A Child's Mere Presence At the Scene of an Assault Does Not Support A Departure

State v. Vance, Minn.S.Ct., 5/21/2009.  A jury convicted Mr. Vance of several criminal sexual conduct offenses, and a second degree assault offense. Although there were children in the apartment during the assaults, the children were never in the room in which the assaults were occurring.  At the Blakely sentencing trial, the state submitted an aggravating factor, that the assaults occurred in the presence of children.  Over objection, the trial court instructed the jury that

The State need not prove that the child or children actually observed or heard the offense or offenses, so long as they could have, from where they were located. Furthermore, a child in an adjoining room could be considered to be within sight or sound of the offense if the defendant knew the child was there, and the victim was less inclined to flee because she did not want to abandon the child.

The presence of children is an aggravating factor when the offense is committed in the actual presence of children.  State v. Profit, 323 N.W.2d 34 (Minn. 1982).  It can also be an aggravating factor when the victim is particularly vulnerable because of a child's presence.  State v. Johnson, 450 N.W. 2d 134 (Minn. 1990).  Mr. Vance, however, thought that in this instance, the instruction was a bit too loose because all that jury had to conclude was that it was possible that the children saw or heard the offenses.

The appellate court agrees that the instruction was a material misstate of the law.  Mere presence is not enough; the children must have actually seen or heard the offense.  However, because the jury found two other aggravating factors, either or both of which would support the double departure, the appellate court affirms the sentence.

Sentencing Contrary to Guidelines, to Which Defendant Agreed, Does Not Authorize Post Conviction Withdrawal of Plea.

Carey v. State, Minn.Ct.App., 5/19/2009.  Mr. Carey plead guilty to two counts of criminal sexual conduct.  The plea agreement called for the court first to sentence on the later occurring offense and then the earlier one.  This resulted in an executed sentence of 144 months and a consecutive, stayed sentence of 86 months.  Had the counts of conviction been sentenced in correct chronological order, the total executed sentence could have been 230 months had the trial court sentenced consecutively.  The trial court went over all of this at the sentencing hearing, all the while Mr. Carey saying that he wanted to be sentenced backwards.

Three years after all these machinations, Mr. Carey filed a post conviction petition, alleging that his sentence had been illegal because they were imposed backwards; he sought only to be allowed to withdraw his guilty pleas.  The district court denied the petition.

And the appellate court upholds that denial.  The appellate court focuses on the requirements of a valid guilty plea, not the apparent impermissibility of backwards sentencing.  See Guidelines, II.F.  The appellate court points to a 1997 amendment to the Guidelines enabling statute, 244.09, subd. 5, which says that sentencing under the Guidelines is not a personal right but a "procedure based on state public policy ..."  See also State v. Misquadace, 644 N.W. 2d 65 (Minn. 2002). 

With the Guidelines out of the way, the appellate court decides that the real question is whether Mr. Carey's pleas were voluntary, and concludes that they were.

Voluntary Statements Made During Administration & Post-Mortem of Polygraph Examination Are Admissible

State v. Dressel, Minn.Ct.App., 5/19/2009.  The State charged Mr. Dressel with various sexual and assault offenses against his three year old daughter.  Before the charges were filed, Mr. Dressel agreed to come into the police station in order to take a polygraph test.  Officers told him both before the polygraph and afterwards that he was not under arrest and was free to leave at any time.  Indeed, after the test, officers gave Dressel a ride home.

After taking the polygraph, officers told Mr. Dressel that he had failed it.  In the ensuing interview, Mr. Dressel made certain admissions.  Mr. Dressel moved to suppress the statements and admissions that he made during and following the polygraph examination.  (He also moved to suppress other statements made at a different time and location.)  The trial court excluded the statements, reasoning that they were "an extension of the polygraph examination" and not admissible.  The state appealed.

