Wednesday, July 1, 2015

Restitution Statute Provides Exclusive List of Factors to Consider in Determining Restitution; A Victim's Conduct May Not Be Considered

State v. Riggs, Minn.S.Ct., 7/1/2015.  The restitution statute, Minn.Stat. 611A.045, subd. 1, says that in determining restitution that trial court "shall consider" two enumerated factors:  the victim's economic loss from the offense and the defendant's income, resources and obligations.  Mr. Riggs pled guilty to terroristic threats.  The victim requested restitution for various things, described as "employment-related" expenses.  Mr. Riggs didn't object to paying some restitution but thought that since the victim had been the initial aggressor - something that no one disputed - that he should not have to pay all of those "employment-related" expenses.  The trial court agreed and ordered Mr. Riggs to pay only  half those expenses.

The court of appeals reversed.  That court said that because the statute does not identify any other factors or state that other factors may be considered then, by golly,only those two factors can be considered.  Justice Wright, for only four members of the court, agrees with the court of appeals.  Chief Justice Gildea and Justice B. Barry Anderson dissent, as does Justice Page.  Justice Wright concludes that the words of the statute provide the only two factors that the trial court can consider.  The relative fault of the victim just isn't there.

Alternatively, Mr. Riggs said that the phrase "economic loss sustained by the victim as a result of the offense" gave the trial court some leeway to take into account the victim's conduct. Justice Wright hauls out the dictionary to laboriously define each of the words in this phrase, then flat out declares that a victim's role as an initial aggressor may not be considered in determining the amount of restitution. 

The chief justice and Justice Anderson agreed that the statute provided an exclusive list of factors to be considered, but thought that the "as a result of the offense" phrase was broad enough to give the trial court some discretion to consider the victim's conduct.  the chief also thought that State v. Terpstra, 546 N.W.2d 280 (Minn. 1996) had held that restitution was not limited to the crime of conviction.  This is nonsense as Terpstra was a single count conviction of theft by swindle.  The state was not able to prove beyond a reasonable doubt that Terpstra swindled the full amount claimed, some forty-five grand, but the trial court, under a preponderance standard, could still award the full amount as restitution. There was only one offense and only one conviction. Here, Mr. Riggs pled guilty to terroristic threats and another offense, assault was dismissed.

Justice Page thought that restitution should be limited to losses caused by the offense of conviction.  He points out that the restitution statute provides that a victim may only receive restitution "as part of the disposition of a criminal charge ... against the offender if the offender is convicted." Minn.Stat. 611A.04, subd. 1(a).  The phrase "as a result of the offense" logically refers to the offense of conviction.  Justice Page also agreed with the chief justice that the trial court should be able to consider the victim's conduct.

Tuesday, June 30, 2015

When Accepting a Norgaard Guilty Plea Trial Court Need Not Make Express Finding of Strong Probability That A Defendant Would Be Found Guilty

State v. Johnson, Minn.Ct.App., 6/29/2015.  Mr. Johnson pled guilty to felony domestic assault by strangulation.  He said at the plea hearing that he couldn't remember the incident.  He agreed, though, from a read of the police reports, that the state's evidence "would likely persuade" a jury to find him guilty.  On appeal, he said that he should get a new trial because the trial court had not made an express finding of fact that there was a "strong probability" that he would be found guilty.

Here's what the trial judge asked Mr. Johnson:
Would you agree that if the fact finder, whether that was me or a jury, if we were in a trial and the prosecution called witnesses who would testify to what is in those police reports about what happened that night at your residence, that applying the presumption of innocence and 4 burden of proof beyond a reasonable doubt, if all that information came out, that you would be convicted of that Domestic Assault By Strangulation?
A guilty plea is valid if it is accurate, voluntary and intelligent.  State v. Ecker, 524 N.W.2d 712 (Minn. 1994).  Mr. Johnson's challenge to his plea focuses on the accuracy requirement of a valid plea.  Accuracy means that there is an adequate factual basis to support a conclusion that a defendant's conduct falls within the charge to which he desires to plead.  Usually, a defendant establishes that factual basis by answering questions about the alleged offense conduct.  However:
a factual basis [may also] be established by other means: when a defendant enters an Alford/Goulette plea and when a defendant enters a Norgaard plea.” Id. A defendant enters an Alford/Goulette plea if he maintains his innocence but “reasonably believes, and the record establishes, the state has sufficient evidence to obtain a conviction.” Ecker, 524 N.W.2d at 716 (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)); see also State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977). A defendant enters a Norgaard plea if he “claims a loss of memory, through amnesia or intoxication, regarding the circumstances of the offense” but the record establishes that “the defendant is guilty or likely to be convicted of the crime charged.” Ecker, 524 N.W.2d at 716; see also State ex rel. Norgaard v. Tahash, 261 Minn. 106, 112-14, 110 N.W.2d 867, 871-72 (1961).
 The appellate court leaves a trial court's obligations where it finds them:  the trial court must be satisfied, among other things, that the plea is supported by an adequate factual basis.  There is no requirement from either case law or the rules of criminal procedure that the court also make an express finding that "there is a strong probability that the defendant would be found guilty of the charge to which he pleaded guilty."  See State v. Theis, 742 N.W.2d. 643 (Minn. 2007).  

