No Heat of Passion Instruction in This Double First Degree Premeditated Murder Prosecution

State v. Keuren. MN.S.Ct., 12/18/2008.

 

A jury convicted Mr. Keuren of two counts of first degree premeditated murder; the trial court imposed two consecutive terms of life imprisonment without possibility of parole. Mr. Keuren argued, among other arguments on appeal, that the trial court should have given an instruction on first degree manslaughter.

Keuren dated Lee for some four years.  Just before he and Lee were to marry Lee called everything off.  "Devastated" by the breakup, Keuren broke into Lee's home and assaulted her; after that the court imposed a no contact order and Lee started dating another man.  Keuren planned either to kill himself, or to kill Lee; at times he considered killing both Lee and himself.  He wrote something of a suicide note in which he complained bitterly that Lee was intending to take away his Vikings tickets.  On his way over to Lee's home, Keuren decided only to kill himself in her presence.  When he got there, Lee was in bed with her new beau.

Finding the couple in the bedroom, Keuren immediately shot himself twice in the neck; neither wound was fatal.  New boyfriend tried to get the gun from Keuren during which Keuren shot him.  Keuren reloaded the gun.  Lee then told him, oh, by the way, I miscarried with your child.  Keuren then shot Lee twice.  He apparently kept shooting; the medical examiner determined that Lee had been shot a total of six times.  After all this mayhem, and before the police arrived, Keuren called his Dad to apologize.  The apology was limited somewhat, however, as the police had to shoot Keuren three times to get him to drop the gun.

The trial court instructed on first degree premeditated murder and on second degree murder; the court declined to instruct on first degree heat of passion manslaughter.  Keuren argued that finding Lee in bed with her new beau was enough to require a manslaughter instruction.  The trial court and the supreme court disagreed.  This discovery is not enough, at least in Minnesota, to establish that Keuren's "reason was clouded and his willpower weakened," the classic definition of "heat of passion" manslaughter.    State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2003).  For Lee, Keuren argued that the news of the miscarriage "provoked his passion" sufficiently to require the manslaughter instruction.  Again, no one agreed with that argument.  In the end, the court said that Keuren only established that he was suicidal and angry; neither of those emotional states supports the requested instruction. 

In a footnote that prosecutors will immediately begin to bandy about, the court warned that the mere existence of the violation of a no contact order would be enough to defeat any requirement of giving a manslaughter instruction.  It's hard to see how this squares with the current law on when to give instructions on lesser included offenses articulated in State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2003):

When a defendant requests a lesser-included offense instruction, the district court must give the instruction if the lesser offense is included in the charged offense and if the evidence provides a rational basis to both acquit the defendant of the charged offense and convict the defendant of the lesser-included offense.

At any rate, the footnote is dicta, at least for now.  In a concurrence, Justice Meyer suggests that this exclusion is a natural extension of an opinion that she wrote five years ago, Stiles v. State, 664 N.W.2d 315 (Minn. 2003).  Stiles and some of his buddies was doing a drug deal; instead of paying for the drugs the plan was to rob the supplier.  Stiles pointed a loaded shotgun at the supplier.  When the supplier resisted and reached toward his waist, Stiles shot him.  Stiles' "aggression" in provoking a response from the supplier eliminated Stiles' entitlement to a heat of passion manslaughter instruction.  Going to your former girlfriend's house - no contact order or not - intending to kill yourself doesn't seem quite the same kind of provocation.

In other issues, Keuren argued, unsuccessfully, that the prosecutor argued in closing argument that he had tailored his trial testimony to fit the evidence.  State v. Swanson, 707 N.W.2d 645 (Minn. 2006); that he was entitled to a change of venue; and that an assistant county attorney could not attend the grand jury in place of the county attorney.  On this last issue, the court had rejected this contention in State v. Clark, 755 N.W.2d. 241 (Minn. 2008). 

A Sentence of Incarceration is "Final" for Blakely Purposes, Even When Restitution is Left Open.

State v. Hughes, Mn.S.Ct., 12/18/2008.

Mr. Hughes pled guilty to aggravated robbery.  The court imposed an executed sentence, which was an upward departure; the court also ordered Mr. Hughes to pay restitution, to be determined by probation subject to his right to a hearing.  After sentence but before determination of the amount of restitution the U.S. Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004).  Mr. Hughes convinced the trial court that his conviction was not final until the amount of restitution was determined so that he was entitled to a Blakely hearing on aggravating factors.  The Court of Appeals reversed, State v. Hughes, 742 N.W.2d 460 (Minn.Ct.App. 2007).  The Minnesota Supreme Court agrees with the Court of Appeals.

The Court says that the trial court imposed Mr. Hughes' sentence when it pronounced the sentence of incarceration and general restitution obligation.  Consequently, his time for direct appeal expired ninety days later, which happened to be one week before the date of the Blakely opinion.  Hughes tried to invoke several other procedural rules by which to stretch the "pendency" of his right of appeal, all without success.

A Defendant's In Court Explanation For Rejecting A Plea Offer May be Admissible Under Rule 410.

State v. Brown, Mn.Ct.App., 12/16/2008.

The State charged Mr. Brown with attempted second degree murder, and with possession of a pistol without a permit.  The state offered a plea to the attempt, with a recommended sentence of 130 months.  At the pretrial, in the midst of making a record of this offer, Mr. Brown engaged in a spirited colloquy with the trial court, after which he entered a plea of not guilty.  Among other statements, Mr. Brown asserted a defense of self defense and defense of others, and claimed that he had a permit for the pistol.

At trial, Mr. Brown testified, again asserting his claims of self defense and defense of others.  He also testified that he did not have a permit for the gun.  The prosecutor was all over this, asking if it wasn't true that Mr. Brown had previously told the court that he did have a permit.  After the trial court over ruled the objection to the question, Mr. Brown stated that he did recall saying that.  The defense thought that Mr. Brown's statements during the discussion of the plea offer were excluded from evidence under Rule 410, which states in pertinent part:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

The Court of Appeals agreed with the trial court's ruling.  It pointed out that Mr. Brown neither pled guilty nor offered to do so.  In fact, he mostly complained that he should not have been charged with the attempt because his actions were justified, and then he lied about having a gun permit. 

Whether Rule 410 excludes a defendant's statements is a question of law that the appeals court reviews de novo.  Whether the rule excludes statements that are made in response to a plea offer made by the state is to be decided under the totality of the circumstances, employing a two step inquiry.  First, did the defendant exhibit an actual subjective expectation to negotiate a plea at the time of the discussion; and, second, was the expectation reasonable under the totality of the objective circumstances.

Now, the colloquy that is reproduced in the Opinion does support the conclusion that Mr. Brown had no interest in pleading guilty to the attempt charge.  At the same time, he had no need to say anything about the permit charge because the deal called for its dismissal.  His admittedly false statement about having a permit was a throw away at the time he made it.  The court could have admitted the pretrial false claim about having a permit without any regard for Rule 410 at all.  Instead, the court engages in a Rule 410 analysis of other statements then includes this permit claim into the mix.

Multiple Sex Acts of Various Kinds Support Upward Departure

State v. Abrahamson, Minn.Ct.App., 12/9/2008.

Mr. Abrahamson plead guilty to first degree criminal sexual conduct - sexual penetration of a person under 16 by an offender who has a significant relationship with the victim including multiple acts of sexual abuse over an extended period of time - and also to exposing a child to methamphetamine activity.  During the plea, Mr. Abrahamson admitted to engaging in multiple acts of sexual abuse, including sexual touching and "penetration, but denied penetrating [the child's] vagina or anus."  Mr. Abrahamson waived a jury sentencing hearing on the state's motion for an upward departure, which the state based on these grounds:

(1) the offense occurred over a period of five to six years; (2) the minor victim was treated with particular cruelty; (3) the minor victim was forced to watch pornographic movies; (4) the minor victim was told that appellant wanted to photograph her without clothes; (5) there was use of and exposure to illegal drugs; and (6) overall, the conduct was far more egregious than the usual child-sexual-abuse case.

