Thursday, February 4, 2016

Interests of Justice Exception to Post Conviction Limitations Provision Not Satisfifed

Taylor v. State, Minn.S.Ct., 2/3/2016.  This is Mr. Taylor's second post conviction petition.  While Mr. Taylor's first post conviction petition was on appeal the supreme court forcibly retired the judge who had presided over Mr. Taylor's trial and first post conviction petition.  Roughly ten years later Mr. Taylor filed this second petition, largely aimed at the retirement of his trial judge.  The post conviction court summarily denied the petition as time barred under the limitations provision of the post conviction statute.

Mr. Taylor said that his petition met the "interests of justice" exception to the two year limitations provision. Justice Stras rejects this assertion.  Mr. Taylor had said that he had been unaware of the judge's disabling condition at the time of his direct appeal, and that his understanding of the legal system was "lacking at best."  Justice Stras points out that just last year in Wayne v. State, 866 N.W.2d 917 (Minn. 2015), the court had rejected a petitioner's pro se status and limited educational attainment as meeting the interests of justice standard, at least where the petitioner has previously filed a post conviction petition.  The court continued to duck the question whether the Knaffla rule - raise it or waive it - survived the recent amendments to the post conviction statute. 

District Court Lacked Jurisdiction to Consider Post Conviction Petition To Challenge Stay of Adjudication

Lunzer v. State, Minn.Ct.App., 2/1/2016.  Ms. Lunzer pleaded guilty to a fifth degree drugs crime and received a stay of adjudication.  A few years later, the district court discharged her from probation and dismissed the charge.  When Ms. Lunzer found out about the various problems that befell the St. Paul Police Department Crime Lab she filed a post conviction petition seeking to withdraw her plea.  There was also the small matter of getting charged with a new drug crime the punishment for which could be enhanced because of the first drug charge. The post conviction court summarily denied the petition, concluding that the petition was time barred and that none of the exceptions to the limitations provisions applied.

The court of appeals wanted to know whether the post conviction court had subject matter jurisdiction.  Now, a stay of adjudication in a felony case is appealable as an appeal from a sentence.  The problem is, just last year in Dupey v. State, 868 N.W.2d 36 (Minn. 2015) the supreme court said that a stay of adjudication is not a judgment of conviction or sentence that triggers the limitations provisions for filing a post conviction petition.  For Ms. Lunzer that meant:
Because a stay of adjudication under Minn. Stat. § 152.18, subd. 1, is not a conviction for purposes of the postconviction relief statute of limitations, it clearly follows that a person who receives such a stay is not “convicted of a crime” for purposes of Minn. Stat. § 590.01, subd. 1. Hence, such a person cannot seek postconviction relief. 

Rule 27.03, Subd. 9 Proper Procedure to Challenge Post Sentencing Imposition of Conditional Release Term

Reynolds v. State, Minn.Ct.App., 1/25/2016.  Mr. Reynolds pleaded guilty to failure to register under the predatory offender registration statute. Three months after sentencing the trial judge amended the sentence to add a ten year conditional release term.  Four years later Mr. Reynolds moved to vacate that conditional release term under Rule 27.03, subdivision 9 of the criminal rules.  The trial judge treated the motion as a post conviction petition and denied it summarily as time-barred under the post conviction statute.  The trial judge also addressed the merits of the request and concluded that because Mr. Reynolds was a "risk-level III offender" he was subject to the ten year conditional release term.

Rule 27.03, subdivision 9 does not have a limitations provision; quite the contrary:  the district court "may at any time correct a sentence not authorized by law."  The post conviction statute, on the other hand, has a two year limitations provision.  The question of which to apply has vexed the courts ever since the legislature added the limitations provision to the post conviction statute:
The answer depends on the nature of Reynolds’s challenge. We have held that the two-year statutory time limit does not apply to or restrict motions “properly filed” under rule 27.03. Vazquez v. State, 822 N.W.2d 313, 318 (Minn. App. 2012). And a motion is properly filed under the rule if the offender challenges a sentence on the grounds that “the sentence is contrary to an applicable statute or other applicable law.” Washington v. State, 845 N.W.2d 205, 213 (Minn. App. 2014); see also Vazquez, 822 N.W.2d at 318 (holding  that a challenge to a sentence based on the district court’s incorrect calculation of the offender’s criminal-history score was properly raised under rule 27.03); State v. Amundson, 828 N.W.2d 747, 751 (Minn. App. 2013) (holding the same for a challenge based on an unauthorized upward departure at sentencing). The supreme court has held that a challenge is not properly filed under rule 27.03 when it implicates more than simply the sentence and instead effectively challenges the validity of the underlying conviction or plea agreement. State v. Coles, 862 N.W.2d 477, 480–81 (Minn. 2015); see also Wayne v. State, 870 N.W.2d 389, 391–92 (Minn. 2015) (applying Coles and deeming the claim outside the rule because a victory would have entitled the claimant to “a new trial, not a reduced sentence”)
The state wanted the court to limit the "law" of "not authorized by law" to "laws enacted by the legislature.."  The court of appeals rejected this miserly interpretation.  Instead, the court stuck with the formula from the supreme court's opinion last year in State v. Coles, 862 N.W.2d 477 (Minn. 2015) which said that a challenge under Rule 27.03 is not proper when it implicates more than simply the sentence.  So, Mr. Reynolds gets to stay in court.

