Tuesday, May 26, 2015

Criminal Defamation Statute Is Declared Unconstitutional

State v. Turner, Minn.Ct.App., 5/26/2015.  In a pique of anger at his former girlfriend, C.M., Mr. Turner posted ads on Craigslist which purported to be from C.M. and her minor daughter S.M.  As a result of the contents of these ads, about which the court modestly declines elaboration, a bunch of guys called C.M. and S.M. seeking to have sex with them.  The state charged Mr. Turner with criminal defamation, Minn.Stat. 609.765, subd. 2:
Subdivision 1. Definition. Defamatory matter is anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.
Subd. 2. Acts constituting. Whoever with knowledge of its defamatory character orally, in writing or by any other means, communicates any defamatory matter to a third person without the consent of the person defamed is guilty of criminal defamation and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Mr. Turner said that this statute, which dates back to the 1890’s, is overbroad and thus violates the First Amendment and the state constitution’s counterpart.  The state conceded that the statute was overbroad but thought that it could by saved by a narrowing construction.  The court concludes that the statute is overbroad because it does not exempt truthful statements from prosecutions and as applied to matters of public concern does not require the state to prove “actual malice” before imposing liability.  The court also declines the state’s invitation to narrowly construe the statute because to do so would require that the court either write in an “actual malice” mental state or construe the statute to include this mental state.  Such a rewrite, the court said, “would constitute a serious invasion of the legislative domain.”

When Imposing Consecutive Sentences For Burglary & CSC III The Burglary Gets Sentenced First

State v. Jerry, Minn.Ct.App., 5/26/2015.  The district court found Mr. Jerry guilty of burglary in the first degree and with criminal sexual conduct in the third degree.  The court found that Mr. Jerry came into S.E.’s home without permission, grabbed and pushed her against the bedroom wall, and then sexually assaulted her.  The trial court imposed consecutive, executed sentences.  Even though the burglary was first in time, the court sentenced the CSC III first.  The state’s theory for this was that the burglary conviction “was predicated or conditioned upon [Mr. Jerry’s] completion of the criminal sexual conduct.”
Yeah, beats me what that means.  Except that what it meant to Mr. Jerry was that his combined sentence jumped from 186 months (129 months on the burglary and 57 months on the CSC III), to 237 months (180 months on the CSC III and 57 months on the burglary). 

With one dissent, the court of appeals makes short shrift of this theory.  A burglary, the court points out, is complete upon entry.  (Insert list of citations.)  The subdivision of the burglary statute requires that an assault be committed determines the sentence.  Here, the trial court found that Mr. Jerry had entered S.E.’s house and assaulted her before the sexual assault.  Under those findings the burglary was certainly complete once Mr. Jerry had entered the house and committed the assault.  The burglary gets sentenced first.  The trial court erred as a matter of law by sentencing the CSC III first.

Monday, May 25, 2015

Seating Actually Biased Juror is Structural Error That Requires New Trial

State v. Fraga, Minn.S.Ct., 4/22/2015.  This is a horrific crime – essentially the stomping to death of a two year old - that is now on its way back to the trial court for a third time, this time because the trial judge was perhaps a bit too impatient to seat a jury and the prosecutor was a bit too aggressive in wanting to keep a particular juror.  In, of all things, a unanimous opinion, Justice Lillehaug pens a strong opinion about juror bias for this ever whimsical court.

During jury selection for the retrial, Mr. Fraga took the position that any potential juror who knew that he had been convicted in the first trial should automatically be excused for trial.  The trial court seated two jurors who knew that the first trial had resulted in a conviction.  Adopting the defense’s position would be an extension of the doctrine of implied bias, which assumes that certain relationships or experiences create a mindset that cannot be changed or set aside.  See Williams v. State, 764 N.W.2d 21 (Minn. 2009); Rule 26.02, Subd. 5 of the rules of criminal procedure.  The court is unwilling to extend this doctrine to potential jurors whose apparent sole disqualification was knowledge of the outcome of Mr. Fraga’s first trial.  In large part, the court reaches this result by its literal reading of the rule, which it says provides “the exclusive grounds to challenge for implied bias.”

Also during jury selection the trial court seated “Juror M.”  Mr. Fraga insisted that Juror M had expressed actual bias and had not been adequately rehabilitated.  The trial court sat this juror anyway.  Permitting a biased juror to serve is structural error requiring automatic reversal.  State v. Logan, 535 N.W.2d 430 (Minn. 1995). 

Juror M’s mother-in-law was a nurse who had worked in the emergency room at the hospital where the two year had been taken.  Juror M thus knew about the case, had read about it, had discussed it with family or friends, including the case details.  When the trial court asked him whether he could put all of that aside and decide the case solely upon what was presented in the courtroom, Juror M said, “Yeah, I guess.”  When the trial court pressed with the question, “Do you know of any reason that you could not be fair and impartial?” Juror M said, “Besides the fact I know about the case, I don’t, no.  I think it would be hard.”  This juror also said that he knew two witnesses and that he would find their testimony more believable based on that familiarity.  He walked that assertion back just a bit by telling the prosecutor that “I can form my own opinion, I guess.”  Finally, Juror M said, “Yes.” to the prosecutor’s leading  question, “So, you would be able to base your decision on what you see and hear in the courtroom?”

By this time the defense was out of peremptory challenges.  The trial court denied the defense motion to remove Juror M for cause.  Even then the court asked Juror M more questions, including, “Is there any reason you can think of you couldn’t be fair and impartial to both sides in this case?”  Juror M said, (one supposes to the disappointment of the trial judge and prosecutor) “I don’t think so.”

