Venue in OFP Prosecution, Based Upon Sending an Email, is Proper in Either the Sender’s or the Recipient's Location But State Failed to Prove Either in this Case

State v. Pierce, Minn.Ct.App., 12/7/2010.  The Hennepin District Court granted an order for protection to Wenona Kuhrman against Mr. Pierce.  The order specifically prohibited any contact by electronic means, including email.  Mr. Pierce sent Ms. Kuhrman an email from his MySpace account.  The state charged Mr. Pierce with violating the order for protection.

Trial testimony did not establish where Mr. Pierce was when he sent the message; testimony also did not establish just where Ms. Kuhrman was when she first read the email.  Alas, there also was neither testimony about where Ms. Kuhrman was when an officer viewed the message on her computer, nor testimony about what police department did so.

There are two questions here:  venue and sufficiency of the evidence.  First, venue.  Article I, Section 6 of the state constitution says that prosecution must be in the county or district where the crime occurred so the state had to prove that the violation was committed in Hennepin County.  The appellate court concludes that the offense of violating the order for protection includes both the sending and the receipt of the email.  So, venue can be proper in either the sender’s location or the recipient’s location. 

But, did the state prove either location?  No.  The state offered no evidence to establish where Mr. Pierce was when he sent the email.  While the state offered evidence of Ms. Kuhrman’s address in Hennepin County, that is not sufficient.  The OFP statute contains no residence-based venue provision, unlike the harassing telephone calls statute, 609.79, which specifically includes where the receiver resides.  That said, it appeared to the appellate court that Ms. Kurhman’s computer was likely a laptop, which she could have opened, literally, anywhere on the planet.  The appellate court also rejects the invitation to adopt a continuing violation theory, based upon Ms. Kuhrman’s offer, while on the witness stand in an admittedly Hennepin County court room, to open her her computer and show everyone the offending email. 

Court Rejects Challenges to Classifying “khat” as a Controlled Substance

State v. Ahmed & Adam, Minn.Ct.App., 11/23/2010.  The state charged Mr. Ahmed and Mr. Adam with possession of a controlled substance, commonly known as khat.  Each moved to dismiss, claiming that khat was not a “material compound, mixture, or preparation which contains any quantity of . . . [c]athinone; [m]ethcathinone” in Minn. Stat. § 152.02, subd. 2(6) (2008).  However, way back in 2000, the court of appeals held that possession of khat is criminal.  State v. Ali, 775 N.W.2d 914, 921 (Minn. App. 2009).  Mr. Ahmed and Mr. Adam made various treaty, religious freedom, and equal protection arguments, all of which the appellate court rejects.

Changing Lanes Without Signaling in Order To Give Room to Emergency Vehicle on Shoulder Still Authorized Traffic Stop.

State v. Doebel, Minn.Ct.App., 11/23/2010.  A deputy sheriff stopped Mr. Doebel’s car because Mr. Doebel did not signal a lane change.  Mr. Doebel apparently had seen an emergency vehicle off on the shoulder and in an effort to avoid a ticket for remaining the right lane as he whizzed past the emergency vehicle he moved into the left lane.  He should have stayed where he was because the deputy found all manner of contraband in Mr. Doebel’s car and discovered that he was drunk to boot.

Mr. Doebel challenged the stop.  There are two statutes in play.  The first, more general statute, says that no person shall “move right or left upon a highway unless and until the movement can be made with reasonable safety after giving an appropriate signal.” Minn. Stat. § 169.19, subd. 4.  The other statute, specific to emergency vehicles, says:

When approaching and before passing an authorized emergency vehicle with its emergency lights activated that is parked or otherwise stopped on or next to a street or highway having two lanes in the same direction, the driver of a vehicle shall safely move the vehicle to the lane farthest away from the emergency vehicle, if it is possible to do so.

Minn. Stat. § 169.18, subd. 11(a).

This emergency vehicle statute says nothing about giving a signal before getting out the way of (the wrath) of the emergency vehicle (or another emergency vehicle following behind you.)  If a general statute is in conflict with a specific statute, the courts are to try to give effect to them both.  Minn. Stat. § 645.26, subd. 1 (2008).  No argument there.  The appellate court decides to “give effect” to both by reading into the emergency vehicle statute the requirement of giving a signal.  The court does throw a little bone, however, saying that had it been necessary for Mr. Doebel to have made an abrupt lane change to avoid plowing into the emergency vehicle then perhaps no signal would have been required.

Valid Civil Settlement Between Victim & Criminal Defendant Limits Any Award of Restitution.

State v. Ramsay, Minn.Ct.App., 10/19/2010.  Ms. Ramsay’s employer, Minnesota Eyecare, sued her, claiming that she had helped herself to as much as $150,000.00 of its money through various nefarious schemes.  The state got into the action by bringing a theft prosecution against her.  Minnesota Eyecare and Ms. Ramsey mediated a settlement of the civil case under which she agreed to pay back $125,121.00 as damages, and an additional twenty grand over five years “as a condition of her probation.”  Minnesota Eyecare agreed to recommend to the prosecutor that restitution be ordered in the amount of $20,000.00.  Lastly, there was the standard release by each party of claims by the other.  Thereafter, Ms. Ramsay negotiated a plea with the state under which she agreed that it was up to the state to establish the amount of restitution.

This last part of the plea negotiation was because the parties had a falling out over the civil agreement.  Eventually, Minnesota Eyecare was demanding nearly ninety grand in restitution and Ms. Ramsay was resisting paying the originally agreed upon additional twenty grand.  The trial court eventually set restitution in the neighborhood of forty-five thousand, denominated as “tangential expenses,” read, Minnesota Eyecare’s attorney’s fees mostly.

Now, the court of appeals just dealt with this kind of problem in State v. Arends, 786 N.W.2d 885 (Minn. App. 2010), pet. for review denied (Minn. Oct. 27, 2010).  Arends says that the civil settlement limited Minnesota Eyecare to restitution of twenty thousand; the state could not try to work around that valid agreement because its restitution efforts were on behalf of Minnesota Eyecare; that state thus had no authority to ask for one more penny.  If that were not enough, Ms. Ramsey’s plea was to theft of more than $1,000.00 but less than $5,000.00, and she did not make admissions beyond that (and everyone knew that by the time of sentencing she had paid what she had agreed to pay in the civil settlement, 125 large).  As a consequence, the trial court had no factual basis on which to have ordered restitution.

Jury Need Not Be Unanimous About Which of Defendant’s Multiple Acts Constituted Single Count of Domestic Assault.

State v. Dalbec, Minn.Ct.App., 10/19/2010.  A jury convicted Mr. Dalbec of gross misdemeanor domestic assault of his fiancée, S.M., (at least at the time).  Here’s what he may have done, may because the jury really didn’t say very precisely, over a roughly twenty-four hour period of time. 

First Episode:  He pulled the mattress off the bed, dumping S.M. onto the floor; he pushed her into a filing cabinet; he pushed her a second time; he tossed her through a doorway. 

Second Episode many hours later:  Mr. Dalbec pushed S.M. out of the way as he came into their apartment; he grabbed her phone and broke it; he kicked in the door after he briefly left (which gave S.M. enough time to bolt the door); he pushed S.M. around the apartment some more.  Mr. Dalbec left.

Third Episode again hours later:  Mr. Dalbec forced open the bedroom door behind which S.M. was trying to keep him out.

Now, without objection, the jury instructions rolled all this into one package, which included all three ways in which one may commit an assault in Minnesota:  an act committed with intent to cause fear of immediate bodily harm; the infliction of bodily harm; or the attempt to inflict bodily harm.  On appeal, Mr. Dalbec suggested that this was plain error, that the jury should have been instructed that it had to unanimously agree on which of several acts constituted the assault.

The appellate court says, no.  The element in question here is the assault.  So long as the jury agrees that Mr. Dalbec intended to assault S.M., the means by which he accomplished it was of no consequence, at least under the single charge brought against him.  (In fact, the appellate court thought that Mr. Dalbec got a break because the state did not charge him with separate counts of assault.)  The court does point out that if the defense to the various separate acts had been inconsistent with each other, then there might be a problem.  It cites in State v. Stempf, 627 N.W.2d 352 (Minn. App. 2001).  In that case the state charged a single count of possession of narcotics, in support of which it offered evidence of two independent events.  In one event, police found narcotics at defendant’s workplace; in the other they found narcotics in a truck in which he had been a passenger. 

DNA Exemplar for Juvenile Adjudicated of Gross Misdemeanor Okay Under Fourth Amendment, but On Review to Supreme Court

In the Matter of the Welfare of M.L.M.,, Minn.Ct.App., 4/20/10, review granted, 6/29/10.  M.L.M. and a buddy stole some clothes from a department store, damaged said clothing, then ran from the cops before getting caught.  Among other things, the state charged M.L.M. with various theft related offenses, with property damage, and with fleeing a peace officer.  She eventually settled the case for a gross misdemeanor theft adjudication, for which the juvenile court ordered her to submit to a DNA sample.  Ms. M.L.M. argued that this was unconstitutional.

