Justia.com Opinion Summary: Elizabeth Hawes was convicted of aiding and abetting her brother, Andrew Hawes, in the first-degree murder of their brother, Edwin Hawes. The district court sentenced Hawes to life imprisonment. The Supreme Court affirmed Hawes' conviction, holding (1) the circumstantial evidence was legally sufficient to support Hawes' conviction of aiding and abetting first-degree premeditated murder; (2) any error the the district court made when it ruled that out-of-court statements made by Andrew were not admissible as declarations against penal interest was harmless beyond a reasonable doubt; and (3) the district court did not abuse its discretion when it denied Hawes' motion for a new trial on the grounds of newly available evidence.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
STATE OF MINNESOTA
IN SUPREME COURT
A10-1225
Anoka County
Gildea, C.J.
Took no part, Stras, J.
State of Minnesota,
Respondent,
vs.
Filed: August 24, 2011
Office of Appellate Courts
Elizabeth Mary Hawes,
Appellant.
________________________
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Anthony C. Palumbo, Anoka County Attorney, Robert D. Goodell, Assistant County
Attorney, Anoka, Minnesota, for respondent.
Charles F. Webber, Faegre & Benson LLP, Minneapolis, Minnesota, for appellant.
________________________
SYLLABUS
1.
The evidence at trial was sufficient to support appellant’s conviction for
aiding and abetting first-degree premeditated murder.
2.
Any erroneous exclusion of out-of-court statements was harmless.
3.
The district court did not err when it denied appellant’s motion for a new
trial based on newly available evidence because appellant and her counsel knew of the
evidence at the time of trial.
Affirmed.
OPINION
GILDEA, Chief Justice.
Elizabeth Hawes was convicted of aiding and abetting the first-degree
premeditated murder of her brother Edwin Hawes, in violation of Minn. Stat. § 609.05,
subd. 1 (2010), and Minn. Stat. § 609.185(a)(1) (2010). The district court sentenced
Hawes to life imprisonment. Hawes appeals, arguing that the evidence was insufficient
to support her conviction. Hawes also argues that the district court erred when it ruled
that out-of-court statements made by Hawes’ younger brother, Andrew Hawes, were not
admissible as declarations against penal interest and when it denied Hawes’ motion for a
new trial. We affirm Hawes’ conviction.
This case arises from the October 2008 murder of Edwin Hawes. The last time
anyone saw Edwin alive was on October 29, 2008, at approximately 6:30 p.m.
Authorities eventually recovered his burned body from a fire pit in Cottonwood County,
Minnesota, on October 31. The State’s theory of the case was that Hawes helped Andrew
commit the murder. Hawes claimed Andrew killed Edwin without her help.
Andrew and Edwin operated Hawes Lawn Service for about 20 years but in early
2007, the relationship between the brothers deteriorated, as did the relationship between
Hawes and Edwin. The relationships between the siblings became strained because
2
Hawes and Andrew believed that Edwin had stolen money from the lawn business and
their grandmother, and they accused Edwin of theft.
Shortly after his brother and sister accused him of theft, Edwin went to his
parents’ house to have a conversation with his parents and Hawes. Prior to entering the
house, Edwin called police dispatch to notify them that he was outside the house and that
he was concerned about going inside because Hawes was inside and she always took
Andrew’s side. Once inside, Edwin told Hawes that he was fearful of Andrew because
Andrew threatened to kill him and several people heard this threat. Hawes asked Edwin
if he thought he deserved to be killed. Edwin responded that he just wanted to “get this
all out on the table” so that everyone could see that he did not steal any money.
Because of Andrew’s death threat, Edwin changed his residence. He moved in
with M.W., an elderly individual, in Andover, and did not communicate his new address
to Andrew or Hawes. But on June 8, 2007, Hawes discovered Edwin’s new address by
following Edwin home from his daughter’s dance recital in Spring Lake Park. 1 A police
report documented Hawes’ June 8 conduct.
Edwin made the report when he became
suspicious of the vehicle following him.
Also during June, Hawes and Andrew reported Edwin’s alleged theft to several
government agencies, including the Federal Bureau of Investigation, the Minnesota
Attorney General, and the Robbinsdale Police Department. But Hawes and Andrew were
frustrated by the response of the governmental agencies.
1
Hawes was accompanied by Andrew’s girlfriend, Kristina Dorniden.
3
Approximately a year later, on July 19, 2008, Andrew rammed Edwin’s car off the
road in Minneapolis. Edwin’s daughter, Avery, was a passenger in Edwin’s car at the
time. When Edwin’s ex-fiancée, R.W., contacted Hawes a few days later, Hawes said
that Andrew could not have hit Edwin’s car because Andrew was in Ohio visiting his
girlfriend on the day in question. Despite his alleged alibi, the State charged Andrew
with two counts of second-degree assault, two counts of terroristic threats, and two
counts of criminal damage to property because of the incident with Edwin.2 A no-contact
order was also issued prohibiting Andrew from having contact with Edwin and Avery.
On August 20, 2008, Special Agent Glenn Bona told Hawes that the theft
allegations against Edwin were unfounded and, that even if they were true, the statute of
limitations barred prosecution of Edwin. Bona testified that Hawes became “agitated”
upon hearing this and asked Bona how the authorities could let Edwin get away with
theft. Bona said that Hawes became “very volatile” and loud, and he described her
demeanor as “on fire.”
In September 2008, Hawes contacted R.W. about the visitation schedule Avery
was to have with Edwin during that fall, and Hawes sought other details about Edwin’s
whereabouts.
Hawes wanted to know Avery’s visitation schedule, including the
weekends R.W. and Edwin each had Avery, when R.W. and Edwin were to be on
vacation, where and what time Avery was picked up, and what car Edwin would drive
2
The record does not reflect the resolution of these charges.
