Monday, January 19, 2015

Court Rejects “Ready Access” Formulation of Constructive Possession

State v. Salyers, III, Minn.S.Ct., 1/14/2015.  Officers raided Mr. Saylers’ home under authority of a search warrant to search for stolen property.  No one was home during the search.  Officers found a locked gun safe in a bedroom.  Inside, the officers found three firearms.  S.B., who had just moved out of Mr. Salyers’ home, told officers that she owned the gun safe and one of the firearms.  A jury convicted Mr. Salyers.  On appeal, the court of appeals said that a person possesses “the readily accessible firearms inside a container under that person’s control.” 

Justice Page affirms the court of appeals but rejects its reasoning.  “Ready access” is too easy; case law has always said that constructive possession cases are “necessarily fact driven” and that they are not to be determined by examination of only one factor.  The Justice cites several cases in which the trial court had placed special emphasis on a particular factor in its instructions, only to see those convictions reversed.  While ease of access is one factor relevant to establishing constructive possession “it is not the sole factor or necessarily even the most important factor.”  Rather, all of the factors that the court had previously identified in State v. Florine, 303 Minn. 103, 226 N.W.2d 609 (1975) were in play in determining constructive possession of items within a container:

In Florine, we held that to establish constructive possession, the State must show either (1) that the prohibited item was found “in a place under defendant’s exclusive control to which other people did not normally have access,” or (2) if the prohibited item was found “in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.”

Here, Justice Page concludes that the state present sufficient direct evidence that the firearms were in a place under Mr. Salyers’ exclusive control to which other people did not normally have access.

Rule of McNeely is Not Retroactive on Collateral Review of Final Convictions

O’Connell v. State, Minn.Ct.App., 1/12/2015.  The state charged Mr. O’Connell with one count of driving while impaired after his urine tested positive for amphetamines.  After he lost his suppression motion he pled guilty.  After that conviction became final, Mr. O’Connell filed a post conviction petition asking to be allowed to withdraw the guilty plea and be granted a new trial because the trial court’s failure to suppress the urine test, obtained without a warrant or voluntary consent “compelled him to plead guilty.”  The post conviction court denied the petition and the court of appeals upholds that denial.

The court of appeals says that Missouri v. McNeely, 133 S.Ct. 1552 (2013) does not apply retroactively on collateral review of a final conviction.  The court applied the retroactivity analysis from Teague v. Lane, 489 U.S. 288 (1989) and concluded that the rule from McNeely is a new rule; McNeely announced a rule that was not “dictated” by precedent existing at the time the conviction under attack became final.  Such a new rule applies retroactively to final convictions only if the rule is a watershed rule of criminal procedure.

Predatory Offender Statute Does Not Require Written Notice of Change in Employment

State v. Munger, Minn.Ct.App., 1/12/2015.  The state charged Mr. Munger with three counts of failure to register under the predatory registration statute:  (1) Failure to provide written notice five days before he moved from Minnesota to Colorado; (2) failure to inform his agent or law enforcement authority that he was no longer employed; and (3) failure to return the annual verification letter sent to him in Colorado.  Mr. Munger’s underlying conviction that triggered registration was an assault in the second degree, the jury having acquitted him of kidnapping and false imprisonment charges involving an adult.  At the time of that conviction, kidnapping required registration only if a minor was involved.  Mr. Munger moved to dismiss these three charges because he was not a “person required to register.”  The trial court denied that motion and the judge convicted him of all three counts.  The court imposed a concurrent thirty-six month sentence of counts one and three but imposed a consecutive sentence of one year and a day on the other one.

On appeal, Mr. Munger argued that the registration statute does not require written notice of change in employment.  That, it turns out, is correct.  Even so, however, there was enough evidence to prove that he had failed to give even verbal notice that he’d quit his job when he moved to Colorado.   On the dismissal argument – acquittal of the offenses that required registration – Mr. Munger’s argument was that acquitted charges cannot support a probable cause finding for purposes of the registration statute.  This is a riff on State v. Lopez, 778 N.W.2d 700 (Minn. 2010), which held that an offender does not need to be convicted of a predatory offense in order to trigger the registration requirements so long as the predatory offense is support by probable cause.  In Lopez, the predatory offense had been dismissed.  In State v. Haukos, 874 N.W.2d 270 (Minn.Ct.App. 2014) the court of appeals affirmed the use of acquitted charges to require registration.  The court was not willing to revisit that holding.

