Saturday, April 25, 2015

No Error In Denying Motion to Suppress Statements and No Abuse of Discretion in Denying Defense Request For Instruction on Circumstantial Evidence

State v. Fox, Minn.S.Ct., 4/22/2015.  A jury found Mr. Fox guilty of first degree premeditated murder and first degree felony murder for the death of Lori Baker.  The trial court sentenced him to life imprisonment without possibility of release.

Police arrested Mr. Fox on a DOC hold.  As soon as the officers hit the interview room Mr. Fox volunteered that he thought they were there about Ms. Fox’s car.  He went on about that until the officers interrupted him and then read him his Miranda rights.  He and the officers then talked some more about the car, then about Mr. Fox’s use of Ms. Baker’s credit card, and then about where he’d been since Ms. Fox’s death.  When the officers finally told Mr. Fox, “Oh, by the way, Ms. Baker is dead and we think you did it.” Mr. Fox asked for a lawyer.  The interview ended.

Next day, Mr. Fox invited the cops back to talk some more.  The officers reminded Mr. Fox of his Miranda rights, and he agreed (again) to waive them.  Mr. Fox told the officers that he had tried to get representation from the public defender’s office in a different county but had been told that a public defender could not represent him until he was formally charged.  It turned out, however, that about two hours before this second interrogation two public defenders from the correct county had asked to meet with Mr. Fox but the jailers said, no.  Neither the officers nor Mr. Fox was aware of this at the time of this second interrogation.

Mr. Fox moved to suppress both statements.  Regarding the first interrogation, Mr. Fox said that he had not expressly waived his Miranda rights; rather he only said that he understood them and then everyone launched into the interview.  Justice Dietzen, for the entire court, said that Mr. Fox had voluntarily participated in the interview after the advisory and acknowledgment of his rights.  Second Mr. Fox said that having been arrested on that DOC hold he should have been told that the cops were really there to talk about the homicide before advising him of his rights and obtaining a waiver of those rights.  Way back in 1984 the court had warned the police to make sure that a defendant is informed of the crimes about which they want to ask questions before seeking a Miranda waiver.  State v. Beckman, 354 N.W.2d 432 (Minn. 1984).  Three years later, however, the U.S. Supreme Court took the air out of that warning by holding that the Constitution does not require that a criminal suspect know and understand every possible consequence of a Miranda warning.  Colorado v. Spring, 479 U.S. 564 (1987).  Justice Dietzen avoids the question whether Beckman is still good law by coming up with some sort of fact specific solution; the court said that Mr. Fox was not “totally unaware of the topics upon which he was going to be questioned” so his waiver was valid.

Regarding the second interrogation, Mr. Fox said that he had invoked his Fifth Amendment right to counsel at the end of the first interview and did not subsequently validly waive it.  He said that he was represented by a public defender at the time of the second interrogation; the police failed to tell him that the public defendant had arrived at the jail but had been rebuffed; and the other public defender’s office misinformed him that he was not entitled to a public defender until he had been formally charged.  On the first claim there was no evidence that the police knew that Mr. Fox was represented and thus no evidence of police misconduct or manipulation.  On the second claim the court concluded that the failure to inform Mr. Fox that public defenders had come to the jail to meet with him – assuming that the cops even knew this - did not deprive him of information essential to his ability to waive his Miranda rights.  On the third claim the court also concluded that any misunderstanding by Mr. Fox on his eligibility for a public defender did not invalidate  and that was good enough.

Mr. Fox asked for a “rational hypothesis” instruction on circumstantial evidence.  The court has long resisted such an instruction, saying that such an instruction was not “mandatory.”  State v. Turnipseed, 297 N.W.2d 308 (Minn. 1980).  The court again declines to require a circumstantial evidence instruction.