4
when he picked up Avery.3 Hawes said that she needed to know this information because
the authorities were investigating Edwin for theft and were very close to arresting him,
and Hawes did not want Avery around when they arrested Edwin. This explanation was
false because by September 2008, Hawes knew that the authorities had concluded that the
theft allegations were unsubstantiated and that statute of limitations had expired.
On September 22, M.W., Edwin’s housemate, caught Hawes looking around
various areas of the property surrounding Edwin’s residence, including the shed on the
property. After M.W. confronted her, Hawes left. M.W. subsequently called the sheriff
and made a report because he knew there were problems between Edwin and Hawes.
Shortly thereafter, on September 24, Edwin obtained a restraining order against Hawes.
R.W. testified that Edwin obtained the restraining order because he believed Hawes was a
danger to him.
On October 30, 2008, at approximately 2:30 a.m., Anoka County sheriff deputies
Bryan Pierson and Brett Froslee were at the Woodland Creek Golf Course in Andover,
about a half-mile from Edwin’s residence.
The deputies noticed a truck that was
registered to Hawes Lawn Service parked in the parking lot. Shortly thereafter, the
officers observed Hawes emerging from the woods. Hawes explained to Deputy Pierson
that she was in the area visiting a friend to discuss a cancer benefit. Hawes told Pierson
that her friend’s name was “Sandy Thompson” and that she lived down the road. Pierson
found Hawes’ story suspicious, conducted a database search of “Sandy Thompson,” and
3
The day of the murder, October 29, was not a day that Avery was with Edwin.
5
was not able to locate a person with that name living in the area. Pierson then conducted
a database search of “Elizabeth Hawes” and learned that there were police reports
regarding Hawes and Edwin. Pierson also learned that Edwin lived a half-mile away
from the golf course. Given this information, Pierson once again asked Hawes why she
was in the area. Hawes continued to maintain her story that she was visiting a friend.
Pierson then decided to check on Edwin.
Pierson was about two blocks from Edwin’s house when he came across a man,
later identified as Andrew, staggering in the middle of the street and flagging him down.
Andrew told Pierson that he was having a diabetic reaction. Pierson called an ambulance
and while they were waiting for it to arrive, Andrew said his truck was located at a
business nearby which turned out to be the golf course. Pierson drove Andrew to the golf
course parking lot and subsequently asked Andrew why he was in the area. Andrew
eventually told Pierson that he had been in a fight with Hawes and that she ran off.
Pierson thought that Andrew and Hawes could have been at Edwin’s residence and
continued to question Andrew. Andrew eventually told Pierson that he and Hawes went
over to Edwin’s residence. Pierson then questioned Hawes, who told Pierson that they
went to Edwin’s house to repossess a Volkswagen Passat that belonged to Andrew after
the business between Edwin and Andrew broke up. Pierson asked her how she was going
to repossess the car and she pulled the key to a Volkswagen out of her sock.
Deputy Pierson finally checked on Edwin around 3:30 to 4:00 a.m. at Edwin’s
residence and learned from M.W. that neither Edwin nor the Passat were there. Pierson
returned to the golf course and subsequently learned that there was a temporary
6
restraining order on file prohibiting Hawes from having contact with Edwin. Pierson
arrested Hawes for violating the restraining order, after she admitted to driving by
Edwin’s residence, and took her to jail. Andrew then drove away.
At approximately 2 p.m. that same day, M.W. called police to report that there was
a “suspicious substance” in his driveway resembling blood. Upon arriving, M.W. and his
adult daughter showed an officer pools and smears of what appeared to be blood around
the property. M.W. told the officer that he was concerned because Edwin, along with his
Passat, was missing. The officer secured the scene and additional law enforcement
arrived to start collecting evidence.
Police learned that Andrew and his girlfriend, Kristina Dorniden, owned a farm in
southern Minnesota located near Westbrook. Detective Larry Johnson of the Anoka
County Sheriff’s Office contacted Chief Alan Wahl, chief of police for the town of
Westbrook, and informed Wahl that there was an investigation going on into Edwin’s
disappearance.
Chief Wahl arrived at the Westbrook farm around 11:45 p.m. on October 30.
Because Wahl knew that Anoka County authorities were suspicious of Andrew and
Hawes, he left for a short time and returned with backup. When he returned, Wahl saw
Hawes standing near a fire. Wahl then saw what appeared to be human bones and a cell
phone case, which appeared to have blood on it, in the fire. Hawes said, “That’s not a
horse we’re burning in there.” Shortly thereafter, she said in the presence of a state
trooper, “That’s not my brother. . . . That’s not my brother in there.” Hawes said she
made the comments because Cottonwood County Sheriff’s Deputy Evers was asking
7
questions about her brother. Shortly thereafter, the fire department put out the fire.
Authorities carefully removed the remains of a human body, later determined to be
Edwin’s, from the fire pit and had it transferred to the Anoka County morgue.
Deputy Evers told Hawes that they were looking for Edwin. Hawes responded
that Edwin embezzled a significant amount of money from the family. At some point
during the conversation, Hawes also said, “Maybe [Edwin] was in an accident. [I] hope
he dies. He’s a very bad man.” A short time later, the police arrested Hawes.
After Hawes was arrested, Dorniden returned to the farm in a Ford F-350 pickup
truck. She told police that the truck belonged to Hawes, and that Hawes and Andrew
rode in the truck from the Twin Cities to the farm. Dorniden said she and Hawes took
turns driving.
In addition to witness testimony, the State presented physical evidence at trial. Dr.
Janis Amatuzio, the Anoka County Medical Examiner, conducted the autopsy. Amatuzio
testified that Edwin died of multiple blunt and sharp force injuries resulting from
homicidal violence. She testified that one of these injuries was a sharp force wound
caused by an arrow that entered through Edwin’s chest and exited through his back.
