of Appellate Courts, Becker County
Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove
Heights, Minnesota, for appellant.
Swanson, Attorney General, Matthew Frank, Assistant Attorney
General, Saint Paul, Minnesota; and Tammy L. Merkins, Becker
County Attorney, Detroit Lakes, Minnesota, for respondent.
prophylactic reversal of the postconviction court's
denial of claims that were based on two affidavits is
required because the court assessed the affiants'
credibility without first holding an evidentiary hearing.
postconviction court did not abuse its discretion by
summarily denying appellant's remaining claims because,
even when considered to be true and viewed in a light most
favorable to appellant, the facts alleged in support of those
claims do not satisfy the newly-discovered-evidence or
interests-of-justice exceptions to the postconviction
statute's 2-year statute of limitations.
in part, reversed in part, and remanded.
and decided by the court without oral argument.
a jury found appellant Kenneth Eugene Andersen guilty of
first-degree premeditated murder, Minn. Stat. §
609.185(a)(1) (2016), for the April 2007 shooting death of
Chad Swedberg in Becker County. We affirmed his conviction on
direct appeal, State v. Andersen (Andersen
I), 784 N.W.2d 320');">784 N.W.2d 320, 323 (Minn. 2010), and affirmed the
postconviction court's summary denial of his first
postconviction petition, Andersen v. State
(Andersen II), 830 N.W.2d 1, 14 (Minn. 2013).
before us is Andersen's second petition for
postconviction relief, claiming newly discovered evidence,
ineffective assistance of trial counsel, and a Brady
violation. The postconviction court denied the petition
without holding an evidentiary hearing. We affirm in part,
reverse in part, and remand for further proceedings.
Swedberg lived in Becker County with his wife, Leslie Fain,
her son, Jesse Fain, and other members of the Fain family. On
the morning of April 13, 2007, Swedberg left his home to work
at a nearby maple syruping camp. Shortly thereafter, two
shots were fired, and Swedberg's body was found at the
camp. Almost no evidence was found at the scene, but
suspicion soon fell upon Andersen after he made several
misrepresentations to investigators. Andersen was indicted by
a grand jury on one count of murder in the first degree, and
at trial the State presented the following
and Andersen were good friends, but their friendship had
soured in the months before Swedberg's death. In August
2006, an ATV was reported stolen from a residence where
Swedberg and Andersen were performing construction work.
Andersen later confessed to Swedberg that he had stolen the
ATV, and a few months later the ATV was found on
Swedberg's property. Andersen was charged with theft of
the ATV, and Swedberg was not happy that it was found near
his home. Also, about one week before Swedberg was
killed, he decided not to participate with Andersen in a
leeching business. Leslie Fain testified that Swedberg
planned to start a greenhouse business instead.
a.m. on April 13, 2007, Andersen called Swedberg and asked
him for a ride to Fargo so he could apply for a loan.
Swedberg told Andersen that he could not give him a ride that
morning because he was making maple syrup with Al Baker. Six
minutes later, at 7:52 a.m., Andersen called Baker and asked
him to stop by Andersen's house on the way to the camp.
Baker agreed to stop by the house, but told Andersen that he
first needed to buy groceries.
to Leslie Fain, she heard two gun shots at approximately 8:13
a.m. Concerned for Swedberg's well-being, she called his
cell phone several times. After getting no answer, she went
to investigate the campsite. There she found Swedberg's
body. Swedberg was shot twice-once in the right shoulder and
once in the left buttock-and had bled to death. The bullets
were not fired from close range. A firearms examiner
determined that the bullets came from a .30-caliber weapon.
first spoke with Andersen a few days after Swedberg's
death. Andersen was not a suspect, but during that
conversation he made several statements that aroused
suspicions. First, Andersen told investigators that he had a
meeting with his tax preparer at 9:00 or 9:30 a.m. on the
morning of the murder. He did meet with his tax preparer in
Mahnomen around 10:00 a.m., but the meeting had been
scheduled for 2:00 p.m. Second, Andersen told investigators
that he had an appointment with a banker at 11:00 a.m.
