Thursday, October 30, 2014

Sentencing Errors Require Remand for (Partial) Resentencing

State v. Crockson, Jr., Minn.Ct.App., 9/22/2014.  A jury convicted Mr. Crockson, Jr. of two counts of burglary and two of three assault charges.    Mr. Crockson, Jr. and three juveniles had gone over to T.C.’s place, where they also found C.C. and D. H.  In fact, it was C.C. who opened the door and let everyone in.  C.C. had sold Mr. Crockson, Jr. a cell phone, but Mr. Crockson, Jr. accused C.C. of not giving him the phone’s correct PIN number.  The two argued over this and when they reached an impasse on whether this was true or not one of the juvenile’s handed Mr. Crockson, Jr. a revolver, which he placed to C.C.’s head, one assumes to move the discussion to a more satisfactory conclusion.  Mr. Crockson, Jr. then directed the juveniles to assault D.H., which they did.

Near the end of the trial, the trial judge permitted the state to amend the complaint, which had charged that Mr. Crockson, Jr. was subject to an enhanced sentence for the assaults because he was a felon in possession of a firearm.  The amendment changed the basis for the enhanced sentence to second or subsequent offense involving a firearm.  The state’s proof, however, only established that Mr. Crockson, Jr.’s prior assault conviction had involved a “dangerous weapon” rather than proof of a firearm. 

On appeal, Mr. Crockson, Jr. mostly argued about the sentence.  Before that, however, he argued that C.C. was not in “lawful possession” of the apartment; that is, she lacked a legal right to exercise control over the premises, including deciding who gets to come in and who has to leave.  Mr. Crockson, Jr., seemed to want to have his proverbial cake ad eat it too.  If C.C.lacked the authority to throw Mr. Crockson, Jr. and the juveniles out, then the burglary element, “unlawful entry,” which includes overstaying your welcome and getting thrown out, isn’t proven.  Thus, no burglary.  But, if C.C. couldn’t throw everyone out then she could not invite them in, either.  Which suggests that they were what?  Alas, the court avoids this existential conundrum by concluding that because C.C. was living at T.C.’s apartment at the time with T.C.’s permission then she had authority to admit and deny entrance.

The trial court adjudicated Mr. Crockson, Jr.’s guilt on both burglary convictions, even though everyone agreed that the two were part of a single course of behavior.  This was a mistake that the state conceded.  The appellate court lectures the trial court on the proper drill in this situation, which is to accept both guilty verdicts but to adjudicate guilt and impose sentence on only one of the two guilty verdicts. 

Because the state failed to prove that Mr. Crockson, Jr.’s previous conviction involved a firearm – a “dangerous weapon” being too amorphous - the appellate court vacates the assault sentences and remands for resentencing without regard to the mandatory minimum sentence of sixty months.  A victory of sorts – it moots the business about the end of trial amendment of the complaint - but not one that anyone’s going either to celebrate or lose sleep over; the sentence on the burglary was a third longer in duration.

Tuesday, October 28, 2014

A Stay of Adjudication Under Minn.Stat. 152.18 Starts The Two Year Limitations Clock

Dupey v. State, Minn.Ct.App., 10/27/2014.  Mr. Dupey pled guilty to a fifth degree drugs crime.  The trial court did not enter a judgment of guilty but, instead, deferred further proceedings and placed him on probation.  Minn.Stat. 152.18.  Some four years later, Mr. Dupey petitioned the court for post-conviction relief, asking to be allowed to withdraw his guilty plea.  (In the interim he had violated probation and had a prison sentence imposed.)  A post conviction petition must be filed within two years of of entry of judgment of conviction or sentence if no direct appeal has been filed.  Minn.Stat. 590.01, subd. 4.  The post conviction court summarily dismissed the petition because it had not been filed within this two year limit.

Mr. Dupey said, no, the two years doesn’t start until the trial court revoked the stay of adjudication, and that counting from that date he beat the clock by exactly one day.  The court of appeals rejects this interpretation, saying  that a stay of adjudication is itself a “sentence.”  The court of appeals reaches this conclusion, in part, by reliance upon State v. Lee, 706 N.W.2d 491 (Minn. 2005) where the state and the defense argued exactly the opposite of what they are arguing here for Mr. Dupey.  This is, in Lee, the defense said that a stay of adjudication “is more like a sentence than it is like a pretrial order;” and the state said that “a sentence requires a conviction and in the absence of a conviction there is no sentence.”  A year later, the supreme court issued an Order – not an opinion – that said that appeals from stays of adjudication in felony cases were to be treated as appeals from sentencings.  And, back in 2001, the court of appeals had said:

Logic dictates that whether a district court (1) executes a sentence and incarcerates a person, (2) stays execution or imposition of a sentence coupled with terms of probation that may include incarceration up to 12 months, or (3) stays adjudication of guilt but imposes a sentence consisting of terms of probation that may include incarceration up to 12 months, that each disposition is a sentence.

The court of appeals affirms the summary dismissal.