Justice Lillehaug concludes from all this back and forth with Juror M that the juror had expressed “actual bias.” The remarks, “Besides the fact I know about the case, I don’t, no.  I think it would be hard.” were enough for the court to make this conclusion.   The other “I guess” remarks just solidified this conclusion.  Justice Lillehaug also concludes that Juror M also was not adequately rehabilitated, which requires that the prospective juror state “unequivocally” that he will set aside preconceived notions and be fair.  Logan.   The prosecutor’s final leading question just didn’t get the job done, especially in the midst of all those “I guess” utterances.

Under Logan, Juror M, having expressed actual bias, can’t sit on the jury and if he does it’s structural error that requires a new trial.  The state pleaded with the court to find a workaround to Logan to avoid yet another trial but the justices were unwilling to do so.  Still and all, the court was embarrassed to have reversed the conviction:

We understand that the relatives of a little girl and others in the community of Worthington have suffered a grievous loss. We understand that they have endured the pain of two trials. We recognize that their grief may be sharpened by the decision today. Still and all, it is a bedrock principle of our law that for a person to be convicted of any crime—major or minor—the jurors must be both impartial and unanimous. Our constitutions and the fairness they embody require that, if we cannot say that each and every juror was impartial, we cannot say that justice was done.

It’s tempting to say that by the court’s unyielding fealty to literalism the court hoisted itself by its own petard.  Juror M just kept saying, “I guess” way too many “Minnesota nice” times for the court to brush aside.  (“To guess” means to “make a conjecture” about something, or to indicate that although one thinks or supposes something it is without any great conviction or strength of feeling.” )  After all, given the broad discretion that trial court’s have in ascertaining a potential juror’s qualifications to serve it would have been just as easy for the justices to conclude that despite the verbalized equivocations the trial court had the best seat in the house to discern Juror M’s true state of mind.

But wait, there’s more!  Mr. Fraga also complained about the admission of evidence under Minn.Stat. 634.20, so called “relationship evidence.”  The court had previously adopted this legislative rule of evidence for similar conduct of the accused against the same victim.  State v. McCoy, 682 N.W.2d 153 (Minn. 2004).  The court now extends adoption of this legislative rule of evidence to include similar conduct of the accused against other family or household members.

Wednesday, May 20, 2015

No Exceptions Proved to Permit Untimely Filing of Fifth Post Conviction Petition

Brown v. State of Minnesota, Minn.S.Ct., 5/20/2015.  This is Mr. Brown’s fifth petition for post conviction relief.  This is also his fourth published opinion. He said this time that he could file this petition, which attacked his guilty plea and several other things,  under any of three statutory exceptions to the two year limitations period established under Minn.Stat. 590.01, subd. 4(a):  a mental disease precluded a timely assertion of his claim; his claim was based on newly discovered evidence, and the interests of justice required consideration of his claim.  Justice Dietzen, for the entire court, rejects this assertion.

As to the assertion of a mental disease precluding a timely filing of his claim the court simply concurs with the post conviction court that Mr. Brown hasn’t established that assertion from the documents that he submitted.  He also failed to establish the “actual innocence” prong of the newly discovered evidence exception.  Finally, Mr. Brown also did not establish that it was in the interests of justice to hear his claim.

Most, if not all, of Mr.Brown’s claims herein had been raised in one fashion or another in his previous petitions.  The court continues to duck the question whether the Knaffla rule (and its exceptions) remains cognizable under the statutory limitations regime. 

Continuance of Juvenile Delinquency Proceeding, Accompanied by Child’s Admission to Charged Offense, Is a Continuance Without Adjudication, Which Limits Jurisdiction to 180 Days.

In the Matter of the Welfare of: C. J. H., Child. Minn.Ct.App. 5/18/2015.  Juvenile court has its own set of rules and that’s what this case is all about.  Specifically, under those rules did C.J.H. get a continuance for dismissal in which case the juvenile court maintained jurisdiction until C.J.H. hit his nineteenth birthday?  Or, did C.J.H. get a continuance without adjudication in which case the juvenile court could maintain jurisdiction only for one hundred eighty days from the date of the order?

The state petitioned C.J.H. with third degree criminal sexual conduct, attempted third degree criminal sexual conduct, and consumption of alcohol by a minor.  At his first appearance, C.J.H. admitted facts which established his guilt of attempted third degree criminal sexual conduct.  He also waived his right to a speedy trial, to remain silent, to confront witnesses, and conceded that he was waiving his right to defend himself at a later date.  The juvenile court then  said something to C.J.H. that everyone in the courtroom understood to amount to a continuance for dismissal until his nineteenth birthday. 

Sure enough, C.J.H. violated the conditions of the continuance but he did so more than one hundred eighty days from the date of the order.  C.J.H. said that what the juvenile court had actually done back at the first appearance was to give him this continuance without adjudication which meant that because the one hundred eighty days was up the court no longer had jurisdiction.  The juvenile court said, no, everyone knew damn well that what had happened was a continuance for dismissal, stayed to age nineteen.

The court of appeals says that C.J.H. has it right.  A continuance for dismissal, which is authorized under Rule 14, is a continuance without a finding that the allegations of the petition have been proved.  The kid does have to waive his right to a speedy trial.  Here, C.J.H. did that and then some; he waived just about everything that could be waived to the point of agreeing that if he got hauled into court on a violation all that had to happen for adjudication was to read the transcript from the first appearance. 

