Court Says All “Owners” Must be “Innocent” to Claim “Innocent Owner” Defense.

Laase v. 2007 Chevrolet Tahoe, Minn.S.Ct., 12/17/2009.  After a late afternoon round of golf, Mr. Laase met up with his wife at the club.  Mrs. Laase was scheduled to pay her own round of golf so Mr. Laase packed up his clubs and went home.  Six hours later, his wife called to report that she’d been busted in the couple’s Chevrolet Tahoe for DUI.  Mrs. Laase eventually pled guilty to second degree criminal test refusal.

The state then seized the Tahoe.  Mr. Laase challenged the seizure, saying that he was an “innocent owner,” which prevented the seizure.  This statute provides:

A motor vehicle is not subject to forfeiture under this section if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent the use of the vehicle by the offender.

The appellate court concludes that “owner” includes all owners, not just the one who was at home with the kids while the other owner was out driving drunk.  They reach this conclusion by invoking a statutory rule of construction that the use of the singular of a word includes the plural.  Since “owner” is now “owners” all owners of a jointly owned and jointly shared vehicle must be “innocent owners” to assert the defense.  The Laase’s readily, if foolishly, acknowledged that each had a key to the Tahoe and that neither asked the permission of the other to use it.  What the appellate court characterized as the “mutual use and control” of the Tahoe made them both “owners.”  So, get those permission slips printed up and handy, and lose those extra keys.

Frye/Mack Challenge to Admissibility of Gunshot Residue Evidence Fails.

State v. Loving, Minn.S.Ct., 12/167/2009.  A jury convicted Mr. Allen of the premeditated murders of Mr. Allen and Ms. Peters.  Mr. Loving and Ms. Peters had been in a relationship that was often abusive.  Mr. Allen was Ms. Peters’ current boyfriend at the time of the murders.

A forensics expert tested the clothing that the police believed that Mr. Loving had been wearing during the shootings for the presence of gunshot residue.  Using something called SEM/EDX, the expert found three-element particles of gunshot residue on a coat, and two-element particles consistent with gunshot residue on a pair of pants, a glove, and elsewhere on the coat.  The trial court held a Frye-Mack hearing on the admissibility of the gunshot residue evidence, after which it admitted the three-element particles evidence but not the two-elements evidence.

Mr. Loving conceded that gunshot residue testing with this SEM/EDX is generally accepted in the relevant scientific community.  His complaint, rather, was that:

there is no way to determine how or when GSR lands on clothing because GSR can be transferred in a number of ways, does not disintegrate, and can remain on clothing even after washing. Essentially, Loving asserts that the test’s inability to determine how or when GSR got on the clothing indicates that the meaning of the test is unreliable.

The appellate court says, no, this is about the weight of the evidence, not the reliability of it.  That there are multiple possibilities of how or when gunshot residue got transferred to the coat did not make SEM/EDX analysis or the gunshot residue evidence unreliable.  The appellate court also rejected an argument that this evidence was not helpful under the rules of evidence because of these multiple possibilities (and others as well). 

Finally, Mr. Loving complained about the admission of relationship evidence, introduced under Rule 404(b), arguing that it’s probative value was outweighed by its potential for unfair prejudice.  The appellate court found no error in admitting this evidence.

Conviction of Possession of Khat Does Not Require Proof that Defendant Knew that Khat Contained Cathinone.

State v. Ali, Minn.Ct.App., 12/15/2009.  A deputy sheriff found dried khat in a storage locker that Mr. Ali rented.  Khat contains, among other things, cathinone, which is a stimulant.  One chemist dissolved some of the Khat with acid and then detected cathinone by analyzing the stuff that she dissolved in the acid with a gas chromatograph mass spectrometer.  Another chemist said that she had never been able to detect cathinone with a gas chromatograph mass spectrometer.

Mr. Ali said that the state didn’t prove that he knew that his khat contained cathinone, which is a schedule I controlled substance.  The appellate court joins most states and the federal courts in concluding that a defendant need not be aware of the precise chemical name of the ingredient that makes it a controlled substance; proof that a defendant knew that the stuff contained an illegal drug suffices.

Mr. Ali complained about the method by which the first chemist detected cathinone, but the complaint did not include a request for a Frye/Mack, hearing.  The appellate court declined to find any error.  The appellate court also declined to hold that the drug statute was unconstitutionally vague because the statute lists cathinone but not khat.

Defendant Had No Duty to Prevent Her Sometime Boyfriend From Killing her Other Sometime Boyfriend.

State v. Back, Minn.S.Ct., 12/10/2009.  Nicholas Super shot and killed Daniel Holliday.  Ms. Back had lived with Mr. Holliday for a time but then moved out, after which she took up with Mr. Super.  Apparently finding him not so super, she endeavored to reunite with Mr. Holliday.  To do this she needed wheels to get over to Mr. Holliday’s New Years Eve bash; she enlisted Mr. Super for a ride. 

Things didn’t go too well at the party.  Mr. Holliday and Ms. Back started arguing; Mr. Holliday repeatedly asked her to leave then commenced to escort her off the premises.  Mr. Super was lurking outside.  The two men then began to argue; Mr. Holliday tried to push Mr. Super off the stairs at which point Mr. Super shot Mr. Holliday.  Mr. Super fled; Ms. Back stayed to try to save Mr. Holliday’s life.

Amazingly, a grand jury indicted Ms. Back for first degree premeditated murder and various other lesser included intentional homicide offenses.  Things started to improve for Ms. Back, however, once trial commenced.  The state dismissed the first degree murder charge and the judge granted Ms. Back’s motions for judgments of acquittal on the remaining intentional homicide offenses.  As Ms. Back was headed for the door, however, the judge then granted the state’s motion to add second degree manslaughter to the mix, on which a jury convicted her.

Second degree manslaughter requires culpable negligence.  Negligent behavior, however defined, doesn’t matter unless that behavior breached some duty of the actor.  The appellate court couldn’t find one and so it threw out the conviction.  The appellate court said that Ms. Back had no duty to prevent Mr. Super from killing Mr. Holliday unless some special relationship between them created that duty.  The state introduced no evidence that Ms. Back had a relationship with Mr. Holliday suggesting either that she would protect him, or that Mr. Holliday assumed that she would protect him.  The state also introduced no evidence that Ms. Back had an obligation to control Mr. Super.

Court of Appeals Construes Subsection of Possession of Child Pornography Statute to Penalize Possession of Depictions of Specific Conduct.

State v. Johnson, Minn.Ct.App., 12/1/2009.  A district court judge found Gary Johnson guilty of possession of child pornography under Minn. Stat. § 617.247, subd. 4(a) (2006), which prohibits the possession of any visual depiction that uses a minor to depict actual or simulated sexual conduct.  Mr. Johnson snapped an image of his step daughter with his cell phone; the shot showed her from the waist up, naked and lying down.   She is, by everyone’s account, frowning.  When Mr. Johnson got himself a new cell phone he gave this one to his step daughter but he first sent the image to his new phone.

The appellate court took a look at the image.  Here’s how the court describes it:

The image on the cell phone in the sealed file is of a young girl unclothed from the waist up, who the parties stipulate to be AD. The image does not show the lower part of her body. She is lying on her back with her arms crossed over her ribs. Her right hand is resting on her stomach; her left hand is resting on her right forearm. The top of her left forearm is in contact with her breasts.

The appellate court decided that what it was looking at did not depict “sexual conduct,” an element of the offense.  Even though the statute has five definitions of “sexual conduct,” only one of them is in play here:

physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.

The appellate court decides that this language is clear and unambiguous, and requires “depiction of an act that is or appears to be one of sexual stimulation or gratification, an act that constitutes sexual abuse when a minor is involved.”  Sexual stimulation of the viewer is not an element of the offense. 

AD’s arms, which are crossed under her breasts, are passively resting across her upper torso. The contact between her arms and her breasts is incidental to where her arms are resting. The physical contact between AD’s forearm and breast is not part of an act of sexual stimulation or gratification. Consequently, the image of AD does not depict sexual conduct and is not a pornographic work.

