Kenneth Eugene Andersen,

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STATE OF MINNESOTA

IN SUPREME COURT

A19-0745

Becker County Thissen, J.

Kenneth Eugene Andersen,

Appellant,
vs. Filed: March 11, 2020
Office of Appellate Courts
State of Minnesota,

Respondent.

________________________

Zachary A. Longsdorf, Longsdorf Law Firm, P.L.C., Inver Grove Heights, Minnesota, for
appellant.

Keith Ellison, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul,
Minnesota; and

Brian McDonald, Becker County Attorney, Detroit Lakes, Minnesota, for respondent.
________________________

S Y L L A B U S

1. Appellant is not entitled to a new trial because the district court did not
clearly err in finding that the testimony of appellant’s witnesses was not credible.
2. The district court did not abuse its discretion when it denied appellant’s
request to reopen the record to allow the admission of additional evidence relating to claims
that were not alleged in the second postconviction petition.

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3. Appellant failed to sufficiently develop for appellate review his claim that a
witness’s purported expression of racial bias during a p ost-trial interview deprived
appellant of a fair trial.
4. Appellant failed to show that his alleged claim of racial imbalance in the jury
pool was the result of systematic exclusion of a distinctive group in the community.
5. Appellant was not prejudiced by the State’s failure to disclose an interview
conducted by an investigator who testified at trial.
Affirmed.
O P I N I O N
THISSEN, Justice.
In 2008, appellant Kenneth Eugene Andersen was convicted of first -degree
premeditated murder. In this appeal, Andersen challenges the district court’s denial of his
second petition for postconviction relief. In Andersen v. State (Andersen III ), 913 N.W.2d
417, 421 (Minn. 2018), we reversed in part the district court’s denial of Andersen’s second
postconviction petition and remanded to the district court for its determination of whether
an evidentiary hearing was required to consider the evidence set forth in the affidavits of
Geraldine Bellanger and Stacy Weaver. After hearing from over a dozen witnesses , the
district court found that the testimony by Bellanger and Weaver was not credible.
We conclude that Andersen did not establish that he is entitled to a new trial under
the tests we set forth in Rainer v. State, 566 N.W.2d 692 , 695 (Minn. 1997), and State v.
Caldwell, 322 N.W.2d 574, 584–85 (Minn. 1982) (citing Larrison v. United States, 24 F.2d
82, 87 –88 (7th Cir. 1928), overruled by United States v. Mitrione , 357 F.3d 712, 718

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(7th Cir. 2004)). We hold that the district court properly declined to grant him a new trial.
The remainder of Andersen’s arguments also do not entitle him to re lief. We therefore
affirm.
FACTS
In 2008, a jury found Andersen guilty of first -degree premeditated murder for the
April 2007 shooting death of Chad Swedberg. Andersen challenged his conviction on
direct appeal and we affirmed the conviction. Andersen v. State (Andersen I), 784 N.W.2d
320, 323 (Minn. 2010).
In 2010, Andersen filed his first postconviction petition. He raised claims of newly
discovered evidence, violation of his right to counsel, prosecutorial misconduct,
Confrontation Clause violations, and ineffective assistance of trial and appellate counsel.
Andersen v. State (Andersen II ), 830 N.W.2d 1, 6 (Minn. 2013). The petition was
summarily denied by the district court and we affirmed. Id. at 14.
In September 2016, Andersen filed his secon d postconviction petition.
See Andersen III, 913 N.W.2d at 417. In support of his postconviction petition, he alleged
that newly discovered evidence, including affidavits from Geraldine Bellanger and Stacy
Weaver, required an evidentiary hearing . Id. at 421–22. He also alleged a violation of
Brady v. Maryland , 373 U.S. 83 (1963) , and ineffective assistance of trial counsel .
Andersen III, 913 N.W.2d at 425 n.8; id. at 429 n.14. Andersen argued that his claims
could be considered based on the newly -discovered-evidence and interests -of-justice
exceptions to the 2-year time bar on postconviction claims set forth in Minn. Stat. § 590.01,
subd. 4 (2018). Without conducting an evidentiary hearing to assess credibility, the district