Trial Court Did Not Abuse Its Discretion By Declining To Depart From Presumptive Prison Sentence For a Defendant With Serious Mental Illness and Instead to Require Him To Complete Treatment Program

State v. Abdi, Minn.Ct.App., 10/27/2014.  Mr. Abdi entered an Alford plea to assault in the first degree.  At sentencing, Mr. Abdi asked the court to place him on probation and to require that he successfully complete an “appropriate supervised alternative living program having a mental health treatment component.”  Minn.Stat. 609.1055.  In support of that request, he presented testimony from the director of the treatment program who had this to say about that facility:

(1) the program has never had a resident who was sent there on probation by the criminal justice system; (2) about 50% of the residents have bipolar disorder; (3) the residents are on medication; (4) residents who are not compliant with their medication regimen are discharged; (5) residents stay an average of one year and eight months; (6) whether a resident is ready to leave is determined by the staff and the residents’ psychiatrists; and (7) nothing can be done to require residents who have chosen to leave the program to return to it.

Based on this description, and on testimony from Mr. Abdi’s psychiatrists, the trial court concluded that this treatment program was not sufficiently suitable.  The trial court also concluded that Mr. Abdi posed a serious risk to public safety, something the statute specifically requires the trial court to consider. 

Sunday, October 26, 2014

“Plain Error” Is To Be Determined at the Time of Appeal

State v. Kelley, Minn.S.Ct.,  10/22/2014.  Two trials occur more or less at the same time.  In each, the trial judge gives an instruction on accomplice liability without objection.  Each defendant is convicted and appeals that conviction.  Each appeal makes the claim that the instruction on accomplice liability was incorrect and was thus “plain error” under that doctrine.  One of the appeals goes just a bit faster than the other, resulting in an opinion that says that the instruction was erroneous but not “plain error.”  A few days later, the second appeal is decided.

That’s Mr. Kelley.  The not existential question is at what point in the litigation should the appellate court determine whether an error is “plain error.”  The error was not “plain” at the time of trial.  The error was not “plain” at the commencement of the appeal.  The error became “plain” only upon the issuance of the first appellate opinion. 

Notwithstanding all that, Justice Dietzen, writing for everyone on the court but Justice Stras, pronounces that the point in the litigation at which to determine whether an error is “plain error” is on appeal.  Mr. Kelley’s error is thus “plain error” because of an earlier opinion that changed the law on what an accomplice liability instruction is supposed to look like.

Justice Stras says that adoption of a “plain at the time of appeal” rule just encourages defense counsel to sit mute whenever she thinks that the trial judge is even remotely messing things up, in the hopes that a “plain at the time of appeal” analysis will get her client a new trial.  It’s also just plain unfair.  The majority, on the other hand, says, yes, it’s rule may, indeed discourage timely objections at trial.  That’s not the point, however, of having a “plain error” mechanism.  That mechanism is to provide a qualified “safe harbor” to un-objected to errors.  Also, an appellate court out to be applying the law in effect at the time it renders its decision, which is exactly what the United States Supreme Court had concluded in Henderson v. United States, ___ U.S. ___, 133 S.Ct. 1121 (2013).

And Mr. Kelley?  He could not satisfy all of the requirements of the “plain error” rule.  Conviction affirmed. 

Wednesday, October 22, 2014

Trial Court Abused Its Discretion By Departing Dispositionally in a CSC Sentencing

State v. Soto, Jr., Minn.S.Ct., 10/22/2014.  Here’s how Justice Lillehaug begins this sentencing opinion:

In sentencing, district courts have a great deal of discretion. Rarely do we hold that it has been abused. But rarely is not never. This is such a rare case.

This is not going to go well for Mr. Soto, Jr.  An odd assortment of four justices – Lillehaug, Dietzen, Stras, and Wright, team up to make sure that Mr. Soto, Jr. does his twelve years for first degree criminal sexual conduct.  The majority concludes that the trial court abused its discretion by placing Mr. Soto, Jr. on probation; it reaches this result mostly by flat out disagreeing with the conclusions of the trial court and by fly specking the trial court’s verbiage.  For instance, the trial court found that Mr. Soto, Jr. was “amenable to probation” instead of finding that he was “particularly amenable to probation.”  Really. 

Justice Lillehaug reels off a list of prior opinions where the court’s language about amenability to probation included the adverb, “particularly”.  Justice Page, joined by Chief Justice Gildea and Justice Anderson, point out, however that  the court has never previously required that the trial court “say the magic words” in order to avoid getting reversed.  This is just more trial court bashing from a court that only has to take cases when it wants to do so, has no ninety day deadline for issuing opinions, and can take forever to fine tune its verbiage. 

To support its determination that Mr. Soto, Jr. was amenable to probation, the trial court pointed to these factors:  the psychosexual evaluation concluded that Mr. Soto, Jr. was an appropriate candidate for its outpatient treatment program; Mr. Soto’s age (37); the lack of very many “serious crimes” on his record; the role that alcohol played in the offense; Mr. Soto’s respectful attitude in court; the offense was an outlier, and he had some family support.  The majority then systematically takes nearly all of those factors apart, not because they are improper factors to consider in determining amenability but because of what the trial court did with them.

