Thursday, December 1, 2016

Officers Had Reasonable Articulable Suspicion To Conduct Dog Sniff of Exterior of Car

State v. Lugo, Minn.S.Ct., 11/30/2016.  The cops were sitting on a "known drug house" outside of which Mr. Lugo was sitting in a car.  After a while Mr. Lugo got out of the car, went into this "known drug house", stayed about twelve minutes, then drove off.  Another set of cops stopped Mr. Lugo.  Mr. Lugo didn't stop right away; rather he pulled into a parking lot, drove across it, turned around, came partially back and finally stopped.  Just before stopping he leaned over in his seat as though he was trying to hide something. Mr. Lugo had recently been arrested for drug possession.  He lied about the identity of the owner of the car.  Last, but not least, he blurted out "Man just take me to jail, please."  

After all that it was time to send in the dog.  Dog sniffed around the exterior of the car and "alerted" to a couple of places.  The resulting search turned up drugs.  Mr. Lugo challenged this search, but limited to bringing in the dog.  On these undisputed facts, Justice Lillehaug concluded that the officer had a reasonable, articulable suspicion that Mr. Lugo was engaged in drug-related criminal activity sufficient to expand the scope of the initial stop to include the dog sniff.

The state had actually lost the suppression hearing in the trial court.  This set up a legal dispute over the proper standard of review when it's the state who is initiating a pretrial appeal.  You can read about that if you're so inclined; suffice it to say that the outcome makes it easier for the state to bring pretrial appeals.

Mysteriously, Justice Stras concurs only in the result.  There's no elucidation of where he parted company with the majority opinion.

Sunday, November 27, 2016

Warrantless Entry Onto Property to Conduct Search Violates Fourth Amendment

State v. Chute, Minn.Ct.App., 11/21/2016.  B.W.F. called the police to report that he'd found the camper that he had reported stolen a couple of months back.  An officer met B.W.F. at the designated location and from the vantage point of a public road the officer confirmed that the make and model of the camper matched those of the stolen camper. The officer then parked his squad in one of two driveways on the property; from this vantage point the officer could see what were described as a "unique set of bolts" on the front of the camper.  The officer then walked down that driveway to the camper. 

The state charged Mr. Chute with receiving stolen property.  Mr. Chute challenged the search and seizure but the trial court said that the officer's actions were justified under the plain-view doctrine. This doctrine says that police may seize an object that they believe to be the fruit of a crime without a warrant if the object's incriminating nature is immediately apparent, the police are legitimately in the position from which the view the object, and the police have a lawful right of access to the object.  State v. Milton, 821 N.W.2d 789 (Minn. 2012).  

The court of appeals reverses the trial court's ruling on the suppression motion.  The court said that the camper's incriminating nature only became apparent after the officer had entered upon the property. However, was the officer's position on the driveway lawful?  This raises the question whether the driveway was part of the "curtilage" which the Fourth Amendment protects the same as persons and houses.  Police may not search the curtilage without a warrant.  If, however, the curtilage included the driveway and was "impliedly-open" to the public then the entry was lawful.  State v. Crea, 305 Minn. 342, 233 N.W.2d 736 (Minn. 1976).  This doctrine, however, does not give the police license to enter the curtilage where their behavior objectively reveals a purpose to conduct a search.  Florida v. Jardines, 133 S.Ct. 1409 (2013). Tracht v. Commissioner of Public Safety, 592 N.W.2d 863 Minn.Ct.App. 1999).   The court of appeals concludes that because the officer first walked down the driveway toward the camper and performed various other acts to identify the camper as the stolen camper before going over to talk to Mr. Chute, the officer was on the property to conduct a search.  That made the search unlawful.

Monday, November 21, 2016

Issuing a Worthless Check For A Service or Good Already Received Exempt From The Issuing Dishonored Check Statute

State v. Schouweiler, Minn.S.Ct., 11/16/2016.  Ms. Schouweiler sent a worthless check to the Wabasha County Treasurer to pay for her past year's property tax obligation.  When the treasurer invited her to make good on the check she ignored the request.  As a result, the state charged her with felony issuance of a dishonored check. Here's what the statute says:
Whoever issues a check which, at the time of issuance, the issuer intends shall not be paid, is guilty of issuing a dishonored check.
Ms. Schouweiler moved to dismiss the Complaint, invoking an exception to this statute that says that it does not apply to either a postdated check or to a check given "for a past consideration."  She said that the bill for her previous year's property taxes was "a past consideration" exempted from the grasp of the statute.

Justice Chutich agrees, with Chief Justice Gildea dissenting. Justice Chutich hauls out multiple dictionaries to define what a "past consideration" is, and reverses Ms. Schouweiler's conviction.  The court says that a "past consideration" includes checks given either for services already performed or for goods already received.  The statute is for the K-Mart crowd passing paper to some teenage cashier to buy some blue light special.  If that same person goes home and writes a bad check to pay for last month's Verizon cell phone calls, well, the money is still owed for that "past consideration," but there's been no crime.  Or, at least not this crime.

The Assumed Error in Admitting "Plan" Spreigl Evidence is Harmless

State v. Griffin, Minn.S.Ct., 11/16/2016.  A jury convicted Mr. Griffin of first degree felony murder.  Mr. Griffin and a buddy, Mr. Grant, had unsuccessfully tried to rob a guy who was talking down the street. Apparently undeterred, but perhaps frustrated, they tried again.  Here's what happened:
After the unsuccessful robbery, Griffin and Grant walked down a nearby alley until they reached the backyard of 3629 Columbus Avenue South, which was the home of Francisco Benitez-Hernandez and L.B-H. Benitez-Hernandez, L.B-H., and their brotherin-law P.Y-E. were in the backyard sitting at a table drinking beer. As Griffin and Grant entered the backyard, Griffin aimed the pistol at Benitez-Hernandez. When Griffin demanded money, Benitez-Hernandez said they had no money. Griffin then hit BenitezHernandez with the gun in the head above his eyebrow, causing Benitez-Hernandez to bend over and hold his bleeding head. L.B-H. stood up and threw a beer bottle at Griffin in an effort to distract him. Griffin ducked out of the way, fell backward, caught himself, and then “turned around and . . . fired at [L.B-H.].” The bullet struck L.B-H. just above the elbow of his left arm. As L.B-H. ran to get help, Benitez-Hernandez grabbed Griffin’s leg. Griffin redirected the pistol at Benitez-Hernandez’s chest and fired a shot. The bullet penetrated Benitez-Hernandez’s chest, fatally wounding him. Griffin and Grant fled the scene before the police arrived.

