2010-M-146             State of Minnesota, Respondent, vs. Kenneth Eugene Andersen, Appellant.

MAJORITY:  This appeal arises out of the murder of 34-year-old Chad Swedberg.  A Becker County jury found appellant Kenneth Andersen guilty of first-degree premeditated murder for the shooting death of Swedberg. 

Andersen makes several arguments on appeal: (1) the search-warrant application contained material misrepresentations and did not otherwise provide probable cause; (2) the evidence was insufficient for a conviction of first-degree premeditated murder; (3) the State should be required to show that evidence from trial did not derive from monitoring and recording of Andersen’s phone conversations with his attorney.  In a pro se supplemental brief, Andersen also argues that the district court committed plain error in its questioning of certain jurors about incidents outside the courtroom.  We affirm.

First, alleged misrepresentations and omissions in the search-warrant application were not material to the finding of probable cause.

Second, there was sufficient evidence to convict appellant of first-degree premeditated murder.

Third, appellant’s constitutional right to counsel was not violated by the unannounced recording of appellant’s phone calls to his attorney where the district court’s finding that investigators did not listen to the phone calls was not clearly erroneous.

Fourth, appellant’s pro se claims lack merit.

CONCUR:  Justices Page, Paul Anderson and Meyer opined:  “I concur in the result, but I write separately to note my disagreement with the court’s statement of and application of our standard of review for convictions based on circumstantial evidence.

To the extent that the court’s statement of and application of our standard of review for the sufficiency of the evidence in circumstantial evidence cases is inconsistent with Justice Meyer’s articulation of the rule in State v. Stein, 776 N.W.2d 709, 720-26 (Minn. 2000) (Meyer, J., concurring), I would follow the standard articulated by Justice Meyer.  Juries may be in the best position to determine credibility and weigh the evidence, and we defer to their determination of the circumstances proved, but a jury’s choice between reasonable inferences to be drawn from the circumstances proved is not entitled to deference.

CONCUR:  Justices Meyer, Page and Paul Anderson opined:  “I join in the concurrence of Justice Page but write separately to restate that the majority’s analytical framework “unduly narrows our traditional standard of review for circumstantial evidence by replacing the term „circumstantial evidence‟ with

„circumstances proved‟ and then restricting review of „circumstances proved‟ to only those circumstances deemed by the court to be implicit in the guilty verdict.”  State v. Stein, 776 N.W.2d 709, 719 (Minn. 2010) (Anderson, Paul H., J., concurring).  Given that we are abandoning our traditional standard of review, vI believe that trial courts should instruct the jury on the law of circumstantial evidence.  Minnesota’s pattern reasonable-doubt jury instruction tends to shift the burden of proof away from the State in prosecutions based on circumstantial evidence and fails to impress upon the jury the need to reach the requisite subjective state of certitude of guilt.

Barry Anderson  (Magnuson, Gildea, and Dietzen)

Concur:  Page, Paul Anderson and Meyer

Concur:  Meyer, Page and Paul Anderson

[MURDER]