And won.  Existing case law excludes admission of three types of polygraph evidence:  the result of the exam, (State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952); a defendant's willingness or refusal to submit to the exam,  State v. Anderson, 261 Minn. 431, 113 N.W.2d 4 (1962); and a defendant's actual submission to the exam, State v. Perry, 274 Minn. 1, 142 N.W.2d 573 (1966).  On the other hand, statements obtained during the course of a polygraph examination - which apparently includes the post mortem when the cops tell a defendant how it came out - are admissible unless it's determined that such statements were involuntary.  In the context of polygraph examinations, there are two factors - which are not exclusive - that may cause such statements to be involuntary:

First, a statement provided in connection with a polygraph examination may be deemed involuntary if a law enforcement officer “misrepresent[ed] the reliability of the test.” Id.; see also State v. Davis, 381 N.W.2d 86, 88 (Minn. App. 1986) (affirming district court’s finding that written statement provided after polygraph was involuntary, in part because examiner “attempted to convince [defendant] that the polygraph test is foolproof”). Second, a statement provided in connection with a polygraph examination may be deemed involuntary if a law enforcement officer has “falsely impl[ied] that the results will be admissible in evidence.” [State v. ]Jungbauer, 348 N.W.2d [344 (Minn. 1984)] at 346.

Because the trial court didn't address the voluntariness of the statements, the appellate court sends the case back for that determination.

Court Continues to Prohibit Expert Psychiatric Evidence of Mental Illness During Guilt Phase

State v. Peterson, Minn.S.Ct., 5/7/2009.  Mr. Peterson apparently shot and killed Howard Hines as Mr. Hines sat in the driver's seat of his car; Mr. Peterson shot from his third floor apartment window.  Mr. Peterson pleaded not guilty by reason of insanity and waived a jury trial.  He asked to be allowed to present expert psychiatric evidence during the guilt phase of his trial on the question of his mental state; the trial court said, no.  The court found Mr. Peterson guilty.  The court also rejected Mr. Peterson's mental illness defense during the sentencing phase of the trial.

On appeal, Mr. Peterson said that denying expert psychiatric testimony during the guilt phase violated his due process right to present a complete defense.  As the appellate court has said many times, it again said, no, it doesn't.  See State v. Brom, 463 N.W.2d 758 (Minn. 1990).  The appellate court recognized the two broad exceptions to this prohibition, established in State v. Provost, 490 N.W.2d 93 (Minn. 1992):

(1) the rare situation where there is a mental disorder characterized by the formation of a particular subjective state of mind inconsistent with the pertinent criminal mens rea; or (2) where the defendant has a past history of mental illness and the evidence is in the nature of factual background to explain “the whole man,” such as a clinical record where psychiatric opinions appear.

The appellate court concludes that Mr. Peterson did not satisfy either of these exceptions.  The appellate court then upholds the trial court's rejection of Mr. Peterson's mental health defense.

Finally, the appellate court does decide that the trial court's sentence of life without possibility of release was error.  This was because at the time of the murder, Minn.Stat. 609.185 did not authorize life without possibility of release.  Mr. Peterson beat the effective date of an amendment that authorized that sentence by some six months.  The appellate court modifies the sentence to life with the possibility of supervised release after thirty years.

Court Affirms Upward Departure

State v. Stanke, Minn.S.Ct., 5/7/2009.  Warning:  this is a Blakely Opinion.  Police spotted Mr. Stanke driving a stolen car on I-35W during rush hour; there were also warrants out for his arrest for some burglaries in South Dakota but the Opinion doesn't say whether the officers knew this at the time of the chase.  Fourteen miles into the chase, an officer placed "stop sticks" in the left lane of the interstate.  Mr. Stanke avoided the sticks but in doing so struck and killed the officer, then struck another car, which caused significant injuries to the driver of that car.

Mr. Stanke entered a guilty plea to fleeing a police office resulting in death and to fleeing a police officer resulting in great bodily harm.  Mr. Stanke agreed to waive a Blakely sentencing jury, and agreed that aggravating factors existed that would justify a double upward departure in sentence length.  After a sentencing hearing, the trial court found nine "substantial and compelling" aggravating factors, and one "severe aggravating circumstance" - the officer's particular vulnerability - to justify a statutory maximum sentence of slightly more than a double departure.

The appellate court acknowledges its past pronouncements that police officers are “highly vulnerable when engaged in the performance of their duties.” State v. Brown, 345 N.W.2d 233, 239 (Minn. 1984).  Nonetheless, the statute under which Stanke plead guilty, Minn.Stat. 609.487, accounts for this vulnerability, with its more severe penalties.  The trial court's reliance on the officer's vulnerability was thus error. 