Over objection, the state was allowed to present Spreigl evidence, which Justice Hudson summarized:
At trial, the State called O.R-H., who testified that on January 3, 2008, he was walking to work and was at First Avenue and 27th Street in Minneapolis when he noticed two men walking behind him. Approximately one block later, one of the men ran up behind him. When O.R.-H. turned around, the man punched him in the nose and rummaged through his jacket and pants pockets for money. O.R-H. was unable to make an in-court identification. The State then called Officer Keia Pettis, who testified that on January 3, 2008, during a show-up identification procedure, O.R-H identified Griffin as the person who attempted to rob him.
Now, a couple of things.  First, Justice Hudson  never says why the state wanted to introduce this evidence.  As a result, the court doesn't have to engage in the analysis required by State v. Ness, 707 N.W.2d 676 (Minn. 2006).  Instead, the court jumps straight to the prejudice consideration and summarily concludes that there was none.  The Court is down two members for this Opinion, neither Chutich nor McKeig having been part of the court at the time of submission, but were there really not three votes to uphold or reject the admission of this evidence?  Second, Justice Stras, although he concurs in the court's opinion, is unhappy with the ducking of the question. So, he puts on his professorial hat to write about why he thinks that when it comes to admitting Spreigl evidence  to prove "plan" the court's jurisprudence has come off the rails.  

Second, the next case to come along with "plan" Spreigl evidence can take some lessons from Justice Stras's concurrence.  While this opinion offers no assistance to ferreting out the correctness of admitting Spreigl evidence for such purpose, Justice Stras gives us the full treatise.

Thursday, November 17, 2016

Air Powered BB Gun Is Still Not a "Firearm"

State v. Yang, Minn.Ct.App., 11/14/2016.  A few weeks back the Minnesota Supreme Court said in State v. Haywood, that the "firearm" family that lived at Minn.Stat. 609.165.1(b) did not include "BB guns".  The court of appeals, for the life of them, can't discern any reason why the "firearm" family next door at Minn.Stat. 624.713.1 could also include "BB guns."

Monday, October 31, 2016

Court Ignores Psychological Evidence In Concluding That Confession Was Voluntary

State v. Nelson, Minn.S.Ct., 10/26/2016.  Mr. Nelson, just barely eighteen, is serving a life without release sentence.  A jury convicted him of the murder of his father.  On appeal he argued that his confession was not voluntary.  Here's how Justice Chutich put the issue:
Nelson contends that his confessions were not voluntary and therefore the district court erred when it denied his motion to suppress them. He asserts, in particular, that his on-scene confession was involuntary because the interrogating officers led him to believe that they were not his adversaries and that confessing would benefit him. He also asserts that his youth, inexperience, and upbringing made him “particularly susceptible” to the officers’ manipulative interrogation techniques, in part because childhood abuse had conditioned him to acquiesce to male authority figures. 
A confession is involuntary only when a defendant's "will was overborne at the time he confessed."  State v. Farnsworth, 738 N.W.2d 364 (Minn. 2007).  The actions of the interrogators, together with the circumstances surrounding the confession must be "so coercive, so manipulative, so overpowering that [a defendant" was deprived of his ability to make an unconstrained and wholly autonomous decision to speak."  State v. Pilcher, 472 N.W.2d 327 (Minn. 1991).  Both sides presented expert testimony on the question of the voluntariness of Mr. Nelson's confession. Tellingly, Justice Chutich never mentions this testimony - from either side - in concluding that Mr. Nelson's will had not been overborne.

Mr. Nelson committed this offense one week past his 18th birthday. He argued that psychologically and socially he was still a juvenile and thus should benefit from Miller v. Alabama's rule that a mandatory life sentence without release is unconstitutional.  Justice Chutich ducks this claim by pointing out that he had not raised it in the district court.  

Post Conviction Petitioner Failed to Show That Either The Court Or The Prosecutor Intimidated Witnesses From Testifying

Caldwell v. State, Minn.S.Ct., 10/26/2016.  Mr. Caldwell is serving a life without release sentence so understandably he's spending a lot of energy trying to get out from under that sentence.  The court previously upheld his conviction on direct appeal.  He commenced this post conviction petition arguing that three state witnesses had presented false testimony at his trial.  That got him an evidentiary hearing, but, alas, things didn't go too terribly well.

First of the recanting witnesses was a Mr. Turnage.  Before Mr. Turnage could open his mouth the judge threatened him with perjury.  Mr. Turnage withstood that threat and on direct examination he recanted his previous trial testimony.  It was then the prosecutor's turn to hurl a few stronger threats at Mr. Turnage. Specifically, the prosecutor threatened to charge Mr. Turnage with aiding an offender after the fact, which, in case Mr. Turnage didn't know, could carry a sentence equal of half what Mr. Caldwell got. Now, regrettably, no one explored just what half of a life without release sentence looked like, but Mr. Turnage apparently had enough of an idea of it to invoke his Fifth Amendment rights.  The final upshot was that the judge threw out all of Mr. Turnage's testimony. When Mr. Caldwell couldn't produce the other two recanting witnesses, the whole thing fell apart and the court denied the petition.

