Sunday, September 21, 2014

Departure In Assault Conviction Based Upon Victim Injury Okay Where Defendant Has Prior Conviction Involving Injury

State v. Meyers, Minn.C.App., 9/15/2014.  Since the adoption of the Guidelines it’s always been the case that a departure from the presumptive sentence cannot be based upon an element of the offense of conviction.  State v. Osborne, 715 N.W.2d 436 (Minn. 2006).  This is not to say that flanking maneuvers to avoid this rule have ceased.  Far from it.  Indeed, there’s one successful flanking maneuver – the subject of this appeal – that’s right in the Guidelines.  Section II.D.2.b(3) says that a valid ground for departure exists when:

“[t]he current conviction is for a [c]riminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a [criminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured.

A jury convicted Mr. Meyers of assault in the first degree from the stabbing of A.C.  This stabbing caused a ten inch knife wound that penetrated her liver and adrenal gland; and she also sustained permanent nerve damage to her thumb from a separate cut.  An element of first degree assault is “substantial bodily injury.”  Mr. Meyers argued that because injury was an element of the offense that injury could not also be used to support a departure notwithstanding the language of the above Guidelines section.

As well as the Supreme Court opinion, State v. Peake, 366 N.W.2d 299 (Minn. 1985).  Mr. Meyers sought to distinguish this case by two more recent ones.  in the first, State v. McIntosh, 641 N.W.2d 3 (Minn. 2002), the supreme court threw out a departure under the “major controlled substance offense” provision which is based, in part, on the quantity of drugs.  The court had cautioned courts about using the quantity of drugs to support a departure.  In the other case, State v. Thompson, 720 N.W.2d 820 (Minn. 2006). the supreme court threw out a departure in a theft by swindle over $35,000.00 conviction where the amount of the swindle had been really over $35,000.00. 

The court here says that the Guidelines provision in play “is not duplicative in its consideration of victim injury.”  (Fact of injury becomes “consideration” of injury, something of a re-wright of the language of the Guidelines.)  That’s because injury is actually is a limitation on the applicability of this aggravating factor provision.  The court can only impose a departure when the current conviction is for a crime that involved injury to a victim, and the defendant has a previous conviction for a crime involving injury to a victim.

Thursday, September 18, 2014

9/17/2014: No Supreme Court Criminal Published Opinions

But, worth a quick read:  In re the Guardianship of:  Jeffers J. Tschummy, Ward.  Minn.St.Ct. 9/17/2014, wherein Chief Justice Gildea and Justice Stras hurl vituperative footnotes at one another.

Wednesday, September 10, 2014

No Abuse of Discretion In Denying Evidentiary Hearing on Post Conviction Petition

Lussier v. State, Minn.S.Ct., 9/10/2014.  Mr. Lussier pled guilty to first degree murder while committing domestic abuse for the stabbing death of his wife.  During the plea hearing, Mr. Lussier admitted that during an argument with his wife he struck her at least once.  He then said that he picked up a knife intending to take his own life but instead unintentionally stabbed his wife during a struggle over the knife.  To shore up the plea, the state introduced the grand jury transcript, something to which Mr. Lussier did not object.  Mr. Lussier then agreed that at a trial witnesses would have testified “much in accordance with the grand jury testimony.  In fact, Mr. Lussier hadn’t seen that transcript.

After a while, Mr. Lussier filed a pro se motion to withdraw his plea, saying that it was manifestly unjust because the plea was not accurate, intelligent or voluntary.  With the assistance of counsel he later added that neither the plea hearing nor the grand jury transcript established a factual basis for finding a “past pattern of domestic abuse” or “ extreme indifference to human life”, both of which are elements of the offense.  The post conviction court denied the petition and the supreme court upheld that denial.  Lussier v. State, 821 N.W.2d 581 (Minn. 2012). 

Mr. Lussier then filed this second post conviction petition.  He restated his claim about the guilty plea, and he added a claim that his post conviction attorney provided ineffective assistance of counsel by failing to request an evidentiary hearing.  This time, the post conviction court denied the petition, saying that the challenge to the plea was procedurally barred and that there were no disputed facts on the effectiveness claim that entitled him to a hearing.