The trial court determined that there were factors that supported an upward durational departure.  Among them were "the multiplicity of trauma and the sex acts," and viewing of pornographic movies.  The Court of Appeals accepts these two factors, but points out that under the offense of conviction multiple sex acts, alone, cannot serve as a departure factor because it is an element of the offense.  On the other hand, "the variety in the sexual acts is a valid reason for departure."  See Rairdon v. State, 557 N.W.2d 318 (Minn. 1996).  The Court of Appeals also agreed with the trial court that the use of pornography as a prelude to the sexual acts supported a departure.  (It is not entirely clear from the opinion, however, that Mr. Abrahamson admitted to this behavior during the plea hearing and Blakely waiver.)

The Court of Appeals somewhat reluctantly agreed that exposing the child to methamphetamine was not a valid factor for departure.  The Court acknowledged that the conviction for such exposure could not be the basis of a departure,  because it was the basis for the conviction on the other count to which Mr. Abrahamson pled.  State v. Misquadace, 644 N.W.2d 65 (Minn. 2002).  The record did not sufficiently establish that such exposure was a part of the CSC I conviction, and so it does not support a departure.

Collateral Attacks on the OFP Statute Not Permitted as Defense to Criminal Prosecution for Violation of OFP; No Authority in OFP Statute to Forfeit & Destroy Firearms.

State v. Romine, Minn.Ct.App., 12/9/2008.

A.A. obtained an order for Protection against Mr. Romine, her estranged husband.  The Order prohibited him from, among other things, going to A.A.'s place of employment at Henry Sibley High School.  Romine initially appealed the issuance of the OFP but dropped the appeal after a while.

While the OFP was in force, Mr. Romine went up to the  high school to see the superintendent, whose office was in the high school.  As a result, the state charged him with violating the OFP, Minn.Stat. 518B.01, S. 14(b).

Mr. Romine made various constitutional challenges to the OFP statute but the Court says that he cannot collaterally attack the OFP statute as part of his criminal defense. The court relies upon what it says is the general rule that "a party’s failure to appeal the issuance of a court order precludes a collateral attack on that order in a subsequent proceeding," citing State v. Cook, 275 Minn. 571, 148 N.W.2d 368 (1967).  There is nothing terribly surprising in this ruling.  See, State v. Harrington, 504 N.W.2d 500 (Minn.Ct.App. 1993).  (A defendant who had not appealed from the issuance of a restraining order pursuant to chapter 609 was precluded from challenging the constitutionality of the restraining order in a subsequent criminal prosecution for a violation of the order.)

The defense raised a lot of other appeal issues, one of which was prosecutorial misconduct during closing argument.  The defense objected to two of the prosecutor's statements: 

“It wasn’t easy cross-examining a 14-year-old person, but that’s who [Romine] had testify here, a 14-year-old child about things that families try to hide, and that was a kind of painful exercise we had to sit through.” Romine also objected when the prosecutor stated:

Counsel would like you to simply make a mockery of our justice system, of court orders and seals and affidavits, and indicate that Mr. Romine was not personally served this at a courthouse on that date somehow. You folks can go and say, we think this is just not plausible. You have to say also that a strict court order for protection to prevent this sort of harm from happening to Ms. Romine is also not nonsense.

The state did not argue that these remarks were proper, so the appellate court assumed that they were.  Nonetheless, the court also concluded that the statements were harmless error.

Lastly, the appeals court held that the district could has no authority under 518B to order the forfeiture and destruction of Mr. Romine's firearms as part of a sentence for violation of subdivision 14(b).  Subdivision 14(l) does permit the court to restrict the possession of "pistols," but there is no authority to order the forfeiture and destruction.  The appeals court remanded the case for re-sentencing, at which time Mr. Romine may, if he wishes, raise the Second Amendment Supreme Court opinion, District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

One Burglary & One Assault Still Equals Two Crimes

State v. Holmes, Mn.Ct.App., 12/9/2008.

A.W. was at home enjoying a quiet evening of arguing with his girlfriend when his girlfriend's Dad and two brothers swooped into the apartment.  Mr. Holmes is one of the brothers.  Mr. Holmes assaulted A.W., possibly with a steel pole, no one is quite sure. 

The state charged Mr. Holmes with first degree burglary and with third degree assault; a jury convicted him and the court sentenced him on both offenses.  On appeal, he argued that because third degree assault is a lesser included offense of the first degree burglary he could not be sentenced on both counts.  In other words, no double dipping.  The Court of Appeals disagrees.

The Court of Appeals accepted the proposition that the third degree assault is a lesser included offense of the first degree burglary.  It also agreed that under Minn.Stat. 609.04, Minnesota's double jeopardy statute, he could not, therefore, be convicted of both offenses.  However, there's another statute in play, 609.585, which states:

Notwithstanding section 609.04, a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.

Mr. Holmes argued that "any other crime" had to be a crime other than the assault and since there was no other crime he could not be convicted and sentenced on both offenses.  The Court concludes that the third degree assault can serve double duty:  as the assault element of first degree burglary and the assault charge.  It is an "any other crime" under 609.585 notwithstanding its duplicate use. 

Instructional Error Requires New Trial Even Though State's Evidence Was Sufficient to Support Conviction.

State v. Jorgenson, Minn.Ct.App., 12/9/2008.

The Court reverses a terroristic threats conviction for faulty jury instructions.

Jorgenson had been in a romantic relationship with T.S. for a couple of years.  After a night of hard drinking, sex and some other, rather rude behavior by Mr. Jorgenson the couple were not in the best of moods.  T.S. had destroyed one of his video games.  While in the shower, Jorgenson began to sing a rather vulgar little tune describing all the things he was going to do to T.S..  After singing in the shower, Jorgenson carried out some of the threats, then threw T.S. out into the cold.

Here's the instruction that the trial court gave on the terroristic threats count [emphasis in original]:

First, the defendant threatened, directly or indirectly, to commit a crime of violence. You are instructed that assault is a crime of violence. It need not be proven that the defendant had the actual intention of carrying out the threat.

Second, the defendant made the threat with intent to terrorize another . . . or in reckless disregard of the risk of causing such terror.

. . . .

Third, the defendant’s act took place on or about October 13, 2006 in Stearns County.

The statute provides:  "Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another ..."  The defense did not object to the court's instruction so the review is for "plain error."

The state conceded that the instruction, "assault is a crime of violence," is incorrect because not all assaults are "crimes of violence.  Minn.Stat. 609.1095, S. 1(d).  This is, therefore, error, and it's a plain one.  State v. Vance, 734 N.W.2d 650 (Minn. 2007).  This plain error is also prejudicial; the court likens the instruction to one that eliminates a required element of the crime, an error that is not harmless beyond a reasonable doubt.    The court reverses the conviction and remands for a new trial, even though it also had determined that the state's evidence was sufficient to have supported the conviction.  The court does so, however, not without a dig at those of us in the trenches:

An appellate court, with its generous allocation of time in which to contemplate and decide issues, may devoutly wish that all parties involved at the trial level—prosecutor, defense attorney, and judge—were ever-errorless, despite time pressures, in assuring that specific and adequate instructions are given to a jury. In the absence of such specificity and adequacy, we are required to determine whether prejudice affecting the outcome of the case has been demonstrated.