Amatuzio also testified about the extensive amount of injuries to Edwin’s head
that were caused by three or four blows. Amatuzio testified that these blows likely
occurred from a fall or a blunt object and caused fractures to the bones around the left
eye, the left cheekbone, and the bones inside the deep part of the face. Amatuzio
explained that some type of instrument caused these bones to crush inward and break into
multiple small fragments. Finally, Amatuzio testified that Edwin had fractures to his
8
pelvic region and these injuries were consistent with someone running Edwin over with a
car.
In addition to the autopsy findings, the State presented physical evidence collected
by investigators from various properties and vehicles related to the investigation.
Investigators collected evidence from Edwin’s residence. In addition to blood evidence,
investigators found weapons around Edwin’s property including two hammers and an
aluminum bat. One of the hammers was located next to a woodpile near the shed, which
was in a wooded area. The other hammer was located deep in the woods near the west
side of the yard. These weapons did not have any blood on them. Because the weapons
looked new and were free of rust, the State argued that someone placed these weapons
around the property shortly before the murder. Investigators also found an aluminum bat
in a woodpile near the shed that someone had painted black. There were also blood
covered leaves and a pair of men’s pants by the shed. Investigators also found a black
spray paint can on the west side of the property, together with a jug believed to contain
liquid bleach, a broken and torn cell phone holster, a cellular phone battery, and a broken
arrow.
When investigators searched Andrew’s residence in Robbinsdale, they found
newspaper in the garbage that looked like someone had spray painted items on it using
black paint. They also found a black spray paint can in the garage.
There was also evidence of the murder in the location of the woods from where
Hawes emerged when she approached the golf course parking lot in the early morning
hours of October 30, 2008. In an area behind a utility box at the edge of the parking lot,
9
investigators found a crossbow, a quiver containing a single arrow, and a separate arrow.
Someone had painted the label on the interior side of the bow and the fins of the arrow
black. Investigators also located a one-gallon plastic bleach jug with a blue screw top
that was empty, a brown jacket, and a pair of white latex gloves with blood on them
located about 10 to 15 feet away from the jacket. Fingerprint analysis revealed that there
was a palm print found on the bleach jug that belonged to Andrew. DNA analysis also
revealed that Andrew’s DNA was on the exterior of the white latex gloves and Edwin’s
DNA was on the interior of the gloves.
The police also collected physical evidence at Hawes Lawn Service. Investigators
found a black spray paint can on a desk similar to the paint found at Andrew’s residence.
Investigators also conducted Luminol testing on surfaces within the business to determine
the presence of blood. The testing revealed various areas of blood around the business,
including on the floor by the entrance door, walls, a light switch, and an office chair.
Investigators also saw several holes in a cushion of a couch and when an investigator
looked to the backside of the couch, there were “exit holes.” Investigators also observed
numerous holes in the sheetrock of the back wall that were in “relatively close proximity
to each other.” The projectile that went through these holes almost went through the
metal siding on the outside of the building. Investigators believed that it was “very
possible” that a crossbow would be powerful enough to make those holes.
Investigators also gathered physical evidence from several vehicles. Investigators
processed the Hawes Lawn Service truck, a 2001 Chevrolet pickup, for evidence. They
found a latex glove in the truck, but did not find any blood on the outside or inside of the
10
pickup truck. Investigators also processed Andrew’s Volkswagen Beetle, but did not find
any blood on the outside or inside of the vehicle.
There was physical evidence on the pickup, a Ford F-350, suggesting that
someone used this truck to transport Edwin’s body. Investigators recovered an orange
towel with blood on it from the passenger compartment of the truck. The blood on this
towel matched Hawes’ DNA profile. There was also a tennis shoe with an arrow sticking
out of it. The arrow had blood on it that matched Edwin’s DNA profile. Investigators
also removed two bleach bottles and a pair of rubber gloves from the back of the truck.
DNA testing on the inside of one of the gloves could not exclude Hawes’ DNA profile,
but it could exclude the DNA profile of Dorniden, Andrew and Daniel Romig, Hawes’
husband. Further, DNA testing on the exterior of the glove could not exclude Edwin’s
DNA profile but did exclude all other suspects. Police also found Hawes’ purse in the
pickup. The purse contained the key to Edwin’s Volkswagen Passat.
Investigators found Edwin’s Volkswagen Passat in a church parking lot in Golden
Valley, and collected physical evidence from the vehicle. When investigators located the
car, the car was locked and there were no keys inside the vehicle. There was biological
matter found on the left front driving light and the front grill. There was also a large
amount of blood present on the underside of the car. This blood smearing extended from
the front of the vehicle to the tailpipe. There was blood on the front passenger headlight,
driver’s side front tire, rocker panel area on the driver’s side, bottom portion of the
driver’s door, and left rear quarter of the vehicle. There was also a 14-inch blood smear
on the rear bumper on the driver’s side. There were some fabric impressions within the
11
smeared blood on the driver’s side rear fender. Investigators also found a three-pound
sledgehammer with blood deposits in the trunk of the Passat. This hammer was similar to
two hammers found at the murder scene. Blood matching Edwin’s DNA profile was
found on the steering wheel and gearshift handle of the Passat.
Finally, the State introduced telephone phone records showing numerous calls
between Hawes and Andrew just before the murder. The calls then ceased during the
time of the murder and resumed shortly thereafter.