Mr. Caldwell said that both the judge and the prosecutor "substantially interfered with [Mr. Turnages's] decision to testify at the post conviction evidentiary hearing," which denied him the right to present a complete defense. Justice Hudson concludes that neither did that.  The Justice assumed without deciding that there was a Fourteenth Amendment right to present a complete defense during a post conviction hearing.  Applying the test that the Justice assumes applies, Mr. Caldwell had to prove that a government actor interfered with a witness's decision to testify, the interference was substantial, and the defendant was prejudiced by the conduct. Colbert v. State, 870 N.W.2d 616 (Minn. 2015).  Mr. Caldwell could not meet even the first requirement of the test.  The Justice said that not only did the judge not interfere, the judge was "to be commended" for it's warnings to Mr. Turnage.  And the prosecutor was doing nothing more than aggressive cross examination.

Finally, the court said that it was within the judge's discretion to strike Mr. Turnage's testimony after he clammed up.  The state's absence of an opportunity to cross examine him and what the court said was Mr. Turnage's invalid waiver of his Fifth Amendment rights - his direct testimony - authorized 

Sunday, October 23, 2016

Air-Powered BB Gun Is Not a Firearm

State v. Haywood, Minn.S.Ct., 10/19/2016.  The state charged Mr. Haywood with possession of a "firearm" by one who is prohibited from such possession.  The "firearm" in question was an air-powered BB gun.  Mr. Haywood said, no, an air-powered BB gun is not a "firearm" because every dictionary he consulted for the definition of "firearm" said that in order to pass muster as a "firearm" the object must use gunpowder or some similar chemical explosive force.

Now, the court of appeals had affirmed Mr. Haywood's conviction, relying upon a supreme court opinion, State v. Seifert, 256 N.W.2d 87 (Minn. 1977).  "Law by dictionary" wasn't in vogue back then so the courts were much freer to decide cases with the result in mind, based upon what the particular make of the court perceived the legislative purpose to be. Seifert invoked a game and fish statute, among other authorities, to satisfy itself that the legislature meant "firearm" to be all encompassing:
In our opinion, the fact that the gun defendant used required gas rather than gunpowder to discharge its projectile does not mean, as defendant contends, that the gun could not be a firearm within the meaning of the term “firearm” used in [section] 609.02. Having statutory purpose in mind, we think that term should be defined broadly to include guns using newer types of projectile propellants and should not be restricted in meaning to guns using gunpowder.
Not so now.  Justice Hudson says that the "plain and ordinary" meaning of "firearm" is an object that requires gunpowder or some similar chemical explosive force.  The use of compressed air is nowhere in any of the dictionary definitions of "firearm."  

Saturday, October 22, 2016

Warrant Based Upon Probable Cause Is Required to Issue GPS Tracking Device

State v. Liebl, Minn.Ct.App., 10/17/2016.  The DNR had a bad week, from both the court of appeals and the supreme court.  Here, the DNR invoked a statute, Minn.Stat. 626A,37, which said that a judge could issue an order authorizing the DNR to covertly install a GPS tracking device on a showing of "reason to believe" that the data obtained from the GPS device would be relevant to an ongoing criminal investigation.  The DNR suspected that Mr. Liebl was hunting deer in violation of various gaming statutes.  Eventually, the state obtained a search warrant for Mr. Liebl's home and truck, where evidence of such unlawful gaming was found.  The search warrant application relied, at least in part, on the data obtained from the GPS tracking device.

Back in 2012, SCOTUS said that installation of a GPS tracking device was a "search" within the meaning of the Fourth Amendment.  United States v. Jones, ___ U.S. ___, 132 S.Ct. 949 (2012).  It necessarily follows that the court could authorize the DNR to install the GPS only upon a warrant application supported by probable cause, or if there were some exception to the warrant requirement.The DNR did not even suggest to the district court that there was probable cause, relying instead on the statutory standard of "reason to believe," so the authorization was invalid.

The state's fallback position was to argue for an extension of Minnesota's limited adoption of the good faith exception to the warrant requirement.  The court of appeals rejects this attempt, pointing out that Jones had been good law for quite some time; the state could point to no cases that applied a good faith exception  to preserve the admissibility of evidence that had been obtained through a post-Jones, warrantless GPS tracking device:
In sum, Officer Picht lacked an objectively reasonable basis for his belief that warrantless GPS tracking of Liebl’s truck was constitutionally permissible after Jones. We believe that the exclusionary rule’s deterrence rationale was served here, because law enforcement has a duty to stay abreast of changes in the law.

Sunday, October 16, 2016

Refusal Statute As Applied to Warrantless Urine Test is Unconstitutional

State v. Thompson, Minn.S.Ct., 10/12/2016.  Chief Justice Gildea takes something of a victory lap to celebrate the SCOTUS adoption of the Minnesota Court's pronouncement that a breath test is nothing more than search incident to a lawful arrest.  State v. Bernard, 859 N.W.2d 762 (2015), aff’d sub nom. Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016).  Somewhat, because the court unanimously throws in the towel to declare Minnesota's refusal statute unconstitutional as applied when what's refused is either a blood or urine test.  This opinion is the urine test refusal.

The state wanted the court to expand its recent limited adoption of the good faith exception to the warrant requirement.  However, the Chief points out that nothing had really been suppressed; after all the cops didn't collect any evidence sought to be introduced at trial.

Refusal Statute As Applied to Warrantless Blood Test is Unconsitutional

State v. TrahanMinn.S.Ct., 10/12/2016.  Chief Justice Gildea takes something of a victory lap to celebrate the SCOTUS adoption of the Minnesota Court's pronouncement that a breath test is nothing more than search incident to a lawful arrest.  State v. Bernard, 859 N.W.2d 762 (2015), aff’d sub nom. Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016).  Somewhat, because the court unanimously throws in the towel to declare Minnesota's refusal statute unconstitutional as applied when what's refused is either a blood or urine test.  This opinion is the blood test refusal.