Videotape of Defendant’s Police Interrogation Properly Admitted as Rebuttal Evidence.

State v. Pearson, Minn.S.Ct., 11/25/2009.  A jury convicted Mr. Pearson of various counts of homicide for the death of Corodarl Merriman.  Mr. Pearson shot Mr. Merriman during the early stages of a drug deal.  Mr. Merriman’s brother, Willie, witnessed the homicide and testified that Mr. Pearson shot Corodarl because Mr. Pearson suspected that he was a cop.  Mr. Pearson, on the other hand, testified that Corodarl pulled a gun on him and so he shot in self defense.

The state wanted to introduce Mr. Pearson’s statement to a police officer to rebut Mr. Pearson’s claim of self defense.  Mr. Pearson objected, saying it wasn’t proper rebuttal.  Mr. Pearson had testified that most of what he’d said to the cop had been a lie and that he was only trying to find out what evidence the police had on him.  The trial court admitted the police statement as the best evidence by which the jury could know what had really been said during the interview and to gauge Mr. Pearson’s credibility. The appellate court agreed but it did conclude that Mr. Pearson’s six references to obtaining counsel should have been redacted; the appellate court, under a plain error analysis, concluded that this error did not affect Mr. Pearson’s substantial rights and thus declined to give him any relief on this error.

Mr. Pearson made numerous complaints of prosecutorial misconduct, which the appellate court rejected.  The appellate court also rejected a claim of ineffective assistance of counsel

Trial Court Wrongly Admitted “Immediate Episode Evidence” but Error was Harmless.

State v. Riddley, Minn.S.Ct., 11/25/2009.  A jury convicted Mr. Riddley of first degree premeditated murder and first degree murder committed during an aggravated robbery.  It seems that Mr. Riddley was out and about looking for people to rob.  Along the way, Mr. Riddley, along with two others, robbed R.S. at gunpoint of his wallet and some tools.  After sending R.S. on his way, Riddley stepped away for a moment, shortly to return with a pair of pants and two different sized pairs of shoes.  Mr. Riddley and his companions continued wandering around the neighborhood.  Riddley and one of his companions committed the homicide a few minutes later.

The state introduced evidence of the R.S. robbery at Mr. Riddley’s trial.  The state offered this evidence as something called “immediate-episode evidence,” which the state described as prior acts that were part of the same course of conduct that night.  Mr. Riddley, on the other hand, said the R.S. robbery was a prior bad act for which proper notice had not been provided. 

“Immediate episode evidence” is admissible, it turns out:

where two or more offenses are linked together in point of time or circumstances so that one cannot be fully shown without proving the other, or where evidence of other crimes constitutes part of the res gestae.

State v. Wofford, 262 Minn. 112, 114 N.W.2d 267 (1962).  Another thing:  there has to be a close causal and temporal connection between the prior bad act and the charged crime.  The R.S. robbery passes the “point in time” requirement; the two occurred within fifteen minutes of each other and in more or less the same location.  But, the R.S. robbery does not pass the “close causal” connection:  there’s no evidence that the R.S. robbery motivated the murder or that Riddley did the murder to conceal the robbery.  So, the trial court abused its discretion by admitting the R.S. robbery evidence as “immediate episode evidence.”  Alas, though, this abuse of discretion was harmless error.  The error does enable the appellate court to avoid answering the question whether “immediate episode evidence” is subject to the admissibility requirements of Rule 404(b).

Mr. Riddley also complained about the granting of a motion by the state to dismiss a potential juror for cause.  The appellate court finds no error in the dismissal and continues its general refusal to apply Batson to challenges for cause.

Officer Initiated Sexual Contacts Not Required For Collection of Evidence of Prostitution Violates Due Process.

State v. Burkland, Minn.Ct.App., 11/24/2009.  The due process rights guaranteed by both the federal and state constitutions prevent conviction of a defendant, even a predisposed one, if the government agent’s behavior in participating in or inducing the commission of the crime is “sufficiently outrageous.”  Hampton v. United States, 425 U.S. 484 (1976).  Twice in the late 1970’s, the Minnesota Supreme Court said it was okay for a police officer to engage in certain sexual activities with a prostitute in order to bust her for engaging in prostitution.  In State v. Morris, 272 N.W.2d 35, 36 (Minn. 1978), and in State v. Crist, 281 N.W.2d 657 (Minn. 1979) the cop exposed himself to the target of the investigation in order get her to negotiate a price for sex.  Both times the court said that such behavior was not sufficiently outrageous to violate the defendant’s due process rights.

The third time’s not a charm; it’s outrageous.  As the officer lay naked on his back he inquired of the soon-to-be defendant if he could touch her breasts now.  Ms. Burkland said yes, whereupon the officer began to massage her bare breasts while she rubbed the officer’s penis with oil. 

The appellate court said that this request was unnecessary to gain evidence sufficient to arrest Ms. Burkland for prostitution.  Here’s why:

First, there is no evidence in the record, nor did the officer contend, that Burkland’s conduct was necessary to dispel a suspicion that he was a police officer. Second, Burkland made no demands of the officer to detect whether he was a police officer. Third, there is no evidence that the officer considered it necessary for the collection of evidence to initiate sexual contact by asking to touch Burkland’s breasts or permitting her to rub his penis in order to gain her confidence. Police investigation is important in prosecuting and reducing the incidence of prostitution. But the officer could have successfully sought the necessary agreement to engage in sexual contact for hire by inquiring about the charge for the “release” at almost any point throughout the almost hour-long massage without ever initiating sexual contact by touching Burkland’s breast. Thus, unlike the facts of Morris and Crist, the officer’s initiation of sexual contact and assent to the escalation of that contact was unnecessary to any reasonable investigation and offensive to due process.

The appellate court reversed the conviction.

Court Approves Use of Overlapping Facts to Support Sentencing Departure.

State v. Edwards, Minn.S.Ct., 11/19/2009.  A judge convicted Mr. Edwards of first degree assault of Makara Din; and three counts of drive by shooting, in which three other individuals sustained gunshot injuries.  The state asked for an upward departure on the assault conviction,which the trial court agreed to do:

Defendant’s conduct in assaulting Makara Din was significantly more serious than that typically involved in the commission of the crime of first degree assault, in that Defendant fired seven times at or toward a group of nine people in the immediate area, exposing all of them to injury or death, and, in addition to Makara Din, seriously injuring Khaosan Ruos. Defendant’s conduct was particularly serious and represented a greater than normal danger to the safety of other people.

Mr. Johnson appealed the upward departure.  The appellate court first set out the rules under which it thought a departure could be imposed.

First, the departure can’t be based on facts necessary to prove the offense being sentenced.  State v. Blanche, 696 N.W.2d 351 (Minn. 2005).  This rule is not in play here.

Second, the departure can’t be based on facts that the legislature contemplated when it set the punishment for the offense being sentenced.  State v. Stanke, 764 N.W.2d 824, 827-28 (Minn. 2009).  To permit a departure in this instance amounts to double punishment.  The best example, perhaps is State v. Thao, 649 N.W.2d 414 (Minn. 2002).  Mr. Thao fired six bullets into a crowd of seven people, killing one of them.  A jury convicted him of second degree murder by drive by shooting.  Because the legislature contemplated the random firing of multiple shots into a group of people in establishing the punishment, a departure could not be based on the risk to bystanders.  This rule is in play here.

Third, there are limits on the availability of facts underlying a separate offense that are available to support a departure.  This rule is also in play here and it has subparts.  First, facts underlying an uncharged separate incident are not available to support a departure.  Second, facts underlying a separate conviction that arises out of a single behavioral incident are available to support a departure so long as those facts show that a defendant committed the offense being sentenced in a particularly serious way.  State v. Ford, 529 N.W. 2d 214 (Minn. 1995).  These underlying facts must tie in to the offense being sentenced to meet this requirement.

Back to the departure.  First, Mr. Edwards argued that facts underlying another conviction – the drive by shootings – may never be used as a basis for an upward departure.  The appellate court disagrees with this assertion, instead saying that these “overlapping” facts may properly be used to depart, so long as those facts show that a defendant committed the offense being sentenced in a particularly serious way. 

