Monday, August 3, 2015

Advice to Alien That Plea to CSC 3 "Could" Lead to Deportation Adequate

Herrera Sanchez v. State, Minn.Ct.App., 8/3/2015.  WARNING: This post contains explicit references to Padilla v. Kentucky, 130 S.Ct. 1473 (2010).  The state charged Mr. Herrera Sanchez with two counts of third degree criminal sexual conduct and one count of furnishing alcohol to a minor.  He pled guilty.  Mr. Herrera Sanchez was lawfully in the country but he was not a citizen. Here's how the immigration consequences colloquy went during the plea hearing:
Q: And before signing [the plea agreement] did the two of us have an opportunity to review it and you had a chance to ask me any questions that you may have had?
A: Yes. . . . .
Q: Now, are you a citizen of the United States?
A: No.
Q: All right. Do you understand that as a result of a plea in this particular matter that, if you’re not a citizen of the United States, a plea of guilty could result in either deportation, exclusion from admission to the United States, or denial of citizenship?
A: Yes.
Q: Knowing all those rights, do you still want to go forward with your plea?
A: Yes.
The question in this post conviction petition is whether trial counsel gave "clearly erroneous" advice about the immigration consequences of Mr. Herrera Sanchez's guilty plea because counsel said that by pleading guilty he "could" be deported.  After taking testimony on this question, the post conviction court found that counsel had told Mr. Herrera Sanchez that he "was looking at deportation" following the plea, and that this was effective assistance of counsel.

Padilla said that when the applicable immigration statute was not "succinct and straightforward" the counsel need do no more than advise a noncitizen that pending criminal charges may carry a risk of adverse immigration consequences.  On the other hand, when the deportation consequences are "truly clear" and counsel can "easily determine" those consequences "simply from reading the text of the statute" then there is a duty to give more explicit advice about the likelihood of deportation.  

The immigration statute says that any alien who is convicted of an aggravated felony is deportable.  8 U.S.C. 1227(a)(2)(A)(iii).  It gives several examples of what it means by "aggravated felony," one of which is "sexual abuse of a minor."  Which is what Mr. Herrera Sanchez pled guilty to.  Mr. Herrera Sanchez said that third degree criminal sexual conduct fits this example of an aggravated felony to a T and so it was an easy job for counsel to have figured out that he would - not "could" - be deported.  The court of appeals, however, countered that the immigration statute doesn't define "sexual abuse of a minor" and the court could not find any case by a court "binding this one" that says that CSC 3 is an aggravated felony.   Never mind that the Board of Immigration Appeals thinks that CSC 3 is such an aggravated felony.  So, once again, the resort to the dictionary is enough to carry the day.  Counsel's performance met Padilla's requirements.

Mr. Herrera Sanchez also argued that the plea, itself, was inadequate to establish a factual basis because counsel utilized too many leading questions.  That goes no where because if the record contains sufficient evidence to support the conviction it survives a challenge.  

Sunday, August 2, 2015

Bernard"s "Search Incident to Lawful Arrest" Controls This Breath Test Refusal Challenge

State v. Bennett, Minn.Ct.App., 7/27/2015.  Mr. Bennett refused to submit to a breath test.  The trial court convicted him on a stipulated facts court trial after the court ruled that the test refusal statute does not violate the "unconstitutional-conditions doctrine."  To prevail on this doctrine Mr. Bennett needed to establish that the test refusal statute authorized an unconstitutional search.  State v. Netland, 762 N.W.2d 202 (Minn. 2009),abrogated in part by Missouri v. McNeely, 133 S.Ct. 1552 (2013).  

Well, of course, there's State v. Bernard, 859 N.W.2d 762 (Minn. 2015). Bernard said that a breathalyzer is a "search incident to lawful arrest" so the test refusal statute does not authorize an unconstitutional search after all.   (Bernard is pending a cert petition in the U. S. Supreme Court.)  That pretty much dooms Mr. Bennett's claim.  

