TO: Clerk of Appellate Courts, 305 Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Blvd., Saint Paul, MN 55155.
Washington County Attorney, 15015 62nd Street N., Stillwater, MN 55082
Minnesota State Attorney General, 445 Minnesota Street, Suite 1100, Saint Paul, MN 5s101
The undersigned comes before this Court, in a timely manner, to request a rehearing to be granted to Appellant in 422-1378, per Minn. R. Crim. App. Proc. 140, and to notify this Court of Clarification to Facts that were misrepresented in the Opinion published for this case. Said Petition to be granted for the following reasons:
1) Justice McKeig used an incorrect standard in determining what were valid inferences based on all of the evidence and testimony that was presented during the State's case in chief, which resulted in an incorrect legal finding as to the District Court abused its discretion in denying Appellant's Motion for a judgement of acquittal during trial, and the resulting claim of Ineffective Assistance of Appellate counsel for not advancing the claim in this Court.
2) Justice McKeig separately analyzed the Appellant's claims of Appellate counsel being ineffective for not submitting evidence in a timely manner during postconviction and Appellate counsel being ineffective for not bringing up additional instances of Ineffective Trial counsel. Since Appellate counsel's stated strategy was to prove ineffective assistance of trial counsel, these should all be analyzed cumulatively as part of the same issue. Justice McKeig also used incorrect legal reasoning in her analysis of this issue.
3) Justice McKeig improperly evaluated the evidence in her opinion as to whether or not the evidence meets the Brady threshold.
4) Justice McKeig incorrectly uses the plain error standard to evaluate the false testimony given by the State's key witnesses.
5) Justice McKeig misconstrues the Petitioner's claim regarding the Judge's abuse of discretion allowing Spreigl evidence.
6) Justice McKeig skips the constitution claim of the state violating the confrontation clause.
7) Justice McKeig incorrectly evaluates the additional instances of Prosecutorial Misconduct.
ISSUE 1: JUSTICE MCKEIG USED AN INCORRECT STANDARD lN DETERMINING WHAT
WERE VALID INFERENCES BASED ON ALL OF THE EVIDENCE AND TESTIMONY THAT WAS
PRESENTED DURING THE STATE'S CASE IN CHIEF.
In presenting the standard of review, Justice McKeig said, "The test for granting a motion for acquittal is whether the evidence is sufficient to present a fact question for the jury's determination.' (State v. Slaughter, 691 N.W.2d 70, 74-75 (Minn. 2005) To make this determination, we view all the evidence presented and draw any inferences in favor of the State (ld at 75). '[If] the evidence is insufficient to sustain a conviction on any of the charges, the district court should grant the motion for a judgement of acquittal as to those charges. Minn. R. Crim. P. 26.03, subd. 18(1)(a)." (Opinion at 9-10, emphasis added throughout) She continued, "A district court may only deny the motion when the evidence is sufficient to present a factual question to the jury." (Opinion at 10)
While the standard of review is correct, her interpretation of what constitutes a valid inference was not correct and she missed valid inferences when all the evidence and testimony is reviewed. Inferences are to be drawn in favor of the State, but that does not allow illogical inferences to be claimed to support the State's case, nor does it allow speculation to be viewed as an inference.
An "inference" is a conclusion in logic. Black's Law Dictionary (10th Edition) says it is, "A conclusion reached by considering other facts and deducing a logical consequence from them." There must be a logical foundation in order to infer a specific conclusion. For over a hundred years inferences have been required to be reasonable, morally certain, and logical conclusions to the facts presented (Com v. Webster, 59 Mass. 295, 313 (1850) -- "The inference to be drawn from the facts must be a reasonable and natural one, and to a moral certainty, a moral one. lt is not sufficient that it is probable only; it must be reasonably and morally certain.") Proof of facts cannot be left to conjecture or speculation rather than reasonable inferences (State v. Scharmer, 501 N.W.2 d 620, 622 (Minn. 1993)).
In her opinion Justice McKeig misrepresents some items as inference when they are mere speculation, and she misinterprets some inferences in favor of the State when the evidence clearly indicates that they favor the Petitioner, when all the evidence is viewed as a whole, and to attempt to apply them in favor of the State would be mere conjecture or speculation and not a logical inference.
Justice McKeig claims "Gunshot residue was found on Allwine" was an inference that was to be viewed in favor of the State. Justice McKeig fails to mention that this was only a single particle on the Petitioner's right hand with which Petitioner, at the request of the 911 operator, touched Amy's body (11T. 45-46). lt was also testified that gunshot residue (GSR) transfers by touch (13T.13-14, 15, 20). If Petitioner fired the gun then Petitioner should have hundreds of GSR particles on his hands and clothing, not just one (Petition for Postconviction Review, Ex. Q). Since both of Amy's hands combined had over 50 times more GSR, and there was no blood spatter or GSR on the Petitioner's other hand or clothing (as would be expected if he shot Amy) the only logical, reasonable, moral conclusion is that Petitioner did not fire the gun, and the single particle got on the Petitioner through transfer. Additionally, Justice McKeig leaves out additional evidence that supports the inference in favor of the Petitioner. There was a mixture of 3 or more DNA profiles on a gun with only 2 people in the house that were not excluded. The logical, reasonable, and moral inference is that someone from outside the residence touched the gun in a timeframe proximate enough to Amy's death to leave DNA on the gun.
Justice McKeig claims that "[a] nontherapeutic amount of the drug scopolamine was found in Amy's system. Amy did not have a prescription for scopolamine. DogdayGod, an lnternet profile that had previously been searching for a contract killer to kill Amy, had been looking for scopolamine through the DarkWeb" favors the state, but at the least it is mere speculation, rather than an inference, and at the most actually favors the Petitioner. As far as supporting the State's position, it is nothing more than mere speculation, because there was no evidence of when the scopolamine got into Amy's system or how it got into her system. However, in favor of the Petitioner, Justice McKeig's inference is that it was purchased by DogdayGod, but yet, from the evidence, we can infer that the Petitioner was not DogdayGod. Evidence shows that DogdayGod was active on the DarkWeb in early 2016 and as Justice McKeig notes, "the [Darkweb] is a part of the Internet that is only accessible through a specialized browser called The Onion Router, or 'TOR"' and while Justice McKeig is correct when she says that the Petitioner's laptop did have TOR installed, Justice McKeig fails to mention that the State's own forensic report of the Petitioner's laptop shows that the TOR browser wasn't even installed on Petitioner's computer prior to November of 2016 (Trial exhibit 139, pg. 10) and the Petitioner's devices had no history showing any DarkWeb access (15T.63).
