Wednesday, March 25, 2015
Monday, March 23, 2015
Thursday, March 19, 2015
Court Rejects Claims of Newly Discovered Evidence and Ineffective Assistance of Counsel in Bid For New Trial
Nissalke v. State, Minn.S.Ct., 3/18/2015. Mr. Nissalke filed this post conviction action in which he claimed to have newly discovered evidence of juror misconduct. The post conviction court rejected the claim without holding an evidentiary hearing. Mr. Nissalke said that after his trial was complete he discovered a photograph of a deliberating juror talking with a member of the public. The trial court and the parties, had already known about the conversation; indeed, the trial court conducted a Schwartz hearing on it after the verdict but before Mr. Nissalke filed his notice of appeal. The trial court concluded that the juror had engaged in misconduct, but that the misconduct was not prejudicial.
Mr. Nissalke’s point about the photograph was that to him it showed that the juror wasn’t talking to just any member of the public; rather, the juror was talking to someone who had been attending the trial. Justice Page, for the entire court, concluded that even if all this were true it did not add any relevant new evidence germane to the trial court’s finding that the juror misconduct had not resulted in prejudice.
Mr. Nissalke also claimed newly discovered evidence consisting of an interview of another juror during which the juror complained that objections by the lawyers had prevented the juror from “being able to put the pieces together.” Mr. Nissalke said that the interview proved that the juror had been speculating on certain evidence that she thought was crucial, which is misconduct. Justice Page rejected this assertion but then threw in Evidence Rule 606(b) which prohibits the admission of any evidence about the “effect of anything” on a “juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.” Apparently what that means is the juror’s interview would not have been admissible at a post conviction hearing so it was okay summarily to deny this claim.
Mr. Nissalke made several other claims, one of which was that his trial counsel failed to properly explain a plea offer. This claim, however, was already part of the trial court record, including any factual support for it, and so it needed to have been raised on direct appeal. The failure to have done so bars that claim under the Knaffla rule.
Wednesday, March 18, 2015
Failure to State On The Record The Basis For Objection to Admission of Evidence Leads to Failed Plain Error Challenge on Appeal
State v. Campbell, Minn.S.Ct., 3/18/2015. A jury found Mr. Campbell guilty of first degree premeditated murder for the benefit of a gang, along with several riffs on that top count. The trial court sentenced Mr. Campbell to life in prison without possibility of release. Justice Page, writing for the entire court, affirms that conviction and sentence, employing pretzel logic to get there.
A state witness backed up on a key piece of evidence during his testimony. The state wanted to impeach that witness by playing portions of his recorded interview with the police. The state offered the recording as substantive evidence, along with a transcript of that recording. The defense objected. After a sidebar on the objection, the court said “You may proceed.” The prosecutor then asked if both the recording and the transcript were being admitted. The court then announced that the recording was admissible but that the transcript was admissible only as a court exhibit that the jury could use during the playing of the recording to aid its understanding of the recording. There is no additional record of what got said at the sidebar.
On appeal Mr. Campbell complained about the substantive admission of the recording. Now, Justice Page, himself, wrote that a prior inconsistent statement not given under oath is not admissible substantively. State v. Thames, 599 N.W.2d 122 (Minn. 1999). Now, however, he said that the court couldn’t figure out the basis of Mr. Campbell’s objection. Despite authoring Thames, the justice couldn’t discern from the context just what the precise objection was.
Rule of Evidence 103(a) says that to preserve an error in the admission of evidence counsel must make a timely objection that appears of record, and which states the specific ground of objection unless the specific ground was not apparent from the context. For the life of them, not a single member of the court could discern from the context the basis for the objection: hearsay. Despite Thames, the trial court admitted the recording as substantive evidence and so the obvious objection was hearsay. Justice Page, instead, decides that for all the court knows the objection was only to the admission of the transcript of the recording. The court reaches this conclusion by latching onto the trial court’s momentary lapse after the sidebar when she said only “You may proceed.” When asked just how to proceed, the trial court then announced its ruling – that the recording was admitted but that the transcript was only a court exhibit. The trial court then explained to the jury what the transcript of the recording was for. Somehow, this meant that counsel’s only objection had been to the admission of the transcript.