Monday, December 29, 2014

Prosecutor Does Not Have Power to Charge Criminal Contempt of Court For Alleged Probation Violation

State v. Jones, Minn.Ct.App., 12/29/2014.  Polk County’s had this cottage industry going – perhaps unique in the state - that produces criminal contempt of court convictions by the bucketful.  Every time the cops got someone for violating a term of probation the prosecutor would charge the probationer with the crime of contempt of court. 
The court had placed Ms. Jones on probation under a variety of conditions, one of which was that she refrain from using alcohol, if nothing else because she was under age.  The local law picked Ms. Jones up for consumption of alcohol by a minor and disorderly conduct, then threw in criminal contempt of court.  Her lawyer challenged the contempt of court charge for the reason that a contempt charge is inappropriate because other remedies – a probation violation – are available, and because other jurisdictions don’t allow such charging.  It turned out that during a two year stretch some 400 such contempt charges had been brought there.  The trial court agreed with Ms. Jones and dismissed the contempt charge.  (There was no explanation why it took four hundred of these charges to get the court moving.)  The trial court thought that criminal contempt was not a proper consequence for an alleged probation violation, and that the use of the court’s contempt power would be inconsistent with the purposes of contempt.
The state brought a pretrial appeal and the court of appeals agreed with Ms. Jones and the trial court.  Essentially, the court of appeals said that it wasn’t the prosecutor’s business to do the court’s business of protecting the dignity and authority of the court.  A probation violation does not fit within the overall purpose of the court’s contempt power, which is to punish deliberate disruptions of court proceedings and intentional acts of disrespect to the legal process.  Excluding probation violations from conduct that may be charged by a prosecutor as criminal contempt also ensures that noncriminal conduct – for instance, if an adult consumes alcohol – is not converted into criminal conduct. 

Saturday, December 27, 2014

12/24/2014: No Supreme Court Published Criminal Opinions

“Constructive Possession” is of the Drugs, Not The Space Wherein They Are Found

State v. Hunter, Minn.Ct.App., 12/22/2014.  Officers who were on a drug surveillance detail saw Mr. Hunter, the driver of an SUV, holding what one of these officers believed to be a bag of crack cocaine in the area between the two front seats.  This same officer also saw Mr. Hunter drop the bag of crack cocaine onto the passenger seat, whereupon the passenger pushed the bag onto the floorboard.

The state charged Mr. Hunter with a second degree drug crime.  Among other instructions, the state asked the trial judge to tell the jury that “constructive possession exists when an object is not on the person or in his immediate presence but it is in a place subject to that person’s conscious dominion and control.”  Despite the objection from Mr. Hunter’s lawyer, the court gave that instruction.  The jury convicted Mr. Hunter.

On appeal, Mr. Hunter said that this instruction misstated the law on constructive possession.  Specifically, he said that this instruction allowed the jury to convict him if he exercised dominion and control over the space where the cocaine was found – the SUV – rather than over the cocaine, itself.  The court of appeals agrees with Mr. Hunter and awards him a new trial.

Now, neither the law nor the pattern jury instruction is a model of clarity.  Back in 1975, the supreme court said:

a jury may find that a defendant constructively possessed a controlled substance “in a place to which others had access [and] there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.”

The pattern jury instructions are no more helpful.  It says:

In order to find the defendant possessed , it is not necessary that it was on the defendant's person. The defendant possessed if it was in a place under the defendant's exclusive control to which other people did not normally have access, or if found in a place to which others had access, defendant knowingly exercised dominion and control over it.]

So, is “it” the place where the drugs are or is “it” the drugs themselves?  “It” is the drugs themselves.  The court of appeals cites to several other cases in which the supreme court does make that clear.  Among them is State v. LaBarre, 292 Minn. 228, 195 N.W.2d 435 (1972); State v. Robinson, 517 N.W.2d 336 (Minn. 1994); and State v. Dickey, 827 N.W.2d 792 (Minn.Ct.App. 2013).  In this last case the court said:

a police officer has probable cause to arrest a suspect for constructive possession of a controlled substance when . . . there is a strong probability that the suspect was exercising or had exercised dominion or control over the controlled substance.