Additionally, Justice McKeig used the fact that other people's devices did not have any reference to DogdayGod as an inference that they were not DogdayGod, and yet while DogdayGod was active on the DarkWeb for months, the State's computer forensics expert testified that there was no trace of the DogdayGod profile or DogdayGod email on the Petitioner's devices (15T.63), so she must apply the same inference to him. Additionally, if the Petitioner purchased scopolamine there would be evidence of a financial transaction, which there wasn't. lt is a reasonable, logical, and morally certain inference that someone other than the Petitioner was DogdayGod, who therefore purchased the scopolamine and devised a way to administer it to Amy. Another fact that supports this inference is that the BCA examined the entire house for days, it is a reasonable and logical that if something in the house was used to store or administer the scopolamine to Amy then they would have found evidence, but yet the Prosecutor Jamie Kreuser admits that there was none. (Pet., Ex. Y)
Justice McKeig claims, "Based on the amount of scopolamine in Amy's system, the medical examiner agreed that Amy died at 3:L5 p.m. or earlier"; however, this is mere conjecture and speculation and it contradicts other scientific testimony and evidence that was presented at trial. This "agreement" to which Justice McKeig is referring is based solely on a hypothetical situation, presented by defense counsel (16T.48), of someone else testifying to an earlier time of death, which never happened. It is also based on a number of assumptions (not facts) about how, when, and how much scopolamine Amy ingested. One cannot argue from assumptions to legally sound conclusions (See State v. Tscheu. 758 N.W.2d 849, 871 (Minn. 2008)) or stack inference upon inference (United States v. Lopez, 514 U.S. 549,567; Nicol v. Geitler, 188 Minn. 69, 74). Additionally, Dr. Mills is making these assumptions about a drug that she has never worked with before (16T.48). The actual scientific time of death that Dr. Mills gave was 4-6 hours prior to her investigator examining the body (16T.45). Based on timelines presented during the State's case in chief (Pet., Ex. M), the examiner arrived around 11:30 p.m., making the time of death after 5:30 p.m. based on scientific evidence (see Petitioner's Memorandum of Law, pg. 5 for the timeline derived from testimony of the State's witnesses).
This timeline was further supported by scientific evidence when Dr. Mills testified that rigor mortis was consistent with "a short time from of what they found at the (sic) 1900 [7:00 p.m.]" lt is the State's own medical examiner that scientifically (not based on assumption and speculation) places the time of death close to 7:00 p.m., and since Justice McKeig mentions that Petitioner had left home prior to 5:30 p.m. and did not arrive home until close to 7:00 p.m., when Amy was found dead (Opinion at 4) it is not a reasonable, logical, or morally certain conclusion that Amy died prior to 3:15 p.m., but rather that she died after the Petitioner left the house. Additionally, Justice McKeig fails to mention that the first responders found Amy warm to the touch and soft (meaning that rigor mortis had not set in yet) (11T.62-67). lf Amy had died 4-6 hours prior to their arrival as suggested by Justice McKeig, then she would have been cool to the touch and rigor mortis would have begun.
Finally, all the facts and all the evidence is required to be analyzed, and when that is done the following inferences (based on logical, reasonable, and morally certain facts) support the Petitioner's innocence, and these were not even addressed by Justice McKeig:
-- The Petitioner could not have lifted and carried Amy's body, nor would he have had a reason to try, and we know from the evidence that her body was not dragged. Additionally, if Petitioner tried to lift and carry Amy's body then he would have been covered in Amy's blood and he wasn't.
-- There is no evidence that Petitioner cleaned up the scene, and yet there was a large area of blood that was wiped up.
-- Petitioner's fingerprints were not on the gun.
-- The Bitcoin account used by DogdayGod is not associated with the Petitioner's Bitcoin wallet.
-- There is no evidence of the anonymous emails sent to Amy on the Petitioner's devices.
-- Everyone spoke highly of the Petitioner's relationship with Amy and there was no evidence of any domestic strife, nor divorce (as suggested by the State).
-- The Petitioner's footprints tracked blood from the wiped-up area through the house after he returned and found Amy dead and we know this is a logical, reasonable, morally certain inference based on the paucity of footprints in the house, the fact that they specifically followed the path he told police he went when he arrived home, and because there are no footprints around the body that he supposedly moved.
-- The neighbor heard the dogs in the house (because he was outside prior to 5:30 p.m.), but he did not hear a gunshot which would have been more noticeable.
-- Cars were seen fleeing the neighborhood about 6:00 p.m.
All of these facts came out during the State's case and point specifically to the Petitioner's innocence. Justice McKeig claims in footnote 4 that Petitioner's claim was based on the State proving ten circumstances, but rather Petitioner's claim is that the State used the ten circumstances to try to reach their burden of proof on the essential element that Petitioner "cause[d] the death" of Amy in accordance with Minn. Stat. 5609.185(aX1). Therefore, when the evidence showed those circumstances to be false the State had nothing left with which to prove the essential element of the crime, and that is why the judge should have granted the motion for acquittal.
In the same footnote Justice McKeig claims that Petitioner is attempting to undermine the Petitioner's claims by suggesting that he is relying on an evaluation of the weight of the evidence. On the contrary, Petitioner is simply showing that the inferences drawn previously from the evidence were not rational, and in a circumstantial evidence case appellate courts are able to independently "assess the rationality of the inferences from the evidence and whether they establish guilt beyond a reasonable doubt." (State v. Tscheu, 758 N.W. 2d 849, 869 (Minn. 2008)) Once one eliminates the testimonial statements that are clearly false, hypothetical, or speculative the evidence as a whole points to the Petitioner's innocence.
"Viewing inferences in favor of the State" does not mean that Justice McKeig is allowed to discard common sense or ignore any facts that do not support her desired conclusion. When all of the logical inferences are combined they lead to the conclusion that the Petitioner could not have killed Amy, nor even been involved. Therefore, there was no legal question of fact remaining for the jury. As such, Justice McKeig's and the District Court's finding was "against logic and the facts in the record" which is the definition of abuse of discretion (Griffin v. State, 961 N.W.2d 773,776 (Minn. 2021); see also Cooter and Gell v. Hartmax Corp, 496 U.S. 384, 405 -- a clearly erroneous assessment of the evidence) Since these facts do point to the Petitioner's innocence, it was ineffective for Appellate Counsel not to bring up an obvious issue. Petitioner is entitled to reversal of his conviction.
lSSUE 2: JUSTICE MCKEIG SEPARATELY ANALYZED THE APPELLANT'S CLAIMS OF APPELLATE COUNSEL BEING INEFFECTIVE FOR NOT SUBMITTING EVIDENCE IN A TIMELY MANNER DURING POSTCONVICT10N AND APPELLATE COUNSEL BEING INEFFECTIVE FOR NOT BRINGING UP ADDITIONAL INSTANCES OF TRIAL COUNSEL.
