Tuesday, June 28, 2016

Court Declines to Extend Miller v. Alabama to Adults

Munt v. State, Minn.S.Ct., 6/15/2016.  A jury convicted Mr. Munt of four counts of first degree murder and various other crimes, arising out of the shooting death of his ex-wife and the kidnapping of his three children. He pled not guilty by reason of mental illness.  The supreme court upheld his convictions, read here.

Mr. Munt eventually filed this post conviction petition.  The post conviction court concluded that the petition was untimely under the limitations provisions of the post conviction statute.  Minn.Stat. 590.01, subd. 4(a)(2) and that it did not meet any of the statutory exceptions to that two year limitations period.  

Chief Justice Gildea first chastises the post conviction court for wrongly concluding that the petition was untimely.  It was not; the post conviction court failed to include the ninety days window after disposition of his direct appeal.  

Mr. Munt argued that the trial court had given an incorrect instruction on circumstantial evidence.  It's not entirely clear just what instruction Mr. Munt wanted the trial court to have given. Chief Justice Gildea cites to State v. Caldwell, 803 N.W.2d 373 (Minn. 2011), which talks about assuming that the jury believed the state's witnesses and disbelieved any evidence to the contrary.  This may not be what the current law on sufficiency of circumstantial evidence is, but it doesn't matter as the court concludes that Mr. Munt's claim is procedurally barred under Knaffla.

Mr. Munt also argued that his sentence of life without possibility of release is unconstitutional under Miller v. Alabama.  Mr. Munt said that failure to extend Miller to adults denies him equal protection. The Chief states that Miller applies only to juveniles and thus not to Mr. Munt who was thirty-five years old at the time of the crimes.

(More) Post Conviction Claims Are Knaffla Barred

Zornes v. Minnesota, Minn.S.Ct., 6/15/2016.  Mr. Zornes is serving a life sentence without possibility of release for two counts of first degree premeditated murder.  The supreme court upheld the convictions and sentences back in 2013, read about it here.  

Mr. Zornes then launched a post conviction petition.  He alleged seven trial errors denied him a fair trial.  Justice Hudson concluded that all of these errors were known or should have been known at the time of direct appeal and so they are Knaffla barred.  Mr. Zornes also alleged eight claims of ineffective assistance of trial counsel.  Again, however, Justice Hudson points out that all but one of these claims is based on the trial record and thus barred.  The court concluded that Mr. Zornes was not entitled to relief on the one issue that perhaps is not barred.  Finally, Mr. Zornes argued that his appellate counsel was also ineffective.  He based this claim primarily on the assertion that appellate counsel should have raised the prosecutor's use of a Powerpoint presentation during closing argument that either contained information not admitted into evidence and not vetted to both the court and defense counsel prior to its use.  See Brabeck v. Chicago & N.W. Ry. Co., 264 Minn. 160, 167-68, 117 N.W.2d 921, 926-27

Post Conviction Claims are Knaffla Barred.

Davis v. State, Minn.S.Ct., 6/15/2016.  Mr. Davis is serving a life sentence for the felony murder of Armando Calix.  Mr. Davis appealed that conviction and sentence, in which he raised some fifteen claims.  The court denied relief on all of those claims.

He then filed a post conviction petition in which thirteen of the fifteen claims he presented were duplicate claims raised on direct appeal. Under the Knaffla rule those claims are procedurally barred. Neither the post conviction court nor Justice Stras addressed whether the statutory adoption of the Knaffla rule, Minn.Stat. 590.04, subd 3 is either a separate basis for denial of the post conviction petition; or has superseded Knaffla.  Justice Stras affirms the denial of relief on the other two claims - sufficiency of evidence, and an evidentiary ruling - because those claims were or should have been known to Mr. Davis at the time of his direct appeal.  Justice Stras also declined to address either the two Knaffla exceptions, or the limitations exceptions in the statute.

Monday, June 20, 2016

"Grooming" Statute is Facially Unconstitutional

State v. Muccio, Minn.Ct.App., 6/20/2016.  Ms. Muccio sent a close-up of a female's genitals, a close-up of a female's buttocks covered by a thong, and a female naked from the waist to the neck to a fifteen year old.  Ms. Muccio and the fifteen year old also had sexually explicit conversations and exchanged sexually explicit photographs.  The state charged Ms. Muccio with communication with a minor describing sexual conduct in violation of Minn.Stat. 609.352, subd. 2a(2).  She moved to declare this statute unconstitutional and the trial court granted that motion.  The state brought this appeal.

