McLeod County No. A03-1458.
1. Although the admission into evidence of testimony regarding the victim's state of mind was error, it constitutes harmless error.
2. The admission of false statements of a law enforcement agent during an interview with appellant, with no cross-examination or limiting instruction establishing the falsity of those statements, constitutes plain error.
3. The evidence is insufficient as a matter of law to support appellant's convictions.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Blatz, Chief Justice.
Concurring in part, dissenting in part, Gilbert, J., Anderson, Paul H., J., and Page, J.
From July 18 until July 20, 1999, the victim Randy Pool was held against his will and repeatedly beaten. On the evening of July 20 he was murdered. Although appellant Salem Mathew Bernhardt was incarcerated in connection with a misdemeanor probation violation at all times throughout the kidnapping, beating, and murder of Pool, appellant was charged with aiding and abetting the crimes because of suspicion that he ordered the crimes from jail. An indictment was filed on December 4, 2000, charging appellant with five counts in the death of Pool: (1) first-degree premeditated murder in violation of Minn. Stat. § 609.185, subd. 1(1) (2000) (Count I); (2) first-degree felony murder (intentional murder while committing a kidnapping) in violation of Minn. Stat. § 608.185(1)(3) (2000) (Count II); (3) second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1 (2000) (Count III); (4) kidnapping in violation of Minn. Stat. § 609.25, subd. 1(3) (2000) (Count IV); and (5) third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2000) (Count V). Following a change of venue, the jury convicted appellant on all five counts. He was sentenced to life imprisonment without the possibility of parole on Count II, intentional murder while committing a kidnapping.
The following events preceded and constituted the murder of Pool and were presented to the jury at trial. In May or June of 1999, appellant and his then-pregnant fiancée, Heather Ecklund,*fn1 moved into the upstairs of Pool's house at 560 Brown Street in Hutchinson, Minnesota. Appellant and Pool sold drugs, mainly methamphetamine, from this residence, and according to appellant, each had their own set of customers whom they dealt with individually.
At the beginning of July 1999, appellant and Ecklund were preparing to move out of the Pool residence. In the days immediately following July 4, appellant and Ecklund traveled to Omaha, Nebraska, to visit an acquaintance of appellant, Jason Caldwell. Appellant had met Caldwell at a graduation party one or two months prior to the trip, and Caldwell was interested in starting a drug business in Omaha similar to appellant's. Appellant made arrangements for another acquaintance, Shawn McCollum, who appellant had met through Caldwell at the same graduation party, to stay at the Pool residence and handle his drug business while he was out of town.*fn2
On approximately July 13, appellant and Caldwell left Nebraska and returned to Hutchinson so that appellant could introduce Caldwell to his drug supplier. Ecklund and Tanya Caldwell, Caldwell's wife, stayed in Nebraska. When appellant and Caldwell arrived in Minnesota, they stayed at the Pool residence; McCollum remained there as well.
The next day, July 14, appellant and Caldwell went to the home of Lance Mattson, another acquaintance of appellant, and attempted to purchase a handgun. Mattson did not sell appellant the weapon. When appellant and Caldwell left, Mattson telephoned the Hutchinson Police Department and reported that appellant and Caldwell had just been at his home in hopes of purchasing a handgun, and that they were staying at the Pool residence. At that time, both appellant and Caldwell had outstanding warrants for their arrests. Appellant's warrant was in connection with a misdemeanor probation violation for failure to comply with a disorderly conduct sentence, and Caldwell's warrant was in connection with a felony fifth-degree controlled substance probation violation.
Police officers were dispatched to Pool's residence to arrest Caldwell and appellant in connection with the outstanding warrants. When they arrived at Pool's house, they encountered Pool and asked him to bring Caldwell out of the house, which he did. Just prior to Caldwell's arrest, officers witnessed Caldwell handing Pool a roll of money. Caldwell also asked Pool to go into the house and retrieve a pair of Caldwell's black pants because Caldwell was only wearing shorts.
Upon arresting Caldwell, Officer Gregory Nadeau searched Caldwell and found a baggy containing a substance that was later identified as methamphetamine in the pocket of the shorts he had been wearing before retrieval of the black pants. Officer Nadeau seized the methamphetamine and transported Caldwell to jail. While Officer Nadeau was booking Caldwell, he asked Caldwell how much money he had given Pool, and Caldwell replied that it was approximately $2,200.
Officer Trevor Johnson remained on the scene after the arrest of Caldwell because he suspected that the money given to Pool should be seized, as it was most likely related to the sale of methamphetamine. After speaking with Sergeant Jeff Jones about the legality of seizing the money, Officer Johnson asked Pool to retrieve the money. Pool went into his house and came back with approximately $100, a significantly smaller amount of money than estimated by Caldwell. Upon questioning, Pool admitted that he kept some of the money so that he could "bail out" Caldwell. After further questioning by police, Pool seemed nervous, and finally admitted that appellant was in the residence as well.
Officer Johnson requested Pool's consent to search Pool's house. Upon obtaining Pool's consent, Officer Johnson found appellant in the back corner of the upstairs room near a closet area and arrested him. A subsequent search of the residence revealed a small amount of methamphetamine, other drug paraphernalia, and $2,598, which were seized.
On the night of the arrests, Pool did not spend the night at his home. Instead, he went to stay at Paula Colemer's residence, an acquaintance with whom he was not romantically involved and whose residence he had not stayed at previously. According to Colemer, Pool had told her that he did not want to stay at home that night because he was "scared for his life," and because he was afraid of McCollum and appellant. Pool also told Colemer that the next day he was going to change the locks on his home, change his telephone number, and have McCollum removed from his home.