Start with the psychosexual evaluation.  The “mere fact” that the report reached a particular treatment recommendation “does not necessarily justify departing.”  Fair enough had the majority stopped there.  But, there’s more.  Even though it’s not the job of the psychosexual evaluator to weigh in on whether to place Mr. Soto, Jr. on probation, that’s apparently exactly what the majority wanted the evaluator to do.   Not having done so leads the majority pretty much to toss the evaluation all together:

There is a large and crucial step missing between saying that Soto is an appropriate candidate for outpatient treatment and concluding that he is “particularly amenable to individualized treatment in a probationary setting.

The majority conceded that in general the other factors that the trial court recited – age, prior record, attitude while in court, and support of friends and family – are all relevant to determining if a defendant is particularly amenable to probation.  Again it just didn’t like the conclusions that the trial court drew from those factors.  Take age.  At  37, the trial court thought that Mr. Soto, Jr. still had an opportunity to correct his behavior.  The majority, however, rejected this observation for two reasons:  “age” means “young, like twenty-something; and if a defendant gets a break for being 37, then where do you draw the break line?  Sixty may be the new forty but thirty-seven won’t get you a departure.

The majority says that prior record, by itself, is not a proper basis for departure, but it’s okay for the trial court to rely on Mr. Soto’s prior record to support its belief that he could correct some of his behaviors.  But, again, the majority just didn’t agree with that observation by the trial court and so, as Justice Page points out, the majority substitutes its conclusion for that of the trial court.

Although the trial court didn’t mention remorse or cooperation with the police, the majority does not say, as the state wanted it to say, that expressing remorse is a prerequisite to finding that a defendant is particularly amenable to probation. Being respectful in court is a legitimate factor but the majority didn’t think it outweighed “other relevant considerations.”  The majority agreed with the trial court that Mr. Soto’s family support and his status as a father are relevant factors in determining amenability.  While these facts cannot, themselves, justify a departure, they can support a finding of amenability.

The majority was annoyed that the trial court had not addressed either Mr. Soto’s culpability or whether public safety would be served by departing.  Again, Justice Page points out that the court had never required a trial court to address these factors; rather, the could has only said that such factors are relevant considerations.  The majority does not hold that trial court must consider culpability and public safety, but clearly the majority is signaling to the trial bench that it would look favorably on plugging both culpability and public safety into the algorithm for determining amenability, and, best of all worlds, adding those factors to hold down the number of departures. 

The dissent’s view of all this is best summed up with this observation:

While another trial court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the “ ‘rare case’ warranting our intervention with the [trial] court’s discretion.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). In effect, here, the court improperly “substitute[s] [its] own judgment for that of the trial court.” Spain, 590 N.W.2d at 88.

Tuesday, October 21, 2014

“Sentencing Package” Doctrine Applies to Modification of Length of Unchallenged Sentence on Remand

State v. Hutchins, Jr., Minn.Ct.App., 10/20/2014.  A jury convicted Mr. Hutchins, Jr. of third degree criminal sexual conduct and first degree burglary, a “single behavioral incident.”  The court imposed a sentence of 130 months on the criminal sexual conduct conviction, and a concurrent sentence of 105 months on the burglary.  The sentence of 130 months was an upward durational departure.

Mr. Hutchins, Jr. successfully appealed this sentence.  The appellate court said that the grounds for the upward durational departure on the CSC conviction were invalid.  The court told the trial court to do one of three things:  impose the presumptive sentence, impose permissive consecutive sentences, or empanel a resentencing jury. 

On remand, the trial court left the 105 month sentence on the burglary intact but imposed a permissive consecutive sentence of 41 months on the CSC.  Total sentence:  146 months.  Mr. Hutchins, Jr. successfully appealed again.  This time, the appellate court told the trial court to impose either the presumptive sentence or a permissive consecutive sentence, but with the total sentence not to exceed 130 months.

On the third try, the trial court retained the 41 months sentence on the CSC and reduced the burglary sentence from 105 months to 89 months.  Total sentence:  130 months.

Mr. Hutchins, Jr. appealed again.  He said that the burglary sentence was immune from adjustment on remand because he had only appealed the sentence on the CSC conviction.  The appellate court points to the statutory authority of courts to review sentences, Minn.Stat. 244.11, subd. (b):

On an appeal . . . the court may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court. This review shall be in addition to all other powers of review presently existing. The court may dismiss or affirm the appeal, vacate or set aside the sentence imposed or stayed and direct entry of an appropriate sentence or order further proceedings to be had as the court may direct

So, just what is the “sentence” here.  The appellate court takes an expansive view of what the “sentence” was.  It goes with something called the “sentencing package” concept so that the sentence as a whole is up for grabs, at least under this statute.  So long as the trial court did what it was told:  impose either the presumptive sentence or a permissive consecutive sentence that does not exceed the original sentence of 130 months. 

