Jedidiah Dean Troxel v. State of Minnesota

STATE OF MINNESOTA

IN SUPREME COURT

A15-1294

Pennington County Wright, J.
Dissenting, Lillehaug, J., Gildea, C.J., Anderson, J.

Jedidiah Dean Troxel,

Appellant,

vs. Filed: February 17, 2016
Office of Appellate Courts
State of Minnesota,

Respondent.

______________________

Benjamin J. Butler, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul,
Minnesota; and

Alan G. Rogalla, Pennington County Attorney, Thief River Falls, Minnesota, for
respondent.
______________________

SYLLABUS

1. The district court did not abuse its discretion by denying appellant’s motion

to introduce alternative-perpetrator evidence.

2. The district court did not abuse its discretion by denying appellant’s request

for a jury instruction on the lesser-included offense of second-degree intentional murder.

3. The presiding judge at appellant’s trial was not disqualified for an

appearance of partiality.

1
 Affirmed.

OPINION
WRIGHT, Justice.

On November 5, 2013, a Pennington County jury found appellant Jedidiah Dean

Troxel guilty of three counts of first-degree murder while committing first-degree

criminal sexual conduct, Minn. Stat. §§ 609.185(a)(2), 609.342, subd. 1(c), 1(d), 1(e)(i)

(2014). Following his conviction, the district court sentenced Troxel to life in prison

without the possibility of release. Minn. Stat. § 609.185(a). Troxel did not pursue a

direct appeal. Instead, he filed a timely petition for postconviction relief, alleging that he

is entitled to relief based on three alleged errors committed by the district court: the

exclusion of alternative-perpetrator evidence; the denial of a lesser-included-offense

instruction on second-degree intentional murder; and the denial of Troxel’s motion to

remove the trial judge for an appearance of partiality. The postconviction court denied

relief on all grounds,1 and Troxel appealed. For the reasons addressed below, we affirm.

I.

Shortly before noon, on Sunday, August 26, 2012, a fisherman found the body of

T.K. near Smiley Bridge, about six miles from Thief River Falls. The victim had 37 stab

wounds, primarily to her chest and neck, and one incision wound across her neck. The

victim also had sustained blunt-force trauma to her head and face, abrasions to her neck

1
The postconviction court denied the petition without holding an evidentiary
hearing because Troxel’s petition explicitly stated that no evidentiary hearing was
requested.

2
and shoulders, bruises on her left hand and right arm, bruises on her inner thighs, and an

abrasion on her upper-inner right thigh next to her external genitalia. The victim bled to

death from her injuries.

The victim attended a party at the home of a friend, B.M., on the night before and

the morning of the murder. Troxel was present at this party. Some attendees of the party,

including the victim, played a game that involved removing clothing. During the game,

the victim removed her shirt and bra. The victim also grabbed and rubbed Troxel’s leg

and B.M.’s leg. Troxel told police that the victim rubbed his butt, tried to rub or grab his

crotch, and expressed her desire to perform oral sex on him.

The party began to break up around 6:00 a.m. on August 25, 2012. As the party

was ending, one witness saw Troxel putting on and lacing black boots. When another

witness left the party around 6:00 a.m., she saw the victim outside talking with Troxel,

while the victim was standing next to the driver’s side of Troxel’s car. Troxel told police

that he left the party around 6:00 a.m. and drove home alone. He also said that the victim

left about five minutes before he left. Troxel denied that the victim ever entered his car,

denied that the victim spoke to him outside his car after the party ended, and denied

having sex with the victim. Troxel also denied wearing his black boots on both the night

before and the morning of the murder. Instead, according to Troxel, he wore red tennis

shoes and left his black boots at home.

On August 25, 2012, at about 7:10 a.m., a local resident saw a car parked on a

gravel road near Smiley Bridge. The resident, who had 15 years of experience doing

body work on cars, thought the vehicle was a Mitsubishi Eclipse. Troxel’s car was a

3
1997 Mitsubishi Eclipse. The victim’s body was found near Smiley Bridge shortly

before noon on August 26, 2012.

Police investigators recovered semen from vaginal and cervical swabs taken from

the victim’s body. The semen from the vaginal swab contained a single-source DNA

profile that matched Troxel. The semen from the cervical swab contained a mixture of

DNA. The predominant DNA profile matched Troxel, although the victim’s husband

could not be excluded as a contributor to a minor DNA profile.

Police also recovered blood on Troxel’s shirt and in Troxel’s car on the driver-side

door handle and on the gear shift. The blood on Troxel’s shirt and on the gear shift

contained a single-source DNA profile that matched the victim’s DNA. The blood on the

door handle contained a mixture of DNA from which 99.7% of the world’s population

could be excluded, but the victim’s DNA could not be excluded. Police also found the

victim’s fingerprint on the exterior passenger window of Troxel’s car.

In addition, police found footwear impressions in the mud next to the victim’s

body. The brand logo in one impression was similar to that on a pair of black boots, with

damp mud on them, that investigators found in Troxel’s bedroom. A surveillance camera

at a liquor store recorded Troxel wearing black boots on the night before the murder.

And a witness saw Troxel wearing black boots on the morning of the murder.

A Pennington County grand jury indicted Troxel on three counts of first-degree

murder while committing a first-degree criminal sexual assault. Troxel sought a for-

cause removal of the judge presiding over his trial because the judge was negotiating to

become a prosecutor in a neighboring county. The Chief Judge of the Ninth Judicial

4
District denied this motion. Troxel then petitioned the court of appeals for a writ of

prohibition, seeking removal of the trial judge. The petition was denied. In re Troxel,

No. A13-1965, Order (Minn. App. filed Oct. 25, 2013). Troxel did not file a petition for

review with this court.

Before trial, Troxel also moved to introduce alternative-perpetrator evidence

pertaining to M.W., who sent the victim sexually explicit text messages on the morning

of the murder. The district court denied this motion. Before closing arguments, Troxel

sought a jury instruction on the lesser-included offense of second-degree intentional

murder, arguing that a rational basis existed to acquit Troxel of the first-degree murder

charge because the sexual activity between Troxel and the victim was consensual. The

district court declined to give this instruction.