Applying the Knaffla rule, Justice Stras affirms the denial of the repeated claim about the guilty plea.  On the effectiveness of counsel claim, the court observes that the only facts that had a bearing on whether his plea lacked an adequate factual basis were the facts established by and contained within the record itself, which included the grand jury transcript and the transcript of the plea hearing.  There were no other facts in need of presentation at the post conviction stage that necessitated an evidentiary hearing.  For that reason, Mr. Lussier cannot prevail on is ineffectiveness of counsel claim.

Removing Package From Airport Sorting Conveyor Was Not an Unlawful Seizure. Dog Sniff of Package Was Not a Search

State v. Eichers, Minn.S.Ct., 9/10/2014.  An airport narcotics officer pulled a package off the UPS conveyor belt for reasons that you can read about here.  The officer put the package amongst a pile of other packages and had his drug sniffing dog “seek dope.”  Which the dog did, alerting only to this package.  Eventually, Mr. Eicher’s claimed the package whereupon authorities arrested him and charged him with first degree drugs.

He moved to suppress the drugs.  He said that grabbing the package off the conveyor belt was a seizure and that the dog sniff was a search, neither of which was supported by reasonable, articulable suspicion.  The court of appeals said that pulling the package off the belt and placing it on the floor amongst other packages was a seizure because the officer thereby asserted dominion and control over it.  That court also said that the dog sniff required a reasonable suspicion of criminal activity under the Minnesota Constitution.  Even so, no federal or state constitutional violation occurred because the officer had a reasonable articulable suspicion that ht package might contain contraband. 

Justice Anderson, writing for all but Justice Page who did not participate, upholds the denial of the suppression motion but for different reasons.  The first question that the court looked at was whether there had been a seizure of the package.  Justice Anderson said that the test to determine that question is whether there is a meaningful interference with an individual’s possessory interest in the property.  The Justice looked to an Eighth Circuit opinion, United States v. Va Lerie, 424 F.3d. 694 (8th Cir. 2005), which identified three factors bearing on the question of a “meaningful interference”:

1) the detention of property impacted a person’s freedom of movement; 2) the detention delayed timely delivery of the property; and 3) law enforcement deprived the carrier of custody of the property.

The court adopts this test.  Looking to the facts, the court concludes that there was no meaningful delay in timely delivery; indeed, officers attempted a controlled delivery the same afternoon following its discovery at the airport.  The court found no infringement of any possessory interest that Mr. Eichers enjoyed by grabbing the package off the belt and setting it on the floor.  His interest in the carrier maintaining custody of the package was infringed, but not until after the dog sniff, which established probable cause.  What that boils down to is that there was no cognizable seizure of the package when the officer removed it from the conveyor belt and put it on the floor for the dog to sniff.

That gets us to the dog sniff.  The court concludes that a dog sniff of a mailed package which reveals only contraband, does not compromise any legitimate expectation of privacy under both the Fourth Amendment and Article 1, Section 10 of the state constitution.  The sniff was thus not a search.

Tuesday, September 2, 2014

Exigent Circumstances Supported Warrantless Blood Alcohol Testing

State v. Stavish, Minn.Ct.App., 9/2/2014.  Law officers and various other first responders went to the site of a one car rollover crash.  There were beer cans in and about the truck that had rolled over.  There was a dead body.  There was Mr. Stavish, who needed medical attention, and who said that he had been driving, that he didn’t know how many people had been in the truck, and that he should not have been doing what he was doing.  Officers sent him off in an ambulance to the hospital, with a trooper in tow with instructions to get a blood draw from him at the hospital.  The trooper accomplished his task but did not get a warrant before doing so.

The state charged Mr. Stavish with vehicular homicide.  Nearly a year later, the U.S. Supreme Court issued Missouri v. McNeely, 133 S. Ct. 1552 (2013).  Mr. Stavish moved to suppress the blood alcohol reading (.20), saying that it had been taken without a warrant in violation of McNeely.  The trial court granted that motion and the state appealed that ruling.