Turning to the merits, while this appeal was kicking around the supreme court decided State v. Her, which held that a district court can impose a conditional release term based upon a defendant's status as a risk level II offender only if that defendant admits to that status or a jury finds it.  It's a Blakely problem.  So, on the merits of Mr. Reynold's challenge the district court got it wrong by imposing the conditional release term itself, never mind about the lack of notice and opportunity to be heard beforehand.

The court of appeals punts the case back to the trial court to figure out what relief is available to Mr. Reynolds.  This likely includes a Blakely jury trial to determine his risk status.  See State v. Hankerson, 723 N.W.2d 232 (Minn. 2006).

Sunday, January 31, 2016

Disorderly Conduct Statute For Disturbing Public Meeting Survives First Amendment Challenge

State v. Hensel, Minn.Ct.App., 1/25/2016.  Ms. Hensel went down to the Little Falls city council meeting.  She kept moving her chair into a kind of DMZ between the front of chairs and the dais where the council members sat.  The first time she did it the public works director moved it back, telling Ms. Hensel that her chair had to stay where it was.  The second time she moved her chair into the DMZ she and the police chief exchanged words, which soon included the city attorney and city council members.  Ms. Hensel offered to compromise by moving her chair part way back from the dais but still in the DMZ.  At that point the police chief removed her from the meeting.

The state charged Ms. Hensel with disorderly conduct for disturbing a public meeting, which is apparently a misdemeanor. She launched a First Amendment facial challenge to the statute, which required her to prove that there were no set of circumstances under which the statute would be valid, that the statute lacks any plainly legitimate sweep, or that a substantial number of its applications are unconstitutional.  The court concluded that Ms. Hensel wasn't able to do that.  The court construes the statute to proscribe only the disturbance of lawful meetings, and only reaches conduct (including speech) that would both be expected to interfere with the ability to conduct a meeting and intended to interfere with that ability.

Identity Theft Statutory Restitution Award Survives Procedural Due Process and Statutory Interpretation Challenge

State v. Moua, Minn.Ct.App., 1/25/2016.  Time was, crooks stole a credit card, check, what have you, and ran as quickly as possible to the nearest Daytons to ring up as many purchases as the store would allow. Fast forward to today and now crooks steal a credit card, check, what have you, in order to manufacture a "clean" form of payment.  So, the legislature enacted a statute that said that one who steals another's "identity" with the intent to commit a crime owes each "direct victim" a thousand bucks.  No questions asked, just pony up.

Mr. Moua had four hundred plus "identities" in his car when the cops stopped him.  He pled guilty to one count of identity theft and then challenged the statutory restitution on substantive and procedural due process grounds.  The trial court eventually awarded restitution to the fourteen individuals who had incurred economic loss and to one person who had spent over one hundred hours attempting to clear his or her name.  The trial court declined to award restitution to those individuals who were likely to suffer some form of inconvenience due to the identity theft but did not experience economic loss.

The court of appeals rejected the procedural due process challenge, saying, look, Mr. Moua had notice and multiple opportunities to challenge the restitution award.  Because Mr. Moua abandoned his substantive due process claim on appeal the court didn't address it except to say that it seemed the better of the two due process arguments.

Mr. Moua's other argument was that economic loss had to be shown to prove the statute's requirement of "loss or harm."  The court of appeals also rejected this argument.  "Loss" and "harm" have to mean different things or one of the words was superfluous. The statute, itself, defines "loss" in economic terms:  "value obtained ... and expenses incurred by a direct or indirect victim." Minn. Stat. 609.527, subd. 1(f).  There is no definition of "harm". In the era of "law by dictionary" the court pulled out this week's favorite dictionary to find "loss" defined as "physical or psychological damage" or "immoral or unjust effects."  That definition is not limited just to economic loss.  So:
In sum, we hold that when a defendant possesses an individual’s name and private identifying information with the intent to commit a crime, the individual has incurred loss or harm and is thus entitled to $1,000 minimum restitution under the identity-theft statute.
The court does not sanction awarding the statutory restitution to individuals who only had "junk mail"  stolen which contained only publicly available information like names and addresses because that information on its own would be of little use to an identify thief.
 

