This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1632
Terry Lynn Olson, petitioner, Appellant,
vs.
State of Minnesota, Respondent
Filed August 17, 2015 Affirmed Worke, Judge
Wright County District Court File No. 86-K4-05-003795
David T. Schultz, Maslon Edelman Borman & Brand, LLP, Minneapolis, Minnesota; and
Julie K. Jones, Sara L. Martin, Innocence Project of Minnesota, St. Louis Park, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Thomas N. Kelly, Wright County Attorney, Greg T. Kryzer, Assistant County Attorney, Buffalo, Minnesota (for respondent)
Considered and decided by Worke, Presiding Judge; Reilly, Judge; and
Stoneburner, Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the denial of his petition for postconviction relief, arguing
that the district court erred by ruling that his claims of newly discovered evidence and
ineffective assistance of trial counsel are procedurally barred and that he failed to show
that his appellate counsel was ineffective. We affirm.
FACTS
On August 11, 1979, police found Jeffrey Hammill’s body on County Road 12 in
Wright County. Hammill had been severely beaten and died from traumatic head
injuries. The case was unsolved until it was reopened in 2003.
Officers used evidence collected during the original investigation to piece together
the events leading to Hammill’s death. They determined that Hammill left a bar with
appellant Terry Lynn Olson and Dale Todd and went to a house party. When Hammill
wanted a ride home, but was refused a ride, he began walking on Highway 12. Later, two
witnesses who had driven on Highway 12 reported seeing four or five men in or around a
dark-colored car that appeared to be a Chevrolet Impala. Because Todd drove a dark-
colored Impala, the police searched his car, but did not find any evidence connected to
Hammill’s death.
In September 2003, during an interview with Todd, an officer told him that
witnesses saw his car on Highway 12 around the time Hammill was killed. Officers
falsely represented that they had evidence of hair and blood from a bat that had been
seized from Todd’s car from when it was searched in 1979. Todd admitted that after
2 Hammill left the party, he, Olson, and Ron Michaels left the party, and drove to Highway
12 where they encountered Hammill. Todd claimed that Olson and Michaels argued with
Hammill.
In 2005, a grand jury indicted Olson, Todd, and Michaels for Hammill’s murder.
In July 2006, Todd pleaded guilty to aiding an offender in exchange for his testimony
against Olson and Michaels. Michaels’s jury trial began in November 2006. Todd
testified that he drove to Highway 12 with Olson and Michaels where they encountered
Hammill. Olson and Michaels got out of the car and argued with Hammill; and Olson
and Michaels opened the car’s trunk, which contained items that might have been used in
the murder. Todd testified that he did not see what happened, but stated that when Olson
and Michaels got back in the car, Michaels announced that Hammill “won’t be needing a
ride home.” Todd then changed his story and said, “I didn’t do this,” and “we didn’t do
this.” When the prosecutor asked Todd why he admitted his involvement to the police, he
replied, “I didn’t want to go to jail for something I didn’t do.” The jury acquitted
Michaels.
Olson’s trial began on August 10, 2007. Todd again testified that after Hammill
left the party, he, Olson, and Michaels left the party. He stated that he thought he was
driving toward Buffalo, thought that he saw Hammill, and thought that he pulled over
when he saw Hammill. Olson and Michaels got out of the car and Todd heard arguing.
Todd might have seen a little pushing and he saw Olson “nudge” Hammill. He did not
know if Olson was mad at Hammill, but he thought that Hammill was mad because they
did not give him a ride. Todd did not remember if anybody got anything out of the trunk.
3 But after reviewing his testimony from Michaels’s trial, Todd stated that he believed that
the trunk was open. When Olson and Michaels got back into the vehicle, they decided
that if Hammill was “being an ass, he can walk home,” and Michaels said, “Let’s go.”
But after reviewing his testimony from Michaels’s trial, Todd stated that when Michaels
got into the vehicle he stated that Hammill “won’t be needing a ride home.” They
returned to the party and Todd testified that he might have called 911 to report that there
could be a person on the road.