Now the questions becomes what to do about this error.  A greater than double departure requires a "severe aggravating circumstance."  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).  Where the aggravating factors only support an improper or inadequate reason for departure, the appellate court usually remands the case.  However, if the appellate court concludes that the trial court would have imposed the same sentence absent reliance on the improper aggravating factor then it will affirm the sentence, State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008).  That's what it does here, substituting its judgment for that of the trial court, affirming the upward departure.  Any or all of the nine "substantial and compelling" aggravating factors could also serve as the required "severe aggravating circumstance."  The factors that the appellate court identifies are:

the high speeds at which Stanke drove; that the chase occurred during rush hour; that Stanke had been using methamphetamine for two weeks before the chase and had not slept during that time; that Stanke injected himself with methamphetamine during the chase; that Stanke was talking on a cell phone during the chase; and that Stanke, at some point, was steering the car with his knee.

Court Rejects Numerous Evidence Rulings in Upholding Murder One Conviction

State v. Hall, Minn.S.Ct., 5/7/2009.  A jury convicted Mr. Hall of first degree murder for the shooting death of his girlfriend's brother, Mr. Moore.  Mr. Moore didn't approve of his sister's relationship with Mr. Hall; the two men squabbled fairly regularly about it.  On the night of the shooting, Mr. Moore stepped outside of his apartment for a smoke.  Mr. Hall's girlfriend, who happened to be visiting her brother, heard two loud pops while Mr. Moore was outside; a friend of Moore's, who was also outside, heard two gunshots, then saw Mr. Hall run to his car and drive away.  Meanwhile, Mr. Moore staggered back into his apartment to tell his sister that "They got me."  He then thought it best to clarify who "they" was, so he added that it was Mr. Hall.

Police arrested and interrogated Mr. Hall, giving him a Miranda advisory.  Mr. Hall made no admissions, stating fairly early on that “I’m not admitting to anything and I’m just talkin’ to you about a story you’re tellin’ me, so, I’m not, until I have a lawyer, you know, I’m not really gonna break down anything. You know?”  At about the midpoint of the interrogation, Mr. Hall asked, “So what’s the deal man? You gonna give me a lawyer or what?”  The response from the police was to keep interrogating him for another forty minutes.

Mr. Hall testified at trial that he did, indeed, shoot Mr. Moore, but that he did so in self defense.  (Other evidence suggested rather convincingly that Mr. Moore was shot in the back through a glass door.)  Mr. Hall raised numerous evidence rulings on appeal. 

First:  Admitting the interrogation up to and including Mr. Hall's question,“So what’s the deal man? You gonna give me a lawyer or what?” The appellate court said that admitting this last question was error, but the error was harmless.

Second:  In the admitted portion of Hall's interrogation he told the police that he had a fifth degree assault conviction.  The appellate court ducks the question whether admitting this statement was error and says that even if it were it was harmless.

Third:  The trial court, on the state's rather vague motion, said that Hall could not inquire about the circumstances under, and the manner in which the police interrogated him.  This motion is becoming something of a standard in Ramsey County, so it's worth stating it; the motion asks that the defense be prohibited:

from inquiring, offering evidence, or commenting upon in the presence of the jury or prospective jurors, the constitutionality of . . . the manner in which statements were taken from the defendant.

This motion, of course, completely ignores the U.S. Supreme Court's decision twenty-three years ago in Crane v. Kentucky, 476 U.S. 683 (1986), where the Court unanimously ruled that the defendant’s right to present a defense was violated when the trial court excluded competent, reliable evidence bearing on the credibility of a confession—specifically, evidence about the setting in which the confession was obtained.   Here, the appellate court makes a rather feeble effort to distinguish Crane, saying that Hall, unlike Mr. Crane, did not actually confess, and that Mr. Hall, unlike Mr. Crane, was not a juvenile; but ultimately abandons that effort, assumes that it was error and decides that it was harmless. 