The court of appeals continues in its pursuit of imaginative “exigent circumstances” to justify warrantless blood alcohol testing.  The “virtual search warrant” from Bernard is under assault in the supreme court.  This time around, the court looks at what presumably were the “facts ono the ground” to conclude that there were exigent circumstances other than the metabolization of alcohol in the bloodstream to support a warrantless blood draw.  In fact, there were three:  The trooper was, first off, investigating a more serious crime than “an ordinary DWI charge” in play in McNeely.  Moreover, the medical treatment that Mr. Stavish was at the hospital to get might either affect or invalidate the blood alcohol test.  And, there was the possibility that Mr. Stavish would be medevac'd to another hospital before anybody could put a needle in him and draw blood within the two hour statutory limit.

The state continues to push the adoption of the good faith exception to the warrant requirement, something near and dear to Justice Stras.  See State v. Brooks, 838 N.W.2d 563 (Minn. 2013).  Having come up with a plausible list of “exigent circumstances” the court of appeals found no need to venture down that path.

Sunday, August 24, 2014

Decision to Tow Vehicle That is Lawfully Parked & Not Impeding Traffic Which Belonged to Driver Who Is Not Under Arrest Is Unreasonable Under Fourth Amendment

State v. Rohde, Minn.S.Ct., 8/20/2014.  An officer saw a Monte Carlo drive away from a house that he suspected hosted a drug trade.  This officer knew from some other officer that people involved in drug trafficking at this house “might be riding in a Monte Carlo.”  But, apparently, not this Monte Carlo because the plate number did not match the information from these other officers.  Nonetheless, as luck would have it, this Monte Carlo’s registration had been revoked and the registered owner’s driver’s license had also been revoked.  This officer asked yet another officer to stop the Monte Carlo.  This officer followed the Monte Carlo until it committed a “signaling violation” at which point the officer stopped the car.  Ms. Rohde was driving the car.  Ms. Rohde pulled to the side of a residential street; it was neither interfering with traffic nor blocking access to any property.  In other words, it was parked legally.

The Monte Carlo did not have insurance, so the officers decided to tow the vehicle, a decision based on a department policy to tow any vehicle that did not have insurance.  The officers detained Ms. Rohde while they completed the paperwork but they were not planning on taking her into custody.  When the officers did the inventory search, Ms. Rohde’s bad day got worse; the officers found methamphetamine.

The state charged her with fifth degree drug possession.  Ms. Rohde moved to suppress the drugs found in the Monte Caro.  She did not challenge the initial stop but said that the search violated the Fourth Amendment and the state constitution’s counterpart because the officers were not authorized to impound the Monte Carlo and because the inventory search was pre-textual.  The trial court denied the motion and found her guilty on a stipulated facts trial.  The court of appeals affirmed, State v. Rohde, 839 N.W.2d 758 (Minn.Ct.App., 2013).  Justice G. Barry Anderson, for the full court, concludes that the impoundment was unreasonable and thus the subsequent inventory search was unconstitutional.

Justice Anderson says that an impoundment is proper only when the state’s interest in impoundment outweighs the individual’s Fourth Amendment right to be free of unreasonable searches and seizures.  See State v. Gauster, 752 N.W.2d 496 (Minn. 2008).  He states these reasons that would justify an impoundment:  To remove a vehicle that is impeding traffic or threatening public safety and convenience; and To protect an individual’s property from theft and the police from claims of theft.  The Justice concedes that state law prohibits an uninsured vehicle from remaining on a public roadway.  That, however, is wide of the mark because the Fourth Amendment reasonableness test is the determining factor because a state statute might authorize an unconstitutional search.  See Cooper v. California, 386 U.S. 58 (1967).  The officers conceded that the Monte Carlo was not violating any parking laws, impeding traffic, or posing a threat to public safety.

As to any caretaking function – prevention of theft and the like – until the officers found the drugs they had not planned on arresting Ms. Rohde.  She was present during the inventory search and thus retained control over the vehicle; there was thus no reason for the police to take responsibility for the vehicle.  State v. Robb, 605 N.W.2d 96 (Minn. 2000).  Indeed, the officers had already allowed Ms. Rohde to call her Mom to come get her, so,presumably the two of them could figure out what to do about the car on their dime and not the state’s. 

Saturday, August 23, 2014

Fourth Amendment Exclusionary Rule Apples in Civil Forfeiture Actions

Garcia-Mendoza v. 2003 Chevy Tahoe, Minn.S.Ct., 8/20/2014.  Procedurally, this is a messy, really messy case.  The facts are reasonably straight forward, as is the holding of the court.  In a few words, the exclusionary rule of the Fourth Amendment applies to forfeiture actions.

