Sunday, May 22, 2016

Rules of Evidence Apply to Blakely Bench Trials

State v. Sanchez-Sanchez, Minn.S.Ct., 5/18/2016.  Despite the title of this post this appeal is really about "plain error".   Mr. Sanchez-Sanchez pled guilty to some drug conspiracy charge and then agreed to let the trial judge hear and decide the aggravating factors question.  The state put on an FBI agent who was permitted without objection to testify to multiple layers of hearsay evidence.  Justice Hudson, writing for three other Justices, Justice Chutich not having been yet on the court, says that the rules of evidence apply in a Blakely court trial.  So it was error to let in all that hearsay testimony.  But under "plain error" this error was not "plain," and so there is no relief to Mr. Sanchez-Sanchez.  

It's not "plain" apparently because of Justice Stras' - oops, Justice Hudson's - originalist interpretation of Rule of Evidence 1101.  This rules begins by saying that the rules of evidence apply "to all actions and proceedings in the courts of this state."  It then says that the rule doesn't apply in certain "situations" one of which is "sentencing." This rule was last revised back in 1977, a long time ago in a galaxy far, far away.  Shortly after Blakely the question arose whether the "sentencing" exception in Rule 1101 meant that the rules didn't operate in a Blakely jury trial. Justice Hudson acknowledges that back in 2008 Justice G. Barry Anderson wrote State.v. Rodriguez, Jr.,, 754 N.W.2d 672 (Minn. 2008), in which the court said that the rules of evidence do apply in a Blakely jury trial.  Since there was no mention of Blakely court trials - why would there be - Justice Hudson insisted that whether the rules of evidence apply in bench trials remained open.  She also said that lower courts had been applying Rodriguez only to jury trials.  

That the rules of evidence also applied in a Blakely court trial seemed plain enough to Justices G. Barry Anderson and Dietzen, an odd couple for sure.  The dissenters thought that the analysis in Rodriquez left no doubt that the rules of evidence would apply in any Blakely trial, jury or bench. The dissenters pointed out that part of the Rodriquez rationale was that the criminal rules require that before a defendant can waive his right to a jury or judge trial on the existence of an aggravating factor that defendant must waive the right of confrontation before the court can accept an admission of facts in support of an aggravated factor. The Rodriquez court could also harken back some twenty-eight years before that in State v. Adams, 295 N.W.2d 527 (Minn. 1980). There, the state had sought career offender status for Mr. Adams and put on an evidentiary hearing before the trial judge at which hearsay evidence was admitted.  The appellate court said that a defendant was entitled to notice, opportunity to be heard and opportunity to cross examine the state's witnesses in such a hearing.  But since Mr. Adams had all that, the court declined to reverse his conviction. 

The court's originalist reliance on a rule, the text of which was written at a time when Blakley not only didn't exist but wasn't even contemplated, also ignores that Criminal Procedure Rule 27.03, Subd. 1(B) specifically authorizes receipt of testimony at a sentencing hearing.  

Tuesday, May 17, 2016

2/16/2016: No Court of Appeals Published Criminal Opinions

Making "Wide Right Turn" and Weaving Within Lane Support Traffic Stop

State v. Morse, Minn.S.Ct., 4/11/2016.  An officer pulled Mr. Morse over after seeing him make a "wide right turn" and weave once within his lane.  The cop insisted that Mr. Morse crossed over a virtual center stripe and almost hitting a car that was parked on the opposite side of the road.  The squad video didn't really bear the claim about almost hitting another car, however, and the trial judge declined to make a finding about that.  The trial judge did make a finding that the right hand turn was a bit wide and that Mr. Morse "drifted" within his lane.  Based on the obligatory "totality of the circumstances" the trial court upheld the stop and thus the DWI charge.

The court of appeals said that the right turn statute was unconstitutionally ambiguous and vague.  Justice Lillehaug, however, pointed out that no one had really raised that issue in the trial court and so they were not about to wade into that quagmire. The statute says that the turn must be made "as close as practicable to the right-hand curb or edge of the roadway."  Just what that means remains anyone's guess.