The jury found Troxel guilty of the three counts of first-degree murder, and the

district court sentenced Troxel to life in prison without the possibility of release. Troxel

did not file a direct appeal. Rather, Troxel filed a timely petition for postconviction

relief, alleging that (1) the district court erroneously denied his request to introduce

alternative-perpetrator evidence; (2) the district court erroneously denied his request for a

lesser-included-offense instruction on second-degree intentional murder; and (3) the trial

judge was disqualified for an appearance of partiality under Minnesota Code of Judicial

Conduct, Rule 2.11(A). The postconviction court denied relief on each ground. This

appeal followed.

5
 II.

We first address whether the district court abused its discretion by denying

Troxel’s motion to introduce alternative-perpetrator evidence. A district court’s denial of

a motion to introduce alternative-perpetrator evidence is reviewed for an abuse of

discretion. State v. Jenkins, 782 N.W.2d 211, 224 (Minn. 2010).

The due process clauses of both the Minnesota Constitution and the United States

Constitution guarantee a defendant’s right to a fair opportunity to defend against criminal

charges. U.S. Const. amend. XIV; Minn. Const. art. 1 § 6; Jenkins, 782 N.W.2d at 226;

State v. Jones, 678 N.W.2d 1, 15-16 (Minn. 2004). This constitutional guarantee includes

the right to present evidence that a third party (an “alternative perpetrator”) committed

the crime for which the defendant was charged. Jenkins, 782 N.W.2d at 226; Jones, 678

N.W.2d at 15-16. A foundational requirement for the admission of alternative-

perpetrator evidence is that such evidence must “inherently connect[] an alternative

perpetrator to the commission of the charged crime regardless of the strength of the

State’s case.” Jenkins, 782 N.W.2d at 226; see Huff v. State, 698 N.W.2d 430, 436

(Minn. 2005). This requirement “avoids the use of bare suspicion and safeguards the

[alleged alternative perpetrator] from indiscriminate use of past differences with the

deceased.” Jones, 678 N.W.2d at 16 (quoting State v. Richardson, 670 N.W.2d 267, 280

(Minn. 2003)). If the defendant satisfies this foundational requirement, the district court

may, consistent with evidentiary rules, “admit ‘evidence of a motive of the third person to

commit the crime, threats by the third person, or other miscellaneous facts’ tending to

6
prove the third party committed the crime.” Huff, 698 N.W.2d at 436 (quoting State v.

Hawkins, 260 N.W.2d 150, 159 (Minn. 1977)).

We apply the harmless-error test to the erroneous exclusion of alternative-

perpetrator evidence. State v. Vance, 714 N.W.2d 428, 437 (Minn. 2006). A conviction

will stand despite erroneously excluded evidence when the error was harmless beyond a

reasonable doubt. State v. Hokanson, 821 N.W.2d 340, 353 (Minn. 2012); State v. Post,

512 N.W.2d 99, 102 (Minn. 1994). An error is “harmless beyond a reasonable doubt”

when, assuming the potential damage of the excluded evidence were fully realized, a

reasonable jury “would have reached the same verdict.” Post, 512 N.W.2d at 102.

Conversely, if “there is a reasonable possibility that the verdict might have been different

if the evidence had been admitted, then the erroneous exclusion of the evidence is

prejudicial.” Id.

Troxel filed an offer of proof regarding an alleged alternative perpetrator, M.W.

This proffer consisted of two types of evidence: sexually explicit text messages2 between

M.W. and the victim sent early on the morning of the murder and M.W.’s statements to

police on the day after the murder. In a police interview, M.W. admitted that he had been

texting with the victim during the morning of August 25, 2012. The victim had asked

M.W. to pick her up at a friend’s home, where she had been attending a party. M.W.

arrived at the home around 3:45 a.m. After M.W. arrived, the victim texted M.W., asking

2
The text messages included, “Y u want me”; “U got me awake and hard”; “Want
me 2 come 2 town then”; “We could go 4 a drive lol”; “How wet r u”; “Hope soon u got
me hard as hell”; “Lol whos gona cum 1st”; “Ready 4 that drive”; and “I would have
made u lose ur pantys.”

7
him to come inside to have a drink. M.W. declined and instead waited outside in his car.

After waiting outside for about an hour, M.W. got tired, drove back home, and went to

bed with his wife. M.W. never saw the victim come outside.

The district court excluded the alternative-perpetrator evidence, concluding that

Troxel had failed to establish the foundational requirement that the evidence demonstrate

“an inherent tendency to connect M.W. with the commission of the crime.” The district

court explained that the offer of proof was “perhaps even less compelling than what was

presented in the Jenkins case [782 N.W.2d 211, 228 (Minn. 2010)] as [Troxel] has not

established M.W.’s presence at the scene of the crime, let alone a connection to his actual

commission of the charged offense[s].”

We have consistently held that “mere presence” at a crime scene, without more, is

insufficient to establish an “inherent connection” to the commission of a crime. Jenkins,

782 N.W.2d at 226; see, e.g., id. at 226-27 (stating that “the [offer of proof] at most

established that [the alleged alternative perpetrator] was present [at the crime scene] at

some point on the night of the charged crime” but not that he “was present at the . . . time

of the crime”). Similarly, an alternative perpetrator’s mere communication with the

victim near the time of the crime, without more, lacks sufficient evidentiary foundation.

See State v. Williams, 593 N.W.2d 227, 234 (Minn. 1999); State v. Harris, 560 N.W.2d

672, 680 (Minn. 1997).

Here, the evidence proffered by Troxel does not even establish “mere presence.”

There is no evidence that M.W. was at or near the crime scene—Smiley Bridge—when

the murder occurred. Rather, the proffered evidence merely shows that, earlier that

8
morning, M.W. and the victim communicated by text message at a different location, the

party at B.M.’s home. M.W.’s mere communication with the victim on the same day of

the murder is insufficient to satisfy our foundational requirement. See, e.g., Williams,

593 N.W.2d at 234 (“While there was some evidence that [the alleged alternative

perpetrator] may have placed telephone calls to [the victim’s] house on the day of the

murder, Williams offered no evidence placing [the alleged alternative perpetrator] at or

near [the victim’s] house on the night of the murder.”); Harris, 560 N.W.2d at 680 (“The

only direct connection between [the alleged alternative perpetrator] and [the victim] on

the night of her murder was that witnesses saw them talking outside of a bar after

closing”).