Cell tower information placed
Andrew’s cell phone near Edwin’s residence during some of these calls.4
Hawes testified in her own defense. She said that she did not kill Edwin and she
did not encourage her brother Andrew to kill him. She also testified that she did not
know that Andrew planned to kill Edwin on October 29, 2008. Hawes testified that on
October 29, she left work around 4:45 p.m. She then bought a ticket for the light rail and
rode the train home. Hawes testified that she did a few errands around the house and then
visited her mom in Golden Valley. She returned home around 8 p.m. Her husband,
Daniel, and Andrew came to the house around 9 p.m. Later in the evening, Andrew made
a request of Hawes. Hawes told Andrew in response that she was tired and did not want
to help him. But Andrew persisted in his request and Hawes eventually drove with him
in a Hawes Lawn Service truck to Andover. During this drive, Andrew gave Hawes the
4
On October 26, 2008, an unidentified person purchased two prepaid cellular
telephones at a store located two blocks from Andrew’s residence. The individuals who
used these phones used them to communicate primarily with each other. But there were
also phone calls placed and received on these phones from Hawes’s home residence and
Andrew’s cell phone. The phones were not used after October 29.
12
key to Edwin’s Volkswagen Passat. They eventually arrived at a golf course and got out
of the truck. They started walking down a residential street and Hawes asked Andrew
why they were not at Edwin’s house with the Passat. Andrew responded and Hawes
testified that she screamed, “What?” Andrew then said something, and Hawes stated,
“No, we are not.” She then walked away from him and the police later arrested her at the
golf course.
Hawes was released from jail in the afternoon of October 30 and she returned
home to find Andrew there. She learned more about the events that occurred a day
earlier and that Edwin’s body was in her husband’s pickup outside her house. She
eventually drove the pickup down to Cottonwood County with Andrew and Dorniden to
dispose of the body.
The State charged Hawes with aiding and abetting in the first-degree premeditated
murder of Edwin. Hawes demanded a speedy trial. The jury found Hawes guilty of
aiding and abetting first-degree premeditated murder. Hawes’ counsel moved for a new
trial on the ground of newly available evidence. Counsel contended that an affidavit
from Andrew, stating that he would waive his Fifth Amendment right against selfincrimination and testify that Hawes had nothing to do with the murder of Edwin, was
newly available evidence. The district court denied Hawes’ motion for a new trial
because Hawes and her counsel knew of this testimony at the time of trial. The court
then sentenced her to life in prison without the possibility of parole. This direct appeal
follows.
13
I.
We turn first to Hawes’ contention that there is insufficient evidence to support
her conviction for aiding and abetting first-degree premeditated murder. A person is
liable for a crime committed by another if the person “intentionally aids, advises, hires,
counsels, or conspires with or otherwise procures the other to commit the crime.” Minn.
Stat. § 609.05, subd. 1; see also State v. Souvannarath, 545 N.W.2d 30, 33 (Minn. 1996).
To be guilty of aiding and abetting a crime, the defendant does not need to have
participated actively in the actual commission of the crime. Bernhardt v. State, 684
N.W.2d 465, 477 (Minn. 2004).
But the State must prove that the defendant had
“knowledge of the crime and intended his presence or actions to further the commission
of that crime.” State v. Clark, 755 N.W.2d 241, 257 (Minn. 2008) (citation omitted)
(internal quotation marks omitted). Jurors can “infer the necessary intent from factors
including: defendant’s presence at the scene of the crime, defendant’s close association
with the principal before and after the crime, defendant’s lack of objection or surprise
under the circumstances, and defendant’s flight from the scene of the crime with the
principal.” State v. Swanson, 707 N.W.2d 645, 659 (Minn. 2006) (citation omitted)
(internal quotation marks omitted).
Hawes argues that the evidence is not sufficient to sustain her conviction because
the State’s case was wholly circumstantial and that the reasonable inferences to be drawn
from the circumstantial evidence support only a conviction for accessory after the fact.
She also argues that the evidence was insufficient under the standard we applied in State
v. Ulvinen, 313 N.W.2d 425 (Minn. 1981). We consider these arguments in turn.
14
A.
Hawes’ first sufficiency of the evidence argument is premised on the fact that the
State presented only circumstantial evidence against her. In circumstantial evidence
cases, “the circumstances proved must be consistent with guilt and inconsistent with any
rational hypothesis except that of guilt.” State v. Andersen, 784 N.W.2d 320, 330 (Minn.
2010). Hawes argues that the evidence was not sufficient to support her conviction
because the defense presented evidence that supports a rational hypothesis that Hawes did
not aid and abet the killing of Edwin. In order to review whether the evidence was
sufficient in this circumstantial evidence case, we follow a two-step process. Id. at 329.
The first step in this analysis is to identify the circumstances proved. Id. In
identifying the circumstances proved, we “defer, consistent with our standard of review,
to the jury’s acceptance of the proof of these circumstances and rejection of evidence in
the record that conflicted with the circumstances proved by the State.” Id. (citation
omitted) (internal quotation marks omitted).
Stated another way, we “construe
conflicting evidence in the light most favorable to the verdict and assume that the jury
believed the State’s witnesses and disbelieved the defense witnesses.” State v. Tscheu,
758 N.W.2d 849, 858 (Minn. 2008). Under this standard, we disregard testimony that is
inconsistent with the verdict. See id.
The second step in this analysis is to determine whether the circumstances proved
are “consistent with the hypothesis that the accused is guilty and inconsistent with any
rational hypothesis except that of his guilt.” Andersen, 784 N.W.2d at 329. Unlike the
deference we give to the jury in reviewing circumstances proved, we give “no deference
15
to the fact finder’s choice between reasonable inferences.”
Id. at 329-30.
When
evaluating whether the circumstances proved are consistent with a rational hypothesis of
guilt and inconsistent with a rational hypothesis of innocence, we “do not review each
circumstance proved in isolation.”
Id. at 332.
Instead, we consider whether the
circumstances proved are “consistent with guilt and inconsistent, on the whole, with any
reasonable hypothesis of innocence.” Id. (citing State v. Curtis, 295 N.W.2d 253, 258
(Minn. 1980) (alteration in original)).
1.
The State proved the following circumstances at trial. Hawes had disdain for her
brother because she believed that he embezzled money from a family business and
misappropriated money from her grandmother. Hawes believed that Edwin had taken
advantage of everyone in her family including herself.
