Boitnott v. State

631 N.W.2d 362, 2001 Minn. LEXIS 543, 2001 WL 839038
CourtSupreme Court of Minnesota
DecidedJuly 26, 2001
DocketC4-01-243
StatusPublished
Cited by23 cases

This text of 631 N.W.2d 362 (Boitnott v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boitnott v. State, 631 N.W.2d 362, 2001 Minn. LEXIS 543, 2001 WL 839038 (Mich. 2001).

Opinion

OPINION

RUSSELL A. ANDERSON, Justice.

Appellant Jerald Boitnott appeals from the denial of his second petition for post-conviction relief, in which he raised multiple ineffective assistance of trial and appellate counsel allegations. Prior to the instant appeal, Boitnott filed a direct appeal from his conviction of first-and second-degree murder, obtained an admonition of trial counsel from the Director of the Lawyers Professional Responsibility Board on an unrelated matter, filed a civil legal malpractice claim against trial counsel, filed a first petition for postconviction relief, and sought a writ of habeas corpus in federal court. 1 Boitnott’s ineffective assistance of trial counsel allegations were undisputedly raised, but not necessarily decided on the merits, in prior proceedings. His ineffective assistance of appellate counsel claim is based solely on his attorneys’ failure to argue ineffective assistance of trial counsel on direct appeal. Boitnott now asks this court to address all claims on the merits and reverse the post-conviction court’s conclusion that relief is not warranted. Upon review of Boitnott’s claims, we conclude that he has not stated allegations sufficient to warrant postcon-viction relief, and we affirm.

On April 14, 1987, Boitnott, intoxicated and carrying a loaded gun, entered the home of Dale Landwehr and sought to obtain record albums he believed either Landwehr or Landwehr’s brother had stolen. State v. Boitnott, 443 N.W.2d 527, 529-31 (Minn.1989) (“Boitnott J”). 2 Both Landwehrs were at home and aware of *365 Boitnott’s presence, but there is no dispute that Boitnott was armed and uninvited. Id. at 529-30. While Boitnott was looking through Landwehr’s record albums, Land-wehr came up behind him, pointing his own gun at Boitnott. Id. at 530. After a scuffle in which Boitnott apparently gained the upper hand, Boitnott’s gun fired, killing Landwehr. Id. Boitnott was indicted on counts of first-degree felony murder, second-degree felony murder, second-degree intentional murder, and second-degree assault.

In the course of pretrial proceedings in July 1987, Boitnott’s counsel moved for a change of venue, claiming that a fair trial was not possible in Benton County. In response, the state submitted a number of Minnesota newspaper articles discussing events surrounding the shooting and Boit-nott’s arrest. Although two articles focused on the reactions of Landwehr’s friends to his death, the state pointed out that “[t]he news reports are factual and without opinions or implications of guilt.” Boitnott then retained the National Jury Project to take public opinion surveys and determine whether Boitnott could receive a fair trial in Benton County. Boitnott alleges that six of the eight individuals surveyed were asked what percentage of people they knew believed Boitnott was guilty. The six responses were: “Most, 95%, 80-85%, 50-60%, 50%, and Low.” In addition, Boitnott cites a 1998 article in a local newspaper reporting that 27 of 35 people surveyed stated that the Landwehr shooting was the top story of 1987. 3

Before trial, the following conversation occurred in the judge’s chambers:

The Court: We have had some off the record general discussions, and I would like the record to reflect some of the discussions before we proceed in the presence of the Defendant. First of all, with reference to the previous motion for change of venue, Counsel for the defense has advised me that he anticipates withdrawing that motion. Is that correct?
Counsel: That’s correct, Your Honor.
The Court: You understand that, Mr. Boitnott?
Defendant: I do.

The change of venue issue was not raised again during the trial.

After the jury was sworn, a juror contacted the bailiff and asked to see the judge. During an in-chambers discussion at which the prosecuting and defense attorneys, but not Boitnott, were present, Juror Janice Sowada stated that she had seen her sister, Karen Ewing, sitting in the courtroom. Sowada acknowledged her awareness of Ewing’s acquaintance with some people involved in the case, but stated that she believed Ewing was friends with both Boitnott’s and Landwehr’s families. Sowada said that although she did have regular contact with Ewing and had cut out newspaper articles regarding the shooting at Ewing’s request, Sowada was not acquainted with any of the people Ewing knew and “had no idea” her sister was so interested in the case as to be at the trial. Sowada also explained that she never mentioned this connection before because “[y]ou never did ask do I know somebody that knows somebody* * *.” 4 *366 Lastly, Sowada said that “I wanted it known that she is there. I don’t know if it makes any difference to you. I don’t know. It doesn’t to me.”

After defense counsel questioned Sowa-da about the closeness of her relationship to Ewing and whether Ewing’s ■ presence would influence her, both attorneys and the court agreed that removing Sowada from the jury was unnecessary. The court then called Ewing into chambers and instructed her to avoid contact with Sowada while the trial was occurring and to avoid showing her reactions while sitting in the courtroom. Boitnott was not informed of these discussions until after the trial.

Boitnott was convicted in February 1988 on all four counts in the indictment. On appeal, this court held that the evidence was sufficient to support conviction, that Boitnott was not entitled to specific accident or self-defense jury instructions, that admitting a telephone conversation as evidence was not an abuse of discretion, and that the prosecutor did not commit reversible misconduct in his closing argument. Boitnott I, 443 N.W.2d at 532-34.

In Boitnott’s subsequent civil malpractice action, he alleged, in addition to issues unrelated to his murder case, that his trial counsel failed to communicate an offer from the state to allow Boitnott to plead guilty to second-degree murder alone. Boitnott v. Cascarano, No. C4-96-520, 1996 WL 523816, at *2 (Minn.App. Sept.17, 1996), rev. denied (Minn. Dec. 17, 1996). The district court granted summary judgment in counsel’s favor and the court of appeals affirmed, each finding no evidence that such an offer existed. Id. at *1.

Meanwhile, on April 14, 1992, the Director of the Office of Lawyers Professional Responsibility admonished trial counsel for failure to communicate with Boitnott regarding the status of an unrelated controlled substance tax case, and for making substantive decisions in that case without consulting Boitnott. Although the Director recognized in the memorandum accompanying the admonition that Boitnott had also complained about his trial counsel’s performance in the murder case, the Director conveyed the Board’s conclusion that discipline was not warranted on those matters.

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Cite This Page — Counsel Stack

Bluebook (online)
631 N.W.2d 362, 2001 Minn. LEXIS 543, 2001 WL 839038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boitnott-v-state-minn-2001.