The statute that purports to authorize the DNA collection is Minn.Stat. 609.117, subd. 1(2), which kicks in when the court “adjudicates a person a delinquent child who is petitioned for committing or attempting to commit a felony offense and is adjudicated delinquent for that offense or any offense arising out of the same set of circumstances.”   The Minnesota Supreme Court had already rejected a Fourth Amendment challenge to this sort of DNA data mining for adults convicted of felony offenses, State v. Bartylla, 755 N.W.2d 8  (Minn. 2008); and the Court of Appeals had ruled similarly in the case of someone convicted of a misdemeanor arising from the same set of circumstances as a charged felony offense.  State v. Johnson, 777 N.W.2d 767, 772 (Minn. App. 2010), pet. for review granted(Minn. April 20, 2010).  For more on Mr. Johnson, go here.

The appellate court rejects the challenge to the DNA collection, but the opinion is currently pending review by the Minnesota Supreme Court. 

Continuance for Dismissal Over State’s Objection Limited to Clear Abuse of Prosecutorial Discretion

State v. Strok,, Minn.Ct.App., 7/20/10.  Ms. Strok stole some stuff from Macy’s at the Ridgedale Mall; the state charged her with gross misdemeanor theft.  The trial judge continued the case for dismissal for one year over the state’s objections.  It turns out that had Ms. Strok shoplifted enough to get herself charged with a felony she likely would have gone to Property/Drug Court where she would have got a diversion.  The city of Minnetonka didn’t see it that way and filed a pretrial appeal.

Absent an agreement, a court may order a continuance for dismissal only to avoid an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.  State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996).  That the trial court here thought that a diversion was commensurate with dispositions of similar cases is far short of a finding of a clear abuse of discretion.  The appellate court sends the case back to district court.

Falsely Reporting Police Misconduct Unconstitutional Viewpoint Discrimination.

State v. Crawley, Minn.Ct.App., 9/28/10.  Ms. Crawley filed a report of police misconduct, asserting that an officer forged her signature on a medical release to obtain her medical records.  When a nurse said that she had seen Ms. Crawley sign the release, the state charged her with falsely reporting police misconduct and falsely reporting a crime.  Falsely reporting misconduct is:

Whoever informs, or causes information to be communicated to, a peace officer, whose responsibilities include investigating or reporting police misconduct, that a peace officer . . . has committed an act of police misconduct, knowing that the information is false, is guilty of a crime . . . .

Ms. Crawley argued that this statute was “viewpoint discrimination” because it only criminalized false statements that criticize police.  The appellate court points out that making a false statement that attempts to absolve a police officer of misconduct would not be punishable under this statute.  That makes prosecution turn on content, which you can’t do.  R.A.V. v. City of St. Paul, 505 U.S. 377, (1992):

Minn. Stat. § 609.505, subd. 2 criminalizes knowingly communicating false information regarding police only when that communication alleges misconduct. Because the distinction between false critical information and false exonerating information discriminates based on the viewpoint of the speaker and does not fit under a recognized exception to content discrimination, this subdivision of the statute violates the First Amendment.

There was a vigorous dissent by Judge Harten.  The case is presently pending the state’s request for review by the Minnesota Supreme Court.

Asperger’s Evidence Rejected; Miranda Waiver Valid

State v. Anderson, Minn.S.Ct., 10/14/2010.  Katherine Olson responded to an e-mail request from “Amy” for a baby sitting job.  It wasn’t “Amy,” however, it was Mr. Anderson.  Acting on a tip, police found Olson’s body in the trunk of her car, which was parked at a park reserve.  She had been shot in the back.  Forensic evidence linked Mr. Anderson to Ms. Olson.  Mr. Anderson’s computer had postings from “Amy” for a baby sitter, to which Ms. Olson had responded. 

A grand jury indicted Mr. Anderson on first degree premeditated murder; told the police during a custodial interrogation that he had used the online service to solicit Olson “to babysit,” that he had been present when Olson was killed, and that a friend had said that he thought killing her would be funny.  While in jail, he said he had killed her to find out what killing someone felt like.  Mr. Anderson initially pleaded not guilty by reason of mental illness - defense experts said that Mr. Anderson had Asperger’s – but he later withdrew that defense.  He did, however, attempt to introduce expert evidence of the physical and cognitive effects of Asperger’s, which the trial court denied.

Mr. Anderson challenged his custodial interrogation on Miranda reasons.  The claim seemed something of a tag a long to the Asperger’s evidence issue.  The appellate court did rather timidly remind the cops that they should clearly inform suspects just what crimes that they want to ask questions about, but that telling Mr. Anderson that the subject of the questioning was a “missing person case” was close enough to the real subject –homicide; after that, they made short work of the Miranda claim and moved on. 

Mr. Anderson argued that there were three reasons why the jury should have heard evidence about Asperger’s.  First, it was necessary to explain the physical mannerisms associated with this illness, especially the inability to empathize, show remorse or respond properly to social cues.  The trial judge, after peering over the bench at Mr. Anderson, noticed nothing particularly unusual about his behaviors and excluded any expert testimony on that basis.

Second, Mr. Anderson said that expert testimony was necessary to explain how his Asperger’s brain functions differently from that of a “normal” brain, especially in considering mens rea.  The appellate court won’t go there because it leads to reconsideration of, if not the adoption of, diminished capacity.  What that means is that it’s not whether Mr. Anderson had the capacity to form intent but whether he did so, something that can only be determined from his physical actions.

So, if you are offering expert mental health evidence to show an absence of guilt based on a diminished capacity to form the required mental state for the offense charged, you can’t do it.  But, if you are offering that evidence to present the jury with an alternative explanation of behavior (that the state would argue supports a conclusion of guilt), you can.  See, State v. Maddox, Jr., Slip Op. A10-372 (10/12/2010), petition for review pending.

Mr. Anderson wanted an accident instruction but the trial court wouldn’t give one, instead instructing on culpable negligence manslaughter.  The appellate court said that the two instructions allowed Mr. Anderson to argue his accident theory to the jury so that was good enough.  The appellate court also declined to parse the premeditation instruction that says that a person has to “consider, plan, prepare for or determine to commit the act” before committing it.  The jury wanted to know if all of these things had to occur in order for them to find premeditation; the appellate court ducked the question by approving the trial court’s repetition of the very instruction.  Finally, the appellate court continues to approve the jury instruction that says that premeditated decision to kill may be reached in a “short period of time,” even though case law consistently said that “some appreciable time must pass” before premeditation can exist.  Justices Paul Anderson and Page, concurring, suggest that it’s time to revise this instruction.

A Few More Recent Post Conviction Opinions

Dobbins v. State of Minnesota, Minn.S.Ct., 9/16/2010.  A jury convicted Mr. Dobbins of first degree premeditated murder for the death of Quintin Lavender.  The state’s main witness was Myshohn King, who testified that Mr. Dobbins came out of a bedroom with a gun and shot Mr. Lavender.  Mr. Dobbins, on the other hand, testified that while he was in the bedroom it was Mr. King who shot Mr. Lavender and that he had nothing to do with it.  The supreme court affirmed Mr. Dobbins’ conviction.

Mr. Dobbins filed a post conviction petition alleging, among other things, that an affidavit from Darryl Harris says that Mr. King confessed to Mr. Harris that he had accidently shot Mr. Lavender then blamed Mr. Dobbins to get a better deal.  The post conviction court denied the petition without a hearing.

The appellate court remands for an evidentiary hearing on the false testimony claim.  The affidavit does not entitle Mr. Dobbins to a new trial – it does not establish that Mr. King’s testimony was false because this claim is supported only by the affidavit – but it does entitle Mr. Dobbins to an evidentiary hearing.  This is so even though the affidavit contains hearsay statements that may or may not be admissible at an evidentiary hearing.

 

Scherf v. State of Minnesota, Minn.S.Ct., 9/23/2010.  A jury convicted Mr. Scherf of burglary, theft and fifth degree controlled substance crime.  The criminal complaint claimed that Mr. Scherf and one Ryan Hughes jointly committed the burglary and theft.  Part of the state’s proof was evidence that right after the burglary Mr. Hughes showed up at Mr. Scherf’s house and told another person that he had stolen some property and stored it there.  When Mr. Scherf arrived, he and Mr. Hughes talked privately, after which Mr. Hughes and the other person moved most of the stolen stuff elsewhere.  The next day, police stopped a car that Mr. Scherf and Mr. Hughes were in, and found some of the proceeds of the burglary. Hughes skipped out after he pleaded guilty to the burglary and so he was not available to testify at Mr. Scherf’s trial.

Some time after his conviction, Mr. Hughes resurfaced.  He also tendered an affidavit to Mr. Scherf that said that Mr. Scherf had nothing to do with the burglary.  Mr. Hughes said that he did the burglary all by himself.

Mr. Scherf filed a post conviction petition saying that this affidavit was newly discovered evidence that entitled him at least to an evidentiary hearing if not a new trial.  The appellate court says that it’s not newly discovered evidence because Mr. Scherf knew of Mr. Hughes’s existence and because he failed to establish that he didn’t know of the the substance of Mr. Hughes’s testimony at the time of trial. 