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court summarily denied Andersen’s second petition, concluding, among other things, that
the Bellanger and Weaver affidavits were not credible. 913 N.W.2d at 422.
Andersen appealed. We affirmed in part, upholding the district court’s summary
denial of most claims raised in his second petition. Id. We rejected without prejudice
claims based on post-trial interviews of witnesses and others conducted by an investigator
that Andersen retained. We concluded that the investigator’s unsworn reports were
insufficient to support a claim for postconviction relief.
Because the district court rejected the Bellanger and Weaver affidavits as not
credible without conducting an evidentiary hearing, however, we reversed in part and
remanded. Id. at 424. We instructed the district court to a ssume that the facts in the
affidavits were true and assess whether an evidentiary hearing was necessary. Id. If it
concluded that a hearing was necessary, we directed that the district court promptly conduct
the hearing to determine whether Andersen was entitled to relief based on the affidavits.
Id.
On remand, the district court concluded that Andersen was entitled to an evidentiary
hearing on the allegations in the Bellanger and Weaver affidavits because, when taken as
true, they satisfied the newly -discovered-evidence exception to the statute of limitations.
The district court held an evidentiary hearing and heard testimony from over a dozen
witnesses. After the hearing, Andersen moved to reopen and expand the record to include
evidence relating to claims that were not alleged in the second postconviction petition. The
district court denied the motion. Based on the testimony of witnesses at the hearing, the
court ultimately concluded that the Bellanger and W eaver evidence was not credible and

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that Andersen was not entitled to relief because the evidence failed to clearly and
convincingly prove that Andersen was innocent of the offense. Andersen appealed.
ANALYSIS
We review a district court’s decision on a petition for postconviction relief for an
abuse of discretion. See Zornes v. State, 903 N.W.2d 411, 416 (Minn. 2017). “A [district
court] abuses its discretion when its decision is based on an erroneous view of the law or
is against logic and the facts in the record.” Brown v. State , 895 N.W.2 d 612, 617
(Minn. 2017) (citation omitted) (internal quotation marks omitted).
A district court’s credibility determinations are reviewed for clear error. Bobo v.
State, 860 N.W.2d 681, 684 (Minn. 2015). We will disturb a district court’s credibility
determinations only when , after a thorough review of the record, we are left with the
definite and firm conviction that a mistake has been made. See Tscheu v. State ,
829 N.W.2d 400, 403 (Minn. 2013).
I.
Andersen argues that the district court improperly applied the clear and convincing
standard from Minn. Stat. § 590.01, subd. 4, to determine whether he was innocent of
murder and therefore entitled to a new trial. He argues that, before granting an evidentiary
hearing, the district court had determined that the Bellanger and Weaver affidavits, taken
as true, surmounted the clear and convincing hurdle of the newly -discovered-evidence
exception to the 2 -year time bar on postconviction petitions. See id., subd. 4(b)(2).
Accordingly, he asserts that the court should have applied either the Rainer test for newly
discovered evidence, 566 N.W.2d at 695, or the Larrison test for false or recanted

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testimony, Opsahl v. State , 677 N.W.2d 414, 422–23 (Minn. 2004), when substantively
assessing the claims.
Under each test, the petitioner need satisfy his burden of proof only by a
preponderance of the evidence, not by clear and convincing evidence. State v. Hurd ,
763 N.W.2d 17, 34 (Minn. 2009) (discussing Rainer); Opsahl, 677 N.W.2d at 423
(discussing Larrison). But even under the less onerous standards of Rainer and Larrison,
Andersen is not entitled to a new trial.
In Rainer, we established a test for determining whether to grant a new trial based
on newly discovered evidence. To receive a new trial, a postconviction petitioner must
show that the evidence (1) was not known to the defendant or defense counsel at the time
of the trial; (2) could not have been discovered through due diligence before trial; (3) is not
cumulative, impeaching, or doubtful; and (4) would probably produce an acquittal or a
more favorable result. Rainer, 566 N.W.2d at 695. A petitioner’s failure to prove any
element of the test dooms his claim. See Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013).
We have adopted the Larrison test for determining whether to grant a new trial based
on falsified or recanted witness testimony. See Opsahl, 677 N.W.2d at 422; see also Pippitt
v. State, 737 N.W.2d 221, 227 (Minn. 2007) (“[W] e have also indicated that Larrison
applies more generally, such as ‘ when a court reviews an allegation that fals e testimony
was given at trial.’ ” ( quoting Dukes v. State, 621 N.W.2d 246, 257 (Minn. 2001))). To
satisfy this test, a postconviction petitioner must be able to establish the following by a fair
preponderance of the evidence : (1) th e court must be reasonably well -satisfied that the
testimony in question was false; (2) without that testimony the jury might have reached a