On the validity of the stop, here's what the Justices relied upon to conclude that  it was okay:
The relevant circumstances found by the district court included: (1) the squad-car video supporting the officer’s assertion that Morse’s right turn “onto Okabena Street was not as close as practicable to the right-hand curb or edge of the roadway”; (2) the squad car video showing Morse’s vehicle drifting in its lane; (3) the fact that the events occurred close to 2:00 a.m. bar closing time; (4) the fact that Morse was leaving downtown, an area with bars; and (5) the officer’s training and experience.
Weaving within the lane is apparently a proper factor on which to make a traffic stop.  State v. Ellanson, 293 Minn. 490, 198 N.W.2d 136 (1972).  This fact, alone, is apparently enough "totality" to support the stop.

Thursday, May 12, 2016

Defendant May Base Challenge To Use of License Revocation to Enhance Criminal Charge On Incompetence At Time Of Revocation

Anderson v. Commissioner of Public Safety, Minn.Ct.App., 5/9/2016.  Mr. Anderson filed an implied consent proceeding to try to rescind the revocation of his license.  He filed this implied consent long after the 30 day limitations period.  Mr. Anderson said that as part of the criminal charges that resulted in his license revocation he'd been found incompetent to stand trial.  Because the revocation was now being used to enhance a pending DWI prosecution, the revocation violated his due process rights.

The court of appeals said that the 30 day limitations period is actually jurisdictional, so the court had no authority to hear the implied consent. However, the court does say that the state's use of a revocation that occurred when Mr. Anderson was mentally incompetent may be a violation of due process.  The place to make that due process claim is the criminal case where the state seeks to use the revocation:
However, an implied-consent proceeding “is not the proper forum in which to raise” a challenge to the state’s use of a revocation as a criminal enhancement. Davis, 509 N.W.2d at 389. “Instead, such arguments should be raised at the time a person is charged with” a crime. Id. District courts in criminal cases must scrutinize the use of such enhancements. The circumstances in this case may well constitute one of the “unique” cases in which a criminal defendant may collaterally attack a revocation to prevent it from serving as an enhancement. See State v. Schmidt, 712 N.W.2d 530, 538 (Minn. 2006)...

Sunday, May 1, 2016

Absence of Finding That Facts of Juvenile Petition Had Been Proven Precludes "Continuance Without Adjudication" Disposition

In the Matter of the Welfare of:  C.J.H., Child, Minn.S.Ct., 4/27/2016. The state charged C.J.H. with third degree criminal sexual conduct, attempted third degree criminal sexual conduct, and underage drinking. At his first appearance, the lawyers told the juvenile judge that there was an agreement for a "continuance for a dismissal" under juvenile rule 14.01, subd. 1.  Under the agreement C.J.H. had to provide a factual basis to the attempt charge.  Also, if he were unsuccessful with complying with the terms of the continuance for dismissal this factual basis would be submitted to the court with the understanding that this would likely result in a finding of guilt.  Although the prosecutor and the judge kept saying that C.J.H. was "pleading guilty" or "was guilty" the judge never made a finding that the allegations had been proven.  And never said that he was guilty.

Eventually C.J.H. violated the terms of the agreement and the juvenile court then adjudicated him delinquent.  C.J.H. appealed and said for the first time that, wait a minute, he hadn't really done a continuance for dismissal; rather, he'd done a "continuance without adjudication." He'd admitted to the crime, he'd waived his trial rights, so the only thing missing was the adjudication.  C.J.H. said this because if that were true then by the time the juvenile court violated him the court's jurisdiction had expired. Justice Hudson essentially says, nice try but no.  Despite the sloppiness of the initial appearance the Justice said that because the juvenile judge never made a finding that the allegations of the petition had been proven, something that the rule on continuances without adjudication requires, there was no "continuance without adjudication."  

Even though there  hadn't been an adjudication and even though the case had been continued.

Tuesday, April 26, 2016

Expungement Based Upon Acquittal Cannot Be Denied In Order To Avoid Setting Bail Too Low on Some Future Charge

State v. D.R.F., Minn.Ct.App., 4/25/2016.  Back in 2012 the state charged D.R.F. with criminal sexual conduct in the third degree.  In the run up to trial D.R.F. booked to Texas, California, maybe other places as well.  It wasn't until January 2015 that the state could get its hands on him. D.R.F. went to trial on a consent defense and the jury acquitted him. D.R.F. then moved to expunge the record under both the expungement statute and the court's inherent authority.  The trial court denied the motion on both grounds and D.R.F. appealed, but only on the expungement statute.

