Bernhardt v. State

GILBERT, Justice,

(concurring in part, dissenting in part).

I concur with the majority opinion relating to the admission into evidence of portions of Agent Soppeland’s interview being plain error. However, I respectfully dissent from the majority’s conclusion that *482 there is insufficient evidence as a matter of law to support Bernhardt’s conviction. I believe that there was sufficient evidence presented to the jury to support Bernhardt’s conviction for aiding and abetting the first-degree murder that took place as part of the kidnapping of Randy Pool. Accordingly, I would reverse and remand for a new trial.

The circumstantial evidence presented in this case is substantial and consistent with Bernhardt’s conviction. In addition, we have held that “if the state can establish a credible motive, credibility is lent to the state’s contention that the accused committed the crime.” State v. Berndt, 392 N.W.2d 876, 879 (Minn.1986). Here, the state not only established a credible motive, but Bernhardt’s defense counsel conceded that motive was present in this case.

During 3 days in July 1999, Pool was kidnapped and murdered by Shawn McCollum (Bernhardt’s “bodyguard”), Heather Ecklund (Bernhardt’s girlfriend), and other close associates of Bernhardt. These associates included Toby Johnson, Scott Bernhardt (Bernhardt’s brother), Isaac Engstrom, Rick Ligenza and Tanya Caldwell. Pool was beaten, bound, and gagged by the use of duct tape, thrown in a duffel bag, sprayed with aerosol, stomped on and finally thrown into the Clearwater River after having been killed.

As we have previously held, “companionship and conduct before and after the offense are circumstances from which a person’s participation in [a crime] may be inferred.” State v. Ulvinen, 313 N.W.2d 425, 428 (Minn.1981). The extent of Bernhardt’s companionship and course of dealing with each of the six individuals who actually committed the assault, kidnapping, and murder is both substantial and significant. Both Bernhardt and Pool were dealing methamphetamine out of Pool’s home in Hutchinson. Bernhardt had his own set of customers, as did Pool. When Bernhardt was out of town on business, McCollum also lived in the Pool residence to operate Bernhardt’s business and to take care of Bernhardt’s set of customers. McCollum also watched over Bernhardt’s personal belongings and those of his girlfriend, Ecklund, who at the time was 5-months pregnant with Bernhardt’s child. In a statement given to the police, Bernhardt acknowledged running this drug business as “my little branch.” Chad Moehring testified that Pool was killed because Bernhardt’s cohorts thought Pool had “narked off’ or told the authorities about Bernhardt’s drug dealings. Moehr-ing further testified that Engstrom told him there were too many “narks” around and they were going to have to make an example out of somebody. Bernhardt conceded at oral argument that the evidence would support that he had a motive and an opportunity to aid and abet in this brutal drug-related murder.

Bernhardt’s companions were found guilty of Pool’s kidnapping and murder. On March 29, 2000, a jury found McCollum guilty of murder in the first degree while committing kidnapping of Pool, and we affirmed that conviction. McCollum v. State, 640 N.W.2d 610, 619 (Minn.2002). On February 3, 2000, Ecklund pleaded guilty to second-degree murder of Pool. In Re Contempt of Ecklund, 636 N.W.2d 585, 587 (Minn.App.2001). Toby Earl Johnson, another business associate of Bernhardt, gave a statement to the police on August 9, 1999, where he admitted that he had beaten and watched over Pool while Pool was being tortured, confined, and placed in a duffle bag until beaten to death. Ultimately, Johnson pleaded guilty to first-degree intentional murder while committing kidnapping and was sentenced to a mandatory life sentence. Although John *483 son attempted to withdraw his plea agreement, the postconviction court denied that request and we affirmed the denial. Johnson v. State, 641 N.W.2d 912, 918 (Minn.2002). Tanya Caldwell also pleaded guilty to kidnapping Pool and received a 4-year sentence. Isaac Engstrom pleaded guilty to second-degree intentional murder in the death of Pool. The jury knew of both Eng-strom’s and Tanya Caldwell’s plea through their testimony. While these judgments and pleas were not presented at Bernhardt’s trial, the evidence was presented to the jury in a variety of manners, and while not controlling our decision, we may take judicial notice of these three appellate decisions involving the murder of the same victim, Pool. Although Bernhardt was not present at the time of the actual murder, his conduct and companionship with the assailants directly link him to Pool’s murder.

Bernhardt had ample opportunity to facilitate this crime. Bernhardt was talking to Eeklund on a regular basis when she visited him at least three times in one week (July 18, 20 and 22) after he was incarcerated at the McCloud county jail. Eeklund was a major participant and instigator of trying to determine who tipped off the police about Bernhardt and who stole some of their personal belongings. Immediately after Eeklund met with Bernhardt at the jail on July 18, 1999, the effort to punish the alleged “snitch” quickly focused on Pool, who was detained and assaulted by McCollum as he attempted to escape after the accusation surfaced and the confrontation escalated.