The next day, July 15, Pool changed his phone number. According to the telephone company's service order, Pool changed it because he had an "ex-roommate that could charge calls to old [telephone number]."*fn3 The record also reflects that Pool purchased new door locks, but it is unclear whether or not they had been installed.
Ecklund and Tanya Caldwell traveled to Hutchinson from Nebraska on July 18 and immediately went to visit appellant and Caldwell in jail. Following the visit, they went to Pool's house. Ecklund and Tanya Caldwell began questioning both McCollum and Pool in the upstairs of the residence in an attempt to determine who had "narced" on appellant and Caldwell. Several individuals were present during the questioning, including Christopher Olson and Rick Ligenza. Their attention shifted fully to the questioning of Pool, which included questioning about missing money and drugs. Pool repeatedly denied "narcing" on appellant and Caldwell, and the arguing escalated to physical violence against Pool, with most of the hitting and kicking being done by Ecklund and Ligenza. At one point, Pool attempted to escape down the stairs, but McCollum "body-slammed" him, brought him back upstairs, and confined him by duct-taping his wrists, upper body, and ankles. Tanya Caldwell threatened Pool with a taser, which is a high-voltage stun gun.
After this incident on July 18 and until July 20, Pool was bound with duct tape and repeatedly beaten. Another acquaintance of appellant, Isaac Engstrom, testified that McCollum called him on July 19 and asked him to come to the Pool residence because he found out who had "snitched" on appellant and Caldwell. When Engstrom arrived, Ecklund, McCollum, Toby Johnson, and Pool were present. When Scott Bernhardt, appellant's brother, arrived, the group began to beat and question Pool again. Pool was punched, kicked, and beaten with a closet rod. After each questioning and beating, Pool was duct-taped to a chair and placed in a small cellar that could only be accessed through a trap door in a closet floor. Other witnesses-including Brian Amundsen, David Oliva, Jessica Fank, Tina Artmann, and Chad Moehring-also testified to being present at the Pool residence over the three-day period and seeing Pool taped-up, beaten, or placed beneath the floor in the cellar.
On the evening of July 20, Pool was forced into a duffel bag by McCollum, and the duffel bag was zipped up. Ecklund sprayed aerosol into the bag, and McCollum stood on Pool's neck until his breathing could no longer be heard. McCollum and Engstrom carried the duffel bag containing Pool's body to a car and loaded the bag into the trunk. Ecklund then drove McCollum and Engstrom to a train trestle over the Clearwater River. Engstrom tied a concrete block to the duffel bag and, with McCollum's assistance, threw the duffel bag over the edge of the train trestle into the river below.
A citizen discovered the duffel bag floating in the river on July 28, 1999. The body had duct tape around the hands and feet, and a ligature around the neck. Doctor Janis Amatuzio, a medical doctor and forensics pathologist, testified that Pool died approximately five to seven days prior to being found. She also testified that the cause of death was lack of oxygen, but not by drowning, because there was no water in Pool's lungs. The body was not identified until August 3.
In the weeks following the arrests, Ecklund went to visit appellant in jail several times.*fn4 McCollum also visited appellant twice and Caldwell once.*fn5 Appellant also voluntarily told Agents McDonald and Russell in a police interview that during at least one of McCollum's two visits, McCollum put a piece of paper up to the glass that had written messages on it such as "don't worry" and "things are gonna be taken care of." Appellant told police that he interpreted those messages to mean that the drug business was still functioning.
Numerous phone calls were also placed before and after the murder from appellant's and Caldwell's cell block, Cell Block E, to Pool's residence-both the old and changed number-and to the residence of another of appellant's friends, Isaac Engstrom. All of the calls to the Pool residence were either unanswered or refused, but several calls to Engstrom's residence were answered. The record does not reflect who was making what calls. Engstrom, however, testified that he talked to appellant on the phone "a few times" while appellant was in jail, including "right after" the arrest, because appellant was trying to contact Ecklund in Nebraska and did not know how to reach her. Engstrom also testified that he did not receive any "orders" from appellant during their phone conversations.
On August 3, a search warrant was executed to search the Hutchinson apartment that Ecklund had moved into after Pool's death. Officer Scott Schuette testified that three handwritten documents were found during the search. First, officers found what appears to be a forged "confession" by Pool, acknowledging responsibility for the drugs found during the arrest of Caldwell. Second, they found a mailed letter dated July 21, 1999, from appellant to Ecklund, stating:
I talked to [Caldwell] Tuesday night. He had some interesting words to say. In order for [Caldwell] to get out of his charges Randy needs to make a recorded statement to the County Attorney. Either [Pool] or someone else. It would be more reliable coming from him. If Randy doesn't give a statement I'm not going to guarantee his safety from other people. There will not be anything I can do to help him. So he pretty much does not have a choice in the matter.
The letter also instructs Ecklund to burn the letter when she's finished reading it. Finally, in a letter from appellant to Ecklund dated July 24, 1999, appellant tells Ecklund to thank McCollum, Engstrom, and Lawrence Artmann.*fn6 He states, "Ya know I really hate owing favors, but for the guys I guess I'll make an exception. Hee hee."
In statements to the police that were recorded and played for the jury at trial, appellant offered his interpretation of the three written documents. First, as to the forged confession, appellant stated that he didn't know anything about it. The writing on the forged confession was never analyzed, and no accusation was ever made that appellant wrote the confession. Second, appellant stated that he believed, because of what Caldwell had told him in jail, that Pool had planted the drugs on Caldwell by placing them in the pants retrieved by Pool when Caldwell was arrested. Therefore, appellant wrote the July 21 letter to Ecklund stating that Caldwell had told him "some interesting words" and that Pool should sign a written statement saying that the drugs were Pool's. Appellant stated that when he later found out the drugs were in the shorts Caldwell was wearing, and not the black plants retrieved by Pool, he thought Caldwell was lying about the fact ...