Chief Judge Cleary concurred, to say that he believes that Bernard is limited to a warrantless breath test.  

Wednesday, July 29, 2015

Post Conviction Claims Procedurally Time Barred Under Knaffla

Carridine v. State, Minn.S.Ct., 7/29/2015. In this post conviction petition Mr. Carridine alleged ineffective assistance of trial and appellate counsel and newly discovered evidence based on affidavits of three individuals.  (You can read about the direct appeal here.)  The post conviction court granted an evidentiary hearing on the newly discovered evidence but summarily denied relief on all other claims.  After the hearing, the court denied the newly discovered evidence claim as well.

Three of the claims - admission of impeachment evidence, prosecutorial misconduct and ineffective assistance of trial counsel - were based on the trial record.  Chief Justice Gildea concludes that these claims either were or could have been raised on direct appeal and thus were procedurally barred by statute, Minn.Stat. 590.01, subd. 1,and by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).  The court again ducks the question whether the two exceptions of Knaffla survived the 2005 amendments to the post conviction statute.  Just to be safe, though, the court says that those exceptions don't entitle Mr. Carridine to any relief.

Mr. Carridine also alleged that his appellate counsel had been ineffective for not raising ineffective assistance of trial counsel, and for not raising prosecutorial misconduct.  Mr. Carridine had a long list of alleged failures by trial counsel.  Mr. Carridine said that trial counsel failed to:
hire or consult with an independent forensic expert; request forensic reports prepared by the State’s forensic expert in preparation for the trial; interview or subpoena two specific witnesses; hire a private investigator to track down additional witnesses; subpoena cellphone records of a key State witness, ... file motions to suppress evidence that was prejudicial to the defense; and review a surveillance tape prior to the pre-trial hearing, and object when a witness identified Carridine in the tape.
The court said that all of these alleged failures related to trial strategy, and that Mr. Carridine had provided no compelling reason to depart from the general rule that appellate courts do not review trial strategy for competence.  State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009).  Mr. Carridine also failed to show that there was prejudice - different outcome - had his trial counsel done all these things.  The court rather summarily dismisses the prosecutorial misconduct claims as lacking merit.

Finally, the court affirms the post conviction court's determination that Mr. Carridine's newly discovered evidence did not entitled him to relief.  The post conviction court found neither of the two witnesses who testified to be credible.  It seemed to strain credulity that these two guys had witnessed the homicide, decided not to come forward and then came forward years later when they just happened to be in the same prison as Carridine.

Actual Innocence Exception to One Year Federal Habeas Limitations Not Applicable to Minnesota Petition

Wayne v. State, Minn.S.Ct., 7/22/2015.  In this his seventh post conviction petition following his 1980's conviction for murder, Mr. Wayne argues that he is factually innocent, a claim that is not time-barred under the U.S. Supreme Court's decision in McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924 (2013).  McQuiggin said that a claim of actual innocence can overcome the one year limitations period on federal habeas petitions.  Justice Lillehaug said that's all fine and dandy but this is Minnesota, and we're not bound by that pronouncement about federal habeas.

In the alternative, Mr. Wayne said that all of his claims were timely under the "interests of justice exception" to the two year limitations period in Minnesota's post conviction statute.  This exception, however, is triggered by an "injustice" that caused the missing of the two year deadline and has nothing to do with the substance of the claimed injustice.  Sanchez v. State, 816 N.W.2d. 550 (Minn. 2012).  None of his claims in this petition satisfy that requirement.

Wednesday, July 22, 2015

A Sworn False Statement Made During a Trial is "Material" If It Is Merely Capable of Influencing the Decision Maker.

State v. Burnett, Minn.Ct.App., 7/20/2015.  Mr. Burnett testified during his trial on four counts of criminal sexual conduct.  Mr. Burnett denied any sexual conduct; and in doing so he claimed to have served four and a half "proud years" in the U.S. Army, which included overseas deployment, serious injury, receipt of two Purple Hearts and a medical discharge.  The jury was unable to reach a verdict.

