1. The evidence is sufficient to support the jury verdict of guilty of first-degree murder.
2. The post-conviction court did not err in determining that appellant's ineffective assistance of counsel claim fails because appellant failed to satisfy both the performance and prejudice prongs of Washington v. Strickland, 466 U.S. 668 (1984).
3. The post-conviction court did not abuse its discretion in concluding that appellant is not entitled to a new trial on the grounds of newly discovered evidence. Affirmed.
Considered and decided by the court enábanc without oral argument.
The opinion of the court was delivered by: Anderson, Russell A., Justice.
Took no part, Gilbert, J.
This case returns to us from our remand for post-conviction proceedings following appellant Thomas Rhodes' appeal from a judgment of conviction for first-degree murder. Rhodes argues that he is entitled to a reversal of his conviction because his conviction rests on insufficient evidence, or alternatively, that he is entitled to a new trial on the basis of ineffective assistance of trial counsel or newly discovered evidence. We affirm Rhodes' conviction for first-degree murder and the post-conviction court's denial of a new trial.
We begin by restating the factual portion of Rhodes' first appeal, State v. Rhodes, 627 N.W.2d 74, 77-84 (Minn. 2001), and by supplementing those facts as necessary. Because the evidence in this case is wholly circumstantial, we set forth the facts in some detail.
On the night of August 2, 1996, Rhodes and his family were vacationing on the southwest side of Green Lake, near Spicer, Minnesota. About 11:30 p.m., Rhodes and his wife, Jane, left their two sons in their room at the Northern Inn and drove their 1995 Baja Blast, a 14-foot water-jet-type-boat, onto the lake. At some point, as Rhodes was driving, Jane went over the edge of the boat. She was not wearing a life jacket and was not a good swimmer.
Rhodes claimed that he looked for his wife from the boat and in the water and called her name, and then, not finding her, he drove south to shore. He tied the boat to the dock outside of Little Melvin's, a bar located in a building close to the beach, and went to the Northern Inn, behind Little Melvin's and across the street, for help. At the inn, a desk clerk called 911. The desk clerk described Rhodes as "emotionally distressed," incoherent, and "wet from head to toe." He noted Rhodes was wearing a white T-shirt. When Kandiyohi County Deputy Randall Kveene arrived, Rhodes told him that he had been about 1,000 yards north of Little Melvin's dock when Jane went overboard, but Rhodes directed Kveene to search in an area only 400-500 yards northeast of Little Melvin's. When Kveene asked if the location was correct, Rhodes responded that the search should move a little farther north. About 20 to 25 minutes later, when others joined the search, Rhodes indicated to another deputy that the area they were searching, about 100 yards from the area first searched, was the right spot, and the deputy marked the spot.
The search resumed the next morning, August 3, and Rhodes again told one of the law enforcement officers that the search party should move north. The search moved approximately 2,000-3,000 feet north. At about 1 p.m. that day, a fisherman found Jane's body about nine-tenths of a mile northwest of the last-seen point Rhodes had identified.
Rhodes explained what happened on the night of August 2 in two statements, made to law enforcement officers and insurance personnel, which were admitted into evidence at trial. In a police interview conducted on August 15, 1996, Rhodes narrated that he and his wife were "necking" in their boat which was about a thousand yards out from Little Melvin's when a boat without lights on passed between their boat and theshore. Rhodes moved the boat farther north. Then they decided "to go for a spin," and Rhodes accelerated, heading north, to about 40 miles per hour. He looked to the right to navigate by the light of the moon. He saw Jane start to get up and move forward as if she was looking for something. He then looked back to the right. When he next glanced to the left, he saw "her leg or her tennis shoes go over." He did not hear Jane make any noise. He looked for Jane in the water after going back to where he thought she had fallen in, but he could not see well and the waves were getting bigger. He zigzagged east and west from the north toward the south three times looking for Jane. There were no other boats on the lake. He drove to Little Melvin's, tied the boat up to the dock, grabbed a sweatshirt from the boat, noticed that it looked as though Little Melvin's was shutting down, and crossed the street to the Northern Inn.