 

Laine v. State of Minnesota, Minn.S.Ct., 8/5/2010.  Mr. Laine called 911 to report that his girlfriend had fallen down the stairs and was unresponsive.  Medical expert testimony didn’t support this claim and a jury convicted Mr. Laine of domestic abuse murder.  He filed a post conviction petition in which he alleged that newly discovered evidence entitled him either to an evidentiary hearing or a new trial.  First, he said that one of his ex-wives had other information that would make a difference in the outcome.  The appellate court rejects this vague, unsupported claim; just saying that a witness now has different information than presented at trial doesn’t cut it.

Second, he claimed newly discovered evidence of a break in the chain of custody of the victim’s blood.  This claim is Knaffla-barred.  Third,  Mr. Laine asserted that he had recently been diagnosed with an obsessive-compulsive disorder.  Mr. Laine said that this would explain why he thoroughly cleaned the house before he called 911.  The jury heard something of this during the trial so whatever he now has isn’t likely to produce an acquittal or more favorable outcome.

Finally, he said that he had medical testimony that would offer an alternative explanation for the death that would be inconsistent with domestic assault.  He fails to fill in any details about this medical testimony, so it’s “argumentative.” 

Recent Post Conviction Opinions Flesh Out Limitations Provisions

In the last few weeks there have been a slew of opinions from the Minnesota Supreme Court that begin to answer some of the questions about just how the 2005 enactment of a limitations period in the post conviction statute will play out.  The general rule establishes a two year limitations period.  That part’s easy; it’s the exceptions that come into play in these recent opinions so let’s put up the exceptions to the general rule of a two year limitations period first:

A petition for post conviction relief may be heard notwithstanding the general time limitation if:

(1) the petitioner establishes that a physical disability or mental disease precluded a timely assertion of the claim;

(2) the petitioner alleges the existence of newly discovered evidence, including scientific evidence, that could not have been ascertained by the exercise of due diligence by the petitioner or petitioner’s attorney within the two-year time period for filing a post conviction petition, and the evidence is not cumulative to evidence presented at trial, is not for impeachment purposes, and establishes by a clear and convincing standard that the petitioner is innocent of the offense or offenses for which the petitioner was convicted;

(3) the petitioner asserts a new interpretation of federal or state constitutional or statutory law by either the United States Supreme Court or a Minnesota appellate court and the petitioner establishes that this interpretation is retroactively applicable to the petitioner’s case;

(4) the petition is brought pursuant to subdivision 3; or

(5) the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.

Here’s what’s been going on:

There is no specific pleading requirement in order to invoke one of the limitations exceptions:

Roby v. State, Minn.S.Ct., 8/19/2010.  Back in 1989 Mr. Roby received a life sentence for a homicide conviction.  In 2005 the legislature enacted two limitations periods for filing post conviction petitions.  The general rule established a two year limitations period, measured from the date the conviction became “final”.  The legislature established a two year grace period, measured from the date the legislation took effect (August 1, 2005), effectively giving guys until July 31, 2007 to file.  The second rule established certain specified exceptions to the general rule.

Mr. Roby filed this petition in March 2009 so he had to meet on of the second rule exceptions to stay in court regardless of the merits of his claims.  Mr. Roby’s petition said that he had newly discovered evidence – possibly one of the second rule exceptions – and that the post conviction court should consider his claim “in the interests of justice” – another of the second rule exceptions.  The state responded that Mr. Roby needed to plead – with precision – the exact statutory exception on which he relied in order to avoid a dismissal of his petition as untimely.

A unanimous court – Justice Stras not sitting - rejects this assertion.  Justice Meyer points to the post conviction statute, itself, which specifically prohibits “argument or citation of authorities” in the body of the petition.  Minn.Stat. 590.02, subd. 1(1).   If that’s not enough, then there is the section that requires the post conviction court to construe the petition liberally.  Minn.Stat. 590.03. 

Striking out with one exception does not preclude consideration of the other exceptions.

Gassler v. State, Minn.S.Ct., 9/2/2010.  Mr. Gassler is also serving a life sentence for the murder of Mr. Yungk.  The accusation was that Mr. Gassler killed Mr. Yungk with a shotgun, which the police ultimately recovered, along with some shotgun ammunition, from Mr. Gassler, by way of his mother.  An FBI expert testified that he compared shotgun pellets recovered from Mr. Yungk’s body with the recovered ammunition; his conclusion was that the pellets and the shotgun ammunition not only had a common manufacturer but a common ammunition box.  Years later, after Mr. Gassler’s conviction, the FBI announced its abandonment of this testing because its results had been shown to be unreliable. 

Mr. Gassler filed his post conviction petition within two years of the FBI’s renunciation of the pellet comparison, saying that this renunciation was newly discovered evidence, an exception to the general two year limitations period.  (The Court says its actually false evidence but includes it within the newly discovered evidence exception.)  Mr. Gassler  also said that the petition should be heard in the interests of justice.  First, the newly discovered evidence claim:

In order for the newly discovered evidence exception to apply: (1) a petitioner must allege the existence of newly discovered evidence (including scientific evidence); (2) the evidence could not have been ascertained by the exercise of due diligence by the petitioner or petitioner’s attorney within the two-year time period for filing a post conviction petition; (3) the evidence is not cumulative to evidence presented at trial; (4) the evidence is not for impeachment purposes; and (5) the evidence must establish by the clear and convincing standard that the petitioner is innocent of the offense for which the petitioner was convicted. Minn. Stat. § 590.01, subd. 4(b)(2).

Neither the parties nor the post conviction court quibbled with whether Mr. Gassler met the first four requirements.  It’s the fifth requirement that is at issue.  Justice Page says that even if you threw out this evidence Mr. Gassler still had failed to establish by clear and convincing evidence that he is innocent.  There was lots of other evidence that jury heard on which it could have based its verdict.  That improperly admitted pellet comparison evidence may have influenced the jury does not establish innocence.  So, Mr. Gassler is not entitled to have his petition heard under this exception.

What about interests of justice?  The post conviction court, the state and the concurring justices Gildea and Dietzen thought that because Mr. Gassler failed the newly discovered evidence exception that was the end of it.  The majority thinks otherwise.  Justice Page points out that each of the exceptions is connected by the word, “or” in its disjunctive sense.  This means that just because Mr. Gassler did not meet one of the exceptions did not preclude him meeting one of the other ones.

So, what’s required to obtain relief under the interests of justice exception?  Well, the case has to be “exceptional,”  apparently determined by a number of possible factors to consider:  (1) does the claim have substantive merit that the petitioner did not deliberately and inexcusably fail to raise on direct appeal; (2) weighing the fault of the petitioner for the error against the fault of the defending party for it, is there some “fundamental unfairness to the defendant that needs to be addressed; and (3)  does the integrity of the judicial proceedings need to be protected.  For Mr. Gassler, the court picks door number 3 and concludes that his petition fails that test.  There’s all that other evidence to support the guilty verdict so that the admission of junk science did not result in a “trial so fundamentally unfair to Gassler as to require us to act to protect the integrity of the judicial process.”  This seems to be the adoption of a “little bit pregnant” test, but that’s what happened. 

Scott v. State, Minn.S.Ct., 9/23/2010.  Mr. Scott is a codefendant of Mr. Gassler.  Same situation regarding admission of the pellet comparison testimony, with the same result:  Mr. Scott could not establish his innocence by clear and convincing evidence.  Turning to the interests of justice exception, same result.  Same two justices concur in the result only.

Doctrine of Transferred Intent Applies to Establish Intent Element of Criminal Sexual Conduct.

State v. Austin, Minn.C.Att., 9/28/2010.  Mr. Austin spent July 29, 2008 drinking a lot, really a lot, of malt liquor, with the occasional toke of marijuana at his uncle’s apartment.   Two sisters, and the three boys of one of the sisters, lived in a nearby apartment in the building.  When one of the sisters left to return to her apartment, Mr. Austin made remarks to her that she construed as a sexual proposition.  She went on to her apartment.

To make a long story short, Mr. Austin didn’t realize that the sister whom he had propositioned no longer lived in the other sister’s apartment.  They say that ignorance is bliss but see for yourself.  Mr. Austin let himself into the unlocked, darkened apartment of the other sister and climbed into bed with one of that sister’s young boys, age seven.  There was some inappropriate sexual touching before Mr. Austin learned of his error.  The state charged him with burglary and criminal sexual conduct in the second degree, victim under 13 years of age, defendant more than 36 months older.

At trial Mr. Austin said none of this ever happened.  He had a story having to do with the virtue of the woman he’d propositioned, but it didn’t really explain how he ended up in bed the the seven year old, which he didn’t deny anyway.  He just said it was a mistake, wrong apartment, wrong sex partner.