Although the text messages between M.W. and the victim were sexually explicit,

and suggest a desire to have sex and to “go 4 a drive” on the morning of the murder, this

evidence does not inherently connect M.W. to the victim’s murder. Troxel argues that

M.W.’s sexually explicit messages, and his unfulfilled quest to have a sexual rendezvous

with the victim, established a motive for M.W., as a “spurned potential lover,” to rape

and kill the victim. There is limited, if any, probative value in the argument that M.W.’s

sexual desire created a motive to rape and kill, absent any overt indication of violence,

threats, anger, jealousy, or frustration (beyond the fact that a proposed rendezvous did not

occur). Even if we assume that M.W. had a potential motive to rape and kill, any such

purported motive fails to inherently connect M.W. to the commission of the victim’s

murder at the time and place that it occurred. “Evidence of motive alone does not have

9
the inherent tendency to connect a third party to the commission of the crime.” State v.

Larson, 787 N.W.2d 592, 598 (Minn. 2010).

In addition to this purported motive, Troxel argues that M.W. had an

“opportunity” to kill the victim because “no one can attest to [M.W.’s] whereabouts after

he sat outside [B.M.’s home]” waiting for the victim. M.W. told police that he drove

back home and went to bed with his wife. Troxel dismisses this alibi because the source

of this evidence was M.W.’s “self-serving statements” to police. But even if M.W. had

not made a statement and his whereabouts were completely unknown, the lack of an alibi

does not establish sufficient foundation to present alternative-perpetrator evidence. The

defendant must proffer foundational evidence that inherently connects the alleged

alternative perpetrator to the commission of the crime. Mere speculation is insufficient.

See State v. Nissalke, 801 N.W.2d 82, 102 (Minn. 2011) (“[B]are assertions as to what

could have happened are not evidence and do not have an ‘inherent tendency’ to connect

[the alleged alternative perpetrators] to the crime.”).

The totality of Troxel’s proffered evidence, including M.W.’s presence near the

party, the communication with the victim by text message, the purported motive as a

“spurned potential lover,” and the purported “opportunity” to commit the crime based on

the absence of a confirmed alibi, is insufficient to satisfy the foundational requirement

establishing M.W.’s inherent connection to the victim’s murder. Because Troxel failed to

present foundational evidence that inherently connected M.W. to the commission of the

murder, the district court did not abuse its discretion by denying Troxel’s motion to

introduce alternative-perpetrator evidence.

10
 III.

We next consider whether the district court abused its discretion by denying a jury

instruction on the lesser-included offense of second-degree intentional murder. “We

review a district court’s denial of a lesser-included offense instruction for abuse of

discretion.” State v. Van Keuren, 759 N.W.2d 36, 39 (Minn. 2008).

It is well-established that, when “the evidence warrants a lesser-included offense

instruction, the trial court must give it.” State v. Dahlin, 695 N.W.2d 588, 597 (Minn.

2005) (Dahlin I). A lesser-included offense instruction is warranted when (1) the lesser

offense is included in the charged offense; (2) the evidence provides a rational basis for

acquitting the defendant of the charged offense; and (3) the evidence provides a rational

basis for convicting the defendant of the lesser-included offense. Id. at 595 (citing State

v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975)). When determining

whether to provide a lesser-included-offense instruction, a district court views the

evidence in the light most favorable to the party requesting the instruction. Id. at 596.

The district court “may not weigh the evidence or make credibility determinations”

because those tasks are reserved for the jury. Id. at 596-98.

Unless the defendant was prejudiced by the district court’s erroneous denial of a

lesser-included-offense instruction, we will not reverse. Id. at 598-99. To determine

whether the defendant was prejudiced, an appellate court “should consider the

instructions actually given and the verdict rendered by the jury.” Id. A defendant is

prejudiced when the jury may have convicted the defendant of only the lesser offense had

the lesser-included-offense instruction been given. Id. at 599 & n.2.

11
 In Dahlin I, we reviewed the denial of lesser-included-offense instructions on

second-degree intentional murder and second-degree unintentional felony murder. 695

N.W.2d at 599. We began our analysis by determining the elements that distinguished

the charged offense (first-degree murder) from the lesser second-degree murder offenses,

including the elements of intent and premeditation. See id. at 599-601. We held that,

when the evidence was viewed in the light most favorable to the defendant, the trial court

“abused its discretion in determining that no rational basis existed in the evidence for the

jury to find that [the defendant killed the victim] without premeditation.” Id. at 601.

Here, the element distinguishing the instructions on first-degree premeditated

murder and the requested instructions on second-degree intentional murder was forced

sexual penetration. Compare Minn. Stat. § 609.185(a)(2) (providing that a person is

guilty of first-degree murder if that person “causes the death of a human being while

committing or attempting to commit criminal sexual conduct in the first or second degree

with force or violence”), and Minn. Stat. § 609.342, subd. 1(c), 1(d), 1(e)(i) (providing

that a person is guilty of criminal sexual conduct in the first degree if that person engages

in sexual penetration, by use of force or coercion, by causing reasonable fear of imminent

great bodily harm, or by use of a dangerous weapon), with Minn. Stat. § 609.19, subd.

1(1) (2014) (providing that a person is guilty of second-degree intentional murder if that

person “causes the death of a human being with intent to effect the death of that person”).

There was clearly a rational basis to conclude that Troxel committed the second-

degree intentional murder. The intent to take the victim’s life was established by

stabbing her 37 times. Therefore, we focus our analysis on whether, as the parties frame

12
the question, there also was a rational basis for the jury to acquit on the first-degree

murder charges by finding that the victim “consented” to Troxel’s sexual penetration, that

is, Troxel sexually penetrated the victim without causing a reasonable fear of imminent

great bodily harm, without force or coercion, and without the use of a dangerous weapon.

See Minn. Stat. §§ 609.185(a)(2), 609.342, subd. 1(c), 1(d), 1(e)(i).

Even when viewing the evidence in the light most favorable to Troxel, the

evidence did not present a rational basis to conclude that Troxel’s sexual penetration of

the victim was consensual. The “light most favorable” standard does not preclude the

consideration of undisputed physical evidence when there is no rational basis for the jury

to disbelieve such evidence. See State v. Goodloe, 718 N.W.2d 413, 423 & n.7 (Minn.