Justice Page then buttresses this conclusion by pointing out that the defense made no objection when the jury asked during deliberations to hear the recording again. The decision to replay for the jury media that has already been admitted into evidence is about unduly emphasizing a piece of evidence over all of the other evidence; it is not an opportunity to re-litigate the admission of that piece of evidence.
It’s been the law at least since 1980 that a transcript of a recording is only for the jury’s assistance in understanding the recording as it is played. State v. Olkon, 299 N.W.2d 89 (Minn. 1980). The claim that the unrecorded sidebar was a debate about the admissibility of the transcript of the recording that the state was offering in evidence is disingenuous at best and frankly insulting to the court and counsel at worst.
The upshot of this distorted logic is that the claimed error in admitting the recording for substantive purposes can only be reviewed for plain error. Under that exacting standard the challenge fails.
Mr. Campbell also complained about the admission of Spreigl evidence. The court assumed without deciding that the admission of that evidence was error but then went on to conclude that it was harmless.
Tuesday, March 17, 2015
Wednesday, March 11, 2015
Wayne v. State of Minnesota, Minn.S.Ct., 3/11/2015. This is Mr. Wayne’s sixth petition for post conviction relief. He is serving a life sentence imposed back in 1987. In this petition he alleges that he received ineffective assistance of trial counsel. Specifically, he claimed that he had not been informed of a plea offer purportedly discussed during an in-chambers meeting that occurred during his trial. He said that the plea negotiation cases from a couple of years back by the U.S. Supreme Court – Missouri v. Frye, 132 S.Ct. 1399 (2012), and Laffler v. Cooper, 132 S.Ct. 1376 (2012) established a new interpretation of Sixth Amendment law regarding ineffective assistance of counsel that apply retroactively to him. That, he said, provides an exception to the two year limitations provisions under the post conviction statute. The problem was, at least to Justice Lillehaug, was that Mr. Wayne’s claim was time barred because Mr. Wayne could not satisfy this “new interpretation” exception to the limitations provisions because he could not establish that a formal plea offer actually got made to his lawyers and then not communicated to him.
A Felony Conviction Deemed to be a Misdemeanor Under Minn.Stat. 609.13 Doesn’t Count Under Career Offender Statute
State v. Franklin, Minn.S.Ct., 3/11/2015. The career offender statute says that an offender who “has five or more prior felony convictions” is at least half way home to be deemed a career offender. (A “pattern” is the other part.) Suppose, however, that one of those prior felonies got dropped to a misdemeanor by operation of Minn.Stat. 609.13, subd. 1? Does that offender still have “five or more prior felonies”?
The court of appeals had said, no, that Mr. Franklin only had four prior felonies. Read about that here. Justice Wright, for a unanimous court, agrees. The justice gets out her dictionaries and grammar books to “examine the meaning of the verb have.” If one says, “I have five apples.” that’s in the present. On the other hand, if one says, “I have had five apples.” is in the past. So, getting back to the task at hand, had the career offender statute said, “has been convicted of” five or more felonies, then Mr. Franklin would have qualified as a career offender. The statute doesn’t say that and so he’s not a career offender.
No Reasonable Expectation of Privacy Under State Constitution in Garbage Deposited For Collection on the Curb
State v. McMurray, Minn.S.Ct., 3/11/2015. Mr. McMurray set out his garbage one morning in a container proscribed by the local government for that purpose. He set the garbage out on the day that the local government designated for pick up at Mr. McMurray’s location. Unbeknownst to him, the local drug task force intercepted the garbage truck at a prearranged location, took custody of Mr. McMurray’s garbage and examined it. The task force officers found methamphetamine. A magistrate then issued a search warrant for Mr. McMurray’s home where more methamphetamine turned up. The state charged Mr. McMurray with third degree possession of a controlled substance.
Mr. McMurray moved to suppress the narcotics. He said that the officers’ warrantless search of his garbage violated Article I, Section 10 of the state constitution, and so the search warrant could not survive that unconstitutional trash search. The state said, and both the trial court and the court of appeals agreed, that this trash talk was just that: trash. The United States Supreme Court, and the Minnesota Supreme Court had long ago held that an individual had no reasonable expectation of privacy in trash that was set out in a location that could be examined without trespassing on that person’s premises. California v. Greenwood, 486 U.S. 35 (1988); State v. Oquist, 327 N.W.2d 587 (Minn. 1982).