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different conclusion; and (3) the petitioner was taken by surprise at trial or did not know
of the falsity until after trial. Id. at 226–27; see also Williams v. State , 692 N.W.2d 893,
896 (Minn. 2005). Failing to prove one of the first two prongs of the test means the
petitioner does not prevail. Campbell v. State, 916 N.W.2d 502, 507 (Minn. 2018) (holding
that the court need not reach the second and third prongs of the Larrison test because the
petitioner failed to satisfy the first prong).
Under either of these tests, the credibility of the new evidence is critical. To satisfy
the third prong of Rainer, the evidence must not be doubtful. 566 N.W.2d at 695. When
a district court concludes that testimony offered by a witness for the petitioner is not
credible, it is not an abuse of discretion to conclude that the testimony is do ubtful.
Likewise, to satisfy the first prong of Larrison, the new evidence must demonstrate that
trial testimony was false. Opsahl, 677 N.W.2d at 423. When a district court determines
that postconviction testimony that challenges trial testimony is not credible, it is not an
abuse of discretion to conclude that the postconviction testimony was insufficient to show
that trial testimony was false.
Turning now to this petition, Bellanger’s affidavit and testimony alleged that the
victim’s brother and sister-in-law told Bellanger that a man, A.B. , had heard voices in his
head telling him to kill the victim and had “about admitted to [them] that he did it.”
Bellanger’s affidavit also claimed that A.B. told her that he had received a call from
someone claimin g responsibility for the murder and that the victim’s brother and
sister-in-law mentioned something about A.B. getting a confession to the murder . The
district court concluded that the affidavit and testimony were “self-contradictory” because

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Bellanger claimed that A.B. confessed to the murder but also said that another person had
confessed to A.B. Moreover, at the evidentiary hearing, the victim’s brother and
sister-in-law both denied telling Bellanger about a confession by A.B. or by anyone else .
They further denied knowing anything about A.B. hearing voices. And A.B. testified that
he had never heard voices, that he had never confessed to killing the victim, and that no
one had ever confessed to him.
The district court concluded that it could not “ give greater weight to muddled and
self-contradictory hearsay than to the testimony from the people who allegedly told
Bellanger [those] things in the first place.” The court also noted that Bellanger is
Andersen’s mother “and thus has a vested interest in clearing her son’s name[,] which may
impact how she interprets or remembers conversations from years past.” At the evidentiary
hearing, the district court admitted and carefully reviewed extensive testimony about the
allegations in Bellanger ’s testimony. The district court ’s decision to credit certain
witnesses over others was not clearly erroneous. We hold that the district court did not
clearly err by finding that Bellanger’s affidavit was not credible.
We reach the same conclusion regarding the Wea ver affidavit. Weaver stated that
on the morning of the murder he saw the victim’s wife, her son, and her brother driving in
White Earth. Andersen argues that this evidence is important because it calls into question
the trial testimony of the wife and son regarding their whereabouts that morning.
But Weaver’s testimony is inconsistent with the testimony of several other people.
At the postconviction evidentiary hearing, the victim’s wife testified that she was at home
that morning. Her son and brother testified that they were not in the car together. Several