SINCE
APPELLATE COUNSEL'S STATED STRATEGY WAS TO PROVE INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL, THESE SHO∪LD ALL BE ANALYZED CUMULATIVELY AS PART OF THE
SAME ISS∪E. J∪STICE MCKEIG ALSO USING INCORRECT LEGAL REASONING IN THE
ANALYSIS THAT SHE DOES MAKE REGARDING THIS ISSUE.
Multiple errors from counsel should be viewed cumulatively (Lindstadt v.Keane, 239 F.3d 191(2d Cir 2001), Steidl v.Walls, 267 F Supp 2d 919 (C.D. III 2003), Bridges v Thaler, 2010 US Dist LEXIS (N.D. Tex 2010)) In analyzing whether the reports by Dr Arden and John Carney would have made a difference, Justice McKeig states, "The report and affidavit merely call into question the certainty of the State's experts' findings; they do not affirmatively prove that Amy was killed during Allwine's alibi windows, or that Allwine was not DogdayGod." (Opinion, page 13) However, affirmative proof" is not the correct standard. The question is not whether the documents affirmatively proved anything, but rather, "[t]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland v. Washinston, 466 U.S. 668, 104 S. Ct. 2052,2068-69 (1984)).
Justice McKeig admits in her opinion that these documents would "call into question the certainty State's experts' findings". At that point it would be up to to a jury to determine which of the experts to believe. If they believed the Petitioner's expert, then there would be reasonable doubt with respect to guilt, especially when combined with the other evidence that the Petitioner's trial attorney left out that shows that Amy did not die at 3:15 p.m. or earlier. Miller v. Anderson, 255 F.3d 455 (7th Cir. 2001) found that the lawyer was irresponsible for consulting with DNA, tire-treads, and footprint experts, even though those individual experts on their own would not provide "affirmative proof' of innocence. The Court in Miller claimed that "cross-examination alone could weaken the prosecution's expert evidence, but not to the point of denying it the essential corroborative value for which the prosecutor was using it." (ld. at 457) Del v. Van Arsdall, 475 U.S. 673 (1986) says that the Defense attorney's inability to challenge witness credibility actually strengthened witness's credibility, so by not presenting witnesses that Justice McKeig admits would "call into question the certainty State's experts' findings" trial counsel failed to allow the jury to see that there was an opposing view of the findings, thereby actually strengthening the State's case.
In assessing ineffectiveness of Trial counsel, it is not about proving innocence or even requiring to prove that an acquittal would have resulted. In Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001), they held "We think the chance of an acquittal would still have been significantly less than 50 percent; but it would not have been a negligible chance, and that is enough to require us to conclude that the lawyer's errors of representation were, in the aggregate, prejudicial". The possibility of a 'different outcome' simply requires the possibility of changing of one juror's mind, because a hung jury is a different result then a guilty verdict. Per Juror G.W.M. there were already questions about the Petitioner's guilt, so it would not be a high bar to change one opinion. Throughout Justice McKeig's opinion she invokes the phrase "trial strategy" in an attempt to dismiss any missteps or misconduct by the trial attorney; however, Marcrum v. Luebbers, 509 F.3d 489, 5O2 (8th Cir. 2007) holds, "It is not the court's commission to invent strategic reasons or accept any strategy counsel could have followed without regard to what actually happened; when a petitioner shows that counsel's actions actually resulted from inattention or neglect, rather than reasoned judgement, the petitioner has rebutted the presumption of strategy, even if the government offers a possible strategic reason that could have, but did not, prompt counsel's course of action."
The purpose of an evidentiary hearing is to actually determine if trial counsel made a reasoned decision, and was acting in accordance with his stated strategy, or if his actions were the result of inattention or neglect. In the current case, for example, there are conflicting affidavits between the trial counsel and his computer expert; they cannot both be telling the truth. The only way for this court to determine who is telling the truth and whether the resulting action was ineffectiveness or not is to have both individuals take the stand in an evidentiary hearing and submit them to examination on the record.
The U.S. Supreme Court continuously holds that there is no question that "it is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty." (Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 2465 (2005)).
Nowhere in DeVore's affidavit does he claim to have interviewed any of the people mentioned by Petitioner. Sear v. Upton, 130 S. Ct. 3259, 3264 (2010) said that trial counsel was ineffective when investigation was limited to one day or less of interviewing witnesses. Since DeVore's notes that he sent to Appellate counsel do not include the notes of any of the State's witnesses, nor any alibi witnesses from Petitioners' work, it seems clear that he did not do his duty to investigate; however, again, this would have been determined at an evidentiary hearing, which was not allowed.
Petitioner alleged these facts in the Postconviction (Post, pg. 15), and the alleged facts are presumed to be true in the Petition (Minn. Stat. 590). Justice McKeig claims that this would not have made a difference because Det. Raymond's report indicates that Petitioner could have been near his computer or away from it; however, that comment was based on the limited information of the report (phone calls and emails). since Petitioner was claiming that he was at his computer all afternoon, the Supervisor would have been an alibi witness. Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991) held that it is unreasonable not to makes some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense. Trial counsel was told about Optanix and the petitioner's supervisor during initial interviews. The supervisor would have been able to attest to Petitioner being at his computer all afternoon, because he is responsible for ensuring that engineers are active in Group chats and lnstant Messenger. lf petitioner was idle for more that 5 minutes or so, then Group Chat would show him inactive and the supervisor would be responsible for determining why petitioner was inactive, which would have involved phone calls and emails (of which the report shows there were none).
This is directly related to guilt and innocence because if petitioner was at his computer (as he has claimed from the beginning), then he could not be running around the house killing Amy, moving a body, cleaning a crime scene, etc. (White v. Roper,416 F.3d 728 (8th cir. 2005) -- Counsel failed to investigate adequately and thus failed to call two witnesses who would have directly supported defense's theory; Chambers v. Armontrout, 907 F.2d 825 (8th Cir. 1990) -- Counsel failed to interview and call witness who would have supported defense claims). As specified in the Postconviction Petition, "Calling a subject-matter expert to properly explain the report would have supported the alibi defense (trial counsel's stated strategy)." (Post, pg. 15) Whitmore v. Lockhart, 8 F.3d 614, 618 (8th Cir 1993) holds that the decision to interview potential witnesses is not a decision related to strategy, rather it is a decision related to adequate preparation for trial. (see also Henderson v. Sargent, 926 F.2d 706,711 (8th Cir. 1991))
Petitioner has included numerous pieces of evidence in the postconviction petition. Kramer v. Kemna, 21, F.3d 302, 309 (8th Cir. 1994) holds that failure to interview witnesses or discovering mitigating evidence may be a basis for finding ineffective assistance of counsel. (see also Henderson v. Sargent, 926 F.2d 706,711(8th Cir. 1991) - -"Reasonable performance of counsel includes an adequate investigation of the facts of the case, consideration of viable theories, and development of evidence to support those theories. Counsel has 'a duty ... to investigate all witnesses who allegedly possessed knowledge concerning [the defendant's] guilt or innocence.") Exhibit K was a screen shot of Amy's email, showing a read message at 3:39 p.m. indicating that she was not only alive, but physically and mentally able to log into her computer (not drugged and certainly not dead, as claimed by the State). Additionally, her cell phone data show that she was able to browse to websites and do searches during the time when the State claims that she was incapacitated by drugs, proving that she obviously was not drugged at the time that the State claimed she was.