Wednesday, April 22, 2015

A Defendant’s Risk Level Status Must Be Determined By a Jury Before the Court Can Impose a Conditional Release Term On The Basis of That Status

State v. Ge Her, Minn.S.Ct., 4/22/2015.  There are a thousand – well, not really, but there’re a lot –of ways to get on the BCA’s mailing list to receive one of the Annual Verification letters that they send out to predatory offenders.  Mr. Her is required to register but when he failed to notify law enforcement that he had moved to a new residence the state charged him with failing to register.  A jury found him guilty of that offense.  The trial court sentenced Mr. Her to sixteen months in prison, and also sentenced him to a 10 year conditional release term.  The trial court included this conditional release term because the department of corrections had previously determined that he was a risk-level-III offender.

Mr. Her eventually filed a motion under Rule 27.03, subd 9 to correct his sentence.  He said that he was entitled to a jury trial to determine his risk level status.  See Blakely v. Washington, 542 U.S. 296 (2004), which holds that other than a prior conviction, any fact that increases the penalty for a crime beyond the sentence authorized by the facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and proved beyond a reasonable doubt.  Both the district court and the court of appeals said, no, the risk level status was like a prior conviction and thus not subject to Blakely’s jury trial requirement.  See Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Justice Stras, writing for the entire court, says, no, that the risk level status is a “fact” that must be proved beyond a reasonable doubt to a jury.  In a previous opinion, State v. Jones, 659 N.W.2d 748 (Minn. 2003), the court had said that a trial court’s imposition of a conditional release term based upon findings by the judge – defendant’s conduct was motivated by sexual impulses or was part of a predatory pattern, he presented a danger to public safety, and he needed long term treatment or supervision – violated Blakeley.  Those additional facts had to be found by the jury.  Mr. Her’s risk level status is no different and must also be found by the jury.

Thursday, April 16, 2015

Relinquishing Temporary Custody of Narcotics to Innocent Companion Does Not Constitute the “Sale” of Narcotics

Barrow v. State, Minn.S.Ct., 4/15/2015. 
“C.C.” was driving a car in which Mr. Barrow was a passenger.  The local drug task force was investigating Mr. Barrow’s alleged drug trafficking so they stopped C.C.’s car.  Officers found a bit more than a half gram of crack cocaine in Mr. Barrow’s pocket.  They found 2.1 grams hidden in C.C.’s bra.  C.C. told the cops that she’d hidden the crack there at Mr. Barrow’s request.  In subsequent statements both C.C. and Mr. Barrow said that C.C. had not been involved in the purchase of the cocaine.  C.C. also said that she’d hidden the crack cocaine because she was afraid of Mr. Barrow.

The state charged Mr. Barrow with third degree sale of narcotics and a couple of other drug offenses.  Mr. Barrow eventually agreed to plead guilty to the third degree sale offense.  He admitted during the plea hearing that he’d given the cocaine to C.C. to hide when the police signaled for C.C. to stop the car.  It was the state’s position, which both defense counsel and the court accepted despite some hesitation from the trial court, that this amounted to “giv[ing] away” drugs, which is one of the verbs contained in the statute’s definition of “sale.”  The court accepted the plea and imposed sentence.

After a while, Mr. Barrow filed a post conviction petition to withdraw the plea.  He said that he had not admitted that he had relinquished his possessory interest in the crack cocaine and thus had not sold it to C.C. or to anyone for that matter.  The post conviction court dismissed the petition, saying that the definition of sell only required a physical transfer of the possession of the contraband, essentially dispensing with any requirement of a mental state.  That is, Mr. Barrow “gave away” the cocaine to C.C. to hide when the cops signaled her to stop the car.

Chief Justice Gildea, writing for the entire court, disagrees.  As the court is really, really fond of doing, the Chief hauls out the dictionary to discover that “away” as an adverb means “from one’s possession.”  The phrase “give away” means “to make a present of.”  Mr. Barrow didn’t “give away” his drugs; he had C.C. hide it in her bra in the hopes that the cops wouldn’t find it.  It was more or less a bailment; Mr. Barrow could reclaim his drugs whenever the time was right.  For much the same reasons, Mr. Barrow did not “deliver” – another one of the verbs defining “sell” - the drugs to C.C.  One “delivers” drugs, say, to a mule to carry across the border to be handed off to a street dealer who would be expected (if not required on pain of some dire consequence) to sell the drugs and get the money back to the supplier. 

