Wednesday, July 1, 2015
Restitution Statute Provides Exclusive List of Factors to Consider in Determining Restitution; A Victim's Conduct May Not Be Considered
Tuesday, June 30, 2015
When Accepting a Norgaard Guilty Plea Trial Court Need Not Make Express Finding of Strong Probability That A Defendant Would Be Found Guilty
Would you agree that if the fact finder, whether that was me or a jury, if we were in a trial and the prosecution called witnesses who would testify to what is in those police reports about what happened that night at your residence, that applying the presumption of innocence and 4 burden of proof beyond a reasonable doubt, if all that information came out, that you would be convicted of that Domestic Assault By Strangulation?
a factual basis [may also] be established by other means: when a defendant enters an Alford/Goulette plea and when a defendant enters a Norgaard plea.” Id. A defendant enters an Alford/Goulette plea if he maintains his innocence but “reasonably believes, and the record establishes, the state has sufficient evidence to obtain a conviction.” Ecker, 524 N.W.2d at 716 (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)); see also State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977). A defendant enters a Norgaard plea if he “claims a loss of memory, through amnesia or intoxication, regarding the circumstances of the offense” but the record establishes that “the defendant is guilty or likely to be convicted of the crime charged.” Ecker, 524 N.W.2d at 716; see also State ex rel. Norgaard v. Tahash, 261 Minn. 106, 112-14, 110 N.W.2d 867, 871-72 (1961).
Saturday, June 27, 2015
Crime of Clergy Sexual Conduct Does Not Require Proof That Clergy Had Knowledge that Complainant Sought or Received Religious Advice
A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists: . . . .
(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:
(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense . . . .
Thursday, June 25, 2015
A Pattern of Making False Claims of Self Defense Is Admissible as Spreigl Evidence To Rebut Claim of Self Defense
Monday, June 22, 2015
Wednesday, June 17, 2015
Monday, June 15, 2015
Wednesday, June 10, 2015
The State Need Not Always Present Evidence of Scientific Testing of Suspected Narcotics to Survive a Sufficiency Challenge
[F]act finders must consider and weigh the reliability of the state’s chemical-identity evidence in each case; a fact finder can reject as unreliable a proffered method of scientific testing; a fact finder may determine identity of a drug beyond a reasonable doubt based on reliable nonscientific evidence; ...
Minn.Stat. 152.021, subd 1(3).A person is guilty of controlled substance crime in the first degree if:. . . .(3) on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of 50 grams or more containing amphetamine, phencyclidine, or hallucinogen or, if the controlled substance is packaged in dosage units, equaling 200 or more dosage units.
Monday, June 8, 2015
First, the defendant or an accomplice was committing the crime of burglary. This element is satisfied if there is proof beyond a reasonable doubt that the defendant or an accomplice entered a building without the consent of the person in lawful possession and intended to commit or committed a theft while in the building.
Where Concealment of Body is Part of Single Behavioral Incident and Committed in Particularly Serious Way Then Guidelines Authorize Upward Departure
more serious than the typical second-degree unintentional murder because family and friends of a victim suffer additional trauma by not knowing whether their relative or friend is dead or alive, and concealment is contrary to the proper, respectful treatment due to the remains of a deceased person.Justice Dietzen insists that this is not about particular cruelty; it's about a-typicality. (But, then again, a homicide followed by concealment of the body make up a pretty small subset of all homicides, so it's fair to anticipate that the state is going to assert in just about every homicide followed by concealment of the body that the offense qualifies for a departure. Moreover, the precise "a-typicality" is the "cruelty" to the survivors, which is always going to be present, at least in the court's mind.)
Monday, June 1, 2015
Wednesday, May 27, 2015
Tuesday, May 26, 2015
Subdivision 1. Definition. Defamatory matter is anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.Subd. 2. Acts constituting. Whoever with knowledge of its defamatory character orally, in writing or by any other means, communicates any defamatory matter to a third person without the consent of the person defamed is guilty of criminal defamation and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
Monday, May 25, 2015
State v. Fraga, Minn.S.Ct., 4/22/2015. This is a horrific crime – essentially the stomping to death of a two year old - that is now on its way back to the trial court for a third time, this time because the trial judge was perhaps a bit too impatient to seat a jury and the prosecutor was a bit too aggressive in wanting to keep a particular juror. In, of all things, a unanimous opinion, Justice Lillehaug pens a strong opinion about juror bias for this ever whimsical court.