1/27/2016: No Supreme Court Published Criminal Opinions

1/20/2016: No Supreme Court Published Criminal Opinions

Monday, January 11, 2016

Search Warrant To Obtain Blood Sample Authorizes Testing For Any Substances

State v. Fawcett, Minn.Ct.App., 01/11/2016.  This is a riff on the unrelenting litigation over the supposed right to drive drunk but a clever one all the same.  The question here is what happens when the cops request and get a search warrant for a blood draw to test for suspected alcohol impairment but then the lab tests that blood sample for drugs as well?  Is the positive drug test admissible at trial?

Officers responded to a two-car injury accident.  Ms. Fawcett, the driver of one of the cars, was one of those injured.  Two officers suspected that Ms. Fawcett may have been driving under the influence of alcohol; she admitted to having had two or three beers. An officer read the implied consent advisory to Ms. Fawcett, but because the officer only suspected alcohol consumption, she only read the part about testing to determine if Ms. Fawcett was under the influence of alcohol.  Ms. Fawcett was not advised about testing to determine whether she was under the influence of a controlled substance.

Meantime, another officer was getting a search warrant for a blood draw.  The application said nothing about suspicions of drug use:
In his application for a search warrant and supporting affidavit, Detective Johann stated the following facts: There had been a motor-vehicle crash and one or more persons suffered bodily harm as a result of the crash. Officers identified Fawcett as the driver of one of the vehicles and stated that she admitted that she had two or three drinks “just prior to” the crash. Fawcett smelled of an alcoholic beverage. Officers at the scene believed that Fawcett had been drinking. Detective Johann applied for the warrant on the grounds that Fawcett’s blood sample “constitutes evidence which tends to show a crime has been committed, or tends to show that a particular person has committed a crime.” He also stated that he sought a blood sample “as evidence of the crime of criminal vehicular operation/homicide.” 
While waiting around for the search warrant Ms. Fawcett agreed to submit to a blood test; officers waited just the same until they had the search warrant to obtain it. Before drawing blood, however, Ms. Fawcett asked for a breath test. Officers gave her a preliminary breath test; the result was 0.00.  A nurse then drew the blood, which the BCA tested; there was no alcohol but there were controlled substances.  

In the ensuing prosecution for criminal vehicular operation, the trial court suppressed evidence of drugs in the  blood sample.  The trial court said that the blood sample had been lawfully obtained under the search warrant and that testing of that blood sample for alcohol was also lawful under the warrant.  Given the officer's rationale for the search warrant - nothing about suspicions of drugs - the trial court thought that alcohol testing was as far as the warrant went. The state appealed this pretrial ruling.

And wins.  The state said that once it lawfully obtained a person's blood sample for the purpose of chemical analysis that person has lost any legitimate expectation of privacy in any test result obtained from that sample.  This is true, the state said, regardless of the scope of any search warrant:  ask for alcohol testing and if you get that you get drugs testing for free.  Put another way, the search warrant authorized the "search" of Ms. Fawcett's body in order to "seize" a quantity of her blood.  After that, it was none of Ms. Fawcett's business what the state reasonably did with it.  Sort of like setting out the trash.

The court of appeals relied upon language from Schmerber v. California, 384 U.S. 757 (1966), (not the exigency business) that said that for Fourth Amendment purposes police must be justified in requiring the blood test, and must employ reasonable "means and procedures" to get it.  A handful of state courts have also relied upon Schmerber to conclude that once the state has lawfully obtained the blood sample there is no reasonable testing of that blood that implicates further consideration of the Fourth Amendment.  Once the blood lawfully left Ms. Fawcett's body she could not complain of any reasonable use of it by the state.

The court does acknowledge that its holding could be taken too far, like drawing blood to test for suspected alcohol and then sending it to the BCA for DNA testing:
Once a blood sample has been lawfully removed from a person’s body, a person loses an expectation of privacy in the blood sample, and a subsequent chemical analysis of the blood sample is, therefore, not a distinct Fourth Amendment event. The district court considered that such a rule necessarily means that a person’s blood could “thereafter be tested without a warrant for any purpose at any time, such as future drug testing or DNA comparisons.” Although such circumstances are not before us, we note that Schmerber dictates that a standard of reasonableness controls and that an unnecessary invasion of privacy interests would most certainly raise concerns of reasonableness.

01/06/2016: No Supreme Court Published Criminal Opinions

Tuesday, December 29, 2015

Failure to Make Findings on Statutory Factors to be Considered in Juvenile Expungement Request Requires Remand of Grant of Expungement