Mr. Hunter also complained about all the drug testing business over at the St. Paul crime lab.  But, having awarded Mr. Hunter a new trial on the instruction error, it didn’t need to get into all that.  The court did uphold the denial of Mr. Hunter’s motion to suppress evidence.  The court agreed with the trial court that the officers had the requisite reasonable suspicion justifying the officer’s approach of the SUV and the seizure:

Officers were present in the parking lot because it was known as a location for drug transactions. Although this alone does not constitute reasonable suspicion of criminal activity, see State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), a police officer also testified that he observed Hunter’s SUV enter the parking lot and park in a location that, according to the officer’s training and experience, indicated preparation for a drug transaction. The officer also observed the sedan enter the parking lot and park in a location consistent with the same inference of a potential drug transaction. The officer then observed the sedan’s driver and passenger leave the still-running vehicle, enter Hunter’s SUV, and begin talking with him. Although Hunter is correct that these actions may also be consistent with innocent explanations, when taken together with the police officers’ training and experience, they are sufficient to constitute reasonable suspicion justifying the officers’ approach and investigatory seizure. . . .Having developed reasonable suspicion justifying an investigatory seizure, the police officers were justified in opening the car door even before viewing the cocaine. See State v. Ferrise, 269 N.W.2d 888, 890 (Minn. 1978) (holding that officer safety and other concerns authorize police officers to open car doors during an investigatory seizure).

Monday, December 8, 2014

Police Interrogation After Initial Court Appearance & Appointment of Counsel Did Not Violate Either Sixth Amendment or Professional Conduct Rules

State v. Ware, Minn.Ct.App., 12/8/2014.  Mr. Ware’s girlfriend called the police to report that Mr. Ware  had assaulted her.  The investigator assigned to the case got to work on it the next day and four days after that he sent a recommendation to the prosecutor that Mr. Ware be charged.  Meantime,  Mr. Ware kept pestering the police department with phone calls in which he said that he wanted to come in and talk.  Mr. Ware finally just went down to the police station where officers promptly arrested him.

The prosecutor filed a criminal complaint, Mr. Ware made his initial appearance on that Complaint, and the court appointed him a lawyer.  Two days later, the investigator showed up at the jail to interrogate Mr. Ware.  Mr. Ware listened through the Miranda warning, signed the waiver and then made lots of admissions.  He did not tell the investigator that he either had an attorney or wanted the attorney to be present.  The investigator made no effort to determine whether Mr. Ware had already been arraigned on the criminal complaint and had counsel appointed.  Rather, he chose to believe, because it was most convenient, that Mr. Ware was in jail on a probation violation.  A riff on The Ostrich Instruction.

Mr. Ware moved to suppress his statement to the investigator because the investigator had not first contacted defense counsel and because he should have known that Mr. Ware was represented.  The trial court concluded that the prosecutor had been totally out of the loop and that it was “questionable” whether the investigator knew that Mr. Ware was represented.  The trial court denied the suppression motion.

And the court of appeals affirms.  A defendant, the court says, may waive the right to counsel whether or not he is already represented by counsel.  If the state proves that the waiver was valid – that is, it was a knowing, intelligent and voluntary act – then the statement is admissible.

Mr. Ware also complained that the investigator’s interrogation violated a rule of professional conduct that prohibits an attorney from interviewing a represented defendant without opposing counsel’s presence or consent.  There was no proof that the prosecutor had any contact with Mr. Ware without defense counsel’s presence or consent.  So, to come within this rule of professional conduct, the prosecutor either had to have ordered or ratified the interrogation.  Because the prosecutor had no knowledge of the interview until it was concluded he neither ordered nor ratified the interrogation.

Wednesday, November 19, 2014

Court Rejects Claim That Recanted Testimony Entitled Petitioner to New Trial

Ortega, Jr. v. State, Minn.S.Ct., 11/19/2014.  Mr. Ortega, Jr. filed this post conviction petition which claimed that some of the state’s witnesses had recanted their trial testimony.  A bit more about the circumstances of this murder conviction are available here.  In support of his petition, Mr. Ortega, Jr. submitted an affidavit which said that another of the state’s witnesses had regretted the way he had testified, and had felt pressured to put more blame on Mr. Ortega, Jr. than he deserved.  Also, the affidavit said that this other witness said that Mr. Ortega, Jr. had acted in self defense.

The post conviction court denied the petition without a hearing.  Chief Justice Gildea, for the full court, affirms.  The court concludes that Mr. Ortega, Jr. had not shown that it might have made a difference to the jury’s verdict if the recanted testimony had not been presented at trial.  This is because the court believed that there was “significant additional evidence” of Mr. Ortega, Jr.’s guilt.

