Sua Sponte Mistrial by Trial Court, Over Defense Objection That There was No Manifest Necessity, Results in Dismissal.

Minnesota v. Roeschelein, Minn.Ct.App., 12/29/2009.  The state charged Mr. Roeschelein with two counts of fourth degree driving while impaired; Mr. Roeschelein waived a jury trial.  He also stipulated that:

there was probable cause for appellant’s arrest; “[appellant] was in physical control”; and appellant’s conduct occurred in Kanabec County on or about the date of the charge.

Mr. Roeschelein challenged the statute that permits admission of the breath test results through the officer who administered it, and challenged the admission of a report from the BCI having to do with the operation of the breath-test equipment without the testimony of the preparer of the report.  The state put the cop on who had arrested Mr. Roeschelein and then administered both the implied consent advisory and the breath test.  After that, Mr. Roeschelein moved for a judgment of acquittal, saying that the state had failed to prove that the breath test result was produced within two hours of the time when he was in physical control of the car.  Mr. Roeschelein pointed out, too coyly by half, that he had only stipulated that he was in physical control, not when he was in physical control.

The trial court, un-amused, declared a mistrial and shipped the parties off to another judge for a redo.  Mr. Roeschelein objected to the mistrial, saying that there was no manifest necessity for it.  When everybody showed up in front of the new judge Mr. Roeschelein then moved to dismiss on double jeopardy grounds.

An appellate court reviews a trial court’s sua sponte mistrial declaration, made without a defendant’s consent under an abuse of discretion standard.  State v. Gouleed, 720 N.W.2d 794, 800 (Minn. 2006).  Here, the appellate court decides that because the trial court did not adequately consider less drastic measures, like permitting the state to reopen its case to plug the hole in its evidence, the trial court abused its discretion.  This abuse of discretion also means that the trial court erred in denying Mr. Roeschelein motion to dismiss on double jeopardy grounds.

It’s Okay to Sentence Both For Unlawful Sale of Ecstasy & Doing So Without a Tax Stamp

State v. Bauer, Minn.Ct.App., 12/29/2009.  The Paul Bunyan Drug Task Force bankrolled a thrift shop up around Warroad, Minnesota, and installed confidential informant to run it.  In addition to $2K a month for expenses, Paul offered a bounty of up to $100.00 for each controlled buy that the CI made at the thrift shop.  The CI hired Mr. Bauer’s mom as a part time store clerk.  In turn, Mom introduced the CI to her son, Mr. Bauer, who commenced to sell marijuana to the CI.  Mr. Bauer also sold some ecstasy to the CI.  All together, Mr. Bauer sold marijuana to the CI on two different dates, and he sold ecstasy to the CI on one separate date.

For each of the sales the state charged Mr. Bauer with an appropriate drug count. The state also charged him with distribution of ecstasy without a tax stamp, and with conspiracy to sell marijuana.  A jury convicted him on all of these counts.  The trial court imposed sentence on all but the conspiracy count.

Mr. Bauer argued that he had been entrapped, both at trial and on appeal.  Both the jury and the appellate court rejected this argument.  On appeal, Mr. Bauer also argued that Paul’s operation of the thrift store as a ruse by which to conduct a drug emporium was so outrageous so to violate due process.  This is an argument that recently got some favorable play recently (and from the same appellate judge writing here) in the investigation of prostitution.  Here, though, the appellate court declines to entertain the issue because it had not been presented to the trial court.

Mr. Bauer made numerous prosecutorial misconduct arguments to the appellate court.  Among them, he complained that this statement, in italics, was improper:

That’s not entrapment. That’s exactly what happens in each and every undercover case. That’s what Special Agent Woolever had been doing for 17 years. If it wasn’t allowed, he and a lot of other people would be out of jobs and drug dealers would have free [rein].

The appellate court agreed that the statement was improper, but because there was no objection to it under plain error there was no prejudice.  Mr. Bauer also complained of two instances in which the prosecutor injected her own opinion of how videos of the thrift store sales demonstrated Mr. Bauer’s guilt:

[L]ook at the defendant’s demeanor in the videos of these transactions. He doesn’t look a bit uncomfortable. It’s very relaxed and laid back, despite his testimony that he was weary. He was uneasy. That’s what he told you yesterday. I don’t know about you, but if I’m uneasy, I avoid the situation. I don’t go back voluntarily on several occasions.

…

Is it reasonable to believe that the defendant went and told Special Agent Newhouse, after he was arrested on October 23rd, 2006 that he thought he had been set up? I listened to hundreds of statements. . . . Most people who believe they’ve been set up are very eager to tell the police that they think they’ve been set up. They don’t wait to be asked, and officers don’t generally ask people “oh, by the way, do you think you were set up on this deal?”

