Under “Plain Error” Substantive Use in Prosecutor’s Closing Argument of Defendant’s Statement, Admitted Only For Impeachment Purposes, Does Not Warrant New Trial.

State v. Tomassoni, Minn.S.Ct., 2/18/2010.  A jury convicted Mr. Tomassoni of first degree premeditated murder, rejecting his claim that the killing was not premeditated.  Mr. Tomassoni initially told the police that an intruder had enter his home and shot his wife.  Physical evidence, (and the existence of a couple of insurance policies on his wife), however, cast considerable doubt on this claim.  After being arrested and charged with the murder, a child protection worker spoke to Mr. Tomassoni about placement of his son; during this conversation, Mr. Tomassoni admitted that he had shot his wife.

The parties agreed that this statement could not be admitted at trial as substantive evidence of guilt.  Mr. Tomassoni testified at his trial.  He said that on the night of his wife’s death he had decided to take his own life.  He described his preparations for his suicide, including kissing his sleeping son and wife goodbye.  He then said that he next remembers standing in the hallway outside his wife’s bedroom, dripping with sweat, wearing gloves, a gun in his hands and his wife dead.  The state then introduced his statement to the child protection worker to impeach this version of events. 

In closing argument, the prosecutor said this to support the state’s claim of premeditation:

[Mr. Tomassoni] admitted that he told the social worker . . . that he shot his wife once, there was a pause, and he shot her a second time. That’s premeditated. He planned to kill his wife.

Defense counsel did not object to this statement so plain error is the analysis in play.  On appeal, the parties agreed that any substantive use of Mr. Tomassoni’s statement to the child protection worker was error.  The question, then, was whether this error was “plain.”  An error is plain if it “contravenes case law, a rule, or a standard of conduct.”  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  The state’s argument was that there was no authority that it is prosecutorial error to use properly admitted impeachment evidence substantively in closing argument.

The appellate court ducks the issue by deciding that even if the error were “plain” the use of statement did not affect Mr. Tomassini’s substantial rights.  The appellate court concluded that there was plenty of evidence to support the jury’s determination of premeditation. 

There was also an error in the jury instructions.  The instructions included the standard language, “In the case of the defendant, however, evidence of any statement he may have made may be considered by you for all purposes.” See 10 Minn. Dist. Judges Ass’n, Minn. Practice—Jury Instruction Guides, Criminal, CRIMJIG 3.15 (5th ed. 2008).   Again, the parties agreed that this was error but, again, there was no objection to it.  Under a “plan error” analysis, the appellate court concluded that this error did not affect Mr. Tomassoni’s substantial rights.

There’s No “Prison Mailbox Rule” in Minnesota; “Filing” Means Receipt in the Clerk’s Office

Chang v. Minnesota, Minn.Ct.App., 2/16/2010.  Mr. Chang is serving a fourteen year or so stretch up at the Moose Lake prison.  Without benefit of counsel he petitioned for post conviction relief.  On July 31, 2007, Mr. Chang put his petition into the prison mailbox, but the clerk’s office did not receive it until eight days later.

Mr. Chang’s conviction preceded the enactment of a two year limitations period for filing a post conviction petition.  So, he had two years from the effective date of this enactment, or July 31, 2007, to file his petition.  This limitations provision says that:

No petition for postconviction relief may be filed more than two years after the later of:

The district court read this statute and threw out Mr. Chang’s petition, concluding that “filing” required actual receipt in the clerk’s office; the court rejected the “prison mailbox rule” utilized in federal court for inmate pro se litigation.  See Houston v. Lack, 487 U.S. 266 (1988). 

The harshness of this rejection of a “prison mailbox rule” requires a close look at the Houston, opinion.  Mr. Houston had lost a federal habeas petition and wanted to appeal.  The applicable court rule said that he had to file his notice of appeal within thirty days of the denial of his petition.  On the twenty-seventh day he deposited his notice of appeal with the prison authorities for mailing but the notice did not arrive until after expiration of the thirty days.  In re-affirming the “prison mailbox rule” here’s what the Supreme Court had to say:

The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped “filed” or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped “filed” on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk's failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access-the prison authorities-and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.