Post Conviction Claim of “Newly Discovered Evidence” Consisting of Testing Deficiencies of Crime Lab is Time Barred

Roberts v. State, Minn.Ct.App., 11/17/2014.  Back in 2005, Mr. Roberts pled guilty to a drug offense.  During what was described as a “routine traffic stop” officers smelled a “strong odor” of marijuana emanating from within Mr. Roberts’ car and then they saw a small plastic bag that turned out to have forty-nine individually wrapped rocks of suspected crack cocaine fall out of his pants.  The St. Paul crime lab tested twenty-one of the rocks, all of which tested positive for cocaine.

When the story broke about the troubles with the St. Paul crime lab Mr. Roberts filed a post conviction petition asking to withdraw his guilty plea.  In his petition he did not, however, claim that what the crime lab had tested in his case was not cocaine.  Instead, he summarized the various problems that had come to light at the lab and said something about the testing program no longer being generally accepted in the scientific community.  The post conviction court denied the petition without a hearing.

That court said, as Mr. Roberts conceded, that his petition was beyond the two year limitations period and so the petition had to meet one of the exceptions to that limitations period.  Mr. Roberts maintained that two of the exceptions applied:  newly discovered evidence, and interests of justice. Both the post conviction court and the court of appeals reject each of these claims.

Now, a petition that asserts one of these exceptions has to be filed within two years of the date the claim arises.  A claim arises when you knew or should have known that the claim existed.  Mr. Roberts knew back in 2005 that the state’s case depended in large part on the lab testing.  He knew that the lab had concluded that all those rocks – well, at least twenty-one of them – contained cocaine and yet he neither challenged that conclusion nor sought independent expert testimony to rebut it.  Another impediment for Mr. Roberts is that none of that stuff about the general deficiencies of the crime lab established that he was innocent, which he must do under the newly discovered evidence exception. 

The other exception, interests of justice, is also of no avail to Mr. Roberts.  Although the court recites a litany of reasons, the real fear is that if Mr. Roberts is allowed to reopen his nine year old conviction on the basis of generalized concerns about the crime lab, then, truly, the horses are out of the barn.

Monday, November 3, 2014

Introduction of Computer Generated Data Does Not Violate Confrontation Clause

State v. Ziegler, Minn.Ct.App., 11/3/2014.  These days, if you take your car to a mechanic, odds are that she will plug your car into a computer.  The mechanic’s computer chats up your car’s computer and a few hundred dollars later there’s a suggestion to replace the air filter.  So, what if instead of the mechanic’s computer chatting up your car’s computer it’s the state patrol’s computer?

Ms. Ziegler set out to do, not sure just what, to a Ford Focus that had just passed her and then just barely passed the car in front of her.  She gave chase, then moved into the oncoming lane to pass the Focus.  The Focus sped up to keep that from happening so now the two cars are drag racing down the highway.  Problem is, there’s another car coming right at Ms. Ziegler.  By the time the Focus relents and lets Ms. Ziegler back into the correct lane it’s too late; she and the Focus collide and end up in the ditch. 

The state charged her with three counts of criminal vehicular operation.  During the trial, the state called a crash reconstructionist; his testimony relied, in part, on data that another officer had collected from the computer in Ms. Ziegler’s car.  Essentially, the car’s computer spilled the beans into a software program.  The software program crunched the numbers and then spit out a report totally without any other human intervention.  From that report, along with his other reconstructing, the reconstructionist testified about the speed and braking actions of Ms. Ziegler’s car in the final seconds before the crash.

Ms. Ziegler objected to all this.  She said that the data from her car was hearsay and that its admission at her trial violated her right of confrontation as currently understood from Crawford and its progeny.  Both the trial court and the court of appeals disagreed with that assertion.  The court of appeals adopts the conclusion of several federal appeals circuits that “statements” that are within the purview of the confrontation clause of are those of humans, and not computers.  So, for instance, a chemist’s written report that recites the readings from the testing instrument is admissible while the chemist’s conclusions that those readings mean that the tested substance is cocaine is not.  For Ms. Ziegler, the speed and braking data is not hearsay, but the conclusions drawn from that data by the reconstructionist were subject to cross examination.  The data are not testimonial statements at all and thus do not implicate any confrontation concerns.