2006) (“While it is theoretically possible that the jury could have believed all of the

state’s evidence except the evidence relevant to premeditation, we cannot discern any

rational basis for the jury to have done so.”). The physical evidence indicates that Troxel

raped the victim. The victim was found nude from the waist down. Her shirt was pushed

up around her breasts. And she was lying in a muddy ditch amid tall grass near Smiley

Bridge. Mud covered her legs up to her knees. The forensic examination of the victim’s

body produced no evidence that semen had leaked from her vagina, which likely would

have occurred had the victim stood up or walked around after Troxel deposited his

semen. Consequently, the physical evidence demonstrates that the sexual penetration

likely occurred in that mud-filled ditch, which is an improbable location for consensual

sexual activity. Moreover, the medical examiner observed fresh-appearing bruises on the

inner aspects of the victim’s right and left thighs, and a fresh-appearing abrasion on the

13
“upper inner aspect” of her right thigh, next to her external genitalia. See State v.

Murphy, 380 N.W.2d 766, 771-72 (Minn. 1986) (holding that there was “no proof” that

would rationally support a lesser offense of indecent liberties, based on evidence that

“clearly support[ed]” rape, including the absence of clothing, defensive wounds on the

victim’s hands, and other injuries). Thus, the placement, position, and condition of the

victim’s body were inconsistent with consensual sexual activity.

This physical evidence regarding the nature of the victim’s injuries and the lack of

semen leakage was established primarily by testimony and exhibits from the State’s

medical expert. Indeed, this evidence was not disputed. Troxel’s counsel did not cross-

examine this expert witness, nor did the defense offer any evidence countering this expert

testimony. And Troxel does not now dispute any aspect of the physical evidence

regarding the victim’s injuries or the absence of semen leakage. Thus, this undisputed

physical evidence may be considered when determining whether a lesser-included-

offense instruction was warranted, as there was no rational basis for the jury to have

disbelieved it. Goodloe, 718 N.W.2d at 423 & n.7.

Troxel relies on the following facts in support of his argument that a rational basis

existed to find consensual penetration: the attendees of the party, including the victim,

played a game that involved removing clothing; the victim took off her shirt and bra; a

witness saw the victim touch Troxel’s leg; Troxel told police that the victim rubbed his

butt and tried to rub or grab his crotch; and Troxel told police that the victim said she

wanted to perform oral sex on him. When considered “in the light most favorable” to

Troxel, Dahlin I, 695 N.W.2d at 594, this evidence merely establishes that, while at the

14
party, the victim was aroused and generally interested in sexual activity. This evidence

does not rationally support a finding that, later that morning, the victim consented to

Troxel penetrating her vagina with his penis, in a muddy ditch near Smiley Bridge, in a

manner that resulted in bruises to her inner thighs and an abrasion next to her genitals.

Cf. In re Interest of M.T.S., 609 A.2d 1266, 1278 (N.J. 1992) (interpreting a state statute

on rape as requiring the factfinder to decide “whether the defendant’s act of penetration

was undertaken in circumstances that led the defendant reasonably to believe that the

alleged victim had freely given affirmative permission to the specific act of sexual

penetration”).

Our conclusion is consistent with our decision in Murphy, 380 N.W.2d at 772. We

held in Murphy that there was “no proof” of mere sexual contact that would support a

conviction of a lesser offense (indecent liberties), based on uncontroverted physical

evidence that “clearly support[ed]” a finding that the defendant raped the victim in an

alley. This physical evidence included the absence of clothing, the defensive wounds

present on the victim’s hands, a fractured jaw, and facial injuries. Id. Here, although

evidence exists that the victim was sexually interested in Troxel during the party, the

record provides no rational basis to conclude that Troxel and the victim engaged in

consensual sexual penetration in the muddy ditch near Smiley Bridge. The undisputed

physical evidence clearly supports a finding of rape.

A district court may deny the lesser-included-offense instruction when the

evidence, viewed in the light most favorable to the defendant, is insufficient to provide a

rational basis to acquit on the charged offense and convict on the lesser offense. Dahlin

15
I, 695 N.W.2d at 595. Applying that rule here, even when the record is viewed in the

light most favorable to Troxel, with all doubts resolved in his favor, there is insufficient

evidence for a jury to rationally find that the victim consented to the sexual penetration.

Therefore, the district court did not abuse its discretion by denying an instruction on the

lesser-included offense of second-degree intentional murder.

IV.

We next consider whether the presiding judge at Troxel’s jury trial was

disqualified based on an appearance of partiality under the Minnesota Code of Judicial

Conduct, Rule 2.11(A). Our review of this issue is de novo. In re Jacobs, 802 N.W.2d

748, 750 (Minn. 2011); State v. Dorsey, 701 N.W.2d 238, 246 (Minn. 2005).

A.

Judge Donald Aandal was assigned on August 28, 2012, to preside over Troxel’s

trial in Pennington County District Court, which is in the Ninth Judicial District.

Approximately five months later, on January 16, 2013, Judge Aandal issued an order for

recusal, which stated:

Whereas this Court has engaged in employment negotiations with the law
firms Drenckhahn & Williams, P.A., Galstad, Jensen & McCann, P.A., and
the Marshall County Attorney’s Office, and whereas this Court is therefore
disqualified from hearing cases involving the above-listed entities, it is
therefore ordered that this Court shall not hear or be assigned any cases
involving those entities.

On September 26, 2013, Troxel filed a motion to remove Judge Aandal for cause

based on an appearance of partiality. Minn. R. Crim. P. 26.03, subd. 14(3) (providing

that a judge may be removed if “disqualified under the Code of Judicial Conduct”);

16
Minn. R. Jud. Conduct 2.11(A) (providing that a judge “shall disqualify himself or

herself in any proceeding in which the judge’s impartiality might reasonably be

questioned”). In support of this motion, Troxel filed an affidavit from his attorneys that

stated, in relevant part, that Judge Aandal was in the “final stages” of negotiations to

purchase a law firm in Marshall County and “to be appointed to the Marshall County

Attorney’s Office as prosecutor”; Judge Aandal “intended to resign his judgeship” with

Pennington County and “take employment with Marshall County on or about January 1,

2014”; “Marshall County and Pennington County are adjacent and . . . 29 miles apart”;

“Marshall County and Pennington County law enforcement agencies often share

resources and cooperate”; and these agencies, and the county attorney offices, use the

services of both the Minnesota Bureau of Criminal Apprehension and the Minnesota

Attorney General’s Office.