Exhibit O are documents from Apple that explain the process for deleted notes that show that notes are permanently removed after 30 days, so if a note with the Besa Mafia Bitcoin code was deleted in March, then it would not be able to magically show up on the Petitioners computer in August. It shows Lanterman is either not properly interpreting the data, or he is lying about the data. Exhibit R is the Bitcoin Transaction logs that would have demonstrated that Petitioner did not send any money to Besa Mafia. All of these exhibits completely destroy the State's theory of the case, and yet trial counsel failed to use any of them, was it trial strategy or was it ineffectiveness. (Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2060 (1984) -- "The Sixth Amendment imposes on counsel a duty to investigate, because reasonably effective assistance must be based on professional decisions and informed legal choices can be made only after investigations of options.")
Since the Court cannot invent trial strategy, and DeVore's affidavit makes no mention of them, then the only way to determine whether it was trial strategy or was it ineffectiveness is through an evidentiary hearing (Sinisterra v. United States, 600 F.3d 900 (8th Cir. 2010) - Case remanded for evidentiary hearing to determine if trial counsel provided ineffective assistance of counsel when he failed to investigate and present mitigating evidence; see also State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013) -- "If counsel fails to investigate facts directly related to the defendant's theory of the case, his representation may be ineffective."), and yet none was provided and Justice McKeig is happy to invent trial strategies instead.
Driscoll v. Delo, 71F. 3d 701, (8th Cir. 1995) held that trial counsel was ineffective when he failed to prepare to cross-examine state's serologist on critical evidence. What could be more critical to the alibi defense (the stated trial strategy of Devore) then the time of death and being able to demonstrate that it happened during the alibi window. without understanding the Crime scene Access Log, the arrive time of the medical examiner investigator, how his findings apply to the time of death, and consultation with a medical examiner, it is difficult to understand what trial preparation trial counsel did in preparation for his cross-examination. Strickland v. Washington, 466 u.s. 669, 104 s. ct. 2052, 2066 (1984) says, "Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (see also Bobby v. VanHook, 130 S.Ct. 13 - The defense attorney gathered some, but not all evidence; Soffar v. Dretke, 368 F.3d 441 (5th cir. 2004) -- counsel failed to consult with expert for assistance in making a strategic decision as to whether such information would have helped defense.)
Justice McKeig completely skips one of trial counsel's most egregious errors when he destroyed his only defense strategy ("a simple alibi defense"). Henrv v. Poole, 409 F.3d 48, 65-66 (2d Cir. 2006) held that trial counsel was ineffective for eliciting alibi for wrong time period and then adhering to the alibi defense and urging the jury to accept it.
Petitioner had a set alibi window, and trial counsel incorrectly claimed that the investigator showed up at 9:00 p.m., and with Dr. Mills time of death being set to 4-6 hours prior to his arrival, trial counsel inadvertently set the time of death from 3:00 p.m. to 5:00 p.m. (entirely outside the alibi windows). Alcala v. Woodford, 334 F.3d 862 (9th Cir. 2003) held that trial counsel made a sound strategic choice to present an alibi defense, but nonetheless failed in his duty to present that defense reasonably and competently because counsel failed to present best alibi witnesses and records, which competent attorney would have presented unless the attorney was unaware of its existence. In Devore's affidavit, he says that he was using a non-technical alibi defense with eyewitnesses; however, in addition to placing the time of death outside of the alibi window, he also challenged the credibility of his only eyewitness. In his closing argument he discredits his own witness by saying that his testimony is inconsistent with the Medical Examiner (17T.61). However, Mr. Cranston's testimony was only inconsistent with the hypothetical situation elicited by trial counsel in his cross- examination. Had trial counsel paid attention to S.A. Frascone's testimony and timeline, then he would have recognized that Mr. Cranston's testimony is completely consistent with the actual 4-6 hour time of death window given by the medical examiner, and shows the complete consistency between all the testimonies (State and Defense) and the alibi time window. These actions are "inherently unsound and unreasonable under professional norms." (United States v. Villalpando, 259 F.3d 934, 937)
The only explanation for these actions in inattention or incompetence, yet Justice McKeig ignores it. The only way the court can determine if trial counsel's lack of due diligence was a deliberate educated strategic decision instead of ineffectiveness is by examining trial counsel at an evidentiary hearing. As such Petitioner is entitled to an evidentiary hearing and the Appellate Counsel was ineffective for not properly advancing this issue.
Justice McKeig claims on page 14 of her opinion, that Petitioner mischaracterized the medical examiner's testimony, but rather it is she that adds the qualifier "at least" to artificially enlarge the timeframe to fit her scenario. To avoid any confusion, here is the full response from Dr. Mills, "However, when our investigator went out to the scene, Ms. Allwine was still cool to the touch. Rigor was just beginning to develop, so she had just recently been killed. When someone is cool to the touch, generally stating you have about 4-6 hours before that is appreciated by someone like myself saying they are cool to the touch and no longer warm." (16T.45) Justice McKeig tries to expand "about 4-6 hours" to over 10 hours prior to the investigator's arrival.
In describing what she means by "cool to the touch" Dr. Mills says, "Everyone I evaluate is dead. So my spectrum of observation is for dead people only ... (so when they are cool to the touch) ... they are warm to a degree." (16T.47) There is a difference between warm, cool, and room temperature and presumably that is why she says "still cool" meaning that Amy's temperature would continue to fall until it reached room temperature.
Justice McKeig completely ignores Dr. Mills scientific appraisal of rigor mortis. Dr. Mills mentioned above that rigor was just beginning (at 11:31 p.m.). Regarding rigor mortis, the question was asked, "... when would that start to happen that you could feel that stiffness?" To which Dr. Mills answers, "lt's kind of independent again. But it could be a few hours." (16T.52) She follows that up indicating that it takes about 12 hours total, so if the time of death was actually 3:15 p.m. (over 10 hours prior to the investigator's arrival) then rigor would be almost complete, not just beginning. Additionally, rigor would have started prior to the first responders arriving on scene and they reported Amy as soft and rigor had not started. By suggesting a time of death of 3:15 p.m., Justice McKeig is making an irrational evaluation of the scientific facts in this case.
