A “Year” Is Not a Year And a Day.

State v. Wertheimer, Minn.S.Ct., 4/22/2010.  Police arrested Mr. Wertheimer on the tenth anniversary of his earliest driving while impaired conviction, May 12, 2007.  Both the trial court and the court of appeals concluded that this May 12, 2007 arrest was within ten years of the May 12, 1997 conviction.

The trial court and the court of appeals had reached this conclusion by reliance upon Minn.Stat. 645.15, which provides:

[w]here the performance or doing of any act, duty, matter, payment, or thing is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, the time . . . shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time. When the last day of the period falls on Saturday, Sunday, or a legal holiday, that day shall be omitted from the computation.

The Supreme Court says, no, this statute applies to things like beating the limitations period, not driving while intoxicated, which, by the way, is neither ordered nor directed.  So, how to compute the time?

The appellate court observes that “a calendar year includes exactly one of each date.”  That means that a ten year period includes exactly ten of each date, except for February 29’s.  Thus, start the ten years on May 12, 1997; it has to end on May 11, 2007, otherwise you have eleven May 12’s in the ten year period.

Juvenile Adjudication for a Gross Misdemeanor “Arising out of the same set of circumstances” as a charged felony authorizes submission of DNA Exemplar.

In the Matter of the Welfare of:  M.L.M., Minn.Ct.App., 4/20/10.  M.L.M. stole enough clothes from an unnamed department store to get herself charged in juvenile court with a felony.  In juvenile court, she admitted to an amended gross misdemeanor theft offense; the juvenile court adjudicated her and ordered her to submit to a DNA test.  She objected, saying that requiring a DNA test when she was not adjudicated of a felony was a violation of the Fourth Amendment (and Article 10 of the state constitution) and a violation of equal protection. 

This question, applied to adults, is currently before the Minnesota Supreme Court, State v. Johnson, 777 N.W.2d 767 (Minn. 2010), reviewed granted, 4/20/2010.  I wrote about the court of appeals opinion here.  For much the same reasons, the appellate court finds no fourth amendment or section 10 violation by requiring a juvenile who has been adjudicated of a gross misdemeanor arising out of the original felony offense to submit to a DNA exemplar.  The appellate court goes on to reject an equal protection claim, applying a rational basis standard of review.

State May Rely Upon Drug Field Test To Establish Probable Cause

State v. Knoch, Minn.Ct.App., 4/20/2010.  Ms. Knoch and Ms. Watson moved to dismiss their drug possession charges, arguing that the field testing of the suspected drugs was not enough to establish probable cause to support the Complaints.  They wanted the appellate court to adopt a bright line rule that required a confirmatory lab test to establish probable cause.  The facts are mostly the same, but let’s start with Ms. Knoch.

Officers executed a search warrant at Ms. Knoch’s apartment, finding some meth, along with a zippered pouch that contained pipes and baggies that contained narcotics residues.  The officers field tested one of the pipes, the Narcotic Identification Kit (NIK) Test U, described as something like a litmus test you’d use in your garden; if it turns blue add nitrogen.  In this case, if the paper turned blue, which it did,  it meant meth.  The officers did no further testing.

Now, Ms. Watson.  Police executed a search warrant at her place, finding some meth, some pipes and an electronic scale.  The officers field tested two of the three pipes, using the same test kit as they had used for Ms. Knoch, getting the same blue result on each.  Again, the officers did no further testing.

The trial court held a joint evidentiary hearing on the motions to dismiss.  Various science types testified to the accuracy of this particular field test.  The defense called a former DEA agent who said that the DEA would not rely only on this field test to identify a controlled substance.  The trial court went with the litmus test and denied the motions to dismiss.  The trial court did, however certify these two questions:

A. Is a positive test result indicating the presence of a secondary amine in a presumptive and not confirmatory test, such as a NIK Test U, sufficient, taken together with other case-specific facts and circumstances, to support a finding of probable cause in a controlled substance prosecution?

B. Assuming a positive preliminary test result, is the State required to obtain a confirmatory test to establish probable cause in a criminal prosecution?

The appellate court spends a good portion of its opinion arguing with itself over the shape and size of the bargaining table.  Neither they nor Ms. Knoch and Ms. Watson liked the questions.  After several pages, the appellate court reduced the two questions to this single one:

In a prosecution for possession of a controlled substance, may the state ever establish probable cause based on evidence of a field test of a substance alleged to be a controlled substance, without evidence of a confirmatory test of the substance?