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of the son’s coworkers testified to seeing him at work starting at 7:35 a.m. And the victim’s
brother testified to seeing the son leave the house for work at 7:30 a.m. on the morning of
the murder.1
As the district court stated, for “Weaver to have seen [the wife and son] that day in
a way which is consistent with the testimony of [the other witnesses], the [wife and son]
would have had to be traveling on the road for some time before 7:30, and then returned
back home in order for [the son] to have been seen . . . leaving for work at 7:30.” Because
of the inconsistency between Weaver’s testimony and the timeline established by other
credible witnesses, the district court concluded that Weaver’s testimony was not credible.
Based on our review of the record, we are not left with a definite and firm conviction that
the district court erred by reaching that conclusion.
Because we accept the district court’s credibility determinations, we conclude that
the evidence cannot satisfy the Rainer standard, which requires that evidence must not be
“cumulative, impeaching, or doubtful.” See 566 N.W.2d at 695. Bellanger’s testimony is
doubtful in light of t he district court’s finding that the testimony is self-contradictory and
refuted by other witnesses , and that Bellanger has a vested interest in proving her son’s
innocence. Weaver’s testimony is similarly doubtful based on the district court’s finding
that the testimony was inconsistent with the credible testimony of a number of other

1 Weaver’s testimony about the time he saw the victim’s wife, her son and her brother
was unclear. In his post -trial affidavit, he claimed that he saw those three individuals
driving at 7:30 or 8:00 a.m., but his recollection changed at the hearing. There, he testified
that he saw the three driving at day-break, which occurred earlier in the day.

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witnesses. In addition , the district court found that the Weaver evidence was offered
entirely for impeachment purposes.
Similarly, the first prong of Larrison requires t hat a court be “reasonably
well-satisfied that the testimony in question was false.” Opsahl, 677 N.W.2d at 423. Based
on its credibility determinations, the district court concluded that it was “not well-satisfied
that the testimony given by any material witness was false.”
Based on our review of the evidentiary hearing testimony before the district court,
as well as the court’s thorough analysis of the facts, we conclude that the testimony does
not satisfy the Rainer and Larrison tests. We therefore affirm the district court’s denial of
Andersen’s motion for a new trial.
II.
Andersen also argues that the district court abused its discretion by denying his
request to reopen the record to allow the admission of additional evidence relating to claims
that were not alleged in the second postconviction petition. Andersen sought to reopen the
record to add claims under Rainer and Brady. He based these claims on testimony at the
evidentiary hearing that the son of the victim’s wife found cigarette butts at the scene soon
after the murder. He asserts that this new information, along with prior evidence that A.B.
found shell casings at the scene, entitles him to a new trial. This information was not
included in the Bellanger or Weaver affidavits.2

2 Andersen also sought to introduce new evidence related to the sale of a van to
Weaver. He claimed that the evidence calls into question the credibility of trial witnesses.
Andersen does not make any legal arguments about the van sale in his briefs to us. And,

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We have previously called a district court’s decision to close evidence at the end of
a hearing an evidentiary ruling. See Miles, 840 N.W.2d at 204–05. Evidentiary rulings
“rest within the sound discretion of the trial court, and we will not reverse such evidentiary
rulings absent a clear abuse of discretion.” State v. Chomnarith , 654 N.W.2d 660, 665
(Minn. 2003); see also Dobbins v. State, 845 N.W.2d 148, 156 (Minn. 2013) (stating that
the district court “did not abuse its discretion when it refused to expand the scope of th e
evidentiary hearing on remand”).
We remanded this case for the express purpose of requiring the district court to
determine whether the Bellanger and Weaver affidavits, taken as true, supported
Andersen’s petition for a new trial and, if so, to conduct an evidentiary hearing to assess
the credibility of the Bellanger and Weaver evidence. See Andersen III, 913 N.W.2d at 424
(“To encourage future co mpliance with the rule that a [district court ] must not make
credibility determinations without first holding an evidentiary hearing, a prophylactic
reversal is required in this case.”).
The district court did so. It then declined Andersen’s request to offer additional
evidence beyond the allegations in the Bellanger and Weaver affidavits. The court
concluded that there “must be some finality as to what evidence is before the Court in this
matter.” It ruled that “[n]othing in this order necessarily pre vents the filing of a later
petition in the event that additional new evidence is discovered.” The district court did not
abuse its discretion by declining to consider additional evidence.

in any event, the district court’s refusal to allow Andersen to introduce the new evidence
was not an abuse of discretion for the reasons stated in this section of the opinion.