Here's what the statute says:
A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony . . . : engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct. 
The objective of the statute is to criminalize "grooming," the process "whereby sexual predators engage in sexually explicit conversations with a child and expose the child to pornographic material in an attempt to lower the child's inhibitions and acclimate the child toward a sexual encounter."

The court of appeals agrees with the trial court that this statute is facially overbroad in violation of the First Amendment because it prohibits a substantial amount of protected speech.  The court adopts these examples from the trial court as acts that would violate the statute:
A music video producer creates a video with sexually explicit depictions or lyrics, with the intent to arouse the sexual desire of some person who views or listens to the video, places that video on social media, and a child age 15 or younger sees or hears it. A film producer produces a movie with sex scenes, with the intent to arouse the sexual desire of some person who views the film, makes that movie available on an Internet streaming service, and a child age 15 or younger sees it. A writer of young-adult fiction electronically publishes a book describing a sex scene, with the intent to arouse the sexual desire of any one of the book’s readers, and a child age 15 or younger reads it.
Here's the conclusion of the court of appeals:
Minn. Stat. § 609.352, subd. 2a(2), proscribes protected speech and is facially overbroad in violation of the First Amendment. Further, because any attempt to construe the statute constitutionally would require that we rewrite the statute, which would constitute an invasion of the legislative domain and discourage the legislature from drafting a narrowly tailored law, we decline to do so. Finally, the statute is not narrowly drawn to serve the state’s compelling interest in protecting children from sexual abuse and exploitation on the Internet and therefore is an unconstitutional content-based regulation of speech. 

Tuesday, June 14, 2016

Only One Sentence Can Be Imposed For Two Burglaries Committed as Part of Single Course of Conduct

State v. Mitchell, Minn.Ct.App., 5/31/2016.  Mr. Mitchell entered K.K.'s apartment without her permission.  He physically assaulted her and then fled.  Within the hour police arrested Mr. Mitchell; he had a knife in his vehicle.  The state charged him with first degree burglary (assault) and first degree burglary (dangerous weapon).  It took took attempts but on the second try a jury convicted Mr. Mitchell of both counts.  It took another ten years to get Mr. Mitchell in front of the trial judge for sentencing whereupon the court imposed sentences on both counts of conviction.

Mr. Mitchell argued that the burglary (dangerous weapon) hadn't been proved.  The court said that the state did show that Mr. Mitchell was arrested "shortly after the burglary" with a knife, that the knife belonged to K.K.'s father with whom K.K. lived, that the knife was in the kitchen "just hours" before the burglary and wasn't there afterwards. These circumstances were enough to prove that Mr. Mitchell possessed the knife at some point during the burglary.

Mr. Mitchell's other arguments addressed why he could only be sentenced on one of the two burglary convictions.  First, he argued that first degree burglary (dangerous weapon) is a lesser-included offense of first degree burglary (assault).  The court disagreed, determining that each offense had elements that the other did not have and so "neither crime is necessarily proved when the other is proved."  

Mr. Mitchell's fall back -and successful - argument was that the two burglary counts were part of a single course of conduct and so he could only be sentenced on one of the two.  The state agreed that the two burglary counts were part of a single course of conduct, but countered that there was an exception that permitted sentencing on both counts:
[A] prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered (emphasis added).
The court hauls out the dictionary to define "other" to mean "different from that or those implied or specified."  That leads the court to conclude that "any other crime" is a crime different from burglary.   The court sends the case back to the trial court to vacate the second burglary sentence.

Saturday, June 11, 2016

Rule 27.03, Subd. 9 Is Proper Method By Which To Challenge Restitution, Subject to The Restitution Limitations Period

Evans v. State, Minn.S.Ct., 6/8/2016.  Mr. Evans is serving a life sentence without possibility of release.  The trial court also ordered him to pay a bunch of money to the Crime Victims Reparations Board.  Mr. Evans filed a motion under Rule 27.03, subd. 9 to correct his sentence, arguing that the restitution statute did not authorize awards to the CRVB, and even if it did, the amount that had been awarded was wrong.