The statute, 609A.03, subd. 5(b), says that D.R.F.'s acquittal entitled him to the expungement unless the state established by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to D.R.F. of not sealing the record.  The statute goes on to list twelve factors, the last of which is the obligatory catch-all "whatever else you can think of" that the court is to consider in deciding whether the state has met this burden. The court made findings on all of these factors.  When the court got to the catch all it threw in D.R.F.'s absconding before trial.  The court of appeals knew of no authority to deny expungement essentially to punish D.R.F. for skipping out.  

The trial court also threw in the possibility that should D.R.F. be charged with another crime in the future the judge in that new case would set the bail too low because of ignorance of the previous skipping and then D.R.F. would skip yet again.  The court of appeals said that this was "simply too speculative to constitute clear-and-convincing evidence" to satisfy the state's burden.

Happy trails to R.D.F.

Sunday, April 17, 2016

Rule 27.03 Request To Reduce Sentence Properly Treated as Post Conviction Petition

Johnson v. State, Minn.S.Ct., 4/13/2016.   Mr. Johnson is serving a life sentence with possibility of release after thirty years.  Mr. Johnson had pleaded guilty under a deal whereby he could be sentenced between thirty and thirty-six years if the prosecutor thought he'd provided "useful information" about something; otherwise, he would get life with possibility of release.  The prosecutor apparently didn't think much of Mr. Johnson's information so the court gave him the life with possibility of release.  About a year later, Mr. Johnson filed his first post-conviction petition, complaining about the prosecutor's "sole discretion" to decide if his information had been "useful."  The supreme court rejected that claim back in 2002, Johnson v. State, 641 N.W.2d 912 (Minn. 2002).

This go around, Mr. Johnson is still complaining about the plea deal, but he also threw in a claim that his sentence is "repugnant to the Eighth Amendment ... because it is disproportionate and unfair when compared to the shorter sentences and more culpable conduct of his codefendants."  Mr. Johnson made this claim under Rule 27.03, subd. 9 to correct his sentence.

Mr. Johnson threw in under this rule because his claim would be time-barred as a post conviction petition.  Chief Justice Gildea agrees with the trial court's conclusion that Mr. Johnson's claim was really a post conviction claim that was outside the limitations period or any of its exceptions.  State v. Coles, 862 N.W.2d 477 (Minn. 2015) pretty much seals Mr. Johnson's fate.  There, the court said that when the requested relief would alter the benefit of the plea deal then Rule 27.03, subd. 9 doesn't apply.  In reaching this conclusion the court continues to dodge the question whether the limitations amendments to the post conviction statute overruled the Knaffla exceptions; the court also ducks whether Rule 27.03 can be used to raise Mr. Johnson's Eighth Amendment question.

Saturday, April 16, 2016

"Conditional Release" Term is Consecutive to "Supervised Release" Term When Still Incarcerated

State v. Roy, Minn.Ct.App., 4/11/2016.  This appeal is about the calculation of conditional release time.  Recall that an executed sentence consists of two parts:  the first part is serving 2/3 of the pronounced sentence; the second part is "supervised release" for the remaining 1/3 of the sentence (parole).  For certain offenses, however, there is an additional part of the sentence, "conditional release." Supervised and conditional release terms overlap.  

Unless, it turns out, that the supervised release term is spent still in prison on something else.  That's Mr. Roy.  A court sentenced Mr. Roy to an executed sentence of sixty months for first degree robbery. While serving that sentence, the state charged him with, and he was convicted of, third degree criminal sexual conduct.  A court imposed a concurrent executed sentence of twenty-eight months for that sex offense.  By this time Mr. Roy had served the entire twenty-eight months plus two more months.  

The Department of Corrections determined that Mr. Roy finished serving the twenty-eight month CSC sentence on the day he got sentenced on it, and that his conditional release term began to run the very next day.  Mr. Roy countered that when he reached the two-third's point of that twenty-eight month sentence his status on that sentence changed to "supervised release" the following day. This meant that his conditional release term also began the next day and that he should get credit toward the conditional release term for the remaining one-third of the twenty-eight month sentence.