Restitution Statute Does Not Authorize Court To Order a Defendant To Sell Assets In Order to Pay Up.

State v. Alexander, Minn.Ct.App., 10/20/2014.  Mr. Alexander pled guilty to motor vehicle theft.  The vehicle that he stole was a brand new BMW.  By the time police found Mr. Alexander driving it, there was extensive damage to the vehicle, and instead of the four or five miles of a factory new car it had some fifteen hundred miles on the odometer.  Following a sentencing hearing, the trial court ordered Mr. Alexander to pay some sixteen thousand dollars in restitution to the dealer.  The court also ordered Mr. Alexander to raise some of that sixteen grand by selling his 1992 Mercedes E Class.  And, the court ordered  him to “fully pay” the public defender for the “cost of representation.”  At the time, Mr. Alexander was an unemployed college student whose only asset was a twenty-one year old Mercedes.  We don’t know whether it was a diesel or gas vehicle.  So, he appealed this restitution order. 

And wins some and loses some.  He lost on whether the state had presented enough evidence to prove the amount of restitution.  The dealer offered evidence of the cost of repairs to the beamer, and also said that it had to discount the value of the car by some ten thousand dollars in order to sell it; at fifteen hundred miles it’s not a “new car” anymore.  The trial court accepted all that and the appeals court found no abuse of discretion in doing so.

Next, Mr. Alexander complained that the trial court did not consider whether he had the ability to pay restitution.  The restitution statute says that the trial court has to “consider the defendant’s ability to pay.”  The court substitutes incantation for consideration.  Say the magic words and everything’s fine.   Unless a defendant presents additional evidence on that ability, the court’s primary source of information on ability to pay is from the presentence investigation.  If the trial court says that it saw that part of the PSI and “considered it” that satisfies the statute’s “consideration” requirement.  The court can say, “Yeah, I know all that, you’re not working, homeless, blah, blah, blah, but I’m still ordering you to pay.” and not expect to get reversed on appeal.

The PD fee is a separate statute with a different requirement.  Mr. Alexander gets a partial win on the public defender fees.  This statute requires the court to hold a hearing to determine the cost of the PD services, and whether a defendant  has the ability to pay that fee.  First, the trial court here held no such hearing – a generalized sentencing hearing doesn’t count – so no one had bothered to put a price tag on those services. Second, unlike the restitution statute which does not require that the court make findings, the court is required to make findings on a defendant’s ability to pay a PD fee.  So, Mr. Alexander gets a remand for the court to tidy up the record on this.

Finally, the Mercedes.  The restitution statute does not authorize the trial court to order a defendant to liquidate assets in order to raise cash to pay restitution.  Unpaid restitution already may be enforced by a civil action to collect it.  If the BMW dealer want’s the cash from the sale of Mr. Alexander’s twenty-one year old Mercedes it will have to go through that process.

It won’t be surprising to see the supreme court review this if given the opportunity.  Is this an Axelgerg [implied consent statute does not list a necessity defense so Ms. Axelberg, driving drunk for her life, can’t raise it] case or an Ali [replace “shall” with “may” in the life without possibility of release sentencing statute] case?

Friday, October 10, 2014

Court Has Inherent Authority To Hold Miller Hearing To Determine Whether Juvenile Should Be Sentenced to Life Without Possibility of Release

State v. Ali, Minn.S.Ct., 10/8/2014.  When Mr. Ali was a few months shy of his eighteenth birthday he shot and killed three men during a robbery of the Seward Market in Minneapolis.  There were a couple of warm up issues addressed in this appeal but the main act was what to do about the sentences that the trial court meted out to Mr. Ali.  That sentence was life without the possibility of release for one of the homicides and two consecutive life with possibility of release after thirty years sentences for the other two homicides.  With the court’s answer it’s shaped up to be a really bad week for juveniles who have been sentenced to life without possibility of release.

First, the life sentence without possibility of release.  Two days before this Opinion came out, the U.S. Supreme Court declined to take up the question whether Miller v. Alabama, 132 S.Ct. 2455 (2012), which says that sentencing schemes that mandate life without parole for juveniles convicted of homicide is unconstitutional, is retroactive. In Minnesota that's the Roman Nose case, read here. Miller said that courts had to take into consideration the individual factors of the juvenile in front of them before locking them up forever. Admittedly, Tony Rome was a procedural mess but with Chambers inexplicably bowing out it was as good a Minnesota case as any to answer the retroactivity question.  The Supreme Court apparently had other cases before it on the retroactivity question, which they also declined to hear

At the time that the trial court sentenced Mr. Ali, the pertinent statute said that for anyone convicted of designated crimes the court “shall sentence a person to life imprisonment without possibility of release”.  Minn.Stat. 609.106, subd. 2(1) (2012).  So, without further ado that’s what the trial court did. 