Bernhardt admitted talking to Eeklund about Pool while he was in jail and asking Eeklund to find out who had “snitched” and also to find out what happened to their personal belongings. During an August 6, 1999 interview with the police, Bernhardt admitted that he knew that Pool and Eck-lund had engaged in a “small skirmish” when Pool was in the process of kicking Bernhardt and Eeklund out of his home. At the time of this interview, Bernhardt was informed that Eeklund was in jail and being charged with murder. Bernhardt also admitted that he was disgruntled with Pool’s alleged actions. There were at least six telephone calls from Bernhardt’s cell-block to Engstrom’s apartment.

Witnesses testified that Bernhardt had a standing order against Pool. Randy Jaster, a long-time friend of the victim, testified that McCollum was Bernhardt’s bodyguard, and Bernhardt “would have [Pool] taken care of.” To corroborate Jaster’s testimony, David Oliva testified that it was his understanding that when Bernhardt was gone, McCollum was acting on Bernhardt’s behalf. Lance Mattson testified that he had a conversation with Bernhardt where Bernhardt indicated to him that people who “snitch” are often killed. Mattson testified that he interpreted Bernhardt’s comment to generally mean, “snitches end up dead.”

Bernhardt’s July 21, 1999 letter to his girlfriend Eeklund reinforces the standing order to take care of Pool in case of problems. Bernhardt wrote this letter on July 21, 1999 indicating that “if Randy [Pool] doesn’t give a statement, I’m not going to guarantee his safety from other people. There will not be anything I can do to help him. So he pretty much does not have a choice in the matter.” This letter not only indicates that Bernhardt believed he was in a position to guarantee Pool’s safety, but that his standing order that other people “take care” of Pool should be in fact carried out. There is no other reasonable hypothesis for this letter. Even though Pool may have been killed the day before the letter was written, there is no indication that Bernhardt knew of his death until *484 perhaps July 22, the date when Ecklund again visited Bernhardt in jail.

The thank you note sent to Ecklund by Bernhardt from jail on July 24, 1999, 4 days after Pool’s murder, is also compelling evidence. This note provides any missing links and removes any reasonable doubt about Bernhardt’s guilt. Bernhardt instructs Ecklund to “tell Sam, Lawrence ■ and Ziek thank you for everything so far.” The jury was aware of this note and that Bernhardt had been visited in jail by Eck-lund on July 22, 1999, 2 days after Pool’s murder. The note came 2 days after Ms. Ecklund’s conversation with Bernhardt. The jury was also aware that Ecklund had been charged with Pool’s murder, as it was discussed on the first part of Bernhardt’s taped interrogation on August 6,1999.

The majority has failed to view this whole picture in the proper context when arriving at its conclusion that the circumstantial evidence was insufficient to support a guilty verdict and that it is “impossible to conclude that the evidence points ‘unerringly’ to Bernhardt’s guilt.” The majority isolates individual pieces of evidence to support its reasoning that with respect to each piece of evidence there is a reasonable hypothesis other than guilt. However, “possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.” State v. Ostrem, 535 N.W.2d 916, 923 (Minn.1995). When there is credible circumstantial evidence of motive, opportunity, companionship and conduct before and after the offense, a person’s participation and criminal intent could be inferred. See Berndt, 392 N.W.2d at 880 . The chain of evidence, as a whole, leads directly to the guilt of Bernhardt so as to exclude, beyond a reasonable doubt, any reasonable hypothesis other than that of guilt.

The majority argues that I erringly “build[ ] most of [my] conclusion that the evidence was sufficient on the testimony of one witness, Randy Jaster.” It further asserts that I “overstate[] the evidence” by pointing to the letter that Bernhardt wrote in order to thank his companions for their actions. The majoritys argument on these points attempt to assign weight to certain pieces of evidence and, in doing so, ignores our responsibility to leave to a jury the judgment as to the weight of a particular witness or piece of evidence. State v. Rainer, 411 N.W.2d 490, 495 (Minn.1987). I would instead follow our guidelines to ascertain whether any legitimate inferences of guilt exist in the record that could have lead the jury to a guilty verdict. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). We must consider the evidence in the light most favorable to the verdict. State v. Oevering, 268 N.W.2d 68, 71 (Minn.1978). It is clear that legitimate inferences of guilt exist that point directly towards Bernhardt.

Short of an admission or confession, the chain of evidence is complete; from Bernhardt’s initial anger for being snitched on, his desire, motivation and opportunity to find out who had snitched on him and taken his property, the discussion of snitches ending up dead, his standing order for retaliation against Pool in case of trouble, and his thank you note to the killers. Conduct before and after the incident fact can be considered in helping to meet the state’s burden of proof. To impose liability for aiding and abetting, “active participation in the overt act that constitutes the substantive offense is not required, and a defendant’s presence, companionship, and conduct before and after an offense is committed are relevant circumstances from which the jury may infer criminal intent.” State v. Gates, 615 N.W.2d 331, 337 (Minn.2000). For the foregoing reasons, I beheve the state has *485 met its burden. I would reverse and remand for a new trial rather simply than reverse Bernhardt’s conviction.