State v. Beecroft

GILDEA, Chief Justice

(dissenting).

The plurality reverses the guilty verdict in this case, not because it concludes that there was prejudicial error in the trial, but because the plurality concludes that reversal is in the “interests of justice.” In my view, this is not a case where we should resort to our supervisory powers over the administration of justice to reverse. I also disagree with the concurrence that the performance of Beecroft’s counsel requires a new trial. I therefore dissent. I would affirm the verdict and the decision of the *859postconviction court to deny Beecroft’s petition for postconviction relief.

Beecroft raises four issues in this appeal from her conviction and the denial of her petition for postconviction relief. First, the district court improperly admitted the statement she made to the police at the hospital because the police did not give her an adequate Miranda warning and because she did not voluntarily waive her Miranda rights. Second, the postconviction court erred when it determined that state agents did not substantially interfere with defense experts and that any alleged governmental interference was harmless beyond a reasonable doubt. Third, even if the alleged due process violation was harmless, this court should order a new trial in the interests of justice. Fourth, defense counsel provided her ineffective assistance of counsel. I address each issue in turn after a discussion of the postconviction court’s findings and conclusions.

Following conviction, Beecroft filed a petition for postconviction relief, claiming that she was entitled to a new trial because a state actor had violated her right to due process by interfering with her expert witness’s decision to consult with the defense and to testify at trial. Specifically, Beecroft argued that Uncini’s imposition of the 2007 employment provision precluding Ophoven from testifying in a Minnesota trial as a defense expert substantially interfered with Ophoven’s ability to testify for the defense in lieu of Roe. In the alternative, Beecroft argued at the postconviction hearing that if the postcon-viction court concluded that she failed to preserve her due process claim, she was still entitled to a new trial because defense counsel’s failure to preserve the due process claim would constitute ineffective assistance of counsel.

After an evidentiary hearing, the post-conviction court issued an order denying Beecroft’s petition for postconviction relief. As a threshold issue, the postconviction court found that Beecroft’s decision not to call Roe as a trial witness “was primarily a strategic one (e.g., to avoid potential impeachment of her testimony), although the decision was addressed on the record due to inappropriate communication from Dakota County Attorney James Backstrom directed to Dr. Roe’s supervisor and to the trial court.”

The postconviction court then made the following findings regarding Beecroft’s claim that a state agent substantially interfered with Ophoven’s decision not to testify at trial. Defense counsel did not intend to call Ophoven as a witness because defense counsel understood that Ophoven did not testify for defendants. Uncini’s imposition of the 2007 employment provision precluding Ophoven from testifying in Minnesota as a defense expert was not the product of any threat or pressure by agents of Saint Louis County.1 Instead, the 2007 employment provision reflected *860“a private business decision outside his function as medical examiner.” Neither Uncini nor anyone else threatened or intimidated Ophoven and she “was not forced off the witness stand or unable to assist Defendant Beecroft as a potential witness because of intimidation.”

Based on its factual determination that a state actor did not prevent through intimidation a defense witness’s choice to testify at trial, the postconviction court concluded that Beecroft’s due process claim failed. The court further concluded that, even if Beecroft had established substantial governmental interference with a defense witness’s choice to testify at trial, Beecroft was not entitled to a new trial because the alleged due process violation was harmless beyond a reasonable doubt. The court emphasized that Ophoven’s testimony was cumulative and that, “[a]ny testimony by Dr. Ophoven was either provided by another expert or rebutted by an expert called by the State with more experience in relevant areas.” The postconviction court further emphasized that Ophoven would not have been a “critical witness” to the defense and that at the postconviction hearing Ophoven exaggerated her experience and “displayed an inability to remain professional on the stand.”

The postconviction court also rejected Beecroft’s ineffective assistance of counsel claim. The court explained that Beecroft failed to demonstrate that defense counsel’s conduct fell below an objective standard of reasonableness because the evidence produced at the postconviction hearing did not support a finding that a state actor substantially interfered with a defense witness’s choice to testify at trial.