Mr. Ali's case has been on appeal in one form or another ever since so there’s no retroactivity headache; he gets the benefit of Miller.  So, the question becomes, what is that benefit?  There were two competing answers to that question.  The state said to send the case back to the trial court to conduct an ad hoc Miller hearing.  Mr. Ali said, no, the last constitutional sentencing scheme before Miller called for a “regular life” sentence, that is, one that provided for the possibility of release after serving thirty years.  The Minnesota Supreme Court sides with the state and turns the trial court loose to craft some sort of "Miller" remedy that it sees fit.  It does so even though there’s no longer a constitutional statute that authorizes a judge to give a juvenile life without possibility of release. 

The majority, lead by Chief Justice Gildea, admits that the current statute, which says that the trial court shall impose a sentence of life without possibility of release for designated homicides runs afoul of Miller and is therefore unconstitutional. The last constitutional statute that applies to Mr. Ali’s crimes only authorizes a life sentence with the possibility of release after thirty years. In similar situations, the court has reinstated that last constitutionally valid statute. So, when they struck down a statute that allowed public defenders to decline representation of indigent defendants who had pleaded guilty and received less than the presumptive sentence, the court's remedy was to dig out the previous version of the statute and run with that. Deegan v. State, 711 N.W.2d 89 (Minn. 2006)   Not so, here, however.

The majority relies upon State v. Chauvin, 723 N.W.2d 20 (Minn. 2006), the case that said that courts had the inherent authority to empanel sentencing juries to find aggravating factors after Blakely said that judges couldn’t do that anymore.  The dissenters, Justices Page and Stras, said that the flaw in that approach was that nothing in Blakely changed the trial court’s authority to impose an aggravated sentence; it just changed the method by which that could occur.  Miller, on the other hand, eliminated a a court’s authority to mandate life without release sentences for juveniles, and try as it might, the legislature had not come up with a new sentencing scheme.  The dissenters argued that the effect of the majority’s Miller remedy was to amend the statute by replacing “shall” with “may for juveniles” impose a life without possibility of release after some sort of ad hoc hearing

Both dissenting justices would reinstate the last constitutional statute,which would impose a life sentence with possibility of release after thirty years.  Justice Page points out that since Miller the legislature has wrestled with what statutory scheme should be enacted to comply with Miller but hasn’t enacted a single word.  Just what the legislature has in mind is a total mystery, including whether it still wants to authorize a life without possibility of release for juveniles.  Justice Page also strongly suggests that  it may be constitutionally required under Blakely to have a jury determine the facts on which the court then makes this release/no release decision. 

Justice Stras reprises most of what he’s previously had to say about inherent judicial power and then takes on the majority’s reliance on Chauvin:

The court’s conclusion that the remedy in Chauvin is similar to the remedy in this case makes an apples-and-oranges comparison. An apple sounds like an orange when it is described as a sweet-tasting fruit that grows on a tree and has seeds. And while it is true that these are shared characteristics of both fruits, the fact remains that an apple is not an orange, and this case is not Chauvin. The court is correct when it says that Chauvin provides authority for the proposition that a court has the power in certain circumstances to make a procedural decision about which factfinder—the judge or the jury—will make a particular finding, but the court’s comparison falls short when it uses Chauvin to support its chosen remedy in this case. Chauvin simply did not involve a situation in which we were required to change the Legislature’s prescribed sentence for an offense so that the statute could pass constitutional muster. In concluding otherwise, the court confuses apples and oranges.

This is all potentially bad enough for Mr. Ali, this ad hoc Miller hearing, but there’s more.  The court also sentenced Mr.Ali to two consecutive “regular life” sentences on the other two homicides.  This means that Mr. Ali has to serve sixty years before he could be considered for release on these two sentences.  This is known as a “virtual life” sentence.  And not one justice dissented from the majority’s conclusion that the trial court had not abused its discretion in stacking these two regular life sentences.  The U.S. Supreme Court has also so far been uninterested in addressing this “virtual life sentence” issue for juveniles. 

A closing note on one of the “preliminary acts,” having to do with the authentication of Mr. Ali’s Kenyan birth certificate.  From the very beginning of the litigation Mr. Ali disputed his age, arguing that he should not have been automatically certified to stand trial as an adult.  He submitted a birth certificate from the appropriate District Registrar in Kenya, which bore the registrar’s seal and a signature by the registrar.  The defense also submitted an unsigned letter from the Kenyan Embassy in Washington, D.C., which stated that the birth certificate “bears the Seal of the Registrar of Births and Deaths of the Republic of Kenya.”  Both the trial court and the supreme court reject the birth certificate as not self authenticated under Rule 902(3)A).  Unlike its willingness to read the homicide sentencing statute’s “shall” as really being “may” the court takes a very strict view of the requirements of Rule 902 for self authenticating a foreign document.