Fourth:  The trial court said that the prosecutor could refer to Mr. Moore as "the victim."  Mr. Moore said that this undermined his claim of self defense.  The appellate court rejects this claim, suggesting that the use of the phrase would have to amount to appeals to the passions and prejudices of the jury to be error.  Cf., Rairdon v. State, 557 N.W. 2d 318 (Minn. 1996).

Fifth:  Should the trial court have allowed Mr. Hall to introduce evidence of Mr. Moore's prior convictions, to impeach his dying declaration?  Mr. Hall cites numerous opinions from other states that permit such impeachment, but this research failed to move the appellate court, which again ducked the issue, assumed it was error and decided that the error was harmless.

So, for those keeping score:  the appellate court decides two of the five evidence questions - don't admit the part of the interrogation where the defendant asks for a lawyer, and it's okay to call the victim the victim so long as you don't overdo it - and ducks the remaining three.  It's an easy job, said Fox.

Lastly, Mr. Hall complained of the trial court's duty to retreat instruction, which the trial court gave twice.  It first gave the retreat instruction as part of the general self defense instruction, CRIMJIG 7.05; it then repeated the retreat instruction in a separate instruction that self defense requires compliance with the duty to retreat, CRIMJIG 7.08.  The appellate court said that both instructions accurately stated the law, and that the second retreat instruction did not unfairly emphasize one instruction over another.  State v. Peterson, 673 N.W.2d 482 (Minn. 2004).

Uncharged Crime That Occurs In the Same Transaction as the Charged Offense is Not Subject to Spreigl Evidence Analysis.

State v. Hollins, Minn.Ct.App., 5/12/2009.  A paid informant went to Mr. Hollins' apartment asking to purchase crack cocaine from him.  The state claimed that Mr. Hollins then called Mr. Scott, who came over with the goods; Mr. Scott, on the other hand, testified that it was the paid informant who made that call and that Hollins had nothing to do with it.  The state charged Mr. Hollins with aiding and abetting the sale of cocaine, and with conspiracy to do the same.

To buck up its case against Mr. Hollins, the state introduced evidence that Mr. Hollins had been "rolling a blunt" when the paid informant came into Hollins' apartment.  The appellate court reviewed this claimed error under the "plain error" standard because there had been no objection at trial. 

Minnesota has apparently not ruled on the admissibility of otherwise Spreigl evidence that consists of uncharged crimes that occur in the same transaction as the charged offense.  The appellate court fills this jurisprudential gap with this new definition:

In a criminal prosecution, evidence of another crime is intrinsic to the charged crime and therefore admissible without regard to Minn. R. Evid. 404 if: (1) the other crime arose out of the same transaction or series of transactions as the charged crime, and (2) either (a) the other crime is relevant to an element of the charged crime, or (b) excluding evidence of the other crime would present an incoherent or incomplete story of the charged crime.

The appellate court then applies its new rule and finds that evidence of "rolling a blunt" does not satisfy it.  The evidence fails to satisfy either of part (2)'s alternatives of its new rule.  Alas, the error was harmless.

The other issue in the case had to do with a permissive inference instruction: 

A person’s presence, companionship, and conduct after an offense are relevant circumstances from which a person’s criminal intent may be inferred.

Again, there was no objection to this instruction, so plain error is the review standard.  The appellate court finds no error in the instruction because:

An instruction containing a permissive inference will pass constitutional muster if it instructs the jury that (1) the jury may—as opposed to must—draw the inference; (2) the defendant is presumed innocent and it is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt; and (3) the jury must examine all the evidence in the case.

Discharging Your Lawyer: Breaking Up Is Not So Very Hard To Do

 State v. Paige, Minn.Ct.App., 5/12/2009.  Mr. Paige retrained private counsel to represent him on these murder charges; he eventually plead guilty to second degree murder.  Before sentencing, Mr. Paige sent a letter to the trial judge, asking to discharge his attorney, and to withdraw his guilty plea.  To the discharge request, the trial court said, no, not unless you have another attorney waiting in the wings to commence representing you.  The trial court relied on the rule that governs attorney withdrawal in a criminal case, Minn.Gen.R.Pract. 703, which prevents the court from acting on the withdrawal request unless defendant already had another attorney in place to substitute in as counsel.