On the other hand, a continuance without adjudication under Rule 15 does require that the juvenile court find that the allegations have been proved.  Although the juvenile court did not say the exact magic words – the court finds, blah blah blah - it did hear and accept C.J.H.’s admission to the elements of attempted CSC, and it did say that C.J.H.’s admissions established a factual basis for the charged offense. 

The upshot is that the court of appeals concluded that what C.J.H. did looked for all the world like a Rule 15 continuance without adjudication, which limits the juvenile court’s jurisdiction for to hundred eighty days.  The court thus had no jurisdiction to entertain the violation and to adjudicate guilt.  That adjudication is thus vacated.

Monday, May 11, 2015

Enlarging a Preexisting Hole in a Door Screen in Order to Gain Entry Into Home Supports Burglary Conviction; No Abuse of Discretion in Award of Moving Expenses to Burglary Victim

State v. Rodriquez, Minn.Ct.App., 5/11/2015.  Mr. Rodriquez went over to V.M.’s home; his friend wasn’t there.  So, Mr. Rodriquez reached his finger through a small hole in the porch door screen, enlarged the hole so that he could reach his hand in and unlock the door.  For that a jury convicted Mr. Rodriquez of burglary in the second degree.

A bit later Mr. Rodriquez went over to H.B.’s home where he eventually encountered H.B.’s parents inside.  H.B.’s Mom pushed Mr. Rodriquez out of a window.  For this behavior, a jury convicted Mr. Rodriquez of trespass.

On appeal, Mr. Rodriquez said that the state didn’t prove that he committed a burglary of V.M.’s home.  This is because he committed the predicate offense, criminal damage to property by tearing the screen, either before or as he entered the building.  (The state did not allege that he had entered without consent with intent to commit a crime.)  The court rejects this assertion.  The court simply isn’t willing to get that far into the weeds.  Just like sex, “any penetration, however slight” suffices.  Mr. Rodriquez committed the predicate crime when he put his finger through the hole in the screen and made the hole larger in order to gain entry.

At sentencing, H.B.’s Mom sought restitution for moving expenses.  She said that after the burglary she could no longer live in the home and so the moved.  Mr. Rodriquez said that the moving expenses were not directly caused by his actions and thus not a cognizable item of restitution.  A trial court has broad discretion in ordering restitution.  However, the loss must be “directly caused by the conduct for which the defendant was convicted.”  State v. Latimer, 604 N.W.2d 103 (Minn.Ct.App. 1999).  And, the loss must not be “so attenuated in its cause that it cannot be said to result from the defendant’s act.”  State v. Palubicki, 727 N.W.2d 662 (Minn. 2007).  Here, the trial court found that H.B.’s Mom suffered psychological trauma as a result of Mr. Rodriquez’s criminal conduct and so the court did abuse its discretion in awarding the moving costs.

In a CSC 3 by Force Prosecution, Trial Court Must Instruct on Statutory Definition of “Force”. No Abuse of Discretion in Limiting Questioning of Complainant About Mental Health History

State v. Moore, Minn.Ct.App., 5/11/2015.  A jury convicted Mr. Moore of third degree criminal sexual conduct.  That state’s only theory of liability was Mr. Moore used “force” to accomplish the crime.  The trial court, however, did not instruct the jury on the statutory definition of “force”.  On appeal, Mr. Moore argued for the first time that this was a mistake which entitled him to a new trial.

The court of appeals concludes that the word “force” in the statute is “meaningfully different from the lay definition” of the word and so the omission of the definition was error.  However, this error was neither “plain” not did it affect Mr. Moore’s substantial rights and so the error was harmless.

Here’s the statute’s definition of “force”:

the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.

This definition is narrower than the lay definition that does not reference bodily harm, etc. So, a jury could conclude that one is guilty of criminal sexual conduct in the third degree, force, by the mere exertion of “strength,” “energy,” or “power” against a victim without any actual or attempted “bodily harm.”  Unfortunately for Mr. Moore, because neither the pattern jury instructions not prior case law explicitly require the trial court to instruct on the statutory definition, this error was not “plain.”  Lastly, it did not affect Mr. Moore’s substantial rights. 

Before trial Mr. Moore’s counsel sought disclosure of the complainant’s psychotherapy records.  There’s a statute for that, Minn.Stat. 609.347, subd. 6:

(a) In a prosecution under sections 609.342 to 609.3451 . . . , evidence of the patient’s personal or medical history is not admissible except when:

     (1) the accused requests a hearing at least three business days prior to trial and makes an offer of proof of the relevancy of the history; and

      (2) the court finds that the history is relevant and that the probative value of the history outweighs its prejudicial value.

(b) The court shall allow the admission only of specific information or examples of conduct of the victim that are determined by the court to be relevant. The court’s order shall detail the information or conduct that is admissible and no other evidence of the history may be introduced.

The trial court examined the records in camera and then ruled that the parties could inquire about certain symptoms and behaviors of the complainant’s mental health diagnosis, but could not ask her what that diagnosis was.  The court of appeals affirms that ruling as not being an abuse of discretion.