Saturday, June 27, 2015

Crime of Clergy Sexual Conduct Does Not Require Proof That Clergy Had Knowledge that Complainant Sought or Received Religious Advice

State v. Wenthe, Minn.S.Ct., 6/24/2015.  A jury convicted Mr. Wenthe of third degree criminal sexual conduct for "sexually penetrating A.F. - a member of the parish where Wenthe served as priest - at a single meeting at which A.F. sought spiritual counsel." Mr. Wenthe has been in and out of the appellate courts several times now, go here, here, and here.  Most recently, the court of appeals had (again) reversed that conviction and the state sought review.  Justice Anderson, for four members of the court - Dietzen and Wright not participating and Page dissenting - now (again) reverses the court of appeals.  Justice Anderson addressed each of the three issues on which the court of appeals had reversed.

At trial the court gave the standard instruction on unanimity.  On appeal Mr. Wenthe argued successfully that it had been plain error for the trial court not to have given an instruction that the jury must unanimously agree on which of several meetings between A.F. and Mr. Wenthe that he violated the statute.  The trial court declined to give that instruction but the court of appeals said that it should have done so, that it was plain error and that it required a new trial. Justice Anderson awards this decision to the trial court without really deciding the question.  Instead, the justice said that if there were error it did not affect Mr. Wenthe's substantial rights.

Second, the defense did ask the trial court to instruct the jury that a clergy member must have subjective knowledge of the purpose of the meeting at which sexual penetration occurs.  The trial court declined the request and gave a knowledge instruction that only went to the element, intent to sexually penetrate.  The court of appeals concluded that this was error because the statute required proof of a "particularized knowledge" that the complainant sought spiritual counsel.

Justice Anderson says, no, that's not what the statute says so that's not what it requires.  Here's the pertinent portion of the statute, Minn.Stat. 609.344, subd. 1(I):
A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists: . . . .
(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and: 
(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense . . . .
The justices can't find anything about a knowledge requirement here and under its literalist approach to jurisprudence are not about to insert one. That's a legislative function. Also, because previous case law requires that sexual penetration must be intention, then the statute survives the claim that without an additional knowledge requirement its a strict liability offense.

Finally, at trial Mr. Wenthe had sought to introduce evidence of A.F.'s sexual history. The state parried the request by promising only to introduce evidence of A.F.'s sexual abuse as a child. The state broke that promise, however, when it elicited testimony from A.F. that she was sexually inexperienced. Justice Anderson said that the state should have kept its promise and that the trial court made a mistake by permitting the receipt of the "inexperience" evidence. That mistake, however, did not amount to an abuse of discretion, which is the appellate review standard of evidentiary rulings. And, to cover the bases, if the ruling was an abuse of discretion it was harmless.

Justice Page dissented on all three of the majority's rulings.

Officers Lawfully Seized Cell Phone Under Plain View Exception

State v. Holland, Minn.S.Ct., 6/24/2015.  Mr. Holland called the police from his apartment to report that a woman - who turned out to be his dead girlfriend, Margorie Holland - was unconscious, not breathing, and cold.  Police came over and found Ms. Holland lying on her back at the bottom of a set of stairs inside the apartment. Mr. Holland told one of the first officers to arrive that he had gone out to get Ms. Holland some food from Taco Bell but that she had texted him to go to McDonald's instead.  When he returned, Mr. Holland found Ms. Holland at the bottom of the stairs.The officer asked Mr. Holland about the text messages, she said so that she could determine just how long Ms. Holland had been unresponsive. Mr. Holland's hands shook so bad, however, that he gave the officer the phone.  The officer looked at the messages and actually concluded that the text message exchanges between the Hollands were consistent with Mr. Holland's description of his activities that morning.   The officer gave the phone to a detective who later obtained a search warrant to examine the full content of the phone. Eventually the state charged Mr. Holland with first degree murder and a jury convicted him of those charges.

Mr. Holland moved to suppress evidence of the contents of the phone, arguing that police had seized the phone without a warrant in violation of both federal and state constitutional prohibitions against unreasonable searches and seizures.  The state agreed on appeal that the officers had seized the phone but sought to justify that seizure under the plain view exception to the warrant requirement.

Chief Justice Gildea, for the full court, agrees that plain view permitted the seizure of the phone.  She also agreed with Mr. Holland that police do need probable cause to believe that the item seized - in this case the cell phone - is of an incriminating nature, but in the court's view the cops had it.  The Chief Justice said that when the officers looked at the phone - which arguably amounted to a consent from Mr. Holland for the cops to seize it, an argument that the made but the court ducked - the text messages at issue were openly displayed on the screen.  The detective on scene, however, became suspicious of Mr. Holland's explanation of events because of the position of the body and its discoloration; the detective suspected that Ms. Holland had been dead longer than Mr. Holland's explanation suggested. The detective decided to hang onto the phone in order to request a search warrant of its contents, sort of like "freezing" a scene for the same purpose.  The Chief Justice said that although the text messages alone were not evidence of criminal activity when put in context with the detective's suspicions they became such evidence.

Mr. Holland challenged several other search warrants, some of which he said were based on information obtained from what he said was the unlawful seizure of the cell phone.  The court made short shrift of these challenges once it concluded that the officers had properly seized the phone.  Finally, Mr. Holland challenged search warrants of bank accounts and financial records.  The court concluded that the warrants were supported by probable cause.