In the Matter of the Welfare of:  J.T.L., Child, Minn.Ct.App., 12/28/2015.  The district court granted an expungement request by J.T.L. of his various criminal sexual conduct adjudications.  There's a statute for that, Minn.Stat. 260B.198, subd. 6(b).  This statute says that the court "shall consider" a laundry list of factors on the way to deciding whether expungement would yield a benefit to the child that outweighs the detriment to the public and public safety:
(b) In making a determination under this subdivision, the court shall consider:
(1) the age, education, experience, and background, including mental and emotional development, of the subject of the record at the time of commission of the offense;
(2) the circumstances and nature and severity of the offense, including any aggravating or mitigating factors in the commission of the offense;
(3) victim and community impact, including age and vulnerability of the victim;
(4) the level of participation of the subject of the record in the planning and carrying out of the offense, including familial or peer influence in the commission of the offense;
(5) the juvenile delinquency and criminal history of the subject of the record;
(6) the programming history of the subject of the record, including child welfare, school and community-based, and probation interventions, and the subject’s willingness to participate meaningfully in programming, probation, or both;
(7) any other aggravating or mitigating circumstance bearing on the culpability or potential for rehabilitation of the subject of the record; and
(8) the benefit that expungement would yield to the subject of the record in pursuing education, employment, housing, or other necessities. 
Well, it's a long list.  The trial judge adopted the proposed order by J.T.L.'s counsel which did not contain any specific findings regarding these factors.  The state appealed, saying that the failure to make such findings poisoned the grant of expungement.

The court of appeals agrees, concluding that "shall consider" really means "shall make findings about" each of the factors.  The court sends the case back to the trial court for a redo.

Warrantless Urine Test Is Not Authorized Under Search Incident to Arrest Exception to Warrant Requirement

State v. Thompson, Minn.Ct.App., 12/28/2015.  The year comes to a close as it began with yet more skirmishing over the constitutionality of DWI/test refusals.  Back in February the state supreme court said in Bernard that a warrantless breath test was constitutional under the search incident to arrest exception to the warrant requirement. In October the court of appeals then said, well, that's fine, but Bernard only applies to warrantless breath tests and we don't think that a warrantless blood draw is permissible under the search incident exception.   State v. Trahan.  The state supreme court quickly accepted review of that case, but then the U.S. Supreme Court accepted cert in State v. Bernard.  Time will tell who laughs last.

This go round the court of appeals once again pokes the state supreme court in the eye, this time over charging Mr. Thompson with refusal to submit to a warrantless urine test.  The court of appeals cuts and pastes from its Trahan opinion to reach the same conclusion about warrantless urine tests: it's not constitutional under the search incident exception to the warrant requirement because of its intrusiveness.  In fact, if anything, a urine test is even more intrusive:
“There are few activities in our society more personal or private than the passing of urine.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413 (quotation omitted). Because a driver must produce a urine sample in front of an officer, a urine test is unquestionably more intrusive than a breath test. See Bernard, 859 N.W.2d at 768 n.6 (explaining that a breath test is less invasive than a blood or urine test). A urine test “intrudes upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413.

The court also concludes, as it did in Trahan, that a warrantless urine test violated Mr. Thompson's substantive due process right to be free from unreasonable searches. 

Sunday, December 27, 2015

Unfounded Claims of State Interference With Petitioner's Post Conviction Witnesses Defeat Claims

McKenzie v. State, Minn.S.Ct., 12/23/2015.  Mr. McKenzie, who is serving a life sentence for a murder, filed this post conviction petition which alleged that a witness, Wendell Martin Sr., had recanted his trial testimony.  Martin, Sr. had testified at Mr. McKenzie's trial that McKenzie had confessed to the killing while the two of them shared a jail cell.

Mr. McKenzie produced affidavits from LaMonte Martin and Heidi Mastin, each of which said that Martin, Sr. had told them that he had lied at McKenzie's trial.  In between the pleadings and the evidentiary hearing, Mastin pled guilty to some other offense under an agreement that purported to forbid her from testifying at Mr. McKenzie's post conviction hearing.  As a result, Mastin withdrew her affidavit.  Thereafter, but before the evidentiary hearing, the post conviction court said that the provision of the plea agreement forbidding Mastin from testifying was not enforceable. Even so, Mastin did not re-submit her affidavit.  Instead, she asserted a Fifth Amendment privilege and chose not to testify.  Voiding the provision of Mastin's plea agreement took McKenzie's interference claim off the board because it was based entirely on the provision of Mastin's plea agreement that forbid her from testifying.

Martin, Sr. also asserted a Fifth Amendment privilege.  This occurred after the assistant county attorney had a little chat with him, during which Martin Sr. said that his trial testimony had been the "absolute truth."  The assistant county attorney then informed the court that he would pursue criminal charges against Martin, Sr. if he testified.  

Mr. McKenzie cried foul, saying that the prosecutor had interfered with his witnesses' decision whether to testify.  Chief Justice Gildea only considered the claim for Martin, Sr.  Mr. McKenzie said that this interference took two forms:  the prosecutor's interview with Martin, Sr., after the court had appointed counsel to represent him, and the threat to prosecute him if he testified.  The chief justice rejects both of these claims. On the first one, the trial court had found that Martin, Sr. was not represented by counsel at the time of the interview with the prosecutor and so there was no interference.  As to the second form, Martin, Sr. undercut if not eliminated any claim by having said to the post conviction court that he wasn't worried about the state prosecuting him and that any fear of prosecution was not why he was declining to testify.

