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STATE OF MINNESOTA IN SUPREME COURT A08-0539

Washington County State of Minnesota, Respondent, vs. Russell John Hurd, Appellant. ________________________

Gildea, J.

Filed: March 26, 2009 Office of Appellate Courts

Lawrence Hammerling, Chief State Appellate Public Defender, Roy G. Spurbeck, Assistant State Public Defender, St. Paul, Minnesota, for appellant. Lori Swanson, Attorney General, St. Paul, Minnesota; and Doug Johnson, Washington County Attorney, Robert Molstad, Assistant County Attorney, Stillwater, Minnesota, for respondent. ________________________

SYLLABUS 1. The postconviction court did not abuse its discretion when it summarily

denied relief on the first six claims raised in appellants second postconviction petition because all of these claims lack merit.

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2.

The postconviction court did not abuse its discretion when, after an

evidentiary hearing, it denied appellant a new trial on the basis of new evidence that would be offered to exculpate appellant because the evidence was inadmissible hearsay. Affirmed. OPINION GILDEA, Justice. In 1993, a jury found appellant, Russell John Hurd, guilty of one count of firstdegree murder and one count of second-degree murder for the 1981 homicide of Viola Linnerooth. Based on the first-degree murder conviction, the district court sentenced Hurd to life in prison. Hurd appealed his conviction to this court, but obtained a stay of the appeal in order to pursue postconviction relief. The postconviction court denied Hurds first petition for postconviction relief in 1996; Hurd did not appeal that ruling or otherwise seek to reinstate his direct appeal. Hurd filed a second petition for postconviction relief in 2007, which the postconviction court denied. The 2007 postconviction court summarily denied most of Hurds claims. After an evidentiary hearing on Hurds remaining claim--a motion for a new trial based on new evidence--the postconviction court denied Hurds request for postconviction relief. Hurd appeals from the denial of his petition. We affirm. This case arises from the July 1981 death of Viola Linnerooth. A 12-year-old boy discovered Linnerooths body sometime in the afternoon of July 18, 1981, near the old prison in Stillwater, Minnesota. Linnerooths body was bloody and partially stripped. 2

The States expert forensic scientist testified that Linnerooths death occurred at least 10 to 12 hours prior to discovery and resulted from hemorrhaging caused by blunt trauma and stab wounds applied during sexual assault. The record reflects that the State arrested Hurd on July 20, 1981, and charged him with Linnerooths murder. But the charges were subsequently dropped for lack of

sufficient evidence to proceed. Twelve years later, with new evidence obtained in a coldcase investigation, the State again arrested Hurd for the Linnerooth murder. On March 8, 1993, a grand jury indicted Hurd on one count of first-degree murder, one count of second-degree murder, and one count of third-degree murder for Linnerooths homicide. The case proceeded to trial later in 1993.1 The evidence at trial established that Hurd was seen in Stillwater, Minnesota on July 17, 1981, drinking beer with B.H., a "bar room friend." Witnesses also said that they saw Hurd wearing a knife on his belt.2 B.H. testified that he and Hurd met on July 17 around 2:30 p.m. and went to a bar. They subsequently left the bar and proceeded to Hurds residence, to another bar, to a liquor store, and then to Lowell Park. Around 8 p.m., Hurd and B.H. were seen leaving Lowell Park. B.H. testified that Hurd was not with him when he left Lowell Park. At about 9 p.m., B.H. was seen at Jim Beams Bar
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In September of 1993, Hurd filed a pretrial motion to dismiss the indictment on grounds that since-deceased witnesses were necessary for trial, evidence was missing, and a delay of speedy trial violated his constitutional rights. The trial court denied the motion to dismiss the charges as well as another motion to suppress the States evidence.
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Hurd denied wearing a knife that evening.

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with a woman, J.M., but without Hurd. B.H. testified that he remained at the bar until closing at 1 a.m., and a witness corroborated that B.H. was there at least until midnight. Meanwhile, Hurd was observed entering Johns Bar, also in Stillwater, with Linnerooth, at about 10:15 p.m. Hurd and Linnerooth left the bar together shortly after arriving. A Stillwater police officer testified that he saw Hurd and Linnerooth together-- both of whom he knew from previous contacts--north of Lowell Park on the roadside between 10:30 p.m. and 11 p.m. Linnerooth appeared "extremely intoxicated," according to the officer, and Hurd was pulling her to her feet from where she sat on the roadway. The officer stopped to observe Hurd and Linnerooth on the road, but continued on after he determined they could walk. The officer explained that he saw Hurd and Linnerooth about a quarter of a mile from the site where Linnerooths body was later discovered. The State also offered the testimony of Billie Ann, who described herself as Hurds friend.3 Billie Ann testified that, between 10:30 p.m. and 11 p.m., she returned home, entered her kitchen and began making coffee. Sometime around 11 p.m., while

she was still in the kitchen and before the coffee brewed completely, Hurd appeared at the door of her Stillwater home. Upon opening the door, she believed that Hurd looked "like he [had] seen the devil himself" because "there was so much fear in his eyes." She observed that Hurd had blood on his shirt, pants, and hand. Billie Ann said that she led Hurd inside and questioned what had happened, to which Hurd eventually responded, "I

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At trial, Hurd denied any acquaintance with Billie Ann.