The state wanted the court to expand its recent limited adoption of the good faith exception to the warrant requirement.  However, the Chief points out that nothing had really been suppressed; after all the cops didn't collect any evidence sought to be introduced at trial.

Thursday, September 29, 2016

No Abuse of Discretion To Deny Post Conviction Petition Without Evidentiary Hearing

Morrow v. State, Minn.S.Ct., 9/21/2016.  Mr. Morrow filed this post conviction action, on time, challenging the representation that he received from his appellate counsel.  He said that appellate counsel had rendered ineffective assistance of counsel by failing to raise these five issues:
(1) the sufficiency of the evidence; (2) prosecutorial misconduct; (3) ineffective assistance of trial counsel; (4) instructional error on the driveby-shooting counts; and (5) the possible violation of a statute prohibiting multiple overlapping convictions, Minn. Stat. § 609.04 (2014).
The post conviction court denied the petition in its entirety without holding an evidentiary hearing.

To get a hearing, Mr. Morrow had to allege facts which if proved would satisfy the two requirements of Strickland v. Washington, 466 U.S. 668 (1984): counsel's performance fell below an objective standard of reasonableness, and absence appellate counsel's shoddy performance the outcome of his direct appeal would have been different.  Justice Stras jumps straight to this second requirement to affirm the summary dismissal of the petition.

Mr. Morrow had raised both a sufficiency and prosecutorial misconduct challenge in his pro se supplemental brief on his direct appeal. Appellate counsel was not obliged to take up either of those causes absent a showing that this failure "fell below an objective standard of reasonableness," which Justice Stras didn't address.  

Because the trial court did not sentence Mr. Morrow on the drive-by shooting conviction, there could be no prejudice to him as a result of any error in the court's instructions on that count.  See State v. Jackson, 773 N.W.2d 111 (Minn. 2009).

Finally, Mr. Morrow's argument that Minn.Stat. 609.04 required the trial court to convict and sentence him on the lowest degree of the offenses charged just didn't square with the language of the statute. Rather, all that the statute says is that the trial court could not have convicted Mr. Morrow of both the first and second degree murder counts for the same victim.

Monday, September 19, 2016

Testimony About some of What Defendant Said during Interrogation Does Not Authorize Defense To Introduce Entirety of Recorded Statement

State v. Robertson, Minn.S.Ct., 9/14/2016.  A jury convicted Mr. Robertson of first degree premeditated murder of Kevin Braziel.  It was the state's theory that Mr. Robertson shot and killed Mr. Robertson by mistake.  When police interrogated Mr. Robertson he denied any involvement in Mr. Braziel's death.

The state did not play Mr. Braziel's recorded statement during the trial.  Instead, the officer to conducted the interrogation testified about parts of the interview.  Although the trial court allowed defense counsel to ask this officer about other portions of the interrogation the court denied a request to play the whole thing. 

Mr. Robertson made this request under Rule 106 of the rule of evidence.  This rule says that if one side introduces a portion of a recorded statement  then the other side may be permitted to play any of the remainder of the recording "which ought in fairness to be considered contemporaneously with it."  Chief Justice Gildea said, however, that the problem for Mr. Robertson was that the state didn't introduce any of the recorded statement (or its transcript). State v. Bauer, 598 N.W.2d 368 (Minn. 1999) says just that.  It should be permissible, however, for the defense to introduce portions of the recorded interview where not doing so would mislead the jury.

Mr. Robertson raised some additional errors on appeal, none of which did the court find persuasive.

Use of Multi-County Grand Jury Procedure Survives State Constitutional Challenge

State v. Fitch, Minn.S.Ct., 8/24/2016.  Mr. Fitch shot and killed a police officer in Dakota County, then shortly thereafter got into a shoot out with officers in Ramsey County, injuring three of those officers before being shot himself.  The state convened a multi-county grand jury under the provisions of Minn.Stat. 628.41, subd. 2.  That grand jury then returned an indictment which charged Mr. Fitch with the homicide in Dakota County, and with multiple offenses in Ramsey County:  three counts of attempted murder in Ramsey County and possession of a firearm by an ineligible person.  

The statute authorized either a Dakota or Ramsey judge to convene this multi-county grand jury.  Whether by coin flip or otherwise, a Dakota judge convened one of these multi-county grand juries and designated the Dakota County Attorney's Office to attend to the care and feeding of this grand jury.   The order that impaneled the grand jury also designated Dakota County as the venue for any proceedings in the event of an indictment.  This venue designation put Mr. Fitch's prosecution on a collision course with a provision of the state constitution, Article 1, Section 6, which says that Mr. Fitch "enjoys" the right to a "public trial by an impartial jury of the county or district wherein the crime shall have been committed..."

Mr. Fitch invited this collision by attacking the indictment in two ways.  He moved to dismiss the indictment, saying that regardless of what the statute said the district court was constitutionally required to sever the Ramsey County offenses from the Dakota homicide offense because of the jury locale requirement of the aforementioned Article 1, Section 6 of the state constitution . This was an apparent if not explicit reference to the offenses that happened in Ramsey County.  Mr. Fitch also moved to sever the Dakota homicide from the Ramsey County offenses under Rule 17.03, subd 3; he relied upon two provisions of that rule:  that the Ramsey County offenses were not related to the Dakota homicide, or even if related joining the offenses for trial was too prejudicial.  

At the same time, Mr. Fitch moved to change venue because, he said, all the pretrial publicity prevented him from getting a fair trial. The trial judge took up the venue change motion first and granted it, packing everyone off to Stearns County for trial.  The trial court then took up Mr. Fitch's constitutional challenges and denied them. Then the trial court then denied the motion to sever the Ramsey County charges.  A Stearns County jury convicted Mr. Fitch of all of the charges.