Is the Governor listening? 

Alford meets MOC's & Blakely

State v. Verdon, Court of Appeals (12/9/2008).

Mr. Verdon has been battling over his Department of Corrections inmate designation, which in his case is adversely impacting his eligibility for prison programs.  It turns out that upon conviction the district court assigns a "Minnesota Offense Code" (MOC) on the warrant of commitment.  The Department of Corrections uses this code, in part, to determine the conditions of his confinement.  But the case isn't really about any of that bureaucratic stuff; it's really a procedural about putting in an Alford plea.  There's also a novel Blakely argument that gets undeserved short shrift. 

The state charged Mr. Verdon with first degree arson, felony terroristic threats, and felony criminal damage to property.  Mr. Verdon eventually entered a guilty plea to felony arson, under the holding of North Carolina v. Alford, 400 U.S. 25 (1970).  At the plea hearing, the prosecutor asked Mr. Verdon about the state's evidence.  Mr. Verdon acknowledge that each piece of evidence that the prosecutor asked him about existed, and that, if believed, the evidence supported the state's claim that he started the fire.  The "firestorm," as it were, ignited over Mr. Verdon's understanding that an officer claimed to have seen him holding a lighter fluid container.  Mr. Verdon acknowledged that this officer would be making certain statements, but he did not concede that those statements included the claim that he was holding lighter fluid. 

Based on this colloquy the trial court accepted the plea; the initial MOC, when translated, told DOC that Mr. Verdon had used a firearm in the commission of his crime.  This was plainly incorrect; litigation ensued with the final MOC translating to mean that he had used a "flammable." Mr. Verdon didn't like this MOC any better than the first one so more litigation ensued.  The upshot of all that litigation is the rather obvious rule that the MOC designation must have an adequate basis in the court record.

That record consists mostly of the Alford plea.  The court reminds us of the "better practice" by which to do this:

The “better practice” for developing a factual basis for an Alford plea is to discuss the evidence with the defendant on the record at the plea hearing:

This discussion may occur through an interrogation of the defendant about the underlying conduct and the evidence that would likely be presented at trial, the introduction at the plea hearing of witness statements or other documents, or the presentation of abbreviated testimony from witnesses likely to testify at trial, or a stipulation by both parties to a factual statement in one or more documents submitted to the court at the plea hearing.

State v. Theis, 742 N.W.2d 643, 649 (Minn. 2007).  Other acceptable methods include eliciting a defendant's testimony to establish a factual basis, State v. Ecker, 524 N.W.2d 712 (Minn. 1994); and using witness statements or testimony to develop a factual basis, State v. Goulette, 258 N.W.2d 758 (Minn. 1977). 

The Blakely claim is that the MOC is based on findings by the trial court that were neither found by a jury nor admitted by Mr. Verdon with resulting restrictions to his terms of confinement.  The court doesn't see this as an enhancement to sentence so Blakely has no application.

Oh, want to know what the final MOC turned out to be?  Ready?  "MOC F132A".  Really.

Guns & Sentencing Calculations

State v. Williams, MN.Ct.App.,  2008 WL 4908201 (11/18//2008).

As B.H. got to his mom's truck, "Little Cuz" pointed a gun at him, demanded that he empty his pockets, then shot him in the butt.  "Little Cuz" turned out to be Mr. Williams, whom the police easily found and arrested a short while later.  Mr. Williams was not supposed to be in possession of firearms, so the state charged him with this offense, along with two counts of attempted first degree aggravated robbery - B.H.'s mom was in the truck - first degree assault and attempted second degree assault.  The state made various charging amendments to the Complaint; a jury eventually convicted Mr. Williams of just about everything.  The trial court, however, sentenced only on the ineligible person/firearm and first degree assault.

The trial court used the Hernandez method by which to sentence Mr. Williams to a sixty month sentence on the ineligible person/firearm count and then to increase his criminal history score before sentencing on the assault.  This bumped the assault sentence from 146 to 160 months (high end of the box).  The trial court did sentence concurrently.  On appeal, Mr. Williams complained, among other complaints, about the use of the Hernandez calculation method.  (Hernandez permits this bumping when a court sentences a defendant on day for multiple offenses that were not part of a single behavioral incident, that occurred at different time, and involved different victims.  State v. Hernandez, 311 N.W.2d 478 (Minn. 1981).)

No one disputed that Mr. Williams' actions were a single behavioral incident.  Minn.Stat. 609.035, S. 1 generally prohibits multiple sentences in such cases, but there's an exception for felon in possession charges, which the defense did not challenge.  It was the sentencing bump that got their ire.  The appellate court has twice, (sort of), before answered this question, but not with the same answer. 

In the first instance, the appellate court said it was okay to employ Hernandez.  A jury convicted a Mr. Bergren of ineligible person/firearm and burglary.  The trial court used the Hernandez bump to increase his history score on the second sentence.  The appellate court said that this was okay because the legislature intended to treat firearms offenses differently from other offenses that are part of the same course of conduct.  State v. Bergren, 2001 WL 378978 (Minn.Ct.App. 2001). 

In the second instance, the appellate court said, no, it's not.  State v. Wood, 2007 WL 1053003 (Minn.Ct.App. 2007).  A jury convicted Mr. Wood of ineligible person/firearm and three counts of second degree assault, same behavioral incident.  Because the state conceded the issue, the appellate court went along with it.

Not this time, and published to boot.  The court drills into the commentary to the Guidelines to support this result.  Guidelines section II.B.107 (originally II.B.102) states the Hernandez rule.  Comments to this application section, however, remind readers of instances when the Hernandez bump cannot be employed even though a statute authorizes multiple sentences in a single behavioral incident situation:   burglary and criminal sexual conduct, single behavioral incident, M.S. 609.585; kidnapping and some other offense, single behavior incident, M.S. 609.251; certain methamphetamine offenses, M.S. 152.137.  The Guidelines Commission, sadly, has not inserted a comment about ineligible person/firearms & something else convictions and so the Hernandez bump is okay.

Well, it's never too late, so get those emails and phone calls to the Commission going.  After all, we only need a comment, not an actual, binding rule.  State v. Rouland, 685 N.W.2d 706 (Minn.Ct.App. 2004). 

Not Charging the Right Subsection Results in Acquittal of CSC III Charges

State v. Blevins, MN.Ct.App., 11/25/2008.  The state had an extremely intoxicated victim and no apparent force in this criminal sexual conduct case.  In response, the state charged Blevins with pinpoint precision with two counts of criminal sexual conduct in the third degree, the "physically helpless" subsection, M.S. 609.344, S. 1(d).  This subsection provides that:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if . . . the actor knows or has reason to know that the complainant is . . . physically helpless.

The jury convicted Blevins and he appealed, arguing, successfully as is turns out, that there was insufficient evidence that the victim was "physically helpless."  Among the statutory definitions of "physically helpless" is this one:

unable to withhold consent or to withdraw consent because of a physical condition...

The victim, T.W., consumes ten to twelve alcoholic drinks and was admittedly drunk.  In that condition, she was unable at bar closing time to find her car; Mr. Blevins offered his assistance.  He searched for the car underneath the crawl space under some porch, at which time he asked T.W. if he could kiss her and put his arm around her.   Here's what the court said happened next:

T.W. testified about appellant’s advances that she “was along with some of it but that’s not what [she] wanted” and that she made sure that appellant knew that she just wanted help finding her car. Appellant eased T.W. onto her back and asked if he could perform oral sex on her. T.W. testified: “I told him I didn’t want him to, and he just kept telling me it would be okay. . . . I asked him to please not and he said it will be fine. . . .” T.W. testified that because she felt stuck, uncomfortable, and afraid, she “just let it happen” and “waited for it to be over.” Appellant first performed oral sex on T.W. and then had sexual intercourse with her. During this time, T.W. did not scream or fight because she was afraid that appellant would harm her in other ways and because she was in an unfamiliar neighborhood.

