This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Tracey Lee Nelson, petitioner,





State of Minnesota,



Filed October 1, 2002

Reversed and remanded

Toussaint, Chief Judge


Cass County District Court

File No. K598565


Ronald I. Meshbesher, Jonathan Michael Peck, Meshbesher & Spence, LTD., 1616 Park Avenue, Minneapolis, MN  55404 (for appellant)


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Suite 500, 525 Park Avenue, St. Paul, MN  55103; and


Earl E. Maus, Cass County Attorney, John Gralus, Assistant County Attorney, Cass County Courthouse, 300 Minnesota Avenue, P.O. Box 3000, Walker, MN  56484-3000 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


            Tracey Lee Nelson appeals her conviction of first-degree arson.  Because we conclude that Nelson’s counsel performed below an objective standard of reasonableness and the deficient performance prejudiced the defense, we vacate the conviction and reverse and remand to the district court for a new trial.



            In the early morning hours of September 25, 1997, Tracey Lee Nelson’s house was destroyed by fire.  Nelson, home alone, claimed that she was awakened by both her smoke alarm and her dogs.  While being interviewed by the local fire chief, Nelson surmised that the fire was likely started by a dog knocking a lit candle off of the dining room table or by a malfunctioning of the old electrical system.  The fire chief later opined that Nelson’s explanations did not seem credible, she did not smell of smoke, and she was notably composed both emotionally and physically.  Following standard practice when a fire’s origin is in doubt, the fire chief requested that Mark Germain, a Deputy Fire Marshall for the Minnesota Department of Public Safety, investigate the scene. 

            Germain interviewed Nelson, who told him that she had gone to bed between 1:00 and 1:30 a.m. and woke up shortly thereafter.  She said she went downstairs, saw that her dining room curtains were on fire, and went to her neighbors to call for help.  She also told Germain about the faulty electrical work and the lit candles.  Germain inspected the house and found no candle or candleholder residue near the fire’s origin.  Based on his investigation, Germain concluded that the cause of the fire was not accidental. 

            Nelson’s insurance company hired two independent investigators to determine whether the fire was accidental.  John Pagels, an electrical engineer, testified that although the electrical work in the house was in bad shape, he saw no evidence that the fire was caused by an electrical malfunction.  Robert Whitemore conducted an initial investigation of the site and was unable to determine whether the fire was an accident or arson.  He anticipated, however, that additional evidence would be forthcoming.  Later, Whitemore received: (1) the initial complaint report from the Cass County Sheriff’s Office; (2) a recorded statement from the assistant fire chief about the fire scene; and (3) a sworn statement from Nelson taken in January 1998.  Whitemore found Nelson’s sworn statement to be illogical when compared to the physical evidence and concluded that the cause of the fire was not accidental.

In June 1998, Nelson was charged with first-degree arson.  At trial, the state produced evidence of Nelson’s severe financial problems and the testimony of her friend Michelle Rodemeyer’s that Nelson had previously asked her how to burn down a house without being detected.  Despite all of the investigator’s acknowledgement of evidence to the contrary, Nelson’s counsel focused her defense solely on the theory that the fire started accidentally.  Nelson was found guilty and sentenced to 58 months in prison.

Nelson hired new counsel and petitioned for postconviction relief alleging that (1) there was newly discovered evidence regarding Rodemeyer and Nelson’s ex-boyfriend Guy Vogel; (2) the evidence at trial was insufficient to convict Nelson; and (3) her previous attorney provided ineffective assistance of counsel.  At the postconviction hearing, Nelson’s new attorney attempted to establish that the previous attorney had inadequately investigated and defended Nelson’s case.  Nelson’s new counsel introduced a letter from her previous attorney to the prosecutor written just six days before trial stating that he had only interviewed one witness and was not sure what his testimony would be, as he did not take any notes.  The new counsel also called a criminal-defense expert who testified that the previous attorney’s representation lacked adequate investigation and disregarded the evidence suggesting that a third party had started the fire.  According to the expert, had the previous attorney investigated the case more thoroughly and argued all plausible defense theories available at the time of trial, Nelson would likely have been acquitted. 