In between the first trial and the second trial the state found out that all that stuff about military service was untrue.  Mr. Burnett did not testify at the second trial and a jury convicted him of three of the four counts.  At his sentencing hearing Mr. Burnett admitted that he had lied about his military service.

Thereafter the state charged Mr. Burnett with felony perjury, perhaps because it saw causation between the presence and absence of the false claims:  hung jury then conviction. The perjury statute requires the state to prove that Mr. Burnett had made a false statement that was "material" during his testimony in the first trial.

So, what's a "material" statement?  The perjury statute, Minn.Stat. 609.48, doesn't say.  What the statute does say is that it makes no difference that the declarant didn't know that the statement was material or believed it to be immaterial.  The statute also says that it doesn't matter whether the statement "affect[ed] the proceeding for which it was made."  Worth noting is that at least according to the jury instructions, JIG 22.02, "materiality" is a question of law:

You are instructed, as a matter of law, that if the statements were made, they were material.

With neither statutes nor state court opinions providing a definition of "material" the court of appeals looks not to the appellate court's favorite source of law - the dictionary - but to the U.S. Supreme Court.  (There are two dictionary definitions that are pertinent: "important, essential, relevant" or "significant, influential, or relevant, especially to the extent of determining a cause or affecting a judgment.") No matter. The U.S. Supreme Court has said that a false statement is "material" if it has "a natural tendency to influence, or [is] capable of influencing, the decision of the decision-making body to which it was addressed." Neder v. United States, 527 U.S. 1 (1999). Other federal court have made similar pronouncements on the definition of materiality.  The court of appeals adopts the Neder definition.  If Mr. Burnett's false statements of exemplary military service were capable of influencing the jury's verdicts in the criminal sexual conduct trial then those statements were "material." The dictionary's influence in fact gets replaced with the law's influence by conjecture.

And the court concludes that, indeed, Mr. Burnett's false statements about his military service were so capable.  The court agreed with the trial court that Mr. Burnett's false statements about his military service went to the issue of his credibility and were capable of influencing the jury's decision of who to believe -and thus its verdict - him or the victim (who was only six years old).  

Tuesday, July 21, 2015

Post Conviction Court Properly Denied Petition on Limitations Grounds and The Merits

Weitzel v. State, Minn.Ct.App., 7/20/2015.  Mr. Weitzel filed this petition for post conviction relief well after the expiration of the two year limitations period.  He argued in his petition and accompanying memorandum that the "interests of justice" exception applied and that under it he was entitled to relief. The state filed a response which said "No, you're not." The state's response said nothing about the timeliness of the petition.

The post conviction court denied the petition.  The court raised the limitations issue on its own and also addressed the merits of the petition under the "interests of justice" exception.  The court said that Mr. Weitzel had not filed the petition within two years of the accrual of his claim, and that he had not satisfied the requirements of the interests of justice exception to the two year limitations period.

Enactment of a statute of limitations for filing post conviction petitions was supposed to reduce the litigation surrounding post convictions claims.  Instead, all that's been accomplished is either to change the subject - is the petition time barred - or to add pages to opinions because of the need to address first the limitations question and then the merits of the petition.  Both the court of appeals and the supreme court spend inordinate amounts of time parsing just how the limitations provisions are supposed to work.  

For Mr. Weitzel, the court of appeals concludes that the state's silence about the timeliness of the petition did not amount to the intentional waiver of a defense of untimeliness.  While the post conviction court should have given the parties a heads up of what it was considering doing - denying the petition as untimely  - and allow them to stake out their positions it didn't really matter because the court went on to address the merits of the claim.  In essence, the court of appeals gives an advisory opinion on the limitations question and affirms the denial of the petition under the "interests of justice" provision.