The trial court found Mr. Austin guilty.  The Court of Appeals concluded that Mr. Austin’s groping of the seven year old supported the “acting with sexual intent” element of the offense.  Mr. Austin said that he had every intent to touch the sister whom he’d propositioned (and whom he believed still lived in the other sister’s apartment) to satisfy his sexual desire, but he had absolutely no such intent to do so with the seven year old.  That is, he was saying there’s no such thing as transferred intent in sex crimes.  The appellate court says it’s no different from when a defendant intends to assault A but assaults B instead.  See, e.g., State v. Livingston, 420 N.W.2d 223, 229 (Minn. App. 1988).  Conviction affirmed.

State’s Improper Questioning of Witness Who Repeatedly Claimed Privilege Results in New Trial.

State v. Morales, Minn.S.Ct., 9/23/2010.  A jury convicted Mr. Morales of the murder of Victor Mesa-Ortiz, who was the chief financial officer of a local brothel.  Mr. Morales and two others went to the brothel intending to rob it; instead, Mr. Mesa-Ortiz was killed.  You can read more about the facts of the case here.  One of the guys who accompanied Mr. Morales, Felipe Vega-Lara, went to trial ahead of Mr. Morales; Mr. Vega-Lara testified at his trial.  A jury convicted him; Mr. Vega-Lara appealed that conviction.

During the pendency of that appeal, the state brought Mr. Morales to trial.  The state called Mr. Vega-Lara to testify against Mr. Morales; Mr. Vega-Lara refused.  The stated gave him statutory use immunity under Minn.Stat. 609.09; Mr. Vega-Lara still refused to testify.  Even though the state knew Mr. Vega-Lara’s stance on testifying against Mr. Morales, they put him on the stand anyway.  Right out of the box, Mr. Vega-Lara “pled the fifth.”  Thereafter, and continuing for an excruciatingly long time, the prosecutor would ask Mr. Vega-Lara a question, he would refuse to answer and the prosecutor followed up with an impeachment question, didn’t you previously testify such and so.  For example:

State:	Did you -- did Angel Morales point the gun at Victor Mesa-Ortiz for the purpose of robbing him?
Vega-Lara:	Refuse to answer.

      

State:	Did you previously testify that he pointed the gun at Victor Mesa-Ortiz --
Vega-Lara:	Refuse to answer.
State:	--    for the purpose of robbing him?
Vega-Lara:	Refuse to answer.
State:	Did Victor Mesa-Ortiz resist when Angel Morales pointed the gun at him and tried to rob him?
Vega-Lara:	Refuse to answer.
State:	At that point did you enter the -- did you previously tell the jury that Victor Mesa-Ortiz started struggling with Angel Morales over the gun?
Vega-Lara:	refuse to answer.

See how this works?  Having back-doored nearly all of Mr. Vega-Lara’s trial testimony in this fashion, the state, still dissatisfied, also moved to introduce a transcript of his trial testimony as substantive evidence.  The trial court denied this request.

After the trial court granted Mr. Vega-Lara use immunity did he still have a valid Fifth Amendment privilege?  If you want to skip to the end, the answer is, no.  Here’s why.  Mr. Vega-Lara said that he did have a valid privilege because he could be charged with perjury if the state determined that a conflict existed between his testimony in the Morales trial and his own trial testimony.  In addition to a Fifth Amendment argument, Mr. Vega-Lara pointed to subdivision 3 of the immunity statute:

When the declarant has made two inconsistent statements under such circumstances that one or the other must be false and not believed by the declarant when made, it shall be sufficient for conviction under this section to charge and the jury to find that, without determining which, one or the other of such statements was false and not believed by the declarant

Not to worry.  The appellate court says that the statute forecloses prosecution of an immunized witness for perjury based upon prior false statements that were not made under immunity.  The court relies upon Fifth and Eighth circuit court of appeals opinions to support this conclusion.  In re Grand Jury Proceedings, 644 F.2d 348, 350 (5th Cir. 1981); accord In re Grand Jury Proceedings, 625 F.2d 767, 770 (8th Cir. 1980). 

If Mr. Vega-Lara didn’t have a valid privilege then what’s the problem with the state calling him to testify?  Generally speaking, the state can’t call a witness knowing ahead of time that the witness will invoke a Fifth Amendment privilege and refuse to testify.  State v. Mitchell, 268 Minn. 513, 130 N.W.2d 128 (1964) and Namet v. United States, 373 U.S. 179 (1963).  A state’s witness who clams up, “pleading the fifth” tends to send a pretty strong signal to the jury that if the witness did testify it would not be a good thing for the defendant.  It turns out, however, that this is the case whether the claim is valid or invalid. 

Now we get to the core issue.  Was the state’s examination of Mr. Vega-Lara reversible error?  Yes, it was.  There were two ways that the appellate court could have gone on this.  It could have concluded that the prosecutor was acting in bad faith, in which case prejudice to the defense is presumed, new trial.  “Under the second theory of error—the unfair-prejudice theory—reversible error results if the State calls a witness in good faith and the State’s “examination is of a type that has prejudiced defendant to the extent that he has been denied a fair trial.”

The appellate court goes with the later theory, ducking the bad faith determination.  (Chief Justice Gildea would have found neither bad faith nor prejudice to Mr. Morales.)  Where the substance and manner of the state’s examination of the witness who is claiming privilege adds “critical weight to the prosecution’s case in a form not subject to cross-examination” then there is prejudicial error.  Namet.  That’s what the appellate court says happened to Mr. Morales.  (Mr. Vega-Lara wouldn’t answer defense questions, either.)  The state’s questions to Mr. Vega-Lara provided the only detailed account of the crime that fit the state’s theory of the case.  In addition, it’s not fair to let the state call a witness only to impeach him with prior testimony.

The state thought that Mr. Vega-Lara’s previous testimony was admissible as a prior inconsistent statement under Rule 801(d)(a)(A).  The problem with this thought, however, is that the rule required that Mr. Vega-Lara be subject to cross examination.  Mr. Vega-Lara answered only one question on cross examination.  He wasn’t subject to cross examination.

The appellate court also ruled on the admissibility of some statements that Mr. Morales made to an acquaintance both before and after the murder, as guidance to the trial court on any re-trial.  These statements had been admitted under the statement against interest exception to the hearsay rule; the appellate court affirmed those trial court rulings.

Circumstantial Evidence to Support Conviction of Vehicular Homicide, Leaving the Scene, Insufficient.

State v. Al-Naseer, Minn.S.Ct., 9/16/2010.  This is a criminal vehicular homicide case, leaving the scene of the accident.  Mr. Al-Naseer was driving west on Highway 10 in Clay County when his vehicle gradually crossed the fog line (the one on the right shoulder) and hit Kane Thomson, who was changing a flat tire.  Mr. Al-Naseer also rolled over the flat tire that Mr. Thomson had removed, dragging it down the highway.  Mr. Al-Naseer’s vehicle gradually made its way back onto the road and kept going.  The impact caused considerable damage to the right side of Mr. Al-Naseer’s vehicle.

In an earlier appeal (one of many), the supreme court had held that for a defendant to be found guilty of criminal vehicular homicide (leaving the scene) the state had to prove that the defendant knew that he had been involved in an accident with a person or another vehicle.  State v. Al‑Naseer (Al‑Naseer IV), 734 N.W.2d 679, 688-89 (Minn. 2007). 

Mr. Al-Naseer argued on this appeal that the evidence was insufficient to support his leaving the scene conviction, because evidence to prove the mens rea element was circumstantial and consistent with rational hypotheses other than guilt.  A conviction based on circumstantial evidence is subject to “heightened scrutiny.”  State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004):

This heightened scrutiny requires us to consider “whether the reasonable inferences that can be drawn from the circumstances proved support a rational hypothesis other than guilt.” State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002). In other words, the circumstances proved must “be consistent with the hypothesis that the accused is guilty and inconsistent with any other rational hypothesis except that of guilt.” State v. Bias, 419 N.W.2d 480, 484 (1988).

Last year, a plurality of the court seemed to change the rules for reviewing convictions based on circumstantial evidence, saying that you draw inferences only from the “circumstances proved.”  State v. Andersen, 784 N.W.2d 320 (Minn. 2010).  Here, though, the court of appeals had declined all together to apply any circumstantial evidence standard of review.  The court of appeals thought that this standard only applied when every element required for conviction had been proved entirely by circumstantial evidence.  The supreme court here says, no, we never said that and we aren’t saying that now. 

Applying this circumstantial evidence standard of review to the mens rea element, the supreme court finds the state’s proof lacking; it didn’t prove that Mr. Al-Naseer had actual knowledge that here had been an accident that involved either a person or a vehicle.  The circumstances proved, says the majority, supported both an inference that Mr. Al-Naseer knew he had hit Mr. Thomson and an inference that he had fallen asleep behind the wheel at the time of the accident.  Both inferences being reasonable, the state looses.

Chief Justice Gildea, joined by Justice Dietzen, dissented.  Justice Stras took no part in the decision, not having been on the court at the time or argument.

Juvenile’s Four Interrogations Found to be Voluntarily Made.

State v. Thompson, Minn.S.Ct., 9/16/2010.  A jury convicted Mr. Thompson of two counts of first degree murder and sentenced to two consecutive life sentences without possibility of release.  He complained on appeal about the introduction of certain statements that he made to the police, and to the introduction of computer generated images of the crime scene.  Mr. Thompson was seventeen at the time of the murders.