Nelson’s new attorney also argued there was strong exculpatory evidence available to the previous attorney but not presented at trial.  Nelson’s friend Mike Lassiter testified that he and several other witnesses at the house on the morning of the fire heard Rodemeyer say that Vogel started the fire.  Rodemeyer denied making the statement.  Lassiter also testified that Vogel admitted setting the fire, at about the time Nelson had obtained a money judgment against him.  There was evidence that Vogel and Nelson had a tempestuous relationship and that Vogel had threatened to burn down Nelson’s house on previous occasions.  Finally, Lassiter also testified that on the morning of the fire he observed fresh truck-tire tracks in the field behind Nelson’s house.  Lassiter was present and ready to testify at Nelson’s trial, but the previous attorney never called him to the stand.

Nelson’s new attorney also produced additional evidence relative to Rodemeyer’s credibility as an impartial witness.  There was evidence that Rodemeyer had served as a confidential informant for a search warrant and had provided a list of items that Nelson allegedly had moved to her garage just before the fire.  When the search warrant was granted and executed, none of the items was found in the garage.  The district court had disallowed the evidence due to Nelson’s previous attorney’s failure to request the information at the omnibus hearing.  An investigator for Nelson’s new attorney also produced evidence that in an interview after the trial, Rodemeyer stated that she made her statements implicating Nelson knowing that she might receive a reward for them.  Later in the same interview, Rodemeyer recanted, claiming that she did not know of a reward until after the trial.  Rodemeyer also alleged that she initiated calling the fire department and was connected with Germain, while Germain stated that Guy Vogel told him to contact her.

Germain’s statement suggested that Rodemeyer and Vogel had a relationship and might have worked together to frame Nelson on the arson charge. 

In his defense, the previous attorney stated that he intended the letter to the prosecutor to be misleading.  He claimed that he had conducted several interviews before the trial, but did not want to disclose them and compromise the quality of his defense. The previous attorney testified that he chose not to implicate Vogel in the crime because Vogel would then likely testify that Nelson had previously expressed a desire to burn her house down.   The previous attorney felt his client’s strongest chance for acquittal was to focus solely on the possibility that the fire was an accident.  Furthermore, he stated that when he asked Nelson about Vogel’s potential involvement, Nelson claimed that she did not believe that he started the fire.  Nelson denied ever making this statement.

The postconviction court denied the petition finding that the previous attorney did an adequate job of representing Nelson at her trial and that Nelson failed to meet her burden of proving ineffective assistance of counsel.  On appeal, Nelson argues that (1) she was wrongly convicted because the state never established that the burning of her home was the result of an incendiary act; (2) there was insufficient evidence to convict her of first-degree arson; (3) her right not to testify, her privilege against self-incrimination, and her right to a fair trial were violated by a comment made by the prosecutor during the course of the trial; and (4) she received ineffective assistance of counsel.



The district court’s determination on postconviction relief is subject to an abuse-of-discretion standard.  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999).  In reviewing the order of a postconviction court, this court’s function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion.  Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995); see Kochevar v. State, 281 N.W.2d 680, 687-88 (Minn. 1979) (recognizing factual findings of postconviction court will not be disturbed if supported by sufficient evidence).


A defendant claiming ineffective assistance of counsel must affirmatively establish that his attorney’s representation “fell below an objective standard of reasonableness” and that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.


State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation and citation omitted).  There is a strong presumption that counsel’s performance “falls within the wide range of reasonable professional assistance.”  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation and citation omitted). 

Particular deference is given to counsel’s trial strategy.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  “What evidence to present to the jury, including which witnesses to call, represents an attorney’s decision regarding trial tactics and lies within the proper discretion of trial counsel.”  Doppler, 590 N.W.2d at 633.  However, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”  Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066.  The governing legal standard is “whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”  Id. at 695, 104 S. Ct. 2068-69.