Next, Mr. Edwards argued that the legislature contemplated the risk associated with firing multiple bullets into a group of people when it established the punishment for first degree assault.  The appellate court rejects this assertion as well.  Drive by shooting is not an included offense of assault and thus the legislature could not possible have been contemplating it when it set the punishment for assault.  There were also multiple victims so Mr. Edwards’ culpability is greater than if he had harmed only one victim.  Finally, the appellate court rejects an argument based on charge manipulation, e.g., State v. Jackson, 749 N.W.2d 353 (Minn. 2008).

Justice Page dissented, joined by Justices Meyer and Paul Anderson.

State Proved Pattern of Child Abuse First Degree Murder.

State v. Johnson, Minn.S.Ct., 10/08/2009.  A bench trial resulted in the conviction of  Mr. Johnson of first degree murder while committing child abuse, first degree murder while committing domestic abuse, and second degree intentional murder – all for the death of Mr. Johnson’s infant child, Jonah.  In the six weeks of his life, several of little Jonah’s ribs were broken when Mr. Johnson sat on him;  Mr. Johnson routinely squeezed Jonah hard enough to cause him to cry and to be uncomfortable, done usually when Jonah resisted taking his bottle.  Mr. Johnson ultimately caused Jonah’s death by throwing him around when Mr. Johnson noticed that Jonah’s breathing was deep and labored.

The trial court concluded that the numerous squeezing incidents combined with the sitting incident established a pattern both of child abuse and domestic abuse.  The statutory definitions of these two offenses are mostly the same, defining first degree murder as:

an act that causes the death of a human being while committing domestic abuse or child abuse “when the perpetrator has engaged in a past pattern” of domestic abuse or child abuse “and the death occurs under circumstances manifesting an extreme indifference to human life.”

The state must prove that a defendant has engaged in a pattern of conduct beyond a reasonable doubt; to prove that pattern the state must provide at least a minimum number of underlying acts beyond a reasonable doubt.  The squeezing incidents constituted fifth degree assault, primarily because Mr. Johnson admitted that he performed the squeezing even though he knew it would not persuade Jonah to take the bottle; “[I] did it anyway,” he told police.  The sitting incident, which apparently resulted in the broken ribs, also constituted fifth degree assault.  These events also constituted malicious punishment of a child.  These events satisfy the requirement of a “pattern,” as this was, as the trial court found, Mr. Johnson’s “regular way of acting” towards Jonah was abuse.

Finally, the appellate court vacated Mr. Johnson’s convictions of first degree domestic abuse murder and second degree intentional murder.

No Reason Needed to Order Passenger Out of Vehicle.

State v. Krenik, Minn.Ct.App., 10/27/2009.  An officer stopped a car for, among other things, having an object suspended from the rearview mirror.  Ms. Krenik was the front seat passenger.  Ms. Krenik’s friend had a suspended license for which the officer issued her a citation.  Another officer then directed Ms. Krenik to get out of the car; somehow the officer thought that this was the best method by which to ascertain that she was okay to drive the car since her friend could not.  Ms. Krenik’s friend, explaining why she was driving on a suspended license, had already blabbed to the cops that Ms. Krenik had had a miscarriage earlier in the day and was distraught.

As Ms. Krenik got out of the car, the police officer instructed her to keep her hands out of her pockets.  At first she did that, but then either forgot or thought nothing of it, – or remembered that’s where the bong pipe was - but soon she put her hands in the front pouch of her sweat shirt.  This was the green light for the officer to pat search the pouch, and to find the bong pipe therein.  The cops then did a full blown search during which they found a container inside of which they found methamphetamine.

Ms. Krenik moved to suppress the pipe and the meth;  the trial court ruled that the stop had been valid and that the pat search which produced the pipe was a valid “plain feel” search under Minnesota v. Dickerson, 508 U.S. 366 (1993).  The vexing question was whether the officer had need of a reason to have directed that Ms. Krenik get out of the car in the first place; otherwise, all that business with her hands in and out of the pouch would never have happened.  The trial court ultimately concluded that the directive that Ms. Krenik get out of the car needed no justification whatsoever.

The appellate court agreed.  That court relied on Maryland v. Wilson, 519 U.S. 408 (1997), which said that an officer who is making a traffic stop may order passengers out of the car pending completion of the stop.  See, State v. Ortega, 770 N.W.2d 145 (Minn. 2009).

Faulty Tinkling Claim Fails to Resonate In Implied Consent Hearing

Hayes v. Commissioner of Public Safety, Minn.Ct.App., 10/6/2009.  A state trooper arrested Mr. Hayes on suspicion of driving while impaired.  The trooper requested Mr. Hayes to submit a urine sample, which revealed an alcohol concentration of 0.13.  The Commissioner revoked Mr. Hayes’s license.

At the implied consent hearing Mr. Hayes offered expert testimony about the urine test but the trial court rebuffed the offer.  Mr. Hayes’s expert wanted to testify that the trooper did not obtain a proper urine sample that would permit a proper measurement of Hayes‟s alcohol concentration at the time of the test because Hayes provided a urine sample without having previously voided his bladder.

The appellate court rejects this “urine pooling” theory by pointing out that it had already considered it and rejected it ten years ago:  Genung v. Commissioner of Pub. Safety, 589 N.W.2d 311 (Minn.Ct.App. 1999), review denied (Minn. May 18, 1999). 

Other challenges to the use of this urine test have been successful for the driver.  For instance, see here, and here.  A petition for further review is pending before the Supreme Court.

More Blakely Stuff - “Particular Cruelty” Is Not a Jury Question.

State v. Rourke, Minn.S.Ct., 10/22/2009.  Mr. Rourke pled guilty to first degree assault, and agreed to an upward sentencing departure;  all this was before Blakely.  On appeal, the Supreme Court reversed and remanded.

At the Blakely sentencing trial, the state wanted to submit four aggravating factors:  the plea agreement; particular cruelty; abuse of a position of power; and vulnerability of the victim.  The trial court rejected the plea agreement and abuse of a position of power because the sentencing guidelines did not specifically list them.  At the end of the Blakely trial the defense argued that the particular cruelty factor was unconstitutionally vague.  The trial court reserved ruling on this challenge and  submitted two interrogatories to the jury:

(1) Was [the victim] treated with particular cruelty on January 28, 2003? and (2) Was [the victim] particularly vulnerable on January 28, 2003, due to age, infirmity, reduced physical capacity, or reduced mental capacity?

The jury found that the victim had been treated with particular cruelty.  The trial court then tossed that finding, concluding that the term, particular cruelty, was unconstitutionally vague and that the courts had no authority to provide jurors with a definition of the term.  The Court of Appeals tossed all of that back, saying that the term, particular cruelty, is not unconstitutionally vague, that the trial court should have submitted the abuse of a position of power factor to the jury, and that the trial court should have provided an instruction on particular cruelty in line with the definition given in State v. Weaver, 733 N.W. 2d 793 (Minn.Ct.App. 2007):  conduct “significantly more cruel” than that usually associated with the offense of conviction.

The appellate court rejects the “particular cruelty” vagueness challenge.  It does so by distinguishing the role of the jury from that of the judge.  The jury’s role is to find “additional facts” upon which the court may (or may not) then rely as a substantial and compelling basis for imposing a sentence that departs from the guidelines.  Under this construct, “particular cruelty” is a reason for a departure, not a fact of departure.  This means that the trial court is the initial gatekeeper and must decide whether a particular fact or set of facts would, if proved, provide it with a substantial and compelling reason to depart.

The appellate court ducked the abuse of power question, concluding that because the state did not have a right of appeal on this issue, at least before the amendments to the criminal rules following Blakely. 

Justice Paul Anderson dissents, arguing that “particular cruelty” is a fact that must be found by a jury because it exposes a defendant to an enhanced sentence.  He points to pattern jury instructions from Washington State and Alaska, which provide a more precise definition of “particular cruelty.”  The dissent also argued that a vagueness challenge should apply to sentencing factors. 