Thursday, June 25, 2015

A Pattern of Making False Claims of Self Defense Is Admissible as Spreigl Evidence To Rebut Claim of Self Defense

State v. Welle, Minn.S.Ct., 6/24/2015.  A jury found Mr. Welle guilty of unintentional second degree murder, and of first degree manslaughter for the death of Dale Anderson.  Mr. Welle said that he committed the murder outside the Powerhouse Bar in self defense.  He said that he and Mr. Anderson argued, during which Mr. Anderson punched Mr. Welle in the face.  Mr. Welle defended himself by punching Mr. Anderson in the face, which caused Mr. Anderson to fall backwards.  Mr. Welle had no visible injuries. Eventually Mr. Anderson later died.

Over objection from Mr. Welle the trial court permitted the state to introduce evidence to rebut the self defense claim of three prior incidents, in two of which Mr. Welle made essentially the same claim even though he had no visible injuries:  during an argument some guy hit him and he hit back in self defense.  In the third incident, Mr. Welle made no claim of self defense.

Justice Page, for the full court, said that Mr. Welle's pattern of asserting self-defense after being the aggressor in an altercation is relevant for purposes of disproving the elements of self defense. State v. Robinson, 427 N.W.2d 217 (Minn. 1988).  It's relevant because it tends to make it more or less probable that Mr. Welle had an actual and honest belief of danger of death or great bodily harm, which is one of the elements of self defense.

The Justice also said that only the two prior incidents in which Mr. Welle made this self defense claim should have been admitted. Admission of evidence of the third incident, which did not include a claim from Mr. Welle that he had acted in self defense, was error, but, alas for Mr. Welle, it was harmless error.

Wednesday, June 17, 2015

Martin v. State, Minn.S.Ct., 6/17/2015.  Mr. Martin is serving a life sentence with no possibility of parole.  He committed the crime as a juvenile, was automatically certified to adult court, and was automatically sentenced to life without possibility of release upon conviction. A couple of years ago, after his conviction and sentence were affirmed on direct appeal, Mr. Martin filed a post conviction petition in which he alleged that because of recantations by two state witnesses he was entitled to a new trial.  The post conviction court summarily denied that petition, but the supreme court sent the case back to the post conviction court for an evidentiary hearing on the recantation claim.

In the meantime, Mr. Martin filed a second post conviction petition in which he claimed that the holding of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) should be applied retroactively. The post conviction court held a hearing on both petitions.  The recantation claim didn't go so well.  The state presented evidence that Mr. Martin had procured the two witness recantations by means of coercion and threats to the witnesses and their family members.  

One of the witnesses appeared only through counsel, who asserted his client's Fifth Amendment privilege and moved to quash the subpoena directed to his client.  The post conviction court granted that motion to quash the subpoena.  On appeal, Mr. Martin complained that the witness first needed to be sworn before the privilege could be asserted.  Justice Dietzen, writing for the full court on this issue, said, no, that because risk of self incrimination was obvious - the witness either lied during his trial testimony or in his sworn affidavit - assertion of the privilege did not require the witnesses' presence.

Alternatively, Mr. Martin argued that the post conviction court should have granted this witness judicial immunity.  The immunity statute, however, Minn.Stat. 609.09, subd 1, is only triggered when the state requests that the court grant immunity to a witness. Because the state didn't make that request, the post conviction court had no authority to grant it.  See State v. Pierce, 364 N.W.2d 801 (Minn. 1985).

On the juvenile life without possibility of release, six justices continue to believe that Miller is not retroactive.  Justices Anderson and Lillehaug agree, but acknowledge that other courts have ruled on the question the other way and just wish that the U.S. Supreme Court would resolve it.  Justice Page dissented, for the reason that he dissented in Chambers  and Roman Nose, that Miller  should be applied retroactively.

Wednesday, June 10, 2015

The State Need Not Always Present Evidence of Scientific Testing of Suspected Narcotics to Survive a Sufficiency Challenge

State v. Gruber, Minn.Ct.App., 6/8/2015.  The Washington County Sheriff's Office maintains a locked depository box into which members of the public can dispose of unused drugs.  Deputy Gruber (one supposes former deputy?) got caught on camera pilfering some of these drugs. Among other crimes the state charged him with unlawful possession of "legend drugs." Minn.Stat. 151.01, subd. 17. "Legend drugs" are medications that require a prescription under federal law.  A jury convicted him of this offense, as well as the offense of official misconduct.

Among the claims that Mr. Gruber made on appeal was that the state failed to submit sufficient evidence that the medications he removed from the lock box were actually "legend drugs".  Mr. Gruber said that this is because the state did not offer any evidence of chemical testing of those drugs.  The court of appeals rejected this assertion, citing to past cases in which the supreme court had said that scientific testing was not always required.  The most recent one was State v. Olhausen, 681 N.W.2d 21 (Minn. 2004).  In that case, the court had upheld a conviction for possession of methamphetamine even though the state only presented testimony from an undercover buyer who said that he knew what methamphetamine packaging looked like and what he'd seen Mr. Olhausen with was such packaging.  From this, and two other cases, the court discerned that:
[F]act finders must consider and weigh the reliability of the state’s chemical-identity evidence in each case; a fact finder can reject as unreliable a proffered method of scientific testing; a fact finder may determine identity of a drug beyond a reasonable doubt based on reliable nonscientific evidence; ...
The court applied these principles and concluded that the state's evidence was sufficient.  Most of the drugs were in prescription bottles or were sealed in the original packaging.  The BCA witness examined the pills inside the containers and then visually matched those pills to pictures of known medications.  Enough said.