The trial court, however, improperly relied on this rule, which says nothing about a defendant's ability to fire his lawyer.  Rather, the trial court must ascertain just how a defendant wishes to proceed after firing counsel; with that knowledge, the trial court then determines whether the request is appropriate.  Mr. Paige gets a redo on his request to discharge counsel.

The trial court also denied the request to withdraw his guilty plea.  The trial court's first ruling had the additional result of leaving Mr. Paige high and dry during his sentencing hearing.  This was because Mr. Paige wanted to fire his lawyer because he believed that counsel had been ineffective.  Counsel, in turn, was reluctant to do anything in the way or advocating for Mr. Paige at sentencing so Mr. Paige effectively had no counsel for that hearing.  The appellate court concluded that the trial court should have recognized the existence of a potential conflict of interest and dealt with it, such as by securing new counsel.  Mr. Paige gets to go back and be heard on his plea withdrawal motion as well.

Erroneous Hearsay Rulings Result in New Trial

State v. Morales, Minn.Ct.App., 4/28/2009.  The state claimed that Mr. Morales, Mr. Vega-Lara, and Mr. Solorzano-O'Brien went into a Minneapolis whorehouse intending to rob its operators; in addition to the robbery, one or more of them committed murder.  The appellate court only gives proper names to the defendants; everyone else gets initials.  There are a lot of initials in use here so let me try to chart out the players.

V.M.-O:  the victim.	M.F.:  a cook at the whorehouse
C.M:  a prostitute	M.G.:  "associate" of Vega-Lara
M.R.:  a prostitute

Okay.  The state's theory was that either Mr. Morales or Mr. Vega-Lara had cased the house as a possible robbery target some days before the actual robbery.  On the date of the homicide, the three men visited the house; Vega-Lara and Solorzano-O'Brien engaged the services of C.M. and M.R., while Morales hung out in the parlor.  When done - according to C.M., Vega-Lara wanted a redo on the sex, but I digress - Vega-Lara and Morales commenced the robbery;  Morales drew a gun on the victim and Mr. Vega-Lara then shot and killed the victim.  Neither prostitute stayed in the parlor during the entire robbery/homicide but each could place Vega-Lara in that room and each heard the struggle and shooting.

The police investigation turned up M.G., who had information about the robbery/homicide.  The state put him up on the stand, which is where the state's trouble started.  To explain, it's time for another chart:

What M.G. told police	What M.G. told the jury
Three days before the murder, Morales told me of the plan to rob a house of prostitution.	Three days before the murder, another person told me of the plan to rob a house of prostitution.
After the murder, Vega-Lara told me that Morales had drawn a gun on the victim and that Vega-Lara had then shot the victim.	After the murder, Vega-Lara told me that another person had drawn a gun on the victim and that Vega-Lara had then shot the victim.

See the problem?  The prosecutor did, easily sliding into naming Morales as the "other person" in her closing argument.  The appellate court agreed with Morales that the redaction thus had been totally ineffective:

Thus, the state was allowed, in effect, to elicit the hearsay statements of Vega-Lara that Morales had a gun on the day of the robbery, walked towards the victim with his gun drawn, and got into a struggle with the victim over that gun.

By now you've deduced that Vega-Lara did not testify at Morales' trial.  Indeed, he "took the Fifth."  Even so, the trial court permitted the state to call Vega-Lara to the stand so that the jury would know of this invocation.  This is because the state had also granted Mr. Vega-Lara use immunity and so the trial court thought that he had no privilege to assert.  This was incorrect, however, because the use immunity granted him did not extend to perjury.

Vega-Lara had testified at his own trial.  So, every time that he refused to answer the prosecutor's question, she commenced to ask Mr. Vega-Lara questions, the theme of which was "Didn't you testify at your trial that [reads statement that implicates Morales from transcript]?"  The appellate court concluded that this was prejudicial to Morales for any number of reasons.  He gets a new trial. 

The appellate court also decided a Spreigl issue, applying the Ness analysis.