It’s important that no one second guessed the claim that C.C. was an innocent bystander in all this.  If Mr. Barrow had handed his drugs off to Jabba the Hutt then the court would very likely have concluded that he did either “give away” or deliver his dope.  In that case, the outcome may depend upon the level intent required for conviction of “sale” of narcotics.  Having resolved Mr. Barrow’s case on the basis of statutory definitions the court does not reach that question.

Wednesday, April 15, 2015

Relief From Sentence That is an Upward Departure Not Authorized by Law Must be Brought Under the Post Conviction Statute Rather Than Rule 27.03.

State v. Coles, Minn.S.Ct., 4/15/2015.  Mr. Coles pled guilty to criminal sexual conduct in the second degree and first degree aggravated robbery.  The plea agreement called for two 48 month consecutive sentences.  The 48 month sentence on the CSC 2 was a greater than double departure from the presumptive sentence of 21 months.  Eventually, the trial court executed those sentences.

Time goes by.  A lot of time.  More than two years of time, which becomes important.  Mr. Coles filed a pro se something in the trial court in which he argued that the trial court had impermissibly sentenced him on the CSC 2, that there were none of the “severe aggravating circumstances” present to support a greater than double upward departure.  State v. Evans, 311 N.W.2d 481 (Minn. 1981).  Although Mr. Coles styled his pleading as a petition for post conviction relief he requested relief under Rule 27.03, subd 9, which authorizes a court to correct a sentence not authorized by law “at any time.”  A post conviction, on the other hand, is subject to the two year limitations period.  Both the trial court and the court of appeals decided that any relief had to come under the post conviction statute but that the limitations period had long since run.

The supreme court agrees.  Writing for five members of the court, Chief Justice Gildea concluded that even though Mr. Coles insisted that he was only challenging the sentence that he was actually challenging his conviction.  The majority reaches this conclusion by saying that a correction of Mr. Coles’ sentence – reducing the 48 month CSC sentence to the presumptive sentence of 21 months – would deprive the state of the benefit of its bargain, which was a 48 month sentence on that offense.  That being so, then the state could respond to the correction by moving to withdraw the plea.  That “implicates” the plea agreement and thus the conviction, so Rule 27 is the wrong source of relief.  The rule only permits correction of a sentence.

Justices Page and Stras dissent, but for different reasons.  In a bitter dissent reminiscent of retired Justice Paul Anderson, Justice Page says that the majority has taken the court down Lewis Carol’s rabbit hole. 

“Curiouser and curiouser!” Lewis Carroll, Alice’s Adventures in Wonderland (1865), reprinted in The Annotated Alice 35 (Martin Gardner ed., Bramhall House 1960). The result reached by the court and the reasoning behind that result are flawed in a way that brings to mind Alice’s exclamation. The court holds that Coles’ motion to correct his sentence “is properly viewed as a petition for postconviction relief under Minn. Stat. § 590.01, not as a motion to correct a sentence under Rule 27.03.” This holding rests on the court’s unsupported conclusion that the “challenge to his sentence implicates”1 his conviction. Even though it is clear from Coles’ motion that he is not challenging his conviction, the court arrives at its conclusion by ignoring the fact that a mere change in Coles’ sentence does not of necessity require the sentencing court to take any action with respect to Coles’ conviction. With apologies to Alice, “Oh dear, what nonsense [the court is] talking!” Carroll, supra at 36.

Justice Page pointedly asserts that because there are no Evans factor to support the greater than double departure the sentence is “not authorized by law.”  A sentence correction would not alter the conviction.  It would only be if the state independently decided to seek to withdraw from the plea agreement would the conviction, itself, be “implicated.”  Whether the state would seek to withdraw the plea is rank speculation, especially since Mr. Coles in fact, has served the very unlawful sentence that the trial court had imposed.  More importantly, because the sentence is not an authorized one, the state isn’t entitled to any benefit of that illegal sentence.