Regarding trial counsel eliciting the 3:15 p.m. time from Dr. Mills in response to his hypothetical question, Justice McKeig claims, "None of this evidence was improper or unfairly prejudicial." she disproves herself, because that is the only time that she keeps referring to, regardless of all of the scientific evidence pointing to roughly a 6:00 p.m. time of death. The fact that she so adamantly holds on to an illogical time of death, shows that it was extremely prejudicial and improper.
Justice McKeig keeps point back to Dr. Mills statement about "agreeing" with a time of 3:15 p.m. or earlier; however, in addition to this being a response to a hypothetical situation and not a real situation, it is also influenced by Dr. Mills claiming (incorrectly) that her investigator arrived around 7:00 p.m. (16T, 45], which we know to be incorrect because of the crime scene access log, and can infer is incorrect based on additional testimony. A 3:15 p.m. is timeframe is "around 4-6 hours" prior to when she claimed her investigator arrived, which further supports Petitioner's argument that the time of death was closer to 4-6 hours prior to 11:31 p.m. instead of Justice McKeig argument that "about 4-6" means l0 hours prior to the investigator's arrival.
Justice McKeig claims that "the Crime Scene Access log would not have proven Amy was killed during a period when Allwine had an alibi", but contrary to her opinion Dr. Mills, in discussing investigator's (Jonathan Banks) arrival time, says, "At 7 p.m. when our investigator, at some point in the time thereafter was summoned, [Amy] was still cool to the touch. lf she had died at, let's say, even an hour before 7 p.m. she would be warm to the touch with him being out there. So you have to kind of backtrack from there. lt's all dependent on when people are out to the scene." (16T, 46)
We know from the first responders that Amy was indeed warm to the touch as Dr. Mills says would be the case if Amy was killed just an hour prior to their arrival. Dr. Mills also says that we have to backtrack from the real arrival time of their investigator. He arrived 4.5 hours after Dr. Mills claims he was, so using the actual arrival time of the investigator, it pulls Justice McKeig's 3:15 p.m. time of death to a 7:45 p.m. time of death, because it is all dependent on when people (specifically the investigator) were on site. The crime scene access log is the only document that definitively states when he arrived on scene; therefore, the introduction of this document was critical to an alibi defense and trial and appellate counsel were ineffective for failing to introduce it.
ISSUE 3: JUSTICE MCKEIG IMPROPERLY EVALUATED THE EVIDENCE IN HER OPINION AS TO WHETHER OR NOT THE EVIDENCE MEETS THE BRADY THRESHOLD.
Justice McKeig claims that the evidence that the Petitioner raised as Brady evidence is not material. Strickler v. Greene, 527 U.S. 263, 280 (1999) holds, "The Supreme Court and courts of appeals have found evidence to be 'material' when 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." They continue, "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." (ld. at 289-90) In Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1155 (1995) they held, "A showing of materiality does not require demonstrating by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." They also said that all of the items need to be viewed cumulatively to analyze their impact on the trial (ld at 421).
Justice McKeig claims that the Investigator's notes, the results of the HemoTrace, and the BCA crime photos are all speculative, so she chooses not to address them. There is very little speculative about these. Their existence is validated by the State's own witnesses and evidence, and in the information on the document is defined or can be inferred from the State's witnesses.
investigator's notes: Dr. Mills testified that she used data from those Jonathan Banks' notes to arrive at her 4-6-hour time window. These were the notes that the investigator (Jonathan Banks) took during his initial crime scene investigation. The Appellant has repeatedly requested those notes and has been denied by the State. Based on standard practice, these notes should contain at least the body temperature at the time of the investigation, the state of rigor mortis, and the progression of lividity. These are all key to determining an accurate time of death. The investigator's notes are a document that directly relates to the time of death, so they are clearly material in a case with an alibi defense.
HemoTrace: The State never mentions specifically what they use to differentiate between dog blood and human blood, they call it a "HemoTrace" test strip. They used this to test the blood in the hallway, since they follow the same process throughout their crime scene processing, if they used it in the hallway, they would've used it to test the washcloth next to the dog kennels. The defense claims that if there was blood on the washcloth it was dog blood, in which case the HemoTrace would come back negative. Defense was never given the results of this test, yet the State claims multiple times that the washcloth was used to clean up Amy's blood, so it's an exculpatory test result that should've been disclosed.
BCA Photos: As part of the State's discovery appellate counsel was given the BCA crime scene photos, but based on the filenames there are about 45 missing photos. The State's photos use the prefix "KAN" and begin with a sequence number of "9244". As an example of the "missing photos" after "KAN_9288" is "KAN_9293", so so the sequence numbers 9289, 9290, 9291, 9292 are missing. The pictures appear to be selectively pulled out.
We know some much be the sinks and counters, because during the Grand Jury testimony the state's witness indicated they sprayed all surfaces (GJ. 154-55, 160) and yet there are no pictures of sinks, or unlocked rear door. This is exculpatory, since the State claims the Appellant cleaned the scene. Showing the jury that luminal didn't react in the sinks would demonstrate the State's theory about Appellant cleaning the scene was false. If Appellant didn't clean the scene, then someone else did, likely the actual perpetrator.
Regarding the emails from Besa Mafia, Justice McKeig claims that the FBI is not a state actor; however, she admits that Kyles extend to the police and the FBI and the Cottage Grove Police were working in conjunction on this case from the very beginning. Amy met with Det. Raymond and the FBI when they told her about the initial threats. Even if the FBI is not considered a State actor, the information was still withheld (that is assumed to be true based on Minn. Stat. 590), and without an evidentiary hearing there is no proof as to who withheld it.
The State has broken so many rules that it is likely that they received the information from the FBI and chose not to include it because it did not fit their story. In these emails, which are still being held by the State, the emails specify another Bitcoin address that was used by Besa Mafia and it states that malware was placed on dogdaygod's computer. The State's computer expert testified that there wasn't malware or viruses installed on the Appellant's computer. This would've been used as further evidence that the Appellant isn't dogdaygod.
Justice McKeig claims that the Prosecution is not responsible for information that would prove that Lanterman is lying; however, that is no different the Prosecution being responsible for any of their other witnesses lying. "Evidence is favorable to the accused under Bradv if it has either exculpatory or impeachment value ... "lmpeachment evidence is material 'because if disclosed and used effectively, it may make the difference between conviction and acquittal." United States v. Bagley , 473 U.S. 667 , 676 (1985) Justice McKeig keeps saying how important Lanterman's testimony was; therefore, she is implicitly supporting the argument of how important this material was to show that he is lying. Even when the prosecutor is unaware of the lie, he is responsible for it, and in this case common sense should have told the prosecutor that Lanterman could not have testified as an expert 407 times in only 44 weeks. lt is inconceivable that they did not know he was lying.
