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.