Hawes was also frustrated
because, despite her efforts to seek help from the FBI, the Minnesota Attorney General,
the Robbinsdale Police Department, and the Minnesota Financial Crimes Task Force, the
authorities were not going to arrest Edwin for his alleged financial crimes. When Special
Agent Bona told Hawes that Edwin would not be arrested because he did not commit any
crimes and even if he did, the statute of limitations would prevent prosecution, Hawes
became very loud, hostile and “on fire” because she believed that Edwin was getting
away with theft.
Hawes also asked Bona during this conversation why Bona was
allowing Edwin to get away with his alleged crimes.
Edwin did not tell Andrew or Hawes where he lived. Before the murder, Hawes
discovered where Edwin lived by following him home from his daughter’s dance recital
16
while driving Andrew’s Volkswagen Beetle. Hawes also gathered information about
when Edwin’s minor daughter would be absent from Edwin’s home.
On September 22, 2008, sometime in the mid-afternoon, M.W. caught Hawes
looking around the residence he shared with Edwin. Hawes went beyond the yard area,
walked into the shed, and climbed the steps to a deck once she knew that Edwin’s car was
not there. Edwin obtained a restraining order against Hawes because he believed that he
was in danger of Hawes.
Hawes knew that Andrew had threatened to kill Edwin and had previously
assaulted him. Specifically, Edwin explained during a conversation with Hawes and his
parents that Andrew threatened to kill him and several people heard the threat. Hawes
responded by asking Edwin if he really believed that Andrew would kill him and if
Edwin believed that he deserved to be killed. Further, in July 2008, Andrew rammed
Edwin’s car off the road. The State eventually charged Andrew with two counts of
second-degree assault, two counts of terroristic threats, and two counts of criminal
damage to property.
In the few hours immediately before and after Edwin’s murder, there were
telephone calls placed between phone numbers associated with Hawes, Andrew, and
prepaid cell phones. Some of these calls were placed near Edwin’s residence.
Hawes was near the murder scene within hours of the crime, and the police
arrested Hawes near Edwin’s house. Hawes repeatedly lied to police about why she was
at the golf course when Deputy Pierson questioned her in the early hours of the morning.
Hawes came out of the woods near the area where evidence relating to the murder was
17
found. Specifically, in this area investigators found a crossbow, a quiver, two arrows, an
empty one-gallon plastic jug with a blue screw cap, a brown jacket, and a pair of white
latex gloves with blood on them containing a mixture of Andrew and Edwin’s DNA.
Hawes also participated in burning Edwin’s body. Hawes and Dorniden took
turns driving a truck belonging to Hawes’ husband to the Cottonwood County farm
owned by Andrew and Dorniden, knowing that Edwin’s body was in the bed of the truck.
Police also found Hawes standing over Edwin’s burning body in the fire pit. Hawes
spontaneously told police when they approached her as she was standing over Edwin’s
body, “That’s not a horse we’re burning in there.” Then she said, “That’s not my brother
[Edwin]. That’s not my brother in there.” At some point during the conversation with an
officer, she responded to the officer’s question about her knowledge of Edwin’s
whereabouts. Hawes stated, “Maybe [Edwin] was in an accident. [I] hope he dies. He’s
a very bad man.” Investigators later searched the Ford F-350 used to transport Edwin’s
body from the Twin Cities to Cottonwood County. There was physical evidence in this
pickup with Hawes’ DNA profile on it, including an orange towel and a rubber glove.
Hawes was in possession of the key to Edwin’s Passat. The vehicle was locked
and there were no keys inside when investigators located the vehicle. Hawes showed the
key to Detective Pierson in the early morning hours of October 30, 2008, and it was
found later in her purse, which investigators located during their search of the Ford F-350
truck. Investigators found biological matter on the left front driving light and the front
grill of the Passat. There was also a large amount of blood present on the underside of
the car, extending from the front of the vehicle to the tailpipe. There was also blood on
18
various other locations on the inside and outside of the car, including some fabric
impressions with blood smeared on the driver’s side fender. Investigators found blood
matching Edwin’s DNA profile on the steering wheel and gearshift handle.
Dr.
Amatuzio testified that Edwin had fractures to his pelvic region and these injuries were
consistent with someone running Edwin over with a car.
In arguing that the evidence is insufficient, Hawes cites her own testimony, during
which she denied involvement in Edwin’s murder. But, in determining the circumstances
proved, we consider only those circumstances that are consistent with the verdict.
Andersen, 784 N.W.2d at 330 (determining what circumstances were proved considering
the evidence “in a light most favorable to the State”); Tscheu, 758 N.W.2d at 858. This is
so because even in cases based on circumstantial evidence, the jury is in the best position
to evaluate the credibility of the evidence. Consistent with our standard of review, we
defer “to the jury’s acceptance of the evidence that supports the verdict and rejection of
evidence in the record that conflicted with circumstances proved by the State’s
evidence.” Andersen, 784 N.W.2d at 329 (quoting State v. Stein, 776 N.W.2d 709, 716
(Minn. 2010)) (internal quotation marks omitted). Hawes’ testimony conflicts with the
State’s evidence that supports the verdict and so under the proper standard of review, we
do not consider Hawes’ testimony when identifying the circumstances proved. See id.
2.
Having determined the circumstances proved, we now consider whether those
circumstances, when assessed in their entirety, support a reasonable hypothesis that
Hawes aided and abetted her brother Andrew in the murder of their brother, Edwin.
19
From the circumstances proved, the jury could reasonably infer that Hawes had a motive
to kill Edwin because she believed Edwin stole money from Hawes Lawn Service, where
she was vice-president, and from their grandmother. Hawes became enraged when she
learned that the government authorities were not going to pursue prosecution of Edwin
and she told an officer at the bonfire in Cottonwood County that she hoped her brother
was dead.
