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.