Justice McKeig, in reference to the Trailcam pictures, says, "[Petitioner] provides no reason why a written description of the videos is insufficient." The primary reason is that Defense has a constitutional right to evidence. (United States v. Valenzuela-Bernal, 458 U.S. 858, 868; Ake v. Oklahoma, 470 U.S. 68, 76 (1985))This was evidence that they suppressed by sending it to Lanterman where we could not afford to buy it back. A written description would be called hearsay and disallowed as evidence in the courtroom. Without the evidence to backup the cross-examination, the detective could simply lie and say he did not see it. The State's witnesses have already proven they will lie to protect the State.
Justice McKeig focuses on the exculpatory nature of the SuperAmerica video. The incriminating piece ls having an officer claim that I was not where I said I was and the only way to counter that is with the video. The exculpatory nature of it would be to prove that if the petitioner is not showing up then why not? This evidence is also impeachment evidence, because the officer is saying I was not somewhere, where I knew l was, so I know he is lying. The video would likely show that, which is why they chose not to give it to us.
The State based its case on dogdaygod being the person who killed or planned Amy's murder. Therefore, any evidence that goes to prove that the Appellant isn't dogdaygod also goes to prove that he didn't participate in Amy's death.
During the State's discovery they analyzed the Appellant's cell phones and found a bitcoin wallet on Appellant's Samsung phone. All Bitcoin transactions are logged on a Bitcoin ledger (much like a bank statement). The State collected the Bitcoin ledgers that were associated with the Besa Mafia emails. lf the Bitcoin wallet address from the Appellant's Samsung phone doesn't appear on the Bitcoin ledger for Besa Mafia then it shows that the Appellant didn't send Besa Mafia any funds and therefore isn't dogdaygod. The State never produced this potentially exculpatory evidence.
The jury was already told that there was nothing of value found on 64 of the 66 devices collected by the State (15T.63), that there was no evidence linking Appellant to dogdaygod@ hmamail.com (the email used by dogdaygod to communicate with Besa Mafia), that there was nothing on the MacBook identifying dogdaygod (15T.63), that the date and time on the backup file in the lnternet could've been manipulated (15T.64), that there was no serial number tracing the backup file in the lnternet to the Appellant's iPhone (15T.65), that the backup file could've been created by a third party (15T.65), and that there was no evidence of "tails" on any of the Appellant's devices (15T.66). There's a reasonable probability that adding the additional knowledge that a malware program that was installed on dogdaygod's computer didn't exist on the Appellant's computer, and that the Appellant's Bitcoin wallet address didn't show up on Besa Mafia's Bitcoin ledgers would've provided reasonable doubt that the Appellant isn't dogdaygod. The evidence would have shown the jury that the several of the State's witnesses were lying and that the Defense witness was telling the truth. The evidence would have proved to the jury that Amy died during the alibi window, and that the defendant did not clean up the scene. When all of the evidence withheld by the State is combined together, it likely would have led to a different outcome in the case.
ISSUE 4: JUSTICE MCKEIG INCORRECTLY USES THE PLAIN ERROR STANDARD TO
EVALUATE THE FALSE TESTIMONY GIVEN BY THE STATE'S KEY WITNESSES.
Napue v. lllinois, 360 U.S. 264, 269 (1959) holds that, "It is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Since allowing false testimony is a Constitutional violation it does not need to be analyzed using the plain error standard. Justice McKeig claims that some issues were not raised verbatim in the postconviction petition. lf Petitioner was granted the evidentiary hearing or a memorandum of law by the District Court, then all the issues would have been detailed with citations. Even if anything was not specifically mentioned in the postconviction petitioner, Wainwright v. Sykes, 433 U.S. 72,94-96 (1977) says that "lf the constitutional issue is sufficiently grave, even an express waiver by the defendant himself may sometimes be excused." Napue specifies that only question is "if it is in any way relevant to the case". Since the testimony was directly related to the time of death and the computer evidence (the two things that Justice McKeig keeps point back to as the 'strength' of the State's case), it was clearly relevant to the case. Kyle v. United States, 297 F.2d 507, 513 (2d Cir. 1961) quoting Napue says "'A lie is a lie, no matter what its subject, and if it is in any way relevant to the case' reversal must follow if the prosecutor, knowing of the lie, leaves it uncorrected." The Petitioner is entitled to have his conviction reversed.
ISSUE 5: JUSTICE MCKEIG MISCONSTRUES THE PETITIONER'S CLATM REGARDiNG THE JUDGE'S ABUSE OF DISCRETION ALLOWING SPREIGL EVIDENCE.
Justice McKeig claims on page 25 of her opinion, "The argument Allwine makes now on appeal, however, is not the same claim he made before the district court in his second postconviction petition. Below, Allwine did not claim that the state did not follow the correct procedure for providing notice of an intent to rely on Spreigl evidence. He simply claimed that the Spreigl evidence was improper character evidence." She misconstrues Petitioner's claim in the postconviction. On page 12 of the postconviction petition the actual claim starts, "The trial counsel abused its discretion by allowing Spreigl evidence." If Petitioner was allowed to do a Memorandum of Law then that statement would have been thoroughly documented with the rules and case laws that were in the appellate brief, but Minn. Stat. 590 specifically tells the Petitioner not to cit authorities on how the Judge abused his discretion. The State intended and did use Spreigl evidence improperly as bad character evidence, but the postconviction motion was on the judge allowing it. The judge is required to follow the rules of the court and rules of evidence when allowing evidence to be presented to the jury. When those rules were violated by the State, the judge should have disallowed it.
Justice McKeig ignores the other rules and case law that the Judge violated in allowing the Spreigl evidence. The law and case law states specifically what must happen for Spreigl evidence to be allowed, including:
o The state must give notice of its intent to admit the evidence.
o The notice must be given prior to the Omnibus hearing.
o The state must clearly indicate what the evidence is offered to prove.
o There must be clear and convincing evidence that the defendant participate in the prior act
o The evidence must be relevant to the state's case
o The probative value of the evidence must not be outweighed by potential unfair prejudice to the defendant." (Minnesota Judges Criminal Benchbook, Section 1401.01)
State Violated Specificity Requirement of Minn. R. Evid. 404, subd. b2
The Minnesota Judges Criminal Benchbook (ibid.) cited State v. Ness, 707 N.W.2d 676 and states in reference to "Relevance" that "the 'district court must identify the precise disputed fact to which the Spreigl evidence would be relevant."' (Section 1401.03, lll. C.)
The Spreigl evidence presented by the State did not specify which pertinent fact they were disputing. Mr. Allwine had already admitted to knowing Ms. Woodard and so that fact was not in dispute. This evidence should not have been allowed because it lacked specificity of what they were attempting to prove and was simply "bad character" evidence.
