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.