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III.
Next, we consider Andersen’s claim that a witness’s expression of racial bias during
a post-trial interview means that he is entitled to a new trial. At trial, t he State used the
witness’s testimony to contradict Andersen’s alibi that he was not at the location of the
murder when the murder occurred. Andersen now states that he did not know about the
witness’s purported racial bias until an investigator interviewed the witness after the trial.
Andersen argues that he was denied a meaningful opportunity to a fair trial and
defense due to the unknown racial bias of the witness. In support, he cites Peña-Rodriguez
v. Colorado, ___ U.S. ___, 137 S. Ct. 855 (2017). In that case, the Supreme Court of the
United States held that Rule 606(b) of the Federal Rules of Evidence, which generally bars
consideration of juror statements that impeach the verdict , must give way when the juror
statement discloses that racial bias was a significant motivating factor in a juror’s vote to
convict. The Peña-Rodriguez Court relied on over a century of precedent “enforc[ing] the
Constitution’s guarantee against state-sponsored racial discrimination in the jury system.”
Id. at ___, 137 S. Ct. at 867.
Andersen asserts that some similar rule should apply when the purported racial bias
of a witness comes to light p ost-trial. But he does not explain why the holding in Peña-
Rodriquez compels that conclusion or how Peña-Rodriguez’s interpretation of Rule 606(b)
affects our application of Minnesota’s postconviction procedures. Although we construe
pro se postconviction claims liberally and with an understanding eye, see Fox v. State ,
913 N.W.2d 429, 433 (Minn. 2018), we decline to infer and rule upon a complex
constitutional argument based on the limited analysis and authority that Andersen provided

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in his brief. See State v. Bartylla, 755 N.W.2d 8, 22–23 (Minn. 2008). Thus, Andersen is
not entitled to relief on this ground.
IV.
Andersen also argues that he is entitled to a new trial because the lack of White
Earth Band members in the jury pool violated his right to a fair trial. Assuming without
deciding that his claim is not barred by State v. Knaffla , 243 N.W.2d 737 (Minn . 1976),
Andersen still has not shown that the composition of the jury pool violated his right to a
fair trial.
The United States and Minnesota Constitutions guarantee a criminal defendant the
right to a jury pool that reflects a fair cross -section of the community. See Taylor v.
Louisiana, 419 U.S. 522, 530 (1975); State v. Williams , 525 N.W.2d 538, 542
(Minn. 1994). To make a prim a facie showing that the jury venire did not reflect a fair
cross-section of the community, a defendant must show “that the group allegedly excluded
is a ‘distinctive’ group in the community, that the group in question was not fairly
represented in the venire, and that the underrepresentation was the result of a ‘systematic’
exclusion of the group in question from the jury selection process.” Williams, 525 N.W.2d
at 542. To meet the third requirement, a defendant must show that “over a significant
period of time —panel after panel, month after month —the group of eligible jurors in
question has been significantly underrepresented on the panels and that this results
from . . . unfair or inadequate selection procedures used by the state.” Id. at 543. Andersen
did not submit evidence to satisfy the third element of a fair cross-section claim.

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In State v. Roan, 532 N.W.2d 563, 569 (Minn. 1995) , we held that a jury selection
system that “use[d] registered voters, driver’s licenses , and registered Minnesota
identification card holders” did not systematically exclude people of color. The same type
of jury selection system used in Roan was used at the time of Andersen’s 2008 trial. See
generally Minn. Gen. R. Prac. 805 and 806.
Andersen alleges that Native Americans living on reservations are and will continue
to be excluded from jury pools in Becker County because those jury pools are randomly
selected from voter registration and driver’s licenses and few White Earth Native
Americans vote in state elections. But Andersen adduced no historical or contemporaneous
evidence or statistical analysis to factually support his argument that the jury selection as
conducted in Becker County in 2008 systematically excluded White Earth Band
members—or Native Americans more generally.3 Because Andersen failed to provide any
evidence to support his claim of systematic exclusion, we cannot conclude that the Becker
County juror selection system violated his right to a fair trial.
V.
Finally, Andersen contends that two claims arise from his post-trial discovery of an
interview that occurred before trial between Officer Jeff Nelson and the victim’s wife and
her son. First, he alleges that the State committed a Brady violation by failing to disclose
the interview. See Brady, 373 U.S. at 83. Second, he alleges that the interview satisfies

3 Because Andersen makes only a conclusory legal argument, and we conclude that
the claim fails on the third “systematic exclusion” prong, we express no opinion on how to
define a “distinctive group” under these circumstances.