Monday, September 29, 2014

Trial Court Has Authority to Decide Evidentiary Challenge To Chain of Custody By Pretrial Hearing

State v. Farah, Minn.Ct.App., 9/29/2014.  An undercover cop bought 5.5 grams of cocaine from Mr. Farah.  The cop wrote in his report that the drugs were a “white, powdery substance.”  A few days later the BCA received 4.869 grams of a “rock-like material/powder.”  The BCA tester said that the “rock-like material” contained cocaine.  The undercover cop, when he got the stuff back from the BCA, wrote that he placed the “rock-like material” into an evidence locker.

Powder or rock?  That’s what defense counsel for Mr. Farah wanted to know.  She filed a pretrial motion asking for the chain of evidence records; actually, asking how does 5.5 grams of “white, powdery substance” become 4.869 grams of a “rock-like material”?  That’s one  hell of a gas chromatography/mass spectrometry machine.  The trial court held a hearing on the motion at which the prosecutor characterized the motion as a challenge to probable cause.  The judge, however, said, no, that the hearing was about an evidentiary issue:  the chain of custody foundation for admission of the evidence.  Eventually, the trial court excluded the evidence.

So, can the trial judge make a chain of custody determination before trial?  Turns out the judge can.  Evidence rule 103(a) says that the trial court may make a ruling to admit or exclude evidence “either at or before trial.” 

The remaining question, then, is whether the trial court correctly ordered the exclusion of the drugs.  Just as the trial judge called it, this is an evidentiary issue so it’s a discretionary call.  The officer who bought the drugs described them initially as a “white powdery substance” but after that the description became “rock-like material”.  The state never explained this morphing of the drugs.  On that record, the trial judge did not abuse its discretion by ordering the exclusion of the drugs. 

Sunday, September 28, 2014

Post Conviction of False Trial Testimony Sufficient To Require Evidentiary Hearing

Caldwell v. State, Minn.S.Ct., 9/24/2014.  in this his third post conviction petition, Mr. Caldwell alleged that three witnesses at his trial presented false testimony.  The post conviction court summarily denied the petition without a hearing.  Justice Stras, with Chief Justice Gildea and Justice Dietzen dissenting, sends the petition back for that evidentiary hearing.

In support of his claim of false trial testimony Mr. Caldwell presented a transcript of a statement by each witness, and an affidavit from the investigator who conducted the interviews which affirmed that each statement was a true and correct transcription of the recorded interview.  Now, to be entitled to an evidentiary hearing Mr. Caldwell’s petition had to contain more than “argumentative assertions without factual support;” and the petition must recite sufficiently trustworthy allegations that would, if proven, entitled a petitioner to a new trial.  Justice Stras says that Mr. Caldwell met the first requirement because of the sworn affidavit from the investigator that the transcript of the actual interview of the witnesses was true and correct.  At what is essentially a proffer state of the proceedings, the justice seems to ask, what else can a petitioner do?

On the second requirement, the majority and the dissent of Justice Dietzen just disagree about, well damn near everything:

In reversing the post conviction court, the majority dismisses crucial portions of the record, misconstrues the relevant case law, and misapplies the standard of review. Carnell Harrison and William Brooks did not recant their trial testimony or state that they did not testify truthfully at trial. Instead, when asked whether they testified truthfully at trial, Carnell stated he could not remember and Brooks did not answer the question.

Justice Stras gets more votes and so the petition gets sent back for an evidentiary hearing.  Lots of footnote sniping.

Court Rejects Challenge To In-Court Identification and Affirms Exclusion of Expert Witness Testimony on Eye Witnesses Identifications

State v. Mosley, Minn.S.Ct., 9/24/2014.  Following a bench trial, the trial judge convicted Mr. Mosley of three counts of first degree premeditated murder, and then imposed three consecutive life sentences without possibility of release.  On appeal, Mr. Mosley raises two questions about eye witness identifications.

The first question is about an in court identification by one of the state’s witnesses.  This witness saw a black male wearing a sweatshirt with a grey hood and stripes over the shoulders riding a bicycle in front of the house where the homicides occurred.  She witnessed this and some additional actions by this same black male just shortly before the shooting deaths.  Only during her trial testimony, however, did she state that the person she had seen was Mr. Mosley; no one had conducted an identification procedure before trial.  Justice Dietzen, writing for the entire court, rejected Mr. Mosley’s due process challenge to this in court identification because it had not been the product of any state action.  Perry v. New Hampshire, ___ U.S. ___, 132 S.Ct. 716 (2012). 

Mr. Mosley also said on appeal that the in court identification violated Rule 403 of the Rules of Evidence because it lacked reliability and unfairly prejudiced him.  Because Mr. Mosley had not made this precise objection at trial – he made only the due process objection – the court reviewed this claimed error under harmless error analysis.  Because admission of most all evidence is a discretionary call by the trial judge, Justice Dietzen easily enough concludes that there had been no abuse of that discretion and thus there was no error.  Reliability of identification testimony, the Justice says, goes to the weight of the identification evidence and not its reliability.