Mr. Gruber made some additional complains but the court methodically (and sometimes scornfully) rejects them.  Most had to do with the official misconduct charge.

Sale of Oxycodone in Dosage Units Is Not First Degree Sales Crime

State v. Anderson, Minn.Ct.App., 6/8/2015.  Imagine that there's a twelve word phrase in Chapter 152, the drug statute, that makes the sale of any controlled substance a first degree drug crime. How sweet is that!  No more digging through the schedules to find the drug; just say the magic words and knock off work early.  Here's the portion of the first degree drug statute in play:
A person is guilty of controlled substance crime in the first degree if:
. . . .
(3) on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of 50 grams or more containing amphetamine, phencyclidine, or hallucinogen or, if the controlled substance is packaged in dosage units, equaling 200 or more dosage units.
Minn.Stat. 152.021, subd 1(3).

The state charged Mr. Anderson with first degree sale of  450 pills containing oxycodone.  The state conceded that oxycodone is not amphetamine, phencyclidine or a hallucinogen.  The state insisted, however, that the phrase following "hallucinogen" covers any controlled substance.  The trial court bought this assertion and a jury found Mr. Anderson guilty of first degree sale of pills containing oxycodone.

In the dictionary toting, literalest/originalist judicial world inhabited by Minnesota's appellate courts, even this is too much.  The court sets off on a lengthy exploration of English grammar, in particular , "disjunctive lists" and "gerund phrases" - "equaling 200 or more dosage units" - to arrive at the all too obvious conclusion that the state's argument, if accepted, would result in this gerund phrase swallowing nearly the entirety of Chapter 152 narcotics sales provisions.    

So, at least for a few more months, the drug dealers get a break.  Selling oxycodone is only a third degree sales event.

6/10/2015: No Supreme Court Published Criminal Opinions

Monday, June 8, 2015

Under Plain Error Review, Instruction Error on Intent to Commit Burglary Do Not Require New Trial

State v. Davis, Minn.S.Ct., 6/3/2015.  A jury convicted Mr. Davis of first degree felony murder.  Here's part of the instructions that the trial court gave to the jury:

First, the defendant or an accomplice was committing the crime of burglary. This element is satisfied if there is proof beyond a reasonable doubt that the defendant or an accomplice entered a building without the consent of the person in lawful possession and intended to commit or committed a theft while in the building.
So, what's wrong with this instruction?   First, Mr. Davis said that it does not include the definition of theft, which is the predicate offense for the burglary.  Justice Wright, for the entire court, rejects this assertion.  So long as the court's instructions do not mislead the jury or allow it to speculate over the meaning of the elements of the offense, then it's okay.  

Next, Mr. Davis said that the instructions misstated the law on the intent required to commit the burglary.  Third degree burglary, the predicate felony to the murder, requires proof that a person either "enters a building without consent and with intent to steal," or "enters a building without consent and steals ... while in the building.  See the problem with the court's instruction?  The instruction says that the intent to commit a theft need not have been formed at the time of entry. That's not what the statute requires.

Unfortunately for Mr. Davis, there was no objection to this erroneous instruction.  Under plain error - and the court only assumes that the error was plain - he has to establish that the error affected his substantial rights.  Mr. Davis can't satisfy that requirement for two reasons:  first, one of is defenses was that he wasn't there so if the jury accepted that claim that it doesn't matter what the instructions are.  His second defense was that he had permission to take the items that were removed but only temporarily.  (He claimed that all this was some sort of furniture rental scam.)  Justice Wright said something about this defense not implicating the intent element of burglary "because there is no evidence that Davis entered the apartment without an intent to steal, subsequently formed an intent to steal while in the apartment, but ultimately chose not to steal anything while in the apartment."  

The trial court told the jury that it "need consider ... the lesser offenses that are now being submitted." This is an error; juries can't be told in what order to consider charges.  See State v. Prtine, 784 N.W.2d 303, 316 (Minn. 2010).  Again, however, Mr. Davis didn't object to this instruction and, again, under plain error he can't establish that the error here was plain.

The court also excluded some alternative-perpetrator evidence that the defense wanted to jury to know about, which mostly involved persons other than the deceased.  The court found no abuse of discretion in excluding this evidence.

Finally, the court rejects complaints that the trial court improperly carried on with parts of the trial in Mr. Davis's absence, even though he'd asked not be be present.

Where Concealment of Body is Part of Single Behavioral Incident and Committed in Particularly Serious Way Then Guidelines Authorize Upward Departure

State v. Hicks, Minn.S.Ct., 6/3/2015.  Judy Rush went missing in August, 2007.  Initial investigation suggested that if the large amount of blood found in her apartment were Judy's then she was dead. Three years later, Ms. Rush's remains were discovered in a shallow grave in a park in Brooklyn Park.  The state charged Mr. Hicks with second degree intentional and unintentional murder.  The court - Mr. Hicks waived both his right to a jury trial and to counsel - convicted him of second degree unintentional murder.

The court then granted the state's motion for an upward durational departure.  The court determined that the disposal and concealment of the body constituted particular cruelty "under the facts."  The court of appeals affirmed.  That court reasoned that concealment of the body is particularly cruel and thus supports a departure.  That court also rejected Mr. Hicks' argument that the concealment was a separate, uncharged offense that could not be used to justify an upward departure.