A Juvenile’s Aggregate Sentence of 74 Years - Two Life With Possibility of Release Sentences Plus a 258 Month Discretionary Consecutive Sentence Does Not Violate the Rule of Miller v. Alabama

State v. Williams, Minn.S.Ct., 5/6/2015.  Twenty years ago, a jury convicted Mr. Williams of two counts of first degree murder, one count of attempted first degree murder, and one count of burglary.  Mr. Williams was sixteen when he committed these offenses.  The trial court imposed the presumptive sentence of life with the possibility of release after thirty years for the two first degree murder convictions.  The trial court then imposed a discretionary consecutive sentence of two hundred forty months on the attempted murder conviction, and a discretionary consecutive sentence of eighteen months on the burglary.  The resulting aggregate sentence was seventy-four years in prison.  That would make Mr. Williams roughly ninety years old when he becomes eligible for release.
Mr. Williams filed this Rule 27.03 motion to correct sentence.  He said that the rule of Miller v. Alabama, should apply to Minnesota’s statutory provisions that landed him in prison until age ninety at least, there being no guarantee that he’d be released then.  He said that the combination of mandatory imposition of two life imprisonment sentences with the possibility of release plus the (discretionary) consecutive sentences are the functional equivalent of life imprisonment without the possibility of release.  Justice Wright, for the entire court, ignores that assertion and, instead, looks at the component parts of this aggregate sentence.  It wasn’t especially difficult to then conclude that each of the component parts of the sentence were neither cruel nor unusual punishment.  Under prior opinions, the two life sentences with possibility of release do not amount to a “death sentence” when applied to a juvenile and thus don’t constitute cruel and unusual punishment under the Eighth Amendment.  State v. Ouk, 847 N.W.2d 248 (Minn. 2014).  As to the discretionary consecutive sentences, well, Miller just doesn’t apply to a non-mandatory sentence.  Never mind about the functional equivalence argument.

Saturday, May 9, 2015

Simultaneous Sentencing on Two CSC Pleas Does Trigger Lifetime Conditional Release

State v. Nodes, Minn.S.Ct., 5/6/2015.  During a single plea hearing Mr. Nodes pled guilty to two counts of criminal sexual conduct which arose from separate behavioral incidents with separate victims.  The court deferred acceptance of the guilty pleas and ordered a presentence investigation.  At sentencing, the court accepted the two guilty pleas and then sequentially adjudicated Mr. Nodes guilty of each offense.  The question then came up whether Mr. Nodes was required to serve a conditional release term of ten years or of life.  When a court commits an offender who has a “previous or prior sex offense conviction” to prison for another criminal sexual conduct conviction the conditional release term is for life.

Both the trial court and the court of appeals said that when the court imposed the second sentence Mr. Nodes did not have a “previous or prior sex offense conviction.”  That is, there was offense, offense, followed by conviction, conviction. 

Justice Lillehaug, for the entire court, disagrees, and says that Mr. Nodes is subject to lifetime conditional release.  A “conviction” includes a guilty plea that has been accepted and recorded by the court.  There was no dispute that the trial court accepted Mr. Nodes’ guilty pleas, so the question became just when it had been “recorded by the court.”  Although the court has said different things about when a conviction is “recorded” most recently it’s said that the recording occurs when the court accepts the plea and adjudicates guilt.  So, as soon as the trial court accepted Mr. Nodes’ plea to the first count and then adjudicated guilt he was “convicted.”

See where this is going?  As soon as the trial court accepted the plea to the first count and adjudicated guilt on that count that conviction was no longer a present offense but was a past conviction.  That first conviction became a “prior sex offense conviction.  After the court then took a breach before adjudicating guilt on the second count, what had just become a “prior sex offense conviction” triggered the lifetime conditional release term.

Monday, May 4, 2015

Inevitable Discovery Doctrine Does Not Apply to a Defendant’s Statement

State v. McClain, Minn.Ct.App., 5/4/2015.  Duluth police went to the local detox center on a report of a stabbing.  It was immediately clear that the stabbing had happened elsewhere.  The guy who’d been stabbed had an address on file on Third Street in Duluth.  Officers went to that address and saw drops of blood from a nearby intersection which the officers followed to the sidewalk in front of this address.  Officers kicked in the door and found three males inside the residence, and more blood.  Mr. McClain was one of the three males.  The officers gave Mr. McClain a Miranda warning down at the station and Mr. McCain made a statement  Meantime, the guy who’d been stabbed said that “Kyle” had stabbed him; Kyle is Mr. McClain’s first name.  Police got a search warrant for the address on Third Street  that was based on information obtained both before and after they had forcibly broke in the door.

Before trial the trial court suppressed the evidence from the forced entry, which included Mr. McClain’s statement to police.  After Mr. McClain testified at trial, the trial court changed its mind and ruled that Mr. McClain’s statement to police was admissible both for purposes of impeachment and as substantive evidence because the statement would have been inevitably discovered. 

On appeal from his assault conviction Mr. McClain said that unlike physical evidence his statement to the police was not subject to the inevitable discovery exception.  That meant that the trial court was wrong to have admitted it for substantive purposes.  The state said that the statement should not have been suppressed in the first place because the warrantless entry was justified by the emergency aid exception.  Alternatively the state said that the trial court properly applied the inevitable discovery exception.

Under the emergency-aid exception, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect one from imminent injury. State v. Lemieux, 726 N.W.2d 783, 787-88 (Minn. 2007).   The officers must have had reasonable grounds to believe that there was an emergency at hand and an immediate need for police assistance for the protection of life or property.  Essentially, the court has to decide whether the officers were motivated to enter the residence as criminal investigators or in their role as community caretakers.  The court decides that the officers were not justified in entering the residence under this exception.  Neither the victim’s association with the address nor the blood on the sidewalk provided such justification.  There were no lights on inside the residence, there was no blood on the steps leading to the house, in the foyer or in the house itself.  And, one of the officers said that the blood trial looked like it belonged to one person, which the court thought undermined his expressed concern about another injured person.  Finally, officers first at the residence waited for more officers to arrive before going inside, action again inconsistent with a belief in a true medical emergency.