Monday, July 13, 2015

Promoting Prostitution Crime Survives First Amendment and Over-Breath Challenges

State v. Washington-Davis, Minn.Ct.App., 7/13/2015.  A jury convicted Mr. Washington-Davis of multiple counts of prostitution-related offenses. On appeal, Mr. Washington-Davis said that the statute that criminalizes the solicitation and promotion of prostitution violates the First Amendment and the state constitution counterpart; and that the statute is facially overbroad because it criminalizes protected activity and speech.

On the First Amendment claim, the court of appeals does agree with Mr. Washington-Davis that the statute, Minn.Stat. 609.332, subd. 1a(1)-(2), is content-based regulation of speech.  For instance, the statute prohibits soliciting or inducing an individual to practice prostitution.  The court hauls out the dictionary to see what "solicit" and "induce" mean and decide that the definitions "implicate speech."  Same thing for another prohibited act, "promoting the prostitution of an individual."  Not all content-based regulation of speech if protected by the First Amendment, however. Yelling "Fire!" in a crowded room for instance.  Another is "speech integral to criminal conduct."  The solicitation and inducing going on here is for the criminal enterprise of prostitution so it's outside the protection of the First Amendment.

Mr. Washington-Davis also said that the statute was facially overbroad. He said that the statute criminalizes protected activities like "non-obscene films and photographs that depict sexual penetration or sexual conduct by consenting adults."  The court said, no, that making a film in which actors act out a sex act is for the purpose of making a film and not for the immediate purpose of satisfying sexual impulses which is the kind of act that the statute prohibits. Mr. Washington-Davis also said that the statute criminalized otherwise protected lap dancing.  The court, though, again said, no, that lap dancing as Mr. Washington-Davis defined it, was "lewd" and "lascivious" that is therefore "obscene" conduct that is not protected by the First Amendment.  And, even if lap dancing were not obscene there is no "substantial overbreadth."

Mr. Washington-Davis challenged the sufficiency of the evidence that he intentionally aided his brother and codefendant, Otis Washington.  The court goes through the circumstantial evidence drill required under State v. Ortega, 813 N.W.2d 86 (Minn. 2012) and State v. Silvernail, 831 N.W.2d 594 (Minn. 2013), and concludes that the evidence was sufficient after all.  

The trial court did mess up the accomplice liability instruction by failing to include the Milton language that the jury must find both a defendant's knowledge and  intent in aiding the commission of the offense. However, because there was no objection to this omission review is under plain error. Mr. Washington-Davis could not persuade the court of appeals that the error affected his substantial rights.

The court of appeals affirmed the trial court's ruling on several "prior bad acts" pieces of evidence. The court also vacates a conspiracy count because the other counts of conviction and sentence all took place with the same time frame stated for the conspiracy.  And, the conspiracy and the other counts within the same time period were motivated by the same objective and thus were part of a single behavioral incident.   

Multiple Children in The Vehicle Is Still Only A Single Aggravating Factor Under DWI Statute

State v. Fichtner, Minn.Ct.App., 7/13/2015.  The state charged Ms. Fichtner with driving while impaired, test refusal and child endangerment.  A deputy stopped Ms. Fichtner's van on a report from her parents that she was driving intoxicated with three kids in the vehicle.  A jury convicted her of all three offenses and the trial judge imposed three sentences.

At trial and on appeal Ms. Fichtner challenged the constitutionality of the test refusal statute.  State v. Bernard, 844 N.W.2d 41 (Minn.Ct.App. 2014), affirmed on other grounds, 859 N.W.2d 762 (Minn. 2015) pretty much shuts the door on that challenge in state court.  

This was Ms. Fichtner's first DWI charge which would be misdemeanor fourth degree DWI.  The state, however, charged her with second degree DWI because of the presence of "one or more" aggravating factors, namely the three kids in the van.  The DWI laws say that "having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender" is an "aggravating factor." Now, each qualified prior impaired driving incident within the specified time period counts as a separate aggravating factor.  But, there's no statute that says whether multiple children in the vehicle may be counted as multiple aggravating factors.  The state went ahead and counted each of the three children anyway as separate aggravating factors, which upped the charge from fourth degree to second degree DWI.  