Olson’s attorney and the prosecutor asked Todd about his testimony at Michaels’s
trial and questioned which version was true. Olson’s attorney asked Todd if he said “we
didn’t do this” at Michaels’s trial. Todd acknowledged that he had. But he stated that he
had been truthful at Olson’s trial.
Several inmates who spent time in jail with Olson testified that Olson had either
confessed to killing Hammill or admitted that he was involved in Hammill’s death. But
other inmates testified that Olson maintained his innocence. Olson’s attorney argued that
the inmates who implicated Olson were “snitches” who lied to receive shorter sentences.
A jury found Olson guilty of second- and third-degree murder. Olson filed a
direct appeal, challenging the district court’s decision to allow the chief investigator to sit
at the prosecutor’s table during trial and the sufficiency of the evidence supporting his
convictions. See State v. Olson, No. A08-0084, 2009 WL 2147262, at *1 (Minn. App.
July 21, 2009), review denied (Minn. Oct. 20, 2009). Olson also filed a pro se
supplemental brief, raising several claims, including a claim that the prosecutor
4 knowingly allowed Todd to present perjured testimony. This court affirmed Olson’s
convictions.
On December 22, 2010, Olson challenged his sentence. The district court denied
Olson relief, and he appealed. This court affirmed the district court’s decision. See
Olson v. State, No. A11-0696, 2012 WL 254485 (Minn. App. Jan. 30, 2012), review
denied (Minn. Apr. 25, 2012).
On January 18, 2012, Olson petitioned for postconviction relief, arguing that his
trial counsel was ineffective for mishandling Todd as a witness, failing to submit Todd’s
recantation as substantive evidence, failing to call witnesses to impeach Todd’s
testimony, failing to retain an expert witness to explain false confessions, and failing to
question the medical examiner regarding her reason for changing the manner of death on
Hammill’s death certificate. He also argued that his appellate counsel was ineffective for
failing to call attention to the fact that Todd’s recanted testimony was admitted only as
impeachment evidence. The district court determined that Olson was barred from raising
claims about trial counsel because he knew, or should have known, about them when he
filed his direct appeal. The district court, however, determined that Olson was entitled to
a hearing on his ineffective-assistance-of-appellate-counsel claim.
In May 2013, Olson’s appellate counsel learned, after meeting with Todd, that
Todd had experienced a “nervous breakdown” after Michaels’s trial and had received
mental-health treatment while he was incarcerated. On June 26, 2013, Olson filed an
amended petition, arguing that he was entitled to a new trial because the state failed to
disclose Todd’s mental-health records and statements Todd made to a nurse.
5 The district court denied Olson’s amended petition. The district court found that
during Olson’s trial, defense counsel cross-examined Todd regarding his mental-health
history. Todd admitted that he was being treated for an anxiety disorder as early as 2003.
He also stated that he began medication right after Michaels’s trial. The district court
determined that because Olson knew about Todd’s mental health, cross-examined him
about it, and knew that Todd received medication before Olson’s trial, Olson was
procedurally barred from raising this claim.
On July 21, 2014, after an extensive evidentiary hearing on Olson’s ineffective-
assistance-of-appellate-counsel claim, the district court denied Olson’s petition. This
appeal follows.
DECISION
This court reviews a denial of a petition for postconviction relief for an abuse of
discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “A postconviction 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.” Id. (quotation omitted). “When reviewing a
postconviction court’s decisions, [this court] examine[s] only whether the postconviction
court’s findings are supported by sufficient evidence.” Leake v. State, 737 N.W.2d 531,
535 (Minn. 2007). But this court reviews issues of law de novo. Id.