The jury could also reasonably infer that Edwin was fearful of his sister. Edwin
secured a restraining order against Hawes a month before his murder because he believed
he was in danger of Hawes. He was also afraid of her because he believed that she
always took Andrew’s side, and Andrew had threatened to kill Edwin.
The jury could also reasonably infer that Hawes gathered information about
Edwin’s schedule from R.W., and information about the property where he lived, and that
this information aided the alleged killer, Andrew. With respect to the information about
Edwin’s schedule, it is also reasonable to believe that Hawes had a criminal purpose for
the visitation information she received from R.W. in September 2008.
Hawes
misrepresented her purpose for obtaining the information, contending that she needed the
visitation information because the authorities were going to arrest Edwin very soon and
she did not want Avery around when they arrested Edwin. But this reason for obtaining
the visitation information disappeared in August 2008, when Hawes learned that Edwin
would never be arrested. Nevertheless, Hawes persisted with inquiring about Edwin’s
visitation schedule for the fall when she called R.W. in September 2008.
20
It is also reasonable to believe that Hawes was gathering information about
Edwin’s residence when she was snooping around the residence on September 22, 2008,
and that she provided this information to Andrew. Information about the layout of this
property was necessary for this murder because someone placed weapons around the
property including hammers and an aluminum bat in case they were needed. One of the
hammers found was located next to a woodpile near the shed that Hawes went into when
she walked around the property, five weeks before the murder. In addition, testimony
established that investigators found blood covered leaves and a pair of men’s pants near
the same shed, supporting the inference that Edwin’s body was hidden under a pile of
leaves near the shed prior to being moved to Cottonwood County. There is no evidence
in the record to indicate that anyone other than Hawes was gathering information as to
the property where Edwin lived. There is also no evidence in the record to indicate that
Andrew was ever at Edwin’s residence before the murder.
It is reasonable to believe that Hawes was involved with Edwin’s murder because
Hawes had the key to the Volkswagen Passat in her possession shortly after the murder.
The evidence from both the Passat and the autopsy on Edwin’s body support the
inference that someone ran Edwin over with his Passat.
Further, it is reasonable to believe that Andrew and Hawes were contacting each
other in the hours leading up to the murder to talk about the plan to murder Edwin. On
October 29, there were numerous short, successive calls between phones associated with
Hawes and Andrew in the hours leading up to the murder. The calls then ceased during
the approximate time of the murder and resumed shortly thereafter.
21
Cell tower
information placed Andrew’s cell phone near Edwin’s residence during some of the
phone calls to Hawes’ place of employment and her residential line.
Additionally,
someone purchased two prepaid cell phones, and these prepaid cell phones called both
Andrew’s cell phone and Hawes’ residential line shortly after the murder. The prepaid
phones also called each other. The use of the prepaid phones supports the inference that
those who used them wanted to talk without a record of their communication.
Finally, Hawes assisted with cleaning up the murder, both in Andover and
Cottonwood County. It is reasonable to believe that, given the circumstances, Hawes was
cleaning up in an effort to protect herself. The police arrested Hawes in the early
morning hours of October 30 for violating a restraining order because she admitted to
being near Edwin’s residence. Once she was released from jail later in the day, she went
right back to cleaning up the murder. Hawes and Dorniden took turns driving the Ford F350 with Edwin’s body in the back to Cottonwood County and Hawes stood near the
bonfire as Edwin’s body burned.
In sum, it is reasonable to infer from the circumstances proved that Hawes aided
and abetted Edwin’s murder. She had a motive and she gathered information about
Edwin’s address, schedule and property that was helpful to Andrew.
The phone
conversations between Andrew and Hawes immediately before the murder also support a
reasonable inference that Hawes was assisting Andrew in the crime. Finally, Hawes
helped Andrew hide the body and other evidence of the murder.
The evidence is
therefore sufficient to support the conviction. See State v. Russell, 503 N.W.2d 110, 114
(Minn. 1993) (“The state meets its burden” to prove aiding and abetting “by showing
22
‘some knowing role in the commission of the crime by a defendant . . . .’ ” (quoting State
v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988)).
Not only is it reasonable to conclude from the circumstances proved that Hawes
aided Andrew in commission of the murder, but that is the only reasonable hypothesis
supported by the circumstances proved when the circumstances are considered in their
entirety. Hawes’ argument to the contrary rests entirely on her own testimony, which as
we noted above, is not part of the circumstances proved. Moreover, in order to conclude
that the only crime Hawes committed was accessory after the fact, the evidence regarding
Hawes’ motive and the planning activity would have to be ignored. But we examine the
circumstances proved in their entirety, not certain facts in isolation. Andersen, 784
N.W.2d at 332 (“But we do not review each circumstances proved in isolation.”). When
the circumstances proved are taken together, there cannot be a reasonable hypothesis that
Hawes is not guilty of aiding and abetting Edwin’s murder. We therefore hold that the
circumstantial evidence was sufficient to support Hawes’ conviction of aiding and
abetting first-degree premeditated murder.
B.
In addition to the sufficiency of the evidence argument she makes based on the
inferences to be drawn from the circumstantial evidence, Hawes also argues that the
evidence was not sufficient based on the aiding and abetting standard we applied in State
v. Ulvinen, 313 N.W.2d 425 (Minn. 1981). Specifically, Hawes contends that this case is
almost identical to Ulvinen because the “jurors were confronted with a gruesome murder”
and the juries in both cases found the defendants’ conduct “so shocking that it deserved
23
punishment.” Hawes also argues that like the facts in Ulvinen, there is no evidence in
this case that Hawes encouraged Andrew to take a course of action that he might not
otherwise have taken. Therefore, she argues, the evidence is not sufficient to support her
conviction for aiding and abetting Andrew in Edwin’s murder. We disagree.