Mr. Fitch appealed the rulings on his constitutional challenge and on his Rule 17.03 severance request.  The court first took up the constitutional challenge.

Justice G. Barry Anderson acknowledges that Mr. Fitch had a right to be tried by a jury from a particular county or district; the constitutional provision is about the jury pool and not about the location of trial.  With that understanding it's easy to reject any claim that Mr. Fitch had a right to either a judge or prosecuting authority from a particular county or district.  Rather, Mr. Fitch's rights under Article 1, Section 6 cannot be violated until a judge impanels a jury from a county other than the one in which the offense occurred to adjudicate the case against him.  

Addressing the right to be tried by a jury from a particular county or district, Justice Anderson says that past opinions establish that even this right is subject to at least two exceptions:  this right can be overcome where it would be difficult to identify the county or district in which the offense occurred, and where an impartial jury cannot be drawn from the county or district in which the alleged crime occurred.  The court does say that in most cases in which a multi-county grand jury returns an indictment, the district court should designate venue based on where the alleged offense occurred.  So, although the statute gives the trial judge discretion in designating the venue of charges returned by a multi-county grand jury the state constitution does impose restraints on that discretion.

So, the court is creeping perilously closer and closer to having to answer the constitutional question:  did keeping the Ramsey County charges in Dakota County violate Mr. Fitch's right to be tried by a jury of the county or district in which the crimes occurred?  The state said no, for two reasons:  because it avoids serial prosecutions, and because it would be just too traumatic and, frankly, inconvenient, for all of its witnesses to have to testify at two different trials.  Justice Anderson found these justifications for trampling on Mr. Fitch's state constitutional rights just a bit too easy and more problematic, amorphous.  The court said that under the state's rule there would be "no limiting principle for when witness convenience outweighs a defendant's rights under Article 1, Section 6 to trial by a jury of the county or district in which the crime was committed."  

By rejecting the state's only reasons to try both sets of charges in Dakota County Justice Anderson is left with no justification to deny Mr. Fitch his state constitutional right to a trial by a jury of the county or district in which the crime was committed.  Now finally face to face with the state constitutional question the court does what it is wont to do and punts it.

To do that things get a little fuzzy.  This is because, remember, at the same time that Mr. Fitch moved to dismiss the indictment on state constitutional grounds he also moved to change venue because of publicity.  This was just the out that the court was looking for.  If Mr. Fitch could not get a fair trial in "the greater Twin Cities metropolitan area" - which is what he said - then what did it matter whether he was entitled to trial in Ramsey County before a Ramsey County jury on the Ramsey County charges?  

Justice Anderson takes a breath at this point and rather sheepishly concedes in a lengthy footnote that Mr. Fitch had been asking the Dakota County court only that the homicide venue, which was initially and properly located in Dakota County, be moved out of Dakota County; while at the same time he was asking that the Ramsey charges be sent packing back to St. Paul, not as a venue change because of pretrial publicity from a properly venued action but as a recognition that under the state constitution Dakota County had no business trying the Ramsey charges in the first place.  The court also accepted Mr. Fitch's assertions to them that he had not intended to waive his right to have the Ramsey County charges tried by a Ramsey County jury.

Despite all this, Justice Anderson fudges these concessions by then noting that by requesting a change of venue Mr. Fitch was admitting that he could not receive an impartial jury trial in either county.  An "impartial" jury is one of the safeguards that Article 1, Second 6 protects.  This lets the court off the hook because it could now pronounce that because of all that publicity about which Mr. Fitch so bitterly complained he simply "did not have a right to a trial by a Ramsey County jury on the Ramsey County charges..." because that trial would not be an impartial one. As a result the court offers no guidance on how to address these thorny issues the next time up. Whew, that was close.

The court then addresses the severance motion under traditional severance jurisprudence.  The resolution of that question turns on the existence of prejudice, which in this case Mr. Fitch could not show.  Joinder is not prejudicial, the court said, if "evidence of each offense would have been admissible Spreigl evidence in the trial of the other."  State v. Conaway, 319 N.W.2d 35 (Minn. 1982). It was easy enough for the court to say that that was the case for Mr. Fitch, if for no other reason than the two sets of charges occurred roughly five miles and five hours apart.  Finding no prejudice to Mr. Fitch by denying the severance request the court does not have to rule whether the refusal to sever was error.

Monday, September 12, 2016

For DWI Prosecutions a "Hazardous Substance" May But Need Not Be Listed Under the Hazardous Substances Rules

State v. Carson, Minn.Ct.App., 9/6/2016.  For those who were wondering,  1,1-difluoroethane (DFE) is a "hazardous substance" under the DWI laws.  It is unlawful to drive while under the influence of a hazardous substance.

1,1-difluoroethane (DFE) turns out to be one of the components of those air canisters that blow all the dust out of the innards of computers.  A couple of things to know about such products: Although known as "canned air" there is no air in the products. The cans contain gases that have been compressed into liquids, something that air won't allow to happen except under really extreme temperatures.  Second,  when inhaled the gases displace oxygen in the lungs and removes carbon dioxide from the blood which causes the user a euphoric feeling.

Ms. Carson said that the state had failed to prove that she was under the influence of a "hazardous substance" which is defined as "any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health)."  DFE is not included in the chapter 182 list of hazardous substances.

However, those rules also state that the list includes the majority of hazardous substances but not all of them.  The rule further requires an employer to keep an eye peeled for the presence of other substances that are "hazardous."  

A Person "15 Years of Age or Younger" Is a Person Who Has Not Yet Attained The Age of 16.

State v. Olson, Minn.Ct.App., 8/22/2016.  The state charged Mr. Olson with four counts of violating the child solicitation statute. Unbeknownst to him, Mr. Olson communicated with an undercover cop who said that her name was "Haley" and claimed to be fourteen years of age.  When Mr. Olson arrived for his first meeting with "Haley" the cops busted him.