Now, the defense reminded the appellate court that just this year the supreme court said that the prosecution needed enough evidence to support a conviction in order to defeat a probable cause dismissal motion.  State v. Lopez, 778 N.W.2d 700 (Minn. 2010).  Unfortunately, previous opinions establish that if the identification of the drug is in question, “the sufficiency of the evidence is examined on a case-by-case basis.”  State v. Olhausen, 681 N.W.2d 21 (Minn. 2004).  The defense countered that a defendant can’t be convicted of a drug possession offense unless the state has sufficient scientific evidence to prove the identify of the substance.  State v. Vail, 274 N.W.2d 127 (Minn. 1979).

In the end, none of this mattered.  The appellate court concludes that the trial court properly concluded that the state is not foreclosed from finding probable cause on the basis of a field test.  The state’s evidence at the hearing established that the test in question was sufficiently reliable enough, at least to establish probable  cause.  In a final, parting shot, the appellate court invites a future defendant to get her own confirmatory test that says that a particular substance is not a controlled substance; then, you might win.

Denial of Use Immunity to Defense Witness Does Not Violate Defendant’s Rights, Absent Egregious Prosecutorial Misconduct.

State v. Super, Minn.Ct.App., 4/20/2010.  Mr. Super shot and killed Daniel Holliday, the culmination of a “love triangle” with Dana Back.  I wrote about Ms. Back’s appeal here.  The appellate court reversed Ms. Back’s conviction but not before a jury convicted Mr. Super.

Ms. Back prudently declined to testify as a defense witness for Mr. Super while her appeal was pending.  Mr. Super’s counsel asked the state to grant her use immunity, which it declined to do.  The state then demanded a speedy trial, which forced Mr. Super to trial while Ms. Back’s appeal was ongoing.  When Ms. Back asserted privilege the trial court did admit her statement to the police.

Mr. Super argued to the appellate court that the trial court had violated his right to compulsory process and to present a defense by either failing to order use immunity for Ms. Back or failing to continue the trial until her appeal was concluded.  The appellate court rejects both of these contentions.  The denial of use immunity to a defense witness does not violate a defendant’s constitutional rights absent “egregious prosecutorial misbehavior.”  State v. Peirce, 364 N.W.2d 801, 808 (Minn. 1985).  This is true even when the witness has important exculpatory evidence that is not otherwise available to the defendant.  Here, according to the appellate court, the state’s opposition to granting use immunity was nothing more than “trial strategy” over which the trial court had no control.  Denial of a continuance was not an abuse of discretion because Mr. Super could not demonstrate prejudice in the face of admitting Ms. Back’s statement to police.

Voluntary Ingestion of Drugs That are Laced With Some Unknown Substance Does Not Create Involuntary Intoxication Defense.

 State v. McClenton, Minn.Ct.App., 4/20/2010.  A jury convicted Mr. McClenton of first degree aggravated robbery, and fifth degree possession of a controlled substance.  On appeal, he complained of numerous things, among which were the preclusion of evidence of a defense of involuntary intoxication, and admission of criminal complaints during the Blakely penalty trial.  (There’s a lesser included instruction error.)

Mr. McClenton accosted T.G. on the street corner, demanding money.  Eventually, T.G. gave Mr. McClenton money but being dissatisfied Mr. McClenton punched T.G. in the head.  T.G. thought that Mr. McClenton may have been under the influence of drugs.  The first officer to meet up with Mr. McClenton, shortly after the street mugging, thought that he was in a “cocaine psychosis.” 

Defense counsel asserted a mental illness defense, and an intoxication defense.  The Rule 20 examiner found that Mr. McClenton was, indeed, in a “drug-induced psychosis” at the time of the offense, but – under something of a delusion herself about whether she’s a doctor or a lawyer -demurred opining whether he had a viable mental illness defense, reasoning that a psychosis induced by a voluntary injection of drugs did not qualify.   Defense counsel countered, however, that the psychosis was the result of an involuntary intoxication:   unbeknownst to Mr. McClenton, the drugs that he voluntarily ingested were laced with some unknown substance that caused him to commit the street mugging in a more untoward fashion than would have been the case had he only ingested unlaced narcotics.  The trial court demanded an offer of proof on this assertion; when it was not forthcoming, the trial court precluded the defense.