The court of appeals concludes that "supervised release" only happens to guys who are "in the community," and thus rejects Mr. Roy's argument that it's not where you are but what you are that matters. The court says that because Mr. Roy was still in prison during what would otherwise have been the "in the community" supervised release term he does not get credit toward the supervised release term.  Along the way the court overrules a previous opinion, State v. Koperski, 611 N.W.2d 569 (Minn.Ct.App. 2000) that said exactly what Mr. Roy was arguing.  

Sunday, April 10, 2016

"Plain Error" Instructions on Accomplice Liability Earn Defendant a New Trial

State v. Huber,  Minn.S.Ct., 4/6/2016.  A jury convicted Timothy Huber of intentionally aiding his Dad, Delbert, in the commission of second degree intentional murder, and second degree felony murder of Mr. Larson.  On appeal Timothy said that the trial court had botched the accomplice liability instructions.  Justice Dietzen agreed and sent the case back for a new trial.

These two families had been feuding for some years.  On the morning of the homicide Timothy and Delbert drove to N.L.'s farm where Mr. Larson lived; Delbert brought along a rifle.  Timothy went to a barn to commence doing some chores; Delbert remained seated in the car with the door open.  Mr. Larson arrived at the farm; he and Delbert had what Justice Dietzen described as an "altercation" at the end of which Delbert shot Mr. Larson.  Sometime later, Delbert got around to calling the authorities to report that he'd shot Mr. Larson.

Delbert testified that he did not tell Timothy that he planned to shoot Larson, that he did not ask him whether he should bring a gun to the farm, and that Timothy never touched the gun.

The trial court told the jury that Timothy was guilty of a crime committed by Delbert if he "intentionally aided [Delbert] in committing it."  The instructions did not, however, go on to explain what "intentionally aided" means:  Timothy knew that Delbert was going to commit a crime and he intended his actions or presence to further the commission of that offense.  State v. Kelley, 855 N.W.2d 269 (Minn. 2014).  This was "plain error."

But, wait, there's more.  The instructions also misstated accomplice liability in setting out the elements of the offense that Timothy was accused of aiding.  Thirteen times the instructions failed to include the modifier, "intentionally," that is, the instructions failed to inform the jury that any aiding and abetting be intentional.  This was also "plain error."

For two reasons these plain errors affected Timothy's substantial rights.  First, Timothy contested the state's claim that he intentionally aided Delbert, and presented evidence that he did not do so.  Second, the state's evidence that Timothy intentionally aided Delbert in shooting Mr. Larson "was not overwhelming."  

Lastly, Timothy has satisfied the requirement that these plain errors which affected his substantial rights also adversely implicated the fairness, integrity and public reputation of the judicial proceedings. 
The error in this case was particularly serious because it prevented the jury from fully considering Huber's defense that he did not   intentionally aid Delbert in committing any crime. The instructions allowed the jury to convict Huber merely because he was present at the farm or took some actions that may have assisted Delbert in committing an offense. The evidence presented at trial to prove that Huber intentionally aided Delbert was not overwhelming and was disputed. Based on the specific facts of this case, we conclude that allowing Huber to receive a new trial will protect the fairness, integrity, and public reputation of the judicial proceedings.

Timothy gets a new trial.

Wednesday, March 23, 2016

Post Conviction Claims Untimely Under Limitations Statute

Bolstad v. State, Minn.S.Ct., 3/23/2016.  Mr. Bolstad is serving a life sentence without possibility of release.  In this his second post conviction petition he says that the trial court erroneously instructed the jury in response to a jury question, and that the post conviction court should have used its supervisory powers to grant him a new trial "in the interests of justice."  The post conviction court summarily denied the petition and Justice G. Barry Anderson affirms.

Justice Anderson says that Mr. Bolstad's claims are untimely under the post conviction statute.  Mr. Bolstad countered that his petition should be considered because it is "not frivolous and is in the interests of justice."  Minn.Stat. 590.01, subd. 4(b)(5).  The statue also, however, requires that even if the claim meets 4(b)(5) the claim has to be filed within two years of the date when the "claim arises." Minn.Stat. 590.01, subd. 4(c).  A claim arises when a petitioner either knew or should have known that he had a claim. Mr. Bolstad's trial attorney actually objected to the jury instruction so Justice Anderson concludes that the post conviction court correctly determined that Mr. Bolstad knew or should have known about the claim at the time of trial, from which he had two years to do something about it. The court again declines to abandon the "knew or should have known" standard in favor of an actual knowledge standard.  Finally, the court declines to equitably toll the limitations period despite Mr. Bolstad's claims of poor health and other hardships.