To convict Mr. Olson the state had to prove that he reasonably believed that he was soliciting or communicating sexually explicit material to a "child."  The statute defines a "child" as a "person 15 years of age or younger."  Mr. Olson waived a jury trial and the trial judge found that Mr. Olson reasonably believed that he was communicating with a person "under the age of sixteen."  Mr. Olson said, hold on, the statutory definition of "child" means a person who is younger than or has reached the specified fifteenth birthday and not a day older.

The court of appeals is not amused.  As usual, it hauls out various dictionaries to discover that people ordinarily express their ages in yearly intervals, so that one who is "15 years of age" might actually be 15 years and eleven months old.  If Mr. Olson's interpretation is correct, then just how is "Haley" to say how old she is on the day after her fifteenth birthday.  "Hi, I'm Haley.  I was fifteen yesterday. Today I'm not sixteen."  You get the idea.

Tuesday, September 6, 2016

Confession is Voluntary and Evidence of Premeditation is Sufficient

State v. Cox, Minn.S.Ct., 8/24/2016.  Mr. Cox and his buddy Mr. Kurr went to rob Mr. Moran whom they believed was a drug dealer and thus likely to have a lot of both drugs and cash laying around his house.  When Mr. Moran failed to obey Mr. Cox's command to take his hands out of his pockets Mr. Cox first shot Mr. Moran in the thigh and then three times in the chest.  A jury convicted Mr. Cox of first degree premeditated murder, two counts of first degree intentional felony murder and first degree aggravated robbery.  On appeal Mr. Cox challenged the admissibility of his confession, and the sufficiency of premeditation to uphold the first degree premeditated murder conviction.

Mr. Cox said that his confession was not voluntary for three reasons:  the cops promised that in exchange for his confession they would look into his brother's death; the cops assured him that they could influence the county attorney's charging decision; and a "small town Scott County jury" would be more lenient if presented with a full confession.  Justice Dietzen rejects each of these assertions in turn.  The Justice says that because it was Mr. Cox who suggested that he would trade his confession for a promise to look into his brother's death his will was hardly overborne.  While it is improper for cops to suggest that they can influence prosecutors in favor of a defendant, all that the cops did here was to point out that the prosecutors would be "impressed" by his confession.  Finally, the crack abou "small town juries" being more lenient was "simply a prediction.

Two Justices, Chief Justice Gildea and Justice G. Barry Anderson, dissented from the majority's conclusion that the state had sufficiently proven premeditation.  Here's what Justice Dietzen says that the state proved that support a reasonable inference that Mr. Cox premeditated Mr. Moran's murder, which facts are inconsistent with a reasonable inference that his conduct was the result of a rash impulse:
The circumstances proved taken together are as follows. Cox planned the armed robbery of Moran’s home, including the potential murder of those he encountered, to accomplish his criminal objective. Cox practiced shooting the handgun, and brought a fully loaded handgun, extra bullets, and a shooting glove with him so that he was ready to murder the occupants of the home if necessary. Cox unlawfully entered Moran’s home, and told B.M. that he might kill everyone in the home if B.M. lied to him. When Moran arrived Cox stated that Moran is “the one I’m looking for.” Moran’s cell phone rang and Cox ordered Moran to show his hands. When Moran ignored Cox’s command to “put down the phone,” Cox shot Moran in the leg shattering his femur. Forty seconds elapsed between the first command and the first shot. Moran was wounded and unarmed. When Moran ignored the second command, Cox shot Moran in the chest causing him to stumble and fall. Cox shot Moran in the chest two more times.
The dissenters anguish that the majority has eviscerated the intentional murder statute:
The court’s holding in this case will make a premeditated murder out of virtually any armed robbery that results in a death. More generally, an affirmance here of the premeditated murder conviction may leave few circumstances that fit the statutory definition of intentional murder. Given the legislative decision to distinguish between an intentional murder and a premeditated murder, that cannot be the law. The circumstances as a whole in this case are not consistent only with the theory of a premeditated murder and inconsistent with all other rational theories. As a result, I would vacate the conviction for first-degree premeditated murder and remand this case to the district court for further proceedings.

Saturday, August 27, 2016

Under Knaffla, Post Conviction Claim Is Procedurally Barred

Ouk v. State, Minn.S.Ct., 8/24/2016.  A jury convicted Mr. Ouk back in 1992 of two counts of first degree felony murder and two counts of attempted first degree felony murder.  The trial court imposed two life sentences with the possibility of release on the murder verdicts, and two fifteen year sentences of the attempt verdicts, with these sentences to be served consecutively.  

Mr. Ouk brought this action in his view to correct his sentence under Rule 27.03, subd. 9.  He said that the juvenile court had failed to follow the proper procedure for certifying him to stand trial as an adult.  The trial court construed this pleading as a post conviction petition because the petition challenged more than just his sentence.  Johnson v. State, 877 N.W.2d 776 (Minn. 2016); State v. Coles, 862 N.W.2d 477 (Minn. 2015.)  It then summarily denied the petition under the Knaffla rule that says, among other things, that after direct appeal, claims that a petitioner knew about or should have known about at the time of direct appeal are procedurally barred.

Justice G. Barry Anderson says that the post conviction court got it right.  After certification occurred, Mr. Ouk either knew or should have known whether the juvenile court messed things up so Knaffla eliminates that claim from further challenge.  Because Mr. Ouk did not allege any exception to the statutory two year limitations statute, the court can continue to dodge the question whether Knaffla has survived the recent amendments to Chapter 590.

State's Unilateral Dismissal of Tab Charge or Complaint Need Not Be Made In Good Faith

State v. Olson, Minn.S.Ct., 8/24/2016.  When Mr. Olson's case came up for trial the state's only witness didn't bother to show up. When the trial judge denied the state's continuance request the state dismissed the tab charge and got in the judge's face by saying they would just refile the charge.  Which they did. When Mr. Olson moved to dismiss the refiled charge the trial court denied that motion.  Mr. Olson appealed.  The Court of Appeals said that the state could not use this dismiss/refile workaround to avoid its witness availability problems.