The Chief Judge of the Ninth Judicial District denied Troxel’s motion to remove

Judge Aandal. State v. Troxel, No. 57-CR-12-711 (Minn. Dist. Ct. Oct. 10, 2013).

Troxel then filed a petition for a writ of prohibition with the court of appeals. The court

of appeals denied the writ of prohibition, concluding that Troxel “has not established that,

based on an objective examination of the circumstances, [Judge Aandal’s] impartiality

might reasonably be questioned.” In re Troxel, A13-1965, Order at 4 (Minn. App. Oct.

25, 2013). Troxel did not file a petition for review with our court. Troxel’s trial

proceeded with Judge Aandal presiding.

17
 B.

Before addressing the merits of Troxel’s judge-removal claim, we first consider

whether Troxel forfeited appellate review of this issue when he failed to file a petition for

review. In State v. Dahlin, 753 N.W.2d 300 (Minn. 2008) (Dahlin II), we held that (1) a

party must seek a writ of prohibition from the court of appeals to preserve a peremptory

removal issue, id. at 303; and (2) “a party must timely petition this court for review of the

denial of a writ of prohibition when the issue involves the right of peremptory removal,”

and a party’s “failure to do so constitutes waiver of further review,” id. at 304-05.

After the court of appeals denied Troxel’s writ of prohibition, Troxel did not

petition for further review by our court. It is unclear whether forfeiture3 applies here

because our decision in Dahlin II addressed peremptory removals, Minn. R. Crim. P.

26.03, subd. 14(4), but Troxel sought a for-cause removal of Judge Aandal, Minn. R.

Crim. P. 26.03, subd. 14(3).

In Hooper v. State, 838 N.W.2d 775 (Minn. 2013), we declined to resolve whether

the Dahlin II forfeiture rule extends to for-cause removal requests. We stated that, “a

defendant’s failure to seek a writ of prohibition constitutes waiver of further appellate

review ‘when the issue involves the right of peremptory removal.’ However, we have

never decided whether the waiver rule extends to . . . removal of a judge for cause.” Id.

3
Dahlin II used the term “waiver,” 753 N.W.2d at 305, but this court has recently
emphasized the distinction between waiver, which refers to the intentional relinquishment
of a known right, and forfeiture, which refers to the failure to make a timely assertion of a
right. State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015) (“We . . . use the word
‘forfeiture’ when describing a failure to make a timely assertion of a right.”).

18
at 789 n.4 (citation omitted). We then declined to resolve this forfeiture question because

the removal claim failed on its merits. Id.

In State v. Finch, 865 N.W.2d 696, 700-01 (Minn. 2015), we held that a defendant

is not required to petition for a writ of prohibition to avoid forfeiture of a for-cause judge-

removal claim. Thus, Finch confirms that the first aspect of Dahlin II—that a party is

required to petition for a writ of prohibition to avoid forfeiture of a peremptory-removal

issue—does not extend to for-cause removal requests. But Finch did not resolve the

application of the second aspect of Dahlin II—that is, if a party chooses to petition for a

writ of prohibition, and the court of appeals denies the writ, whether the party must file a

petition for review with our court to preserve the claim. Since our decision in Finch, we

have not squarely addressed whether this second aspect of the Dahlin II forfeiture rule

extends to for-cause removal requests. We decline to resolve this forfeiture issue here

because Troxel’s judge-removal claim fails on its merits.

C.

A judge “must not preside at a trial or other proceedings if disqualified under the

Code of Judicial Conduct,” Minn. R. Crim. P. 26.03, subd. 14(3), and a judge “shall

disqualify himself or herself in any proceeding in which the judge’s impartiality might

reasonably be questioned,” Minn. R. Jud. Conduct 2.11(A). “Impartiality” means the

“absence of bias or prejudice in favor of, or against, particular parties or classes of

parties, as well as maintenance of an open mind in considering issues.” State v. Pratt,

813 N.W.2d 868, 876 (Minn. 2012) (quoting Terminology, Minnesota Code of Judicial

Conduct). A judge is presumed to be “able to ‘approach every aspect of each case with a

19
neutral and objective disposition.’ ” Jacobs, 802 N.W.2d at 754 (quoting Dorsey, 701

N.W.2d at 247). A judge is disqualified for a lack of “impartiality” under Rule 2.11(A) if

a “reasonable examiner,” from the perspective of an objective “layperson with full

knowledge of the facts and circumstances,” would “question the judge’s impartiality.”

Pratt, 813 N.W.2d at 876 & n.8 (quoting Jacobs, 802 N.W.2d at 753).

In Jacobs, we concluded that a reasonable examiner would not question a judge’s

impartiality based on his spouse’s employment in the Hennepin County Attorney’s Office

(HCAO), even though that office prosecuted the case, because the HCAO handled a high

volume and a wide variety of cases; the spouse had no personal involvement in the case;

the spouse had no financial interest in the outcome of the case; and, although the spouse

worked for the criminal appellate division of the HCAO at one time, the spouse worked

for a different division of the HCAO at the time of trial. 802 N.W.2d at 753.

Conversely, in Pratt, we concluded that a reasonable examiner would question a

judge’s impartiality because the judge was retained to provide expert-witness services in

a civil trial for the HCAO, while presiding at a trial prosecuted by the HCAO. 813

N.W.2d at 876-77. Pratt is distinguishable from other cases because the judge was

“actually retained by the prosecuting authority at the same time the prosecuting authority

was appearing before the judge.” Id. at 878. In addition, “the judge stood to benefit

financially from being retained” by the HCAO, and as an expert witness for HCAO, the

judge “was to act in a way that was aligned with the HCAO’s interests.” Id. at 877.

Here, unlike in Pratt, Judge Aandal was not retained by the Pennington County

Attorney’s Office (PCAO); he was not expected to act in a way that was aligned with the

20
interests of the PCAO; and he did not stand to benefit financially from the PCAO.

Rather, during Troxel’s trial, he was in negotiations to purchase a law firm in Marshall

County and work for the Marshall County Attorney’s Office (MCAO).