Police asked Mr. Thompson to come with them to the police station to be interviewed.  He agreed and at the station he made the first of four statements.  The police did not give Mr. Thompson a Miranda warning before this interrogation.  The officers were not in uniform, were driving an unmarked car, used neither weapons nor force.  The officers placed Mr. Thompson in an unlocked room, told him that he was not under arrest and told him that he was free to go at any time.  The appellate court concluded that these factors established that “a reasonable person in [Mr. Thompson’s] position would not have believed that he or she was in custody to a degree associated with arrest.”  State v. Staats, 658 N.W.2d 207, 211 (Minn. 2003).

Mr. Thompson made admissions during this first interrogation so three hours after this first statement the police arrested him.  Because he was a juvenile the officers also allowed him to telephone his mom, who said that she was on the way to the station.  Officers then gave Mr. Thompson a Miranda, warning, after which they asked Mr. Thompson if he would speak with them without his mom.  He commenced talking to the officers, saying that he was present at the time of the murders but that it had been Mr. Flowers who had done the actual killing.  Employing a “totality of the circumstances” analysis, the appellate court concludes that Mr. Thompson voluntarily waived his Miranda rights and voluntarily made the second statement.

Next, the officers let Mr. Thompson talk with his mom and brother, during which Mr. Thompson basically repeated what he’d just said to the cops.  The police recorded this conversation, whether surreptiously the court’s not saying.  The appellate court punts this claimed error, saying that since Mr. Thompson didn’t say anything new its admission was harmless.  Justice Page, with Justice Paul Anderson concurring, would have reached this issue and conclude that it was error to have admitted this conversation.

Finally, some five hours after being detained, without having been fed, the officers took a fourth statement.  This time, mom and brother were present.  Mr. Thompson admitting being present at the murders but he denied any culpability.  The appellate court concluded that this was also a voluntary statement.

The state presented some computer generated images of the crime scene, offered, they said, to help the jury understand the actual crime scenes.  The appellate court said that this was okay.

Prosecutor’s Brief Argument that Victim’s Testimony Need Not Be Corroborated in Order For Jury to Convict is Not Plain Error

State v. Cao, Minn.S.Ct., 9/16/2010.  Krystle Tuma had a little gathering at her place, at which M.G. attended.  M.G.’d been drinking before she arrived and drank quite a bit more once she was there.  She became sick and Ms. Tuma put M.G. to bed upstairs.  An hour and a half later Mr. Cao showed up but then disappeared for a bit, only to be found in bed with M.G., who appeared to be asleep.  M.G. testified that she awoke to find Mr. Cao having sex with her; Mr. Cao said the sex was consensual.  A jury convicted Mr. Cao of third degree criminal sexual conduct.

Mr. Cao complained that the prosecutor’s statement during closing argument that the jury could convict him based on M.G.’s uncorroborated testimony was prejudicial error.  He said that the prosecutor’s statement improperly instructed the jury on the law, a duty exclusively that of the court under Rule 26.03.  The state countered that the rule does not ban prosecutors (or defense attorneys come to that) from making accurate statements of law “congruent with the jury instructions.”  The appellate court punts the question by concluding that the prosecutor’s remark was not “tantamount to a jury instruction.”  By that the appellate court meant that the statement was only a “springboard for a discussion on the strength of the corroborative evidence in the case.” 

The appellate court does warn litigants that in a different case it might hold that telling a jury that a victim’s testimony need not be corroborated is error.  This is because the rule of corroboration is an evidentiary rule and not a burden of persuasion standard.  An argument from a prosecutor that overly emphasizes the rule that a victim’s testimony does not need to be corroborated could end up shifting the burden of proof.

Medical Examiner’s Testimony About an Element of the Offense Is Assumed to be Error but Harmless.

State v. Sontoya, Minn.S.Ct., 9/16/2010.  A jury convicted Mr. Sontoya of first degree murder while committing first degree criminal sexual conduct.  Injuries to the victim were pervasive and included a fourteen inch laceration through the vaginal wall into the pelvic area and the abdominal cavity.  Mr. Sontoya’s defense was that the sex was consensual and the victim’s injuries and death were accidental.

The Ramsey County Medical Examiner testified that the manner of death was “Exsanguination due to multiple traumatic injuries due to a sexual assault.”  [Emphasis added.]  The state followed up this pronouncement by asking if the ME was saying that the victim bled to death from the sexual assault; the doc said, yes.  In closing argument, the state thrice repeated the ME’s assertion about the sexual assault.

Defense counsel didn’t object to the ME’s testimony about an element of the offense, sexual assault, so on appeal, this testimony gets reviewed under plain error.  The appellate court punts the question whether admitting this assertion was error, plain or otherwise, and assumes that it was.  This allowed the appellate court to move right into a lurid elucidation of the injuries to the victim from which it could conclude that any error had no significant effect on the jury’s verdict.

Justices Paul H. Anderson and Page concurred in the result but took the majority to task for ducking the error question, the admission of the ME’s testimony about an element of the offense.  It’s worth quoting at some length from Justice Anderson’s concurrence:

At Sontoya’s trial, the last witness called by the State was the Ramsey County Medical Examiner who examined G.R.’s body at the crime scene and conducted the autopsy. During direct examination, the medical examiner testified that the cause of G.R.’s death was “exsanguinations due to multiple traumatic injuries due to a sexual assault.” The State followed this answer with a question about whether G.R. “bled to death from the sexual assault” and, in his answer, the medical examiner confirmed that she had. The medical examiner then testified that the manner of death was “homicide.” The State continued to question the medical examiner as to whether he could determine G.R.’s time of death due to the “sexual assault.” During this questioning, the medical examiner testified that the contusions on G.R.’s arms were “fingerprint injuries” which occur when someone is grabbed “during the course of an assault.” Finally, the State used the medical examiner’s expert testimony in its closing argument when it made the following assertions:

As I said, we know that G.R. died a horrific death. She bled to death from a sexual assault, as the medical examiner has testified.

The medical examiner testified that G.R. died as a result of bleeding to death from a sexual assault. That, Ladies and Gentlemen, is Murder in the First Degree.

The medical examiner told you that she died from a sexual assault that caused her to bleed to death.

(Emphasis added.)

Justice Anderson reminds the majority that way back in 1982 the court  had said that admission of a physician’s opinion that a rape or a sexual assault had occurred constituted error.  State v. Saldana, 324 N.W.2d 227 (Minn. 1982).  So, deciding the error question wasn’t really all that hard to do.  If they needed a reminder, just five years ago, the court had said that admission of the testimony from a treating physician that a victim’s injuries met the definition of “great bodily harm,” an element of the offense, was improper and inadmissible.  Finally, Justice Anderson summarized the proper scope of a ME’s testimony in a murder case:

A pathologist may appropriately testify to things such as the number and extent of the wounds, the amount of bleeding, whether the wounds were caused by a knife or a blunt instrument, whether a gunshot wound is a contact wound, whether the wounds could or could not have been the result of accident, the cause of death, and so forth, but the pathologist should not be allowed to make an “expert inference” of intent to kill from these matters. That is for the jury to do.

State v. Chambers, 507 N.W.2d 237, 238 (Minn. 1993).  Justices Anderson and Page conclude by saying that this is one of those outlier cases where the error did, indeed, fail to affect Mr. Sontoya’s substantial rights.

No Aiding an Offender Defense Under Facts of This Case; Defendant Not In Custody During First Interrogation.

State v. Flowers, Minn.S.Ct., A09-1359, 9/16/2010.  A jury convicted 16 year old Mr. Flowers of the first degree premeditated murder of Katricia Daniels and her 10 year old son.  Daniels’ cell phone recorded a call to Tiffany Simmons, who told police that she had dropped Mr. Flowers and another guy, Mr. Thompson, off at the Daniels’ residence on the night of the homicides.  Ms. Simmons arranged for police officers to meet with Mr. Flowers, among others; Mr. Flowers agreed to go down to the police station to chat.  Mr. Flowers admitted being at the Daniels’ residence but said that Ms. Daniels was fine when he left.

Officers left Ms. Simmons and Mr. Flowers to stew in separate interview rooms,during which they learned that Ms. Simmons had admitted to her roommate that she knew about the murders.  When the officers went back and asked her about this she admitted picking up Mr. Flowers and his buddy near the Daniels’ residence and that Mr. Flowers’ buddy’s clothes were covered with blood.  That was enough for the police to arrest Mr. Flowers and his buddy.  The cops also interviewed Mr. Flowers a second time: 

During this interview, Flowers stated that he did not kill either Daniels or Shepard, but admitted that Thompson killed Daniels because he wanted her car, or “wanted somethin” and killed Shepard so that there would be no witnesses to his actions. Flowers explained that Thompson first hit Daniels with a golf club, and then stabbed her, and at some point Daniels tried to lock herself in the bathroom. He also explained that Thompson hit Shepard with a TV, knocking him out, and then stabbed him. Flowers said, “I was trying to keep Rob in there, keep Rob in his room. Because Rob was in the room and I (inaudible) stay here because I didn’t want him to see his mom.”

