Court Rejects Claims of Newly Discovered Evidence and Ineffective Assistance of Counsel in Bid For New Trial

Nissalke v. State, Minn.S.Ct., 3/18/2015.  Mr. Nissalke filed this post conviction action in which he claimed to have newly discovered evidence of juror misconduct.  The post conviction court rejected the claim without holding an evidentiary hearing.  Mr. Nissalke said that after his trial was complete he discovered a photograph of a deliberating juror talking with a member of the public.  The trial court and the parties, had already known about the conversation; indeed, the trial court conducted a Schwartz hearing on it after the verdict but before Mr. Nissalke filed his notice of appeal.  The trial court concluded that the juror had engaged in misconduct, but that the misconduct was not prejudicial.

Mr. Nissalke’s point about the photograph was that to him it showed that the juror wasn’t talking to just any member of the public; rather, the juror was talking to someone who had been attending the trial.  Justice Page, for the entire court, concluded that even if all this were true it did not add any relevant new evidence germane to the trial court’s finding that the juror misconduct had not resulted in prejudice.

Mr. Nissalke also claimed newly discovered evidence consisting of an interview of another juror during which the juror complained that objections by the lawyers had prevented the juror from “being able to put the pieces together.”  Mr. Nissalke said that the interview proved that the juror had been speculating on certain evidence that she thought was crucial, which is misconduct.  Justice Page rejected this assertion but then threw in Evidence Rule 606(b) which prohibits the admission of any evidence about the “effect of anything” on a “juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”  Apparently what that means is the juror’s interview would not have been admissible at a post conviction hearing so it was okay summarily to deny this claim.

Mr. Nissalke made several other claims, one of which was that his trial counsel failed to properly explain a plea offer.  This claim, however, was already part of the trial court record, including any factual support for it, and so it needed to have been raised on direct appeal.  The failure to have done so bars that claim under the Knaffla rule.