Police saw Mr. Garcia-Mendoza’s vehicle moving down I-94 at just a hair over the speed limit.  The officer ran a a registration check for the vehicle but when the officer then ran a license check for the registered owner he got nothing back.  The cop then stopped the vehicle in the belief that the driver didn’t have a valid driver’s license.

Which was correct, at least for Mr. Garcia-Mendoza and his passenger.  Since no one could drive the car and it didn’t appear safe to the officer to leave the car on the break down lane of the interstate the officer called for a tow; alas, the inventory search incident to the two produced methamphetamine, a lot of it. 

Both the state and the feds charged Mr. Garcia-Mendoza with drug crimes.  Mr. Garcia-Mendoza moved in federal court to suppress the drugs as the fruit of an illegal stop and search.  The federal court rejected that claim and thereafter Mr. Garcia-Mendoza pled guilty.  As part of his plea he agreed to forfeit the vehicle.

Meantime, the state filed a forfeiture action against the vehicle.  Mr. Garcia-Mendoza made the same objection, saying that the cops had discovered the legal justification for the forfeiture – the drugs – as a result of a violation of the Fourth Amendment.  That meant that under the exclusionary rule the drugs should be suppressed at which point there was no longer a legal basis to grab the vehicle.  The trial court upheld the forfeiture by pointing to Mr. Garcia-Mendoza’s federal plea agreement to allow just that forfeiture.  As an aside, the trial court said that the stop and search of the vehicle had, indeed, violated the Fourth Amendment. 

The court of appeals affirmed the district court, but not on the basis of the federal plea agreement.  Rather, that court affirmed the district court by concluding that the exclusionary rule did not apply to forfeiture actions, and that the state statute presumed that the vehicle was to be forfeited, a presumption that Mr. Garcia-Mendoza did not rebut. There were other issues lurking in the bushes in both the trial court and court of appeals, but the supreme court plucked out only the applicability of the exclusionary rule for review.

Justice Dietzen somewhat regrettably it seems acknowledges that the court must follow a U.S. Supreme Court opinion from 1965 that said that the exclusionary rule of the Fourth Amendment applies to civil forfeiture actions brought under the federal forfeiture statute.  One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).  The Justice, writing for the entire court, declines the state’s invitations to ignore this Plymouth Sedan case, invitations based upon the withering away of the exclusionary rule since 1965.

Having reached that conclusion, the court sends the case back to the court of appeals to sort through the detritus left along the side of the road, which include:

(1) appellant is collaterally estopped from relitigating the determination of the federal district court that the March 19 stop and search did not violate appellant’s Fourth Amendment rights; (2) appellant’s factual admissions in the federal guilty plea agreement in which he agreed to give up his rights to property obtained as a result of his drug trafficking offense provide an independent basis for forfeiture of the seized property; (3) appellant’s exclusive remedy to suppress the challenged evidence is Minn. Stat. § 626.21 (2012) (“A person aggrieved by an unlawful search and seizure may move . . . to suppress the use, as evidence, of anything so obtained . . .”), but appellant waived that remedy by not asserting it; and (4) the district court erred when it observed in dictum that the March 19 stop and search violated appellant’s Fourth Amendment rights.

These guys are just getting started.  Start your engines, indeed.

Self Defense “Duty to Retreat” Extends to Common Hallways of Secure Apartment Building

State v. Devens, Minn.S.Ct., 8/20/2014.  At about midnight, Mr. Devens heard loud noises coming from the hallway of his secured apartment building.  Mr. Devens went out to see what all the commotion was about and found J.P. down at the end of the hall.  Mr. Devens went down to J.P.’s location and asked him to leave.  After some hesitation, J.P. agreed to the request.  However, as the two were walking to the exit Mr. Devens surmised from J.P’.’s attempt to punch him that J.P. had developed second thoughts about leaving.  J.P., not surprisingly, said that Mr. Devens had started the fight.

The state sided with J.P. and charged Mr. Devens with assault in the first and third degree.  The court dismissed the first degree charge for lack of probable cause but the jury convicted Mr. Devens of third degree assault, rejecting his claim of self defense.