Recent Grant of Review By Supreme Court on Corroboration Requirement in CSC Prosecution

State v. Kasey Vo Cao, Minn.Ct.App., 8/25/2009, review granted, 11/18/2009.  During closing argument in this third degree criminal sexual conduct prosecution, the prosecutor told the jury that corroboration of the victim’s testimony was not necessary.  There was no defense objection to this statement but the Court of Appeals held that this was “plain error” that entitled Mr. Kasey Vo Cao to a new trial.  In this case, the victim could not recall the events and Mr. Kasey Vo Cao testified that sex was consensual.  The Court of Appeals concluded that notwithstanding Minn.Stat. 609.347, subd. 1, which says that corroboration is not necessary in a prosecution for third degree criminal sexual conduct, corroboration was required in this instance.

Bong Water

State v. Peck, Minn.S.Ct. 10/22/2009.  In a 4-3 decision, the Minnesota Supreme Court reverses the Opinion of the Court of Appeals that had held that bong water was not a “mixture” under the controlled substances act.  Apparently, it is.  Here’s how the appellate court sets the tone:

The issue in this case is one of statutory interpretation, not whether we approve of the prosecutor‟s charging decision. The dissent clearly disagrees with the prosecutor‟s decision, and there is certainly room to debate the wisdom of that decision. But we may intrude onto the executive branch charging function only in very limited circumstances.  State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996) (“Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor‟s charging authority.”). While the dissent protests, based on commentary from a United States Senator from the Commonwealth of Virginia, that the State‟s charging decision here “is counterproductive to the purposes of our criminal justice system,” the dissent makes no effort to show that the decision here satisfies the standard we articulated in Krotzer.

A “mixture” is a “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.”  Minn.Stat. 152.01, subd. 9a.  Water in a bong that contains methamphetamine is a “mixture.”  End of discussion.  Sort of.  Justice Paul H. Anderson began his dissent this way:

I respectfully dissent from the majority‟s decision for two reasons. First, I conclude the law does not support the result reached by the majority. The majority‟s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd. The majority reaches its conclusion because it misapplies the plain-meaning rule and fails to consider the statutory language in its application to the facts at hand and in the context of the statute as a whole. The result is a decision that has the potential to undermine public confidence in our criminal justice system.

Second, I dissent because the decision of Rice County to charge Sara Ruth Peck with a first-degree felony offense—an offense that has a presumptive sentence of 86 months in prison—for possession of two and one-half tablespoons of bong water is not only contrary to the law, it is counterproductive to the purposes of our criminal justice system.

Justices Page and Meyer joined in this dissent.  Justice Anderson’s concluding paragraph is worth of a reprint:

But, we as a society and those of us in the criminal justice system need to do a better job of assessing risk when determining how to charge an alleged wrongdoer and what punishment to impose on a wrongdoer who is found guilty. This need for proper risk assessment is particularly critical when it comes to punishing non-violent drug offenders who are presently swelling our prison populations beyond capacity. I believe that the Minnesota Legislature attempted to make such a risk assessment when it enacted chapter 152, which uses weight to distinguish between less serious and more serious offenders. I also believe the District Court Judge, Thomas Neville, and the Minnesota Court of Appeals properly attempted to apply this law based on its intent and plain common sense. On the other hand, Rice County is taking this law in what I believe to be an improper and counterproductive direction that perpetuates the incarceration crisis that Senator Webb has described. Unfortunately, today‟s decision by the majority affirms Rice County‟s error and takes us in the wrong direction under the law and under good public policy. Therefore, I express my strong dissent to the decision of the majority.

Gangs Three

State v. Vang, Minn.S.Ct., 10/29/2009.  Mr. Vang went to trial separately from Mr. Yang in the Jimmy’s Pro Billiards prosecutions.  Mr. Vang objected to the state’s gang expert testimony, arguing among other things that the testimony violated his right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004).

The complaint here is that to establish that Mr. Vang and others were members of the gang in question the expert testified about statements obtained by another officer and recorded on an interview card.  The state invited the appellate court to assume without deciding that this testimony violated Crawford but that the admission of these statements was harmless.  The appellate court accepted this invitation and quickly concluded that admission of the statements was, indeed, harmless.  The appellate court did agree with Mr. Vang that the statements that the expert recited were inadmissible hearsay and should have been excluded.  Again, the admission of the statements did not, the court concluded, substantially influence the jury’s verdict and so were, again, harmless.

In a related challenge to the expert’s testimony, the defense objected to this series of questions and answers:

Q. Do you have an opinion based on your training and experience as to whether or not members of the MOD gang have individually or collectively engaged in a pattern of criminal behavior?

. . . .

A. Yes I do.

Q. What is that opinion?

A. That members of the MOD gang do individually and collectively engage in a pattern of criminal activity, violent criminal activity, under statute 609, which includes aggravated assaults, drive-by shootings, possession of guns by ineligibles, criminal sexual conduct, auto theft, narcotics and other crimes.

This opinion is improper because it invades the province of the jury.  The expert could have testified that individual members of this gang have engaged in specific criminal activities and describe the facts that support that opinion.  However, the expert could not express an opinion that the state’s proof of a portion of an element of the offense had been met.  Again, however, the error was harmless.

Mr. Vang complained of various other evidentiary rulings and of an instructional error, all of which the appellate court rejected.  As did Mr. Yang, Mr. Vang also complained of the permissive consecutive sentencing; the appellate court rejected this complaint as well.

Gangs Two

State v. Yang, Minn.S.Ct., 10/29/2009.  A jury convicted Mr. Yang of multiple counts of first degree murder, including “for the benefit of a gang” counts, for the resulting deaths of two people; and of four counts of attempted first degree murder.  The trial court imposed two consecutive life sentences for the murder convictions; and four consecutive 186 month sentences for the attempted murder counts.

Various officers responded to Jimmy’s Pro Billiards on a report of shots having been fired.  In addition to finding the first of six bodies – two dead and four injured, an officer saw a black four door Honda leave a nearby parking ramp, driving with its lights off and in the wrong direction.  Another officer topped a dark blue Honda Civic in which Mr. Vang was the front seat passenger.  Police found three handguns in that car and one other handgun in another car that turned out to have Mr. Yang’s buddies in it.

Mr. Yang moved to suppress the evidence found in the Honda Civic, and to limit the state’s gang expert testimony.  The trial court denied the motion and the appellate court upheld that ruling.  That the only car that the cops saw leave the ramp after the shooting did so with its lights off and driving in the wrong direction established a reasonable articulable basis to have stopped the Honda.

Mr. Yang wanted to question the three jail snitches and the cooperating codefendants about the deals that they got for testifying against him.  Specifically, he wanted to ask them how much time each was getting off their sentences.  The trial court said no.  The appellate court upheld this restriction, in keeping with its previous rulings on this issue, for instance, State v. Dobbins, 725 N.W.2d 492, 505 (Minn. 2006).  Close enough is good enough; so long as the jury has some notion that a snitch or cooperating defendant got “a pretty good deal” the jury knows enough.

The state’s gang expert described the history of the gang in play in this prosecution and described some of its symbols.  This was okay because the state had to prove that the gang in question was a “criminal gang,” whether it had a common identifying sign or symbol, and whether it existed to commit violent acts.  The expert went on, however, to opine that this particular gang’s primary activity was to commit violent crimes.  This was also okay although pretty close to the line.  The appellate court concludes that a gang expert cannot express an opinion that a particular gang is a criminal gang under the statute, and cannot express an opinion that a defendant committed a crime to benefit a criminal gang.  Because this expert did not express such opinions there was no error in receiving the testimony.

The appellate court rejected a complaint about the jury instructions, having more to do with the way in which the trial court corrected errors in the written instructions on the fly as they were being read.  Ultimately, Mr. Yang could not point to any incorrect instruction as finally presented to the jury so he was not entitled to any relief. 

Mr. Yang complained that the permissive consecutive sentences exaggerated the criminality of his conduct.  He presented several arguments in support of this complaint but the appellate court rejected them all.