T.W. did not consent to the sexual assault; the court had no difficulty making this determination.  In fact, at trial, the defense made a point of establishing this, asking her point blank whether she was "conveying to [Blevins] that you didn't want this sexual activity to occur."  The set the hook and the appellate court reeled in the reversal.  Why?  The statute requires the state to prove either that T.W. was able to withhold consent, or that she was able to withdraw consent.  She admitted that she not only could but was actually withholding consent; she was not, therefore, "physically helpless" under the statutory definition.  Well, you just gotta pay attention to those double negatives.

Of course, the state could have also charged Blevins with the same offense but under a different subsection, that of using force or coercion.  (1)(c).  See State v. Carter, 289 N.W.2d 454 (Minn. 1979). 

How Not to Use a Snow Plow

Mell v. Commissioner of Public Safety, Mn.Ct.App. 11/25/2008.

Kevin Swanson called the sheriff’s office to report that Scott Mell was ramming Swanson’s vehicle with a pickup truck with a plow on it. This occurred out on a frozen East Rush Lake, near the Flckaberds Resort. The deputies followed a pickup truck from the resort to Mell’s driveway. This pickup did not have a plow on it. The pickup truck that was in Mell’s garage did have a plow on it, however. The deputies arrested Mell anyway, on assault charges. Although the deputies detected alcohol on Mell’s breath, they did not think he was intoxicated, and they did not perform any sobriety tests.

That task fell to the local jail, which required all arriving guests to submit to a preliminary breath test. Mell’s test results, which the jail passed along to the arresting deputies, were 0.146. The arresting deputies then decided that Mell had been driving the pickup without the plow while intoxicated, and so they read him the implied consent advisory; they also made a phone available to Mell, who was, nonetheless, unable to reach an attorney at two in the morning. Public Safety eventually revoked Mell’s license, and he sought review of that revocation.

The appellate court found that there was probable cause to arrest Mell on assault charge. The court based this determination on Swanson’s account of the assault, which included the claim that he saw Mell driving the pickup truck with the plow on it. The deputies’ discovery of a pickup truck with a plow on it in Mell’s garage was enough additional information to support probable cause.

The court also held that the jail’s administration of the PBT was permissible under the statute, Minn.Stat. § 169A.41, relying on an earlier Opinion, State v. Laducer, 676 N.W.2d 693 (Minn.Ct.App. 2004). The jail’s administration of the test was also not a violation of either the federal or state constitution. The jail’s interest in screening a person being jail outweighed the rather diminished privacy interest of the person being jailed.

Finally, the court rejected Mell’s claim that his Friedman right to counsel had been violated.

Autopsy Reports/Evidence are "Testimonial"

State v. Johnson, Court of Appeals (October 2008)

Mr. Johnson killed one person, shot two others. A jury convicted him of intentional second degree murder, one count of attempted first degree intentional murder, and one count of attempted second degree intentional murder.

The Medical Examiner who testified did not perform the autopsy; in fact, it took two other pathologists to get the job done. Defense counsel did not object to this autopsy evidence, but on appeal, appellate counsel argued that this autopsy evidence violated Crawford. On appeal, because there was no objection at trial, the standard of review is plain error.

A couple of years back, the Supreme Court held that a BCA laboratory report that identified a substance as cocaine was “testimonial” and thus not admissible unless the declarant was unavailable at trial and the defendant had a prior opportunity to cross examine the declarant. State v. Caulfield, 722 N.W.2d 304 (Minn. 2006). In another locally notoriously case, the court held that a hospital laboratory report that had been prepared as part of an autopsy report was “testimonial.” State v. Weaver, 733 N.W.2d 793 (Minn.Ct.App. 2007).

The court concludes that autopsy reports/evidence are “testimonial” under Crawford, rejecting decisions from other jurisdictions that have reached the opposite conclusion. Some of these decisions have adopted a business records approach to autopsy reports, and then determined that Crawford does not reach business records. The Minnesota Court rejects this approach; the court views recourse to a business record analysis as a “back door” to the Roberts reliability factor that Crawford clearly rejected.

Accordingly, admission of the medical examiner’s testimony was plain error, but it was not harmless error.

The trial court imposed consecutive sentences on the two counts of attempted murder. The appellate court says that this was a mistake. The only attempt homicide offense on the permissive consecutive list is attempted first degree murder. The omission of second degree attempted murder prevents the trial court from consecutive sentencing. The court remands for concurrent sentencing.

"Bong Water:" The Court Mixes it up.

State v. Peck, 2008 WL 4472867, Minn.App., October 07, 2008.

Police searched Sara Peck’s house, finding a glass bong and a small bag containing methamphetamine. The liquid inside the bong, which weighed a bit over 37 grams, tested positive for methamphetamine. The weight of the bong liquid got the prosecutor’s eyes watering – the bag was basically nothing – and so he charged Sara with first degree possession, which requires 25 grams or more “of a mixture containing methamphetamine.” M.S. § 152.021, S. 2(1). This was too much for the court to swallow; the trial court dismissed the charge and the state appealed.

So, what’s a “mixture”? Easy. It’s a “preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.” Minn.Stat. § 152.01, S. 9a. Does water that has a bit of meth dregs in it amount to a “mixture”? No.

Bong water, it turns out, is like Chai latte; it’s an “infusion.” A “mixture” must have been prepared for the purpose of drug use, sale, or manufacturing. It is not, as the state argued – and here’s where they really went under – like a swimming pool. The state suggested that if Sara had accidently spilled .01 trams of meth into her swimming pool (do you think the AG really thought that Sara had a swimming pool?) she could be prosecuted for possession over 25 grams of a controlled substance so long as the BCA got there in time to assay the water. (In fairness to the state, it’s not entirely clear just who came up with the swimming pool crime.)

Sometimes, you know what you claim not to know

State v. Linville, Jr., --- N.W.2d ----, 2008 WL 4007428, Minn.App., September 02, 2008

This is truly something only lawyers would fight about. Does the source of your knowledge of your disqualification from possession a firearm shield you from prosecution for possessing a firearm in the face of that disqualification? Here’s the deal.

Mr. Linville picked up his “crime of violence” conviction in September 2003. This conviction made him ineligible to possess firearms. Minn. Stat. § 624.713, subd. 1(b) (2002). He served his term of probation, got his discharge order; that order neglected to check the box that said he was ineligible to possess firearms for the next ten years.

Three months after getting his discharge Mr. Linville is charged with possession of a firearm by an ineligible person. His lawyer gets this charge dismissed on the basis of the erroneously completed discharge order. At that point, Mr. Linville must have thought he had a lifetime pass to possess firearms because a mere four months later he is once again charged with possession of a firearm by an ineligible person. His lawyer again moves to dismiss on the basis of the original, deficient discharge notice.

But wait, not so fast. On this, the second possession by an ineligible charge, does Mr. Linville really lack notice of his ineligibility to possess firearms? Did not the dismissal of the first possession by an ineligible charge clue him in that there had been a mistake on the original discharge order? Must the clerk who accidently omitted that all important check mark on the discharge notice forever bear the equivalent of Hester’s “A”.

In a word, no. This, the court informs us, is based on “a long-held principle in Minnesota that ignorance of the law is not a defense when it would have been possible, had [the defendant] made the effort to do so, to learn of the existence of the prohibition.” State v. Grillo, 661 N.W.2d 641, 645 (Minn. App. 2003), review denied (Minn. 5 Aug. 2008).