Next, Mr. McKenzie said that the post conviction court should have granted his witnesses use immunity because the state had substantially interfered with the decisions of his witnesses to testify.  Now, having just said that there was no substantial interference with the decisions of these witnesses not to testify that should have been the end of it.  Nonetheless, the chief goes on to question whether the use immunity statute even applies in a post conviction proceeding.  Assuming that it does, the court points out that the statute requires that the prosecutor request use immunity, which didn't happen here.  Continuing to plow ahead, the court completes its advisory opinion by saying that if there were to be such power to grant use immunity in a post conviction proceeding where the prosecutor hasn't asked for it it could only be in the face of "egregious prosecutorial misbehavior," which, again, didn't happen.     

Saturday, December 26, 2015

Appellate Review of Claim of Biased Juror Waived By Failure to Object

State v. Geleneau, Jr., Minn.Ct.App., 12/21/2015.  The state charged Mr. Geleneau, Jr. with multiple counts of criminal sexual conduct.  In this combined direct appeal and appeal of the denial of a post conviction petition the focus is on jury selection.  Mr. Geleneau, Jr. said that the trial court had erred by not dismissing two prospective jurors for cause sua sponte.  He also said that he trial counsel had been ineffective for not moving to strike these two prospective jurors for cause.

The long and the short of it is that because trial counsel expressly waived his right to challenge the prospective jurors for cause - "That's all the questions I have this afternoon.  I pass [the panel] for cause, Your Honor." - Mr. Geleneau, Jr. could not complain on direct appeal that the trial judge should have done the work for him. Both the rules and prior case law say that counsel has to object, in this case by moving to strike the prospective jurors for cause in order to seek appellate relief.  The absence of an objection is enough, by itself, to reject a biased-juror argument on appeal. The court implies but ultimately ducks saying that a trial court never has an obligation to strike a biased juror sua sponte.

Turing to the ineffective assistance claim the court Mr. Geleneau, Jr. did not argue that trial counsel was obligated to allow a defendant to make decisions about keeping or striking prospective jurors.  That makes the failure to have moved to strike for cause a discretionary call by trial counsel.  The trial court wrote a lengthy rationale supporting trial counsel's decision not to seek to strike the two prospective jurors, which the court of appeals accepts.  Read that yourself and agree or disagree with it.

What's more intriguing is the court's dismissal of an affidavit from an unnamed "experienced criminal defense attorney" who reviewed only a three-page summary of the transcript of voir dire which had been prepared by post conviction counsel:
[The] opinions offered by the experienced criminal defense attorney are incapable of proving that the strategic decisions of trial counsel, who was present in the courtroom and undoubtedly had multiple sources of information about the prospective jurors, were below an objectively reasonable standard of performance.

No Seizure Occurs By Officer's Illumination of Already Stopped Vehicle by Squad Spotlight

Illi v. Commissioner of Public Safety, Minn.Ct.App., 12/21/2015. At around 1:30 in the morning an officer saw a red Jeep drive into the parking lot of a stip mall, then stop along a curb in that lot behind a delivery truck.  The officer pulled in behind the Jeep and to its left, stopping several feet away.  The officer illuminated the area with his spotlight and then walked over to the Jeep.  The officer neither activated his emergency lights nor used the squad's loudspeaker.  

Ms. Illi was the sole occupant in the Jeep.  When the officer got to the driver's side of the Jeep he noticed signs of her intoxication. One thing led to another and the officer arrested Ms. Illi for suspected drunk driving.  At the police station Ms. Illi refused to provide an adequate breath sample to determine her intoxication level.  The Commissioner revoked her license; she challenged that revocation saying that the officer had illegally seized her under the state constitution by blocking her in and by shining the squad's spotlight on her vehicle.

The district court had found that the officer had not parked his squad car so as to have prevented the Jeep from leaving.  The court of appeals accepts that finding and thus rejects Ms. Illi's first assertion that the officer seized her by the positioning of his squad car.

The court also rejects Ms. Illi's other assertion that the officer seized her by illuminating the Jeep with the squad's spotlight. There's a case from 1989, Crawford v. Commissioner of Pubic Safety, 441 N.W.2d 837 (Minn.Ct.App. 1989), where the officer briefly illuminated an already stopped vehicle.  The court had held that this did not constitute a seizure.  The court here concludes that the permanency of the spotlight's illumination is a distinction without difference:
We have no cause to suppose that a reasonable person would feel significantly more or less free to drive away depending simply on whether or not the officer had turned the spotlight off before approaching. These salient circumstances did not constitute a seizure in Crawford, and so they also do not constitute a seizure here. 