Troxel cites dicta from Pratt and from several decisions of other jurisdictions to

support the general proposition that a judge places impartiality in question by engaging in

employment negotiations for a position as a prosecutor at the time of the trial. See Pratt,

813 N.W.2d at 877-78 (“Some courts have found that merely negotiating for future

employment might cause a reasonable observer to question a judge’s impartiality.”); see

also Pepsico, Inc. v. McMillen, 764 F.2d 458, 459-60 (7th Cir. 1985); Scott v. United

States, 559 A.2d 745, 746-50 (D.C. Cir. 1989); DeNike v. Cupo, 958 A.2d 446, 449 (N.J.

2008). These cases are distinguishable. In each of these cases, the judge was employed

by, or seeking future employment with, an entity currently appearing before the judge.

Here, by contrast, Judge Aandal was not employed by, or seeking employment with, the

PCAO, which was prosecuting Troxel’s case. Nor did the MCAO appear in, or associate

with, Troxel’s case. Moreover, our decision in Pratt did not hold that a judge’s mere

negotiation for future employment created the appearance of partiality. Rather, we held

that the facts of Pratt were “problematic . . . because . . . the judge was actually retained

by the prosecuting authority.” 813 N.W.2d at 878 (emphasis added).

Troxel also cites law review articles and other secondary sources to support the

general propositions that prosecutors must “adopt the role of an advocate” for the

government; that prosecutors “would be aligned . . . ideologically” with other

prosecutors; and that an advocacy function is not “consistent with the neutral role” of a

21
judge. Although these propositions are not incorrect, they do not establish that

negotiating to become a prosecutor in the future results in the appearance of a judge

becoming an advocate, re-aligning his or her ideology, or departing from a neutral role.

No precedent directly supports the argument that a judge is disqualified for an appearance

of partiality based solely on employment negotiations with a county attorney’s office

when that office is outside the county in which the trial proceeds, that office is not

appearing before the judge, and there are no indications that the office has had any

involvement or interest in the case.4 Here, Judge Aandal took all necessary steps to avoid

4
The dissent contends that a reasonable examiner would question Judge Aandal’s
impartiality because both the MCAO and PCAO prosecute criminal cases “on behalf of
the State” and because “the State” was the party appearing before Judge Aandal in
Troxel’s case. Thus, the dissent contends, Judge Aandal should have recused “from all
other criminal cases . . . in which the State was a party.” Under the effect of this broad
rule, if a judge seeks employment with any prosecutorial entity in the entire State of
Minnesota, that judge would be required to recuse from all criminal cases, regardless of
the circumstances, because all criminal cases are prosecuted on behalf of “the State.”
This overly broad application of Rule 2.11(A) is not directly supported by any of our
precedent, and in particular, it is inconsistent with Jacobs, in which we held that an
appearance of partiality did not arise in a criminal case based on the employment of a
judge’s spouse, who worked for “the State” through the HCAO, because the HCAO
handled a high volume and a wide variety of cases; the spouse had no involvement or
financial interest in the outcome of the case; and the spouse did not work for the criminal
appellate division of the HCAO at the time of trial. 802 N.W.2d at 753. Similarly here,
the State of Minnesota handles a high volume and wide variety of cases and the MCAO
had no involvement or interest in the outcome of Troxel’s case.

Moreover, the dissent’s bright-line rule, requiring recusal from all criminal cases
in the State of Minnesota if a judge seeks prosecutorial employment, is inconsistent with
our standard for evaluating an appearance of partiality, which depends on an objective
examination of all facts and circumstances of each particular case. Jacobs, 802 N.W.2d
at 752 (“Whether a judge’s impartiality may reasonably be questioned is determined by
an objective examination into the circumstances surrounding the removal request.”).
Here, the objective examination of all facts and circumstances related to Troxel’s
(Footnote continued on next page.)

22
an appearance of partiality by ordering his own recusal from any cases involving the

MCAO.

Despite Troxel’s assertions that neighboring counties sometimes cooperate, or

share resources and services, the Chief Judge of the Ninth Judicial District found that

there is no evidence that the MCAO had “any interest in this case or that the outcome

would have an effect upon Judge Aandal’s future employment plans” or that the MCAO

“ha[d] any involvement in [Troxel’s] case.” These findings are supported by the record.

Moreover, Troxel has failed to rebut the presumption that Judge Aandal approached

“every aspect of [Troxel’s] case with a neutral and objective disposition.” See Jacobs,

802 N.W.2d at 754 (quoting Dorsey, 701 N.W.2d at 247). For these reasons, a

(Footnote continued from previous page.)
removal request leads us to conclude that a reasonable examiner, who is fully informed of
those facts and circumstances, would not question Judge Aandal’s impartiality. See also
id. at 753 (“[T]he appropriate standard for determining whether a judge must be
disqualified due to an appearance of partiality is whether a reasonable examiner, with full
knowledge of the facts and circumstances, would question the judge’s impartiality.”).

In response, the dissent contends that “this case is not Jacobs” and cites three
factual differences. Nonetheless, other similarities with Jacobs and distinctions from
Pratt support our decision. In Pratt, the facts were problematic because the judge was
actually retained by the prosecutorial office that appeared before the judge. 813 N.W.2d
at 878. But here, Judge Aandal negotiated for future employment with a different office
from the one appearing before him. Moreover, in Jacobs we recognized the significance
of different prosecutorial offices and divisions when we stated that, although the judge’s
spouse had worked as an attorney in the criminal division of the HCAO—the office
appearing before the judge—the spouse’s affiliation became less problematic when she
transferred to a separate division of the HCAO before the case was filed. Jacobs, 802
N.W.2d at 753 & n.1. Here, the distinction is even greater because Judge Aandal never
negotiated to join, let alone worked for, any division of the PCAO. Rather, he negotiated
to work in the future for a different office, the MCAO. And, as we conclude above, there
is no indication that the MCAO had any involvement or interest in this case.

23
reasonable and objective examiner, with full knowledge of the above facts and

circumstances, would not question Judge Aandal’s impartiality. Therefore, Judge Aandal

was not disqualified under Rule 2.11(A) of the Code of Judicial Conduct.

V.

For the foregoing reasons, we affirm the postconviction court’s denial of relief on

all grounds.

Affirmed.

24
 DISSENT

LILLEHAUG, Justice (dissenting).

I join Parts I, II, and III of the opinion of the court, but I respectfully disagree with

Parts IV and V. The district court judge should not have presided over this first-degree

murder case brought by the State of Minnesota at the time when he was actively

negotiating to become a county attorney whose duties included prosecuting on behalf of

the State. That he did so created an appearance that he lacked impartiality. To maintain

public confidence in Minnesota’s judiciary, I would reverse and remand for a new trial.