Justice Wright, with Justices Lillehaug and Page dissenting, said that there was no “principled basis” for providing greater protection under the state constitution than under the federal one. To sort of see just what a “principled basis” might look like Justice Wright listed some factors:
(1) the text of the state Constitution, (2) the history of the state constitutional provision, (3) relevant state case law, (4) the text of any counterpart in the U.S. Constitution, (5) related federal precedent and relevant case law from other states that have addressed identical or substantially similar constitutional language, (6) policy considerations, including unique, distinct, or peculiar issues of state and local concern, and (7) the applicability of the foregoing factors within the context of the modern scheme of state jurisprudence.
Kahn v. Griffin, 701 N.W.2d 815 (Minn. 2005). She went on to say that the court would extend greater protection under the state constitution only:
(1) when the United States Supreme Court “ ‘has made a sharp or radical departure from its previous decisions’ and we ‘discern no persuasive reason to follow such a departure’ ”; (2) when the Court has “retrenched on a Bill of Rights issue”; or (3) when the Court precedent “ ‘does not adequately protect our citizens’ basic rights and liberties.’ ”
Rew v. Bergstrom, 845 N.W.2d 764 (Minn. 2014). The court then examined each of these possibilities and rejected them.
Justice Lillehaug – who knew of this libertarian streak? – railed against the government tyranny of trash collection. The government sets the date for trash pickup. The government dictates the container into which citizens’ trash must be deposited. The government requires that the container be placed just so in order to be collected. And so on. Garbage, he goes on to suggest, is a low tech smart phone:
At different times, people dispose of drug bottles, birth control devices, sanitary products, printouts of emails, check registers, photos, and whatever they have recently read or eaten. It is the very privacy—the intimacy—of this personal information that makes it of great interest to others, ranging from law enforcement officers to private investigators to neighborhood snoops.
So get a warrant. Until an individual’s garbage has become so intermingled as to lose its identity and meaning, there remains a reasonable expectation of privacy in the contents of an individual, government mandated, trash barrel.
Now, that’s trash talk.
Monday, March 9, 2015
Sunday, March 8, 2015
State v. Schmid, Minn.S.Ct., 2/25/2015. It is a misdemeanor offense to “take” deer without a license.
A person may not take a deer without a license.
“Taking” is a statutorily defined term:
"Taking" means pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, or netting wild animals, or placing, setting, drawing, or using a net, trap, or other device to take wild animals. Taking includes attempting to take wild animals, and assisting another person in taking wild animals.
A game warden found Mr. Schmid in a deer blind in a deer-hunting area during deer hunting season. He was dressed in blaze orange clothing. He was armed with a shotgun loaded with deer slugs. He was not in possession of a license to hunt deer. He said that he didn’t need a license because hanging out in a deer blind was not “pursuing” game without a license, which is one of the activities the statute prohibits.
The Court of Appeals said that what Mr. Schmid was doing when the DNA officer wondered by was “taking a deer without a license.” Read about that here. The Supreme Court, in a unanimous opinion by Justice Lillihaug that is too, too clever by half concurs. “Taking” a deer means, well, taking a deer.
Just why the court decided to devote countless hours to produce an eighteen page opinion is somewhat obscure. In reaching the same conclusion the court of appeals took us on a history lesson about the meaning of “take.” It would seem that Justice Lillihaug didn’t care for that approach, instead taking a more traditional statutory construction approach. If the statue’s not ambiguous then apply the plain meaning of the statutory text. The justices concluded that the statute is not ambiguous and that its plain meaning sufficiently takes in hanging out in a deer blind.
Monday, February 23, 2015
Wednesday, February 18, 2015
In Deciding Motion For Judgment of Acquittal, Trial Court Must Apply the Two-Step Al-Naseer/Silverdnail Legal Analysis
State v. Sam, Minn.Ct.App., 2/17/2015. A state trooper made a traffic stop. Mr. Sam was the driver and R.S. was the front passenger. One thing led to another – there were no challenges to either the stop or the search of the vehicle – and the officers found marijuana and a firearm in the center console. There was methamphetamine in the glove box and on R.S.’s person. The state charged Mr. Sam with several offenses, two of which were possession of narcotics with a firearm enhancement and prohibited person in possession of a firearm. Mr. Sam stipulated that he was ineligible to possess a firearm. A jury convicted him of these two offenses.