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the Larrison test for false or r ecanted testimony because it calls into question the truth of
Officer Nelson’s trial testimony. We view the alleged facts in the light most favorable to
Andersen. See Fox, 913 N.W.2d at 433 (“If, taking the facts alleged in the light most
favorable to th e petitioner, the ‘ petition and the files and records of the proceeding
conclusively show that the petitioner is entitled to no relief,’ the [district court] may dismiss
the petition.” (quoting Minn. Stat. § 590.04, subd. 1 (2018)) ). Under that standard, his
claims fail as a matter of law.
Before the murder, Officer Nelson interviewed the murder victim, Swedberg,
regarding the theft of an all -terrain vehicle (ATV). In that interview, the victim denied
knowledge of the ATV and implicated Andersen in the theft. At Andersen’s trial, Officer
Nelson testified about Swedberg’s allegation that Andersen stole the ATV. The State used
the officer’s testimony to help establish motive by showing that, at the time of the murder,
there was tension between Andersen and Swedberg. During his testimony, Officer Nelson
noted that Swedberg had been “forthcoming, friendly, [and] cooperative” in the interview.
After his trial and conviction, Andersen obtained a 2007 interview with the victim’s
wife and her son, conducted by Officer Nelson. In the interview conducted after the murder
but before trial, the wife and son stated that Swedberg knew the ATV was on the property.
Andersen contends that the State knew about the interview and did not disclose it.
Andersen claims that the interview shows that at the time of trial, Officer Nelson knew
Swedberg had lied about his knowledge of the stolen ATV. Accordingly, he argues,
Officer Nelson was aware that Swedberg had not been “forthcoming” in their conversation.

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Viewing the interview in the light most favorable to Andersen, all it shows is that
Officer Nelson knew Swedberg was not forthcoming. That does not require reversal under
Brady. Under Brady, “the suppression by the prosecution of evidence favorable to an
accused upon request violates due process.” 373 U.S. at 87. To establish a Brady claim,
the accused must prove, among other things, that he was prejudiced by the nondisclosure.
Pederson v. State , 692 N.W.2d 452, 459 (Minn. 2005). For the prejudic e prong to be
satisfied, the evidence must be “material.” Id. at 460. Evidence is material only when, had
the evidence been disclosed, there is a reasonable probability that the result of the
proceeding would have been different. Id.
There is no reasonable probability that the evidence that Swedberg was not honest
with Officer Nelson in his interview would have led to a different result. The material —
and still undisputed —fact derived from Officer Nelson’s testimony is that Swedberg
implicated Andersen in a theft in the time leading up to the murder, giving Andersen a
motive. Assuming Swedberg lied to Officer Nelson about his knowledge of the ATV, that
lie does not call into question the fact that Swedberg implicated Andersen in the ATV theft.
If anything, the fact that Swedberg may have lied about his own involvement in the ATV
theft while implicating Andersen strengthens the State’s argument that Andersen had a
motive for the murder. And whether Officer Nelson knew that Swedberg may have been
lying i s not material . There is no reasonable probability that the opportunity to
cross-examine Officer Nelson on this point would have changed the outcome of
Andersen’s trial.

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For the same reasons, Andersen’s Larrison claim fails. Viewing the facts in the
light most favorable to Andersen, we conclude that , even if Andersen had known about
and been able to challenge Officer Nelson’s testimony that Swedberg was forthcoming in
the interview, the re is no reasonable probability that the jury might have reached a not
guilty verdict. See Opsahl, 677 N.W.2d at 423 (stating that a new trial is appropriate under
Larrison only when the jury might have reached a different conclusion without the false
testimony). Therefore, Andersen is not entitled to relief on this ground.
CONCLUSION
For the foregoing reasons, we affirm the decision of the district court.
Affirmed.