In Ulvinen, Ulvinen’s son told her of his intent to kill his wife, and she responded,
“it will be for the best.” Id. at 427. The evidence also indicated that Ulvinen was asleep
when her son killed his wife, but she made sure that the children did not enter the
bathroom after the murder when her son dismembered the body. Ulvinen also helped her
son clean up the murder, and assisted him in corroborating his story that his wife left him
in an effort to cover up the murder. Id. at 426. We reversed Ulvinen’s conviction for
aiding and abetting her son in the murder. We found that there was no evidence that the
remark made by Ulvinen, “it will be for the best” if her son killed his wife, had any
influence on her son’s decision to kill his wife. Id. at 428. Because the aiding and
abetting statute requires “something more of a person than mere inaction to impose
liability as a principal,” and Ulvinen’s comment constituted only “passive approval,” we
held that the evidence was insufficient to convict Ulvinen of aiding and abetting the
murder of her son’s wife. Id. at 428–29.
The evidence of Hawes’ involvement in the murder is much different from that
presented in Ulvinen. Unlike the appellant in Ulvinen, Hawes did not simply passively
acquiesce in Edwin’s murder. Hawes gathered information about Edwin’s residence, the
property surrounding the residence, and Edwin’s visitation schedule with his daughter.
The jury could reasonably infer that Hawes provided this information to Andrew, the
24
person who murdered Edwin, and that the information provided was useful in the
commission of the murder. Hawes also had a motive for the murder and she participated
in the cleanup of the murder.
Hawes contends, however, that Ulvinen requires that the State prove that Hawes
encouraged Andrew to take a course of action that he would not otherwise have taken in
order for Hawes to be guilty of aiding and abetting. Hawes argues that the State did not
meet this burden because Andrew was “otherwise inclined to murder Edwin,” and that
the State did not prove that Hawes “put him up to it.” Under the statute, if a person
“procures” another to commit a crime, the person is guilty of aiding and abetting. See
Minn. Stat. § 609.05, subd. 1. But a person is also guilty of aiding and abetting if the
person intentionally aids, advises or counsels the other to commit the crime. Id.; see also
Clark, 755 N.W.2d at 257 (noting that the State must prove that “the defendant had
knowledge of the crime and ‘intended his presence or actions to further the commission
of that crime.’ ” (citation omitted)). As set forth above, the evidence reflects that Hawes
knowingly aided Andrew in killing Edwin, and her actions furthered the commission of
this crime. We therefore hold that the evidence is legally sufficient to support Hawes’
conviction.
25
II.
We turn next to Hawes’ contention that the district court erred when it prevented
Hawes from testifying to out-of-court statements made by Andrew.5 Specifically, Hawes
asserts that the court erred when it excluded statements allegedly made by Andrew to
Hawes regarding the circumstances of the murder.6
Hawes first asserts that the
statements were admissible hearsay because they are statements against Andrew’s penal
5
The State made a motion on March 24, 2011, to strike references to Andrew’s
testimony at his own trial from Hawes’ brief. In an order filed on April 7, 2011, we
deferred consideration of the motion until consideration of Hawes’ appeal on the merits.
Because the references to Andrew’s testimony in Hawes’ brief are outside of the record
in this case, we grant the State’s motion.
6
In her written offer of proof, Hawes indicated that she would testify that Andrew
made the following statements to her between October 29 and October 31, 2008: (1)
Andrew confessed to Hawes the planning and murder of Edwin; (2) Andrew told Hawes
that he picked Kristina Dorniden up at her parents’ house around 5:30 p.m. driving a grey
Volkswagen Beetle and that Dorniden was to drop him off hear Edwin’s residence in
Andover; (3) Andrew told Hawes that he waited in the woods near Edwin’s property for
Edwin to arrive and there were weapons that he had previously placed around the
property; (4) Andrew stated that Edwin arrived home, Andrew confronted him, and
Andrew eventually shot Edwin with a crossbow that he pulled out from under a pile of
leaves; (5) after shooting Edwin, Andrew continued to struggle with him, hitting him
with a hammer and eventually driving over him with the Passat and covering his body
with a pile of leaves; (6) Andrew drove the Passat to the Hawes Lawn Service building in
north Minneapolis and called Hawes’ husband, Daniel Romig; (7) Romig helped Andrew
clean up; (8) Andrew drove the Passat to a church parking lot in Golden Valley; (9)
Andrew and Romig drove to a Rainbow Foods in south Minneapolis in an attempt to
create an alibi by being shown on surveillance camera footage; (10) Andrew tricked
Hawes into going to Edwin’s residence in the early morning hours of October 30; and
(11) Romig helped Andrew dispose of the body and clean up the murder scene. In
addition to testifying about the statements contained in the offer of proof, Hawes
contends that she should have been allowed to explain that “Andrew convinced her to go
to Edwin’s house during the early morning hours of October 30, 2008, under the guise of
repossessing the Passat,” and that while she and Andrew walked toward Edwin’s house,
Andrew told Hawes that Edwin was dead and he needed her help moving the body.
26
interest and she provided corroborating circumstances to indicate the statements’
trustworthiness.
See Minn. R. Evid. 804(b)(3) (stating that statements made by an
unavailable witness are admissible if the statements would subject the declarant to
criminal liability so long as “corroborating circumstances clearly indicate the
trustworthiness of the statement”). Hawes alternatively asserts that these statements were
admissible non-hearsay statements because she did not offer them to prove the truth of
the matter asserted, but offered them to show the effect Andrew’s statements had on
Hawes and to explain her actions.
