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.