Flowers claimed that he asked Thompson to stop and that he tried to grab Thompson, but Thompson “pushed [him] off.” He also claimed that “I was just (inaudible) to get out of there (inaudible); I didn’t want any part (inaudible).” Flowers admitted that before Shepard was attacked, he took Daniels’s cellular telephone from her bedroom when told to do so by Thompson and later threw the telephone in an alley garbage can. Flowers explained that while standing in the alley after he and Thompson left Daniel’s home, Thompson yelled at him because Flowers “didn’t do anything.”

Mr. Flowers complained on appeal that his Fifth Amendment rights were violated by the admission of the first police interview.  The appellate court said that whether someone is in custody is a mixed question of law and fact.  That is, the trial court’s factual determinations are reviewed for clear error but the question whether those facts support the legal conclusion that the person was in custody is reviewed independently.  The legal test is:

whether a reasonable person in the individual’s situation would have understood that he was in custody. State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998). If the police have not yet formally arrested the individual, a court must examine all of the surrounding circumstances and evaluate whether a reasonable person in the individual’s position would believe he was restrained to a degree associated with a formal arrest.

The appellate court has a list of factors that it considers to decide the custody question:  where the interrogation took place;whether the officers told the person that he was a prime suspect, whether officers retrained in person’s freedom, whether the person made an incriminating statement, whether there were multiple officers present, and whether any of the officers used a gun.  State v. Staats, 658 N.W.2d 207, 211 (Minn. 2003).  Mr. Flowers suggested two additional factors: that the interview was recorded, and that he was not allowed to make telephone calls.  The appellate court said that the consider the recording as indicative of being in custody would discourage that recording so it would not add that factor to its list.  On the telephone calls, Mr. Flowers never actually requested to make a phone call so the cops didn’t prevent him from phoning home.  Ultimately, the court says that it’s a “close call” but it tips to a no custody conclusion.

Mr. Flowers wanted the trial court to instruct the jury on aiding an offender after the fact, but the trial court declined to do so.  Mr. Flowers said that the deprived him of the right to present a defense.  The first question, however, is whether aiding an offender after the fact is a defense.  Mr. Flowers said that it was, citing States v. Brown, 33 F.3d 1002 (8th Cir. 1994).  Brown picked up some duffle bags that were stuffed with money taken in a bank robbery; he said he had nothing to do with the robbery but that he had only been hired to pick up the loot.  Mr. Brown, on those facts, convinced the Eighth Circuit, that he could not be an accomplice after the fact if he were guilty of the aided offense; you can’t assist yourself.  Because his defense was inconsistent with that of the state, Mr. Brown was entitled to the instruction.

Not so here, or so said the appellate court.  The state’s theory was that both Mr. Thompson and Mr. Flowers participated in the murders; that each may have aided the other did not create the “defense” of aiding an offender after the fact.  The appellate court leaves to another day/set of facts to decide whether to adopt Brown.

A “Waiver” of Error is Different from Abandonment of Asserting a Known Error For Purposes of Appellate Review

State v. Mohomoud, Minn.Ct.App., 9/14/2010.  An officer stopped Mr. Mohomoud for speeding, which deteriorated into a no license/ felony DUI charge, second degree test refusal. 

Mr. Mohomoud stipulated to his prior impaired driving offenses.  Nonetheless, the state wanted to play for the jury a video recording of the implied consent advisory, which included Mr. Mohomoud’s admission to the aforesaid stipulated prior impaired driving offenses.  Defense counsel did not object to the admission of this video recording despite the aforesaid stipulated prior impaired driving offenses.  So, has defense counsel failed to object to the introduction of this recording – a forfeiture of error; or, has defense counsel intentionally given up his client’s right to keep this evidence out the hearing of the jury – a waiver of error?

Here, defense counsel said that he knew exactly what the prosecutor was talking about when the video recording was offered, including that it included references to the aforesaid stipulated prior impairing driving offenses.  It was not a case, therefore, where defense counsel didn’t know that he could or should object; he knew damn well he could/should object but chose not to do so.  Counsel thus waived his client’s right to have the evidence of his prior impaired driving offenses excluded from the jury’s ears.  Having acceded to the admissibility of this recording, Mr. Mohomoud can’t now complain to the appellate court about it.  The appellate court does note that whether this right can actually be waived and, if so, just how to do it – by counsel or personally by defendant – is not before it; the court is mum, therefore, on these more intriguing questions.

Mr. Mohomoud also complained that the trial court misstated the law of probable cause in its jury instruction on the same, CRIMJIG 29.28.  The court of appeals recently ruled on this instruction in State v. Koppi, 779 N.W.2d 562, 566 (Minn. App. 2010), review granted (May 18, 2010).   The JIG leaves out the part that the officer’s probable cause belief be explainable by reference to objective facts and circumstances.  As in Koppi, however, any error in the instructions here was also harmless.

No Error in Denying Defense Continuance Request in Order to Obtain DNA Testing.

State v. Robert Larson, Minn.S.Ct., 9/2/2010.  The state charged Mr. Larson with first degree murder.  The state alleged that Robert utilized “zip strips” to choke Thomas John Cady to death because Mr. Cady had abused his sister, Jamie Larson, or so everyone believed.  You can read about Jamie’s predicament here.

Shortly before trial commenced officers obtained DNA exemplars from three potential suspects; they did so because there was an unknown male DNA profile on two cigarette butts in Mr. Cady’s vehicle ashtray and on a jacket found at the intersection near the murder scene.  Before DNA testing could be done, however, an officer concluded that the cigarette butts and the jacket belonged to one of these three potential suspects and so the DNA was “almost certainly” that person’s DNA. 

Mr. Larson, being the suspicious type, wanted to put science to the test and get the DNA testing anyway so he asked for a continuance.  The trial court denied the request and the appellate court upholds that denial.  Mr. Larson could not show that the explanation of the provenance of the cigs and jacket was unreasonable so he could not show that the DNA testing would have materially affected the trial.  (Of course, the only way to have shown that would have been to get the DNA testing.  Go figure.)

Mr. Larson, as did his sister, sought to set up a third party perpetrator defense.  On cross examination of one of three potential third party suspects defense counsel asked when the police had taken a DNA exemplar from him, to suggest, the appellate court surmises, that the police had not been thorough in their investigation.  In response, the state asked this potential suspect if he had voluntarily provided a DNA exemplar.  The appellate court said two things:  first, the defense “opened the door” to questions about obtaining DNA; and second, that the potential suspect volunteered his DNA was potentially exculpatory, something the state is allowed to present to rehab a potential third party perpetrator.  State v. Jones, 753 N.W.2d 677 (Minn. 2008).  Justices Page and Paul Anderson thought that telling the jury that the DNA exemplars were obtained voluntarily had been error, but harmless.

The appellate court did say, as it has previously, that the state can’t tell the jury that a defendant had refused to submit a DNA exemplar.  See Jones.

In a companion argument to Jamie’s complaint about authentication of transcripts of police interviews of witnesses, the appellate court ducks answering the question whether the trial court commits error by declining to order the police to authenticate the transcripts. 

A Murder Victim’s Threats to a Third Person Do Not Authorize Third Party Perpetrator Evidence.

State v. Jamie Larson, Minn.S.Ct., 9/2/2010.  The state charged Ms. Larson with aiding and abetting first degree murder.  Her brother, Robert, utilized “zip stips” to choke Thomas John Cady to death because Mr. Cady had abused Ms. Larson, or so everyone believed.  Ms. Larson drove Mr. Cady’s truck to the eventual murder site, as Mr. Cady lay sleeping off the effects of too many street drugs.  You can read about Robert’s appeal here.

Ms. Larson wanted to introduce third party perpetrator evidence which consisted of the following:

(1)  Mr. Cady had burglarized B.E.’s house and threatened to kill B.E. when B.E. confronted him about it.

(2)  Mr. Cady had found Ms. Larson and J.H. in a compromising position, which prompted Mr. Cady to threaten J.H. and his children too; which, in turn, prompted J.H. to threaten to kill Mr. Cady.

For third party perpetrator evidence to be admissible, there must be evidence that has an inherent tendency to connect a proposed third party perpetrator with the commission of the charged offense.  State v. Atkinson, 774 N.W.2d 584 (Minn. 2009).  A threat by the murder victim, however, lacks that inherent tendency so to connect.  Even more problematic for Ms. Larson, she could offer no evidence whatsoever to put either B.E. or J.H. anywhere near the murder scene.

Ms. Larson also complained that the jury should have known that a key witness for the state was in removal proceedings, was an illegal immigrant, and was not charged with either a drug or fraud offense for stuff police found in his hotel room.  However, there was no evidence that this witness had received any consideration from the government for his testimony so there was no impeachment value to this information.

Ms. Larson tried to introduce transcripts of law enforcement interviews, which her counsel had prepared from the audio recordings that the state had provided.  She wanted either to introduce the transcripts as substantive evidence or to use them to impeach the witness that had been interviewed.  The defense neither showed the transcripts to the officers nor called those officers to authenticate the transcripts.