The appellate court rejects the mailbox rule by adopting dicta from a 1967 opinion, State v. Parker, 278 Minn. 53, 153 N.W.2d 264 (1967).  Mr. Parker mailed his notice of appeal on the last day of the appeal period; the appellate court accepted the appeal despite a statute that said that the notice had to be filed with the court clerk.

After Rejecting Plea Agreement, District Court Cannot Offer a Defendant a Particular Sentence in Exchange For Affirming Plea

Melde v. State, Minn.Ct.App., 2/16/2010.  Mr. Melde pled guilty to one count of first degree DWI and to driving after cancellation, inimical.  In return, the state agreed to recommend a stay of execution of sentence on the DWI.  The trial court accepted the plea, adjudicated him guilty and ordered a pre-sentence investigation.

After reading the PSI the court declined to stay execution of the sentence, a dispositional departure.  The court offered Mr. Melde the choice of either withdrawing the plea or accepting a sentence at the low end of the applicable Guidelines box; Mr. Melde jumped on the low end of the box offer from the court and maintained his guilty plea.

He then thought better of it once in prison and so Mr. Melde petitioned to withdraw the plea.  He argued that the trial court had injected itself into plea negotiations.

Here’s how the appellate court describes the court’s role:

The district court’s proper role is one of “discreet inquiry into the propriety of the settlement submitted for judicial acceptance,” both to make certain that an innocent person has not been induced to plead guilty to a crime and to “protect society” from a defendant being permitted to bargain for an excessively lenient sentence.

When a court rejects a plea agreement a defendant is automatically entitled to withdraw the plea.  The court acts improperly by promising a particular sentence that was not part of an existing agreement between the prosecutor and the defendant.  Mr. Melde gets to withdraw his plea.

No Basis to Withdraw Guilty Plea But the Court Chides the District Court For Relying on Leading Questions of Defendant to Establish Factual Basis.

State v. Raleigh, Minn.S.Ct., 2/4/1010.  Mr. Raleigh pled guilty to first degree premeditated murder for the death of Howard Porter, a probation officer at the time of his death and a basketball great – college and pro – back in the day.  He pled guilty in exchange for an agreement with the state that he would not be prosecuted for a triple homicide for which he was then under investigation.  (Alas, he’s being prosecuted by the feds for this triple murder.)

A few days after entering the plea Mr. Raleigh requested to withdraw it.  He said that he had been hearing voices, and was having trouble sleeping.  A psychiatrist examined him.  His attorney argued that Mr. Raleigh had not understood the consequences of the plea.  The trial court denied the motion to withdraw the plea, concluding that to permit withdrawal would prejudice the state and that Mr. Raleigh had not advanced any reasons why withdrawal would be “fair and just,” the standard for withdrawal of a plea before sentencing.  Rule 15.05, subd.2.

Mr. Raleigh argued to the appellate court that he not only met this standard but also the standard applicable for withdrawal of a plea after sentencing:  avoidance of a manifest injustice.  A manifest injustice exists if the plea is not valid, that is, if it is not accurate, voluntary and intelligent.  An “accurate” plea, the appellate court says, must be based on proper facts.  Okay, no controversy there.  What the appellate court really wants to talk about is how to get those facts into the record.  The appellate court seems to believe that the the factual basis requirement is best satisfied “by [the judge] asking the defendant to express in his own words what happened.” This harks back to a decision from a quarter century ago, State v. Trott, 338 N.W.2d 248 (Minn. 1983).  The trial court should, they go on, be “wary of situations in which the factual basis is established by asking a defendant only leading questions.”

If this weren’t enough, the appellate court reaches even further back to a 1976 decision, State v. Hoaglund, 307 Minn. 322, 240 N.W.2d 4 (1976), to observe:

It is to be hoped that the trial judge, in [accepting a plea], will ask the questions with respect to the factual basis for the crime so as to avoid the rather common inclination of counsel to elicit these facts by leading questions.