Mr. Sam moved for a judgment of acquittal after the verdict. He said that there was insufficient circumstantial evidence to convict him of possession of the methamphetamine and the firearm. The trial court declined to apply the Al-Naseer/Silvernail two-step analysis of the sufficiency of circumstantial evidence, believing that this was an appellate standard of review that trial courts didn’t have to bother with.
The court of appeals says that the trial court is incorrect. Applying that two-step analysis,the court of appeals reverses both convictions. The state conceded that Mr. Sam was not a person who was prohibited from possessing a firearm. That was because he had been discharged from his conviction of felony escape from custody and he had had his civil rights restored.
The firearm was still in play, however, because it enhanced the drug offense. The firearm was in the center console and the meth was in the glove box. No one argued that these items were in a place over which Mr. Sam exercised exclusive control so the state had to prove that Mr. Sam consciously exercised dominion and control over the two items of contraband. The court concludes that the state failed to meet that burden.
As it turned out, it was R.S. whom the trooper saw squirming around in the passenger seat as the stop occurred; the trooper didn’t see Mr. Sam do anything other than drive the car. Ammunition for the firearm was in a backpack in the back seat and the meth in the glove box was directly in front of R.S., who had more meth in his wallet. The officers found no drugs on Mr. Sam’s person. These facts, the court concluded, are not both consistent with guilt and inconsistent with any rational hypothesis other than guilt. The narcotics could have been in the car when Mr. Sam borrowed it, or R.S. may have put the narcotics in the vehicle. Because there are reasonable inferences from the circumstances proved that are inconsistent with Mr. Sam having consciously exercised dominion and control over the narcotics the state failed to meet its burden of proving constructive possession.
Although not an issue presented to the court here, the court does teasingly discuss whether a jury instruction that incorporates the Al-Naseer and Silvernail analysis ought to be given:
In ruling on the motion, the district court discussed whether a jury instruction may properly be given explaining the limitations on the use of circumstantial evidence. While the district court correctly recognized that several Minnesota appellate opinions have commented about the efficacy of incorporating the Al-Naseer and Silvernail analysis into jury instructions, see State v. Andersen, 784 N.W.2d 320, 340 (Minn. 2010) (Meyer, J., concurring and writing for three justices); State v. Tscheu, 758 N.W.2d 849, 871 (Minn. 2008) (Meyer, J. concurring); McCormick, 835 N.W.2d at 505 n.2, appellant did not argue to the district court, and does not argue on appeal, that the jury instructions were erroneous or insufficient. The absence of a jury instruction concerning the limitations on the use of circumstantial evidence elevates the importance of the district court’s proper evaluation of a motion for judgment of acquittal in circumstances such as are present here.
Sunday, February 15, 2015
State v. Bernard, Jr.,, Minn.S.Ct., 2/11/2015. This is the long awaited DUI test refusal opinion. Bernard, Jr. said that the refusal statute is unconstitutional because it makes criminal the exercise of a right to refuse to consent to an unconstitutional search. Whether in a particular case the submission to a breath test is an unconstitutional search turns largely on how (or how far) one reads the McNeeley opinion. McNeeley upended what had been the prevailing view that Schmerber established pretty much an unwritten rule that the natural dissipation of alcohol in the body was a sufficient exigency to permit a forced breath test without a warrant. The five justice McNeeley majority said, no, that's not what Schmerber meant. The cop on the scene of a DUI arrest needs a warrant unless the circumstances of that arrest make that an unreasonable endeavor.
So, just as Schmerber did not - apparently - always dispense with the warrant requirement because of dissipation McNeeley does not always obligate a warrant because of dissipation.
A driver's refusal to submit to alcohol content testing is to go down the rabbit hole. Even drunks out on the roads who are annually causing roughly thirty percent (30%) of highway deaths nationally cannot be constitutionally punished for the exercise of a constitutional right. If McNeeley requires a warrant in the particular circumstances under review then the refusal to blow into the tube is constitutionally protected.