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raped her," and, "I killed her." Billie Ann further questioned Hurd as to the identity of the person who had been raped and killed, and Hurd answered, "Vi."4 Billie Ann testified that she processed the information for a period, then set out to get Hurd cleaned up, not admitting to herself that the blood on the clothes could have been from someone other than Hurd. She took Hurds clothes and put them into the washing machine. The clothes included a pair of blue pants, which the State contended were the same pants that were later found at Hurds Stillwater residence. Billie Ann explained that, while the clothes were in the machine, she sat with Hurd and "tried to calm him down." As she sat with Hurd, Billie Ann observed a knife on the nearby table. According to Billie Ann, Hurd remained at her house for approximately one to two hours. Even though the clothes were not dry, Hurd requested his clothes from Billie Ann because he wanted to leave. After Hurd left, Billie Ann noticed that the knife was gone. Billie Ann testified that she felt scared after this incident and did not tell anybody about what had happened because, she said, "A friend came to me and I just--I didnt dare say nothing." Billie Ann kept this secret for several years. But on February 17, 1993, Stillwater police contacted her husband, B.H., for further information in the cold-case investigation of the Linnerooth murder. Billie Ann and B.H. married sometime after the murder. Although the police did not initially question Billie Ann, one officer did speak to her while the other officer continued to question to B.H. Billie Ann decided to tell both
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Hurd referred to Linnerooth as "Vi." 5

officers everything. Billie Ann testified that, after sharing her story, she became scared and wrote a note to one officer saying that she told an "untruth." Billie Ann stated at trial, however, that the story she told to the jury was the same she told to the officers and that it was the truth. In addition to Billie Anns account, the State offered the testimony of Hurds friend, G.G., and G.G.s babysitter. The babysitter, who was 10 years old in July of 1981, explained at trial that sometime after midnight, possibly close to 1 a.m. or 1:30 a.m., on July 18, a man knocked at the door of G.G.s house. The babysitter answered the door, and the man identified himself as "Russ." The babysitter testified that she recognized the man as G.Gs friend. G.G. was home at the time, and she testified that when she was told that "Russ" was at the door she understood that to mean appellant, Russell Hurd. The babysitter told the man that G.G. was sleeping, so the man indicated he might come back later, and left. The State also offered testimony from M.P., who testified that he ran into Hurd at Reeds Drugstore in Stillwater during the early afternoon of July 18, 1981. According to M.P.s testimony, he and Hurd spent the afternoon "bumming around" the town and searching for money for alcohol. At some point, Hurd gave M.P. several coupons from the food stamp program, though neither Hurd nor M.P. was a program participant. Hurd and M.P. eventually entered the Hidden Valley Lounge looking for B.H. B.H. testified that Hurd approached him and asked to travel with B.H. back to B.H.s home in Cushing, Wisconsin. B.H. agreed, and B.H., Hurd, and M.P. set out toward 6

M.P.s truck. According to B.H., Hurd appeared nervous and indicated that the police were after him for a "bum rap." On the way to the truck, a police officer drove past the men; when the officer was out of sight, Hurd took off running, though B.H. and M.P. continued to walk. M.P. testified that when the three men got into the truck, Hurd bent over below the dash and indicated that, if something big were discovered in Stillwater, he might be implicated. On the way to Cushing, a radio news program reported that a woman was killed in Stillwater, and B.H. testified that Hurd wondered aloud whether the victim could have been "Vi." Hurd denied to B.H. any involvement in the murder, but he did ask B.H. to say that B.H. had been with him on Friday night, July 17. Hurd also told B.H. that, two days earlier, he had sold his knife to someone in Stillwater. B.H. and M.P. left Cushing on July 19, though Hurd remained behind at the house. Before they left, Hurd took M.P.s contact information so that Hurd could call M.P. to find out whether Stillwater police were looking for him. Also on July 19, G.G., whose door Hurd reportedly knocked on the night of the murder, drove to Cushing with a friend, J.M., who was seen with B.H. on the night of the murder at Jim Beams Bar. G.G. and J.M. were looking for B.H., and when they arrived at his house, they knocked and saw Hurd bending down inside. Hurd then approached them from around the back of the house. J.M. testified that Hurd told the women that he knew the police were looking for him and that he did not want to talk to the police.