With these findings and conclusions in mind, I turn to an analysis of the issues Beecroft raises. Concluding that the record supports the lower court decisions and that this is not a case where we must resort to our supervisory powers to reverse Beecroft’s conviction in the interests of justice, I would affirm.

I.

Beecroft’s first contention is that she is entitled to a new trial because the district court erred when it denied her motion to suppress the statement she made to the police at the hospital. I agree with the plurality’s conclusions that the Miranda warning Beecroft received was sufficient and that Beecroft voluntarily waived her Miranda rights. I therefore would hold that Beecroft is not entitled to a new trial based on the district court’s admission of the statement she made to the police at the hospital.

II.

Beecroft’s second contention is that she is entitled to a new trial based on her assertion that government officials, who were not involved in the police investigation or prosecution, violated her right to due process by substantially interfering with her expert witnesses. Because the record supports the postconviction court’s determination that the alleged governmental interference with defense witnesses was neither substantial nor harmful, I conclude that the court properly denied Beec-roft’s petition for postconviction relief.

The Minnesota Constitution guarantees that “[n]o person shall be held to answer for a criminal offense without due process of law.” Minn. Const, art. I, § 7. The same protections are afforded under the Fourteenth Amendment of the United States Constitution. McCollum v. State, 640 N.W.2d 610, 617-18 (Minn.2002) (citing U.S. Const, amend. XIV, § 1; Minn. Const, art. I, § 7). These protections “are triggered only by state action.” State v. Wicklund, 589 N.W.2d 793, 801 (Minn.1999). Due process guarantees a criminal *861defendant the right to be treated with fundamental fairness and be “‘afforded a meaningful opportunity to present a complete defense.’ ” State v. Richards, 495 N.W.2d 187, 191 (Minn.1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)). The right to present a complete defense allows a defendant to present her version of the facts to the fact-finder “ ‘so it may decide where the truth lies.’ ” State v. Graham, 764 N.W.2d 340, 349 (Minn.2009) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). This due process protection specifically encompasses “the right to call witnesses.” Id.

Conduct by government agents that dissuades a potential witness from testifying may violate a defendant’s right to due process. See Graham, 764 N.W.2d at 349; see also Lambert v. Blackwell, 387 F.3d 210, 260 (3d Cir.2004). To establish a due process violation, the government’s conduct must “substantially interfere[ ]” with the witness’s choice to testify. Lambert, 387 F.3d at 260; accord Graham, 764 N.W.2d at 349. Substantial interference can occur when, for example, a “government actor actively discourages a witness from testifying through threats of prosecution, intimidation, or coercive badgering.” United States v. Serrano, 406 F.3d 1208, 1216 (10th Cir.2005).

Whether substantial government interference occurred is an “ ‘extremely fact specific’” question, Graham, 764 N.W.2d at 350 (quoting United States v. Vavages, 151 F.3d 1185, 1190 (9th Cir.1998)), which appellate courts review for clear error, Lambert, 387 F.3d at 260; United States v. True, 179 F.3d 1087, 1090 (8th Cir.1999). Under the clear error standard, the lower court’s factual finding will stand unless, on the entire record, “we are left with the definite and firm conviction that a mistake occurred.” State v. Andersen, 784 N.W.2d 320, 334 (Minn.2010). If we find reasonable evidence to support the lower court’s factual finding, we will not disturb the finding. State v. Evans, 756 N.W.2d 854, 870 (Minn.2008).

In addition, a determination that substantial governmental interference occurred does not automatically require a new trial. Peeler v. Wyrick, 734 F.2d 378, 381-82 (8th Cir.1984). If the court concludes that the substantial governmental interference was harmless beyond a reasonable doubt, a new trial is not required. Id. at 382; see also State v. Richardson, 670 N.W.2d 267, 277 (Minn.2003) (explaining that the harmless error standard controls the court’s review of alleged violations of defendant’s due process right to present a defense).