The appellate court dodges the messy analysis of what, if any, proffer or offer of proof defense counsel may have made to the trial court.  Instead, it just rejects the existence of the defense of “innocent intoxication” – intoxication resulting from an innocent mistake about the character of the substance taken -  at least “under the facts of this case.”  After all, to recognize such a defense would just encourage drug abusers to seek out the “least pure” drugs available.  Here’s the appellate court’s conclusion:

[W]e hold that a defendant who voluntarily smokes marijuana, which unbeknownst to him is laced with some other controlled substance, is not entitled to an involuntary-intoxication defense based on the resultant effects of the combined substances.

At the Blakely hearing, the state introduced copies of various criminal complaints to show a  pattern of criminal conduct.  The state conceded on appeal that admission of the probable cause portions of the complaints to which Mr. McClenton had not previously admitted was plain error.  However, the appellate court was able to cite other evidence to support a pattern of criminal conduct, and thus he could not show prejudice.

Stipulation to Prior Convictions is Waiver of Right to Jury Trial that Requires Defendant’s Personal Waiver.

State v. Kuhlmann, Minn.Ct.App., 4/6/2010.  Mr. Kuhlmann apparently twice assaulted his fiancée while at home, then went for a drive.  The cops pulled him over for impaired driving.  At trial on the resulting felony domestic assaults and driving while impaired, Mr. Kuhlmann’s attorney told the trial court that Mr. Kuhlmann would stipulate to the respective predicate prior convictions.  Mr. Kuhlmann personally acknowledged these predicate convictions, but the trial court did not obtain his personal, informed waiver of his right to a jury trial on these conviction-based elements of the offenses.

The appellate court reviews this claimed error under a plain error analysis because defense counsel did not object; indeed it was counsel’s idea.  So, the appellate court asks whether there was error, whether the error was plain, and whether the error affected substantial rights.  If the answer to all those questions is, yes, then the final question is whether the error seriously affects the fairness and integrity of judicial proceedings.  Mr. Kuhlmann gets the answers that he needs on the first three questions, but not the all important final one.

The appellate court concludes that the trial court’s failure to obtain Mr. Kuhlmann’s personal waiver of his jury trial right was both error and plain error.  The appellate court read the rules.  Criminal rule 26.01 requires a defendant personally to waive a jury trial right orally in court or in writing; his counsel cannot waive the right for him. 

Appellate counsel argued that this denial of a jury trial was a “structural error” that required an automatic reversal for a new trial.  Not so fast.  The appellate court distinguishes between complete waivers of a jury trial – a bench trial, a full stipulated facts trial, or a Lothenbach trial – from a partial waiver of a jury trial by stipulating to an offense element.  It then skips over the “substantial rights” determination all together by just assuming that the error did affect substantial rights.  It doesn’t matter, however because none of this affected the fairness and integrity of the trial. 

First, Mr. Kuhlmann still got a jury determination of guilt or innocence.  Moreover, the stipulation seemingly worked to his benefit because the jury did not know the nitty gritty of the predicate convictions.  Mr. Kuhlmann could go back and make a personal waiver, have another trial and likely get the same verdicts.  Or, he could go back, let the jury hear about his predicate convictions and likely get the same verdicts.  Either way there’s nothing to be gained by a reversal and new trial.

In a Stipulated Facts Trial, Court May Rely Upon Complaint That Has Been Admitted Without Restriction to Support Findings.

State v. Eller, Minn.Ct.App., 3/30/2010.  The trial court convicted Mr. Eller of gross misdemeanor driving while impaired following a stipulated facts trial, Minn.R.Crim.Proc. 26.01, Subd. 3.  For some elucidation of this rule see here, and here. 

On appeal, Mr. Eller argued that the state failed to present sufficient evidence of the prior refusal conviction, which is an element of the offense.  At trial, the court had received three exhibits from the state without objection:  the amended complaint, a DVD of the implied consent reading, and the police report.  The trial court also received without objection three other exhibits – a hand drawn exhibit and two implied consent advisories – as evidence.  Mysteriously, the state failed to introduce a certified copy of the prior conviction even though it was apparently buried somewhere on counsel table.

When a prior conviction is an element of a charged offense, proof of the prior conviction can be “established by competent and reliable evidence, including a certified court record of the conviction.” Minn. Stat. § 609.041 (2006).  The appellate court concludes that this language does not limit proof of the prior conviction to a certified court record.  In addition, a sworn statement – say, from the factual portion of the complaint –which both parties have stipulated may be admitted into evidence without restriction can also suffice.  Counsel did not qualify his stipulation to the admission of the complaint so the trial court was free to rely upon it to support a finding of the existence of the prior conviction.