Over objection, the trial court instructed the jury that Mr. Devens had a duty to retreat if reasonably possible.  Mr. Devens said, wait a minute.  I’m in my own “home” – a secured apartment building – and so I don’t  have any duty to retreat.  Justice Lillehaug, for the entire court, says that he does.  Although one’s “home” is one’s “castle” the hallways of one’s “home” – the actual apartment to which you have exclusive right of control (with some landlord exceptions not pertinent) – are not one’s “home”.  The court said that the key to determining whether a particular location is part of one’s home for self defense purposes is the extent to which that individual exercises exclusive possession and control over the area in question.  Because that exclusive possession and control did not include the common hallways, the duty to retreat remained intact.  It apparently did not matter at all that the hallway was not open to the public and was supposed to be secure.

Sunday, August 17, 2014

Waiver of a Jury Trial is Charge Specific; a Valid Waiver Obtained Before the State Amends The Complaint With Additional Charges Does Not Carry Over to Those New Charges.

State v. Little, Minn.S.Ct., 8/13/2014.  The state charged Mr. Little with one count of criminal sexual conduct in the third degree, and one count of criminal sexual conduct in the fourth degree.  At some point before trial, Mr. Little waived his right to a jury trial on these two counts; everyone agreed up and down the line that the court had obtained a valid personal waiver from Mr. Little.  Then, right before trial, the state amended the complaint to add a count of first degree criminal sexual conduct.  Mr. Little’s attorney told the judge, in Mr. Little’s presence, that his client still waived his right to a trial by jury.  The judge said fine, heard the proof and found Mr. Little guilty.

In the court of appeals, Mr. Little challenged the absence of a personal waiver to a jury trial on the added CSC I count.  The court of appeals rejected that challenge and affirmed the conviction.   In an opinion by Justice Page, writing for six members of the court – Justice Stras concurred in part and dissented in part – the Supreme Court reverses the conviction and remands for a new trial.

Justice Page goes back to an 1893 case, McGeagh v. Nordberg, 53 Minn. 234, 55 N.W. 117 (1893) that says that a jury trial waiver only applies to the issues formed at the time of the waiver.  The Justice can find no reason to apply a different rule in criminal cases.  So, a defendant may waiver his right to a jury trial on the charges then in front of him, but if the state thereafter piles on additional charges there must be another personal waiver from the defendant.  In reaching this result, the court rejected the state’s argument that all that a defendant needs to understand about waiving a jury trial is the general concept of what a jury trial looks like.  Not good enough.  When  the state amends a complaint after a defendant’s jury trial waiver, the trial court must obtain a renewed waiver – personally from that defendant and not his lawyer – on the amended complaint.

That part was fairly easy, so much so that even Justice Stras concurred in that part of the opinion.  But, then the court has to decide what the remedy is, tricky because Mr. Little did not object to the omitted personal waiver.  Indeed, he stood by silently while his attorney made that waiver for him.  The absence of a trial objection asks the question, what standard of review to apply.  The state and the defense differed on just what standard of review should apply to this error:  plain error or “structural error.”  If it’s structural error then Mr. Little immediately advances to go, gets a new trial without any regard to prejudice from the error.  If it’s plain error, then Mr. Little has to establish that the error, besides being “plain” affected his substantial rights.  Justice Page ducks that fight all together by saying without deciding that Mr. Little was entitled to a new trial under plain error analysis.

Mr. Little easily gets past the first two requirements of plain error.  There was error, and it was plain because of this nineteenth century civil case.  Justice Page concludes that on the facts of this case that Mr. Little met the substantial rights requirement as well.  Those facts convinced the court, except for Justice Stras, that there were significant concerns whether Mr. Little and his counsel had fully discussed the advantages and disadvantages of waiving a jury trial after the state added the CSC I count.  Indeed, Mr. Little may not even have been aware of the additional count according to what he said to the pre-sentence investigation officer.