The second question is about admission of expert testimony on eyewitness identification.  In a rather nostalgic trip down memory lane – back to  State v. Helterbridle, 301 N.W.2d 545 (Minn. 1980), the court concludes that the trial court did not abuse its discretion in declining to admit such testimony.  Helterbridle, confidently told everyone – before the onslaught of wrongful convictions started coming to light, most of which were based on faulty witness identifications – that such safe guards as cross examination, jury instructions and arguments of counsel are more than adequate to prevent the improper use of eye witness identifications.  Most incongruous in this conclusion is the double standard utilized for eye witness experts and for “rape myth” experts in rape cases where consent is the defense.  Whereas in rape cases where consent is the defense the court has been satisfied with allowing experts to testify generally to so called “rape myths,” for eye witness identifications, Justice Dietzen says that the expert’s testimony must relate to the particular circumstances of the identification under attack.  What this means is that the defense must be prepared to present a proffer that is specific to the case on trial.

Sunday, September 21, 2014

Departure In Assault Conviction Based Upon Victim Injury Okay Where Defendant Has Prior Conviction Involving Injury

State v. Meyers, Minn.C.App., 9/15/2014.  Since the adoption of the Guidelines it’s always been the case that a departure from the presumptive sentence cannot be based upon an element of the offense of conviction.  State v. Osborne, 715 N.W.2d 436 (Minn. 2006).  This is not to say that flanking maneuvers to avoid this rule have ceased.  Far from it.  Indeed, there’s one successful flanking maneuver – the subject of this appeal – that’s right in the Guidelines.  Section II.D.2.b(3) says that a valid ground for departure exists when:

“[t]he current conviction is for a [c]riminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a [criminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured.

A jury convicted Mr. Meyers of assault in the first degree from the stabbing of A.C.  This stabbing caused a ten inch knife wound that penetrated her liver and adrenal gland; and she also sustained permanent nerve damage to her thumb from a separate cut.  An element of first degree assault is “substantial bodily injury.”  Mr. Meyers argued that because injury was an element of the offense that injury could not also be used to support a departure notwithstanding the language of the above Guidelines section.

As well as the Supreme Court opinion, State v. Peake, 366 N.W.2d 299 (Minn. 1985).  Mr. Meyers sought to distinguish this case by two more recent ones.  in the first, State v. McIntosh, 641 N.W.2d 3 (Minn. 2002), the supreme court threw out a departure under the “major controlled substance offense” provision which is based, in part, on the quantity of drugs.  The court had cautioned courts about using the quantity of drugs to support a departure.  In the other case, State v. Thompson, 720 N.W.2d 820 (Minn. 2006). the supreme court threw out a departure in a theft by swindle over $35,000.00 conviction where the amount of the swindle had been really over $35,000.00. 

The court here says that the Guidelines provision in play “is not duplicative in its consideration of victim injury.”  (Fact of injury becomes “consideration” of injury, something of a re-wright of the language of the Guidelines.)  That’s because injury is actually is a limitation on the applicability of this aggravating factor provision.  The court can only impose a departure when the current conviction is for a crime that involved injury to a victim, and the defendant has a previous conviction for a crime involving injury to a victim.

Thursday, September 18, 2014

9/17/2014: No Supreme Court Criminal Published Opinions

But, worth a quick read:  In re the Guardianship of:  Jeffers J. Tschummy, Ward.  Minn.St.Ct. 9/17/2014, wherein Chief Justice Gildea and Justice Stras hurl vituperative footnotes at one another.

Wednesday, September 10, 2014

No Abuse of Discretion In Denying Evidentiary Hearing on Post Conviction Petition

Lussier v. State, Minn.S.Ct., 9/10/2014.  Mr. Lussier pled guilty to first degree murder while committing domestic abuse for the stabbing death of his wife.  During the plea hearing, Mr. Lussier admitted that during an argument with his wife he struck her at least once.  He then said that he picked up a knife intending to take his own life but instead unintentionally stabbed his wife during a struggle over the knife.  To shore up the plea, the state introduced the grand jury transcript, something to which Mr. Lussier did not object.  Mr. Lussier then agreed that at a trial witnesses would have testified “much in accordance with the grand jury testimony.  In fact, Mr. Lussier hadn’t seen that transcript.

After a while, Mr. Lussier filed a pro se motion to withdraw his plea, saying that it was manifestly unjust because the plea was not accurate, intelligent or voluntary.  With the assistance of counsel he later added that neither the plea hearing nor the grand jury transcript established a factual basis for finding a “past pattern of domestic abuse” or “ extreme indifference to human life”, both of which are elements of the offense.  The post conviction court denied the petition and the supreme court upheld that denial.  Lussier v. State, 821 N.W.2d 581 (Minn. 2012). 

Mr. Lussier then filed this second post conviction petition.  He restated his claim about the guilty plea, and he added a claim that his post conviction attorney provided ineffective assistance of counsel by failing to request an evidentiary hearing.  This time, the post conviction court denied the petition, saying that the challenge to the plea was procedurally barred and that there were no disputed facts on the effectiveness claim that entitled him to a hearing.