In an October 10, 1996 interview with an insurance claim representative, Rhodes related that he and Jane had gone out in the boat to be intimate. They drove on the lake in a northeasterly direction from Little Melvin's and sat for a while. When a boat that did not have lights on approached, Rhodes drove farther north. As they were sitting watching the stars, they heard the boat again and decided to go for a spin. Rhodes took off in a northerly direction and was looking to the right when Jane said something. Rhodes also sensed she was reaching for something. He looked back and saw her in a standing position, taking a step back as if to sit down. Rhodes looked to the right again, and when he glanced back again, he caught a glimpse of her shoes going over the side of the boat and heard what sounded like a muffled scream. Rhodes panicked and missed his first grab at the throttle, then grabbed it and slowed down, turning left and accelerating to return to where he thought Jane had fallen out. After looking for her in the water and calling her name from the boat, Rhodes zigzagged east and west back north and then south as he made his way toward the shore near the Northern Inn.
At trial, the state's theory of the case was that Rhodes accelerated intentionally to cause Jane to fall out of the boat or pushed her out of the boat, zigzagged the area to create wake and possibly hit her, and then misdirected the authorities so that they would not discover her body. The state offered the testimony of Patrol Captain William Chandler of the Hennepin County Sheriff's Office to support the theory that Rhodes intentionally misdirected the authorities. Chandler found it improbable that a body could sink in Green Lake, resurface, and then float nine-tenths of a mile in 13 hours, given the lake temperature and the wind speed. He also thought it unlikely that the body could have remained afloat without a life jacket or, even it if did, that trained observers would overlook a body floating on the water. Therefore, Chandler identified a point near the location where several shore witnesses watched a boat being driven erratically as the likely place Jane went overboard.
The state introduced expert medical testimony to support the state's theory that Jane's death was not accidental. Dr. Lyle Munneke, a Kandiyohi County medical examiner, noted bruising on Jane Rhodes' forehead and nose, on both sides of her face, and from her hairline to the top of her head and observed a cut on the right side of her mouth. Dr. Michael McGee, the forensic pathologist who performed the autopsy, found hemorrhaging beneath the surface bruises. Dr. McGee believed that the hemorrhaging occurred while Jane was alive and used a life-sized clay model of Jane's head to demonstrate that "a single blow" probably did not cause the damage to both sides of Jane's face. Dr. McGee opined that multiple strikes from a boat hull could have caused the injuries.
Dr. McGee also testified about Jane's other injuries. He stated that the laceration on the side of her mouth was premortem and could have occurred when a boat hit her mouth, stretching it to the point of tearing. He explained that the abrasions on the backs of her hands and forehead were likely post-mortem and caused by her body sinking and scraping the bottom of the lake while floating face down. Dr. McGee noted paired injuries to Jane's upper forearms that he classified as defensive wounds and soft tissue hemorrhage inside the neck region that did not have corresponding external marks. When asked about the neck trauma, Dr. McGee testified:
Could that have been done by the hull of a boat?
Could that have been done with a hand, in particular a hand used thus in the V position?
I believe that is possible, yes.
The state also sought to prove motive. The state introduced evidence of an alleged extramarital affair to show that the Rhodes' marriage was unstable. A woman who testified at trial admitted to having a six-month non-sexual relationship with Rhodes about one year before Jane's death, but she claimed that Rhodes ended the relationship in mid-1995 because he wanted to work on his marriage. An attorney testified that he met with the Rhodes in May 1995 about a possible divorce, that he calculated the amount of child support each spouse would have to pay the other if only one had custody, that Rhodes would have to pay $650 or $742 in child support out of his $2,400 net monthly income, and that after this meeting, the Rhodes never again met with him about a divorce.
A certified public accountant and director of investigations in the Minnesota Attorney General's Office testified regarding the Rhodes' recently increased debt accumulation and their newly acquired life insurance policies covering Jane. The accountant noted that the Rhodes' debt load nearly doubled between November 1995 and July 1996, largely because the Rhodes bought a new house and upgraded their car and boat. He further testified that the Rhodes had $233,135 in life insurance payable in the event of Jane's accidental death. Of that total, approximately $102,000, which consisted of credit life insurance on the Rhodes' new mortgage, boat, and automobile, were purchased in the four months preceding Jane's death. Additionally, the accountant testified that $50,000 in additional term life insurance on Jane was applied for on July 26, 1996 but was not issued because the insurance company received the application after her death. From the motive evidence, the state theorized that Rhodes planned his wife's death because he could not afford the divorce he desired and because he would obtain substantial insurance benefits if Jane died.