Suicide Attempt is Voluntary Absence From Trial

State v. Finnegan, Minn.Ct.App., 5/5/2009.  The state charged Mr. Finnegan with the rape of a fourteen year old.  On the second day of trial Mr. Finnegan failed to appear.  An officer went out to Mr. Finnegan's house and found him unresponsive, and unable to speak, likely the result of a drug overdose.  At the request of the prosecutor, the trial continued to conclusion, a verdict of guilty.  In a decision of first impression in Minnesota, the appellate court concluded that Mr. Finnegan had made a voluntary choice to absent himself from his trial by attempting suicide instead.

Here's what Rule 26.03, subd. 2(1) says about defendant's absence from trial:

Continued Presence Not Required.  The further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive the right to be present whenever:

     1.  a defendant voluntarily and without justification absents himself or herself after trial has commenced;

The appellate court's focus was only on whether Mr. Finnegan was voluntarily absent without justification as a result of the overdose.  It relied upon an Eighth Circuit Opinion, United States v. Crites, 176 F.3d 800 (8th Cir. 2005), which had also concluded that a suicide attempt was a voluntary absence from trial without justification.  The appellate court did not, as Crites did, consider whether the decision then to continue with the trial was an abuse of discretion.  (Whether the public interest in the need to proceed clearly outweighs that of a voluntarily absent defendant in attending the trial.)  The Second Circuit has apparently adopted a more elaborate checklist by which to make this determination.  United States v. Tortora, 464 F.2d 1202 (2nd Cir. 1972), cert. denied, 409 U.S. 1063 (1972), (identifying factors to consider in this separate question). 

Here's the analysis by the First Circuit to an identical set of facts, which the Minnesota appellate court rejects:

The amount of cocaine Latham ingested was a potentially lethal overdose; the memorandum of his attorney states that the hospital gave him only a 25% chance of survival. Therefore, to conclude that Latham voluntarily absented himself from the trial, one would have to find that he either (a) knowingly took a lethal dose, or (b) had fine-calibrated the dosage so precisely that he would reach a critical medical condition, but would somehow manage to survive. Neither premise withstands scrutiny. It defies common sense to maintain that a sane defendant would attempt suicide to avoid a trial on drug charges. And, death is not the type of “voluntary absence from trial” that concerns us. Alternatively, if one were to find that Latham knew just the right amount of cocaine to ingest, so as to require hospitalization, but avoid death, it would still make no sense for him to have pursued this course because he would end up in custody (hospitalized) and upon recovery would still have to stand trial. This situation is markedly different from fleeing to avoid the trial altogether.

United States v. Latham, 874 F.2d 852 (1st Cir. 1989).

A few weeks back, the appellate court rejected a deaf driver's claim of entitlement to an interpreter during a  DWI arrest.  Who's next?

Intoxilyzer Source Code "Victory"

State v. Underdahl, Minn.S.Ct. 4/30/2009.  This is a combined appeal; the alleged DUI offenders who sought the source code are Dale Underdahl and Timothy Brunner. The upshot of the opinion is that if you say the magic words you get the source code.  That is, you get the source code if and when the Department of Public Safety can wrestle it away from some outfit in Owensboro, Kentucky.  As a matter of law, however, the appellate court says that the Department has "possession" of that code.

I've written about this ongoing battle here and here and maybe elsewhere, I've lost track.  I'm done.  Here's what Mr. Brunner submitted in support of his request for the code:

Appellant Brunner submitted a memorandum and nine exhibits to support his request for the source code. The memorandum gave various definitions of “source code.” The first exhibit was the written testimony of David Wagner, a computer science professor at the University of California in Berkeley, which explained the source code in voting machines, the source code‟s importance in finding defects and problems in those machines, and the issues surrounding the source code‟s disclosure. The next exhibits detailed Brunner‟s attempts to obtain the source code, both from the State and CMI. The last exhibit was a copy of a report prepared on behalf of the defendants in New Jersey litigation about the reliability of New Jersey‟s breath-test machine. See State v. Chun, 943 A.2d 114 (N.J. 2008). The report analyzed the New Jersey machine‟s computer source code and uncovered a variety of defects that could impact the test result

This is a sufficient showing under Rule 9.01, subd. 2(3) of the Rules of Criminal Procedure.  Counsel, get those boilerplates humming.