Justice Dietzen, writing for five members of the court - Justices Wright and Page dissented - admitted that the court's past pronouncements on whether concealment of a victim's body would support a departure have not been free from confusion.  In its most recent iteration on the subject, State v. Leja, 684 N.W.2d 442 (Minn. 2004), the court could not muster a majority opinion.  Justice Paul Anderson's plurality opinion garnered only three votes for rejecting a departure based only on the concealment of the body.  Chief Justice Blatz got three votes for authorizing a departure on that basis. Justice Russell Anderson concurred in the result but for the reason that the concealment was a separate offense that could not be used to authorize the departure. 

Justice Dietzen gets five votes to authorize a departure on the single factor of concealment of a homicide victim's body.  Concealment of the body makes the offender's conduct:

more serious than the typical second-degree unintentional murder because family and friends of a victim suffer additional trauma by not knowing whether their relative or friend is dead or alive, and concealment is contrary to the proper, respectful treatment due to the remains of a deceased person.
Justice Dietzen insists that this is not about particular cruelty; it's about a-typicality. (But, then again, a homicide followed by concealment of the body make up a pretty small subset of all homicides, so it's fair to anticipate that the state is going to assert in just about every homicide followed by concealment of the body that the offense qualifies for a departure.  Moreover, the precise "a-typicality" is the "cruelty" to the survivors, which is always going to be present, at least in the court's mind.)

There's more.  Those harmed by the offender's conduct no longer must be present during the commission of the crime.

The court does place some restrictions on the availability of a departure based on concealment of the body.  The court concluded that Mr. Hicks's concealment of the body was part of a "single behavioral incident" so if that's not the case then a departure may not be authorized.   Where the concealment is part of a single behavioral incident then all of those facts must show that the offender committed the offense that is being sentenced in a "particularly serious way" to support a departure.

Justice Wright, joined by Justice Page, dissented.    

Tuesday, May 26, 2015

Criminal Defamation Statute Is Declared Unconstitutional

State v. Turner, Minn.Ct.App., 5/26/2015.  In a pique of anger at his former girlfriend, C.M., Mr. Turner posted ads on Craigslist which purported to be from C.M. and her minor daughter S.M.  As a result of the contents of these ads, about which the court modestly declines elaboration, a bunch of guys called C.M. and S.M. seeking to have sex with them.  The state charged Mr. Turner with criminal defamation, Minn.Stat. 609.765, subd. 2:
Subdivision 1. Definition. Defamatory matter is anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.
Subd. 2. Acts constituting. Whoever with knowledge of its defamatory character orally, in writing or by any other means, communicates any defamatory matter to a third person without the consent of the person defamed is guilty of criminal defamation and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Mr. Turner said that this statute, which dates back to the 1890’s, is overbroad and thus violates the First Amendment and the state constitution’s counterpart.  The state conceded that the statute was overbroad but thought that it could by saved by a narrowing construction.  The court concludes that the statute is overbroad because it does not exempt truthful statements from prosecutions and as applied to matters of public concern does not require the state to prove “actual malice” before imposing liability.  The court also declines the state’s invitation to narrowly construe the statute because to do so would require that the court either write in an “actual malice” mental state or construe the statute to include this mental state.  Such a rewrite, the court said, “would constitute a serious invasion of the legislative domain.”

When Imposing Consecutive Sentences For Burglary & CSC III The Burglary Gets Sentenced First

State v. Jerry, Minn.Ct.App., 5/26/2015.  The district court found Mr. Jerry guilty of burglary in the first degree and with criminal sexual conduct in the third degree.  The court found that Mr. Jerry came into S.E.’s home without permission, grabbed and pushed her against the bedroom wall, and then sexually assaulted her.  The trial court imposed consecutive, executed sentences.  Even though the burglary was first in time, the court sentenced the CSC III first.  The state’s theory for this was that the burglary conviction “was predicated or conditioned upon [Mr. Jerry’s] completion of the criminal sexual conduct.”
Yeah, beats me what that means.  Except that what it meant to Mr. Jerry was that his combined sentence jumped from 186 months (129 months on the burglary and 57 months on the CSC III), to 237 months (180 months on the CSC III and 57 months on the burglary). 

With one dissent, the court of appeals makes short shrift of this theory.  A burglary, the court points out, is complete upon entry.  (Insert list of citations.)  The subdivision of the burglary statute requires that an assault be committed determines the sentence.  Here, the trial court found that Mr. Jerry had entered S.E.’s house and assaulted her before the sexual assault.  Under those findings the burglary was certainly complete once Mr. Jerry had entered the house and committed the assault.  The burglary gets sentenced first.  The trial court erred as a matter of law by sentencing the CSC III first.

Monday, May 25, 2015

Seating Actually Biased Juror is Structural Error That Requires New Trial

State v. Fraga, Minn.S.Ct., 4/22/2015.  This is a horrific crime – essentially the stomping to death of a two year old - that is now on its way back to the trial court for a third time, this time because the trial judge was perhaps a bit too impatient to seat a jury and the prosecutor was a bit too aggressive in wanting to keep a particular juror.  In, of all things, a unanimous opinion, Justice Lillehaug pens a strong opinion about juror bias for this ever whimsical court.