As mentioned, Justice Stras concurred in the conclusion that failure to have obtained an additional personal waiver was error.  Justice Stras dissented over the standard of review and over the grant of a new trial.  Justice Stras dons his cap and gown, picks up a piece of chalk and proceeds to lecture the other members of the court on the various standards of review of trial error.  He scolds them for not taking up the gauntlet of just exactly which standard of review should have been applied in this instance, and points out why it should be plain error.  The Justice just doesn’t like these messy short cuts of utilizing a particular standard of review without really saying whether it’s the correct one to be employing.  Justice Stras’s take on plain error leaves Mr. Little sitting in prison.  The Justice thought that Mr. Little needed to have shown that he would have chosen a jury trial had the trial court questioned him about the waiver on the new charge.  Result over process.  Justice Page focused on the process, concluding that it would be sheer speculation to try to second guess what Mr. Little might have done in the face of a valid waiver inquiry.

Wednesday, August 6, 2014

Evidentiary Rulings on Spreigl & Relationship Evidence, Even If Error, Were Harmless

State v. Rossberg, Minn.S.Ct., 8/6/2014.  A jury convicted Mr. Rossberg of the first degree premeditated murder of Devan Hawkinson.  Before Mr. Rossberg shot Mr. Hawkinson six times with a .22 firearm the two of them were friends.  Indeed, the rumor in the trailer park where the two lived was they were having it on with the same woman, D.T.  Anyway, eventually, Mr. Rossberg became less and less enamored of this arrangement to the point that he began behaving rather inappropriately toward Mr. Hawkinson.  There was lots of back and forth between the two men leading up to Hawkinson’s death.  The woman in this triangle sometimes lived at Mr. Rossberg’s trailer, sometimes at Mr. Hawkinson’s trailer, and sometimes back with her husband.

The trial court allowed the state to introduce evidence of several incidents of prior bad acts, some of which were Spreigl evidence, and some of which were “relationship” evidence.  Justice Anderson distinguished these two kinds of “prior bad acts” evidence.  Spreigl evidence is prior bad acts evidence of an unrelated crime or bad act against another person not the present victim.  “Relationship evidence” is prior bad acts between an accused and a victim that illuminates the history of the relationship between the two individuals.  These evidentiary rulings by the trial court are the subject of Mr. Rossberg’s appeal.

The Spreigl evidence pertained to testimony about a 911 call from D.T. in which she reported that Mr. Rossberg might be suicidal because she had heard a gunshot from his trailer.  The trial court had admitted this testimony because it believed that it was relevant to the “disputed fact” of whether Mr. Rossberg had committed the homicide; and was relevant to whether he was in possession of the weapon used to commit it.  Justice Anderson rejects this explanation.  Whether Mr. Rossberg committed the homicide was not really a “disputed fact” but the ultimate issue of guilt.  Essentially, the court is saying that if whether Mr. Rossberg committed the homicide is a State v. Ness, 707 N.W.2d 676 (Minn. 2006) “disputed fact” then it swallows Ness in one gulp.  Whether Mr. Rossberg possessed the murder weapon is a specific fact but not one that was in dispute.  This is because Mr. Rossberg, himself, had reported the theft of the gun.  Unfortunately for Mr. Rossberg, Justice Anderson goes on to conclude that this error was harmless. 

The rest of the evidence that the trial court admitted was “relationship” evidence.  Here’s the court’s description of this evidence:

two 911 calls from September 2008, in which D.T. reported that Rossberg might be suicidal and that he was yelling and pounding on Hawkinson’s door; Rossberg telling his son that he would hurt Hawkinson if Hawkinson got too close to D.T.; Rossberg’s statements to his friend about wanting to kill Hawkinson with a machete; Hawkinson’s neighbor seeing Rossberg repeatedly pounding on Hawkinson’s doors and windows; one of Hawkinson’s black eyes and Rossberg’s admission that he caused it; the two 911 calls from November 2008 about Rossberg yelling, pounding on Hawkinson’s door, and entering Hawkinson’s trailer; and Rossberg’s statement in fall 2010 about wanting to shoot Hawkinson with his .22.

Most of these “relationship” evidence events were old.  The court said, however, that age isn’t enough.  Rather, the court employs a “balancing process as to time, place and modus operandi” to determine whether older conduct remained relevant.  The court upheld the admission of testimony of these events because it illuminated Mr. Rossberg’s ongoing confrontational behavior toward Mr. Hawkinson and the continuing strained relationship between the two men. 