Under the court’s decision, however, for the first time in our court’s history, we hold that there is in effect no remedy for the imposition of an illegal sentence. This result cannot stand. It contradicts our authority to correct an illegal sentence “at any time” under Rule 27.03, subdivision 9, runs counter to the Legislature’s “stated public policy of achieving uniformity in sentencing” by way of the sentencing guidelines, Maurstad, 733 N.W.2d at 146, and is inconsistent with our obligation to do justice.

In rather cryptic fashion Justice Stras’ dissent hints that he sees a conflict between the rule’s “at any time” language and the two year limitations period of the post conviction statute.  He also thought that Mr. Cole’s whatever it was should have been considered under Rule 27.

Sunday, April 12, 2015

No Abuse of Discretion in Summary Dismissal of Post Conviction Petition in Which Legal Assertions Were Unsupported by Factual Allegations

Matakis v. State, Minn.S.Ct., 4/8/2015.  Chief Justice Gildea, over three dissenters – Justices Anderson, Page and Lillehaug, affirms the decision of the court of appeals that Mr. Matakis failed to allege sufficient facts to entitle him to either a hearing on or relief from his conviction and sentence.  You can read about the court of appeals opinion here.  Counsel for Mr. Matakis had filed a rather skimpy petition in which he promised more details later.  The state sought dismissal on the merits of the petition rather than arguing that it was defective.  Justice Anderson’s dissent thought that the abrupt dismissal of the petition without any notice or warning to Mr. Matakis’s counsel was an abuse of discretion, even more so because Mr. Matakis had not had a direct appeal of his conviction.

Evidence Sufficient to Uphold Conviction For Aiding First Degree Premeditated Murder

State v. McAllister, Minn.S.Ct., 4/8/2015.  Mr. McAllister and his two cousins brutally beat and kicked Michael McMillan.  During the beat down one of the three – apparently not Mr. McAllister, also shot Mr. McMillan.  After the three men left, one of them – again apparently not Mr. McAllister, returned and shot Mr. McMillan again.  He died from those injuries.  A jury convicted Mr. McAllister of aiding and abetting first degree premeditated murder and first degree felony murder.  The trial court sentenced Mr. McAllister to life in prison without possibility of release on the first degree premeditated murder verdict.

On appeal, Mr. McAllister complained that the state had presented insufficient evidence that he had intentionally aided another in committing the murder.  Justice Stras, for the entire court, said that Mr. McAllister’s complaint was wide of the mark.  The justice more or less concedes that the state’s proof that Mr. McAllister intentionally aided another in committing the murder was lacking, but then says, so what.  Under the complicity statute, Mr. McAllister is also liable for any other crime that was reasonably foreseeable as a probable consequence of committing or attempting to commit what the court decided was Mr. McAllister’s intended crime:  aggravated robbery.  It was readily apparent to the court that Mr. McAllister intended the aggravated robbery of Mr. McMillan:  he participated in the beat down during which one of his cousins shot Mr. McMillan.  Further, it was reasonably foreseeable that this beat down/shooting could result in the murder.

After Mr. McAllister’s arrest, officers interrogated him.  After a while he told the officers, “[n]o, ain’t no sense in talking no more man.  You may as well cuff me up, book me, whatever.  It’s just that simple.”  The cops did eventually take that statement as a sign to stop talking to Mr. McAllister.  The cops then let Mr. McAllister talk to one of his cousins, whom the officers knew had confessed.  This cousin told Mr. McAllister just that, whereupon, as hoped, Mr. McAllister resumed the interrogation.  The trial court denied his motion to suppress everything he said after the “cuff me” remark, concluding that this was not an unambiguous invocation of his right to remain silent.  Justice Stras lets that go, saying that even if there was a mistake there was overwhelming evidence of guilt so that any error was harmless.

