner and that if the second examiner disagreed with the first examiner no report may be issued. The logical inference was that the second examiner agreed with the first examiner’s conclusions. The court dodges the confrontation question with its standard practice of assuming that the logical inference was “testimonial” but that its admission was harmless beyond a reasonable doubt.
That gets to the effectiveness of counsel. Appellate counsel gets a complete pass because Mr. Andersen, Jr., never asked appellate counsel to do what he is now complaining about. Mr. Andersen, Jr., said that trial counsel was ineffective because he wanted to testify but his attorney had neither prepared a direct examination nor provided him with copies of discovery materials with which he could have made a rational decision to testify. The problem that the majority had with this claim is that Mr. Andersen, Jr., made a waiver of his right to testify during the trial and as far as the majority was concerned he would need now to present more than conclusory allegations to obtain a hearing. Not only that, Justice Dietzen cannot for the life of him figure out why counsel would need to prepare a direct examination of his client until he decides – usually at the tail end of trial – whether to testify.
And those discovery documents? The court makes the remarkable statement that former Rule 9.03, Subd. 4 precluded defense counsel from putting those documents “in defendant’s custody.” (The current rules more vaguely talk about discovery materials remaining “in the party’s custody.” Rule 9.03, Subd. 4 (2013). Here’s what the old rule said:
PURSUANT TO MINN. R. CRIM. P. 9.03, SUBD. 4, DISCOVERY MATERIALS SHALL REMAIN IN THE CUSTODY OF DEFENSE COUNSEL, shall not be placed in defendant’s custody, and shall be used by defense counsel only for the purpose of conducting that attorney’s side of the case.
Justices G. Barry Anderson and Page dissented. They said that the question whether trial counsel was ineffective regarding Mr. Andersen’s decision to testify required an evidentiary hearing to complete the record.
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