Mr. Rossberg also complained on appeal about the admission of evidence about two statements that Mr. Hawkinson made to the police.  In the first statement, Mr. Hawkinson said that he knew that Mr. Rossberg owned guns and said that he was afraid that Mr. Rossberg would shoot him.  The challenge to the admissibility of this statement was on evidence rules, not the Confrontation Clause.  Under a plain error review of any confrontation clause challenge, the court ducks the question by concluding that if there were an error it was harmless because it didn’t affect his substantial rights. 

In the second statement, Mr. Hawkinson said the he was afraid of Mr. Rossberg, that Mr. Rossberg had come into his trailer even though the door was locked, and that he didn’t want Mr. Rossberg to come back.  The court said that the reported statement that Mr. Rossberg had entered Mr. Hawkinson’s locked trailer came closest to affecting the verdict, but not close enough.  This was because there was other undisputed evidence that Mr. Rossberg knew where Mr. Hawkinson hid a spare key.  The court does say that evidence that Mr. Hawkinson was afraid of Mr. Rossberg was not relevant because Mr. Rossberg did not raise a self defense claim.  The error in admitting this evidence was, again, harmless.

Wednesday, July 30, 2014

Concurrent Acts of Multiple Defendants Supports Joint & Several Restitution Liability

State v. Johnson, Minn.S.Ct., 7/30/2014.  The trial court ordered Mr. Johnson to pay restitution jointly and severally with other codefendants.  Mr. Johnson made three complaints in this sentencing appeal.  First, he said that he should not have to pay restitution for a loss that an insurance company had already reimbursed the estate of the murder victim.  Second, he said that the trial court had incorrectly calculated the amount of restitution for damage to the deceased’s car.  Third, he said that the trial court did not have statutory authority to order join and several liability for the restitution award. 

Justice Lillehaug, writing for a six person court, Justice Anderson not participating, ducked the question whether Mr. Johnson could be ordered to pay restitution for a claim already paid by an insurance company.  The court said that because Mr. Johnson had not raised this issue in the trial court they were not going to look at it.  Moreover, the record was not all together clear whether the amount claimed did or did not include the insurance reimbursement.

On the damage to the car, the trial court had calculated this award based upon the amount that the estate owed on a promissory note secured by that car.  The court said that this was not how to calculate the value of that claim because the the measure of loss must be determined by the value of the actual damage that Mr. Johnson and his codefendants caused to the car.  The promissory note did not reflect that value of actual damage; it was just what the estate owed the bank.  The court pointed out that had the crime never happened that the victim would have had to repay the note to the bank regardless of what the car was actually worth.

On joint and several liability among codefendants, Mr. Johnson said restitution should be split equally among the codefendants.  The court rejects this equal split approach on Mr. Johnson’s facts.  However, it does not say that joint and several liability is always required.  Rather, the court says that when a victim sustains indivisible loss from multiple defendants’ actions the trial court has the authority to award joint and several liability.  Having left the door ever so slightly ajar for an even split restitution award, the court just may then have immediately slammed that door shut tight.  Justice Lillehaug supports the joint and several restitution award in part by quoting some of the boilerplate buried deep into the standard issue plea petition:

[A] person who participates in a crime by intentionally aiding, advising, counseling and conspiring with another person or persons to commit a crime is just as guilty of that crime as the person or persons who are present and participating in the crime when it is actually committed.



Monday, July 14, 2014

Court of Appeals Rejects “Unconstitutional-Conditions Doctrine” in License Revocation Challenge

Stevens v. Commissioner of Public Safety, Minn.Ct.App., 7/14/2014.  The McNeeley wars continue in this license revocation appeal.  The Commissioner revoked Ms. Stevens’s driver’s license after she was arrested for driving while impaired and refusing to submit to chemical testing.  She argued that the implied consent statute is unconstitutional because it violates the “unconstitutional-conditions” doctrine.  By a variety of contortions the court of appeals says, no, it doesn’t.

Here’s how Ms. Stevens described this doctrine:

[I]t imposes on a driver a choice between, on the one hand, relinquishing the Fourth Amendment right to be free from an unreasonable search and, on the other hand, relinquishing a license to drive a motor vehicle.