Justice Stras is having none of that.  He pulls out the rule book to find that Rule 30.01 states unambiguously that the prosecutor doesn't need anyone's permission to dismiss either a tab charge or a complaint.   The Justice declines to require that state act in good faith in exercising this authority.

Under a different rule, however, Rule 30.02, the trial court has the discretion to dismiss a charge - whether by tab charge, complaint, or indictment, "if the prosecutor has unnecessarily delayed bringing the defendant to trial."  This rule, the Justice says, applies whether the delay occurred in initially bringing charges or in Mr. Olson's situation, where the state dismisses and then refiles.  The court concludes that the trial court got it right in denying Mr. Olson's dismissal motion, quoting favorably from the trial court's ruling on the dismissal motion:
[The State] did not charge the case in order to obtain an unfair advantage and did not blatantly delay the [d]efendant’s trial. The witness’s unavailability was unknown to the State until the day before trial and the State promptly disclosed the information, continued to negotiate the case and made its intent to recharge known prior to making the continuance request. Further, the case had not been unnecessarily delayed by any continuances prior to the continuance request on the day of trial and the [d]efendant’s trial in the new recharged case was set promptly at the first available date for the parties. 

Thursday, August 25, 2016

Probable Cause To Search Blood For Alcohol Authorizes Search for Controlled Substances as Well

State v. Fawcett, Minn.S.Ct., 8/24/2016.  A court that prides itself on precision use of words, constantly running to the nearest dictionary, is not so persnickety when called upon to discern a cop's application for a search warrant.   Fresh off her victory in State v. Bernard, - a breath test is a search incident to a lawful arrest and thus an exception to the warrant requirement, Birchfield v. North Dakota, ___ U.S. ___ (2016) - Chief Justice Gildea delves into alchemy to turn alcohol into narcotics.

Ms. Fawcett ran a right light and plowed into another car, causing injuries to the driver of that other car.  Officers smelled alcohol on Ms. Fawcett's breath and she admitted that she had drunk two to three beers earlier.  Meantime, another officer applied for a warrant to search a sample of Ms. Fawcett's blood for "evidence of the crime of criminal vehicular operation/homicide."  The officer's application stated the belief that Ms. Fawcett was under the influence of alcohol.  The judge then signed a search warrant that authorized the officers to cause a blood sample to be taken from Ms. Fawcett and forwarded to an approved lab for testing.  The BCA tested the blood sample for alcohol and came up dry.  They then tested the blood sample for drugs and found two controlled substances.

The state charged Ms. Fawcett with criminal vehicular operation. She moved to suppress all evidence of the presence of drugs, saying that the warrant application did not provide any basis for police to test her blood for controlled substances.  The trial court granted that motion.  The court of appeals reversed the trial court saying that once the state "seized" a quantity of Ms. Fawcett's blood it was none of her business just what the state did with it.  

In a footnote, Chief Justice Gildea nixed that theory by the court of appeals, saying that Ms. Fawcett retained some expectation of privacy in her blood that had been seized pursuant to a search warrant although the court does not define the extent of that expectation.  The Chief then gets down to it and announces the rather astonishing conclusion that the trial judge had enough information to conclude that there was a "fair probability" that evidence of intoxicants, whether alcohol, controlled substances, or a combination of the two would be found in Ms. Fawcett's blood:
Considering all the circumstances set forth in the warrant application and supporting affidavit, including L.S.’s visible injuries, the eyewitness’s placement of Fawcett behind the wheel of a vehicle that ran a red light, the odor of alcohol on Fawcett’s breath, the officers’ conclusion that she had been drinking, and Fawcett’s admission that she had been drinking prior to the crash, the issuing judge had a substantial basis to conclude there was a fair probability that evidence of intoxicants, whether alcohol, controlled substances, or a combination of alcohol and controlled substances would be found in Fawcett’s blood.
The court justifies this result by stating two things:  First, the whole point of getting a search warrant is to put the decision in the hands of a judge to make an independent assessment of the existence of probable cause; and, Second, that independent assessment includes drawing reasonable inferences from the materials supplied to that judge by the applicant for the warrant.  But, this actually turns the more traditional analysis on its head; courts constantly compliment police officers for their acumen in ferreting out what's really going on - they're the experts - but here the court is saying that the cop got it wrong and it was for the judge to do the ferreting.

Justice Stras, joined in part by Justice Lillehaug, dissents.  Justice Stras, ever the literalist, points out that the search warrant application only talked about alcohol and never about drugs, and so the application failed to establish probable cause to search for controlled substances.  
The court has not said why facts suggesting that Fawcett negligently operated her vehicle while under the influence of alcohol also provide reason to believe that controlled substances would be found in her blood. In essence, the court has reached the unsupported conclusion that, if there is a fair probability that a person has recently used alcohol, there is a fair probability that the person has used drugs as well. 
Put another way, smelling alcohol on a driver's breath is easy.  After that it's anyone's guess whether the driver's driving behavior was the result of that alcohol, the result also of drugs, or the result of texting as well.  Who knows?

Both the majority and the dissent give lip service to supposed limits to the breadth of this opinion.  Each says, for instance, that a search warrant for blood to test for the presence of alcohol would not authorize a search for other private medical facts about a person. This acknowledgment raises the question whether this is really a smart phone case.  Just as with smart phones, there's just too much private and otherwise sensitive information in a tube of blood.  If he happens to get pulled over for suspected DWI heading up I-94 on his way to Wall Drugs does Chief Justice Roberts really want the BCA checking his genetic markers?

Justice Stras also made another pitch to adopt the Leon good faith exception to the exclusionary rule, but gets no takers.