The state’s next argument was that Mr. McClain’s statement would have been inevitably discovered.  This is because eventually the victim identified “Kyle” as his attacker, gave an approximate address of the assault as well as other details of the assault.  The court rejects application of this doctrine to statements because no Minnesota court has yet to apply it that way, and because most other jurisdictions that have faced the question have also declined to apply inevitable discovery to statements.  Unlike a physical thing, the discovery of a statement is speculative.  Just because Mr. McClain gave a statement after the forced entry into the residence doesn’t mean that he’d do so again under a different set of facts.  When the police broke into the residence Mr. McClain was asleep, having consumed both sleep medication and a good amount of whiskey.  Had the cops shown up some hours later (and lawfully) after executing the search warrant one or both of those substances may have dissipated and could, be we don’t know for sure, have resulted in a different statement or no statement at all.

Finally, the court concludes that the erroneous admission of Mr. McClain’s statement was not harmless, so he gets a new trial.

Judge Ross concurred in the result.  He would not have reached the constitutional question whether inevitable discovery applies to statements.  He would have left it at saying that there was nothing “inevitable” about discovery of Mr. McClain’s statement and so applying that doctrine had been improper. 

Saturday, April 25, 2015

No Error In Denying Motion to Suppress Statements and No Abuse of Discretion in Denying Defense Request For Instruction on Circumstantial Evidence

State v. Fox, Minn.S.Ct., 4/22/2015.  A jury found Mr. Fox guilty of first degree premeditated murder and first degree felony murder for the death of Lori Baker.  The trial court sentenced him to life imprisonment without possibility of release.

Police arrested Mr. Fox on a DOC hold.  As soon as the officers hit the interview room Mr. Fox volunteered that he thought they were there about Ms. Fox’s car.  He went on about that until the officers interrupted him and then read him his Miranda rights.  He and the officers then talked some more about the car, then about Mr. Fox’s use of Ms. Baker’s credit card, and then about where he’d been since Ms. Fox’s death.  When the officers finally told Mr. Fox, “Oh, by the way, Ms. Baker is dead and we think you did it.” Mr. Fox asked for a lawyer.  The interview ended.

Next day, Mr. Fox invited the cops back to talk some more.  The officers reminded Mr. Fox of his Miranda rights, and he agreed (again) to waive them.  Mr. Fox told the officers that he had tried to get representation from the public defender’s office in a different county but had been told that a public defender could not represent him until he was formally charged.  It turned out, however, that about two hours before this second interrogation two public defenders from the correct county had asked to meet with Mr. Fox but the jailers said, no.  Neither the officers nor Mr. Fox was aware of this at the time of this second interrogation.

Mr. Fox moved to suppress both statements.  Regarding the first interrogation, Mr. Fox said that he had not expressly waived his Miranda rights; rather he only said that he understood them and then everyone launched into the interview.  Justice Dietzen, for the entire court, said that Mr. Fox had voluntarily participated in the interview after the advisory and acknowledgment of his rights.  Second Mr. Fox said that having been arrested on that DOC hold he should have been told that the cops were really there to talk about the homicide before advising him of his rights and obtaining a waiver of those rights.  Way back in 1984 the court had warned the police to make sure that a defendant is informed of the crimes about which they want to ask questions before seeking a Miranda waiver.  State v. Beckman, 354 N.W.2d 432 (Minn. 1984).  Three years later, however, the U.S. Supreme Court took the air out of that warning by holding that the Constitution does not require that a criminal suspect know and understand every possible consequence of a Miranda warning.  Colorado v. Spring, 479 U.S. 564 (1987).  Justice Dietzen avoids the question whether Beckman is still good law by coming up with some sort of fact specific solution; the court said that Mr. Fox was not “totally unaware of the topics upon which he was going to be questioned” so his waiver was valid.

Regarding the second interrogation, Mr. Fox said that he had invoked his Fifth Amendment right to counsel at the end of the first interview and did not subsequently validly waive it.  He said that he was represented by a public defender at the time of the second interrogation; the police failed to tell him that the public defendant had arrived at the jail but had been rebuffed; and the other public defender’s office misinformed him that he was not entitled to a public defender until he had been formally charged.  On the first claim there was no evidence that the police knew that Mr. Fox was represented and thus no evidence of police misconduct or manipulation.  On the second claim the court concluded that the failure to inform Mr. Fox that public defenders had come to the jail to meet with him – assuming that the cops even knew this - did not deprive him of information essential to his ability to waive his Miranda rights.  On the third claim the court also concluded that any misunderstanding by Mr. Fox on his eligibility for a public defender did not invalidate  and that was good enough.

Mr. Fox asked for a “rational hypothesis” instruction on circumstantial evidence.  The court has long resisted such an instruction, saying that such an instruction was not “mandatory.”  State v. Turnipseed, 297 N.W.2d 308 (Minn. 1980).  The court again declines to require a circumstantial evidence instruction.