Seeking to augment the physical, medical, and motive evidence, the state offered other circumstantial evidence to highlight inconsistencies in Rhodes' accounts and to undermine his credibility. The state called Pastor Perry Wieland, a member of the local volunteer ambulance service who had been participating in the rescue efforts. Pastor Wieland testified that he had spoken with Rhodes after the unsuccessful search had been called off for the night, and that Rhodes told Wieland that Rhodes had been driving slowly when Jane went over the side of the boat. Deputy Anthony Cruze, a detective for the Kandiyohi County Sheriff's Department, also talked with Rhodes after the search was halted for the night. He testified that Rhodes said he heard Jane say something like, "Oh, shit," and that when he looked back, he saw her tennis shoes go over the back of the boat. The bouncer at Little Melvin's saw Rhodes dock his boat, park it facing into the lake, and walk past Little Melvin's toward the Northern Inn. The bouncer testified that Rhodes did not look distraught. He further testified that light was coming from the bar, that a band was playing, and that there were no other boats on the lake at the time.
Deputy Kveene testified that there were very small waves and a "very large moon" the night of August 2. He related that Rhodes had told Kveene that he thought Jane had been picking up an earring when she went overboard. (A clip-on earring was later found in the boat.) Kveene testified that Rhodes said he immediately turned around and went back to the area where she had fallen out. Rhodes indicated to Kveene that he saw a boat with no lights at the time he was searching for Jane and that he flashed his lights at the boat but did not call out for help.
Seven different shore witnesses testified that they had watched a person driving his boat in fast, erratic, figure-eight patterns at about the time Jane went overboard. None of the shore witnesses could identify the parties in the boat, but five of the witnesses testified that they heard voices from the boat that sounded as though people were having fun. One witness, however, testified hearing a woman's voice say "Stop. No. It hurts." more than once. Two testified to hearing a woman's scream and then laughter. One of these two witnesses saw a boat with two people in it and then later saw just a man wearing a light-colored shirt. None of the witnesses recalled seeing more than one boat on the lake at the time in question. Two witnesses identified the boat as a light-colored two-tone boat with an inboard motor; this description matches the description of Rhodes' boat. Those two witnesses later saw a male driver circling with the same boat, and one commented to the other that it looked like he was looking for something. After watching for a while, those two witnesses observed the boat head slowly south down the shoreline. The body recovery location was four-tenths of a mile or less from the shore witnesses.
The defense theory of the case was that Jane's death was accidental. Michael Colich represented Rhodes at trial. Claudia Engeland assisted Colich on Rhodes' case and was responsible for medical testimony at trial. In preparation for trial, the defense team hired a private investigator to go to Spicer and Green Lake and look for any relevant information, including favorable and adverse witnesses. Colich and Engeland also visited the Northern Inn and the surrounding area. They spoke with the proprietors of the Northern Inn. The defense team did not locate or interview shore witnesses Brian Hunter or Nicole Bauman (now Smith) in preparation for trial.
The defense strategized about how to neutralize the state's evidence. In addition to presenting evidence to advance the defense's theory of the case, the defense planned to discredit and minimize the state's expert medical witnesses. Therefore, their trial strategy was to not linger on Dr. McGee's testimony but rather to object and cross-examine selectively. To that end, Colich and Engeland decided not to contest Dr. McGee's testimony and not to vigorously cross-examine him as long as he did not testify "to a medical certainty."*fn1 Thus, neither Colich nor Engeland objected to questions posed to McGee on direct examination even though they recognized that certain questions, including the "V" question, were objectionable.*fn2
Rhodes did not testify on his own behalf. However, the defense called two expert witnesses to testify. Dale Morry, a boating accident reconstructionist and former state boating administrator, testified in response to Chandler's testimony for the state that a body floating just beneath the water's surface could easily elude ...