Although he met with a banker in Moorhead that day, he did
not have a scheduled appointment. Third, Andersen told
investigators that he left for these appointments between
8:30 and 9:00 a.m. But he did not call his relative for a
ride until about 9:17 a.m., and he did not leave for Fargo
until at least 9:34 a.m. In short, the timeline could not
account for Andersen's whereabouts at the time of the
secured a search warrant for Andersen's home, which was
located 1.3 miles from where the shooting occurred. Andersen
told investigators that he owned "a 410 . . . a pump
action shotgun, a 12 gauge shotgun, a 222 and a muzzle
loader, " but did not volunteer that he also owned a
.30-caliber rifle. At the time, the public was not aware that
a .30-caliber rifle had fired the fatal shots.
the investigators arrived, Andersen initially consented to
the search. But when police began to search the outbuildings
on his property, Andersen became angry. The police told him
that a search warrant had been issued. The search of one of
the outbuildings-the barn-uncovered a Tikka T3 Lite .300
Winchester short magnum rifle.The rifle had been concealed under
insulation and Andersen's palm print was on it.
Investigators also found bullets in the home. A firearms
examiner concluded that the rifle could have fired the
bullets removed from Swedberg's body, and that the
bullets found in Andersen's home had characteristics
similar to the bullets removed from Swedberg's body. The
serial number on the rifle matched the serial number of a gun
that Swedberg had purchased the prior year.
jury found Andersen guilty of first-degree premeditated
murder, and he was sentenced to life in prison without the
possibility of release. We affirmed Andersen's conviction
on direct appeal, rejecting his arguments regarding search
warrant deficiencies, attorney-client phone calls being
monitored, jurors being improperly questioned, and the
sufficiency of the evidence. Andersen I, 784 N.W.2d
at 323, 329, 332-36.
brought his first postconviction petition in 2010, raising
six claims: (1) newly discovered evidence existed in an
affidavit from his mother, (2) recordings of phone calls
Andersen made while in jail were admitted in violation of his
right to counsel, (3) the prosecutor committed misconduct by
arguing that Andersen was the only person who possessed a
"secret" .30-caliber gun, (4) the State withheld
evidence, (5) evidence was introduced in violation of the
Confrontation Clause, and (6) ineffective assistance of trial
and appellate counsel, in part because trial counsel did not
properly investigate the case. Andersen II, 830
N.W.2d at 6-8, 13. The petition was summarily denied by the
postconviction court, and we affirmed. Id. at 5.
September 2016, Andersen filed his second postconviction
petition, now before us, alleging the existence of 16 pieces
of newly discovered evidence found in 15 underlying
documents, most of which were obtained by a private
investigator. According to Andersen, his second petition was
proper because it satisfied the newly-discovered-evidence and
interests-of-justice exceptions to the postconviction
statute's 2-year statute of limitations. In the
alternative, he asked the postconviction court to use its
supervisory powers to order a new trial in the interests of
justice. Andersen argued that the newly discovered evidence
shows the following:
1. An interview with Al Baker and an affidavit from Geraldine
Bellanger showing that: (1) Baker was at the syruping camp as
early as 8:00 a.m. and found a bullet and cigarette butts
left by the shooter, and (2) Baker sent his .308-caliber
rifle to his brother in Illinois, not to his niece in Alaska.
Bellanger's statement also recounts a conversation that
she had with Lisa Swedberg, wherein Lisa told Bellanger that
Baker told Lisa that "voices in his head told him to
2. Almost 10 minutes of an interview with Baker allegedly
showing that Baker received two phone calls from someone
claiming to have killed Swedberg.
3. A witness contact form showing that Andersen did not leave
his tax preparer's office with a copy of his taxes, but
instead only left with a reference copy.
4. An interview with Wanda Nelson showing that Andersen
called his tax preparer's office to request that she fax
his tax returns to his bank, and that he did not physically
return to the office to get a copy of his taxes.
5. An interview with Douglas Haverkamp showing that Haverkamp
was unwilling to speak with Andersen's investigator
before trial because he was afraid of Andersen.
6. An interview with Bradley Riggle also showing that
Haverkamp and Riggle intended to drive to Ulen to have