Mr. Eller made a couple of other arguments, which the appellate court rejected.

A Defendant’s Admissions to Friends After The Crime but Before Commencement of a Criminal Investigation Are Not Subject to Corroboration; and May, Themselves, Corroborate a Subsequent Confession to Police.

State v. Heiges, Minn.Ct.App., 3/30/2010.  A jury convicted Ms. Heiges of second degree murder for the death of her newborn daughter.  After delivering the baby, she drowned the baby in the bathtub.  Roughly five months later, Ms. Heiges confided to A.B. that she had drowned the child.  A.B. reported this to the police, who commenced an investigation.  Police interviewed Ms. Heiges several times, during which she eventually made similar admissions.  DNA testing of some blood that police found in the bathroom did not exclude either Ms. Heiges or the purported father; and some of the DNA possibly was from the child.

Before trial, Ms. Heiges argued that the state did not have sufficient evidence to corroborate her confession to police, as required by Minn.Stat. 634.03; the charges should, therefore, be dismissed.  the trial court denied this motion.  During trial, another witness came forward, R.C., who was permitted to testify that Ms. Heiges had told her of a plan to go “up north” to deliver the baby and then bury it in the woods.  R.C. was also permitted to testify that after the child’s death Ms. Heiges told her that she had gone through with the plan to kill the baby.  At the end of the trial, Ms. Heiges moved for an acquittal, again arguing that the state had not sufficiently corroborated her confession.  The trial court denied this motion.

Minn.Stat. 634.03 provides that a defendant’s confession is not sufficient to support a conviction “without evidence that the offense charged has been committed.”  In addition to evaluating other evidence presented at trial, here, the appellate court also has to decide whether the statements that Ms. Heiges made to friends after the child’s death but before the start of a criminal investigation are subject to this corroboration requirement.  (Admissions made prior to a criminal act do not require corroboration.  See State v. Smith, 264 Minn. 307, 313, 119 N.W.2d 838, 843 (1962).)  The appellate court concludes that it is not.  This is because the rationale behind the corroboration requirement is to prevent an accused from making a false confession under the pressure of a police investigation. 

This conclusion also means that the trial court may rely upon Ms. Heiges’ pre-investigation admissions to friends to corroborate her confession to police.  These admissions, along with other evidence presented at trial, satisfied the corroboration requirement.

Ms. Heiges also complained about some of the instructions, about permitting R.C. to testify, and about the denial of a departure motion, all to no avail.

Judge Randall dissented.

Jury Appropriately Instructed on Domestic Abuse Pattern Evidence and Relationship Evidence.

State v. Matthews, Minn.S.Ct., 3/18/2010.  Mr. Matthews strangled to death his former girlfriend, Kristine Larson.  Among other offenses, a jury convicted him of first degree premeditated murder, and first degree domestic abuse murder; the trial court sentenced him to life without possibility of release on the first degree premeditated murder.  During trial, the state introduced twelve incidents between Mr. Matthews and Ms. Larson, all to establish relationship evidence and six also to establish past acts of domestic abuse.

On appeal, Mr. Williams complained that the trial court had improperly instructed the jury on the past pattern of domestic abuse element of first degree domestic abuse murder.  He complained that the trial court had failed to distinguish between past pattern of domestic abuse evidence and relationship evidence, suggesting that the jury had relied upon relationship evidence to support a finding of past pattern of domestic abuse. 

Now, the appellate court elected to review this alleged error, even though the trial court had not sentenced Mr. Williams on this offense, and even though there had been no objection raising it at trial.  The appellate court acknowledged that relationship evidence is more inclusive than pattern domestic abuse evidence; that is, some acts of relationship evidence would not meet the definition of pattern domestic abuse.  The trial court had determined that six of the twelve incidents that it admitted for relationship evidence purposes, which involved acts when Mr. Matthews hit, physically restrained, or threatened Ms. Larson with violence, were also admissible as domestic abuse evidence.  Before the state offered testimony of each of these twelve incidents, the trial court instructed the jury:

The purpose of this evidence, members of the jury, is to assist you in evaluating whether there is a past pattern of domestic abuse, which is one of the elements of one of the charges, Domestic Violence Murder. Some of the evidence is also being introduced to illuminate the history of the relationship between Mr. Matthews and the deceased, Kristine Larson.