As to the supervisory powers claim, the court points out that the trial courts don't have such powers and the court that does declines to exercise it.

Probable Cause To Believe That Subject of Arrest Warrant Is Inside Third Person's Residence Justifies Entrance Therein

State v. deLottinville, Minn.Ct.App., 3/21/2016.  Officers came to D.R.'s place with an arrest warrant for Ms. deLottinville.   While one cop was at the front door chatting up D.R.'s Mom, another officer was around the back peeking through the glass patio door. This officer swears that he recognized Ms. deLottinville inside so he went in through the patio door and arrested her.  That officer also saw marijuana and a bong in plain view.  More cops returned to D.R.'s place later with a search warrant and found more drugs. The state charged Ms. deLottinville with possession of those drugs.

Ms. deLottinville challenged her arrest inside D.R.'s place.  The trial court concluded that her arrest had been illegal, that as a guest she had a reasonable expectation of privacy that could only be overcome by a search warrant.  As a consequence the drugs  had to be suppressed as the fruit of the illegal arrest.  The state appealed.

Payton v. New York, 445 U.S. 573 (1980) says that a valid arrest warrant justifies entry into the home of the subject of the warrant. Payton, however, has never been extended to permit entry into a third person's home in order to arrest the person named in the arrest warrant.  The Minnesota Supreme Court has mused that in that situation the officers may need a search warrant but it wasn't really the holding of the case. State v. Patricelli, 324 N.W.2d 351 (Minn. 1982).

Amazingly, given the officer's testimony that he not only saw Ms. deLottinville inside D.R.'s place but recognized her, the Eighth Circuit has already answered the question presented here.  United States v. Clifford, 664 F.2d 1090 (8th Cir. 1981).  Officers went to a third person's residence with an arrest warrant for Clifford.  A cop swore he saw and recognized Clifford inside so he went in and arrested him.  The Eighth Circuit said that even assuming that Clifford had a legitimate expectation of privacy in a third person's home, the officer's knowledge of Clifford's presence inside the third person's home justified entry to execute the arrest warrant for Clifford.  Just swap out Clifford for deLottinville - which is exactly what the court of appeals did - and you're done:
[W]hen police have probable cause to believe that the subject of a valid arrest warrant is present as a visitor in the residence of another, police may enter that residence to effectuate the arrest under that warrant without violating the Fourth Amendment rights of the person named therein.
So, for goodness sake, keep the shades drawn and the drapes pulled. 

Felony Conviction Later Deemed a Misdemeanor Remains a Felony Conviction for Purposes of Expungement.

State v. S.A.M., Minn.Ct.App., 3/21/2016.  S.A.M. pled guilty to a burglary.  The trial court stayed imposition of sentence.  Time goes by. The trial court discharged S.A.M. from probation, declaring that the conviction was deemed to be a misdemeanor.  S.A.M. moved to expunge the conviction.  Everybody who could object to the expungement did so.  The trial court denied the request.

The expungement statute says that someone who "was convicted of or received a stayed sentence for a misdemeanor" may seek expungement. Minn.Stat. 609A.02, subd. 3(a)(3).  (There is a lengthy list of felonies which can be expunged but none applied to S.A.M.)  Minn.Stat. 609.13, subd. 1(2) says:
Notwithstanding a conviction is for a felony . . . the conviction is deemed to be for a misdemeanor if the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.
The court of appeals concludes that the language of the expungement statute is free of ambiguity. While the words do seem straight forward enough, none of those words says anything about the impact (if any) of 609.13.  Also, none of those words say anything about just when to apply those words.  Deciding to apply the words to the (now voided) felony conviction is nothing more than a policy choice.  The court could just as reasonably chosen to apply the expungement statute to the status of the conviction at the time the application was made.  When S.A.M. asked for the expungement, which was after the court had discharged him from probation, he could state correctly (except to the Guidelines Commission) that he had been convicted of a misdemeanor.  That's 609.13.  At the time of his expungement request he was thus someone who "was convicted of or received a stayed sentence for a misdemeanor".  