The court of appeals concludes that having more than one kid in the car does not allow the judge to aggregate aggravating factors.  One kid or a bus load, doesn't matter, it's only one aggravating factor. If the legislature had wanted each child to count as a separate aggravating factor it could have said so, as it did for each qualified prior impaired driving incident. The upshot is that Ms. Fichtner's second degree DWI gets reduced to a third degree DWI conviction.

The trial court admitted the 911 recording both as substantive and impeachment evidence.  The court of appeals concludes that although the recording was not admissible under Rule 801(d)(1)(A) because it was not made under oath, the erroneous admission was harmless error under a Crawford analysis.

Finally, the state agreed that Ms. Fitchner's conduct was part of a single behavioral incident and so she could only be sentenced on one of the three gross misdemeanors.  The court of appeals sent the case back to the trial court to decide which of the three was the "most serious."

State's Unilateral Dismissal As a "Work Around" For Court's Denial of Continuance Motion Is Act of Bad Faith That Precludes Recharging

State v. Olson, Minn.Ct.App., 7/13/2015.  On the date set for trial on Mr. Olson's driving while impaired - apparently a misdemeanor - the state's only witness, the arresting trooper was "voluntarily absent."  The state asked for a continuance.  The trial judge denied that request.  The prosecutor then said, well then, I'll just dismiss and refile.  The state did exactly that.  Mr. Olson moved to dismiss the refiled charge.  The trial judge denied that motion, concluding that the state had not dismissed the original charge in bad faith.  

The court of appeals reverses the trial court.  Here's what the court said:
Because a prosecutor does not act in good faith under rule 30.01 when he dismisses a criminal charge merely to refile it, effectively nullifying the district court’s refusal to grant his motion to continue, the district court erroneously concluded that the prosecutor acted in good faith.
The rule in play here, Rule 30.01, says that "The prosecutor may dismiss a complaint or tab charge without the court's approval ..." However, the court of appeals believed that this apparently unilateral authority to dismiss a Complaint or tab charge without court approval nonetheless must be exercised in good faith.  The court cites State v. Couture, 587 N.W.2d 849 (Minn.Ct.App. 1999), review denied, Minn.S.Ct. 1999) for this proposition.  What happened to Mr. Couture was just a bit different, however, than what happened to Mr. Olson.  The state initially charged Mr. Couture with gross misdemeanor driving after cancellation and misdemeanor no proof of insurance.  Later the state timely amended the complaint to charge what was then called aggravated driving under the influence of alcohol in lieu of the original charges.  Following his conviction Mr. Couture complained that the state could not recharge him because the initial charges had been dismissed for non-curable jurisdictional defects.  The appellate court disagreed with this assertion and instead concluded that the dismissal had been under Rule 30.01.  Under that rule the state was free to amend the complaint as it saw fit so long as it was not acting in bad faith.

Still, though, there is authority for the court's conclusion.  The court cites to federal authority, after which Rule 30 is modeled, to support its conclusion that this use of Rule 30 to effectuate a "do it yourself continuance" is an act of bad faith.  United States v. Hayden, 860 F.2d 1483 (9th Cir. 1988).  There the Ninth Circuit said, in interpreting a similar federal rule, that were the government to utilize the rule as a pretext to bypass the trial court's denial of a continuance request it would be acting in bad faith. The court of appeals also pointed to Minn.Stat. 631.02, which grants to the trial court the exclusive authority to grant continuances upon a sufficient showing of good cause.  The court mused that if the state can use Rule 30.01 to obtain a continuance denied by the court then this authority "is almost useless":
How could district court judges effectively manage their trial calendars if, in any criminal case and at any pretrial moment of the prosecutor’s choosing, the prosecutor could cite rule 30.01 to fashion the state’s own continuance? What is the point of a statute that requires the moving party to show “sufficient cause” for a continuance if one of the parties can use rule 30.01 to obtain a continuance without that showing? What is the significance of the district court’s discretion to deny a motion to continue if the court no longer possesses the authority to prevent the state from unilaterally granting itself a continuance? To allow the state to use the rule for the express purpose of evading the district court’s continuance denial would erroneously suggest that rule 30.01 and its federal counterpart were crafted to give only the prosecutor the means to obtain a continuance at will, leaving the defendant alone to submit to the district court’s calendar-management authority.