Tuesday, April 7, 2015

An Undefined Reference in a Complaint to a Conditional Release Term Is Not Sufficient Notice of The Requirement For That Conditional Release Term

Kubrom v. State, Minn.Ct.App., 4/6/2015.  The state charged Mr. Kubrom with first degree driving while impaired.  But that’s not what the case is about.  It’s about the conditional release term that accompanies a conviction for that charge.  Mr. Kubrom cut a deal with the state for a definite term sentence, none of this “Guidelines sentence” stuff.  The rest of the deal was for a concurrent sentence and a recommendation from the trial judge for boot camp.  Mr. Kubrom pled guilty under that deal and the court sentenced him the same day.  Neither during the plea nor the sentencing that immediately followed the plea did anyone say anything about that conditional release term.

Mr. Kubrom served his sentence – all of it – and got out.  Only then did the trial court amend the sentence to include that conditional release term.  Mr. Kubrom, when he finally found out about it, cried foul and filed a post conviction petition, asking either to be allowed to withdraw his plea or have the sentence amended to conform to the original agreement.  The court denied the petition.

Mr. Kubrom said that because no one told him about the conditional release term before he pled guilty and was sentenced the district court improperly denied his petition.  The state countered that because the complaint described the penalty for first degree DWI as “3-7 years and/or $4,200-$14,000 plus a conditional release term” that was notice enough.   This one goes to Mr. Kubrom; the court of appeals was unwilling to hold that this general statement regarding a conditional release term, standing alone, was sufficient notice.  This was because this description specified neither the length of the applicable conditional release term nor that it was mandatory.

The rest is easy.  Mr. Kubrom bargained for a maximum sentence:  forty-six months.  The district court agreed to honor that bargain by its acceptance of the plea.  Due process thus requires that the deal be fulfilled.  State v. Wukawitz, 662 N.W.2d 517 (Minn. 2003).  Oldenburg v. State, 763 N.W.2d 655 (Minn.Ct.App. 2009).  The problem, now, of course, is that the deal amounts to an unauthorized sentence, and now to add the conditional release term would violate the plea agreement.  Mr. Kubrom must be given the opportunity to withdraw his plea.  The state can simultaneously argue that to permit that would unduly prejudice the prosecution.  If that’s true, it remains to be seen what is an appropriate remedy.

Thursday, April 2, 2015

Post Conviction Claims Are Time Barred

Fort v. State, Minn.S.Ct., 4/1/2015.  In this second petition for post conviction relief Mr. Fort claims ineffective assistance of trial and appellate counsel; and he claims that the state mishandled evidence.  Read about Mr. Fort’s direct appeal here; and about his first post conviction petition here.

This go round, Mr. Fort said that his appellate counsel was ineffective for having withdrawn his first pro se post conviction petition and for not doing enough research on his case.  Justice Page rejects these claims because the constitutional right to counsel does not extend to state post conviction proceedings.  Pennsylvania v. Finley, 481 U.S. 551 (1987).  The court has also said that under the state constitution a defendant has no right to assistance of counsel in a post conviction petition provided that that defendant had been represented by counsel on direct appeal.  See Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

Turning to Mr. Fort’s claim of ineffective assistance of trial counsel and the mishandling of evidence, thee claims are time barred under Minn.Stat. 590.01, Subd. 4(a)(2).  Unless he can establish an exception to the limitations statute Mr. Fort’s claims are extinguished.  Mr. Fort “has not presented any argument – must less established – that an exception applies to his petition…”

Post Conviction Claims Are Time Barred

Fort v. State, Minn.S.Ct., 4/1/2015.  In this second petition for post conviction relief Mr. Fort claims ineffective assistance of trial and appellate counsel; and he claims that the state mishandled evidence.  Read about Mr. Fort’s direct appeal here; and about his first post conviction petition here.