Wednesday, April 22, 2015

A Defendant’s Risk Level Status Must Be Determined By a Jury Before the Court Can Impose a Conditional Release Term On The Basis of That Status

State v. Ge Her, Minn.S.Ct., 4/22/2015.  There are a thousand – well, not really, but there’re a lot –of ways to get on the BCA’s mailing list to receive one of the Annual Verification letters that they send out to predatory offenders.  Mr. Her is required to register but when he failed to notify law enforcement that he had moved to a new residence the state charged him with failing to register.  A jury found him guilty of that offense.  The trial court sentenced Mr. Her to sixteen months in prison, and also sentenced him to a 10 year conditional release term.  The trial court included this conditional release term because the department of corrections had previously determined that he was a risk-level-III offender.

Mr. Her eventually filed a motion under Rule 27.03, subd 9 to correct his sentence.  He said that he was entitled to a jury trial to determine his risk level status.  See Blakely v. Washington, 542 U.S. 296 (2004), which holds that other than a prior conviction, any fact that increases the penalty for a crime beyond the sentence authorized by the facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and proved beyond a reasonable doubt.  Both the district court and the court of appeals said, no, the risk level status was like a prior conviction and thus not subject to Blakely’s jury trial requirement.  See Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Justice Stras, writing for the entire court, says, no, that the risk level status is a “fact” that must be proved beyond a reasonable doubt to a jury.  In a previous opinion, State v. Jones, 659 N.W.2d 748 (Minn. 2003), the court had said that a trial court’s imposition of a conditional release term based upon findings by the judge – defendant’s conduct was motivated by sexual impulses or was part of a predatory pattern, he presented a danger to public safety, and he needed long term treatment or supervision – violated Blakeley.  Those additional facts had to be found by the jury.  Mr. Her’s risk level status is no different and must also be found by the jury.

Thursday, April 16, 2015

Relinquishing Temporary Custody of Narcotics to Innocent Companion Does Not Constitute the “Sale” of Narcotics

Barrow v. State, Minn.S.Ct., 4/15/2015. 
“C.C.” was driving a car in which Mr. Barrow was a passenger.  The local drug task force was investigating Mr. Barrow’s alleged drug trafficking so they stopped C.C.’s car.  Officers found a bit more than a half gram of crack cocaine in Mr. Barrow’s pocket.  They found 2.1 grams hidden in C.C.’s bra.  C.C. told the cops that she’d hidden the crack there at Mr. Barrow’s request.  In subsequent statements both C.C. and Mr. Barrow said that C.C. had not been involved in the purchase of the cocaine.  C.C. also said that she’d hidden the crack cocaine because she was afraid of Mr. Barrow.

The state charged Mr. Barrow with third degree sale of narcotics and a couple of other drug offenses.  Mr. Barrow eventually agreed to plead guilty to the third degree sale offense.  He admitted during the plea hearing that he’d given the cocaine to C.C. to hide when the police signaled for C.C. to stop the car.  It was the state’s position, which both defense counsel and the court accepted despite some hesitation from the trial court, that this amounted to “giv[ing] away” drugs, which is one of the verbs contained in the statute’s definition of “sale.”  The court accepted the plea and imposed sentence.

After a while, Mr. Barrow filed a post conviction petition to withdraw the plea.  He said that he had not admitted that he had relinquished his possessory interest in the crack cocaine and thus had not sold it to C.C. or to anyone for that matter.  The post conviction court dismissed the petition, saying that the definition of sell only required a physical transfer of the possession of the contraband, essentially dispensing with any requirement of a mental state.  That is, Mr. Barrow “gave away” the cocaine to C.C. to hide when the cops signaled her to stop the car.

Chief Justice Gildea, writing for the entire court, disagrees.  As the court is really, really fond of doing, the Chief hauls out the dictionary to discover that “away” as an adverb means “from one’s possession.”  The phrase “give away” means “to make a present of.”  Mr. Barrow didn’t “give away” his drugs; he had C.C. hide it in her bra in the hopes that the cops wouldn’t find it.  It was more or less a bailment; Mr. Barrow could reclaim his drugs whenever the time was right.  For much the same reasons, Mr. Barrow did not “deliver” – another one of the verbs defining “sell” - the drugs to C.C.  One “delivers” drugs, say, to a mule to carry across the border to be handed off to a street dealer who would be expected (if not required on pain of some dire consequence) to sell the drugs and get the money back to the supplier. 

It’s important that no one second guessed the claim that C.C. was an innocent bystander in all this.  If Mr. Barrow had handed his drugs off to Jabba the Hutt then the court would very likely have concluded that he did either “give away” or deliver his dope.  In that case, the outcome may depend upon the level intent required for conviction of “sale” of narcotics.  Having resolved Mr. Barrow’s case on the basis of statutory definitions the court does not reach that question.

Wednesday, April 15, 2015

Relief From Sentence That is an Upward Departure Not Authorized by Law Must be Brought Under the Post Conviction Statute Rather Than Rule 27.03.

State v. Coles, Minn.S.Ct., 4/15/2015.  Mr. Coles pled guilty to criminal sexual conduct in the second degree and first degree aggravated robbery.  The plea agreement called for two 48 month consecutive sentences.  The 48 month sentence on the CSC 2 was a greater than double departure from the presumptive sentence of 21 months.  Eventually, the trial court executed those sentences.

Time goes by.  A lot of time.  More than two years of time, which becomes important.  Mr. Coles filed a pro se something in the trial court in which he argued that the trial court had impermissibly sentenced him on the CSC 2, that there were none of the “severe aggravating circumstances” present to support a greater than double upward departure.  State v. Evans, 311 N.W.2d 481 (Minn. 1981).  Although Mr. Coles styled his pleading as a petition for post conviction relief he requested relief under Rule 27.03, subd 9, which authorizes a court to correct a sentence not authorized by law “at any time.”  A post conviction, on the other hand, is subject to the two year limitations period.  Both the trial court and the court of appeals decided that any relief had to come under the post conviction statute but that the limitations period had long since run.