This is all dicta, because Mr. Raleigh asked to withdraw his plea before sentencing under the “fair and justice” standard.  Nonetheless, the bench is already chattering so pack a lunch or a snack; plea hearings are apt to get lengthier.

Indifference to Possibility of Injury and Need For Medical Attention Supports “Particular Cruelty” in Unintentional Conduct

State v. Tucker, Minn.Ct.App., 01/19/2010.  Mr. Tucker and A.G. chased each other around north Minneapolis for a while.  When Mr. Tucker wearied of that game he fired a gun shot through A.G.’s windshield in the general direction of where A.G. was sitting.  Mr. Tucker left without either ascertaining the result of his shot or reporting the gun shot to anyone.

Instead, he called 911 to report that his gun had been stolen.  A.G. died from the gun shot and the state charged Mr. Tucker with second degree intentional murder.  Mr. Tucker cut a deal under which he agreed to plead guilty to second degree unintentional murder in exchange for an upward durational departure, based on “particular cruelty” - failure to render assistance and invasion of her zone of privacy.

After a while, from his prison cell, Mr. Tucker decided he’d been flummoxed on the departure so he filed a post conviction petition.  The post conviction court agreed that the zone of privacy was a no go, but that the failure to render assistance  stood the test of time.

The appellate court comes up with a rather vague, but extraordinarily expansive test, applicable at least to crimes that do not involve the intention to cause injury or death; in those crimes the cruelty is inherent in the intention act.  For non-intentional acts, the test is:

When an offender’s conduct is sufficiently egregious that a reasonable person in the same circumstances would suspect that the conduct very likely caused injury to the victim, it is particularly cruel for the offender to fail to take some meaningful step, even anonymously, toward obtaining at least an investigation so as to be able to give medical aid to the victim if an examination reveals that aid is necessary.

It may be time to brush up on your Blakely materials.

Predatory Offender Registration – Whether Offense of Conviction “Arises out of same set of circumstances” as Dismissed Predatory Offense is Issue of Fact.

State v. Lopez, Minn.S.Ct., 02/11/2010.  We last heard from the Lopez brothers back in May when the court of appeals held that they had to register as predatory offenders.  Go here.  You’ll recall that the brothers sold methamphetamine to a confidential informant.  Later that month, the brothers allegedly held the informant hostage for about forty minutes until the informant’s minder arranged to pay the $300.00 that he owed on the earlier drug deal.  This lead to drug and kidnapping charges.  Each was convicted on the drug offense but the kidnapping charges were dismissed.

Even so, the district court ordered the brothers to register as predatory offenders, saying that the kidnapping charges arose out of the same set of circumstances as the drug charges.  The court of appeals upheld the trial court but the supreme court now reverses.

The court construes the language of Minn.Stat. 243.166 in reaching its conclusion.  The “same set of circumstances” provision of the statute requires registration:

where the same general group of facts gives rise to both the conviction offense and the charged predatory offense. In other words, the circumstances underlying both must overlap with regard to time, location, persons involved, and basic facts. Although the conviction offense need not be based on identical facts to the charged predatory offense, the facts underlying the two must be sufficiently linked in time, location, people, and events …

Here, there is only one single common circumstance, payment of a debt from the drug sale.  The drug sale was complete upon transfer of the drugs; the confinement ten days later was only to collect the debt, too tenuous a connection to require registration under the statute.

A Misdemeanor “Arising out of the same set of circumstances” as a charged felony Authorizes Submission of DNA Examplar.

State v. Johnson, Jr., Minn.Ct.App., 01/26/2010.  The state initially charged Mr. Johnson with felony domestic assault by strangulation and misdemeanor fifth degree assault.  He pleaded guilty to the misdemeanor in exchange for dismissal of the felony charge.  He objected to being required to submit a DNA exemplar because he had not been convicted of a felony. 

The statute, Minn.Stat. 609.117, subd. 1(1) says that an offender has to submit a DNA sample when the district court “sentences a person charged with committing or attempting to commit a felony offense and the person is convicted of that offense or of any offense arising out of the same set of circumstances.”