This go round, Mr. Fort said that his appellate counsel was ineffective for having withdrawn his first pro se post conviction petition and for not doing enough research on his case.  Justice Page rejects these claims because the constitutional right to counsel does not extend to state post conviction proceedings.  Pennsylvania v. Finley, 481 U.S. 551 (1987).  The court has also said that under the state constitution a defendant has no right to assistance of counsel in a post conviction petition provided that that defendant had been represented by counsel on direct appeal.  See Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

Turning to Mr. Fort’s claim of ineffective assistance of trial counsel and the mishandling of evidence, thee claims are time barred under Minn.Stat. 590.01, Subd. 4(a)(2).  Unless he can establish an exception to the limitations statute Mr. Fort’s claims are extinguished.  Mr. Fort “has not presented any argument – must less established – that an exception applies to his petition…”

Erroneous Instruction on Definition of “Domestic Abuse” and Improper Limitations on Defense Closing Argument Results in New Trial

State v. Bustos, Minn.S.Ct., 4/1/2015.  In a 4-3 decision Justice Anderson awards Mr. Bustos a new trial because of errors in the court’s jury instructions and improper restrictions on defense counsel’s closing argument.  Joining Justice Anderson are Justices Page, Lillehaug, and Stras.  Justice Wright, heir apparent to a seat on the Eighth Circuit Court of Appeals, perhaps the most conservative federal circuit, dissents, joined by Chief Justice Gildea and Justice Dietzen.

A jury convicted Mr. Bustos of first degree murder, past pattern of domestic abuse.  The state alleged and presented evidence about five incidents of domestic abuse.  “Domestic Abuse” is a defined term.  Minn.Stat. 609.185, Subd. (e)(1).  It’s an act that is a violation of enumerated statutes – assault, criminal sexual conduct, and terroristic threats - committed against the victim who is a family or household member.  The definition also includes “similar laws of the United States or any other state.”  Here’s how the trial court defined “domestic abuse” to the jury:

Second, the injury causing the death of Dominga Limon occurred while the defendant was committing domestic abuse. Minnesota Statutes define “domestic abuse” as an act amounting to assault, domestic assault, criminal sexual conduct, terroristic threats, or similar acts if committed against a family or household member.

It’s that last phrase, “or similar acts if committed against a family or household member” that’s wrong.  The court’s instruction goes beyond the enumerated Minnesota crimes and violations of “similar laws” of the United States or other states.  The  court’s instruction invites the jury to believe, incorrectly, that “domestic abuse” includes even non-criminal acts that are similar to the listed crimes.  This expansive definition was plain error.

The other error had to do with the trial court’s restriction on defense counsel’s closing argument.  The trial court told defense counsel that he could not argue that the state was required to prove any alleged incident of prior domestic abuse beyond a reasonable doubt.  Defense counsel could argue that the state had to prove a “past pattern” beyond a reasonable doubt. 

Now, the element of “past pattern of domestic abuse” is defined as conduct consisting of two or more prior acts that are proximate in time to each other and reflect “a regular way of acting.”  State v. Hayes, 831 N.W.2d 546 (Minn. 2013).  If the state alleges prior acts in excess of what is necessary to prove the element, it need not prove each prior act beyond a reasonable doubt.  State v. Kelbel, 648 N.W.2d 690 (Minn. 2002).  The jurors must, however, agree that at least two underlying acts of domestic abuse were proven beyond a reasonable doubt even if they disagree about which two acts satisfy that requirement.  The flip side of that requirement is that the defense must be allowed to argue that an acquittal is appropriate if the state fails to prove any of the prior incidents beyond a reasonable doubt.  Or, if the state alleged four prior incidents the defense must be allowed to argue that an acquittal is appropriate because the state failed to prove beyond a reasonable doubt three of the four prior incidents.  As a consequence the trial court’s restriction on closing argument was also plain error.

The majority ducks the question whether any one of these plain errors entitled Mr. Bustos to a new trial.  Instead, the majority said that the cumulative impact of these two plain errors did entitle him to a new trial.

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.

Wednesday, March 11, 2015

Post Conviction Petition Alleging Ineffective Assistance of Counsel is Time Barred

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.

Sunday, March 8, 2015

3/4/2015: No Supreme Court Published Criminal Opinions

3/2/2015: No Court of Appeals Published Criminal Opinions

“Taking” a Deer Still Means “Taking” a Deer

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.

Minn.Stat. 97B.22, subdivision 1. 

“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.