Justice Dietzen says that Rule 27.03, subd. 9 is a proper vehicle by which to challenge an award of restitution, provided that the challenge does not go beyond the sentence.  Restitution is part of a sentence so Mr. Evans was on firm ground by invoking the rule.  State v. Gaiovnik, 794 N.W.2d 643 (Minn. 2011).  The Justice also says that the trial court has the authority to award restitution to the CRVB.  Finally, because Mr. Evans' challenge to the restitution award came more than thirty days of receiving notification of the request or within thirty days of sentencing, whichever is later, the trial court correctly determined that his challenge was too late.

Evidence Sufficient to Support Conviction of First Degree Premeditated Murder

State v. Barshaw, Minn.S.Ct., 5/25/2016.  A judge found Mr. Barshaw guilty of first degree premeditated murder for the shooting death of Jeffrey Schutz.  Mr. Barshaw was having an affair with Jeffrey's wife, Mandy.  Mandy went to Mr. Barshaw's apartment to pick him up and bring him back to where she lived with Jeffrey; Mr. Barshaw brought along a semi-automatic assault rifle and a semi-automatic pistol.  Back at Mandy's Jeffrey wasn't pleased to see Mr. Barshaw and said that he could not stay there.  So, Mandy and Mr. Barshaw stayed in a motor home that was some fifteen to twenty feet from Jeffrey and Mandy's place.  When Jeffrey realized that Mandy and Mr. Barshaw might be inside the motor home he and his cousin Anthony, pounded on the door to the motor home. Mandy and Jeff talked, shared a cigarette and everyone seemed to have calmed down.

Except for Mr. Barshaw, who began to yell, while also holding the assault rifle.  Mr. Barshaw and Jeffrey continued to yell at each other.  Mr. Barshaw "came barreling out" of the motor home with the rifle; Jeffrey began to back away.  Mr. Barshaw pursued Jeffrey for about a hundred feet.  Mr. Barshaw eventually pointed the rifle at Jeffrey and repeatedly pulled the trigger.  Of the nine shots that Mr. Barshaw got off, six or seven of them struck Jeffrey's body.  At least two of the them were fatal.

At trial Mr. Barshaw said that he was too intoxicated to  have formed the intent to kill, or, that Mandy was the one who shot Jeffrey.  He also said that  shooting Jeffrey was a "snap response" and so there was no premeditation.  The court rejected all of these defenses.  On premeditation the trial court said that Mr. Barshaw:
prepared for the potential use of his firearms by removing them from the trunk . . . and taking them into the motor home. If the rifle was not loaded and ready to fire when he took it into the motor home, it certainly was by the time he burst out of the motor home with the murder weapon in hand. Defendant still had a few minutes to consider what he was doing. He menaced Jeffery Schutz with his weapon and deliberately followed him a distance of some 80 to 100 feet around the motor home to the area of the utility pole before taking aim and firing repeatedly at Jeffery Schutz. 
On appeal Mr. Barshaw said that the state had not proven premeditation. Chief Justice Gildea disagreed and said that they had.  The court applied the two-step analysis for circumstantial evidences cases by first identifying the circumstances proved, and then independently examining the reasonableness of all inferences that might be drawn from the circumstances proved to determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.State v. McAllister, 862 N.W.2d 49 (Minn. 2015).  State v. Anderson, 789 N.W.2d 227 (Minn. 2010).  The Chief said that the court looks at three kinds of evidence relevant to determining premeditation: planning activity, motive, and the nature of the killing.  Since the trial judge did not make any findings about motive the Chief focused on the remaining two categories of evidence and found that the evidence of both planning activity and the nature of the killing were sufficient.

Planning activity can be pretty minimal.  Grabbing the murder weapon just before the killing is sufficient planning.  So is fetching the murder weapon from one one and bringing it into another room. The number of shots fired, the number of wounds inflicted, being a good shot by wounding "vital areas" of the body, and escaping are the kinds of things the court is looking for when it examines the nature of the killing.