I begin my analysis of Beecroft’s due process claims by considering whether the record supports the postconviction court’s determinations regarding the existence of substantial governmental interference with Roe and Ophoven’s testimony. I then consider whether the alleged governmental interference was harmless beyond a reasonable doubt.2

A.

I turn first to Beecroft’s assertion that the conflict-of-interest debate between Backstrom and Thomas substantially interfered with Roe’s decision about whether to testify at trial, thereby violating Beec-roft’s due process right to present a defense. Although Beecroft did not express*862ly raise this due process claim below, the postconviction court implicitly rejected the claim when the court made the threshold finding of fact that Beecroft’s decision not to call Roe as a trial witness “was primarily a strategic one” designed “to avoid potential impeachment of her testimony.”3

After reviewing the entire record, I am not left with a definite and firm conviction that the postconviction court made a mistake when the court implicitly found that Backstrom did not substantially interfere with Roe’s testimony. The record demonstrates that it was Beecroft’s counsel’s strategic decision not to call Roe that created Roe’s unavailability. The strategic nature of Beecroft’s decision not to call Roe as a witness is evidenced by four facts.

First, Beecroft’s counsel expressly stated that the defense would “not in any way suggest” that Backstrom’s communications were the only reason that Beecroft chose not to call Roe as a witness. Second, Roe’s equivocal opinion on the cause of death limited her usefulness as a defense expert. Third, the prosecutor intended to impeach Roe with her prior autopsy reports and her prior inconsistent testimony as a State’s witness in a case in Wisconsin. Fourth, defense counsel’s decision not to call Roe as a witness, after receiving Back-strom’s clarifying e-mail (expressly stating that he did not intend to interfere with Roe’s decision about whether to testify in Beecroft’s trial), indicates that Back-strom’s e-mails did not substantially interfere with Roe’s decision not to testify. Because the record supports a finding that the conflict-of-interest debate between Backstrom and Thomas did not “substantially” interfere with Roe’s decision not to testify at trial, I conclude that Backstrom did not violate Beecroft’s right to due process.4

B.

I next turn to Beecroft’s assertion that Uncini’s request that Ophoven “perform no criminal defense work in the State of Minnesota” substantially interfered with Ophoven’s decision not to testify at trial, thereby violating Beecroft’s due process right to present a defense.

The postconviction court rejected Beec-roft’s due process claim relating to the alleged interference with Ophoven. The court explained that there was no due process violation because Uncini was not a “state actor,” there was no error because there “was no governmental intimidation of ... Ophoven,” and there was no prejudice because Ophoven’s testimony would not have been helpful. It is not necessary for me to determine whether Uncini was a state actor because even assuming he was, the record supports the postconviction court’s factual finding that there was no substantial governmental interference with *863Ophoven’s decision not to testify at Beec-roft’s trial.

At the postconviction hearing, Uncini testified that the imposition of the 2007 term of employment, precluding Ophoven from testifying in Minnesota as a defense expert, was not the product of any threat or pressure by agents of Saint Louis County. Uncini also testified that the term of employment did not apply to testimony given under subpoena. Defense counsel conceded that they never subpoenaed Ophoven. Ophoven testified that her earnings as a part-time employee of Uncini were a minor percentage of her total income as a physician. Ophoven also admitted that she never asked Uncini about the possibility of testifying at Beecroft’s trial. Because the record supports the postcon-viction court’s finding that there was no substantial governmental interference with Ophoven’s decision not to testify at Beec-roft’s trial, I conclude that Uncini did not violate Beecroft’s right to due process.

C.

Even if the record failed to support the postconviction court’s factual findings regarding the existence of substantial governmental interference with Roe and Ophoven’s decisions on trial testimony, Beecroft would not be entitled to a new trial because the alleged governmental interference was harmless beyond a reasonable doubt. A violation of a defendant’s due process right to present a defense is harmless if the reviewing court is satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, a reasonable trier of fact would have reached the same verdict. State v. Post, 512 N.W.2d 99, 102 (Minn.1994). On the other hand, “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.

