More Dueling Banjos: Waiver under "Lothenbach" (Rule 26.01, Subd. 4) Has to be of Everything

State v. Antrim, Minn.Ct.App., 4/7/2009.  Here's a published Opinion that presents a variant of the problem that I wrote about a week or so back, describing an unpublished Opinion, State v. McKissic, 2009 WL 6700040.  The McKissic court conflated two criminal rules, 26.01, subd. 3 & 4.  Here, the court tried to stay with just the one rule, but fails to elicit all of the requisite waivers required under that rule.  Once again, the appellate court reverses the conviction and remands back to the trial court for a redo.

Police responded to a burglary call and found Ms. Antrim behind some bushes beside the house.  Police found Ms. Antrim's purse inside this unoccupied house; more problematic, they found methamphetamine inside the purse.  Ms. Anatrim unsuccessfully moved to suppress evidence of the drugs.  Thereafter, she, the lawyers, and the court tried to carry out a stipulated facts trial that preserves the right to appeal a pretrial ruling, erroneously (but fondly) known an a Lothenbach trial, but properly a "Rule 26.01, subd. 4 something or other."  Let's recall what this rule says:

The defendant and the prosecuting attorney shall acknowledge that the pretrial issue is dispositive, or that a trial will otherwise be unnecessary if the defendant prevails on appeal. The defendant, after an opportunity to consult with counsel, shall waive the right to a jury trial under Rule 26.01, subdivision 1(2)(a), and shall also waive the rights specified in Rule 26.01, subdivision 3. The defendant shall stipulate to the prosecution’s evidence in a trial to the court, and acknowledge that the court will consider the prosecution’s evidence and may find the defendant guilty based on that evidence. The defendant shall also acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial. The defendant and the prosecuting attorney must make the foregoing acknowledgements personally, in writing or orally on the record.

[Emphasis added.]  The rights referenced in Subd. 3 include the right to require any favorable witnesses to testify for the defense in court.  This one got left out during the colloquy.  The appellate court reiterates its requirement of  "strict compliance" with the Subd. 3 waiver list.  State v. Knoll, 739 N.W.2d 919 (Minn.Ct.App. 2007).  The state suggested various work arounds for this omission but the appellate court wasn't interested in any of them.  Ms. Antrim gets a redo.

Oh, the appellate court didn't rule on the suppression issue.