No one seems to have heard of State v. Graham, 764 N.W.2d 340 (Minn. 2009), which initially puts the burden on the state to prepare transcripts of audio recordings that its agents have generated.  Alternatively, a defense generated transcript should be provided to the state for verification and if they won’t do it, then the court steps in to order appropriate relief.  Here, Ms. Larson made no effort to authenticate the transcript, Rule 901(a), so the trial court correctly declined to admit them as substantive evidence.  Any error in prohibiting the transcript’s use for impeachment was harmless.

Finally, Ms. Larson complained about several of the court’s jury instructions but the appellate court found these complaints either to be not preserved or without merit.

Double Jeopardy Claim Deemed Waived as a Matter of State Law.

State v. Jeffries, Minn.Ct.App., 8/31/10.  The state charged Mr. Jeffries with felony domestic assault, then gave notice of its intent to seek to impose upon him an upward sentencing departure for being a career offender.  Mr. Jeffries then decided to plead guilty under a deal that called for an upward, but stayed sentencing departure.  The trial court not only accepted the plea, it pronounced Mr. Jefferies “convicted of that.”

And then changed his mind.  Mr. Jeffries showed up for sentencing, only to hear the judge say that he was rejecting the plea agreement.  The judge, trying to be magnanimous, said to Mr. Jeffries “I’m giving you your pleas back.  So you’re not guilty.”  Mr. Jefferies then renegotiated a guilty plea, one that sent him to prison for five years. 

Feeling like something was just not right, Mr. Jeffries appealed.  On appeal, Mr. Jeffries argued that by accepting his first guilty plea jeopardy attached so that the second plea was a violation of the prohibition against double jeopardy.  The appellate court wanders around in the desert for a while on whether this could possibly be the law, generally going in the direction that it wasn’t.  Fortunately, there was an easier out:  defense counsel never raised the double jeopardy claim, so it’s waived.

But, hold on.  Didn’t the Minnesota Supreme Court, relying on the U.S. Supreme Court, say that a guilty plea, by itself, does not waive a claim of double jeopardy that can be “judged on its face”?  Yes, it did.  State v. Jenson, 312 N.W.2d 673 (Minn. 1981).  But, then there’s Danforth v. Minnesota, 128 S.Ct. 1029 (2008), which says that answers to some seemingly federal questions are not binding on the states after all.  Looking at state law, double jeopardy is an affirmative defense.  Minn.R.Crim.P. 14.01(d).  Mr. Jeffries said nothing to the trial court about double jeopardy so his second guilty plea waived that claim.

Mr. Jeffries has petitioned for further review.

Driving on Expired Tabs Is Still a Crime, Even Within the Ten Day Grace Period to Affix Them.

State v. Carter, Minn.Ct.App., 8/31/10.  On November 5, 2006, a deputy sheriff stopped Mr. Carter’s car for expired registration.  Now, this was not a case where Mr. Carter had bought the tabs but just hadn’t got around to cleaning all the gunk off his plates so that he could figure that the tabs would adhere to the plates.  No, the tabs were expired.  Mr. Carter complained, nonetheless, that his failure to display current tabs was not a violation of law because the fifth day of the month was within the ten day statutory grace period in Minn.Stat. 168.09, subd. 4.  If that’s true, then the deputy didn’t have probable cause to have stopped him.  Here’s what this statute says:

[A registered vehicle must display the] “insignia issued within ten days of the first day of the month which commences the registration period.”

There’s another statue (there’s always another statue), Minn.Stat. 168.017, subd. 2, which says that passenger cars have to be registered “according to the monthly series system of registration prescribed by this section.”  The trial court concluded that operating a car with expired tabs is a crime, even within the ten day grace period allowed to displaying said tabs.  The appellate court adopts this interpretation of these statutes:

A vehicle must be validly registered to be operated, and registration is only valid for 12 months. The legislature granted vehicle owners ten additional days to place the new registration tabs on their license plates; but the legislature did not provide for an additional ten days for vehicle registration. And we decline to read such a provision into the statute.

Under “Plain Error” Test, Admission of Two Out of Court Statements Did Not Violate Crawford; Court Ducks Challenge to Admissibility of Fingerprint Evidence.

State v. Hull, Minn.S.Ct., 9/9/10.  Lewis Wilczek went missing after a family barbeque.  Six days later, police found his body buried in a gravel pit.  A grand jury indicted Mr. Hull for Mr. Wilczek’s murder, and a jury convicted him.  Mr. Hull did not deny killing Mr. Wilczek; rather, he argued that he had acted with neither premeditation nor intent.

On appeal, Mr. Hull complained that the admission of two out of court statements made by Mr. Wilczek to third parties violated his confrontation rights.  In one such statement, J.B., a friend of Mr. Wilczek’s said that Mr. Wilczek told him that he was meeting Mr. Hull and that if he wasn’t back by a certain time “somethin’ was probably wrong.” 

Mr. Hull did not raise the confrontation claim at trial and so on appeal, “plain error” is the standard of review.  Under that standard the appellate court handily concludes that this statement was of the “casual remark to an acquaintance” kind and not a “formal statement” to a police officer.  It was thus not testimonial.  Moreover, it was not hearsay because it was admitted to explain J.B.’s efforts to find Mr. Wilczek the next day.

The second out of court statement was to a police officer at least.  Mr. Wilczek called the police to report the theft of cash and checks from his business.  Mr. Wilczek offered the name of a suspect but it was not Mr. Hull; the problem was, defense counsel elicited the information on cross examination that Mr. Hull’s name “came up” during the report.  Now, naming Mr. Hull as a possible suspect clearly was to assist the cops in the investigation so that’s “testimonial” evidence.  The question was, though, who started this name calling anyway?

The appellate court rejects the state’s contention that Mr. Hull had “opened the door” to the officer’s statement about Mr. Hull’s name coming up.  The appellate court said, wait a minute:  that the state had started it because there was no other reason to offer evidence of the theft except to dirty up Mr. Hull.  (Chief Justice Gildea and Justice Dietzen concluded that Mr. Hull did “open the door” and thus waived the Confrontation Clause right, relying on a Tenth Circuit opinion, United States v. Lopez-Medina, 596 F.3d 715 (10th Cir. 2010).  Cf., United States v. Cromer, 389 F.3d 662 (6th Cir. 2004).]  In any event, whoever started it, admitting this testimony was not plain error.

In a pretrial hearing, Mr. Hull moved to exclude fingerprint and handwriting evidence.  The trial court held a hearing, limited to whether the procedures that had been followed in this case complied with appropriate standards and controls.  A majority agreed in principal that lengthy use of a method by law enforcement and unquestioning acceptance by courts does not by itself exempt expert testimony from scrutiny under the first prong of the Fry-Mack test, whether the test has been generally accepted as scientifically reliable.  At the same time, the appellate court declined to send the case back to the trial court for a full blown, anything goes, Fry-Mack hearing.  Instead, the appellate court ducks the issue, concluding that if they could figure out that there was error it was harmless. 

Admission of Questions that Inescapably Imply a Non-testifying Witness’s Answers Violate Crawford.

State v. Swaney, Minn.S.Ct., 8/26/10.  Back in May, 2001, Carrie Nelson worked at Blue Mounds State Park at the park entrance where you get your visitor’s pass.  A coworker found her dead body behind the service counter; there were signs of a struggle and there was a rather large sum of cash also missing.  When DNA testing proved inconclusive the case went cold for about five years.  New DNA testing at that point suggested the presence of both Mr. & Mrs. Swaney in the park station.  Investigators also turned up both finger and palm prints of Mr. Swaney from inside the park entrance station.

During this renewed investigation, Mr. Swaney was in prison out in South Dakota.  Although Mrs. Swaney had a solid alibi, Investigators interviewed her just the same, during which they asked her about a watch and a cigarette box from a particular brand of cigarettes that had been found at the park entrance station.  Mr. Swaney asserted marital privilege and so his wife did not testify.  The state offered evidence of the questions that were asked of Mrs. Swaney, some of which implied her answers.  Here’s a good example, which focuses on the cigarette box:

Russell: I asked her if that’s what he liked, referring to the cigarettes [in the photograph].

. . . .

State: What was the next question you asked Mrs. Swaney after your question, That’s what he liked?

Russell: I asked her if she would buy cartons of those types of cigarettes.

See how this works?  Mr. Swaney consistently objected that because many of the questions implied Mrs. Swaney’s answers the questions were hearsay, admitted in violation of Mr. Swaney’s confrontation rights.  The appellate court concludes that some of the questions were exactly that, saying that testimony “that inescapably implies a non-testifying witness’s testimonial hearsay statement” violates the Confrontation Clause.  Alas, though, the admission of the evidence was harmless beyond a reasonable doubt.