The court of appeals thought it could climb out of the rabbit hole by asking whether the cop on scene could have obtained a warrant. What came to be known as the "virtual warrant" was surely not going to survive and it did not. In its stead, Chief Justice Gildea, for five members of the court, extends a well known exception to the warrant requirement - search incident to lawful arrest - to extract the very breath out of your lungs. Back down (deeper) into the rabbit hole.
In the days between Schmerber and McNeeley, lower courts more or less glossed over just what the justification was for a forced alcohol test without a warrant. Schmerber, at least as it came to be applied, didn't require paying much attention to articulating a justification. Schmerber rather quickly morphed into a convenient "rule of thumb" that the dissipation of alcohol was enough to support the forced alcohol test without a warrant. Those sanguine days are, of course, now gone. After McNeeley, a warrant may be the default but McNeeley may still let the magistrate get a lot of shut eye.
In the interim between Schmerber and McNeeley a small handful of courts did say, without much thought, that a forced alcohol test without a warrant is a "search" incident to a lawful arrest. And a reasonable one at that. Schmerber did not say that; what it did say was:
Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.
See, generally, "Do Warrantless Breathalyzer Tests Violate the Fourth Amendment?." (Sorry, Westlaw subscription required.).
Justices Page and Stras, penning a joint dissent, were horrified by the adoption of this rationale. It finds no support from the U.S. Supreme Court and most of the opinions that have relied on this theory are before McNeeley and so are of dubious validity.
It's a disconcerting theory on which to rely for sure. While routine trips to the local ER for prostate exams or other body cavity intrusions of suspects doesn't seem to be on the horizon, what of more routine, less invasive intrusions? DNA cheek swabs? Or Heimlich maneuvers to force the expulsion of drugs from an arrestee's mouth? Cf. State v. Hardy, 577 N.w.2d 212 (Minn. 1998). Genital swabs? Cf. State v. Zornes, 831 N.W.2d 609 (Minn 2013). It was not lost on any of the justices that just last term the Supreme Court said that cops need a warrant to view the contents of a cell phone. That is not required, say five members of the Minnesota Supreme Court, to "view" an exemplar of breath in order to measure alcohol content. The juxtaposition of the constitutional protection afforded to one's "selfies" and one's breath is jolting. Bernard, Jr. creates the very "bright line rule" that McNeeley just rejected.
Which begs the question, did the court of appeals really get it so wrong, or did they just answer the wrong question? McNeeley asks whether the cop's decision to forgo getting the magistrate out of bed in the middle of night to sign (actually or electronically) a search warrant was reasonable under all the circumstances? Not whether the magistrate would have signed the warrant but whether it was reasonable to dispense with finding out. Was it really necessary for Justice Gildea to significantly expand the breadth of "search incident to lawful arrest" to save the refusal statute? Is not the analysis now required under McNeeley - a totality of circumstances analysis - the same whether the suspected drunk driver blew or refused to blow?
If asked to do so, Bernard's expansion of the search incident doctrine, in the face of Riley and Gant, both of which circumscribed the reach of the doctrine, may well provoke SCOTUS once again to take a look at Minnesota's handiwork.
Tuesday, February 10, 2015
Friday, February 6, 2015
No Constitutional Right to Morrissey Advisory During Revocation Hearing; Court Avoids Issue of Waiver of Those Rights
Monday, February 2, 2015
Sunday, February 1, 2015
No Sixth Amendment Violation From A Defendant’s Request to Close the Courtroom Because Closure Did Not Seriously Affect the Fairness of the Judicial Proceedings
State of Minnesota v. Benton, Minn.S.Ct., 1/28/2015. During Mr. Benton’s jury trial he made two requests to the trial court to close the courtroom. The trial court granted both requests without objection by the state. During the first courtroom closure Mr. Benton complained about some testimony that had been received in evidence and about his dissatisfaction with his trial counsel. During the second courtroom closure Mr. Benton asked to be absent from that day’s proceedings. During that discussion Mr. Benton was apparently in restraints and dressed in a jail jumpsuit.