Act Specified by State is not a "bad act"
Throughout the Minnesota Judges Criminal Benchbook (ibid.) it clearly indicates that a "bad act" is a previous criminal action. For example, under the 'standard of Proof' section it says, "In order for evidence of prior acts to be admissible, the state must establish by clear and convincing evidence that the defendant committed the prior crimes." However, there is no crime involved with the "bad acts" that the State presented. lt is simply "bad character" evidence and should have been evaluated as such.
Probative Value did not outweigh Unfair Prejudice
The Minnesota Judges criminal Benchbook (ibid.) is clear that the probative value must outweigh the unfair prejudice. (Section 1401.01) It also specifies that "'need' is not an 'independent requirement of admissibility' but is to be addressed in the context of the fifth prong's probative value/unfair prejudice balancing test" and it cited State v. Ness, 707, N.W.2d 676, 690 (Minn 2006). lt also cites Minn. R. Evid. 404 (b) as the governing authority. It continues to say, "A small balance in favor of unfair prejudice requires exclusion." (Section 1401.03, lll., D.)
The concern regarding prejudice is also addressed within Spreigl, "The danger of it is that a jury may convict because, though guilt of the crime charged is not proved, it is satisfied to convict because of other crimes." (at 495) This concern is well-known. A 9th circuit ruling states that this prejudice remains "even where the defendant has the opportunity to rebut the evidence and take other ameliorative steps." (United States v. Frederick. 78 F.3d 1370, 1375)
State v. Ness. 707 N.W.2d.676, 686 offers a two-step process for evaluating the probative value of Spreigl evidence (also referenced by the Minnesota Judges criminal Benchbook (ibid.)):
o "identify the precise disputed fact to which the Spreigl evidence would be relevant"
o Analyze "the relationship of the offered evidence to that fact and the relationship of the consequential fact to the disputed issues in the case."
Whereas in Ness, Ness claimed that he never touched "E.M.'s intimate parts", and therefore there was a fact that was in question and the Spreigl evidence served to help the jury resolve that question. (id at 687) However, in this case there was never a disputed fact that the defendant had a relationship with the women brought forth as witnesses, and thus there was no fact question to be resolved by the jury related to these witnesses. Therefore, this analysis fails on the first prong, and the evidence should have been rejected.
Even if it passed the first prong, the Ness Court continued, "We take the opportunity to clarify that in determining whether a bad act is admissible under the common scheme or plan exception, it must have a marked similarity in modus operandi to the charged offense." (id at 688) The charged offense in this case was Murder to which the Spreigl evidence had no "marked similarity", and therefore should have been rejected upon analysis of the second prong.
The 5th Circuit has a two-prong test, that is similar to Spreigl, called the "Beechum test". In United States v. Beechum, 582F.2d 898, 914 they explain the prejudice prong by stating, "The touchstone of the trial judge's analysis in this context should be whether the government has proved the extrinsic offense sufficiently to allow the jury to determine that the defendant possessed the same state of mind at the time that he committed the extrinsic offense as he allegedly possessed when he committed the charged offense." In this particular case the State's own witnesses testified that the defendant did not talk about leaving his wife, and they never testified to him wanting to hurt his wife.
Evidence Presented was not required to support the State's Burden of Proof
In State v. Billstrom, 276 Minn 174 (1967) the Minnesota Supreme Court said, "Evidence of other crimes is admissible only if the trial court finds direct or circumstantial evidence of defendant's identity is otherwise weak or inadequate and it is necessary to support the State's burden of proof."
Spreigl Evidence is intended to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence mistake.
First, we will address motive, intent, preparation, plan, knowledge, and absence of mistake. There were no witnesses that testified that the defendant had a desire or plan to leave his wife, let alone kill her. In United States v. Benedetto, 571, F.2d 1246, 1249, the court says that the to be allowed for this purpose the extrinsic offense must share "'unusual characteristics' with the acts charged, thereby evidencing a unique scheme or pattern." (id 1249) There were no "unusual characteristics" of the defendant's actions that had any similarity to the death of Mrs. Allwine.
Second, none of the Spreigl evidence had anything to do with time of death, as it might relate to opportunity.
Finally, Spreigl evidence related to identity has historically been used to identify a subject that may have been unclear to an eye-witness or video surveillance. ln this case there was no eye-witness and no video surveillance of the crime, so identity is a moot point.
Instead the State introduced the Spreigl evidence for an "improper purpose". (State v. Ness, 707 N.W. 2d 676, 685) lt was presented not to support their burden of proof, but merely to prejudice the jury against the defendant.
The Court in State v. Kennedy, 585 N.W.2d 385 said, "Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the State's burden of proof, should the trial court admit the Spreigl evidence." (at 391,92) It continued, "In cases where some other matter (other than identity) is at issue, this Court has stated that the weak-case rule should be applied."(id at 392) And "the final determination of strength of the State's case should be made by the trial court after the State has presented all of its non-Spreigl evidence." (id at 392; See also United States v. Benedetto, 571F.2d 1.246, 1249)This was clearly not done in this case.
The judge abused his discretion
While the allowing of Spreigl evidence is considered to be governed by judicial discretion, the Minn. Code of Judicial Conduct Rule 1.1 says, "A Judge shall comply with the law, including the Code of Judicial Conduct." The rule is one sentence long in its entirety and there is no ambiguity in that sentence.
Additionally, Minn. Stat. 645.001 states that the provisions governing the interpretation of statutes govern all rules as well. Minn. stat. 645.08(1) says that words and phrases are construed according to their common approved usage. Finally, Minn. Stat. 645.44, subd. 15a states "Must" is mandatory.
As mentioned above, the law and case law states specifically states what must happen for Spreigl evidence to be allowed, including:
-- The state must give notice of its intent to admit the evidence.
-- The notice must be given prior to the Omnibus hearing.
-- The state must clearly indicate what the evidence is offered to prove.
-- There must be clear and convincing evidence that the defendant participated in the prior act.
-- The evidence must be relevant to the state's case.
-- The probative value of the evidence must not be outweighed by potential unfair prejudice to the defendant." (Section 1401.01)
It is only after the requirements of the law have been met that it is up to judicial discretion to allow or deny the evidence. lf the law regarding its admission is violated, and the law must be followed by the judge, then the judge is required by his oath to deny the admittance of that evidence.
It was therefore an abuse of judicial discretion for the evidence to be allowed. The rules surrounding the admission of Spreigl evidence are there for a reason and should not be cast aside by 'judicial discretion'. Ness says, "The procedural safeguards required for the admission of Spreigl evidence are designed to ensure that the evidence 'is subjected to an exacting review."' (at 685) In this case those safeguards were disregarded.