After reviewing the record in Beecroft’s case, I am satisfied beyond a reasonable doubt that if Roe and Ophoven’s testimony had been admitted and the damaging potential of their testimony fully realized, a reasonable trier of fact would have reached the same verdict. Beecroft presented two qualified experts who testified to the same ultimate conclusion that Ophoven would have presented and provided more favorable testimony than Roe could have presented. Roe and Ophoven’s testimony, therefore, would have been either cumulative or unhelpful. In addition, the post-conviction court, which was also the fact-finder at trial, found that Ophoven lacked credibility and would have had limited usefulness as a witness.

The strength of the State’s case as a whole also supports the conclusion that the verdict would not have been different if Roe or Ophoven had testified. The district court did not need any expert testimony to find that the baby was alive when Beecroft stabbed her. The court could have drawn those inferences against Beec-roft on this element of the crime from the fact that Beecroft went to great lengths to hide her pregnancy, lied to the police and her family on several occasions about the baby’s birth and death, premeditated and planned the stabbing, stabbed the baby 135 times, never sought help for herself or the baby either before or after giving birth, obtained weapons, admitted twice to seeing the baby move her finger and open her eyes, and disposed of the body and evidence of the birth in the garbage. As the court stated in its verdict findings, “there would be no reason to stab a child that was not born alive.” I therefore would hold that even if Beecroft had established a due process violation with respect *864to Roe and Ophoven, the violation was harmless beyond a reasonable doubt.

III.

Beecroft’s third contention is that even if the alleged due process violation was harmless beyond a reasonable doubt, we should order a new trial in the interests of justice. The power to reverse prophylac-tically in the interests of justice “comes from our power to supervise the trial courts.” State v. Salitros, 499 N.W.2d 815, 820 (Minn.1993). When exercising that power, our focus “ ‘is not the punishment of society for the misdeeds of the prosecutor.’ ” State v. Graham, 764 N.W.2d 340, 358 (Minn.2009) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). Rather, we rely on our supervisory power in order to “avoid[ ] an unfair trial to the accused.” Id. And we have reserved the use of power based on an interests-of-justice analysis for “exceptional situations.” Gassler v. State, 787 N.W.2d 575, 586 (Minn.2010). My review of the record convinces me that this is not such a case.

I acknowledge government action in this case that was contrary to established standards of conduct. Specifically, the Office of Lawyers Professional Responsibility found that Backstrom “threaten[ed] to withdraw support for an official appointed by the county board unless the official barred her subordinates from testifying as defense experts in criminal cases” and recommended that he be disciplined pursuant to Minn. R. Prof. Conduct 8.4(d). In re Backstrom, 767 N.W.2d 453, 453 (Minn.2009). Rule 8.4(d) provides that “[i]t is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.” Backstrom admitted that his conduct was contrary to the rules of professional conduct, and he was disciplined for his actions related to this case. See Backstrom, 767 N.W.2d at 453. Thus, Backstrom’s conduct implicates the interests of justice.

Further, Minnesota law provides that a “medical examiner is an independent official of the county, subject only to appointment, removal, and budgeting by the county board.” Minn.Stat. § 390.011 (2010) (emphasis added). This chapter also provides that when requested, a medical examiner may “make physical examinations and tests incident to any matter of a criminal nature under consideration by the district court or county attorney, law enforcement agency, or publicly appointed criminal defense counsel, and shall deliver a copy of a report of such tests and examinations to the person making the request.” Minn.Stat. § 390.251 (2010). The legislature has thereby expressed that medical examiners are independent county officials whose services are available to both prosecuting officials and criminal defendants. Accordingly, a prohibition on Ophoven performing any criminal defense work in Minnesota would interfere with Ophoven’s independence as a medical examiner and evidence a disregard for the policy expressed in Minnesota statutes.