Predatory Offender Registration Applies to Kidnapping Committed to Collect Ten Day Old Drug Debt.

State v. Lopez, Minn.Ct.App., 4/28/2009.  The Lopez brothers arranged to sell a quantity of methamphetamine to a fellow who turned out to be a confidential informant.  The agreed upon price was $600.00.  When the deal went down, the CI not only purchased the drugs for $600.00; he went on to broker a side deal for a bit more meth, for three hundred more dollars to be paid at a later date.  Ten days later the CI called his law enforcement minder to report that Mr. Lopez was holding him hostage in lieu of payment of the balance.  The deputy coughed up the money but made Mr. Lopez drive over to the local ball field to collect it; Mr. Lopez took the CI along with him.  The state charged Mr. Lopez with aiding and abetting the drug offense and with aiding and abetting kidnapping.  Mr. Lopez negotiated a plea to the drugs and a dismissal of the kidnapping.

The trial court said that Mr. Lopez had to register as a predatory offender because the drugs conviction arose out of the same circumstances as the kidnapping charges.  Minn.Stat. 243.166, subd. 1b(a)(1).  The appellate court was okay with that conclusion.  The complaint had charged Mr. Lopez with aiding and abetting kidnapping for the purpose of facilitating the commission of a felony, in this case, the drugs offense.  It didn't matter that the drug offense was complete after the first meeting; the meeting and delivery ten days later of the remaining $300.00 was just a completion of the completed drug offense. 

Mr. Lopez has to register.

ATF Weapons "Trace" Reports are Not Testimonial under Crawford.

State v. Jackson, Minn.Ct.App., 4/28/2009.  Three masked men, one of whom sported a shotgun, stormed the rear door of the Beehive Tavern shouting, "This is a stick up!".  Well, sort of.  The proprietor seemed to know that the guys were coming; he got off seven rounds from his handgun and that was that.  The three men beat a hasty retreat.  Police arrived and shortly thereafter found Mr. Jackson and a shotgun in a nearby alley.

The state introduced a "trace" report from the Department of Alcohol, Tobacco & Firearms.  This report identified the original purchaser of the shotgun; it also identified "recovery information", which stated that the shotgun had been recovered from Mr. Jackson in the alley near the Beehive Tavern on the date of the robbery. 

On appeal, Mr. Jackson argued that admission of this report violated his right of confrontation under Crawford.  The appellate court disagreed, for several reasons.  First, the report was not created for litigation but is a record that is maintained in the ordinary course of business. (The appellate court makes the rather incredulous statement that ATF "did not expect the firearm-trace report would be used prosecutorially.")   Second, it may qualify under the business records exception, although this is likely not enough to satisfy Crawford.  See State v. Johnson, 756 N.W. 2d 883 (Minn.Ct.App. 2008).  Along the way, the appellate court distinguished State v. Caulfield, 722 N.W.2d 304 (Minn. 2006) (BCA report on identification of narcotic is testimonial); and State v. Weaver, 733 N.W.2d 793 (Minn.Ct.App. 2007) (hospital lab report prepared as part of an autopsy is testimonial).  In both of those cases, the report was prepared for the purpose of prosecuting the defendants.

Prosecutor's Request for Lawyers for Defense Alibi Witnesses Gets the Court's Nod

State v. Graham, Minn.S.Ct., 4/23/2009.  This is a lengthy opinion that ultimately affirms a murder one conviction.  The main issues are the propriety of the prosecutor's request to the court to appoint independent counsel to advise two defense alibi witnesses; and rulings on various evidentiary rulings.  That said, there's nothing for it but to slog through this.

Paris Furcron was in the middle of buying some weed when two men - one tall, the other short - burst in through the back door of the house where the deal was going down.  The two men were apparently undertaking an armed robbery.  Mr. Furcron "tussled" with the tall man, who turned out to be Mr. Graham, over the gun, during which shots were fired.  Mr. Furcron died shortly thereafter.  Several of the people who were at the house were able to identify Mr. Graham from a sequential photo array.