During jury selection for the retrial, Mr. Fraga took the position that any potential juror who knew that he had been convicted in the first trial should automatically be excused for trial. The trial court seated two jurors who knew that the first trial had resulted in a conviction. Adopting the defense’s position would be an extension of the doctrine of implied bias, which assumes that certain relationships or experiences create a mindset that cannot be changed or set aside. See Williams v. State, 764 N.W.2d 21 (Minn. 2009); Rule 26.02, Subd. 5 of the rules of criminal procedure. The court is unwilling to extend this doctrine to potential jurors whose apparent sole disqualification was knowledge of the outcome of Mr. Fraga’s first trial. In large part, the court reaches this result by its literal reading of the rule, which it says provides “the exclusive grounds to challenge for implied bias.”
Also during jury selection the trial court seated “Juror M.” Mr. Fraga insisted that Juror M had expressed actual bias and had not been adequately rehabilitated. The trial court sat this juror anyway. Permitting a biased juror to serve is structural error requiring automatic reversal. State v. Logan, 535 N.W.2d 430 (Minn. 1995).
Juror M’s mother-in-law was a nurse who had worked in the emergency room at the hospital where the two year had been taken. Juror M thus knew about the case, had read about it, had discussed it with family or friends, including the case details. When the trial court asked him whether he could put all of that aside and decide the case solely upon what was presented in the courtroom, Juror M said, “Yeah, I guess.” When the trial court pressed with the question, “Do you know of any reason that you could not be fair and impartial?” Juror M said, “Besides the fact I know about the case, I don’t, no. I think it would be hard.” This juror also said that he knew two witnesses and that he would find their testimony more believable based on that familiarity. He walked that assertion back just a bit by telling the prosecutor that “I can form my own opinion, I guess.” Finally, Juror M said, “Yes.” to the prosecutor’s leading question, “So, you would be able to base your decision on what you see and hear in the courtroom?”
By this time the defense was out of peremptory challenges. The trial court denied the defense motion to remove Juror M for cause. Even then the court asked Juror M more questions, including, “Is there any reason you can think of you couldn’t be fair and impartial to both sides in this case?” Juror M said, (one supposes to the disappointment of the trial judge and prosecutor) “I don’t think so.”
Justice Lillehaug concludes from all this back and forth with Juror M that the juror had expressed “actual bias.” The remarks, “Besides the fact I know about the case, I don’t, no. I think it would be hard.” were enough for the court to make this conclusion. The other “I guess” remarks just solidified this conclusion. Justice Lillehaug also concludes that Juror M also was not adequately rehabilitated, which requires that the prospective juror state “unequivocally” that he will set aside preconceived notions and be fair. Logan. The prosecutor’s final leading question just didn’t get the job done, especially in the midst of all those “I guess” utterances.
Under Logan, Juror M, having expressed actual bias, can’t sit on the jury and if he does it’s structural error that requires a new trial. The state pleaded with the court to find a workaround to Logan to avoid yet another trial but the justices were unwilling to do so. Still and all, the court was embarrassed to have reversed the conviction:
We understand that the relatives of a little girl and others in the community of Worthington have suffered a grievous loss. We understand that they have endured the pain of two trials. We recognize that their grief may be sharpened by the decision today. Still and all, it is a bedrock principle of our law that for a person to be convicted of any crime—major or minor—the jurors must be both impartial and unanimous. Our constitutions and the fairness they embody require that, if we cannot say that each and every juror was impartial, we cannot say that justice was done.
It’s tempting to say that by the court’s unyielding fealty to literalism the court hoisted itself by its own petard. Juror M just kept saying, “I guess” way too many “Minnesota nice” times for the court to brush aside. (“To guess” means to “make a conjecture” about something, or to indicate that although one thinks or supposes something it is without any great conviction or strength of feeling.” ) After all, given the broad discretion that trial court’s have in ascertaining a potential juror’s qualifications to serve it would have been just as easy for the justices to conclude that despite the verbalized equivocations the trial court had the best seat in the house to discern Juror M’s true state of mind.
But wait, there’s more! Mr. Fraga also complained about the admission of evidence under Minn.Stat. 634.20, so called “relationship evidence.” The court had previously adopted this legislative rule of evidence for similar conduct of the accused against the same victim. State v. McCoy, 682 N.W.2d 153 (Minn. 2004). The court now extends adoption of this legislative rule of evidence to include similar conduct of the accused against other family or household members.
Wednesday, May 20, 2015
Brown v. State of Minnesota, Minn.S.Ct., 5/20/2015. This is Mr. Brown’s fifth petition for post conviction relief. This is also his fourth published opinion. He said this time that he could file this petition, which attacked his guilty plea and several other things, under any of three statutory exceptions to the two year limitations period established under Minn.Stat. 590.01, subd. 4(a): a mental disease precluded a timely assertion of his claim; his claim was based on newly discovered evidence, and the interests of justice required consideration of his claim. Justice Dietzen, for the entire court, rejects this assertion.
