The
opinion also notes that he was originally charged with disorderly conduct plus
“theft in violation of Minnesota Statutes § 609.52(2)(1) and two traffic
offenses” but the traffic charges were dropped “prior to trial, and the
district court [judge] granted Nielsen’s motion to dismiss the theft charge for
lack of probable cause.” Nielsen v. State, supra.
The
charges arose from this incident:
On October 4, 2010, K.M. contacted the Washington County
Sheriff's Office and reported observing a vehicle with campaign signs for
Stephen Bohnen tied to its top. K.M. followed the vehicle because he believed
that a supporter of Bohnen's opponent had stolen the signs.
Both vehicles pulled to the side of the road, and K.M. stated
that a man, later identified as appellant Jeffrey Lynn Nielsen, got out of his
vehicle and approached K.M.'s vehicle. K.M. reported that Nielsen's demeanor
was aggressive and threatening and that Nielsen asked `what the f--k he
wanted.’ K.M. said that he was lost, and the encounter ended.
Nielsen v. State, supra.
After he
was charged with the offenses noted above, Nielsen “filed a civil complaint
against K.M., Bohnen, and Washington County, alleging fraud, conspiracy, and
malicious prosecution.” Nielsen v. State, supra. According to the opinion,
[i]n the course of discovery in the civil lawsuit, Nielsen
obtained a copy of the prosecutor's file from the criminal case. The file
contained three e-mails sent from K.M. to the prosecutor in the two weeks
before trial. The prosecutor reviewed these e-mails, but did not disclose them
to Nielsen.
In a March 17 e-mail, K.M., a certified investment-management
analyst, repeated the details of the October 4, 2010 incident, discussed the
civil suit and his resulting `extreme stress’ and `financial hardship,’ and
stated that his `license is at stake if [he's] found guilty of fraud.’
A March 18 e-mail contained an attachment with a
`summary of the facts and [K.M.'s] state of mind’ and a letter from Nielsen's
attorney in the civil case. The e-mail concluded, `As I understand it, if he's
convicted on [disorderly conduct], his suits against me are dismissed.
Therefore, I urge you to do what you can to get a conviction even though I know
in the grand scheme of things how trivial this charge might seem.’
In one of the attachments, K.M. stated that `[t]here are
deeper implications here, my industry is highly regulated and if I am somehow
found guilty of Malicious Prosecution or Fraud my license could be in
jeopardy.’ A March 22 e-mail contained a copy of the text of the attachments to
the March 18 e-mail.
Nielsen v. State, supra.
After he obtained these emails, Nielsen “petitioned
for postconviction relief, arguing that he is entitled to a new trial because .
. . he was denied due process of law and a fair trial when the prosecution
failed to disclose the e-mails”. Nielsen v. State, supra. In making
this argument, he relied on the U.S. Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963). As Wikipedia explains, the Brady Court held that
withholding exculpatory
evidence violates due process `where the evidence is material either to guilt
or to punishment’ . . .
Exculpatory evidence is
`material’ if `there is a reasonable probability that his conviction or
sentence would have been different had these materials been disclosed.’ Brady evidence includes statements of
witnesses or physical evidence that conflicts with the prosecution's witnesses,
and evidence that could allow the defense to impeach the credibility
of a prosecution witness.
Due process in a state criminal prosecution like this one is
based on the provisions of the 14th Amendment to the U.S.
Constitution, as Wikipedia also explains.
The district court judge who had this case denied Nielsen’s
petition and motion for a new trial because she found (i) that “the e-mails
should have been disclosed under Brady v. Maryland” but also found (ii) that Nielsen “is
not entitled to a new trial because `there is not a reasonable probability that
the result of the jury trial would have been different if the evidence had been
disclosed to the defense.’” Nielsen v. State, supra. He appealed,
which led to this opinion. Nielsen v.
State, supra.
The Court
of Appeals began its analysis of the issue by noting that suppressing
evidence that is favorable to a criminal defendant violates
due process when the evidence is material to guilt or punishment. Brady
v. Maryland, supra; see also Minnesota Rules of Criminal
Procedure Rule 9.01 (requiring disclosure of material exculpatory evidence).
A Brady violation exists if (1) the evidence is favorable to
the accused, being either exculpatory or impeaching; (2) the state suppressed
the evidence, either intentionally or unintentionally; and (3) the defendant
was prejudiced by the suppression. Pederson v. State, 692
N.W.2d 452 (Minnesota Supreme Court 2005).
Nielsen v. State, supra.
The court
also explained that,
to be prejudicial, the evidence must be material. Pederson v. State, supra. Evidence is
material “only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different. A reasonable probability is one that is sufficient to undermine
confidence in the outcome.” Pederson
v. State, supra. . . . Materiality is a mixed question of fact and law,
which we review de novo. Pederson v.