Gangs One

State v. Cruz-Ramirez, Minn.S.Ct., 8/27/2009.  A jury found Mr. Cruz-Ramirez guilty of six counts of murder for the death of Heli Leon; and found him guilty of a total of twelve counts of attempted murder for the injuries of three others.  The trial court pronounced a life sentence on the completed murder and three consecutive sentences of 186 months each on the attempted murder convictions. 

Some of the counts were “benefit of a gang” counts, so the state wanted to present gang expert testimony.  This expert described the ten criteria by which gang members are identified; described several characteristics of the gangs at play in this prosecution; and described the criminal activities of those gangs.  This expert did not give an opinion whether Mr. Cruz-Ramirez was a gang member, or whether the crimes for which he was on trial were committed for the benefit of a gang.  The defense objected to all this evidence.

The appellate court reviewed the bidding for admission of gang expert testimony:

[W]e have emphasized that expert testimony on gang activity is often “neither helpful nor necessary and can be highly prejudicial, due to the potential for experts to unduly influence the jury.” State v. Jackson, 714 N.W.2d 681, 691 (Minn. 2006). When feasible, we recommend that testimony from witnesses with first-hand knowledge be used to prove the “for the benefit of the gang” element, and we advise against the use of expert testimony to prove the gang membership of the specific defendant. Mahkuk, 736 N.W.2d at 686. In summary, gang expert testimony must “add precision or depth to the jury‟s ability to reach conclusions about matters that are not within its experience” to be admissible. State v. DeShay, 669 N.W.2d 878, 888 (Minn. 2003).

The appellate court concluded that the state’s expert played by the rules.  The expert’s descriptions were based on his own knowledge and he did not opine whether the charges being tried were committed for the benefit of a gang.

On a separate instructional issue, the appellate court found error in the court’s instruction for the attempt charges.  However, as there was no defense objection, Mr. Cruz-Ramirez had to establish plain error.  In failing to find plain error the appellate court relied, in part, on three hours that the parties and the court worked on the instructions.

Defense Strikes Four of Five Non-Whites From Jury Panel, Gets a New Trial Because State’s Objections Were Unfounded.

State v. Campbell, Minn.Ct.App., 9/29/2009.  Mr. Campbell berated his twelve year old son when his son took a call strike three.  He then turned his attention to the team’s coach and the team’s assistant coach (who was also his wife), during which he hurled several racially offensive remarks at them.  He also threatened the two coaches.  That got him charged with terroristic threats.

During jury selection, Mr. Campbell struck four of the five non-Caucasian members of the jury pool.  (Mr. Campbell is white; the victims are Latino.)  Two strikes were of Latinos, one was Hmong, and the fourth was African American.  The trial judge thought that the state might want to object to this, so it did.  This use of peremptory challenges supports a conclusion that the state presented a prima facie case of racial discrimination  Only one of those strikes – M.T. -  was still viable on appeal, a strike of one of the Latinos.

The trial judge found that Mr. Campbell had presented a race neutral explanation for his strike of M.T.  The trial court then concluded that this explanation was pre-textual and that the strike was racially motivated.  The trial court gave seven reasons for reaching this conclusion.

The most compelling of these, according to the appellate court, was that this strike was part of a consistent pattern of striking non-white jurors.  True enough, but at the same time the court had not found that any of the other strikes of non-white jurors was racially motivated.  This pattern of striking non-whites did not, therefore, support a pattern of discrimination.  The trial court also gave as a reason that it was “essential …  that the public have confidence in the integrity of the criminal justice system in order to preserve community peace in trials involving race-related crimes.”  That may be, but “the community” has no standing to assert a Batson challenge; only litigants and prospective jurors can do that.  So, Mr. Campbell gets a new trial because in Minnesota an erroneous ruling on a Batson challenge is not subject to harmless error analysis.  Cf., Rivera v. Illinois, 129 S. Ct. 1446 (2009).

 

Life Without Possibility of Release Not Unconstitutional When Imposed Upon Juvenile; Another Batson Claim is Rejected.

State v. Martin, Minn.S.Ct., 10/8/2009.  A jury convicted Mr. Martin of first degree premeditated murder, and crime committed for the benefit of a gang; the court sentenced him on the premeditated murder conviction to life without possibility of release.  Mr. Martin was seventeen at the time of the offense. 

Mr. Martin asked the appellate court to reconsider its holding in State v. Chambers, 589 N.W.2d 466 (Minn. 1999) that a sentence of a juvenile to life without possibility of release did not violate the Eight Amendment’s proscription against cruel and unusual punishment.  Mr. Martin pointed to the 2005 Opinion of the United States Supreme Court, Roper v. Simmons, 542 U.S. 551 (2005), which held that the execution of juveniles under the age of eighteen is cruel and unusual punishment.  The Minnesota Supreme Court declines to extend Roper to life without possibility of release, in large part because of dicta in Roper that life without possibility of release was a more “palatable alternative to the juvenile death penalty.”  There are, in the United States, an astonishingly 2,484 juvenile offenders who are serving a sentence of life without possibility of release.  There is not a single juvenile, not one, serving such a sentence anywhere else in the world.

Whether life without benefit of release constitutes cruel and unusual punishment for a juvenile is presently before the U.S. Supreme Court on a cert petition out of Kentucky:  Phon v. Kentucky.

Over his objection, the district court tried Mr. Martin jointly with one of his codefendants.  The appellate court conducted its own review of the joinder ruling – a rather soft one at that - and upheld it, finding no substantial prejudice. The appellate court noted, among other things, that both defendants were charged with the same crimes (although not an intricate or complicated crime) and the evidence against them was virtually identical. 

Next up, a Batson challenge.  The prosecutor struck Black juror 43, who had expressed concerns about how African Americans are treated in the criminal justice system – he opined that the system was unfair to African Americans –; and who had opined that a cousin of his had been wrongly convicted of something.  All the same, though, juror 43 said he could be fair.  Perhaps, but not on this jury.  The trial court first denied the state’s peremptory challenge, but then reversed its ruling.  Justice Page, dissenting, points out that the court’s own Task Force on Racial Bias had reached the same conclusion, that minority citizens perceive that the court system is biased against them.  Justice Page, joined by Justice Paul Anderson, would have reversed the conviction and remanded for a new trial.

There were multiple claims of prosecutorial misconduct, all of which the appellate court dismissed.

There is a companion case, State v. Jackson, with much the same issues and outcome, but without the juvenile life without possibility of release issue.

 

Appellate Court Prohibits Impeachment of Defendant by Evidence of an Unspecified Prior Conviction.

State v. Utter, Jr., Minn.Ct.App., 9/15/2009. 

 

9/11/2011 Update:  The Minnesota Supreme Court overruled this opinion, State v. Hill.    Here’s the original post if you still want to read it.

Mr. Utter, Jr. spent just shy of two years chatting up L.S. about his affair with L.S.’s wife.  L.S. eventually got tired of it so he got himself a restraining order.  It didn’t help much as the calls kept coming.  A month of so after getting the restraining order, Mr. Utter, Jr., called L.S. yet again, which prompted the state to charge him with violating a harassment restraining order.

At trial, the state said that if Mr. Utter, Jr. testified it would seek to impeach him with a previous conviction of violating an order for protection.  The trial court more or less punted the request, ruling that the state could impeach Mr. Utter, Jr. by telling the jury that he had a felony conviction of a certain date.  Mr. Utter, Jr. testified anyway.

In making its ruling the trial court didn’t go through the Jones factors litany,  State v. Jones, 271 N.W.2d 534 (Minn. 1978), which are:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant‟s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the crime to impeach), (4) the importance of defendant‟s prior testimony, and (5) the centrality of the credibility issue.

It turns out that whether evidence of an unspecified prior conviction is admissible for impeachment purposes hasn’t come up here.  Michigan won’t have it.  Kentucky and Wisconsin, among others, think it’s fine.  South Dakota, along with a few other states, leaves it to the trial court’s discretion.