As to the assertion of a mental disease precluding a timely filing of his claim the court simply concurs with the post conviction court that Mr. Brown hasn’t established that assertion from the documents that he submitted. He also failed to establish the “actual innocence” prong of the newly discovered evidence exception. Finally, Mr. Brown also did not establish that it was in the interests of justice to hear his claim.
Most, if not all, of Mr.Brown’s claims herein had been raised in one fashion or another in his previous petitions. The court continues to duck the question whether the Knaffla rule (and its exceptions) remains cognizable under the statutory limitations regime.
Continuance of Juvenile Delinquency Proceeding, Accompanied by Child’s Admission to Charged Offense, Is a Continuance Without Adjudication, Which Limits Jurisdiction to 180 Days.
In the Matter of the Welfare of: C. J. H., Child. Minn.Ct.App. 5/18/2015. Juvenile court has its own set of rules and that’s what this case is all about. Specifically, under those rules did C.J.H. get a continuance for dismissal in which case the juvenile court maintained jurisdiction until C.J.H. hit his nineteenth birthday? Or, did C.J.H. get a continuance without adjudication in which case the juvenile court could maintain jurisdiction only for one hundred eighty days from the date of the order?
The state petitioned C.J.H. with third degree criminal sexual conduct, attempted third degree criminal sexual conduct, and consumption of alcohol by a minor. At his first appearance, C.J.H. admitted facts which established his guilt of attempted third degree criminal sexual conduct. He also waived his right to a speedy trial, to remain silent, to confront witnesses, and conceded that he was waiving his right to defend himself at a later date. The juvenile court then said something to C.J.H. that everyone in the courtroom understood to amount to a continuance for dismissal until his nineteenth birthday.
Sure enough, C.J.H. violated the conditions of the continuance but he did so more than one hundred eighty days from the date of the order. C.J.H. said that what the juvenile court had actually done back at the first appearance was to give him this continuance without adjudication which meant that because the one hundred eighty days was up the court no longer had jurisdiction. The juvenile court said, no, everyone knew damn well that what had happened was a continuance for dismissal, stayed to age nineteen.
The court of appeals says that C.J.H. has it right. A continuance for dismissal, which is authorized under Rule 14, is a continuance without a finding that the allegations of the petition have been proved. The kid does have to waive his right to a speedy trial. Here, C.J.H. did that and then some; he waived just about everything that could be waived to the point of agreeing that if he got hauled into court on a violation all that had to happen for adjudication was to read the transcript from the first appearance.
On the other hand, a continuance without adjudication under Rule 15 does require that the juvenile court find that the allegations have been proved. Although the juvenile court did not say the exact magic words – the court finds, blah blah blah - it did hear and accept C.J.H.’s admission to the elements of attempted CSC, and it did say that C.J.H.’s admissions established a factual basis for the charged offense.
The upshot is that the court of appeals concluded that what C.J.H. did looked for all the world like a Rule 15 continuance without adjudication, which limits the juvenile court’s jurisdiction for to hundred eighty days. The court thus had no jurisdiction to entertain the violation and to adjudicate guilt. That adjudication is thus vacated.
Friday, May 15, 2015
Monday, May 11, 2015
Enlarging a Preexisting Hole in a Door Screen in Order to Gain Entry Into Home Supports Burglary Conviction; No Abuse of Discretion in Award of Moving Expenses to Burglary Victim
State v. Rodriquez, Minn.Ct.App., 5/11/2015. Mr. Rodriquez went over to V.M.’s home; his friend wasn’t there. So, Mr. Rodriquez reached his finger through a small hole in the porch door screen, enlarged the hole so that he could reach his hand in and unlock the door. For that a jury convicted Mr. Rodriquez of burglary in the second degree.
A bit later Mr. Rodriquez went over to H.B.’s home where he eventually encountered H.B.’s parents inside. H.B.’s Mom pushed Mr. Rodriquez out of a window. For this behavior, a jury convicted Mr. Rodriquez of trespass.
On appeal, Mr. Rodriquez said that the state didn’t prove that he committed a burglary of V.M.’s home. This is because he committed the predicate offense, criminal damage to property by tearing the screen, either before or as he entered the building. (The state did not allege that he had entered without consent with intent to commit a crime.) The court rejects this assertion. The court simply isn’t willing to get that far into the weeds. Just like sex, “any penetration, however slight” suffices. Mr. Rodriquez committed the predicate crime when he put his finger through the hole in the screen and made the hole larger in order to gain entry.