The court of appeals points to two lines of cases to support its conclusion.  State v. Moon, 463 N.W.2d 517 (Minn. 1990) is first up. There the supreme court said that even though Moon's felony conviction was deemed to be a  misdemeanor under 609.13, the legislature had determined, nonetheless, that he could not possess a firearm.  The court discerned a legislative concern for public safety that meant that certain persons were precluded from possessing firearms notwithstanding 609.13. In another case, Matter of Woollett, 540 N.W.2d 829 (Minn. 1995), the court upheld the authority of the Board of Peace Officer Standards and Training to ignore 609.13 in establishing qualifications for officer licensing. The second line of cases looks at the impact of 609..13 on the career offender statute.  State v. Franklin, 861 N.W.2d 67 (Minn. 2011).  Among other things a trial court must determine whether an offender "has five or more prior felony convictions."  Franklin said that the point in time to make that determination is when the career offender is before the court for sentencing.  A prior felony conviction since deemed a misdemeanor thus doesn't count.  Seems like S.A.M., only less dangerous.

Sunday, March 20, 2016

Defendant Failed to Prove Mental Illness Defense

State v. Roberts, Minn.S.Ct., 3/16/2016.  Mr. Roberts stabbed to death two of his family members in the (apparently incorrect) belief that he was under attack from them, that one of the practiced witchcraft, and that he was in a battle with them "for his soul." After the stabbings, Mr. Roberts disposed of some of the evidence and drove west, getting as far as Waterloo, Iowa where he rolled the car.  Mr. Roberts then fled on foot, but police caught up with him a few blocks away.  He refused an officer's command to get on the ground, although he stated that he understood the order.  Later, at the jail in Waterloo, Mr. Roberts screamed inaudibly at an officer and then fell asleep.  Still later, he cooperated with various commands given him, including one to change into a jail jumpsuit.

Mr. Roberts waived a jury and asserted a mental health defense in the second part of the trial.  Minnesota still adheres to a nineteenth century English House of Lords ruling, M'Naghten's Case, 8 Eng. Rep. 718, 722, 10 Cl. & Fin. 200, 210 (1843).  The Lords decreed that to establish an insanity defense:
the defendant must prove that “at the time of the committing of the act, [the defendant] was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
The trial court found that Mr. Roberts suffered from a mental illness and that he knew the "nature" of his acts, in the sense that he knew that he was stabbing members of his family multiple times. So, that got Justice G. Barry Anderson to that last part of M'Naghten, knowing the what he was doing was wrong.  Whether Mr. Roberts knew that what he was doing was wrong is not a legal question; it's a moral one.    State v. Ulm, 326 N.W.2d 159, 161 (Minn. 1982).  

The trial court and Justice Anderson mostly relied upon Mr. Roberts' conduct before and after the stabbings to conclude that he had not shown that "he did not know that his conduct was morally wrong at the time of the murders."  Just how anyone is capable of making this determination isn't really explained.  Rather the court just glosses over the very distinction that Ulm requires in order to get to this conclusion.  Doing so thereby ignores that whether actions are "moral" is a subjective determination.  Mr. Roberts could just as likely concluded that stabbing his family members to death was unlawful but that he was morally obligated to do so because of, say, the practice of witchcraft.  

Everyone agreed that a determination of Mr. Robert's "mind set" at the time of the murders would be based upon circumstantial evidence.   (Had Mr. Roberts been "actively psychotic" at the time of his apprehension and initial police questioning this may have been direct evidence of that mind set.)  The "circumstantial evidence" test that the court so recently adopted,  State v. Al-Naseer, 788 N.W.2d 469 (Minn. 2010), was, however, never in play.  Instead, Justice Anderson applied a "clearly erroneous" standard to the trial court's determination.

Thursday, March 17, 2016

Intermediate Child Placement Order Is not "Final Order" Subject to Appeal

In the Matter of the Welfare of the Child of E.G. and K.G., Sr. Parents,  Minn.Ct.App., 3/14/2016.  This is a CHIPS case (child-in-need-of-protection-or-services) appeal brought by the parents of the two minor children.  The parents admitted to the allegations of the petition, and the district court transferred physical and legal custody to the county for foster care placement of one child and for home placement of the other child subject to the county's protective supervision.  Six months later, the district court directed that the child who had remained in home placement be transferred to foster care. The court's dispositional review hearing a week later continued the foster care placement.