Minnesota joins ranks with the minority view, which rejects a “mere fact” rule that allows the use of an unspecified prior conviction.  Otherwise:

to allow the admission of unspecified prior convictions would render meaningless our long line of cases emphasizing the importance of admitting only those convictions that assist the fact finder in measuring a witness‟s credibility and veracity

The error is also prejudicial, resulting in a remand for a new trial.  The appellate court noted that the trial court exacerbated its error by giving the jury a Spreigl instruction, instead of an impeachment instruction.

Biographical Information Obtained in Warrantless Raid by ICE Agents is Suppressed Under Fourth Amendment Exclusionary Rule

State v. Maldonado-Arreaga, Minn.Ct.App., 9/15/2009.  At 5:30 in the morning, immigration officers burst into Ms. Maldonado-Arreaga’s house.  They did not have permission.  They did not have a warrant.  There was no emergency.  They did have guns. Without benefit of a Miranda warning, Ms. Maldonado-Arreaga told the officers her name, address, date of birth, country of origin, employer, and that she had used an alias.  (Oh, did I mention that the immigration officers made Ms. Maldonado-Arreaga drive them around in her car to look for her adult son?  They did.)

The immigration officers recorded all this information on one of their forms, then gave a copy of the form to the Willmar police.  The Willmar police, in turn, used the form to discover that Ms. Maldonado-Arreaga had used the alias to obtain a driver’s license, to apply for her job, to obtain a social security card, and to record exemptions on her W-4 form.  The state charged her with various counts of aggravated forgery and identity theft. 

Ms. Maldonado-Arreaga moved to suppress the information contained on the immigration form, the information obtained from her employer, and the information obtained from the driver’s license office.  The trial court believed that the warrantless raid and detention, and the non-Mirandized interrogation – all of which produced the information on the immigration form – were unconstitutional, but that because most of the information was biographical there was no Fifth Amendment violation in admitting it.

The trial court relied upon three so called “routine booking question” opinions:  State v. Widdell, 258 N.W.2d 795, 797 (Minn. 1977); State v. Link, 289 N.W.2d 102 (Minn. 1979); and State v. Hale, 453 N.W.2d 704 (Minn. 1990).  Each of these cases involved booking questions asked of a suspect at a police station following a lawful detention, the only value of which was clerical.  Here, the questions to Ms. Maldonado-Arreaga were asked at a time when the immigration police had her chained – well, handcuffed – to her bed frame as her nursing baby lay sleeping at he side, and were intended to uncover evidence of crime: her entry status into the country.  The appellate court said that this implicates the Fourth Amendment and its exclusionary rule, not the Fifth Amendment.  Of all things, the appellate court relied upon an Eighth Circuit opinion, United States v. Guevara-Martinez, 262 F.3d 751 (8th Cir. 2001) to conclude that the exclusionary rule applies to the collection of biographical information from Ms. Maldonado-Arreaga.  The appellate court then concluded that the information on the immigration form, and the information that the Willmar police obtained on the basis of that form, must be suppressed as the fruits of the illegal raid and detention, the conduct of which the appellate court described as “flagrant and egregious”.  The appellate court concluded its Opinion with this blistering footnote:

Appellant does not claim that the detective was directly involved in the ICE raids. Yet, at oral argument, respondent conceded that members of the Willmar Police Department, including this detective, were in contact with ICE prior to the raid on appellant‟s residence, assisted ICE in coordinating unconstitutional raids on Willmar residents, and were present as “observers” during some of the raids. Clearly, the ICE raids did not occur in a vacuum, and the local police‟s participation—even if described as moderate, passive, or idle—is regrettable.

Requiring Those Entering Courtroom to Provide Identification Okay Under The Security Circumstances of the Case

State v. Cross, Minn.Ct.App., 9/8/2009.  Mr. Cross pled guilty to second degree murder.  There were bad feelings all around out in the gallery of the courtroom during the plea hearing, that spilled out into the hallway and streets.  The trial court decided that to discourage such behavior at the sentencing hearing those who entered the courtroom would have to identify themselves to deputies.  (Of course, if there were problems at the sentencing hearing the deputies would have a leg up in their investigation.)  Mr. Cross complained that this requirement violated his right to a public trial  even though no one who had wished to attend the sentencing hearing had been refused entry into the courtroom.  The trial court sentenced Mr. Cross in accordance with the plea agreement.

On appeal, Mr. Cross complained of this entrance drill.  The appellate court assumed without deciding that the Sixth Amendment right to a public trial applies at a sentencing hearing.  There was not, however, even a partial closure because the deputies did not exclude anyone who wanted to attend the sentencing hearing.  That one or more persons self excluded themselves in the face of the deputies and their identity inquires is also not a closure.  United States v. Shryock, 342 F.3d 948 (9th Cir. 2003). 

No Public Defender for “Extremely Dilatory” Defendant, Whose Inability to Retain Counsel Amounts to Forfeiture of Right to Counsel

State v. Jones, Minn.S.Ct., 9/10/2009.  A jury convicted Mr. Jones of offering a forged check, check forgery, and theft by swindle.  The facts are neither terribly interesting nor entertaining.  Rather, it’s the Sixth Amendment stuff and the 4-3 split that gets the headlines.

In February, May, and June, 2006, Mr. Jones appeared without counsel; at the first two appearances Mr. Jones applied for a public defender but the court said, no.  In June, Mr. Jones waived his right to counsel for the first appearance.  At the omnibus hearing two months later, he still did not have an attorney and none of the attorneys on the court’s reduced fee list would agree to represent him.  The court moved the case onto a trial docket.

At which time Mr. Jones objected to going forward without an attorney.  By this time he was working so the trial court figured that he would not qualify for a public defender; the trial court did give Mr. Jones on more month to retain counsel.  He still didn’t have an attorney.  He did have a $12.00 an hour job plus overtime; his live in girlfriend also had a job so between the two of them they made $4,500.00 a month.  Again, the trial court said he was not eligible for a public defender, saying that his income exceeded 125% of the federal poverty guidelines.  The trial court then extracted a begrudging verbal “waiver” of counsel from Mr. Jones and the trial commenced.  Here are the questions that the appellate court addressed.

First, was it okay for the trial court to consider the income of the live in girlfriend?  Such income “might be relevant to a defendant’s eligibility, especially when the defendant does not dispute including the income.”  Just how he was to know whether to dispute its inclusion isn’t mentioned. No real answer whether and when it’s okay to impute live in girlfriend’s income to defendant.

Second, can the trial court deny eligibility for a public defender solely because the applicant’s income exceeds 125% of the federal poverty guidelines?  Don’t know.  The appellate court concluded that this is not what the trial court did.

Third, did Mr. Jones make a valid waiver of his right to counsel?  Yes, but it’s the details that count.  Mr. Jones did not expressly waive his right to counsel; there is no written waiver and the colloquy was not adequate because it did not include inquiry about the nature of the charges, the advantages and disadvantages of self representation, and it did not even acknowledge Mr. Jones’s objections to proceeding without counsel.  That’s not the end of it, however.

There’s this waiver by conduct.  A defendant who engages in dilatory tactics after he’s been warned that he will lose his right to counsel if he persists loses his right to counsel.  The thing is, though, the same inquiry that is required for an express waiver is also required for a waiver by conduct, and that didn’t happen.

Does he get a lawyer?  No, because one can relinquish one’s right to counsel by forfeiture.  This is reserved for the defendant who engages in “extremely dilatory conduct.”  The great thing about forfeiture of the right to counsel is that none of that Faretta inquiry has to take place.

Now, one way to forfeit your right to counsel is to attack counsel in open court.  State v. Lehman,  749 N.W.2d 76 (Minn.Ct.App. 2008).  Mr. Jones didn’t have an attorney to attack but his failure in that regard amounts to a forfeiture of his right to counsel.  Simply put, the court gave him plenty of time to retain an attorney so that when he did not it appeared as if he were dragging his feet, and deliberately so at that; and each time he appeared in court (and was again denied a public defender) he was way too optimistic about the likelihood of getting an attorney to take his case.  He appeared eight times over the course of a year without counsel, almost always saying that he was planning to retain counsel.  He also knew of the disadvantages of self representation, saying to the trial court that he feared he would not get a fair trial without an attorney. 