First, Nelson contends that the previous attorney’s performance was deficient because he failed to call Mike Lassiter and solicit his testimony concerning Vogel’s admission that he burned down Nelson’s house.  To prove prejudice from the failure of counsel to call a possible witness to the stand, a defendant has an affirmative burden to show that the witness would have had an impact on the outcome.  Gates, 398 N.W.2d at 562-63.  The previous attorney argued at the postconviction hearing that he did not call Lassiter for fear that the state would then call Vogel to detail how Nelson had talked with him about burning down her home.  While we are mindful of the potential damage that Vogel’s testimony could have caused, we believe that the value of Lassiter’s testimony would have outweighed that of Vogel’s testimony and would have significantly impacted the trial’s outcome. 

Had Lassiter been allowed to testify, he would have provided an alternative theory of the case alleging that Vogel had not only threatened but admitted to burning down Nelson’s house.  He also would have testified that he notified the Sheriff’s office immediately after hearing the admission.  Even if Vogel had mentioned Nelson’s earlier statements about burning the house down, it is doubtful the testimony would have had much credibility in light of Lassiter’s accusations.  Considering that the case against Nelson was composed entirely of circumstantial evidence, we believe that this alternative theory would have made it reasonably probable that the jury would have reached a different conclusion.  It was not reasonable to decide against presenting this evidence to a jury.

Second, we also find that the previous attorney’s failure to introduce evidence of the Rodemeyer-Vogel relationship and their possible attempt to frame Nelson as the arsonist fell below an objective standard of reasonableness.  Whether it was a result of inadequate investigation or simply an omission, we find the failure to establish either in a pretrial motion or at trial that Rodemeyer was the informant for a wholly inaccurate search warrant rises to the level of ineffective assistance of counsel.  Had the jury known of Rodemeyer’s failed attempt to secure evidence portraying Nelson as the arsonist, it is reasonable to believe that her credibility would have been significantly damaged.  This damage could have been further extended if the previous attorney had examined all of the inconsistencies in Rodemeyer’s testimony.  Had these issues been explored and presented to the jury, a picture portraying Rodemeyer as wrongly accusing Nelson for a fire someone else started would have become a viable defense.  Given that Rodemeyer was a key witness for the state, it is reasonable to believe that such a defense could have altered the outcome in this case.  We find that the previous attorney’s failure to present this information at trial amounts to ineffective assistance of counsel.

             While the previous attorney’s failure to call Lassiter and generally impeach Rodemeyer’s testimony alone establish ineffective assistance of counsel, the following, when taken cumulatively, further establish that Nelson has made an affirmative showing that counsel’s representation fell below an objectively reasonable standard.  First, many who were at Nelson’s house the day of the fire had observed that Rodemeyer was intoxicated when she arrived.  This information affecting her credibility was never mentioned at trial.  Second, the previous attorney also failed to highlight for the jury that four months passed before Rodemeyer spoke to Germain about the fire.  Third, the previous attorney failed to cross-examine any of the state’s witnesses who commented on Nelson’s calm demeanor and kempt appearance after the fire.  Left unchallenged, the jury could view this as highly probative of Nelson’s guilt as it suggests that the fire did not surprise her.  An alternate hypothesis offered by her previous attorney could have at least introduced some doubt in the juror’s minds about this testimony.  Fourth, the previous attorney did not question the state’s experts about any potential biases they may have harbored due to their affiliation with Nelson’s insurance company.  Fifth, the previous attorney’s late decision to retain an expert prevented that expert from examining the fire scene himself, thus limiting Nelson’s ability to challenge the state’s expert testimony.  Finally, there is no evidence that the previous attorney researched the frequency with which accidental candle fires occur.  This omission harmed his ability to challenge the state’s experts’ claims that the fire was not accidental.

            We therefore conclude that the trial court abused its discretion when it found that Nelson failed to establish that she received ineffective assistance of counsel.  Accordingly, we vacate Nelson’s conviction and remand for a new trial.


            Because we conclude that Nelson is entitled to a new trial, we need not determine for the purposes of this appeal whether the state failed to prove corpus delicti, whether the evidence sustained the conviction, or whether the prosecutor’s comments during trial violated Nelson’s constitutional right not to testify, privilege against self-incrimination, and right to a fair trial.

            Reversed and remanded.