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The next day, July 20, 1981, an investigator and two other officers from Washington County, Minnesota, interviewed Hurd at a park in downtown Cushing, Wisconsin, where Hurd had agreed to meet with them. The officers informed Hurd of his rights, and Hurd said he understood them and agreed to talk with the officers. Hurd denied any knowledge of the crime beyond what he had heard on the radio and emphatically denied having seen Linnerooth at all on July 17. Hurd told the officers that on July 17 he had been drinking with B.H. and that he and B.H. went from Lowell Park to the Boom Company bar together. Hurd said that he and B.H. left the Boom Company after 10 p.m. and went swimming in the St. Croix River, leaving their clothes on the shore. While swimming, Hurd was separated from B.H. and did not rejoin B.H. that evening. Hurd told officers that he went directly home after swimming, at approximately 1 a.m. When the interviewing officer confronted Hurd with B.H.s story that B.H. was not with Hurd during the night of July 17, Hurd responded that B.H. was lying. In response to questioning about why a pair of blue trousers were found wet in his home, Hurd answered that his mother must have washed them. The investigator also questioned Hurd about his knife, to which Hurd responded that he now had a military-type knife and a pocket knife, and that he had possessed a cheap hunting knife but sold it a long time

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ago.5 Hurd further denied being in possession of any food stamps on July 17 or 18. When confronted with the stamps that the police recovered from M.P., Hurd recalled that he had given them to M.P. and he told the police, "I suppose they are Vis." Subsequent investigation confirmed that these particular stamps did belong to Linnerooth and her husband. In addition to the evidence from the investigation performed in 1981, the State also offered evidence showing that Hurd contacted the Stillwater police during the summer of 1989. Hurd said that he had information regarding the Linnerooth murder and asked to speak with a particular sergeant. The sergeant testified that Hurd said that he was at the scene of the homicide and that a person named C.A. stabbed Linnerooth. 6 A person who shared a jail cell with Hurd in January of 1993, when Hurd was being held for a different offense, also testified. He described a conversation he had with Hurd where they discussed the plausibility of committing murder without being caught. During this conversation, Hurd said that he had committed murder before and that the

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The State introduced evidence that Linnerooths stab wounds could have been caused by a hunting knife about the size that witnesses saw Hurd wearing on his belt on July 17.
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On February 23, 1993, a cold-case investigator contacted Hurd, and Hurd related that on the morning of July 18, 1981, C.A. had told him that C.A. murdered Linnerooth. But at trial, Hurd denied ever implicating C.A., and he also denied being present at the scene of the murder. 9

State could not prove it. conversation.7

A second cellmate also testified and corroborated the

In addition to the witness testimony described above, the State also introduced many photographs into evidence. The State introduced 29 photographs of Hurd, taken in 1981 shortly after the murder, depicting various abrasions, scratches, and scabs.8 The State also offered, without objection, 16 photos of the crime scene depicting the landscape and various items found around the area. Finally, the State offered two exhibits--numbered 53 and 54--each displaying several photos depicting Linnerooths body and various aspects of the autopsy. Hurd objected on the grounds that the photos were inflammatory and overly prejudicial.9 Exhibit 53 contained two individual pictures and two "sets of pictures" taken in the medical examiners office in St. Paul. One individual picture depicts the body as it was found partially undressed, and the second individual photo depicts a full-face image of the victim. With respect to the sets of pictures, one set depicts the body after it was cleaned showing five wounds, and the second set depicts six stab wounds on the subjects

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Hurd denied that such a conversation took place.

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As part of its case in chief, the defense called an expert witness who testified that Hurds wounds were of varying ages and that the wounds were not consistent with either "defensive" or "offensive" wounds often found on assault perpetrators.
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The actual photographs Hurd challenged at trial are not part of the record received in this court, but sufficient descriptions and analysis of each picture exists in the record for us to address the possible prejudice raised by these images.

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facial region, a black eye, and abrasions.

Exhibit 54 contained four individual

photographs taken at the crime scene. The first photo depicts the landscape and a portion of the body. The second shows the body in a clearing adjacent to a large stone. The third depicts an overhead shot of the body, with clothes askew and "a fair amount of hemorrhage." And the fourth depicts Linnerooths facial region, showing a number of wounds and hemorrhaging, and sticks and leaves in her hair. On December 5, 1993, the jury found Hurd guilty of one count of first-degree murder during sexual assault in violation of Minn. Stat.

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