We need not, and do not, decide whether the district court erred when it prevented
Hawes from using out-of-court statements made by Andrew because any alleged error
was harmless beyond a reasonable doubt.7 This is so because much of what Hawes
claims the district court erroneously excluded was already presented to the jury. The
statements in the written offer of proof provide additional details of the murder, but the
substantive point of these statements is that Andrew committed the murder. That Andrew
murdered Edwin was not in dispute at Hawes’ trial; the question was whether Hawes
aided and abetted Andrew in committing the murder. To the extent the statements at
issue bear on this question, Hawes, in effect, presented this evidence to the jury. In her
direct examination, Hawes testified that Andrew made a request of her that caused her to
7
We apply the beyond-a-reasonable-doubt-harmless-error standard because we
understand Hawes’ claim to be that the district court’s erroneous exclusion of evidence
violated Hawes’ constitutional right to present a complete defense. See State v. Hall, 764
N.W.2d 837, 842, 844 n.4 (Minn. 2009) (applying the beyond-a-reasonable-doubtharmless-error standard to assess constitutional errors).
27
leave her home and go with Andrew to Andover. She also testified that Andrew handed
her the key to Edwin’s Volkswagen Passat and that Andrew told her the real reason why
they had gone to Edwin’s house. She testified that she was screaming when she found
out, she started walking away and telling Andrew, “No we are not. I’m getting the truck
and we are going home.” Hawes was also able to testify as to her reactions to what
Andrew told her, how she was stunned and that she did not know what to do as a result of
what Andrew said to her. In short, because the evidence at issue was largely in front of
the jury, we hold that any error was harmless beyond a reasonable doubt.
III.
We turn next to Hawes’ contention that the district court erred when it denied her
motion for a new trial on the grounds of newly available evidence. Hawes based her
motion on an affidavit from Andrew stating that he would waive his Fifth Amendment
right against self-incrimination and testify that Hawes was not involved with Edwin’s
murder. Because Hawes and her counsel knew of Andrew’s expected testimony at the
time of trial, we conclude the court did not err when it denied Hawes’ motion for a new
trial.
A district court may grant a new trial “on the issue of guilt . . . [for n]ewly
discovered material evidence, which with reasonable diligence could not have been found
and produced at the trial.” Minn. R. Crim. P. 26.04, subd. 1(1). To obtain a new trial on
the ground of newly discovered evidence, a defendant must establish: “(1) that the
evidence was not known to him or to his counsel at the time of trial, (2) that his failure to
learn of it before trial was not due to the lack of diligence, (3) that the evidence is
28
material . . . , and (4) that the evidence will probably produce either an acquittal at a
retrial or results more favorable to the petitioner.” State v. Warren, 592 N.W.2d 440, 450
(Minn. 1999).8 We have previously held that this test applies to newly available evidence
as well. Id.; see also State v. Whittaker, 753 N.W.2d 668, 671 (Minn. 2008).9 We review
the denial of a motion for a new trial for an abuse of discretion. State v. Green, 747
N.W.2d 912, 917 (Minn. 2008).
Our review of the record leads us to conclude that Hawes and her counsel had
knowledge of Andrew’s expected testimony at the time of trial and the evidence was
therefore available to Hawes. The information contained in the affidavit was similar to
8
This test is formulated in the context of a petition for post-conviction relief under
Minn. Stat. § 590.01 (2010). Even though Hawes did not bring her motion under section
590.01, the parties do not contend that the district court erred in relying on this
articulation of the standard for awarding a new trial.
9
Hawes asks to modify the test defendants must satisfy to obtain a new trial based
on newly available evidence. Under Hawes’ proposed test, the defendant must prove
that: (1) the evidence was not available to him or to his counsel at the time of trial; (2)
the unavailability of the evidence before trial was not due to a lack of diligence; (3) the
evidence is material; and (4) the evidence will probably produce either an acquittal at a
retrial or results more favorable to the petitioner. Hawes asserts that this proposed test
properly focuses the district court’s inquiry on the availability of evidence instead of the
knowledge of the evidence. Hawes asserts that she satisfies all of the elements of the
modified test. We reject Hawes’ invitation to modify our newly available evidence test.
Our precedent is clear that our newly available evidence test is the same as our newly
discovered evidence test and Hawes has not articulated a compelling reason for us to
deviate from our precedent. See Warren, 592 N.W.2d at 450 (holding that the newly
discovered evidence test and the newly available evidence are the same); Whittaker, 753
N.W.2d at 671 (same); see also State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009)
(explaining that we are “extremely reluctant to overrule our precedent under principles of
stare decisis” and that we require a “compelling reason before a prior decision will be
overruled” (citations omitted) (internal quotation marks omitted)).
29
the statements made by Hawes’ attorney during opening argument. Andrew’s affidavit
contains information similar to that provided in the written offer of proof Hawes
submitted and in Hawes’ testimony at trial. The affidavit consequently did not provide
any new information.
See Scherf v. State, 788 N.W.2d 504, 508 (Minn. 2010)
(“explaining that ‘the statement of an individual who refused to testify at trial is not
‘unknown’ . . . if, at the time of trial, the petitioner knew the substance of the testimony
that the individual might provide.’ ” (quoting Whittaker, 753 N.W.2d at 671)). We
therefore hold that the district court did not abuse its discretion when it denied Hawes’
motion for a new trial on the grounds of newly available evidence.10
Affirmed.
STRAS, J., took no part in the consideration or decision of this case.
10
Hawes contends that she is entitled to a new trial in the interests of justice because
the district court erroneously prevented Hawes from testifying to out-of-court statements
made by Andrew due to his exercise of his Fifth Amendment right against selfincrimination. Hawes contends that because the court precluded any of these statements
from being introduced at trial, she was prevented from presenting an adequate defense
that could explain her actions. Hawes’ situation is not an “extraordinary situation” that
warrants the grant of a new trial in the interests of justice. State v. Gassler, 787 N.W.2d
575, 586 (Minn. 2010). As noted above, the court did not deny Hawes the ability to
present an adequate defense because much of what Hawes claims was erroneously
excluded was already presented to the jury. For these reasons, we hold that a reversal in
the interests of justice is not warranted.
30
]]>