The parents appealed this order.  The court of appeals questioned its jurisdiction, specifically whether the appeal was from a "final order." The court concluded that because the dispositional review hearing resulted in an order that is not "final" because any party may request a review hearing at least every ninety days.  Also, the district court had yet to conduct a permanency hearing to determine the permanent status of the two kids.

Sunday, March 13, 2016

Courtroom Closures That Are "Administrative in Nature" Do Not Violate Sixth Amendment Public Trial Right

State v. Smith, Minn.S.Ct., 3/11/2016.  Mr. Smith, laying in wait in his basement, shot and killed two teenagers as each separately broke into his house and creeped down the basement steps. Following a series of break-ins that the local authorities had been unsuccessful in solving, Mr. Smith installed an elaborate video and audio surveillance system outside and inside his house.  On Thanksgiving Day, Mr. Smith hid his vehicle to make it appear that he was enjoying the holidays elsewhere, and then he decamped to his basement to see who showed up.  As first Nicholas Brady and then Haile Kifer descended the basement steps Mr. Smith assassinated them. 

Mr. Smith made no apologies for the murders.  Rather, he conveniently audio recorded the events.  His defense at trial was defense of himself and of his dwelling.  Now, the media was all over this case, curious to see if the courts would adopt a "castle doctrine" of justification, which eliminates any duty to retreat before using force in self defense.  But, that's not what came up and it's not ever mentioned in Justice Lillehaug's opinion.  The court doesn't explicitly say but it looks like the trial court gave the standard issue self-defense/defense of dwelling jury intructions.

Instead, Mr. Smith complained about various errors that occurred during the grand jury proceedings.  The claim that stands out as of use in other cases had to do with presentation to the grand jury of "spark of life" testimony: the 8x10 glossy photographs of the two kids and the tearful account of each kid's life and accomplishments. Such testimony has consistently been permitted during trial, up to a point, State v. Graham, 371 N.W.2d 204 (Minn. 1895).  Justice Lillehaug decides that the same rules apply in the grand jury, with this cautionary sentence:
We caution, however, that prosecutors must use this potentially inflammatory tool with care. A prosecutor who unreasonably relies on spark-of-life evidence to tip the grand jury’s decision risks dismissal of the indictment.
Well, two sentences.

So, what occupies the court in its fifty-seven pages?  Closing the courtroom.  In a pretrial hearing the defense asked to be able to present testimony from Nicholas Brady's mother and some of his friends about his involvement in the previous burglaries.  This hearing was open to anyone who wanted to attend and Brady's actual name - not initials - was used throughout the hearing.  Even so, right before the start of trial the trial judge closed the courtroom in order to announce that the defense could not call the witnesses it wanted on the previous burglaries but could elicit that information from other "more neutral (i.e. cops) witnesses. The trial judge seems to have closed the courtroom because he didn't want to use the actual names of the two teenagers, notwithstanding the multiple use of those names during the actual hearing on the motion.

The two Davids - Lillehaug and Stras - went at in on this closure, especially whether a defendant's Sixth Amendment right to a public trial was even implicated by closing the court room during a preliminary hearing.  Justice Lillehaug concluded that the closure was "administrative in nature" and did not violate Mr. Smith's Sixth Amendment right to a public trial.  Just what the reach of this "administrative in nature" rule is remains to be seen but at least encompasses "routine evidentiary rulings and matters traditionally addressed during private bench conferences or conferences in chambers."  

Justice David Stras took a different approach.  First, he said that the trial court had impermissibly closed the courtroom.  However, unless this closure also violated a defendant's public trial right then there is nothing more to be said or done.  Justice Stras takes us down memory lane, back to his view of "common law," to conclude that preliminary hearings are not part of the "trial" to which any Sixth Amendment protections attach. He rejects the "administrative in nature" analysis in favor of an analysis that sks whether the closed hearing was a "trial like proceeding":
When a criminal proceeding involves the presentation of witness testimony, the arguments of counsel on a disputed question, or invocation of the court’s fact-finding function, it is more likely to be subject to the requirements of the Sixth Amendment, whether or not it involves what appears to be an administrative task or a routine evidentiary motion.
Because the actual hearing on the defense motion was completely open, the subsequent closure to announce the ruling - no matter how right or wrong the closure was - did not meet this "trial like proceedings" test and so there was no Sixth Amendment protection available.  