Mr. Johnson complained that requiring a DNA sample in a misdemeanor conviction violates the fourth amendment and its state counterpart.  The appellate court concludes that collection of DNA from non-felons is not unconstitutional, and that the state’s interest in DNA collection outweigh what the court characterizes as a “minimal intrusion” of DNA collection and the reduced privacy expectation held by an offender convicted of a misdemeanor that arose from the same set of circumstances as a charged felony. 

Life Without Possibility of Release for Aiding & Abetting Premeditated Murder Constitutional Under State Constitution

State v. McDaniel, Minn.S.Ct., 01/21/1010.  A grand jury indicted Mr. McDaniel for aiding and abetting first degree premeditated murder, and committing a crime for the benefit of a gang; the state alleged that Mr. McDaniel helped Cornelius Jackson and LaMonte Martin in killing Christopher Lynch. 

Mr. McDaniel denied being a leader of a certain gang but admitted that he used to be the “chief” of this gang and had “some say-so” with that gang.  On rebuttal, the state presented a serious of officer witnesses to testify generally about various aspects of gangs.  The appellate court upholds the limited testimony that the trial court admitted here, without really breaking any new ground.  The appellate court has written about gang evidence several times over the past six months or so, here, here, and here. 

Following the homicide, several officers attempted to locate Mr. McDaniel, leaving messages with his mother, girlfriend, cousin and friend that there was a warrant for McDaniel’s arrest.  McDaniel eventually called one of the officers, and told her that he was not going to turn himself in.   Mr. McDaniel objected to this evidence of his pre-arrest conduct but the appellate court found no error in its admission.

Mr. McDaniel also complained of various acts of prosecutorial conduct.  The appellate court rejected most all of them, but it did find that this part of the prosecutor’s rebuttal closing argument was out of bounds:

There’s a reason why attorneys’ arguments, closing arguments, opening statements, questions and so forth are not evidence and cannot be considered by you as evidence. Because the attorneys will, oftentimes like to manipulate the evidence, make it what it isn’t—hoping hopes that you don‟t recall the evidence that was presented and then misrepresent the evidence to you and ask you to rely on their representations of the evidence as if that’s the truth.
There’s a reason why arguments aren’t evidence and that is because, one of the reasons is because when the evidence that comes from the witness stand if it doesn’t fit and an attorney stands up and gives you an explanation when that question was—when the opportunity for introducing that evidence was offered and passed by, it gives them the advantage by filling in the blanks for you in their own words when their clients can’t do it for themselves.

This error, however, was harmless.

Finally, the appellate court rejects Mr. McDaniel’s argument that a sentence of life without possibility of release for aiding and abetting first degree premeditated murder violates the Minnesota Constitution’s prohibition against cruel and unusual punishment.

“I think I can, I think I can” Puts You “In Control” for DUI Laws

State v. Fleck, Minn.S.Ct., 01/21/2010.  Police found Mr. Fleck asleep behind the wheel of his car, which was lawfully parked in the apartment complex parking lot where he lived; the keys were in the console between the front bucket seats.  The Court of Appeals had agreed with the trial court that Mr. Fleck was in control of the car for DUI purposes.   The Minnesota Supreme Court granted review back in March and now affirms the Court of Appeals.

The police had found Mr. Fleck asleep behind the wheel; when questioned, he admitted to having drank ten to twelve beers but he denied that he had been driving the car.  Mr. Fleck gave two different reasons for why he was in the car.  The car was “cold to the touch,” the lights were off and the car did not appear to have been running.  Mr. Fleck told the officers that the car was operable but the officers did not independently verify this assertion.  Shortly before trial, the cops did try to start the car with the key that had been in the console; although the key turned the ignition, the car did not start.

The appellate court concludes that Mr. Fleck was in “physical control” of the car, as that term has been interpreted:

Physical control is meant to cover situations when an intoxicated person “is found in a parked vehicle under circumstances in which the [vehicle], without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.” State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992).