A Hot Potato is Still a Potato

In the Matter of the Welfare of: S.J.J., --- N.W.2d ----, 2008 WL 4007434, Minn.App., September 02, 2008.

 

Police stopped an SUV that S.J.J. was driving. There were five others in the SUV: a front seat passenger, three back seat passengers and one cargo passenger. Police found a loaded revolver midway on the floor of the back seat.

S.J.J. told police the he hadn’t realized that there was a gun in the SUV until he saw it being passed around the back seat. When he removed his hat, one of the passengers placed the gun in it. He looked at it, saw that it was loaded, touched the cylinder release, closed the cylinder (with his hat), and returned it to the passenger in the back seat. All the while, the gun was in the hat. A jury convicted him of being an ineligible in possession of the gun.

The Court of Appeals declines to adopt a “fleeting” or “innocent” possession defense. This is in line with federal circuits that have considered this question. [The Seventh Circuit, however, did posit the hypothetical in which an officer’s weapon slips out of her holster onto the ground, whereupon a felon passing by retrieves it and immediately returns it to the officer; that felon, assuming he wasn’t shot first, may have an “innocent” possession defense.] The Seventh Circuit has held that an “innocent possession” defense is available when combined with a justification – necessity, duress or self-defense – defense. U.S. v. Hendricks, 319 F.3d 993 (7^th Cir. 2003).

The Court also concludes that there was sufficient evidence to support the jury’s finding of possession: S.J.J., the court noted, “knew that there was a gun in the stolen car, it was passed to him inside of a hat, and he checked to see if the gun was loaded before handing it back to another passenger.”

There's no authority to attach a no contact order to a CSC prison sentence

State v. Pugh, 753 N.W.2d 308, Minn.App., July 22, 2008

The district court sentenced Mr. Pugh to an executed prison term of 144 months and ten years of conditional release for first degree criminal sexual conduct. The court also ordered that Mr. Pugh have no contact with the victim of the offense.

There is, however, no authority for this no contact order as part of a commitment to prison. The legislature has determined that a person who is convicted of criminal sexual conduct in the first degree may be imprisoned for not more than thirty years or to a payment of a fine of not more than $40,000.00 or both. That’s it. The court rejects the state’s efforts to find authority for the no contact order elsewhere in the criminal statutes. The court also rejects the state’s suggestion that because Mr. Pugh did not object t the no contact order at the time of sentencing he had waived the issue. The court points out that a defendant cannot waive his right to challenge an illegal sentence.

The only misconduct here is the trial court's grant of a verdict of acquittal

State v. McCray, II, 753 N.W.2d 746, Minn., July 31, 2008

The state charged Mr. McCray with first and second degree criminal sexual conduct against the seven year old daughter of his girlfriend. The seven year old’s trial testimony regarding penetration, however, was inconsistent – indeed, just the opposite – of her statement to police so the trial court dismissed the first degree count; penetration was an element of that offense.

The Court of Appeals reversed Mr. McCray’s conviction on the basis of prosecutorial misconduct and remanded for a new trial. The Supreme Court reinstates the conviction. Along the way, it chides the trial court for its dismissal of the first degree count. The court points out that the seven year old’s statement to police had been admitted as substantive evidence under Minn.Stat. 595.02. Consequently, the trial inconsistency in her testimony became a fact/credibility issue for the jury to determine:

Because [the seven year old’s] prior statement alleging penetration was not admitted under the residual hearsay exception, it is unclear how the state’s failure to satisfy the [State v.] Ortlepp, [363 N.W.2d 39 (Minn. 1985)] factors could impact the decision of whether to dismiss the first-degree penetration charge.

Presumably, the court draws this conclusion, in order to chastise the lower court, because trial counsel either failed to object to the admission of the police statement or failed to request a limiting instruction.

Post Conviction: Court says defendant knew what he says was "unknown."

Whittaker v. Minnesota, 753 N.W.2d 668, Minn., July 31, 2008

Two armed intruders - a man in a red jacket with a semi-automatic pistol, and another man with a sawed-off rifle – forcibly entered a residence; the two men demanded money. In an ensuing struggle, the man in the red jacket shot and killed one of the residents. The two men fled but were apprehended a short distance away very soon after the shooting. Mr. Whittaker was wearing a red jacket. The man he was with, Karon Baldwin, refused to testify at Whittaker’s trial, despite a grant of immunity. A jury convicted Mr. Whittaker and the Supreme Court upheld his conviction. State v. Whittaker, 568 N.W.2d 440, 447 (Minn. 1997).

Ten years later, Mr. Whittaker produced an affidavit from Mr. Baldwin which Mr. Whittaker claims exonerates him. In the affidavit, Mr. Baldwin claims that it was he and two other individuals – Christopher Johnson and “Tron” committed the robbery during which the homicide occurred, and that it was Mr. Johnson who was wearing the red jacket. Mr. Baldwin goes on to assert that the three men happened to run into Mr. Whittaker after the homicide, and that Mr. Whittaker exchanged jackets with Mr. Johnson. Mr. Baldwin stated that he refused to testify at Mr. Whittaker’s trial because he wanted to protect Mr. Johnson.

The trial court, after considering the Baldwin affidavit, denied Mr. Whittaker’s post conviction petition without an evidentiary hearing. The Supreme Court affirms that denial. It seems that Mr. Whittaker cannot satisfy the first requirement of the newly discovered evidence rule, that Mr. Baldwin’s information (as contained in his affidavit) was unknown to Mr. Whittaker and his counsel at the time of trial. Information can’t be “unknown” if Mr. Whittaker was present at the time of the events that that Mr. Baldwin purports to describe. Pierson v. State, 637 N.W.2d. 571 (Minn. 2002).

It's Okay (sort of) to tell your client to lie, but be sure to advise her correctly on when to move to withdraw the plea.

Anderson v. Minnesota, 746 N.W.2d 901, Minn.App., April 08, 2008.

Defendant was charged with a gazillion counts of CSC; she was having sex of all kinds with a minor for whom she (and her husband) were foster parents. Four days into jury selection, she plead guilty to one count of CSC III under what turned out to be a false impression that the judge would only give her four months in the workhouse; on the day of sentencing, she learned that the judge intended sending her to prison for forty-one months, rather than to four months in the workhouse. She asked her attorney about withdrawing the plea before sentencing; the lawyer said that this would only piss off the judge and put her at risk of an even higher sentence. She deferred moving to withdraw the plea until after sentencing, which the trial judge promptly denied.

Defendant claimed that her admission of guilt was a lie, urged upon her by her attorney. Between the plea and the sentencing she told everyone who would listen, including the PSI writer, that she was innocent and had only plead guilty to get what she thought, erroneously, would be a four month stretch at the workhouse. On appeal, she argued that she had received ineffective assistance of counsel because (1) her attorney told her to lie during the plea hearing but neglected to tell her to continue to lie between the plea hearing and the sentencing hearing; and (2) her attorney incorrectly advised her not to move to withdraw the plea until after sentencing so as not to annoy the judge. She loses on the first ground but gets a remand on the second..

It turns out that it’s impossible for defense counsel to commit a Strickland violation by advising your client to lie. First, there’s the oath to tell the truth that is administered to the defendant. This overcomes, apparently, any bad legal advice, like don’t tell the truth. Here’s how the court explained this:

Anderson’s sworn duty to tell the truth, as directed by the oath, is too fundamental and obvious an obligation to be dismissed by contrary advice to violate it, even if suggested or encouraged by her attorney.