Monday, March 7, 2016

Three Prior Burglaries Were Not a Single Behavioral Incident And So All Count Toward Criminal History Score

State v. Drljie, Minn.Ct.App., 3/7/2016.  When does a series of crimes make up a "single behavioral incident" and when does it not?  That's the question confronting the court in this sentencing appeal.  For Mr. Drljie four judges - the trial judge and three appellate judges - have said that his previous burglaries are not a "single behavioral incident."

Mr. Drljie pled guilty to first degree aggravated robbery.  He already had three burglary convictions.  He and a buddy broke into a building that housed an art studio, a liquor store, and a coffee house.  The guys could only find an aluminum ruler and t-square to take from the art studio. From the art studio, the guys broke through a wall to get into the liquor store where they took a lot of boxes of booze.  Again from the art studio, they broke through a sealed door into the coffee house where they took some cash.

If these three burglaries, which occurred back to back to back, were part of a single behavioral incident then the Guidelines say that only two of them can be counted on his worksheet for the aggravated robbery.  Otherwise, all three of them can be counted. For Mr. Drljie, if all three count then the presumptive sentence is 88 months; if only two count then the presumptive sentence is, well the court doesn't say.  

Nothing really of substance comes out of this decision, as the court engages in a fact specific analysis.  About the best they can do is this:
Moreover, the three burglaries appear to lack the unifying criminal goal necessary for them to constitute a single behavioral incident. Not only did appellant and his codefendant separately break into the three businesses, they also removed different items from each business, including the ruler and t-square from the art studio, boxes of liquor from the liquor store, and $150 in cash from the coffee house.

Sunday, March 6, 2016

Prosecutor's "Invited Error" Was Harmless Beyond a Reasonable Doubt

State v. Whitson, Minn.S.Ct., 3/2/2016.  Mr. Whitson and his crew drove up to Duluth intending to rob a Mr. Williams, whom they believed had money or drugs or both.  They found Mr. Williams in T.C.'s apartment. Before leaving for Duluth the men had discussed the possibility of having to use a gun in order to accomplish the robbery.  Once inside T.C.'s apartment, sure enough, they needed the gun's assistance.  By the time the men fled the apartment and headed back down I-35 Mr. Williams was dead and T.C. had been shot in the cheek.  A jury convicted Mr. Whitson of first degree murder of Mr. Williams, and first degree attempted premeditated murder of T.C.

The state's main witnesses were T.C. and one of Mr. Whitson's crew, Mr. King.  T.C. didn't know the shooter; she described the shooter as a man wearing a plaid shirt.  Mr. King initially said he didn't know anything about what happened in T.C.'s apartment, but eventually he cut a deal with the prosecutor to testify against Mr. Whitson.  Mr. King testified that he had been with Mr. Whitson when plans for the robbery were made, including the possibility of having to use a gun.  He testified that he heard gun shots inside T.C.'s apartment, turned to see Mr. Whitson holding a gun, saw Mr. Whitson shoot Mr. Williams in the head, and then shoot T.C. 

The defense pointed out  the various inconsistencies of Mr. King's testimony.  The prosecutor then asked Mr. King why he had delayed revealing some of his claims; Mr. King said it was because he had gotten threats against his family.  Now, everyone knew about this claim of threats, and the trial judge had excluded any testimony about those threats.  Mr. King blurted out about the threats anyway because the prosecutor hadn't bothered to instruct Mr. King not to talk about the threats.  The defense objected and moved for a mistrial. The trial judge denied the motion but did basically tell the prosecutor that his failure to warn Mr. King off about the threats invited the error.

But, since this invitation came from the state Justice Lillehaug could and did ignore it.  The court resorts to the usual way out by assuming that the prosecutor screwed up but then concluding that the misconduct was harmless beyond a reasonable doubt.  This test asks whether the jury's verdict was "surely unattributable" to the misconduct.  Justice Lillehaug ticks off the usual litany of reasons why the verdict was not so "surely attributable."  

Mr. Whitson, representing himself in this consolidated direct appeal and appeal from denial of post conviction, made four other arguments, all of which the court said were not supported by the record.