Justice Page dissented, arguing that the trial court had not made an adequate record to explain the denials for a public defender.  Justices Meyer and Paul Anderson also dissented, but on the waiver question.  Justice Meyer did not think it was correct for the majority to equate attacking your attorney in open court with the inability to retain one; thus Mr. Jones’s conduct was not “extremely dilatory.” 

The Sixth Amendment has taken quite the beating in the Minnesota Courts this month, here, here, here, and here; and it’s only half over.  At least that great friend of the defendant, Justice Scalia, is still around.

Court Assumes Without Deciding That Police Have a Duty Similar to Rule 4.2 of Rules of Professional Responsibility; Any Violation, However, Was not Egregious under Clark Standard.

State v. Buckingham, Minn.S.Ct., 9/10/2009.  A jury convicted Mr. Buckingham of first degree premeditated murder and the trial court sentenced him to life without parole.  Police arrested Mr. Buckingham two days after the murder.  A couple of weeks later Mr. Buckingham called the police from jail, wanting to talk.  The officer recorded the Miranda warning and Mr. Buckingham’s request that the officer turn off the recorder.  The officer complied and Mr. Buckingham gave an incriminating statement.

On appeal, Mr. Buckingham complained of the failure to have recorded the entire interrogation, citing State v. Scales, 518 N.W.2d 587 (Minn. 1994).  During trial, however, Mr. Buckingham did not raise any factual disputes about the substance of the unrecorded statement.  Under State v. Inman, 692 N.W.2d 76 (Minn. 2005), this failure to have raised any factual disputes about the content of the statement makes any Scales violation unsubstantial.

Mr. Buckingham got in touch with the police at a time when he had counsel.  The officer tried unsuccessfully to contact Mr. Buckingham’s attorney, but the attorney’s voice mail box was always full; the officer did not notify the prosecutor of Mr. Buckingham’s contacts.  This omission arguably takes the interview out from under State v. Clark, 738 N.W.2d 316 (Minn. 2007), so Mr. Buckingham asked the appellate court to extend Clark to the police.  The appellate court rejected a request to impose an affirmative duty on the police:

to either (1) obtain explicit consent of counsel before interrogating the defendant; (2) notify the prosecutor that the defendant wants to talk, but is requesting his counsel be present; or (3) refrain from communicating with the defendant until the prosecutor and counsel have discussed the request and directed the most appropriate [course] of action.

The appellate court assumes without deciding that law enforcement owes a duty similar to prosecutors, but concludes that the behavior here was not “egregious” under Clark.  (Where a prosecutor violates Rule 4.2, the court takes a case by case approach to determine whether the conduct is so egregious as to compromise the fair administration of justice.)  For one thing, Clark had not been decided so even if the officer had called the prosecutor, that prosecutor may have believed in good faith that attempts to contact counsel satisfied Rule 4.2.

You Can Represent Yourself, But Not Back in Chambers

Holt v. State, Minn.S.Ct., 9/3/2009.  A jury convicted Mr. Holt of first degree premeditated murder, among other things, and the judge sentenced him to life in prison.  Nine years later, Mr. Holt filed a post conviction petition in which he raised seven issues.  Many were evidentiary and instructional rulings; the two interesting ones relate to the right of self representation.

In the middle of trial, Mr. Holt asked to represent himself, which the trial court granted.  A day or two later, one of the juror’s reported that twice someone had tried to break into his house.   The trial court held an in-chambers hearing to question the juror; Mr. Holt was not permitted to attend this hearing even though he was by then representing himself.  The juror stated that he thought that he could continue to be a fair juror so the trial court left him on the jury.  On appeal, Mr. Holt asked the appellate court to adopt an “implied bias” standard but the appellate court declined to do so.

During the colloquy on self representation, the trial court warned Mr. Holt that he would not be permitted to attend bench or in-chambers conferences, but that the substance of such conferences would be put on the record and stand by counsel could attend them.  With that in mind, the appellate court rejected Mr. Holt’s complaint that his Faretta rights had been violated by his exclusion from the in-chambers hearing with the juror.  That exclusion did not, the appellate court, concluded, hamper Mr. Holt’s control over his own case. 

Justices Page and Paul Anderson dissented, pointing out that there was no reason why the hearing with the juror could not have been held in the courtroom.  The trial court improperly forced Mr. Holt to chose between forgoing completely his constitutional right of self representation and accepting seemingly arbitrary limitations on his right to be present at all stages of his trial.

What’s That You Say? A Lawyer? I Can’t Hear You!

State v. Chavarria-Cruz, Minn.Ct.App., 9/8/2009.  A grand jury indicted Mr. Chavarria-Cruz on charges of first degree premeditated murder, and first degree murder for the benefit of a gang.  Detective Hanson, the lead investigator, interrogated Mr. Chavarria-Cruz; he recorded the interrogation as he is required to do, using his police department’s recording equipment.  The Detective noticed that Mr. Chavarria-Cruz was difficult to understand because he was very soft spoken, often looked down when speaking, and had a pronounced accent.  The Detective apparently did nothing to remediate any of these deficiencies.

Thirty minutes into the interrogation, Mr. Chavarria-Cruz tells Detective Hanson “I think I need a lawyer.”  The recording equipment “heard” this statement; the transcriber had no apparent difficulty hearing it when typing the transcript.  Problem was, according to the detective, is that he didn’t hear it.  The trial court accepted this assertion, made a finding of fact that the detective didn’t hear the lawyer statement and then denied the motion to suppress everything that Mr. Chavarria-Cruz said after the lawyer statement.

At least for now, Edwards v. Arizona, 451 U.S. 477 (1981) establishes a bright line rule:  once an accused says that he wants to deal with the police only through counsel, police interrogation must cease until counsel has been made available, unless the accused himself initiates further communication.  (But see, State v. Clark, 738 N.W.2d 316 (Minn. 2007).  The appellate court took a statement out of context from Davis v. United States, 512 U.S. 452 (1994) that whether an accused actually invoked his right to counsel is an objective inquiry.  That’s true enough when the question -  as it was in Davis - is whether the request for counsel was equivocal or not, but it doesn’t provide a legal rationale for the trial court’s finding that the detective didn’t hear the statement.  Objectively, when parsing an equivocal request for counsel, the inquiry is whether that request may reasonably be construed as a request for counsel.  Here, there’s nothing equivocal about Mr. Chavarria-Cruz’s statement:  “I think I need a lawyer.”  The only question was whether to believe the detective.  That’s a different analysis all together.

"Don't ever tell anybody anything. If you do, you start missing everybody."
- J.D. Salinger, The Catcher in the Rye

And the purpose of Scales, was what?

A Witness Who Refuses to Testify Except to Volunteer That Defendant is Innocent Allows Introduction of Prior Inconsistent Statements; a Coroner Who Did Not Perform Autopsy May Testify to its Results, at Least For Now.

State v. Bobo, Minn.S.Ct., 7/30/2009.  James Roberts and Reginald Nichols were waiting for a friend to finish up work at Stand Up Frank’s, a bar in Minneapolis.  As they waited, a truck or SUV drove past them, made a U-turn and returned.  As the SUV drove past the two men a second time someone in the SUV opened fire, wounding Mr. Nichols and killing Mr. Roberts.  The state eventually charged Mr. Bobo with the shooting and homicide, in no small part on the basis of information from a less than reliable snitch, one Sam James.  Mr. James gave statements both to the police and to a grand jury that implicated Mr. Bobo in the shooting and homicide.

Come trial time, however, and Mr. James would not testify other than to offer, unsolicited, the opinion that Mr. Bobo was innocent; the trial court held him in contempt.  The state alleged, unsuccessfully, that Mr. Bobo had intimidated Mr. James out of testifying by, among other things, packing the court room with fellow gang members.  That being the case, the state wanted to introduce Mr. James’ prior statements to the police and to the grand jury.  The trial court denied this request, so the state then asked to close the court room during James’ testimony.  The trial court agreed but Mr. James persisted in not testifying.  Exasperated, the trial court then permitted the state to introduce some of James’ prior statements, although they didn’t really seem to hurt Mr. Bobo.  Nonetheless, Mr. Bobo’s counsel then cross examined Mr. James, who launched into this tirade that everything he claimed he knew about the charges had come from the police and that he had lied to the grand jury.  Bingo, the trial court then let the state introduce wholesale James’ prior statements.