Olson challenges the district court’s conclusion that the majority of his claims are
procedurally barred, or Knaffla-barred. See State v. Knaffla, 309 Minn. 246, 252, 243
N.W.2d 737, 741 (1976) (stating that a postconviction petitioner is not entitled to relief
for claims that he raised in his direct appeal or claims that he did not raise but either knew
6 about or should have known about when he directly appealed). There are two exceptions
to the Knaffla rule. Leake, 737 N.W.2d at 535. First, if a claim is known at the time of
direct appeal but is not raised, it will not be barred if the claim is so novel “that its legal
basis was not reasonably available when direct appeal was taken.” Id. Second, even if a
claim’s legal basis was available when direct appeal was taken, it may be reviewed
“when fairness so requires and when the petitioner did not deliberately and inexcusably
fail to raise the issue on direct appeal.” Id. (quotation omitted). This court reviews a
denial of postconviction relief based on the Knaffla rule for an abuse of discretion. Quick
v. State, 692 N.W.2d 438, 439 (Minn. 2005).
Evidence of mental-health history
Olson argues that the state’s failure to disclose information regarding Todd’s
mental health was a Brady violation because the evidence was exculpatory, the evidence
was suppressed by the state, and Olson was prejudiced. The district court determined that
this claim was Knaffla-barred. The district court did not abuse its discretion.
First, during Olson’s trial, his attorney cross-examined Todd regarding his mental
health. Thus, Olson was aware of any issues with Todd’s mental health at the time of his
trial. Second, Olson claims that Todd’s statement to a nurse was exculpatory because he
told her that he lied at Michaels’s trial in order to get a good deal, but then repudiated
against his penal interest. This was also known at the time of Olson’s trial. Todd
testified that “if he cooperated, [he] would get one deal[] [a]nd if [he] were found to be
uncooperative, [he would] get another deal”; if he cooperated he would receive jail time
7 and if he did not cooperate he would go to prison. Additionally, defense counsel cross-
examined Todd regarding his repudiated testimony at Michaels’s trial.
Third, it is difficult to see how Olson was prejudiced. He claims that “[a]s the
supposed ‘eyewitness’ to the alleged murder, Todd was the heart of the prosecution’s
case,” and that “[s]ince evidence of Todd’s statement [to the nurse] directly contradicts
his incriminatory testimony, its concealment was prejudicial.” But Todd did not testify
that he witnessed the murder. And Todd’s testimony was equivocal—he stated that he
thought he was driving toward Buffalo, saw Hammill, and pulled over when he saw
Hammill, and then might have seen pushing by Olson. He did not know if Olson was
mad at Hammill, and he did not remember if anybody got anything out of the trunk. And
the jury heard that Todd proclaimed innocence at Michaels’s trial. As this court stated
“[d]amning testimony also came from several inmates who . . . testified that Olson had
either confessed to killing Hammill or admitted that he was involved in Hammill’s
death.” Olson, 2009 WL 2147262, at *2. It is difficult to see how Olson was prejudiced
because the jury did not hear about Todd’s statement to the nurse when they heard the
same information from Todd.
Olson also argues that the state “sponsored false testimony by eliciting Todd’s
testimony at Olson’s trial.” Olson argued in his pro se supplement brief on direct appeal
that the prosecutor knowingly allowed Todd to present perjured testimony. This court
resolved this issue without discussion. Id., at *6. This issue is Knaffla-barred.
8 Witness recantation
Olson argues that he is entitled to a new trial based on Todd’s 2012 affidavit
recanting his testimony at Olson’s trial. The district court determined that this claim was
Knaffla-barred because Olson was aware that Todd recanted before his trial and
impeached him on cross-examination. The district court did not abuse its discretion.
At Olson’s trial, Todd was cross-examined regarding his recantation at Michaels’s
trial. The jury heard that during Michaels’s trial, Todd stated: “I didn’t do this. We
didn’t do this.” Todd also stated during Michaels’s trial that he confessed because he
“didn’t want to go to jail for something [he] didn’t do.”
Olson argues that Todd’s 2012 affidavit recanting his testimony is newly
discovered evidence because in it he recants his testimony from Olson’s trial, not
Michaels’s trial. But at Michaels’s trial, Todd stated that he did not leave the party with
Michaels or Olson and that “[w]e didn’t do this”—Olson was included in that recanted
testimony. Todd stated in his affidavit from 2012 that at Michaels’s trial he admitted that
“neither [] Michaels, [] Olson nor I had anything to do with the death of Hammill.”