State's Request to Appoint Counsel for Defense Alibi Witnesses:  Nine months after the grand jury indicted Mr. Graham on first degree murder and various other charges, he produced two alibi witnesses, his former girlfriend and her mother.  Each intended to testify that Mr. Graham had been at their home at the time of the shooting.  The state knew, however, that at the time of the shooting Mr. Graham was under a no contact order to stay away from the girlfriend; she was also the victim of a terroristic threats charge committed by Mr. Graham.  He had also coached her on what to say in order to clear him of the terroristic threats charge.  (The coaching did not work as Mr. Graham plead guilty to the terroristic threats charge.)  All of this convinced the state that these alibi witnesses were about to commit perjury for starters, and aiding an offender as well.  The state convinced the trial court to appoint independent counsel for them; they very quickly lawyered up and invoked their Fifth Amendment rights.  The defense called foul - interference with the right to present a defense.

The Court acknowledges that it's a thin line between state intimidation of defense witnesses and protecting a witness from self incrimination.  A self incrimination warning crosses that line when it "precludes [the witness] from making a free and voluntary choice whether or not to testify."  Here, the Court faces a variation on this theme:  when is it improper for the state to suggest that a defense witness should be appointed an attorney to give advice about possible self-incrimination? 

The Court adopts a two part test to determine whether the state acts properly in seeking the appointment of independent counsel for defense witnesses:

First, the State must be able to point to facts that support a reasonable and substantial belief that the witness will offer false or self-incriminating testimony. Second, once the State has demonstrated a reasonable basis for believing a witness’s testimony may be false or self-incriminating, the warnings of self-incrimination must be given in an appropriate manner, so as not to preclude a witness’s free and voluntary choice to testify by exerting undue distress on the witness.

The Court concludes that the state had satisfied both parts of the test it just adopted.  The facts cited satisfied the first part of the test.  The state's concerns were made directly to the court, out of the presence of the two witnesses and thereafter the state never spoke with them out of the presence of appointed counsel; this procedure satisfied the second part of the test as well.  It remains to be seen, of course, whether this practice will catch on, or whether it is an outlier. 

Evidentiary Rulings:  Mr. Graham also argued that the state had engaged in misconduct by some of its objections to defense questions of its witnesses.  The court ducks the question whether this is even possible but does address the objections. 

Defense counsel wanted to impeach a witness with statements attributed to him in a police report.  Counsel asked the witness if he had uttered a statement that counsel then read verbatim from the report.  The trial court sustained the prosecutor's objection.  The appellate court finds no abuse of discretion with this ruling, relying on Rule 613 of the evidence rules.  The problem was the form of the question; Rule 613(b) prohibits counsel from impeaching a witness by extrinsic evidence - in this case, reading verbatim from a third-party summary that purported to state what the witness actually said.  Reading the statement verbatim can only be done when the witness has adopted the verbatim statement attributed to him by the third party as his own. 

Defense counsel can ask the witness whether he said certain things to the officer, in essence paraphrasing the report.  If the witness does not recall making the statement or denies making it, then counsel can call the author of the report (most always a risky business).  Indeed, defense counsel did ask a different witness whether he had told an officer a specific fact, a question based on that officer's written summary.  This question was proper.

In another instance, defense counsel asked a witness if he recalled talking to a named officer; the witness said that he did not recall such a conversation.  Counsel left it at that, then later wanted to ask the named officer the details of the conversation.  The trial court sustained the prosecutor's objection and the appellate court upheld the ruling.  This was because the witness had not been given the opportunity to admit or deny the specific statements; counsel could not thereafter ask the officer if the witness had made those specific statements.

In yet another instance, defense counsel sought to impeach a witness by use of a defense-prepared transcript of a recorded interview; the state apparently didn't have a copy of this transcript.  Even so, the appellate court concluded that the trial court was wrong to have precluded the introduction of inconsistent statements, either from the transcript or from the recording, itself.

An Unlicensed Prosecutor is Okay:  Finally, the court decides that a conviction obtained by a prosecutor who was unlicensed to practice law at the time of the conviction should be set aside only when the defendant is able to show prejudice that warrants reversal.  Having already concluded that there had been no prosecutorial misconduct, Mr. Graham cannot show such prejudice.  I guess the prosecutor had stayed at a Holiday Express.