During jury selection for the retrial, Mr. Fraga took the position that any potential juror who knew that he had been convicted in the first trial should automatically be excused for trial.  The trial court seated two jurors who knew that the first trial had resulted in a conviction.  Adopting the defense’s position would be an extension of the doctrine of implied bias, which assumes that certain relationships or experiences create a mindset that cannot be changed or set aside.  See Williams v. State, 764 N.W.2d 21 (Minn. 2009); Rule 26.02, Subd. 5 of the rules of criminal procedure.  The court is unwilling to extend this doctrine to potential jurors whose apparent sole disqualification was knowledge of the outcome of Mr. Fraga’s first trial.  In large part, the court reaches this result by its literal reading of the rule, which it says provides “the exclusive grounds to challenge for implied bias.”

Also during jury selection the trial court seated “Juror M.”  Mr. Fraga insisted that Juror M had expressed actual bias and had not been adequately rehabilitated.  The trial court sat this juror anyway.  Permitting a biased juror to serve is structural error requiring automatic reversal.  State v. Logan, 535 N.W.2d 430 (Minn. 1995). 

Juror M’s mother-in-law was a nurse who had worked in the emergency room at the hospital where the two year had been taken.  Juror M thus knew about the case, had read about it, had discussed it with family or friends, including the case details.  When the trial court asked him whether he could put all of that aside and decide the case solely upon what was presented in the courtroom, Juror M said, “Yeah, I guess.”  When the trial court pressed with the question, “Do you know of any reason that you could not be fair and impartial?” Juror M said, “Besides the fact I know about the case, I don’t, no.  I think it would be hard.”  This juror also said that he knew two witnesses and that he would find their testimony more believable based on that familiarity.  He walked that assertion back just a bit by telling the prosecutor that “I can form my own opinion, I guess.”  Finally, Juror M said, “Yes.” to the prosecutor’s leading  question, “So, you would be able to base your decision on what you see and hear in the courtroom?”

By this time the defense was out of peremptory challenges.  The trial court denied the defense motion to remove Juror M for cause.  Even then the court asked Juror M more questions, including, “Is there any reason you can think of you couldn’t be fair and impartial to both sides in this case?”  Juror M said, (one supposes to the disappointment of the trial judge and prosecutor) “I don’t think so.”

Justice Lillehaug concludes from all this back and forth with Juror M that the juror had expressed “actual bias.” The remarks, “Besides the fact I know about the case, I don’t, no.  I think it would be hard.” were enough for the court to make this conclusion.   The other “I guess” remarks just solidified this conclusion.  Justice Lillehaug also concludes that Juror M also was not adequately rehabilitated, which requires that the prospective juror state “unequivocally” that he will set aside preconceived notions and be fair.  Logan.   The prosecutor’s final leading question just didn’t get the job done, especially in the midst of all those “I guess” utterances.

Under Logan, Juror M, having expressed actual bias, can’t sit on the jury and if he does it’s structural error that requires a new trial.  The state pleaded with the court to find a workaround to Logan to avoid yet another trial but the justices were unwilling to do so.  Still and all, the court was embarrassed to have reversed the conviction:

We understand that the relatives of a little girl and others in the community of Worthington have suffered a grievous loss. We understand that they have endured the pain of two trials. We recognize that their grief may be sharpened by the decision today. Still and all, it is a bedrock principle of our law that for a person to be convicted of any crime—major or minor—the jurors must be both impartial and unanimous. Our constitutions and the fairness they embody require that, if we cannot say that each and every juror was impartial, we cannot say that justice was done.

It’s tempting to say that by the court’s unyielding fealty to literalism the court hoisted itself by its own petard.  Juror M just kept saying, “I guess” way too many “Minnesota nice” times for the court to brush aside.  (“To guess” means to “make a conjecture” about something, or to indicate that although one thinks or supposes something it is without any great conviction or strength of feeling.” )  After all, given the broad discretion that trial court’s have in ascertaining a potential juror’s qualifications to serve it would have been just as easy for the justices to conclude that despite the verbalized equivocations the trial court had the best seat in the house to discern Juror M’s true state of mind.

But wait, there’s more!  Mr. Fraga also complained about the admission of evidence under Minn.Stat. 634.20, so called “relationship evidence.”  The court had previously adopted this legislative rule of evidence for similar conduct of the accused against the same victim.  State v. McCoy, 682 N.W.2d 153 (Minn. 2004).  The court now extends adoption of this legislative rule of evidence to include similar conduct of the accused against other family or household members.

Wednesday, May 20, 2015

No Exceptions Proved to Permit Untimely Filing of Fifth Post Conviction Petition

Brown v. State of Minnesota, Minn.S.Ct., 5/20/2015.  This is Mr. Brown’s fifth petition for post conviction relief.  This is also his fourth published opinion. He said this time that he could file this petition, which attacked his guilty plea and several other things,  under any of three statutory exceptions to the two year limitations period established under Minn.Stat. 590.01, subd. 4(a):  a mental disease precluded a timely assertion of his claim; his claim was based on newly discovered evidence, and the interests of justice required consideration of his claim.  Justice Dietzen, for the entire court, rejects this assertion.

As to the assertion of a mental disease precluding a timely filing of his claim the court simply concurs with the post conviction court that Mr. Brown hasn’t established that assertion from the documents that he submitted.  He also failed to establish the “actual innocence” prong of the newly discovered evidence exception.  Finally, Mr. Brown also did not establish that it was in the interests of justice to hear his claim.

Most, if not all, of Mr.Brown’s claims herein had been raised in one fashion or another in his previous petitions.  The court continues to duck the question whether the Knaffla rule (and its exceptions) remains cognizable under the statutory limitations regime. 