The court of appeals said that Ms. Stevens’s argument fails for four reasons:  First, there is no authority, at least in Minnesota, that the doctrine applies to a constitutional challenge based on the Fourth Amendment.  Second, even if the doctrine applied, Ms. Stevens can’t show that the implied consent statute authorizes an unconstitutional search.  Rather, if she says no to the test, the statute forbids it.  Third, if the doctrine applies, and if the implied consent statute authorized a search, the implied consent statute does not authorize a search that violates the Fourth Amendment.  Such a search would be reasonable to promote the state’s interest in promoting its DWI laws.  Fourth – still there? – if, well you know, the argument fails because Ms. Stevens can’t show that the implied consent statute is sufficiently coercive.

“Source Code Two”?

There Is No “Threats Exception” to Psychologist-Client Privilege

State v. Expose, Jr.,, Minn.Ct.App., 7/14/2014.  If you can’t win your case with your own argument, then steal your opponent’s argument and try that out.  During court-ordered anger management counseling, Mr. Expose, Jr. sounded off to his counselor about his child protection worker, something about breaking her back.  Believing that she was a “mandated reporter” the anger management counselor reported this to her supervisor and the police. 

The state charged Mr. Expose, Jr. with terroristic threats and wanted to have the anger management counselor tell the jury what Mr. Expose, Jr. said.  Before trial, Mr. Expose, Jr. objected for two reasons.  First, the anger management counselor was not a “mandated reporter” because she was not a licensed mental health professional who is such  a mandated reporter.  In response, the state said that the anger management counselor should be treated as a licensed psychologist because she was working under the supervision of someone who was licensed.  The trial court sided with the prosecutor and said the statements could come in.  Second, after the jury was sworn, but before testimony commenced, Mr. Expose, Jr. raised another objection.  This time he said that since the state had convinced the court that the anger management counselor was the functional equivalent of a psychologist then the psychologist-patient privilege precluded the testimony.  The trial court said, no, that Mr. Expose Jr.’s alleged threats were an exception to the privilege.

On appeal, the state made a number of arguments all of which began to unravel.  So, the state reversed course.  Despite having told the trial court that the anger management counselor was like a psychologist now they told the court of appeals that she wasn’t because she didn’t fit the language of the statute.  The court of appeals continued to treat the anger management counselor like a psychologist and went on to conclude that there was a valid psychologist-client privilege that precluded her from testifying absent Mr. Expose, Jr.’s consent.  This extended to the alleged threats, because the anger management counselor only heard the threats when she asked Mr. Expose, Jr. why he was so upset.  The court points out that, after all, “Anger-management therapy necessarily involves talking about and working through angry thoughts and emotions.”  Mr. Expose, Jr.’s conversation with his anger management counselor was thus a necessary part of effective diagnosis and treatment. 

Now in desperation, the state’s final argument was, well, okay, she’s like a psychologist, but the threats are an exception to the privilege.  The court of appeals pointed out, however, that neither the statute that creates the privilege nor other relevant laws contains such a “threats exception.  So, permitting the testimony was an abuse of discretion that earned Mr. Expose, Jr. a remand.

It’s also worth pointing out that the state made the truly jaw dropping argument that because Mr. Expose, Jr. had not objected to the proposed testimony of the anger management counselor by motion under Rule 10.01, subdivision 2 he had waived it:

Defenses, objections, issues or requests that can be determined without trial on the merits must be made before trial by a motion . . . to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . . The court can grant relief from the waiver for good cause.

This rule pertains to constitutional challenges to the admission of evidence; other evidentiary objections are governed by the rules of evidence, which provide that any “timely objection” preserves a claimed error in admitting evidence.  Rule 103(a).  Mr. Expose, Jr.’s motion in limine satisfied that “timely objection” requirement.  He objected again just before testimony began, which was also timely.  And if you want to talk about waiver, never did the state claim at trial that Mr. Expose, Jr. had waived this evidentiary objection, so who’s waiving now?


Evelyn Mulwray:  She's my daughter.

[Gittes slaps Evelyn]

Jake Gittes: I said I want the truth!

Evelyn Mulwray: She's my sister...


Evelyn Mulwray: She's my daughter...


Evelyn Mulwray: My sister, my daughter.

[More slaps]

Jake Gittes: I said I want the truth!

Evelyn Mulwray: She's my sister AND my daughter!

Chinatown, 1974.