Second, she suffered no prejudice from the alleged advice to lie. She got what she was seeking: the court’s acceptance of the guilty plea. (That she did not get the sentence she was expecting in return seems to have escaped the court’s notice.)

Third, the trial court made no finding that defense counsel instructed defendant to lie. How could it? The court says that all defense lawyers know that their clients are guilty so if they initially profess innocence during privileged conversations but admit guilt before the court, what’s the problem? Indeed, counsel should be relieved that the defendant has “seen the light,” a vision undoubtedly brought on by the aforementioned oath.

Whether the defendant privately admits guilt or unconvincingly asserts innocence, her counsel’s duty to assess the relative strengths and weakness of the prosecution’s case and the likelihood of success at trial remains the same when advising whether to enter a guilty plea.

Now to the really good part: neglecting to tell defendant to keep up the ruse. This, it turns out, has no constitutional implications whatsoever:

In our review of the case law, we conclude that it would be a significant departure from traditional Sixth Amendment jurisprudence to hold that Anderson’s trial counsel violated her constitutional rights by failing to exact from her a more thorough ruse.

As to ground two, because there is a different legal standard – fair and just versus manifest injustice – the advice to wait until after sentencing to move to withdraw the plea falls below Strickland, so defendant gets a remand for the trial court to reconsider her withdrawal motion under the pre-sentencing standard.

This is great reading. Enjoy.

No automatic right to a new judge on remand for new trial

State v. Dahlin, 753 N.W.2d 300 (Minn., July 24, 2008).

When the appellate court reverses a criminal conviction with a remand for a new trial, who doesn’t consider whether the original trial judge can fairly preside over the retrial? Trial counsel thought not and so sought to remove the judge peremptorily under Rule 26.03, subd. 13(4). The trial judge denied the request; trial counsel sought a writ of prohibition in the court of appeals, which the appeals court denied. It appears that the second trial started before the removal question could be presented to the Supreme Court. A jury convicted him again, the court of appeals affirmed the conviction again. The Supreme Court took review only of the removal issue.

But, can Mr. Dahlin appeal the removal issue as part of the direct appeal of the new conviction? Or, must he have sought review in the Supreme Court in order to have preserved that issue? Can the party who is trying to remove the trial judge really just lay in the weeds (a second) trial and then pounce when the trial doesn’t come out the desired way? The Court says, no: “…[A] party must timely petition this court for review of the denial of a writ of prohibition when the issue involves the right of peremptory removal, and that failure to do so constitutes waiver of further review of the removal issue in this court.”

The Court goes on to review the issue on the merits; it didn’t seem sporting to do its own pouncing. Mr. Dahlin argued that the remand revived the right or peremptory removal under the rule but the Court isn’t having any of that. That being the case, the plain language of the rule makes the removal ineffective.

Post Conviction: No one raises the limitations question

Brocks v. State of Minnesota, 753 N.W.2d 672, (Minn., July 31, 2008), en banc.

Mr. Brocks gets an Opinion from the Supreme Court on the denial of his post conviction petition. He gets the opinion because the state failed to raise the two year statute of limitations in either the trial court of the appellate court. The oversight does not assist Mr. Brocks, though.

Eleven years ago this month, Mr. Brocks shot James Nunn seven times. Mr. Brocks did not deny the shooting; rather, he claimed he did so in self defense. The jury convicted him of first degree murder. On appeal, he argued that the trial court should have given a manslaughter instruction; and, (in a pro se supplemental brief), that he received ineffective assistance of trial counsel. The ineffective assistance claim alleged that trial counsel had a conflict of interest because he had worked with and been a friend of the victim’s father; and that counsel undermined the defense by advising him to discuss his drug involvement and to claim self-defense. Both aspects of the ineffectiveness claim were rejected on direct appeal.

Brocks argued in his post conviction proceeding that these claims fell within the two Knaffla exceptions, but the Court quickly points out that these exceptions only apply to claims that had not been raised on direct appeal. Consequently, Brocks’ ineffective assistance, post conviction claim is barred by Knaffla.

Brocks claimed that he had accepted the prosecutor’s plea offer on the Friday before trial was to start on Monday, but because his attorney waited until Monday morning to communicate the acceptance the prosecutor had withdrawn the offer. Unfortunately, Brocks is raising this claim for the first time on appeal of denial of post conviction relief so the court won’t entertain it.

"Cold Case" Comes to Minnesota

State v. Bartylla, Minn.S.Ct.

This is a DNA “cold hit” case. As a result of a burglary conviction, Mr. Bartylla’s DNA went into the BCA database. While working a homicide, a DNA type at the BCA ran the DNA results through that database, which hit upon Mr. Bartylla. Police or someone then obtained a second DNA sample from Mr. Bartylla and compared that all round with hits all round.

Following his conviction, Bartylla challenged the statute, 609.117, which requires collection of a DNA sample from convicted felony offenders, arguing that it was unconstitutional under the Fourth Amendment. The Court rejects that argument. The Court adopts a “totality of the circumstances” test and concludes that the state’s interest in obtaining the DNA profile outweighs the offender’s personal security interests. The state’s interests include exonerating the innocent, deterring recidivism, identifying offenders of both past and future crimes and bringing closure to victims of unsolved crimes. By comparison, the cheek swab just doesn’t measure up. ( In a footnote, the Court does say that if resort to a needle were necessary to extract the DNA that might be a different story.) The Court then adopts the same reasoning and results under the state’s constitutional provision.

Bartylla also ventured off into statistics land, arguing that the “product rule” is not properly to be utilized in “cold hit” cases. The Court says that it’s okay.

The 4-Hour "No Tow" Zone

State v. Gauster, Minn.S.Ct.  Mr. Gauster pulled onto the shoulder of a rural road to wait for his buddies to catch up with him. As luck would have it, a deputy sheriff rolled up behind him, stopped to inquire if Mr. Gauster required assistance. Of course, Mr. Gauster’s assistance need was for the deputy to disappear as Mr. Gauster had all manner of contraband in his car, including a bag of meth in the trunk. The state brought criminal charges based on the bag of meth. Mr. Gauster moved to suppress, arguing that there had been no authority to impound the car in the first place and thus the inventory search was unlawful. Mr. Gauster won this motion in the trial court, lost in the court of appeals and now wins in the supreme court.

The deputy chatted up Mr. Gauster, made him put the beer in the trunk and started to leave. Something, there’s always something, made the deputy run the plate; the owner had a suspended license. Mr. Gauster had told the deputy that he owned the car. The deputy chatted some more with Mr. Gauster and decided to give him two citations: suspended license and no proof of insurance. The deputy also decided to tow the vehicle. Before conducting an inventory search of the vehicle – that’s when the meth turned up – Mr. Gauster asked if he could either have someone pick up the car, or arrange his own tow. The deputy said, no. He issued Mr. Gauster the citations and towed the car.

The deputy lacked authority, however, to impound the car. By themselves, issuing only citations for either the suspended license or the failure to have proof of insurance authorizes impoundment. See State v. Askerooth, 681 N.W.2d 353 (Minn. 2004). The district court had found that leaving the car on the side of the road would not have created a safety hazard, so, again, there was no authority to impound it. While it is a violation of traffic laws to leave a car on the side of the road, the statute gives the driver four hours to get it moved. Minn. Stat. §§ 168B.04, subd. 2(b)(1)(i), 169.041, subd. 3 (2006). During this four hour period, there is no authority to impound the vehicle.