Additionally, Olson claims that for the first time in his affidavit from 2012 Todd
explains his false statement. But the district court received a letter from Todd on
September 11, 2007, which was forwarded to Olson’s counsel on September 13, 2007.
Todd stated: “We were innocent of the charges. I said things because I was afraid to go
to jail for life for something we did not do.” His testimony from Michaels’s trial also
includes his reason—“I didn’t want to go to jail for something I didn’t do.” In the 2012
affidavit, Todd stated that he made false statements because he “was terrified that the
9 police would charge [him] with murder,” and because the “police manipulated him, [he]
was scared and [he] stopped trusting [his] own memory of what happened.” This
assertion that Todd was manipulated by the police is hinted at in Olson’s claim on direct
appeal that the investigating officer should not have been allowed to sit at the
prosecutor’s table during trial. See id., at *3. Olson argued that “witnesses may have
been influenced by [the deputy’s] presence.” Id. The district court did not abuse its
discretion in concluding that this claim was Knaffla-barred.
Trial counsel
The district court ruled that Olson’s ineffective-assistance-of-trial-counsel claim is
Knaffla-barred because it should have been raised at the time of direct appeal. Knaffla
bars a postconviction ineffective-assistance-of-trial-counsel claim if the claim is based
solely on the trial record and was known or should have been known at the time of direct
appeal. Evans v. State, 788 N.W.2d 38, 44 (Minn. 2010). Knaffla does not bar an
ineffective-assistance-of-trial-counsel claim if the postconviction court requires
additional evidence regarding an alleged act or omission committed off the record to be
able to determine the merits of the claim. Barnes v. State, 768 N.W.2d 359, 364 (Minn.
2009).
Olson argues that his trial counsel was ineffective for failing to (1) discover and/or
utilize exonerating statements made by Todd, (2) call an expert to explain Todd’s false
confession, (3) adequately investigate and prepare for the medical examiner’s testimony,
and (4) investigate Todd’s mental health. Trial counsel used Todd’s recanted testimony
from Michaels’s trial. Todd testified that he told the truth at Olson’s trial; thus, an expert
10 on a false confession was not necessary. Todd was also questioned about his mental
health. Therefore, the district court did not abuse its discretion in determining that these
claims are Knaffla-barred.
But even if the claims are not Knaffla-barred, Olson does not raise a claim that is
reviewable. Because “[r]epresentation is an art, and an act or omission that is
unprofessional in one case may be sound or even brilliant in another[,] [w]hat evidence to
present to the jury, including which witnesses to call, represents an attorney’s decision
regarding trial tactics and lies within the . . . discretion of trial counsel.” State v.
Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation and citation omitted). Appellate
courts, having the benefit of hindsight, do not review for competency matters of trial
strategy. Id.
Failing to discover and/or utilize exonerating statements made by Todd, failing to
adequately investigate and prepare for the medical examiner’s testimony, and failing to
investigate Todd’s mental health are matters of trial preparation. See State v. Caldwell,
803 N.W.2d 373, 387 (Minn. 2011) (stating that “limited trial preparation” does not
establish inadequate representation; the focus is on the adversarial process not the
defendant’s assessment of counsel’s preparation). Failing to call an expert to explain
Todd’s false confession involves trial strategy. See Doppler, 590 N.W.2d at 633.
Appellate counsel
The district court granted Olson a hearing on his ineffective-assistance-of-
appellate-counsel claim before denying relief. See Schneider v. State, 725 N.W.2d 516,
521 (Minn. 2007) (stating that claims of ineffective assistance of appellate counsel are
11 not Knaffla-barred in a first postconviction appeal because they could not have been
raised earlier). Olson bears the burden of proof on establishing the ineffective-assistance-
of-counsel claim. State v. Jackson, 726 N.W.2d 454, 463 (Minn. 2007). To satisfy his
burden, Olson “must do more than offer conclusory, argumentative assertions, without
factual support.” See State v. Turnage, 729 N.W.2d 593, 599 (Minn. 2007). To prevail,
Olson must show that “(1) his counsel’s performance fell below an objective standard of
reasonableness, and (2) that a reasonable probability exists that the outcome would have
been different but for counsel’s errors.” Andersen v. State, 830 N.W.2d 1, 10 (Minn.