I.

The threshold question is whether the issue of the district court judge’s

disqualification is properly before our court. The defendant, Jedidiah Dean Troxel,

moved to disqualify the judge. The motion was denied by the chief judge of the judicial

district. Troxel sought a writ of prohibition from the court of appeals and moved the

district court to continue the trial pending decision on the petition. The district court

judge denied the motion for a continuance and, the next day, began the jury trial. Three

days later, in the middle of trial, the court of appeals denied the petition. Troxel did not

petition our court for expedited review or ask us to halt the trial.

The State contends that, by failing to petition for review, Troxel forfeited the issue

of disqualification.1 The court’s opinion avoids resolving this contention and, instead,

1
The State also argues that the disqualification issue is barred by the doctrine of
collateral estoppel. Collateral estoppel “precludes parties from relitigating issues which
are identical to issues previously litigated and which were necessary and essential to the
(Footnote continued on next page.)

D-1
goes directly to the merits. I agree with the majority that we need not answer definitively

whether, when a party chooses to petition for a writ of prohibition and the court of

appeals denies the writ, the party must file a petition for review or be bound by the

denial.

Nevertheless, without proposing a general rule of law, my view is that, in the

extenuating circumstances of this case, Troxel did not forfeit the disqualification issue.

In State v. Finch, 865 N.W.2d 696 (Minn. 2015), we allowed a defendant to pursue

judicial disqualification on appeal from an order revoking probation, rather than seek an

immediate writ of prohibition, because the defendant’s probation revocation proceeding

started almost immediately after his motion for disqualification was denied. We noted

that “Finch did not have time to seek review after his motion was denied.” Id. at 702.

The circumstances here are similar. While Troxel’s petition for a writ was pending, the

district court judge denied Troxel’s motion for a continuance and, the next day, began the

jury trial. Trial was well underway when the court of appeals denied the petition.

In light of this unusual chronology, I would not hold against Troxel that he did

not, in the middle of a jury trial, seek expedited review and an order to halt the trial. To

so hold would not be in the “interest of justice.” See Minn. R. Civ. App. P. 103.04;

(Footnote continued from previous page.)
former resulting judgment.” Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 650
(Minn. 1990). But the doctrine is inapplicable because there is no former judgment here.
This matter is before the court on Troxel’s appeal from the judgment in this case. True,
this is a petition for postconviction relief in lieu of a direct appeal, but postconviction
proceedings and appeals are part of the same case as the trial. Hooper v. State, 680
N.W.2d 89, 92 (Minn. 2004).

D-2
Minn. R. Crim. P. 28.02, subd. 11. Further, the parties have fully briefed the question of

disqualification, see In re Welfare of S.L.J., 782 N.W.2d 549, 554 (Minn. 2010) (noting

the fact that “both parties have fully briefed the question” militates in favor of review

notwithstanding a party’s failure to immediately appeal from an earlier order), and the

opinion of the court decides it.

Accordingly, I must now turn to the question of whether the district court judge

was disqualified.

II.

The public’s faith and confidence is critically important to our criminal justice

system. Rule 1.2, cmt. 3, Minnesota Code of Judicial Conduct. Accordingly, judges

must avoid both actual impropriety and the appearance of impropriety. Id., Rule 1.2.

Under Rule 2.11(A) of the Code of Judicial Conduct, a judge is disqualified in any

proceeding “in which the judge’s impartiality might reasonably be questioned.” A judge

is disqualified “due to an appearance of partiality” if a “reasonable examiner, with full

knowledge of the facts and circumstances, would question the judge’s impartiality.” In

re Jacobs, 802 N.W.2d 748, 753 (Minn. 2011).2 As we recognized in State v. Pratt,

under the Code, “impartiality” means “the absence of bias or prejudice in favor of, or

against, particular parties or classes of parties . . .” 813 N.W.2d 868, 876 (Minn. 2012).

Whether a judge is disqualified presents a question of law, which we review de novo. Id.

2
The “reasonable examiner” is not an attorney or a judge. It is “an objective,
unbiased layperson with full knowledge of the facts and circumstances.” Id.

D-3
 Applying this standard, the issue is whether a reasonable examiner would question

this district court judge’s ability to be impartial. The answer to this question is “yes”

because this judge created at least the appearance of partiality in favor of one of the

parties in this case: the State.

Here, the parties are identified in the case caption: State of Minnesota v. Jedidiah

Dean Troxel. The State was a party. The Minnesota Attorney General and the

Pennington County Attorney were attorneys representing, and prosecuting on behalf of,

the State.

It is worth recognizing that the district court judge was concerned about the

appearance of impropriety here, disclosed his negotiations to become the Marshall

County Attorney, and properly recused from cases involving that office. But, critically,

he did not recuse from other criminal cases, including this one, in which the State was a

party.

By continuing to preside over criminal cases in which the State was a party, while

actively negotiating to become a county attorney—the advocate for the State in criminal

cases—a reasonable examiner would question the judge’s ability to be impartial. Put

another way, a reasonable examiner would see that the judge was seeking to leave his

position as umpire3 in order to join one of the teams: the State. In fact, he did just that;

he joined the State’s team about two months after he sentenced Troxel.

3
As Chief Justice John Roberts famously explained: “Judges are like umpires.
Umpires don’t make the rules, they apply them. The role of an umpire and a judge is
critical. They make sure everybody plays by the rules . . . .” Confirmation Hearings on
(Footnote continued on next page.)

D-4
 But, responds the State, the district court judge sought to become the Marshall

County Attorney, not the Pennington County Attorney. The two county attorneys, asserts

the State, are “separate, and one has no control over the other.” The court adopts this

distinction between prosecuting offices.

However, the State and the court view the issue through too narrow a lens. The

State, not a county attorney or the attorney general, was the real party in interest in the

case before the district court judge. Whether the judge’s hoped-for compensation would

flow from county or state coffers, the judge was working actively to secure employment

that included representing the very party in the case then before him: the State.