Finally, the deputy could have impounded the car based on the police role of protecting Mr. Gauster’s property, but not in this case. Mr. Gauster was not under arrest – see M.R.Crim.Pro. 6.01, S. 1(1)(a) – and, he stepped up by asking if he could either arrange for someone to fetch the car or to have it towed. Because Mr. Gauster was available to and capable of making his own arrangements for the car, there was no “care taking” purpose that would justify the impoundment (although that 4-hour clock is ticking).

The Court relied on two of its cases to reach this result: State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977); and State v. Robb, 605 N.W.2d 96, 104 (Minn. 2000).

One final note. The state failed to assert during the suppression hearing that the deputy had probable cause to search the car (including the trunk) under the automobile exception to the warrant requirement because the deputy had found an open container and a pipe with suspected contraband in the passenger compartment. It could not, therefore, raise this argument for the first time on appeal.

Spreigl Victory for the Defense

State v. Smith: The state charged Vincent Smith with possession of a firearm by an ineligible. Police executed a search warrant at Smith’s sometime girlfriend; he did not live there – he was also not there at the time of the execution of the warrant - but police found clothing for an adult male, a prescription bottle in Smith’s name, correspondence to Smith but at a different address from girlfriend’s address, and a current Minnesota identification card in Smith’s name but also with a different address from girlfriend’s address. Police also found a .25 caliber handgun in between the box spring and mattress of a bed in girlfriend’s room. When girlfriend denied that the gun was hers she offered up the opinion that “it must be Vincent’s.”

At trial, the court permitted the prosecutor to introduce as Spreigl evidence Smith’s prior conviction of the same crime and a photograph taken before the present charge that showed Smith at girlfriend’s residence standing with another person near a table on which handguns were displayed. The jury found Smith guilty. The Court of Appeals reversed and remanded for a new trial.

The Opinion is Judge Shumaker at his scholarly best; indeed, you can already visualize the power point presentation coming soon to a CLE near you. Coincidently, the Opinion goes in the defendant’s favor.

The Opinion invites a more vigorous defense objection to either late or absent notice of Spreigl evidence, as required by the rule (requiring that the prosecutor give notice of the intent to offer such evidence and to disclose what the evidence will be offered to prove). Without explaining just why, Shumaker dismisses the defense objection to faulty/missing notice as inadequate.

The prosecution stated that the Spreigl evidence would be offered to prove the identity of Smith as the possessor of the gun found in the bed. This is a permissible purpose under the rule. State v. Ness, 707 N.W.2d 676 (Minn. 2006) requires that the trial court conduct an exacting analysis of the evidence that is being offered in support of that purpose in order both to ascertain “the purpose for which the evidence truly is offered,” Ness, and to determine if that supporting evidence is relevant under Rule 401. Here, Smith’s admission to possessing a gun when he was ineligible to do so, and the photographs showing that he was in the presence of guns at the same location and at a time not remote from the date of the search satisfies the relevancy test of Rule 401.

Even though this evidence is relevant, Spreigl evidence must also be sufficiently probative, which is not the same thing. The probative value of the prior firearms conviction depends on the similarity of the two acts. The more similar are the circumstances of each act, the more compelling is the inference that the same person was involved in each. In this instance, there is no similarity beyond the name of the crime and the possession of a handgun. (The Opinion lays out why this is so.) Consequently, the jury would “and likely did” use the prior conviction improperly for character purposes, a purpose prohibited by Rule 404. That is to say, the potential prejudice to the defendant outweighs the probative value.

Shumaker quotes a definition of “unfair prejudice” from a U.S. Supreme Court case. “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S. Ct. 644, 650 (1997).

The photographs suffer the same fate because they irreversibly blur the distinction between being in the presence of guns and being in possession of them. It was not illegal for Smith to be in the presence of firearms so long as he did not “possess” them. The photographs, however, were so “bluntly compelling” that the jury was unlikely to make that presence/possession distinction; the result is again to use the photographs improperly for character purposes.

The Court is quick to say that “mere possibility” of improper jury use of the evidence is not the test; rather, it is “the substantial and demonstrable danger that it would in fact do so because of the nature of each Spreigl item.”

So, this is a great read; print off a copy of it and spend some time on it.

When the jury wants to watch video's back in the jury room.

State v. Everson: A jury convicted Everson of aiding and abetting the murder of his mother. Everson, as well as the two codefendants who testified against him, gave recorded statements to the police. In addition to their trial testimony, the statements of the two codefendants were played for the jury and then the recordings were admitted into evidence as exhibits without objection. The court also permitted the playing of Everson’s recorded statement and it admitted the recorded statement of Everson as an exhibit.

After deliberations commenced, the jury asked to hear the recordings of Everson and the two codefendants. Various ruminations ensued over how to do this after defense counsel objected, arguing that to permit replaying of the recordings would unduly prejudice defendant.

When a jury makes a request such as this, the court “should” consider three factors:

(i) whether the material will aid the jury in proper consideration of the case;

(ii) whether any party will be unduly prejudiced by submission of the material; and

(iii) whether the material may be subjected to improper use by the jury.

State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991); see also Minn. R. Crim. P. 26.03, subd. 19(2) 1 and 2 (setting forth appropriate procedures to address a jury’s request to review evidence and indicating that trial court has discretion to provide the jury with other relevant evidence). The defense objection was that replaying the recordings would cause undue prejudice. The court overruled the objection generally, but without engaging in any analysis of the three factors above listed. The appellate court thus had no findings by the trial court with respect to the three Kraushaar factors. Consequently, the appellate court assumed that it was error to have played the recordings; so, at a minimum, the case does not stand for the proposition that the procedure utilized here was not error. Having glossed over any error analysis, the appellate court simply moved onto an analysis of whether the error was harmless. That analysis doesn’t stake out any new territory.

In Kraushaar the Court had held that the error was harmless, in part, because replaying the tape merely “allowed the jury to rehear what it had already heard,” the videotape was consistent with and corroborated by other evidence in the trial, and it was extremely unlikely that replaying the tape prompted “the jury to convict where it otherwise would not have done so.” Here, Justice Gildea parroted that language in finding that any error was harmless. There were no dissents to this holding.

The additional objection raised on appeal was to the procedure by which the jury got to listen to the recordings again. On this part of the Opinion, there is a 4-3 split (but for different reasons). As mentioned, the court and the parties ruminated over how to do the redo. Here are the rules that the court and the parties eventually came up with:

- Playing of the recordings would take place only in the courtroom.

- If the jury asked to hear any of the three recordings it would be required to listen to it in its entirety. [The Opinion does not state that the jury asked to hear only portions of any of the statements so the propriety of such a request was not before the court.]

- The jury could only re-hear a statement once.

- Playing of the recordings would be part of deliberations, although it would take place in the courtroom. This rule meant: The judge would not be present; the court reporter would not be present; counsel (by agreement) would not be present; the defendant (by agreement, including a personal waiver) would not be present; and the public would not be present.

However, there would be an employee of the county attorney’s office present to operate the laptop on which the recordings would be played; and a court clerk would be present. On appeal, the argument was that this was no different, if not worse than, the judge sticking her head into the jury deliberations room to inquire about evening adjournment plans. State v. Mims, 306 Minn. 159, 235 N.W.2d 381 (1975); Brown v. State, 682 N.W.2d 162, (2004). The majority concluded that this procedure was not a “structural error” that required, without regard to harmless error analysis, a new trial. [Errors that are structural “require automatic reversal because such errors ‘call into question the very accuracy and reliability of the trial process.’ ” State v. Brown, 732 N.W.2d 625, 630 (Minn. 2007),[internal citation omitted].]