The supreme court agrees.  Writing for five members of the court, Chief Justice Gildea concluded that even though Mr. Coles insisted that he was only challenging the sentence that he was actually challenging his conviction.  The majority reaches this conclusion by saying that a correction of Mr. Coles’ sentence – reducing the 48 month CSC sentence to the presumptive sentence of 21 months – would deprive the state of the benefit of its bargain, which was a 48 month sentence on that offense.  That being so, then the state could respond to the correction by moving to withdraw the plea.  That “implicates” the plea agreement and thus the conviction, so Rule 27 is the wrong source of relief.  The rule only permits correction of a sentence.

Justices Page and Stras dissent, but for different reasons.  In a bitter dissent reminiscent of retired Justice Paul Anderson, Justice Page says that the majority has taken the court down Lewis Carol’s rabbit hole. 

“Curiouser and curiouser!” Lewis Carroll, Alice’s Adventures in Wonderland (1865), reprinted in The Annotated Alice 35 (Martin Gardner ed., Bramhall House 1960). The result reached by the court and the reasoning behind that result are flawed in a way that brings to mind Alice’s exclamation. The court holds that Coles’ motion to correct his sentence “is properly viewed as a petition for postconviction relief under Minn. Stat. § 590.01, not as a motion to correct a sentence under Rule 27.03.” This holding rests on the court’s unsupported conclusion that the “challenge to his sentence implicates”1 his conviction. Even though it is clear from Coles’ motion that he is not challenging his conviction, the court arrives at its conclusion by ignoring the fact that a mere change in Coles’ sentence does not of necessity require the sentencing court to take any action with respect to Coles’ conviction. With apologies to Alice, “Oh dear, what nonsense [the court is] talking!” Carroll, supra at 36.

Justice Page pointedly asserts that because there are no Evans factor to support the greater than double departure the sentence is “not authorized by law.”  A sentence correction would not alter the conviction.  It would only be if the state independently decided to seek to withdraw from the plea agreement would the conviction, itself, be “implicated.”  Whether the state would seek to withdraw the plea is rank speculation, especially since Mr. Coles in fact, has served the very unlawful sentence that the trial court had imposed.  More importantly, because the sentence is not an authorized one, the state isn’t entitled to any benefit of that illegal sentence.

Under the court’s decision, however, for the first time in our court’s history, we hold that there is in effect no remedy for the imposition of an illegal sentence. This result cannot stand. It contradicts our authority to correct an illegal sentence “at any time” under Rule 27.03, subdivision 9, runs counter to the Legislature’s “stated public policy of achieving uniformity in sentencing” by way of the sentencing guidelines, Maurstad, 733 N.W.2d at 146, and is inconsistent with our obligation to do justice.

In rather cryptic fashion Justice Stras’ dissent hints that he sees a conflict between the rule’s “at any time” language and the two year limitations period of the post conviction statute.  He also thought that Mr. Cole’s whatever it was should have been considered under Rule 27.

Sunday, April 12, 2015

No Abuse of Discretion in Summary Dismissal of Post Conviction Petition in Which Legal Assertions Were Unsupported by Factual Allegations

Matakis v. State, Minn.S.Ct., 4/8/2015.  Chief Justice Gildea, over three dissenters – Justices Anderson, Page and Lillehaug, affirms the decision of the court of appeals that Mr. Matakis failed to allege sufficient facts to entitle him to either a hearing on or relief from his conviction and sentence.  You can read about the court of appeals opinion here.  Counsel for Mr. Matakis had filed a rather skimpy petition in which he promised more details later.  The state sought dismissal on the merits of the petition rather than arguing that it was defective.  Justice Anderson’s dissent thought that the abrupt dismissal of the petition without any notice or warning to Mr. Matakis’s counsel was an abuse of discretion, even more so because Mr. Matakis had not had a direct appeal of his conviction.

Evidence Sufficient to Uphold Conviction For Aiding First Degree Premeditated Murder

State v. McAllister, Minn.S.Ct., 4/8/2015.  Mr. McAllister and his two cousins brutally beat and kicked Michael McMillan.  During the beat down one of the three – apparently not Mr. McAllister, also shot Mr. McMillan.  After the three men left, one of them – again apparently not Mr. McAllister, returned and shot Mr. McMillan again.  He died from those injuries.  A jury convicted Mr. McAllister of aiding and abetting first degree premeditated murder and first degree felony murder.  The trial court sentenced Mr. McAllister to life in prison without possibility of release on the first degree premeditated murder verdict.

On appeal, Mr. McAllister complained that the state had presented insufficient evidence that he had intentionally aided another in committing the murder.  Justice Stras, for the entire court, said that Mr. McAllister’s complaint was wide of the mark.  The justice more or less concedes that the state’s proof that Mr. McAllister intentionally aided another in committing the murder was lacking, but then says, so what.  Under the complicity statute, Mr. McAllister is also liable for any other crime that was reasonably foreseeable as a probable consequence of committing or attempting to commit what the court decided was Mr. McAllister’s intended crime:  aggravated robbery.  It was readily apparent to the court that Mr. McAllister intended the aggravated robbery of Mr. McMillan:  he participated in the beat down during which one of his cousins shot Mr. McMillan.  Further, it was reasonably foreseeable that this beat down/shooting could result in the murder.