Further, we would be myopic if we failed to see the structure of the relationships

between and among the county attorneys and the attorney general. The State is their

client in common. They share a mission: to prosecute violations of the state criminal

code. They work closely with the State’s Bureau of Criminal Apprehension.4 All county

attorneys and the attorney general are members of the statutorily-created “council”

known as the Minnesota County Attorneys Association. Minn. Stat. § 388.19 (2014).5

(Footnote continued from previous page.)
the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States Before the
Senate Comm. on the Judiciary, 109th Cong. 55 (2005).
4
Investigators from the Bemidji regional office of the BCA testified in this case.
Both Pennington and Marshall are counties covered by the Bemidji regional office and
the Roseau field office.
5
The MCAA trains county attorneys and their assistants. Minn. Stat. § 388.19,
subd. 4(a). Further, the county attorneys speak with a unified voice through, for example,
amicus briefs and comments on proposed rules of procedure.

D-5
Especially in greater Minnesota, the county attorneys and the attorney general work

closely together in major criminal matters, handling each other’s cases when faced with

specific conflicts or heavy caseloads.6 Indeed, in this case, both the trial and this appeal

were handled primarily by the attorney general. A reasonable examiner would not view

the county attorneys, or the attorney general, as “separate.” Rather, a reasonable

examiner would view them to be part of the same team.

The fact situation presented here—a judge presiding over a trial in which the State

is a party at the same time the judge is negotiating to represent the State—is reminiscent

of Scott v. United States, 559 A.2d 745 (D.C. 1989), which we cited favorably in Pratt,

813 N.W.2d at 877. In Scott, a District of Columbia Superior Court judge presided over a

trial in which the United States was a party. Id. at 747. The government was represented

by the United States Attorney. Id. At the same time the judge was presiding, he was

negotiating for employment with the Department of Justice’s Executive Office for United

States Attorneys. Id. The position he sought—Assistant Director for the Debt Collection

Staff—had little, if any, connection to the day-to-day trial work of the United States

Attorney. Id. The job was managerial with no direct litigation control. Id.

Yet, said the District of Columbia Court of Appeals, the fact that the two

components of a large cabinet department were separate as a practical matter did not

solve the appearance problem: the judge was presiding over a criminal case prosecuted

6
An example is a pending case in our court, State v. Byron David Smith, Nos.
A14-0942, A15-0300. The Washington County Attorney was designated as Special
Assistant Morrison County Attorney to prosecute a first-degree murder case.

D-6
by one component of the department while the judge was negotiating with another

component. Id. at 750.

In the same vein, and considering all of the circumstances here, a reasonable

examiner would reasonably question why this district court judge would preside over a

criminal case prosecuted by the State during the very time the judge was negotiating for a

job that would include prosecuting for the State in other criminal cases. 7 He should not

have presided over this trial.

In so concluding, I acknowledge that Troxel has not proven any actual bias. Nor

should my conclusion be read to impugn the reputation of the district court judge, who is

now a county attorney. Rather, this is about our high standard of impartiality; judges

must both be fair and appear to be fair. Rule 1.2, Code of Judicial Conduct. Our legal

system can function “only so long as the public, having confidence in the integrity of its

judges, accepts and abides by judicial decisions.” Complaint Concerning Winton, 350

N.W.2d 337, 340 (Minn. 1984). As we have said, “The administration of justice should

be beyond all suspicion of possible favoritism. Where the ability of a judge to try a cause

fairly and impartially is [reasonably] questioned, he should have no reluctance in

7
I agree with the court that disqualification depends on all of the facts and
circumstances of each case. Therefore, I disagree with the court that disqualification here
would be inconsistent with In re Jacobs, 802 N.W.2d 748 (Minn. 2011), which involved
a district court judge presiding over a case prosecuted by the employer of the judge’s
spouse. In Jacobs, there were three more degrees of separation: (1) the spouse (2) was
not in the criminal division (3) and was an assistant county attorney. Indeed, we
distinguished Jacobs in Pratt, 813 N.W.2d at 877: “Unlike Jacobs, here it was the judge
himself . . . .” In this case, it was the judge himself. He was seeking to become a
prosecutor—not as an assistant, but as the chief prosecutor of the county right next door.
This case is not Jacobs.

D-7
stepping aside.” Jones v. Jones, 242 Minn. 251, 264, 64 N.W.2d 508, 516 (1954). The

advice of the supreme court of a neighbor state is wise: “judges should err on the side of

caution by disqualifying themselves in cases raising close questions [regarding the

appearance of partiality].” State ex rel. Heitkamp v. Family Life Servs., Inc., 616 N.W.2d

826, 844 (N.D. 2000).

III.

Because the district court judge should not have presided, I must next consider

whether a reversal is required. As we discussed in Finch, 865 N.W.2d at 705, we have

not firmly decided whether a failure to disqualify for an apparent lack of impartiality is

structural error or is subject to the three-factor test in Liljeberg v. Health Services

Acquisition Corp., 486 U.S. 847, 864 (1988), which we invoked in Powell v. Anderson,

660 N.W.2d 107, 120 (Minn. 2003). Those three factors are (1) the risk of injustice to the

parties, (2) the risk that denial of relief will produce injustice in other cases, and (3) the

risk of undermining the public’s confidence in the judicial process. Powell, 660 N.W.2d

at 121.

Although it is a close question, I conclude that, even applying the less-stringent

three-factor test, reversal is appropriate here. The risk of injustice to the parties is slight.

On the other hand, there is a risk that denying relief will produce injustice in other cases

in which judges preside while negotiating their next jobs. As we said in Pratt, which

involved a presiding judge as an expert witness retained by the county attorney appearing

before him, “reversing in this case will have prophylactic value.” 813 N.W.2d at 878.

What tips the balance toward reversal is the third factor: the public’s confidence in the

D-8
judicial process is undermined when we do nothing in a criminal case over which a judge

presided while seeking to represent one of the parties—the State—as a prosecutor. As

the concurrence in Pratt, applying Powell, aptly noted: “The citizens of Minnesota rely

on the court to be vigilant in making sure that all cases will be decided in accordance

with the highest traditions of the judiciary.” Id. at 879 (Dietzen, J., concurring).

The court should have reversed and remanded for a new trial, presided over by

another judge. Therefore, I respectfully dissent.

GILDEA, Chief Justice (dissenting).

I join in the dissent of Justice Lillehaug.

ANDERSON, Justice (dissenting).

I join in the dissent of Justice Lillehaug.

D-9