Continuance of Juvenile Delinquency Proceeding, Accompanied by Child’s Admission to Charged Offense, Is a Continuance Without Adjudication, Which Limits Jurisdiction to 180 Days.

In the Matter of the Welfare of: C. J. H., Child. Minn.Ct.App. 5/18/2015.  Juvenile court has its own set of rules and that’s what this case is all about.  Specifically, under those rules did C.J.H. get a continuance for dismissal in which case the juvenile court maintained jurisdiction until C.J.H. hit his nineteenth birthday?  Or, did C.J.H. get a continuance without adjudication in which case the juvenile court could maintain jurisdiction only for one hundred eighty days from the date of the order?

The state petitioned C.J.H. with third degree criminal sexual conduct, attempted third degree criminal sexual conduct, and consumption of alcohol by a minor.  At his first appearance, C.J.H. admitted facts which established his guilt of attempted third degree criminal sexual conduct.  He also waived his right to a speedy trial, to remain silent, to confront witnesses, and conceded that he was waiving his right to defend himself at a later date.  The juvenile court then  said something to C.J.H. that everyone in the courtroom understood to amount to a continuance for dismissal until his nineteenth birthday. 

Sure enough, C.J.H. violated the conditions of the continuance but he did so more than one hundred eighty days from the date of the order.  C.J.H. said that what the juvenile court had actually done back at the first appearance was to give him this continuance without adjudication which meant that because the one hundred eighty days was up the court no longer had jurisdiction.  The juvenile court said, no, everyone knew damn well that what had happened was a continuance for dismissal, stayed to age nineteen.

The court of appeals says that C.J.H. has it right.  A continuance for dismissal, which is authorized under Rule 14, is a continuance without a finding that the allegations of the petition have been proved.  The kid does have to waive his right to a speedy trial.  Here, C.J.H. did that and then some; he waived just about everything that could be waived to the point of agreeing that if he got hauled into court on a violation all that had to happen for adjudication was to read the transcript from the first appearance. 

On the other hand, a continuance without adjudication under Rule 15 does require that the juvenile court find that the allegations have been proved.  Although the juvenile court did not say the exact magic words – the court finds, blah blah blah - it did hear and accept C.J.H.’s admission to the elements of attempted CSC, and it did say that C.J.H.’s admissions established a factual basis for the charged offense. 

The upshot is that the court of appeals concluded that what C.J.H. did looked for all the world like a Rule 15 continuance without adjudication, which limits the juvenile court’s jurisdiction for to hundred eighty days.  The court thus had no jurisdiction to entertain the violation and to adjudicate guilt.  That adjudication is thus vacated.

Monday, May 11, 2015

Enlarging a Preexisting Hole in a Door Screen in Order to Gain Entry Into Home Supports Burglary Conviction; No Abuse of Discretion in Award of Moving Expenses to Burglary Victim

State v. Rodriquez, Minn.Ct.App., 5/11/2015.  Mr. Rodriquez went over to V.M.’s home; his friend wasn’t there.  So, Mr. Rodriquez reached his finger through a small hole in the porch door screen, enlarged the hole so that he could reach his hand in and unlock the door.  For that a jury convicted Mr. Rodriquez of burglary in the second degree.

A bit later Mr. Rodriquez went over to H.B.’s home where he eventually encountered H.B.’s parents inside.  H.B.’s Mom pushed Mr. Rodriquez out of a window.  For this behavior, a jury convicted Mr. Rodriquez of trespass.

On appeal, Mr. Rodriquez said that the state didn’t prove that he committed a burglary of V.M.’s home.  This is because he committed the predicate offense, criminal damage to property by tearing the screen, either before or as he entered the building.  (The state did not allege that he had entered without consent with intent to commit a crime.)  The court rejects this assertion.  The court simply isn’t willing to get that far into the weeds.  Just like sex, “any penetration, however slight” suffices.  Mr. Rodriquez committed the predicate crime when he put his finger through the hole in the screen and made the hole larger in order to gain entry.

At sentencing, H.B.’s Mom sought restitution for moving expenses.  She said that after the burglary she could no longer live in the home and so the moved.  Mr. Rodriquez said that the moving expenses were not directly caused by his actions and thus not a cognizable item of restitution.  A trial court has broad discretion in ordering restitution.  However, the loss must be “directly caused by the conduct for which the defendant was convicted.”  State v. Latimer, 604 N.W.2d 103 (Minn.Ct.App. 1999).  And, the loss must not be “so attenuated in its cause that it cannot be said to result from the defendant’s act.”  State v. Palubicki, 727 N.W.2d 662 (Minn. 2007).  Here, the trial court found that H.B.’s Mom suffered psychological trauma as a result of Mr. Rodriquez’s criminal conduct and so the court did abuse its discretion in awarding the moving costs.

In a CSC 3 by Force Prosecution, Trial Court Must Instruct on Statutory Definition of “Force”. No Abuse of Discretion in Limiting Questioning of Complainant About Mental Health History

State v. Moore, Minn.Ct.App., 5/11/2015.  A jury convicted Mr. Moore of third degree criminal sexual conduct.  That state’s only theory of liability was Mr. Moore used “force” to accomplish the crime.  The trial court, however, did not instruct the jury on the statutory definition of “force”.  On appeal, Mr. Moore argued for the first time that this was a mistake which entitled him to a new trial.

