2011-M-179             State of Minnesota, Respondent, vs. Jack Willis Nissalke, Appellant.

MAJORITY:  A jury found appellant, Jack Willis Nissalke, guilty of premeditated murder in the first degree and other crimes in connection with the death of Ada Senenfelder.  The district court convicted Nissalke of first-degree premeditated murder and sentenced Nissalke to life imprisonment.  This direct appeal follows.  We affirm.

 On June 6, 1985, Ada Senenfelder was found murdered in her home in Winona, Minnesota.  Senenfelder was cut and stabbed 33 times and bled to death from a stab wound to the heart.  Senenfelder’s murder went unsolved for decades.  But in 2006, Spotlight on Crime, a non-profit organization that works in cooperation with law enforcement agencies on cold cases, offered a $50,000 reward and held a press conference highlighting Senenfelder’s murder.  Witnesses eventually came forward with information linking Nissalke to the murder.

HELD:  First, the district court’s entry into the jury room to deliver corrected verdict forms and the trial exhibits a few minutes after the sworn bailiffs escorted the jury from the courtroom to the jury room did not constitute error requiring automatic reversal because the judge’s conduct did not invade the integrity of the jury’s deliberative process or the independent role and function of the jury during its deliberations.  

Second, the district court’s response to two juror-initiated generic procedural questions outside appellant’s presence was harmless.  

Third, the district court did not abuse its discretion by excluding certain alternative perpetrator testimony because appellant failed to establish that the evidence he sought to offer had an inherent tendency to connect the alternative perpetrator to the commission of the charged crime.

Fourth, the State did not commit prejudicial misconduct during its opening statement or closing argument.  

Fifth, the district court’s erroneous failure to remove a biased potential juror for cause was harmless.

Sixth, there was sufficient evidence to support appellant’s conviction.

Seventh, the State’s failure to preserve physical evidence did not violate appellant’s due process rights because appellant did not demonstrate that the evidence was lost or destroyed in bad faith.

Eighth, appellant was not denied effective assistance of counsel. 

 Affirmed.

DISSENT:  Justices Page, Paul Anderson and Meyer opined: “The court goes to great lengths to explain why the rule we set out in State v. Mims does not entitle Nissalke to a new trial.  But to paraphrase Queen Gertrude in Shakespeare’s Hamlet, the court “doth protest too much, methinks.” 

In Mims, we set forth the rule “that in any criminal case any communication relating to the case

occurring during a judge’s uninvited entry into the jury room during deliberations and in the absence of defendant and counsel constitutes reversible error.”

The record before us indicates that the trial judge in this case entered the jury room uninvited and communicated with the jury in the absence of the defendant and his counsel after the jury had begun deliberating.  Thus, I conclude that Mims applies.

Gildea (Page, Paul Anderson, Meyer, Barry Anderson, Dietzen and Stras)

               Dissent:  Page, Paul Anderson and Meyer

[MURDER] [GILDEA]