At sentencing, H.B.’s Mom sought restitution for moving expenses. She said that after the burglary she could no longer live in the home and so the moved. Mr. Rodriquez said that the moving expenses were not directly caused by his actions and thus not a cognizable item of restitution. A trial court has broad discretion in ordering restitution. However, the loss must be “directly caused by the conduct for which the defendant was convicted.” State v. Latimer, 604 N.W.2d 103 (Minn.Ct.App. 1999). And, the loss must not be “so attenuated in its cause that it cannot be said to result from the defendant’s act.” State v. Palubicki, 727 N.W.2d 662 (Minn. 2007). Here, the trial court found that H.B.’s Mom suffered psychological trauma as a result of Mr. Rodriquez’s criminal conduct and so the court did abuse its discretion in awarding the moving costs.
In a CSC 3 by Force Prosecution, Trial Court Must Instruct on Statutory Definition of “Force”. No Abuse of Discretion in Limiting Questioning of Complainant About Mental Health History
State v. Moore, Minn.Ct.App., 5/11/2015. A jury convicted Mr. Moore of third degree criminal sexual conduct. That state’s only theory of liability was Mr. Moore used “force” to accomplish the crime. The trial court, however, did not instruct the jury on the statutory definition of “force”. On appeal, Mr. Moore argued for the first time that this was a mistake which entitled him to a new trial.
The court of appeals concludes that the word “force” in the statute is “meaningfully different from the lay definition” of the word and so the omission of the definition was error. However, this error was neither “plain” not did it affect Mr. Moore’s substantial rights and so the error was harmless.
Here’s the statute’s definition of “force”:
the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.
This definition is narrower than the lay definition that does not reference bodily harm, etc. So, a jury could conclude that one is guilty of criminal sexual conduct in the third degree, force, by the mere exertion of “strength,” “energy,” or “power” against a victim without any actual or attempted “bodily harm.” Unfortunately for Mr. Moore, because neither the pattern jury instructions not prior case law explicitly require the trial court to instruct on the statutory definition, this error was not “plain.” Lastly, it did not affect Mr. Moore’s substantial rights.
Before trial Mr. Moore’s counsel sought disclosure of the complainant’s psychotherapy records. There’s a statute for that, Minn.Stat. 609.347, subd. 6:
(a) In a prosecution under sections 609.342 to 609.3451 . . . , evidence of the patient’s personal or medical history is not admissible except when:
(1) the accused requests a hearing at least three business days prior to trial and makes an offer of proof of the relevancy of the history; and
(2) the court finds that the history is relevant and that the probative value of the history outweighs its prejudicial value.
(b) The court shall allow the admission only of specific information or examples of conduct of the victim that are determined by the court to be relevant. The court’s order shall detail the information or conduct that is admissible and no other evidence of the history may be introduced.
The trial court examined the records in camera and then ruled that the parties could inquire about certain symptoms and behaviors of the complainant’s mental health diagnosis, but could not ask her what that diagnosis was. The court of appeals affirms that ruling as not being an abuse of discretion.
A Juvenile’s Aggregate Sentence of 74 Years - Two Life With Possibility of Release Sentences Plus a 258 Month Discretionary Consecutive Sentence Does Not Violate the Rule of Miller v. Alabama
Saturday, May 9, 2015
State v. Nodes, Minn.S.Ct., 5/6/2015. During a single plea hearing Mr. Nodes pled guilty to two counts of criminal sexual conduct which arose from separate behavioral incidents with separate victims. The court deferred acceptance of the guilty pleas and ordered a presentence investigation. At sentencing, the court accepted the two guilty pleas and then sequentially adjudicated Mr. Nodes guilty of each offense. The question then came up whether Mr. Nodes was required to serve a conditional release term of ten years or of life. When a court commits an offender who has a “previous or prior sex offense conviction” to prison for another criminal sexual conduct conviction the conditional release term is for life.
Both the trial court and the court of appeals said that when the court imposed the second sentence Mr. Nodes did not have a “previous or prior sex offense conviction.” That is, there was offense, offense, followed by conviction, conviction.
Justice Lillehaug, for the entire court, disagrees, and says that Mr. Nodes is subject to lifetime conditional release. A “conviction” includes a guilty plea that has been accepted and recorded by the court. There was no dispute that the trial court accepted Mr. Nodes’ guilty pleas, so the question became just when it had been “recorded by the court.” Although the court has said different things about when a conviction is “recorded” most recently it’s said that the recording occurs when the court accepts the plea and adjudicates guilt. So, as soon as the trial court accepted Mr. Nodes’ plea to the first count and then adjudicated guilt he was “convicted.”
See where this is going? As soon as the trial court accepted the plea to the first count and adjudicated guilt on that count that conviction was no longer a present offense but was a past conviction. That first conviction became a “prior sex offense conviction. After the court then took a breach before adjudicating guilt on the second count, what had just become a “prior sex offense conviction” triggered the lifetime conditional release term.