Applying the Knaffla rule, Justice Stras affirms the denial of the repeated claim about the guilty plea.  On the effectiveness of counsel claim, the court observes that the only facts that had a bearing on whether his plea lacked an adequate factual basis were the facts established by and contained within the record itself, which included the grand jury transcript and the transcript of the plea hearing.  There were no other facts in need of presentation at the post conviction stage that necessitated an evidentiary hearing.  For that reason, Mr. Lussier cannot prevail on is ineffectiveness of counsel claim.

Removing Package From Airport Sorting Conveyor Was Not an Unlawful Seizure. Dog Sniff of Package Was Not a Search

State v. Eichers, Minn.S.Ct., 9/10/2014.  An airport narcotics officer pulled a package off the UPS conveyor belt for reasons that you can read about here.  The officer put the package amongst a pile of other packages and had his drug sniffing dog “seek dope.”  Which the dog did, alerting only to this package.  Eventually, Mr. Eicher’s claimed the package whereupon authorities arrested him and charged him with first degree drugs.

He moved to suppress the drugs.  He said that grabbing the package off the conveyor belt was a seizure and that the dog sniff was a search, neither of which was supported by reasonable, articulable suspicion.  The court of appeals said that pulling the package off the belt and placing it on the floor amongst other packages was a seizure because the officer thereby asserted dominion and control over it.  That court also said that the dog sniff required a reasonable suspicion of criminal activity under the Minnesota Constitution.  Even so, no federal or state constitutional violation occurred because the officer had a reasonable articulable suspicion that ht package might contain contraband. 

Justice Anderson, writing for all but Justice Page who did not participate, upholds the denial of the suppression motion but for different reasons.  The first question that the court looked at was whether there had been a seizure of the package.  Justice Anderson said that the test to determine that question is whether there is a meaningful interference with an individual’s possessory interest in the property.  The Justice looked to an Eighth Circuit opinion, United States v. Va Lerie, 424 F.3d. 694 (8th Cir. 2005), which identified three factors bearing on the question of a “meaningful interference”:

1) the detention of property impacted a person’s freedom of movement; 2) the detention delayed timely delivery of the property; and 3) law enforcement deprived the carrier of custody of the property.

The court adopts this test.  Looking to the facts, the court concludes that there was no meaningful delay in timely delivery; indeed, officers attempted a controlled delivery the same afternoon following its discovery at the airport.  The court found no infringement of any possessory interest that Mr. Eichers enjoyed by grabbing the package off the belt and setting it on the floor.  His interest in the carrier maintaining custody of the package was infringed, but not until after the dog sniff, which established probable cause.  What that boils down to is that there was no cognizable seizure of the package when the officer removed it from the conveyor belt and put it on the floor for the dog to sniff.

That gets us to the dog sniff.  The court concludes that a dog sniff of a mailed package which reveals only contraband, does not compromise any legitimate expectation of privacy under both the Fourth Amendment and Article 1, Section 10 of the state constitution.  The sniff was thus not a search.

Tuesday, September 2, 2014

Exigent Circumstances Supported Warrantless Blood Alcohol Testing

State v. Stavish, Minn.Ct.App., 9/2/2014.  Law officers and various other first responders went to the site of a one car rollover crash.  There were beer cans in and about the truck that had rolled over.  There was a dead body.  There was Mr. Stavish, who needed medical attention, and who said that he had been driving, that he didn’t know how many people had been in the truck, and that he should not have been doing what he was doing.  Officers sent him off in an ambulance to the hospital, with a trooper in tow with instructions to get a blood draw from him at the hospital.  The trooper accomplished his task but did not get a warrant before doing so.

The state charged Mr. Stavish with vehicular homicide.  Nearly a year later, the U.S. Supreme Court issued Missouri v. McNeely, 133 S. Ct. 1552 (2013).  Mr. Stavish moved to suppress the blood alcohol reading (.20), saying that it had been taken without a warrant in violation of McNeely.  The trial court granted that motion and the state appealed that ruling.

The court of appeals continues in its pursuit of imaginative “exigent circumstances” to justify warrantless blood alcohol testing.  The “virtual search warrant” from Bernard is under assault in the supreme court.  This time around, the court looks at what presumably were the “facts ono the ground” to conclude that there were exigent circumstances other than the metabolization of alcohol in the bloodstream to support a warrantless blood draw.  In fact, there were three:  The trooper was, first off, investigating a more serious crime than “an ordinary DWI charge” in play in McNeely.  Moreover, the medical treatment that Mr. Stavish was at the hospital to get might either affect or invalidate the blood alcohol test.  And, there was the possibility that Mr. Stavish would be medevac'd to another hospital before anybody could put a needle in him and draw blood within the two hour statutory limit.

The state continues to push the adoption of the good faith exception to the warrant requirement, something near and dear to Justice Stras.  See State v. Brooks, 838 N.W.2d 563 (Minn. 2013).  Having come up with a plausible list of “exigent circumstances” the court of appeals found no need to venture down that path.