In this combined direct appeal and post conviction appeal, Mr. Bobo argued, among other things, that his trial counsel had been ineffective by deciding to cross examine Mr. James.  The appellate court avoids this claim by saying that the trial court was wrong to have excluded James’ prior testimony after he first hit the stand and proclaimed that Mr. Bobo was innocent.  The trial court should have admitted the prior statements as prior inconsistent statements. 

Mr. Bobo also complained about the closing of the courtroom.  The trial court had evidence before it that immediately before James first testified several gang members entered the courtroom; those same gang members left the courtroom immediately after his testimony.  The trial court also had evidence that James claimed it was the presence of these gang members that made him afraid to testify.  This satisfied the appellate court that the trial court had a valid basis to close the courtroom; the appellate court also rejected the claim that the court should have excluded only the alleged intimidators.

Finally, a medical examiner who did not perform the actual autopsy testified about the autopsy results; she did so without defense objection and so the appellate court applied a plain error standard.  The appellate court politely noted that a court of appeals opinion, State v. Johnson, 756 N.W.2d 883 (Minn.Ct.App. 2008), rev. denied, (Minn. 12/23/2008), had held that admitting an autopsy report by a medical examiner who was not testifying was plain error.  This opinion, however, came after Mr. Bobo’s trial so any error in his trial could not be “plain.”  The appellate court did not mention last term’s U.S. Supreme Court Opinion, Melendez-Diaz v. Massachusetts, which held that to avoid a Crawford violation the state must produce the chemist who tested the drugs in a drug prosecution and could not just introduce the lab report.  But see, Briscoe v. Virginia, cert. granted, 6/29/2009, which asks the question whether allowing the defense to call the chemist after the state introduces the lab report satisfies Crawford.

Felony Stalking Statute is Not Unconstitutional

State v. Stockwell, Minn.Ct.App., 8/11/2009.  On September 12, 2006, Ms. Stockwell rode M.H.’s bumper for several blocks on a four lane road in Rochester.  The two women did not know each other.  When M.H. pulled into her workplace parking lot, Ms. Stockwell followed her, then shouted at her about Islamic terrorism, about M.H.’s Islamic beliefs and about feeling like killing her.  M.S. is a Muslim woman who was wearing a headscarf at the time.  A jury convicted Ms. Stockwell of felony stalking.  On appeal, Ms. Stockwell argued that the felony stalking statute is overbroad in violation of the First Amendment, both on its face and as applied; and that the statute is unconstitutionally vague.  The appellate court rejects these arguments.

One who intentionally harasses another by stalking that  person, with knowledge or reason to know that this would cause the victim to feel frightened (among other feelings) and causes this reaction is guilty of felony stalking if the actions are undertaken because of a person’s religion.  The appellate court rejects Ms. Stockwell’s facial challenge for these reasons:

Because the statutory provision is specific as to the forms of conduct proscribed, because it requires that the actor knows her conduct will cause fear and causes that reaction, and because it is subject to a limiting construction, we conclude that the degree of overbreadth is not sufficiently substantial to require a holding that the statute is unconstitutional on its face.

The appellate court also rejects an “as applied” challenge, concluding that her bumper to bumper driving conduct did not convey a particularized message that might be deserving of First Amendment protection.  Lastly, Ms. Stockwell suggested, unsuccessfully, that the statute made any tailgating a stalking crime and thus the statute was void for vagueness.  The appellate court again points to the other requirements of the statute in rejecting this argument.

One Count of Interference With Privacy Okay For Each Person Captured on Hidden Camera

State v. Sopko, Minn.Ct.App., 8/11/2009.  Mr. Sopko installed a video camera in an air vent in a women’s college locker room.  He tested the camera by recording himself, then pointed it at the shower area.  Someone found the camera fairly quickly – the same day – but not before the camera captured Mr. Sopko and seven women in the locker room.  The state charged Mr. Sopko with seven counts of interference with privacy, in violation of Minn.Stat. 609.746, subd. 1(d):

A person is guilty of a gross misdemeanor who:
(1) surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events through the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

Mr. Sopko thought that the statute’s focus was the installation of the camera for the statutory naughty purpose; because he installed only one camera he could be charged with just one count.  Not so.  The appellate court relied upon an Alaskan Opinion that had reached a similar result, Knutsen v. State, 101 P.3d 1065 (Alaska Ct.App. 2004).  The appellate court also said that the objective of the statue was not just to prevent the installation of the camera but to protect an individual’s privacy.

Peek a boo.

Even An Assumed Discovery Violation Requires Actual Prejudice to Obtain a New Trial

State v. Jackson, Minn.S.Ct., 8/6/2009.  Someone shot Markey, a Bloods gang member.  Mr. Jackson and his crew believed that one of three gangs – the Bogus Boys, the 20s or the 10s – had done it, so they went looking for them.  In the ensuing melee Mr. Jackson shot and wounded T.K., and he shot and killed Gennaro Knox.  Neither shooting victim was affiliated with any gang.

This was Mr. Jackson’s second trial; the first ended in a mistrial when the jury could not reach a verdict.  In the run up to the first trial, the state had filed a certificate to withhold Rule 9 disclosures for ten witnesses.  The state did provide information that these witnesses had given to police but it withheld identifying information about who they were and where they could be found.  The criminal rules allow this to occur:

The information relative to the witnesses and persons described in Rules 9.01, subd. 1(1), (2) shall not be subject to disclosure if the prosecuting attorney files a written certificate with the trial court that to do so may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion, provided, however, that non-disclosure under this rule shall not extend beyond the time the witnesses or persons are sworn to testify at trial.

Seven of those witnesses testified at the first trial.  Mr. Jackson argued in the run up to the second trial that these seven witnesses had been “sworn to testify at trial” and so he was entitled to all un-redacted copies of all Rule 9 materials.  When Mr. Jackson made this pitch to the trial court to get the un-redacted reports in between the two trials, the trial court denied the request for production of the materials.

The appellate court assumed that the state had violated a discovery order; only Justice Page said that the rule entitled Mr. Jackson to the materials in between the two trials.  The appellate court, however, said that Mr. Jackson had to show prejudice from the alleged violation, which he did not do. 

Mr. Jackson also complained of four items of evidence that the trial court allowed the state to introduce to prove that he committed these crimes for the benefit of a gang.  One was a printed web page that depicted Mr. Jackson and his girlfriend, both wearing red, the color that other witnesses said was affiliated with member of Mr. Jackson’s gang.  The appellate court questioned whether the state had presented a proper foundation for the introduction of the web page, suggesting that someone from the website who had knowledge of the website content needed to testify to authenticate it.  Audi AG v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 277-78 (N.D.N.Y. 2008).  Even so, Mr. Jackson could not show that the introduction of the web page substantially influenced the jury’s decision. 

If You Enter the State, Even In Custody, You Are Subject to the Predatory Registration Statute.

In the Matter of the Risk Level Determination of G.G., Minn.Ct.App., 8/25/2009.  The Wabasha County Attorney charged G.G. with various crimes; at the time G.G. was serving a prison sentence over in Wisconsin.  Because it was a sex crime G.G. was required to register in Wisconsin as a predatory offender.  After a while, Wisconsin sent G.G. over to Minnesota to take care of the Wabasha County charges; G.G. spent about three weeks in the local jail and then returned to Wisconsin.

The Department of Corrections determined that G.G. was also required to register as a predatory offender in Minnesota.  G.G. took issue with this, saying that he had not entered Minnesota and remained for 14 days or longer.  Minn.Stat. 243.166, subd. 1b(b)(2).  G.G. said that entry only counts when it’s volitional. The appellate court concedes that the statutory text is ambiguous so it gets to look at the purpose of the registration statute.  That clinches it; G.G. has to register even when he’s hauled over in handcuffs.