State, supra.
Nielsen v. State, supra.
Finally, the Court of Appeals pointed out that Rule 9.04 ofthe Minnesota Rules of Criminal Procedure states that
in misdemeanor cases and upon request
the state must `disclose any material or information within the prosecutor's
possession and control that tends to negate or reduce the guilt of the accused
as to the offense charged.’ Although Minnesota courts have not discussed the
scope of rule 9.04, its language is nearly identical with that of rule 9.01, which the supreme court has concluded imposes a narrower disclosure
requirement than Brady
Nielsen v. State, supra.
Here, the State of Minnesota argued that
the prosecutor was not required
under Brady or the Minnesota Rules of Criminal Procedure to
provide the e-mails because the information they contain is not exculpatory or
impeaching. The state contends that the information in the e-mails is duplicative
and would not have `significantly impaired [K.M.'s] credibility.’
But these arguments speak to the
materiality of the evidence, not their favorability. We agree with the district
court that the prosecutor should have disclosed the e-mails as potential
impeachment evidence because they relate to an argument that K.M. was biased as
a witness.
Nielsen v. State, supra.
Nielsen claimed K.M.'s statements in the e-mails “were
material because they `clearly establish a motive to fabricate or lie” and
could have been used on cross-examination to `impeach [K.M.] with [K.M.'s]
prior inconsistent statement.’” Nielsen v. State, supra. The Court
of Appeals, though, found that the “e-mails do not provide any
information that was not already possessed by Nielsen, who was uniquely aware
of K.M.'s potential interest in the outcome of the criminal case.” Nielsen v.
State, supra.
The court
also explained that
most of the information in the e-mails summarizes the events
of October 4 and is consistent with K.M.'s statements to the police and his
testimony at trial. The other statements concern the civil case, of which
Nielsen was clearly aware, and K.M.'s concern that an unfavorable outcome in
that case could result in the loss of his professional licenses and other
personal and financial hardship. This information was all available to Nielson
prior to trial and undoubtedly factored into his decision to ask the district
court to exclude all mention of the civil case in the criminal trial.
Nielsen
argues that his request to exclude evidence of the civil claim is immaterial
because `counsel did not possess the Brady material when the
request was made.’ He argues that a `lawyer cannot make an informed tactical or
strategic decision without being fully informed.’ But even without the
information contained in the e-mails, Nielsen's knowledge, due to his decision
to bring a lawsuit against K.M., was enough to allow him to make the strategic
decision not to introduce evidence of that potential bias.
And even if disclosure of the e-mails had led Nielsen to
introduce evidence of the civil case to impeach K.M.'s testimony, there is not
a reasonable probability that the result of the jury trial would have been
different. The civil case arose only after K.M.'s initial interview with the
police and after Nielsen was charged with disorderly conduct. There is no
indication that K.M.'s testimony deviated from his initial report in any way
that would have had a material impact on the outcome of the case. And if K.M.'s
testimony had deviated, Nielsen could have used that original statement for
impeachment purposes.
Nielsen v. State, supra.
Finally,
Nielsen also cited
a number of cases, primarily from
foreign jurisdictions, in support of the argument that suppressed evidence is
material where it concerns the credibility of a sole or key witness. We agree
that failure to disclose impeachment evidence may lead to a due-process
violation, but it does not follow that evidence is material simply because a
case turns on the testimony of a single witness.
Evidence is material only when `there
is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’ Pederson
v. State, supra.
Nielsen v. State, supra.
The Court of Appeals found that the
cases that Nielsen relies on involved
impeachment evidence that contradicted the witness's testimony or showed
prosecutorial conduct that could have induced the witness to fabricate his
testimony. See Giglio v. U.S., 405 U.S. 150 (1972) (government
failed to disclose promise not to prosecute a key witness in exchange for his
testimony); Spicer v. Roxbury Corr. Inst., 194 F.3d 547 (U.S.Court of Appeals for the 4th Circuit 1999) (prior inconsistent statements
were material where they directly contradicted the witness's testimony relating
to the central issue before the jury); Crivins v. Roth, 172
F.3d 991, 998 (U.S. Court of Appeals for the 7th Circuit 1999) (evidence
withheld concerned witness's past dishonesty with police and judicial
officers).
Here, there is no suggestion that the
prosecutor had any involvement in K.M.'s decision to testify and no indication
that the so-called impeachment evidence would have contradicted any of his
statements at trial concerning the October 4 incident. In the final analysis,
the evidence was duplicative of information already known to Nielsen and to the
district court.
Nielsen v. State, supra.
The court therefore affirmed Nielsen’s conviction and
sentence. Nielsen v. State, supra.
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