Mr. Swaney presented evidence that a third party may have committed the murder; he also wanted to introduce evidence of a prior bad act – reverse Spreigl - (a kidnap and robbery) by this alternative perpetrator.  The appellate court upholds the exclusion of this evidence, offered to prove identity, saying that the other crimes were not sufficiently similar enough to the current crime in terms of time, place or modus operandi to have been admitted.  The appellate court said that the other kidnap had been for the purpose of facilitating an escape from prison whereas the kidnap here was to facilitate a robbery.  Although each crime involved the use of a weapon, the weapon in the other crime was used only to threaten the victim whereas here it was used to kill.  Lastly, because the other crime occurred some ninety miles from the state park, either time nor location are sufficiently similar. 

So, take this very parsimonious view of Spreigl evidence with you the next time the state wants to introduce Spreigl evidence.

There were some other legal issues raised, but these were the main ones.

Pants on the Ground

State v. Wiggins, Minn.Ct.App., 9/14/10.  The state charged Mr. Wiggins with possession of a firearm by an ineligible person.  Mr. Wiggins was hanging with two of his homies in the parking lot of the White Castle.  None of the three was actually eating White Castle food, which you would think was a good thing.  Officer Kara Breci, however, thought that this was highly suspicious so she and her partner approached the car.  As they did so, one of the occupants dropped a plastic bag to the floor; when asked what the bag contained, he replied, “some weed.”  That was enough for the officers to order all three out of the car, and to order Mr. Wiggins to raise his hands above his head.  When he did so his pants fell to his knees.

Officer Breci was intending to frisk Mr. Wiggins.  Being either good natured or squeamish, one supposes, Officer Breci decided first to pull Mr. Wiggins’ pants back up; in doing so, she felt something heavy in one of the pockets, which turned out to be a firearm.  Mr. Wiggins complained that the officers lacked reasonable suspicion to have seized the car and its occupants, and that hoisting up his pants was an unconstitutional frisk.  The trial court denied the motion. 

Here’s how the appellate court described the issue:

This case requires us to determine the constitutionality of a novel police procedure which, as far as we can tell, has never been reviewed on appeal by this court or any other. An officer investigating a suspected drug deal directed appellant Frank Wiggins from a car, ordered him to raise his hands high overhead, and then discovered a handgun in his pocket when she hoisted up his sagging pants that had dropped to hang around his knees. Wiggins appeals from his conviction of possession of a firearm by an ineligible person. We must decide whether the unique wardrobe assist was a search subject to constitutional regulation and, if not, whether it was the kind of seizure-related contact otherwise prohibited by the Fourth Amendment.

On appeal, Mr. Wiggins conceded that the officers lawfully approached the parked car and looked inside; and that on seeing the weed they could order the three occupants out to search the car.  The appellate court, at the same time, conceded that the officers seized Mr. Wiggins when they ordered him out of the car, although they did so lawfully.  That left the search and the frisk. 

Mr. Wiggins continued to complain that the officer had no reasonable, articulable suspicion to have “frisked” him, if, indeed, that’s what the officer did when she hoisted up Mr. Wiggins pants.  The trial court had concluded that there was neither a search nor a frisk at all when the officer hoisted up Mr. Wiggins pants and found the gun.  Rather, it was “an accidental finding of a gun as she’s trying to help him get his pants into a decent position.”  The appellate court agrees with this description, saying in a clearly tongue in cheek attitude that “[It] fits,” (apparently unlike Mr. Wiggins’ pants).  The appellate court feels compelled to elaborate just a bit:

… Wiggins was standing in a public parking lot on a busy St. Paul street with his hands high in the air and his pants drooping at his knees. Even assuming that Wiggins intended his pants to sag somewhat, the district court aptly construed the knee-level positioning as “extreme.”

The appellate court winds up with this admonition to anyone who might be thinking of making his or her own “fashion statement” in the name of the law:

Wiggins argues that affirming the district court would encourage officers to trample the privacy of young people who participate in the baggy-pants fashion trend. The concern is unwarranted. Our holding arises from the unique facts here. … [W]e are confident that our opinion will not be misconstrued to suggest that an officer can freely meddle with a person’s clothes to the refrain, “Pants on the ground, pants on the ground” under the guise of providing public assistance.

In the spirit of public assistance, if you’d like to see the lyrics to “Pants on the Ground,” go here.

No Batson Error; Trial Court Need Not Use A Zero Criminal History Score When Sentencing a Felony Consecutively to a Gross Misdemeanor.

State v. Rivers, Minn.Ct.App., 8/17/10.  Mr. Rivers requested and received a continuance on his girlfriend’s order for protection application, apparently so that right after court he could go over to the girlfriend’s apartment and assault her as she was holding their one year old daughter.  The state charged him with two counts of first degree burglary, felony domestic assault, violation of an order for protection, assault in the third degree and gross misdemeanor child endangerment.

Mr. Rivers is Black; the prosecutor struck the one and only minority member of the jury pool, which Mr. Rivers challenged under Batson v. Kentucky, 476 U.S. 79 (1986).  Minnesota has long held that it will reverse the trial court’s determination of a Batson challenge only if that determination is clearly erroneous.  State v. Pendleton, 725 N.W.2d 717 (Minn. 2007).  If memory serves, Minnesota appellate courts have reversed maybe one or two of uncountable Batson errors presented to them.  Suffice it to say that once again the appellate court upholds the trial court’s determination that the prosecutor’s strike did not violate  Batson.

The other issue in the case is a sentencing issue.  The jury convicted Mr. Rivers of everything, including the gross misdemeanor.  Without explanation, the trial court sentenced Mr. Rivers first on the gross misdemeanor, then on the felony first degree burglary.  The trial court sentenced Mr. Rivers to a consecutive sentence on the felony burglary at the criminal history box of two.  Mr. Rivers complained that the trial court should have used a criminal history score of zero, because that’s the rule for sentencing permissive consecutive felony sentences.  The appellate court rejects this argument.

First problem is that the Guidelines don’t care how the trial court sentences gross misdemeanors; they only care about felony sentences so the Guidelines don’t apply.  Second problem, even if somehow the Guidelines did apply, they don’t authorize permissive consecutive sentences for crimes against separate victims;  all of those rules are from case law.  Because the Guidelines don’t apply, then the trial court could not have abused its discretion by failing to follow the Guidelines rule to use a zero history score when sentencing permissively!

Mr. Rivers has filed for discretionary review in the Supreme Court.

No Abuse of Discretion By Removing a Juror, Whose First Language Is Not English, Who Stated After Trial Commenced That She Could Not Understand Everything Being Said.

State v. Berrios, Minn.Ct.App., 8/24/10.  The state charged Mr. Berrios with third degree criminal sexual conduct.  On the second day of the trial, a juror asked if she could be provided with a Spanish interpreter for the remainder of the trial.  She explained that she understood English and was able to understand the witnesses who had testified on the first day of the trial with the exception of “certain unspecified, large words, and certain unspecified sentences. 

The ability to communicate in the English language is one of several qualifications for jury service.  Minn.R.Gen.Pract. 808(b)(4).  (Curiously, a juror with what the rules call “a sensory disability) is entitled to the services of an interpreter during trial and deliberations.)  The criminal rules require that a juror who becomes unable or disqualified to perform her duties be replaced.  Minn.R.Crim.P. 26.02, subd. 9.  The trial court’s determination to remove a juror is a discretionary call so the appellate court upholds that decision.

For the first time on appeal, Mr. Berrios argued that the juror’s removal raised the inference of racial discrimination.  Minn.Stat. 593.32, subd. 1 prohibits the exclusion of a citizen from jury service on account of race, color or national origin, among other attributes.  The appellate court refused to address this argument, saying that Mr. Berrios had forfeited it by not raising it with the district court.

In a Sentencing Appeal the State Can Challenge the Trial Court’s Alleged Interference With Plea Negotiations.

State v. Hannibal, Minn.Ct.App., 7/27/10.  This is a sentencing appeal following protracted plea negotiations in which the state complained that the judge had his thumb on the scales.  Mr. Hannibal twice rejected the state’s offer of a presumptive executed sentence, instead holding out for a stayed sentence.  Eventually, Mr. Hannibal plead guilty straight up; the state asked for an upward departure and Mr. Hannibal asked for a downward dispositional departure.  The trial court granted Mr. Hannibal’s wish for a stayed sentence.

Rule 28.04 authorizes a prosecutor to appeal as of right in felony cases from any sentence imposed or stayed by the district court.  The rules go on to say that the appellate court may review “whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the sentencing court.”  Here, the appellate court concludes that the state’s claim that the trial court impermissibly injected itself into the plea negotiations by promising Mr. Hannibal a stayed sentence in exchange for his guilty plea would, if true, constitute an “inappropriate” sentence reviewable under the rules.

The state argued that the trial court had commented in an off the record discussion with counsel that he believed that Mr. Hannibal was amenable to probation.  This amounted to a promise of probation, said the state.  The appellate court disagrees, looking primarily to the plea petition, which did not indicate any agreement between Mr. Hannibal and the trial court.  During the sentencing hearing, neither Mr. Hannibal nor the trial court referred to any promise of a probation sentence; rather, the trial court heard everyone out and then ruled.  The record did not establish that the trial court “directly and unequivocally promised [Mr. Hannibal] a particular sentence in advance.”  State v. Anyanwu, 681 N.W.2d 411 (Minn. App. 2004).