On appeal, Mr. Benton said that these courtroom closures violated his Sixth Amendment right to to a public trial. Justice Anderson, writing for a unanimous court, rejected this argument. Justice Anderson did so for two reasons: first, Mr. Benton invited the alleged error and the alleged error did not seriously affect the fairness, integrity,or public reputation of the judicial proceedings. This “invited error” doctrine has been applied in courtroom closures in the past. State v. Kortness, 284 Minn. 555, 170 N.W.2d 210 (1969). Even in an “invited error” situation, an appellate court is still required to review the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Such review is akin to plain error review. Mr. Benton not only consented to the courtroom closures he requested them. He made the requests in the belief that they would benefit his defense. Mr. Benton cannot, therefore, meet the “seriously affect” test.
Mr. Benton also complained about the admission of relationship evidence. The court had admitted such evidence that was against persons other than the victim of the offense for which he was on trial. He said that such non-victim relationship evidence should not have been admitted and that the probative value of that evidence was substantially outweighed by the danger of unfair prejudice. Justice Anderson did not say whether admission of this evidence was error because in the court’s view admission of this evidence did not significantly affect the verdict.
The state had charged Mr. Benton with first degree domestic abuse murder, which requires proof of a “past pattern” of domestic abuse. On his motion, the trial court bifurcated that element of first degree domestic abuse murder from the other elements. Despite the bifurcation, the trial court admitted relationship evidence during both phases of the trial. Justice Anderson didn’t seem to think this mattered, even though the upshot was to vitiate the bifurcation; the whole point of the bifurcation was to keep relationship evidence out of play during the jury’s determination of guilt/innocence of the actual homicide. The Justice avoids this problem by eschewing deciding whether admission of the relationship evidence – regardless of when it came in – was an error at all.
Monday, January 26, 2015
Wednesday, January 21, 2015
Monday, January 19, 2015
State v. Salyers, III, Minn.S.Ct., 1/14/2015. Officers raided Mr. Saylers’ home under authority of a search warrant to search for stolen property. No one was home during the search. Officers found a locked gun safe in a bedroom. Inside, the officers found three firearms. S.B., who had just moved out of Mr. Salyers’ home, told officers that she owned the gun safe and one of the firearms. A jury convicted Mr. Salyers. On appeal, the court of appeals said that a person possesses “the readily accessible firearms inside a container under that person’s control.”
Justice Page affirms the court of appeals but rejects its reasoning. “Ready access” is too easy; case law has always said that constructive possession cases are “necessarily fact driven” and that they are not to be determined by examination of only one factor. The Justice cites several cases in which the trial court had placed special emphasis on a particular factor in its instructions, only to see those convictions reversed. While ease of access is one factor relevant to establishing constructive possession “it is not the sole factor or necessarily even the most important factor.” Rather, all of the factors that the court had previously identified in State v. Florine, 303 Minn. 103, 226 N.W.2d 609 (1975) were in play in determining constructive possession of items within a container:
In Florine, we held that to establish constructive possession, the State must show either (1) that the prohibited item was found “in a place under defendant’s exclusive control to which other people did not normally have access,” or (2) if the prohibited item was found “in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.”
Here, Justice Page concludes that the state present sufficient direct evidence that the firearms were in a place under Mr. Salyers’ exclusive control to which other people did not normally have access.
O’Connell v. State, Minn.Ct.App., 1/12/2015. The state charged Mr. O’Connell with one count of driving while impaired after his urine tested positive for amphetamines. After he lost his suppression motion he pled guilty. After that conviction became final, Mr. O’Connell filed a post conviction petition asking to be allowed to withdraw the guilty plea and be granted a new trial because the trial court’s failure to suppress the urine test, obtained without a warrant or voluntary consent “compelled him to plead guilty.” The post conviction court denied the petition and the court of appeals upholds that denial.
The court of appeals says that Missouri v. McNeely, 133 S.Ct. 1552 (2013) does not apply retroactively on collateral review of a final conviction. The court applied the retroactivity analysis from Teague v. Lane, 489 U.S. 288 (1989) and concluded that the rule from McNeely is a new rule; McNeely announced a rule that was not “dictated” by precedent existing at the time the conviction under attack became final. Such a new rule applies retroactively to final convictions only if the rule is a watershed rule of criminal procedure.