2013); see Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068
(1984). An appellate court need not analyze both prongs of the Strickland test if an
analysis of one prong is determinative. Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009).
This court reviews the denial of postconviction relief based on a claim of ineffective
assistance of counsel de novo. Hawes v. State, 826 N.W.2d 775, 782 (Minn. 2013).
“[C]ounsel is under a duty to raise only meritorious claims” and “does not act
unreasonably by not asserting claims that counsel could have legitimately concluded
would not prevail.” Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009); Case v. State, 364
N.W.2d 797, 800 (Minn. 1985) (stating that “counsel has no duty to include claims which
would detract from other more meritorious issues”).
Olson argues that appellate counsel was ineffective for failing to challenge trial
counsels’ failure to (1) introduce Todd’s prior testimony as substantive evidence, (2) call
certain witnesses, (3) file a post-trial motion after receiving Todd’s letter in which he
asserted that Olson was innocent, (4) consult an expert on false confessions,
12 (5) investigate Todd’s mental illness, and (6) prepare for the medical examiner’s
testimony.
Appellate counsel legitimately concluded not to challenge trial counsel strategies,
because trial strategy is within trial counsel’s discretion and is not reviewable. See
Doppler, 590 N.W.2d at 633 (stating that matters of trial strategy, including what
evidence to present and which witnesses to call, lie within the discretion of trial counsel
and will not be second-guessed by appellate courts); see also State v. Nicks, 831 N.W.2d
493, 506 (Minn. 2013) (stating that the extent of any investigation is a part of trial
strategy, and includes whether to interview and call prospective witnesses, and should not
be readily second-guessed); State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979) (stating
that an attorney’s strategic decisions include what witnesses to call, whether and how to
conduct cross-examination, and what trial motions should be made). Olson fails to show
that appellate counsel’s performance was unreasonable.
Olson also claims that his appellate counsel was ineffective for failing to recognize
that Todd’s recantation at Michaels’s trial was used at Olson’s trial only for
impeachment. But as the district court determined, even though Todd’s prior statement
was admissible substantively, there is no requirement on how this evidence should be
admitted. The district court also correctly determined that the parties treated Todd’s prior
statement as substantive evidence, and Olson’s attorney read Todd’s prior statement
during closing argument.
In State v. Campbell, the defendant argued that prior inconsistent statements,
admissible only for impeachment purposes, were erroneously admitted as substantive
13 evidence. 861 N.W.2d 95, 101 (Minn. 2015). The defendant argued that the statements
substantially influenced the jury decision. Id. The supreme court stated, “without
deciding [whether the] statements were erroneously admitted as substantive evidence, we
conclude that any such error did not affect [the defendant’s] substantial rights.” Id.
Similarly, Olson fails to show that there is a reasonable likelihood that the alleged error
substantially affected the verdict. The jury heard Todd’s testimony from Michaels’s trial
that “[w]e didn’t do this,” and they heard him testify that he was being truthful when he
implicated Olson at Olson’s trial. The jury had to weigh Todd’s credibility. In addition
to the other evidence from several inmates, there is not a reasonable likelihood that any
alleged error substantially affected the verdict.
Olson also claims that his appellate counsel was ineffective for failing to raise the
issue of the district court’s exclusion of testimony from an inmate, C.P. Defense counsel
sought to call C.P. as a rebuttal witness to testify that during a conversation with Todd,
Todd stated that he risked losing his plea deal if he did not testify at Olson’s trial. Todd
testified that he was offered a deal if he cooperated. He stated that if he did not cooperate
he would go to prison, and Todd did go to prison after Michaels’s trial. Thus, the jury
heard that Todd would have received a better deal had he cooperated at Michaels’s trial,
and it is a logical inference that he feared a similar consequence if he did not cooperate at
Olson’s trial. The district court correctly determined that C.P.’s testimony would have
been cumulative, and that there was no reasonable likelihood that an error in refusing to
allow him to testify had a significant effect on the verdict.
Affirmed.