After Mr. McAllister’s arrest, officers interrogated him.  After a while he told the officers, “[n]o, ain’t no sense in talking no more man.  You may as well cuff me up, book me, whatever.  It’s just that simple.”  The cops did eventually take that statement as a sign to stop talking to Mr. McAllister.  The cops then let Mr. McAllister talk to one of his cousins, whom the officers knew had confessed.  This cousin told Mr. McAllister just that, whereupon, as hoped, Mr. McAllister resumed the interrogation.  The trial court denied his motion to suppress everything he said after the “cuff me” remark, concluding that this was not an unambiguous invocation of his right to remain silent.  Justice Stras lets that go, saying that even if there was a mistake there was overwhelming evidence of guilt so that any error was harmless.

Tuesday, April 7, 2015

An Undefined Reference in a Complaint to a Conditional Release Term Is Not Sufficient Notice of The Requirement For That Conditional Release Term

Kubrom v. State, Minn.Ct.App., 4/6/2015.  The state charged Mr. Kubrom with first degree driving while impaired.  But that’s not what the case is about.  It’s about the conditional release term that accompanies a conviction for that charge.  Mr. Kubrom cut a deal with the state for a definite term sentence, none of this “Guidelines sentence” stuff.  The rest of the deal was for a concurrent sentence and a recommendation from the trial judge for boot camp.  Mr. Kubrom pled guilty under that deal and the court sentenced him the same day.  Neither during the plea nor the sentencing that immediately followed the plea did anyone say anything about that conditional release term.

Mr. Kubrom served his sentence – all of it – and got out.  Only then did the trial court amend the sentence to include that conditional release term.  Mr. Kubrom, when he finally found out about it, cried foul and filed a post conviction petition, asking either to be allowed to withdraw his plea or have the sentence amended to conform to the original agreement.  The court denied the petition.

Mr. Kubrom said that because no one told him about the conditional release term before he pled guilty and was sentenced the district court improperly denied his petition.  The state countered that because the complaint described the penalty for first degree DWI as “3-7 years and/or $4,200-$14,000 plus a conditional release term” that was notice enough.   This one goes to Mr. Kubrom; the court of appeals was unwilling to hold that this general statement regarding a conditional release term, standing alone, was sufficient notice.  This was because this description specified neither the length of the applicable conditional release term nor that it was mandatory.

The rest is easy.  Mr. Kubrom bargained for a maximum sentence:  forty-six months.  The district court agreed to honor that bargain by its acceptance of the plea.  Due process thus requires that the deal be fulfilled.  State v. Wukawitz, 662 N.W.2d 517 (Minn. 2003).  Oldenburg v. State, 763 N.W.2d 655 (Minn.Ct.App. 2009).  The problem, now, of course, is that the deal amounts to an unauthorized sentence, and now to add the conditional release term would violate the plea agreement.  Mr. Kubrom must be given the opportunity to withdraw his plea.  The state can simultaneously argue that to permit that would unduly prejudice the prosecution.  If that’s true, it remains to be seen what is an appropriate remedy.

Thursday, April 2, 2015

Post Conviction Claims Are Time Barred

Fort v. State, Minn.S.Ct., 4/1/2015.  In this second petition for post conviction relief Mr. Fort claims ineffective assistance of trial and appellate counsel; and he claims that the state mishandled evidence.  Read about Mr. Fort’s direct appeal here; and about his first post conviction petition here.

This go round, Mr. Fort said that his appellate counsel was ineffective for having withdrawn his first pro se post conviction petition and for not doing enough research on his case.  Justice Page rejects these claims because the constitutional right to counsel does not extend to state post conviction proceedings.  Pennsylvania v. Finley, 481 U.S. 551 (1987).  The court has also said that under the state constitution a defendant has no right to assistance of counsel in a post conviction petition provided that that defendant had been represented by counsel on direct appeal.  See Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

Turning to Mr. Fort’s claim of ineffective assistance of trial counsel and the mishandling of evidence, thee claims are time barred under Minn.Stat. 590.01, Subd. 4(a)(2).  Unless he can establish an exception to the limitations statute Mr. Fort’s claims are extinguished.  Mr. Fort “has not presented any argument – must less established – that an exception applies to his petition…”

Post Conviction Claims Are Time Barred

Fort v. State, Minn.S.Ct., 4/1/2015.  In this second petition for post conviction relief Mr. Fort claims ineffective assistance of trial and appellate counsel; and he claims that the state mishandled evidence.  Read about Mr. Fort’s direct appeal here; and about his first post conviction petition here.

This go round, Mr. Fort said that his appellate counsel was ineffective for having withdrawn his first pro se post conviction petition and for not doing enough research on his case.  Justice Page rejects these claims because the constitutional right to counsel does not extend to state post conviction proceedings.  Pennsylvania v. Finley, 481 U.S. 551 (1987).  The court has also said that under the state constitution a defendant has no right to assistance of counsel in a post conviction petition provided that that defendant had been represented by counsel on direct appeal.  See Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

Turning to Mr. Fort’s claim of ineffective assistance of trial counsel and the mishandling of evidence, thee claims are time barred under Minn.Stat. 590.01, Subd. 4(a)(2).  Unless he can establish an exception to the limitations statute Mr. Fort’s claims are extinguished.  Mr. Fort “has not presented any argument – must less established – that an exception applies to his petition…”