But this is the first case where we have been presented with an argument that county attorneys are interfering with the independence of medical examiners. Before resorting to our supervisory powers and ordering reversal in the interests of justice, we have typically expressed disapproval of the behavior and warned about the potential remedy for future similar misbehavior. See, e.g., State v. Merrill, 428 N.W.2d 361, 373 (Minn.1988) (“We thus specifically warn St. Louis County and prosecutors generally for the last time that we will no longer tolerate the tactics used by the prosecution in closing arguments in this case. The prosecution can expect a reversal if such tactics are used *865again”). When those warnings are not heeded, we have reversed convictions. See State v. Lefthand, 488 N.W.2d 799, 802 (Minn.1992). And we have done so even without an overt finding that the defendant was prejudiced by the conduct at issue. See Salitros, 499 N.W.2d at 820.

We have, however, grounded such interest-of-justice reversals in our concern with the integrity of the judicial process. See State v. Windish, 590 N.W.2d 311, 319 (Minn.1999) (“But ultimately the criminal justice system, including judges, prosecutors and defense lawyers, is responsible for the fair administration of justice. And while the wrongs in this case do not reach the level of a constitutional violation, we are convinced that the system did not serve the interests of justice.”); see also Gassler, 787 N.W.2d at 587 (noting that “[w]e have ... acted in the interests of justice when necessary to protect the integrity of judicial proceedings”). The integrity of the judicial process is undermined when our rules are “skirt[ed]” and our admonitions “disregard[edj.” Lefthand, 488 N.W.2d at 802. The process is also undermined when the errors leave us with doubt as to the fairness of the defendant’s trial. See, e.g., State v. Clifton, 701 N.W.2d 793, 800 (Minn.2005) (declining to exercise supervisory powers when the defendant received a fair trial).

Those concerns do not support reversal here. In this case, because we have not had occasion to pass upon the behavior at issue — alleged interference with the county medical examiner’s independence — we cannot say that our rules have been avoided or our warnings ignored. More importantly, careful review of the record establishes, in my view, that Beecroft did, in fact, receive a fair trial. The evidence with which Beecroft now contends the government interfered was in fact placed before the trier of fact through testimony from other witnesses. The prosecutor who tried this case is not accused of violating the rules, of interfering with Beecroft’s presentation of her defense, or of attempting to persuade the trier of fact by improper means. Finally, the evidence of Beec-roft’s guilt is overwhelming as discussed above. Under these circumstances, reversal of Beecroft’s conviction would not serve the interests of justice. See Gassler, 787 N.W.2d at 587 (“We have recognized, however, that under certain circumstances the reversal of a conviction may seriously affect the fairness, integrity, or public reputation of judicial proceedings.”).

IV.

Finally, I turn to Beecroft’s claim that she was deprived of effective assistance of counsel due to her counsel’s failure to pursue a claim based on a violation of due process at trial. The Sixth Amendment guarantees a defendant the effective assistance of counsel. State v. Wright, 719 N.W.2d 910, 919 (Minn.2006). To prevail on an ineffective assistance of counsel claim, an appellant “must show that (l)[her] counsel’s performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that, but for [her] counsel’s unprofessional errors, the result of the proceedings would have been different.” State v. Yang, 774 N.W.2d 539, 564-65 (Minn.2009); see Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ineffective assistance of counsel claims present mixed questions of law and fact that we review de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003).

It is not necessary for me to reach the first prong of the Strickland analysis because, even if counsel’s performance was defective under this prong, Beecroft’s claim would fail under the second prong, the prejudice part of the analysis. See *866Yang, 774 N.W.2d at 565. Under the prejudice part of the analysis, a defendant must show there is a reasonable probability that, but for her counsel’s unprofessional errors, the result of the proceedings would have been different. Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. For example, we have held that an error by counsel, which caused the exclusion of an alibi witness, was not prejudicial when the “testimony would have been cumulative and covered a time frame hours before the murders.” Patterson v. State, 670 N.W.2d 439, 442 (Minn.2003). As illustrated in Patterson, the prejudice prong requires that the defendant “show that counsel’s errors ‘actually’ had an adverse effect in that but for the errors the result of the proceeding probably would have been different.” Gates v. State, 398 N.W.2d 558, 562 (Minn.1987). This “analysis of prejudice must be made in the context of the totality of the evidence before the factfin-der.” Id. at 563.