Three Justices dissented from this last part of the procedure. Justice Anderson agreed with the majority that this aspect of the procedure was not “structural” and thus requiring automatic reversal for a new trial, but he thought that a remand was required to develop a record of just what occurred while the county attorney employee played the recordings; he thought that the appellate court should not blithely assume that everything was okay. Justices Meyer and Page, on the other hand, concluded that the presence of a county attorney employee and/or a court clerk intruded upon the secrecy of the jury’s deliberations and was thus structural with the automatic reversal flowing from that conclusion. Justices Meyer and Page were also alarmed by the violation of the secrecy requirements of jury deliberations, and by the exclusion of the public. The courtroom should not be converted into a de facto deliberation room.

The Opinion gives no real acknowledgment to the rule, 26.03, S. 19(2), that covers this pretty well. A jury that requests to review evidence shall be conducted to the courtroom, whereupon the court may permit the review. It is now, apparently, at least not plain error to suspend this rule and go off road. Whether it is error to engage is this procedure awaits another day.

Trying to Withdraw a Plea Gets Unnecessarily Complicated

State v. Mudgett: This is a mean spirited little case from the Court of Appeals. The court goes out of its way to punish a defendant who moves for a departure; that punishment is to strip him or her of the ability to move to withdraw the plea under the more lenient pre-sentencing “fair and just” standard.

Mudgett was at risk of being tagged as a career offender, with a maximum sentence of * years on two counts of *. His able attorneys, Pat McGee and * negotiated a plea deal for him that significantly reduced his risk exposure.

After the plea but before sentencing Mudgett moved for a departure from the Guidelines. At the start of the sentencing “proceeding” here’s what counsel said: “Today [Mudgett] indicated to me that if the court is not inclined to depart in this matter either dispositionally or durationally, he would seek to withdraw his plea. I just ask to be heard on that in the event the court is not inclined to depart.” Now, for those of us who actually do trial work in Ramsey County is there any ambiguity about this? Just how many hundreds of times have you heard just this, or said it yourself? Is it not a good idea, or at least an appropriate courtesy, to give the judge a head’s up to your plan?

The appellate court refuses to give these words their ordinary meaning – if the court denies the departure motion then, before imposition of sentence, I want to be heard on a motion to withdraw the plea. Instead, the appellate court says that the actual request was to replace the departure motion with a motion to withdraw the plea.

This is an absurd result in the face of what the rule on sentencing provides. A motion for a departure would seem to be what is meant by a motion for a “sentencing hearing” under Rule 27.03, S. 1(D). Either party is entitled to request a sentencing hearing. This rule goes on to state that “The motion for a sentencing hearing shall specifically set forth the reasons for the motion,…” The rule specifically refers to challenges to the pre-sentence investigation report and the sentencing worksheet. Since the report, at least in Ramsey County, always opines about the wisdom of a departure, that portion of the report becomes a basis for challenge. How else to frame that challenge than by a request for a departure?

Anyway, subsection 1(E) goes on to provide that, not surprisingly, the court is to hear “issues raised in the sentencing hearing motion…” At the end of the hearing, the court may either announce its findings of fact, conclusions and appropriate order “on the issues submitted by the parties” or it must do the same thing by written findings, conclusions and order afterwards. Then, and here’s the kicker, the rule tells the trial courts this:

(G) The court may impose sentence immediately following the conclusion of the sentencing hearing.

It may, but is not required to do so. In fact, the court could, on its own or on request of a party, schedule the actual imposition of sentence for an entierely different day. Even when the court imposes sentence “immediately following the conclusion of the sentencing hearing” the rule does slow things down just a bit. That’s because the rule says that the judge has to give a bunch of people - the prosecutor, the victim, defense counsel, and the defendant - “an opportunity to make a statement with respect to any matter relevant to the question of sentence including a recommendation as to sentence.” Subd. 3. Only thereafter is the court actually authorized to pronounce a sentence.

The Court is now saying that the trial judge may conflate or rearrange, if not bulldoze its way through these steps. The court may hear argument on the departure motion but not rule on it; the court then hears from the enumerated parties and then imposes sentence. If the sentence is not a departure then the court has de facto denied the departure motion. It is especially alarming that the appellate court has given trial courts the green light to combine argument on the departure motion – an up or down vote so to speak – with argument on what sentence actually to impose. Here’s how the appellate court saw it:

[A]fter the parties have been heard regarding what sentence the court should impose, there is no rule requiring the district court to divulge its sentencing contemplations or inclination before it imposes the sentence. This is not to say that the rules prohibit a district court from disclosing its inclination regarding sentencing alternatives before imposing the sentence to allow a defendant to consider his options, including perhaps whether to make a pre-sentencing motion to withdraw his guilty plea. But the rules do not require this disclosure.

The question whether to depart and the question what sentence to impose are not the same questions. Rule 27’s chronology delineates those questions, a delineation the appellate would permit to be ignored. Indeed, the appellate court insists that the two questions, if not a single question in application, must be considered in tandem:

If Mudgett had requested the district court to decide the sentencing motion first, … and then, assuming the court denied that motion by imposing the presumptive sentence, to entertain an alternative motion to withdraw his guilty plea, … the district court could treat the issues in their reasonable order: Once it imposed Mudgett’s sentence, the court could then hear argument on his post-sentencing motion to withdraw his guilty plea. [Underlining added; Italics in original.]

The reason for all this fudging and ignoring of the rules is simple enough; conflating the two questions thereby permits the trial court to deprive the defendant of the opportunity to move to withdraw the plea under the more lenient standard applicable when the motion is made before sentence is imposed.

Okay, so it seems prudent now always to state at the beginning of a departure motion that this is a motion for a sentencing hearing under Rule 27; and that you are requesting that this be heard and ruled upon separately from imposition of sentence. Indeed, it would seem most prudent specifically to request that the court schedule a “sentencing hearing” exclusively to argue and receive a ruling on the departure motion, and that the proceeding at which the court imposes sentence occur on an entirely separate day. The defendant can then mull over the decision whether to move to withdraw the plea or accept the Guidelines sentence.

Sentencing Juries

Kelvin Jackson: A jury convicted Jackson of aggravated first degree robbery. Jackson and a woman forced their way into the victim’s house, robbed and assaulted the victim. The assault resulted in a fracture of the left orbital floor and lacerations to the scalp. On the way to the hospital, the victim suffered a heart attack.

The original charge had been aggravated first degree robbery (dangerous weapon). Before trial, the state added another aggravated first degree robbery ((inflicts bodily harm), a count of second degree burglary, and an assault count for the heart attack. The court granted a judgment of acquittal on the assault charge and the jury convicted on all remaining counts.

During the penalty phase, the jury was asked, and answered yes, to three questions: Did the aggravated robbery occur in the victim’s home? Did the victim sustain multiple blows to the head? Did the victim sustain an orbital fracture? At sentencing, the court imposed an executed sentence of 120 months on first degree aggravated robbery (dangerous weapon). The court based the departure on the seriousness of the victim’s injuries, and on the invasion of the victim’s zone of privacy.

Justice Page garners a majority to reverse the enhancement. Regarding the nature of the victim’s injuries, the orbital fracture is “substantial bodily harm,” which is third degree assault. Because third degree assault was not charged this is an improper basis for departure. (Even had three degree assault been charged, a departure would have been improper on the basis of the cumulative punishment for conduct that constitutes more than one offense.

Regarding zone of privacy, that’s a burglary, also not charged. Although Jackson could have been sentenced on both the robbery and the burglary had he been charged and convicted, the aggravated sentence imposed, 120 months, exceeds the maximum guidelines sentence that could be imposed for the two offenses. This is thus an impermissible basis for departure.

Justice Gildea, joined by Justice Barry Anderson and Justice Dietzen, writes a vigorous dissent.