Monday, August 22, 2016

Minn.Stat. 244.10.5a(b) Permits Aggravated Sentence Based on Any Aggravating Factor Arising From Same Course of Conduct

State v. Fleming, Minn.S.Ct., 8/17/2016.  Someone cut Mr. Fleming with a knife while the two were apparently playing basketball on a court in some park; illegal screen perhaps.  In any event, Mr. Flemming pulled a gun out of his backpack and fired off six rounds.  There were lots of adults and kids around when this happened.

Mr. Fleming pled guilty to both assault and possession of a firearm by an ineligible person.  The trial court imposed a 90 month sentence on the firearm possession conviction; the trial court initially stayed that sentence but when Mr. Fleming violated probation the court executed the sentence.  Mr. Fleming appealed. He said that although his possession of the firearm created a greater than normal danger to the safety of other people, he created that greater danger by committing the assault.  That being the case, Mr. Fleming then said that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.

Both the trial court and the court of appeals rejected this argument, relying upon a 2009 amendment to Minn.Stat. 244.10, subd. 5a(b):
Notwithstanding section 609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.
The supreme court accepted review.  Justice Dietzen doesn't really have a whole lot to say about this beyond what the court of appeals already said.  The "plain language" of the statute means just what it says:  the statute authorizes a departure based on "any aggravating factor" "notwithstanding" whatever either 609.04 or 609.035 say.

Monday, August 15, 2016

Rule of Evidence Don't Apply to Restitution Hearings

State v. Willis, Minn.Ct.App., 8/15/2016.  A jury convicted Mr. Willis of aggravated forgery, something to do with a quitclaim deed.  Fortunately, this case isn't about property law, but restitution. At the restitution hearing the trial court received in evidence, over objection, a letter from the victim's attorney stating that the victim had incurred expenses of two grand in legal fees to untangle the quitclaim business.  On appeal, the question is whether the rules of evidence apply to restitution hearings.

Now, just a few months back the supreme court said that the rules of evidence apply to Blakely bench trials.  State v. Sanchez-Sanchez.  The court of appeals, however, distinguishes this case by saying that an award of restitution is part of a criminal sentencing,   Evans v. State, 880 N.W.2d 357 (Minn. 2016), but it's not part of sentencing under Rule of Evidence 1101.  A Blakely trial is more like an adjudication of guilt phase of a criminal trial because, in part, "adjudicatory facts are determined." Just why a determination of an amount of restitution is not an "adjudicatory fact" isn't really explained.

Except that if such a determination is an "adjudicatory fact" then a restitution hearing, which is admittedly part of a criminal sentence, starts to look a lot like a Blakely hearing.  That, of course, requires a jury, which is the real elephant in the courtroom.

Wednesday, August 10, 2016

Limitations Provisions of Post Conviction Petition Are Not Ex Post Facto Provisions

Jones v. State, Minn.S.Ct., 8/10/2016.  In this post conviction petition Mr. Jones says that the limitations provisions that were enacted in 2005 cannot constitutionally be applied to him because the crimes for which he was found guilty occurred in 1992, long before the limitations provisions were enacted.  To apply the limitations provisions to him violates the federal and state prohibitions on ex post facto laws.  

Justice Lillehaug rejects this assertion.  The limitations provisions did not alter the consequences of any acts that Mr. Jones committed in 1992 and thus did not deprive him of any vested right or create a new obligation or disability regarding a past transaction.

Mr. Jones also argued that Minn.Stat. 631,21, which authorizes a court to order that a criminal action be dismissed applied to his "rare and unusual case."  The Justice also rejects this assertion, saying that the "plain words" of the statute applies to an ongoing criminal case in the district court.

Post Conviction Court Has Discretion To Raise Limitations Issue On Its Own Motion

Weitzel v. State, Minn.S.Ct., 8/10/2016.  Mr. Weitzel filed a post conviction petition.  The state did not raise a limitations claim in its response, but the post conviction court raised it on its own. Without giving the parties the opportunity to address the limitations issue the court found that the petition was untimely and summarily dismissed it. On appeal to the court of appeals Mr. Weitzel said that the post conviction court was required to consider the merits of his petition because the state had forfeited its right to assert a limitations defense. The court of appeals said that while the post conviction court should have given the parties a heads up of what it was considering doing - denying the petition as untimely  - and allow them to stake out their positions it didn't really matter because the court went on to address the merits of the claim. 

Justice Dietzen concludes that the post conviction court has the discretion to raise the limitations issue on its own motion it must provide the parties notice and the opportunity to be heard before ruling on the issue.  The Justice remanded the case back to the post conviction court to provide that opportunity.

In an odd pairing, Chief Justice Gildea and Justice G. Barry Anderson dissent.  The Chief said that she would have held the state to its failure to assert limitations as a defense and would not have allowed them to raise it. She would remand the case back to the post conviction court to consider the merits of the claim.

Post Conviction Claims Are Untimely And Thus Frivolous

Brocks v. State, Minn.S.Ct., 8/10/2016.  In this his fourth post conviction petition Mr. Brocks argued that his right to effective assistance of counsel had been violated because his attorney had a conflict of interest.  The post conviction court summarily denied the petition, saying that it was untimely under the limitations provision of the post conviction statute, and that it did not satisfy the "interests of justice" exception to those limitations provisions. In the alternative, the post conviction court said that the petition was barred under Knaffla, including the statutory adoption of the Knaffla rules.

Chief Justice Gildea points out that Mr. Brocks' petition was filed well past the two year limitations period and so he stays in court only if one of the exceptions applies.  Mr. Brocks claimed that the "interests of justice" exception applied but the Chief rejects that assertion.  The petition does not satisfy the "interests of justice" exception because it is procedurally barred.  Mr. Brocks raised the claim presented here both in his direct appeal and in her first post conviction appeal.  Mr. Brocks did not raise either of the Knaffla exceptions, the continued viability of which the court continues to dodge, and so he has forfeited any claim that either exception applies.