Although the portions in italics were plainly erroneous, again, the appellate court concluded that there was no prejudice to Mr. Bauer.  Finally, the appellate court found plain error in two instances of the prosecutor’s closing argument when she asked the jurors to use answers that they had supplied during voir dire to determine Mr. Bauer’s credibility.

Lastly, Mr. Bauer complained about the sentence for both the sale of ecstasy and sale of ecstasy without a tax stamp.  The appellate court first concludes that both of these offenses are intentional offenses and so the test whether they arise out of a single behavioral incident is whether the conduct “(1) shares a unity of time and place and (2) was motivated by an effort to obtain a single criminal objective. State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000); State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).”  The appellate court concludes that the two offenses share a unity of time but they had different motives – selling drugs and evading taxes - so the two sentences are okay.

Trial Judge’s Pre-Hearing Coaching of Prosecutor Requires Recusal

State v. Schlienz, Minn.S.Ct., 11/05/2009.  The state charged Mr. Schlienz with various sex offenses for his “involvement” with two fifteen year old girls and one seventeen year old girl.  Mr. Schlienz eventually entered Alford pleas to various of those counts but at sentencing moved to withdraw those pleas.  The trial court denied the motion.

Before hearing the motion, however, the trial judge did some coaching with the prosecutor, with the presence of defense counsel.  The trial judge had one of those crib sessions recorded.  Here’s a tidbit:

one of the things I don’t want us to get into, uh, or at least to – to be blind-sided, is when I turn to the prosecutor, and ask, “Do you claim any prejudice,” to say, “Gee, Judge I haven’t thought about that.” Wanted to put ya on notice, and I’ll tell [defense counsel]I put ya on notice, uh, when we get him here, and the other thing is specifically, uh, I want to be able to, uh, inquire of you at least a little bit about the – the attitude, uh, of, uh, the victims in terms of, uh, allowing a withdrawal.

Emphasis in original.  In opposing the motion, here’s some of what the prosecutor said:

Um, that would be obviously time consuming and burdensome to the State. It also would be, uh, burdensome and extremely unfair to the victims in this case. They have been through an emotional roller coaster. Uh, they’ve demonstrated a great deal of, uh, bravery . . . in coming forward in the first case in this particular matter, and to put them through that again simply because what we have here is Mr. Schlienz, uh, making a plea of his own accord for apparently pragmatic reasons on his own part, and then realizing that the rest of the world simply did not see things the way that he does – he now has buyer’s remorse, doesn’t like the way it’s gonna turn out, asks to vacate his plea, it is totally inappropriate and – and would be unfair.

Emphasis in original.  The appellate court found that the trial judge had not only had ex parte communications with the prosecutor, but that he abandoned any semblance of fairness to both sides:

The nature of the communication leads us to conclude that the communication, at a minimum, reasonably called the judge’s impartiality into question. Because a judge is disqualified when his or her impartiality is reasonably called into question, the judge’s failure to recuse in this case constituted error that was plain.

Court Ducks Question of Scales Application to FBI Interrogation Undertaken at Implicit Request of Local Law Enforcement Agency

State v. Sanders, Minn.S.Ct., 12/17/2009.  A jury convicted Mr. Sanders (whom I represented at trial) of criminal sexual conduct in the first degree.  The Saint Paul police issued an arrest warrant for Mr. Sanders; they asked the local FBI office for assistance in finding him.  The FBI office, in turn, called its Chicago office, which sent out a couple of agents to arrest him.  They figured, correctly, that he was at his mom’s house.

Two FBI agents interrogated Mr. Sanders; in keeping with standard FBI practice they did not record the interview.  Mr. Sanders mostly denied the accusations but the state wanted to offer evidence of the interview anyway.  The trial court permitted the state to do this over objections that the interview should have been recorded under State v. Scales, 518 N.W.2d 587 (Minn. 1994).  Mr. Sanders testified in his own defense, during which he denied making several of the statements that the FBI agent attributed to him.

The appellate court turns the legal issue into a geography quiz by framing the question in terms of the location of the interrogation.  Then, in keeping with its standard practice, the appellate court ducks the harder question whether Scales is applicable to a FBI interrogation at least implicitly undertaken at the behest of the SPPD.  They assume that it does so that they can then jump to the easier question whether there was prejudice to Mr. Sanders by the error; the appellate court finds none:

After considering all the relevant factors, we conclude that the jury’s verdict was surely unattributable to the district court’s admission of [the FBI agent’s] testimony regarding statements allegedly made by Sanders during an unrecorded out-of-state custodial interrogation conducted at a place of detention. Based on this conclusion, we affirm Sanders’s conviction. We need not, and do not, decide whether the Scales recording rule applies to a custodial interrogation conducted outside Minnesota or whether the alleged Scales violation in this case was substantial.

Three justices, Justice Paul Anderson, Justice Page and Justice Meyers, concluded that Scales applied to this interrogation.  Anderson concluded that it was harmless error; Page and Meyers would have remanded for a new trial.