Tuesday, December 15, 2015

Evidence Sufficient to Support Assault 4; Batson Challenge Denied

State v. Ivy, Minn.Ct.App., 12/14/2015.  The state charged Ms. Ivy with fourth degree assault of a peace officer.  The peace officer in question, who during his "day job" is a St. Paul officer, was working off duty at Regions Hospital when Ms. Ivy caused a scene. The officer's job title at Regions is that of a "uniformed security officer."  Uniformed security officers get to wear police uniforms with a hospital ID.  Regions also employs "hospital safety and security officers."  They wear cargo pants and pullover shirts. 

Because of Ms. Ivy's boorish and obscene behavior the officer in question asked her to leave.  In the course of escorting Ms. Ivy off the premises she ended up tearing the officer's shirt, and clawing his face with her hands and fingernails which left scratch marks and blood on his face.  It was only then that the officer in question arrested Ms. Ivy; before that he was only going to throw her out.

The jury convicted her of the assault.  She argued on appeal that the evidence had been insufficient to prove that the officer in question was either executing a lawful arrest or executing any other duty imposed by law.  Minn.Stat. 609.2231, subd. 1.  Ms. Ivy said that the officer in question was only enforcing hospital policy - behave yourself - and not executing any other duty imposed by law.  The court said, well that may be, but the officer in question was also protecting the health and safety of the hospital's patients and preventing a breach of the peace.  And surely those are two duties "imposed by law" upon a St. Paul cop.  More importantly, the officer in question had probable cause to have arrested Ms. Ivy for trespass because she had sneaked back into a part of the emergency room where she did not have authorization to be.  And she was causing a scene:  disorderly conduct.  That the officer in question decided initially only to remove Ms. Ivy from the premises rather than arrest her does not mean that he was not exercising a duty imposed by law. 

There's also a Batson issue.  A prospective juror stated that she had two cousins who had been charged with crimes, one with whom she was close. She also stated that an officer had pulled her over one time and she believed that the officer had used her boyfriend's prior gang involvement as a reason to search her car.  Finally, she described a negative hospital experience where her mother was refused service for the ostensible reason that she had no proof of insurance.  Because the prospective juror believed that the explanation for refusing service was racially motivated, she behaved rather badly toward hospital staff.  Both this prospective juror and Ms. Ivey are African American.  The state struck this prospective juror and Ms. Ivy objected.  

The state said that the prospective juror's hospital experience of a loved one whom she believed was not getting appropriate care because of race and her rather naughty response to that service refusal were both race-neutral reasons for excluding her.  The state then doubled down on the experience of the prospective juror's cousins with the legal system and the incident when an officer pulled her over to satisfy the requirement that these reasons not be pretextual.  Both the trial court and the court of appeals accepted these assertions.  Ms. Ivy fails in her Batson challenge.

Monday, December 14, 2015

Mail Properly Addressed and Sent Is Presumed to Have Been Duly Received

State v. Osorio, Minn.Ct.App., 12/14/2015.  Back in March 2007 the state investigated a claim that Mr. Osorio had sexually abused his minor stepdaughter.  No charges were filed at the time.  Mr. Osorio moved to California a move that the local police knew about.  The local police resubmitted the case or charging about nine months later but again no charges were filed.  

Nearly five years later, in September 2012, the local police received a complaint that Mr. Osorio had sexually assaulted another of his minor daughters.  In May 2013, the state finally charged Mr. Osorio with two counts of criminal sexual conduct in the first degree.  He was not arrested until twenty-one months later, Februry 2015 during which the state knew exactly where Mr. Osoria was. Mr. Osorio moved to dismiss on Barker v. Wingo, 407 U.S. 514 (1972) speedy trial grounds.  The trial court dismissed the charges.  

Mr. Osorio wins the first of the four Barker factors, the length of delay. A twenty-one month delay is presumptively prejudicial. The second factor is the reason for the delay.  The state knew where to find Mr. Osorio during the twenty-one month delay; it just didn't bother to got get him. So, this negligence goes against the state. Two down, two to go.

The third factor is whether and when Mr. Osorio asserted his right to a speedy trial.  Here, the court issued a summons and complaint and mailed them to Mr. Osorio's address in California.  There is nothing of record to refute the presumption that Mr. Osorio got the letter.  Also, he did not claim that he did not get the letter.  This factor goes to the state.  The fourth factor is prejudice to Mr. Osorio that is due to the delay.  About the best that he could do was to speculate that some possibly exculpatory audio recordings had been lost or destroyed during the delay, but he could not establish that this loss or destruction was "due to the delay."  What was left was Mr. Osorio's inaction after he presumably got the summons and complaint.  This one also goes to the state.

To break the tie, the court looks to the seriousness of the alleged offense.  That tips the scales in the state's favor.