The court of appeals concludes that the word “force” in the statute is “meaningfully different from the lay definition” of the word and so the omission of the definition was error.  However, this error was neither “plain” not did it affect Mr. Moore’s substantial rights and so the error was harmless.

Here’s the statute’s definition of “force”:

the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.

This definition is narrower than the lay definition that does not reference bodily harm, etc. So, a jury could conclude that one is guilty of criminal sexual conduct in the third degree, force, by the mere exertion of “strength,” “energy,” or “power” against a victim without any actual or attempted “bodily harm.”  Unfortunately for Mr. Moore, because neither the pattern jury instructions not prior case law explicitly require the trial court to instruct on the statutory definition, this error was not “plain.”  Lastly, it did not affect Mr. Moore’s substantial rights. 

Before trial Mr. Moore’s counsel sought disclosure of the complainant’s psychotherapy records.  There’s a statute for that, Minn.Stat. 609.347, subd. 6:

(a) In a prosecution under sections 609.342 to 609.3451 . . . , evidence of the patient’s personal or medical history is not admissible except when:

     (1) the accused requests a hearing at least three business days prior to trial and makes an offer of proof of the relevancy of the history; and

      (2) the court finds that the history is relevant and that the probative value of the history outweighs its prejudicial value.

(b) The court shall allow the admission only of specific information or examples of conduct of the victim that are determined by the court to be relevant. The court’s order shall detail the information or conduct that is admissible and no other evidence of the history may be introduced.

The trial court examined the records in camera and then ruled that the parties could inquire about certain symptoms and behaviors of the complainant’s mental health diagnosis, but could not ask her what that diagnosis was.  The court of appeals affirms that ruling as not being an abuse of discretion.

A Juvenile’s Aggregate Sentence of 74 Years - Two Life With Possibility of Release Sentences Plus a 258 Month Discretionary Consecutive Sentence Does Not Violate the Rule of Miller v. Alabama

State v. Williams, Minn.S.Ct., 5/6/2015.  Twenty years ago, a jury convicted Mr. Williams of two counts of first degree murder, one count of attempted first degree murder, and one count of burglary.  Mr. Williams was sixteen when he committed these offenses.  The trial court imposed the presumptive sentence of life with the possibility of release after thirty years for the two first degree murder convictions.  The trial court then imposed a discretionary consecutive sentence of two hundred forty months on the attempted murder conviction, and a discretionary consecutive sentence of eighteen months on the burglary.  The resulting aggregate sentence was seventy-four years in prison.  That would make Mr. Williams roughly ninety years old when he becomes eligible for release.
Mr. Williams filed this Rule 27.03 motion to correct sentence.  He said that the rule of Miller v. Alabama, should apply to Minnesota’s statutory provisions that landed him in prison until age ninety at least, there being no guarantee that he’d be released then.  He said that the combination of mandatory imposition of two life imprisonment sentences with the possibility of release plus the (discretionary) consecutive sentences are the functional equivalent of life imprisonment without the possibility of release.  Justice Wright, for the entire court, ignores that assertion and, instead, looks at the component parts of this aggregate sentence.  It wasn’t especially difficult to then conclude that each of the component parts of the sentence were neither cruel nor unusual punishment.  Under prior opinions, the two life sentences with possibility of release do not amount to a “death sentence” when applied to a juvenile and thus don’t constitute cruel and unusual punishment under the Eighth Amendment.  State v. Ouk, 847 N.W.2d 248 (Minn. 2014).  As to the discretionary consecutive sentences, well, Miller just doesn’t apply to a non-mandatory sentence.  Never mind about the functional equivalence argument.

Saturday, May 9, 2015

Simultaneous Sentencing on Two CSC Pleas Does Trigger Lifetime Conditional Release

State v. Nodes, Minn.S.Ct., 5/6/2015.  During a single plea hearing Mr. Nodes pled guilty to two counts of criminal sexual conduct which arose from separate behavioral incidents with separate victims.  The court deferred acceptance of the guilty pleas and ordered a presentence investigation.  At sentencing, the court accepted the two guilty pleas and then sequentially adjudicated Mr. Nodes guilty of each offense.  The question then came up whether Mr. Nodes was required to serve a conditional release term of ten years or of life.  When a court commits an offender who has a “previous or prior sex offense conviction” to prison for another criminal sexual conduct conviction the conditional release term is for life.

Both the trial court and the court of appeals said that when the court imposed the second sentence Mr. Nodes did not have a “previous or prior sex offense conviction.”  That is, there was offense, offense, followed by conviction, conviction. 

Justice Lillehaug, for the entire court, disagrees, and says that Mr. Nodes is subject to lifetime conditional release.  A “conviction” includes a guilty plea that has been accepted and recorded by the court.  There was no dispute that the trial court accepted Mr. Nodes’ guilty pleas, so the question became just when it had been “recorded by the court.”  Although the court has said different things about when a conviction is “recorded” most recently it’s said that the recording occurs when the court accepts the plea and adjudicates guilt.  So, as soon as the trial court accepted Mr. Nodes’ plea to the first count and then adjudicated guilt he was “convicted.”

See where this is going?  As soon as the trial court accepted the plea to the first count and adjudicated guilt on that count that conviction was no longer a present offense but was a past conviction.  That first conviction became a “prior sex offense conviction.  After the court then took a breach before adjudicating guilt on the second count, what had just become a “prior sex offense conviction” triggered the lifetime conditional release term.