Sunday, July 12, 2015

Direct Appeal Is Proper Method By Which to Challenge Denial of Disqualification For Cause Motion; Asking Trial Judge To Recuse Himself or Herself Is Not Waiver of Right To Refer Disqualification to Chief Judge

State v. Finch, Minn.S.Ct., 7/8/2015.  At sentencing the trial court gave Mr. Finch a dispositional departure on an assault conviction.  The judge told Mr. Finch that if he had any probation violations of any of the conditions of his probation the judge would execute the prison time.  Mr. Finch, apparently a sporting fellow, called the judge’s bluff by getting hit with a probation violation.  Mr. Finch walked away from the workhouse and did not return.  The judge issued an arrest warrant and Mr. Finch turned himself in on the warrant.
When Mr. Finch came in for the revocation hearing his attorney moved to disqualify the judge for cause.  The judge denied that request and Mr. Finch’s alternative request to refer the disqualification motion to the chief judge for determination.  The trial judge eventually revoked Mr. Finch’s probation.  Mr. Finch challenged all that by means of this appeal. 
First, the state said that the only way to challenge denial of a cause disqualification motion was by writ.  Justice Lillehaug rejects this contention by distinguishing an appeal of a peremptory recusal from a appeal of a cause recusal.  Appeal of a peremptory appeal must be by writ.  State v. Dahlin, 753 N.W.2d 300 (Minn. 2008).  But not so for appeal of a cause removal. 
Next, the state said that Mr. Finch had waived his ability to have his disqualification motion referred to the chief judge – and thus be reviewed on appeal - by having first asked the trial judge just to give it up.  There is court of appeals precedent, however, which Justice Lillehaug adopts, that says that a party is entitled to ask the district judge directly for voluntary disqualification.  See State v. Poole, 472 N.W.2d 195 (Minn.Ct.App. 1991).  Justice Lillehaug says that under that precedent, combined with the rule, 26.03, subd. 14(3), asking the district judge first does not preclude referral to the chief judge.  There is no waiver by first asking the trial judge.
The court decided that review of the trial court’s error of not referring the disqualification motion to the chief judge is subject to harmless error rather than structural error.  Mr. Finch does not have to show, however, that the outcome of the proceeding – revocation of his probation – was prejudiced by the error; rather, he must show that the error affected his substantial right to a fair hearing before a decision maker who does not appear to favor one side or the other.  The trial judge’s shot across the bow at sentencing – if you come back with a violation of any of the your conditions of probation you’re going to prison – is what trips up the trial judge.  That and his annoyance that Mr. Finch had appealed the original conviction.  These remarks, indeed, make it appear that the trial judge favors one side over the other.  Justice Lillehaug felt that the judge’s remarks indicated that the trial judge could not impartially determine two of the three Austin factors, that a violation was intentionally or in-excusable, and that the need for confinement outweighed the policies favoring probation. 

  For what it’s worth, Mr. Finch gets a new probation revocation hearing before a different judge.

Wednesday, July 1, 2015

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

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

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

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

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

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

Tuesday, June 30, 2015

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

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

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

Saturday, June 27, 2015

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

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

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

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

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

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

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


Officers Lawfully Seized Cell Phone Under Plain View Exception

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

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

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

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

Thursday, June 25, 2015

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

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

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

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

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

Wednesday, June 17, 2015

Where Risk of Self-Incrimination Is "Obvious" Witness May Assert Privilege Vicariously Through Counsel

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

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

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

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

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

Wednesday, June 10, 2015

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

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

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

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

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

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

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

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

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

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

Monday, June 8, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Wright, joined by Justice Page, dissented.