Monday, June 6, 2016

To Be Guilty of "Taking" a Car You Have To, Well, Take a Car

State v. Thonesavanh, Minn.Ct.App., 6/6/2016.  J.V. called the local constabulary because a man who turned out to be Mr. Thonesavanh was banging on his door.  By the time the cops arrived Mr. Thonesavanh was sitting behind the wheel of J.V.'s car, which was parked in the driveway. The engine was running and the reverse lights were illuminated.  But the car never moved.  Or at least no one was willing to say that it moved.

The cops eventually persuaded Mr. Thonesavanh to get out of the car. The state charged him with theft of a motor vehicle under Minn.Stat. 609.52, subd 2(a)(17.  One is guilty of this offense if she "takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent.  Mr. Thonesavanh moved to dismiss the charge, saying that he never "took" J.V.'s car.  The trial court agreed, saying that the "takes" in this statute" requires that a defendant exercise "independent, absolute control over the property involved, even if only for a short time" and that a defendant be involved in "movement of the property."  The state appealed.

And lost.  The court of appeals said that the "take" language of the statute was ambiguous and then hauled out the dictionaries.  A lot of dictionaries, including the sixteen pages dedicated to the word "take" in the Compact Oxford English Dictionary.  

Whether this conclusion "takes" remains to be seen.  Mr. Thonesavanh was behind the wheel of car whose engine was running and in gear.  And there's all that money flowing out of the U.S. Justice Department to prosecute car thefts.

Wednesday, June 1, 2016

Any Criminal Vehicular Operation Conviction Can Be Used to Enhance a DWI to a Felony Regardless of Statutory Language

State v. Boecker, Minn.Ct.App., 5/23/2016.  Back in 1998 Mr. Boecker was convicted under 609.21, subd. 2a(2)(i) of criminal vehicular operation.  In 2015 the state charged Mr. Boecker with first degree DWI based on this 1998 CVO conviction.  Mr. Boecker pointed out, however, that the DWI statute in play, enacted in 2014, listed as an enhancer a 2006 CVO statute, which of course didn't exist in 1998 and so how could his charge be enhanced?  

Somehow the court of appeals concludes that the 2014 DWI statute is ambiguous, which gives them the green light to uphold the enhanced charge and conviction.  Along the way it points to legislative history where the legislature says that it doesn't care what words and numbers it uses in the DWI statute it intends all CVO convictions to be enhancers:
rime. The legislature’s intent has always been that criminal vehicular operation convictions under both the pre- 2007 law and the post-2007 law be used for enhancing driving while impaired penalties consistent with the provisions of the driving while impaired laws.

Tuesday, May 31, 2016

Polygraph Results Not Admissible in Probation Revocation Hearings

State v. Nowacki, Minn.Ct.App., 5/23/2016.  Mr. Nowacki was on probation for third degree criminal sexual conduct.  One of the conditions of his probation was to submit to polygraph examinations by either probation or his treatment provider.  A third violation alleged that Mr. Nowacki failed to complete sex offender treatment.  In support of that allegation his treatment provider testified that Mr. Nowacki had failed multiple polygraph examinations.  Mr. Nowacki objected to this testimony but the court overruled the objection.  The court revoked Mr. Nowacki's probation.

On appeal, he complained that the trial court's determination that he had violated probation improperly considered the failed polygraph examinations.  The court of appeals agreed that consideration of the failed polygraph examination was an error, citing long-standing Minnesota law that polygraph results are not admissible in either civil or criminal trials.  Virginia, Texas, Florida, and Kansas have also held that polygraph results are not admissible in probation violation hearings, and the court of appeals adopts that prohibition. The court also determined, however, that this error did not affect the trial court's decision to find that Mr. Nowacki had violated his probation. 

Monday, May 30, 2016

Probable Cause Existed For Defendant's Arrest; Batson Challenges Rejected

State v. Onyelobi, Minn.S.Ct., 5/18/2016.  Ms. Onyelobi, her boyfriend Maurice Wilson, and David Johnson were heroin dealers. Among others, they sold to Anthony Fairbanks, his sister and his mother.  Ms. Onyelobi, et.al. took drug orders on a cell phone dedicated for that purpose, the "208" phone.  They made deliveries in a somewhat distinctive two-tone van with darkly tinted rear windows.