There Is No Threats Exception To Psychologist-Client Privilege Statute

State v. Expose, Jr., Minn.S.Ct., 12/9/2015.  This comes up from the court of appeals, read here.  During court-ordered anger management counseling, Mr. Expose, Jr. made threats against his child protection worker.  His counselor reported the threats and the state charged him with terroristic threats.  The state wanted to put the counselor on the stand to tell the jury what Mr. Expose, Jr. said. Mr. Expose, Jr. objected for two reasons:  first, prior to trial he said that the counselor was not a licensed psychologist and thus not subject to the statutory mandated reporter requirements.  Second, during trial he said that his statements to the counselor were privileged. The trial court rejected both those arguments.  The court of appeals reversed, saying that the therapist-client privilege prohibited the counselor from testifying about information she learned during the therapy sessions.  The court of appeals also said that there was no "threats exception" to the privilege.

Justice Stras, with Justices Wright and Hudson not participating, affirms the conclusion of the court of appeals that there is no "threats exception" to the privilege, but then says that the privilege does not extend to testimony of third parties, namely the person who the counselor told about Mr. Expose's threats.

But before Justice Stras gets there he detours to talk about whether the privilege objection made during trial had been timely.  The state said that Rule 10.01 required the defense to raise the privilege objection before trial.  Here's what the rule says:
[d]efenses, objections, issues, or requests that can be determined without trial on the merits must be made before trial by a motion to dismiss or to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . .
Justice Stras rejects this waiver argument.  The rule, he says, applies to such things as challenges to the adequacy of a complaint because that can be determined by looking at the pleadings.  A privilege objection, on the other hand, is dependent upon what the witness is actually saying.  That is, is the counselor testifying to information or opinion acquired "in attending the client in a professional capacity."  Minn.Stat. 595.02, subd. 1(g).  So, Mr. Expose, Jr. didn't waive the privilege objection.

On the merits, Justice Stras, ever the strict constructionist, just can't find any words in the privilege statute that creates a "threats exception."  There are other exceptions in that statute but not for this.  The Justice was not willing to piggy-back the mandated reported statute to infer such an exception.

Employing that same strict constructionist approach the Justice cannot find any words in the privilege statute that excludes testimony from a third person to whom the counselor blabbed. Here, she told another person - her supervisor - of the treats because the counselor believed that she had a duty under the mandated reporter statute to do so.  Apparently the counselor's supervisor was neither a registered nurse, a psychologist, or a licensed social worker, who are the only professionals that the privilege statute covers.  The supervisor was thus a competent witness.

Even so, the court sends Mr. Expose's case back for a new trial because it could not say that the error in allowing the counselor to testify did not substantially influence the jury's verdict.  State v. Sanders, 775 N.W.2d 883 (Minn. 2009).


Thursday, December 10, 2015

Trial Court Can Still Order Restitution Even Eight Years After Sentencing

State v. Andersen, Minn.S.Ct., 12/9/2015.  Mr. Andersen is serving a sentence of life without possibility of release from a June 2008 conviction. At the time of sentencing the court had left the question of restitution open for thirty days.  The state filed a restitution request within that thirty days but it took the court some eight years - October 2014 - to get around to granting that request.  After sentencing an attorney different from trial counsel filed a motion for a new trial but did not file a certificate of representation.  Trial counsel did not withdraw. The state served trial counsel with the restitution motion as well as Mr. Andersen.  No one filed a response to the motion for restitution.  Mr. Andersen thought that ordering restitution eight years after sentencing for a man who was never going to get out of prison was a bit harsh.

When the Department of Corrections got word of the restitution order in October 2014 it began to garnish his prison accounts.  Mr. Andersen filed a motion back with the trial court asking the court to take another look at the restitution business, to order DOC to return his money, and to appoint an attorney to represent him.  The trial court said no to the appointment of counsel; said that the state's service on Mr. Andersen's trial attorney was proper service; and said that Mr. Andersen was required to pay up.

Mr. Andersen made two challenges to the trial court's authority to order restitution.  First, he said that the state's service of the motion was not proper.  The trial court said that service on Mr. Andersen's trial attorney was effective to give Mr. Andersen notice.  Justice Diezten comes to the same conclusion; because trial counsel did not withdraw from representation - See Minn.Gen.R.Prac. 703 - the state's service on that attorney was effective even though by the time the state served its motion a different attorney had filed a motion for a new trial.  New trial attorney's failure to have filed a certificate of representation inured to the detriment of Mr. Andersen.  The court ducks the question whether the state's (additional) service of its restitution motion on Mr. Anderson personally was ineffective because he was represented by counsel.

Mr. Andersen's second challenge was, "Really? After eight years?" Justice Dietzen points out that the restitution statute does not set a deadline for the trial court to order restitution. So long as the statutory requirements are met the trial court can order restitution whenever it likes.  As to appointment of counsel, it's true that the court of appeals has said that a defendant has the right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App. 2013.)  Justice Dietzen ducks the question whether Maddox should be the law by concluding that whatever Mr. Andersen's motion to "resolve the restitution issue" was, it was not a restitution hear.  Finally, the court said that a motion to the district to order DOC to give Mr. Andersen back his money was not the correct way to go about challenging an administrative action. 