Beecroft asserts that if counsel “had prevailed on a motion asserting she was deprived of the right to present a defense, she would have had the benefit of Roe’s and Ophoven’s testimony,” which in turn would have created a reasonable probability of a different verdict. I disagree.

As discussed above, Beecroft presented favorable expert testimony through other witnesses. Roe and Ophoven’s testimony, as a result, would have been cumulative. In addition, like the alibi witness in Patterson, 670 N.W.2d at 442, the probative value of the expert testimony at issue would not have been sufficiently great so as to create the probability that the trial’s outcome would have been different. With respect to Roe, she stated in her expert report that she was not certain whether Beecroft’s baby was born alive or stillborn. Moreover, the State would have impeached Roe with the transcript of her testimony as a State’s witness in a Wisconsin case and several of her prior autopsy reports, all of which expressed opinions that were inconsistent with her opinions in Beecroft’s case. With regard to Ophoven, this case presents the rather unique situation in which the district court judge who presided over and acted as the fact-finder in Beecroft’s court trial later heard and evaluated Ophoven’s expert testimony at the postconviction hearing. The judge specifically found that

Ophoven would not have been a critical witness to the defense; she lacked experience in comparison to the other experts, her opinions were presented at trial by other defense experts, and during her testimony at the post-conviction hearing she had a tendency to over exaggerate her experience and she displayed an inability to remain professional on the stand.

Finally, the court did not need any expert testimony to determine that Beecroft caused the death of her baby because of the strength of the State’s case as a whole including Beecroft’s own admissions that the baby moved her finger and opened her eyes before Beecroft stabbed her.

Based on my review of the record in this case, I conclude that Beecroft has failed to show that there is a reasonable probability that, but for her counsel’s alleged unprofessional errors, the outcome of the proceedings would have been different in her case. I therefore would hold that Beec-roft’s ineffective assistance of counsel claim fails.

. In September 2007, various government officials met to discuss their concerns about Ophoven's participation in an unrelated case. Attendees at the meeting included Uncini, Saint Louis County Sheriff Ross Litman, Saint Louis County Attorney Melanie Ford, and two assistant county attorneys. Ophoven did not attend the meeting. The attendees discussed Ophoven's work quality, a mistake Ophoven had made on a different case, "communication issues” between Ophoven and law enforcement officials, provisions in Lake-land’s contract with the County, Ophoven’s views on child abuse cases, and “the impact of [Ophoven's] defense work in this area.” The postconviction court found Uncini to be credible when he testified at the postconviction hearing that he never felt his contract with Saint Louis County was threatened, that terminating Ophoven was never discussed, and no county official ever requested that Ophoven refrain from performing criminal defense work.

. The State asserts that we should apply a plain error analysis because Beecroft did not make a specific due process objection at trial. But because Beecroft’s claim fails under the harmless error standard, it is not necessary for me to reach the question of whether it also fails under a plain error analysis.

. The same judge presided over the court trial and postconviction proceedings.

. Citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Beecroft claims Baclcstrom's emails violated her due process right to have the assistance of experts in the preparation of her defense. But, unlike Ake, Beecroft was provided expert consulting services throughout trial. Beecroft had the benefit of Roe's expert consulting services for the majority of the trial, and Ophoven provided consulting services when Roe stepped down. The only time that Beecroft was without expert assistance was during McGee's rebuttal testimony after the defense had completed its case-in-chief. The district court ameliorated this gap in expert assistance by offering Beecroft a transcript of McGee’s testimony to allow her new expert to review it. Because Beecroft had "access to the raw materials integral to the building of an effective defense,” Roe's withdrawal as a consulting expert did not deprive Beecroft of this due process right. See Ake, 470 U.S. at 77, 105 S.Ct. 1087.