Just before he was killed the feds indicted Fairbanks on drug conspiracy charges.  They also indicted Wilson, who was in the local jail.  Wilson called Ms. Onyelobi from the jail to inquiry if she and Johnson had "taken care of that," apparently referring to Fairbanks.  She said that they had not but that they were working on it.  

And, apparently they were.  Later that same day, Fairbanks left his mother's place to pick up heroin from Ms. Onyelobi.  A short distance from his mom's place, however, someone shot Fairbanks three times and left in the aforementioned two-tone van.  Police later found the murder weapon in a storage facility that Ms. Onyelobi had rented.  The cops also connected Wilson's federal indictment to Fairbanks and to Ms. Onyelobi, learned who belonged to the 208 phone and located Ms. Onyelobi at a local motel.  When the cops arrived, the two-tone van was in the parking lot; Ms. Onyelobi wasn't there, but Johnson was.  When he opened the door the cops saw suspected narcotics inside; they "froze the scene" until they could get a search warrant.  While waiting for that Ms. Onyelobi showed up.  Once they had the search warrant they seized the suspected narcotics and arrested Ms. Onyelobi for possession of those suspected narcotics.  And then for aiding and abetting Fairbanks' murder.

At trial for premeditated first degree murder Ms. Onyelobi complained that the police didn't have probable cause to arrest her for possession of the narcotics and so all of the evidence that the cops seized thereafter had to be suppressed.  The trial court disagreed and Chief Justice Gildea affirmed that determination. The Chief said that at the time that the cops took off to the local motel to find Ms. Onyelobi here's what they knew that supported probable cause that she constructively possessed the drugs in her motel room:
(1) Onyelobi was Fairbanks’s and S.F.’s drug dealer; (2) Onyelobi dealt drugs with two other males; (3) Fairbanks and S.F. called the 208 number to acquire heroin and spoke with Onyelobi; (4) Fairbanks called the 208 number to acquire heroin 3 days earlier, immediately before his death; and (5) tracing technology placed the cell phone connected to the 208 number at the Red Roof Inn. Furthermore, when they arrived at the hotel, VCAT officers confirmed with Red Roof Inn staff that Onyelobi had been renting a room there since March 6, and that she had renewed her stay through March 15. VCAT officers also observed the two-tone van—which S.F. indicated was typically used by Onyelobi and Wilson in drug deals—located in the Red Roof Inn parking lot. After observing the bag of suspected narcotics in the room, VCAT officers also saw multiple cellular phones lying in plain view. 6 And while Onyelobi was not initially present inside the room, she arrived at the Red Roof Inn around 30 minutes later, confirming her occupancy.
During jury selection the state struck three potential jurors who self identified as Black or African American.  The jury apparently did include one juror from Ghana. The defense made Batson challenges to the three strikes, all of which the trial court rejected and all of which Chief Justice Gildea affirms.  The Chief focused on the first Batson, requirement, a prima facie case of discrimination.  The first strike, by itself, does not necessarily establish a prima facie case, State v. White, 684 N.W.2d 500 (Minn. 2004).  Nor was the Chief satisfied that the third strike, which the trial court described as a "pattern," established a prima facie case.  The court avoided the issue, however, by jumping to the third requirement of "purposeful discrimination."  For each of the strikes the court concluded that the state had not engaged in purposeful discrimination.

Ms. Onyelobi complained about the trial court's accomplice liability instructions.  She said that the instructions should specify the exact crime that the state said she was aiding and abetting.  The language of the pattern jury instructions use "a crime" and "the crime;" Ms. Onyelobi wanted those words replaced with "first degree premeditated murder" to assure that the jury would not convict her under the belief that she was guilty if she intended to aid some lesser included crime.  

First, the state said that Ms. Onyelobi had failed to object to this instruction.  After lengthy discussions about the jury instructions, during which the trial court rejected defense counsel's request that the trial court give a tendered instruction that aligned with her "specific crime" argument defense counsel said that the instructions that the court intended to give were "accurate and correct" but nevertheless were "misleading" and "confusing.  The Chief says that this sufficiently brought the alleged error "to the attention of the trial court," and would not be reviewed under "plain error."