Substantive Due Process Does Not Require Rebuttable Presumption of Drug Contamination by St. Paul Crime Lab

State v. Hill, Minn.S.Ct., 12/9/2015.  The state charged Mr. Hill with aiding and abetting first degree sale of ten or more grams of methamphetamine.  Mr. Hill sold two bags of meth to a fellow who turned out to be a confidential informant.  The St. Paul crime lab weighed the two bags - the net weight was in excess of the requisite ten grams.  That lab then tested a small piece from each bag after which the remaining, untested contents of each bag were sealed up in a new evidence bag and subsequently sent over to the BCA for further testing. The BCA weighed the contents of each bag - still in excess of the requisite ten grams - and also tested the contents of each bag - still meth.

Mr. Hill objected to the introduction of the results of the BCA testing. He said that the BCA results that confirmed that the bags contained meth were unreliable because the contents of the bags might have been contaminated while they were in the custody of the St. Paul lab, investigation of which had uncovered deficiencies in its quality assurance controls.  Mr. Hill wanted the court to adopt a rebuttable presumption of contamination.  Chief Justice Gildea rejects that invitation for a unanimous six person court, newly installed Justice Hudson not participating.

Mr. Hill said that adoption of this rebuttable presumption was necessary to vindicate his right to substantive due process. Substantive due process protects an individual from "arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.  In re Lineham, 594 N.W.2d 867 (Minn. 1999).  The actions of the St. Paul crime lab must have either "shocked the conscience" or "interfered with rights implicit in the concept of ordered liberty" to violate substantive due process. It's a pretty high bar:  acts done with "deliberate and unjustifiable injurious intent", or the use of false evidence .  Given that both the St. Paul lab and the BCA determined that the stuff in the bags was meth, Mr. Hill couldn't really meet that standard.The St. Paul crime lab may have been inept in and ignorant about testing suspected controlled substances  but its heart was if not in the right place at least not proven to have been in the wrong place.  And, of course, had the court adopted a rebuttable presumption for the testing done by the crime lab it would have overturned hundreds and hundreds of previous convictions.

Mr. Hill's fall back position was that the court should adopt this rebuttable presumption under its supervisory powers to ensure the fair administration of justice.  For just about the same reasons the court also declines to do this as well.

Tuesday, December 8, 2015

Aiding Offender After the Fact Does Not Require That Offender Be Convicted of a Crime

State v. Townsend, Minn.Ct.App., 12/7/2015.  Mr. Townsend pled guilty to aiding an offender after the fact.  In between the plea and sentencing, the "offender" went to trial on a charge of first degree murder and got acquitted.  Oops. Mr. Townsend thought he should get his plea back, but both the trial court and the court of appeals say no.

It's a bit more complicated than that, of course.  Mr. Townsend had bought a gun off a Mr. Shufford.  Not long after, however, Mr. Shufford asked to borrow the gun back "because he intended to rob someone."  Mr. Townsend loaned him the gun.  Later that same day, Mr. Shufford reported to Mr. Townsend on the outcome of the robbery:  he'd had to "slump the guy."  Mr. Shufford showed Mr. Townsend and two other guys the dead body and the four of them then helped themselves to money from the deceased's wallet.

Mr. Townsend said that he couldn't be guilty of aiding an offender after the fact when the offender wasn't convicted of anything.  His plea, he said, was not accurate and thus invalid.  The statute in play, Minn.Stat. 609.495, subd. 3 says that:
“[w]hoever intentionally aids another person whom the actor knows or has reason to know has committed a criminal act, by destroying or concealing evidence of that crime, . . . [or] receiving the proceeds of that crime . . . is an accomplice after the fact.
The pattern jury instructions for aiding an offender after the fact require that the state prove that Mr. Shufford committed the crime of first degree murder.  Of course, the state utterly failed in that endeavor in Mr. Shufford's trial.  But, never mind about that because Mr. Townsend's plea colloquy in which he admitted the aforesaid facts gave him "reason to know" something that Mr. Shufford's jury did not know:  that Mr. Shufford had, committed first degree murder: 
Townsend admitted the following at the plea hearing: (1) he lent Shufford his gun because Shufford intended to rob someone; (2) Shufford told him that the robbery had gone “sour” and that he had to “slump” the victim; (3) Townsend went with Shufford to the site of the murder and Shufford showed him the dead victim in a car, saying that the victim is “not waking up” because Shufford “slumped him”; and (4) Townsend knew the gun had been used to kill the victim. These admitted facts “support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty
The court of appeals readily admits that this is grossly unfair but somehow it declines to give Mr. Townsend back his guilty plea under either the more forgiving "fair and just" standard or the "manifest injustice" standard for withdrawal of a plea.