In the final jury charge, the trial court instructed the jury:

Minnesota statutes define domestic abuse to include assault, which consists of either (1) committing an act with intent to cause fear in another of immediate bodily harm, or death, or (2) intentionally inflicting, or attempting to inflict bodily harm upon another . . . . Third . . . the defendant engaged in a past pattern of domestic abuse against Kristine Larson. A past pattern consists of prior acts of domestic abuse, which form a reliable sample of observable traits or acts, which characterize an individual’s behavior.

The appellate court conceded  that the instruction that the trial court gave during trial was ambiguous.  Nonetheless, because the final jury charge limited the definition of domestic abuse to assault and did not include such behavior as stalking and harassing phone calls, the instructions as a whole did not constitute plain error.

Mr. Matthews raised three prosecutorial misconduct arguments, which he alleged occurred during the state’s closing argument.  Under a plain error review, the appellate court declined to find such plain error.

Mere Hesitancy to Testify Does Not Support “Unavailability” for Crawford Purposes

State v. Cox, Minn.S.Ct., 3/18/2010.  A jury convicted Mr. Cox of the shooting death of a cab driver.  Mr. Cox, a Mr. McIntyre, and S.T. had been hanging out earlier in the evening at a local bowling alley, after which the three of them went to S.T.’s apartment complex.  Police searched S.T.’s apartment where they found a gun; some of the cartridge casings found at the homicide scene were fired by this gun.  Midway through trial, S.T., who was under subpoena, told the prosecutors that she was afraid to testify for fear of harm to herself or her child.  In response, the state asked to introduce her grand jury testimony as substantive evidence.  Her grand jury testimony incriminates Mr. Cox.

The trial court held a hearing on this request.  Mr. Cox, it turned out, had made phone calls from the jail to his mother, asking her to ascertain S.T.’s current address; he also sent S.T. a letter in which he instructed her to call someone.  Mom not only got the address but went over and met with S.T. in the parking lot.  Cox’s mom tearfully asked S.T. not to testify because her son was “not going to be able to do the time.”  Mom also said that she would “do whatever she had to do.”  The trial court found that S.T. was “extremely reluctant” to testify, even though there had not been an explicit threat to her.  When asked if she would testify in the face of a possible contempt citation, S.T. said that she didn’t know.  The trial court nonetheless concluded that S.T. was unavailable to testify and that Mr. Cox had forfeited his right to confront her.

First up is whether Mr. Cox forfeited his right to confront S.T.  Davis v. Washington,  547 U.S. 813, 833 (2006); Giles v. California, __ U.S. __, 128 S. Ct. 2678 (2008).  Under Giles the forfeiture by wrongdoing exception requires that the state prove:

(1) that the declarant-witness is unavailable, (2) that the defendant engaged in wrongful conduct, (3) that the wrongful conduct procured the unavailability of the witness and (4) that the defendant intended to procure the unavailability of the witness.

Here, the state failed to prove that S.T. was unavailable to testify.  She was under subpoena, responded to that subpoena, and testified at the hearing.  Although hesitant to testify, she did not say that she would refuse to testify and the state never called her to testify to see what she would really do.  For those reasons, the state failed in its proof of unavailability.  The trial court thus erred in admitting her grand jury testimony.  Because the state did not argue that any such error was harmless, Mr. Cox gets a new trial.

A “Wheel” is Both the Rim and the Tire

State v. Wenz, Minn.Ct.App., 3/16/2010.  Remember that big wheel you had as a kid?  Ever thought you needed a license to tear through your neighbor’s rose bushes with it? 

Ms. Wenz, whose license had been cancelled as inimical to public safety, bought a two wheeled vehicle, which had as one of its attributes wheels measuring fifteen inches to the outside tire surface but only ten inches to the outside of the rim.  When the cops stopped her for driving it, she said that it was a “motorized foot scooter” for which she needed no license.  It turned out that she did. 

Minnesota has a statute that tells us what a “motorized foot scooter” is, or, in this case, what it is not.  Minn.Stat. § 169.01, subd. 4c (2006).  Among other things, it can have no more than “two ten-inch or smaller diameter wheels.”  If this phrase includes the tire, itself, Ms. Wenz needs a license; otherwise, she’s tooling around in a toy.  The appellate court had little difficulty deciding that Ms. Wenz needed a license, that “wheel” does not stop at the outer edge of the rim; rather, it’s where the “rubber meets the road.”