The Chief then addressed the merits of the argument and rejects it, saying that when the instructions are considered "as a whole" there could have been no confusion among the jurors about what crime they had to believe that Ms. Onyelobi aided.  The court also rejected a similar argument under the "expansive" complicity liability statute, that is, other crimes, having already rejected this argument a year ago in State v. Taylor, 869 N.W.2d 1 (Minn. 2015).

Ms. Onyelobi made several pro se arguments which the court rejected.

Sunday, May 29, 2016

Court Upholds Murder Conviction, Rejecting Fourth & Sixth Amendment Claims

State v. Horst, Minn.S.Ct., 5/18/2016.  Ms. Horst and some of her friends plotted, for the usual reasons - infidelity, abuse - to kill Horst's husband, Brandon.  Eventually all but one of the friends, Allen, dropped out; for instance, on the way to the murder one of the friends ran into an old girlfriend and that was that.  Ms. Horst gave Allen a loaded gun, told him to hide in the basement until Brandon was asleep and then go upstairs and shoot him.  Ms. Horst then went shopping at Walgreens.  From there she sent multiple text messages urging Allen on until finally Allen shot Brandon one time in the head as he lay sleeping.  Ms. Horst then returned to the murder scene, called 911, and reported that someone had broken into her home and killed her husband.  The state charged Ms. Horst with first degree premeditated murder and Allen turned state's evidence against her.  

Police "invited" Ms. Horst to accompany them down to the police station, an invitation that she apparently accepted.  The officers questioned her in an unlocked conference room, she was allowed to keep possession of her personal belongings, and she left after concluding the interview. Justice Stras concluded that these facts supported the trial court's conclusion that the interview of Ms. Horst was not a "custodial" interview that required a Miranda warning.  Ms. Horst pointed to the two times that an officer accompanied her to the bathroom, the location of the interview at the police station, and the increasingly "accusatory tone" of the interview to support her claim that the interview was a "custodial" one.  Relying on a "totality of the circumstances" analysis, Justice Stras affirmed the trial court's conclusion that the interview had not been a "custodial" one.

Before Ms. Horst left the police station an officer grabbed her cell phone.  The state later got a search warrant to "seize" the contents of the phone, but Ms. Horst complained about the warrantless seizure of the phone, itself.  The trial court said that after Ms. Horst and the officer talked about what texts or calls might be on the phone an exigency existed because of the "possibility of imminent destruction or removal" of the data contained on the phone.  Justice Stras said that seizure of the phone in order to preserve its contents while getting a warrant was no different that "seizure" of a person whom police have probable cause to suspect had marijuana hidden in his home so that he could not sound the alarm.  Illinois v. McArthur, 531 U.S. 326 (2001).  Ms. Horst had argued that it would have been easy enough to get a warrant to seize the cell phone, which could have been accomplished with a phone call under Rule 36.03.  Justice Stras acerbically observes, however, that although the rule permits a telephone call to get a warrant the office must also prepare a "duplicate original warrant," which would mean interrupting the interview - is there only one officer working this case? - draft the warrant, call the judge, etc., all the while risking that Ms. Horst would simply get up and walk the cell phone out the door and into the nearest incinerator.

Ms. Horst complained about the state's use of multiple search warrants to obtain her medical records in order to refute her claim that she had miscarried multiple times as a result of Brandon's assaults.  Ultimately, however, the state did not introduce any of those records.  Ms. Horse nonetheless said that because the state had use of those records to formulate its theory of the case that there had been constitutional violations.  Justice Stras said that even if the records influenced the state's presentation of its case the evidence of guilt was sufficiently overwhelming that no reasonable jury would have reached a different conclusion.

Ms. Horst complained that the trial court should have given an accomplice corroboration instruction.  The state agreed that Allen was an accomplice, but because Ms. Horst didn't request the instruction it was harmless under the "plain error" doctrine.  Justice Stras agreed after going through a multi-factor analysis described in State v. Jackson, 746 N.W.2d 894 (Minn. 2008).

Finally, the court rejected Ms. Horst's claim that the state's evidence had been insufficient to convict her; and rejected a claim that because a potential juror and an investigator had been classmates some decades ago the trial court should have removed the juror for cause.

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.