Even if all the rules regarding the admission of the evidence were followed, it was not admitted to prove an element of the crime, but was included simply to malign the defendant. Ness supports Spreigl and says, "lf the admission of evidence of other crimes or misconduct is a close call, it should be excluded." (State v. Kennedy, 585 N.W.2d 385, 389)
State v. Spreigl, 272 Minn.488 (1965) clearly states that, "Where it is not clear to the court whether or not evidence of prior offenses comes within an exception to the general exclusionary rule, the accused is entitled to the benefit of the doubt and the testimony should be rejected." (at 488)
The Spreigl evidence was admitted in this case, not to support an element of the crime, but simply to speculate on motive. This was also done in State v. Berndt, 392 N.W.2d 876. We know that the admission of this kind of evidence can be very prejudicial, and it was for this very reason that Berndt was reversed, "Admission of evidence of the kind and nature used to suggest a motive for the alleged killings is generally discretionary with the trial court. However, in this case arguably there may have been an abuse of discretion. A reading of the record leaves us with a firm impression that the jury's verdict may well have been tainted by such evidence. Jury members may have convicted Berndt because they were offended by his morals."
Justice McKeig then acts as a prosecutor and injects her own opinion to try to reason around how to not rule in the Petitioner's favor and claims that the prosecutor may not have known about it prior to the Omnibus. This is a ridiculous assertion which no one has argued previously. Neither the Respondent brief nor Judge Ekstrom, in the original order, claimed the information was known at a late date. In fact, Judge Ekstrom clearly says in his opinion that the information was in the initial criminal complaint and at least one of the Spreigl witnesses was interviewed by the State in November of 2016. It is well-established that the state knew the information from the beginning of this case.
It is clear that the Judge abused his discretion, and the relief is for the petitioner to be granted a new trial; therefore, the Appellate counsel was ineffective for not raising this issue.
ISSUE 6: JUSTICE MCKEIG SKIPS THE CONSTTTUTTON CLATM OF THE STATE VtOLAT|NG THE CONFRONTATION CLAUSE.
The Petitioner is "Constitutionally guaranteed access to evidence" (United States v. Valenzuela-Bernal, 458 U.S. 858, 868). In Valenzuela-Bernal the defendant had no opportunity to interview a detained witness. That is essentially what happened here. Justice McKeig in Footnote 8, "Allwine fails to explain why not being able to afford fees charged to examine evidence held by a third party is a violation of the confrontation clause." Petitioner was never given an opportunity to explain anything because he was never given an evidentiary hearing. Petitioner was not asking the third party to "examine" evidence, he was merely looking for a copy of the evidence that he is constitutionally guaranteed. Also, this was not evidence that was originally held by a third-party. This was evidence that was held by the State originally, and then prior to giving the defendant any access to the evidence, they purposely gave it to the third party to keep it away from the defendant.
Justice McKeig claims that Crawford v. Washington, 541 U.S. 36 only deals with witnesses, but in this case the digital evidence is essentially the witness and the expert that evaluates it and reports on it is merely an interpreter. Without the ability to examine the evidence (the eyewitness) the opportunity to cross-examine the expert is futile.
The Sixth Amendment requires that the Petitioner has the ability for obtaining witnesses in his favor. When the State hides the evidence with a third party and then charges an enormous fee, that the Petitioner cannot afford, then he is being denied his constitutional right to obtain a witness in his favor, because no computer expert can be a witness without examining the evidence first.
Appellate counsel ignoring a constitutional violation was ineffective assistance of appellate counsel.
ISSUE 7: JUSTICE MCKEIG INCORRECTLY EVALUATES THE ADDITIONAL INSTANCES OF PROSECUTORIAL MISCONDUCT.
Justice McKeig says, "No evidence shows [the Prosecutor's] intentionally violated 'case law, a rule, or a standard of conduct." Napue and Kyle don't have any requirement for intentionality ("A lie is a lie"). The misstatements that the Prosecutor made are direct contradictions of evidence in the case. He lied to the jury to get a conviction. That cannot be considered a fair trial.
Justice McKeig says that most of the statements that the Prosecutor made are "reasonable inferences from the record" and she specifically cites "Amy was incapacitated by drugs" and "Allwine accessed the DarkWeb in early 2016"; however, the Prosecutor had direct evidence against those statements. He had evidence of Amy getting on her email after 3:29 p.m., and he had evidence of TOR not being installed until November of 2016. Regardless of the testimony of inferences from the testimony, the Prosecutor knew that he was lying to the Jury.
Justice McKeig dismisses the facts without evidence that the Prosecutor told the jury. United States v. Rodriquez, 581 F.3d 775, 803 (8th Cir. 2009) "A prosecutor may not express an opinion implying knowledge of facts unavailable to the jury." That is black and white, and Justice McKeig's ruling is contrary to that. When he talks about life insurance, cleaning of the carpet in the master bedroom, and the note being deleted on the iPhone, these are all statements with no evidence and directly support major aspects of the State's case and because the State brings them up in his final closing statement, then defense has no way to even respond or rebut the statements. Martin v. United States, 17 F.2d 973, 976 (5th Cir. 1927), held, "There is no way for a court to determine that perjured testimony did not have controlling weight with the jury." Justice McKeig says the "State met its burden". First, as shown above, they did not meet the required burden, but secondly this burden was supposedly met was in a brief that was accepted contrary to the rules of the Court. Petitioner brought up that the State's Brief was Accepted contrary to the rules of the court and Justice McKeig ignored that issue.
CONCLUSION
There are several times where Justice McKeig claims that some issues are not raised verbatim in the postconviction petition. However, the Petitioner was pro-se and not allowed an evidentiary hearing or a memorandum of law. The MN Supreme Court has previously applied the Postconviction process to support liberally construing petitions and considering claims despite not being properly raised. (See Leake v. State, 737 N.W.2d 531, 540 n.3 (Minn. 2007) (noting that although the petitioner might not have properly raised his claim, he filed his petition pro se and it is "appropriate to read the pleadings of pro se appellants with an understanding eye"); Hathaway v. State, 741 N.W.2d 875, 877 (Minn. 2007)) To examine if the Petitioner received a fair trial, as guaranteed by the Fourteenth Amendment, all of the issues in this Petition need to be fairly and needs to be examined according to the law not a biased opinion. ln evaluating the cumulative nature of the evidence Justice McKeig claims that the Court needs to evaluated the "egregiousness of the errors and the strength of the State's case." She claims that none of the errors were egregious; however, due to the constitutional nature of the violations this opinion cannot be legally accurate. There are several times when Justice McKeig claims that the State's case is overwhelming when coupled with facts from Allwine I (State v. Allwine, 983 N.W. 2d 178 (Minn. 2021)); however, she has overlooked the facts contained herein, which demonstrate that the State's case was not as strong as she claims. The State's case was only strong because of the egregious errors and constitutional violations that they committed during the course of the Petitioner's case.
Dated: July 27, 2023
