Giles v. California Gets Her’s Forfeiture by Wrongdoing Issue Returned to Trial Court For Evidentiary Hearing

State v. Her, Minn.S.Ct., 5/6/2010.  A jury convicted Mr. Her of first degree domestic abuse murder of his estranged wife; the trial court imposed a life sentence.  On the first appeal, State v. Moua Her (Her I), 750 N.W.2d 258, 264 (2008), Mr. Her argued that the trial court violated his confrontation rights by admitting evidence of his estranged wife’s statements to a police officer.  The appellate court affirmed, but the United States Supreme Court vacated and remanded for reconsideration in light of Giles v. California, 128 S. Ct. 2678 (2008).

Giles held that to invoke the forfeiture by wrongdoing doctrine the state must show not only that a defendant was responsible for the killing but that he committed the killing with intent to prevent the victim from testifying against him.

Among other arguments, the state argued that it was necessary to send the case back to the trial court for an evidentiary hearing on Mr. Her’s intent at the time of the murder.  Mr. Her opposed this suggestion, arguing, in part, that the state was on notice of a requirement to establish that Mr. Her killed his estranged wife for the purpose (in part, at least) to prevent her from testifying against him.  The appellate court rejects this argument, claiming that before Giles, Minnesota did not require this additional finding in order to invoke the forfeiture by wrongdoing doctrine.

Next, Mr. Her argued that no remand was necessary because the trial record contained sufficient evidence that he did not kill his estranged wife to keep her from being a witness against him.  Implicit in this argument is the assertion that intent to silence must be the sole motive for the murder in order for the doctrine to apply.  The appellate court does not decide this question but it does return the case to the trial court.

Justices Page and Paul Anderson dissent, arguing that the law well before – like in the 1600’s – obligated the state to prove that Her’s intent was to prevent his estranged wife from testifying.  That being the case, the state could not now ask for a re-do.

Presumptive Sentence on Remand, Although Above the “middle of the box” Number, is Neither a Departure nor an Abuse of Discretion.

State v. Delk, Minn.Ct.App., 5/4/2010.  Mr. Delk shot and killed Tiara Jo Martell with a .40 caliber semiautomatic pistol.  A jury convicted Mr. Delk of numerous offenses, the most serious of which was second degree intentional murder.  The trial court imposed a sentence on this count only but the appellate court sent the case back after concluding that the evidence did not support the conviction.  On remand, the trial court imposed a sentence on the second highest conviction, unintentional second degree murder, of 240 months.

The presumptive sentence range for second degree unintentional murder was 179 to 252 months.  Mr. Delk argued that any sentence other than the “middle of the box” sentence of 210 months is a departure from the presumptive sentence. 

An appellate court reviewes a trial court’s sentence for abuse of discretion.  State v. Ford, 539 N.W.2d 214, 229 (Minn. 1995).  This means that at least in theory, a sentence that is within the presumptive guidelines range can be reversed.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The appellate courts will generally not exercise its authority to modify a sentence within the presumptive range “absent compelling circumstances.” State v. Freyer, 328 N.W.2d 140, 142 (Minn. 1982).  Here, the appellate court brushes these notions aside, stating, instead, that because the sentence is within the range there was no abuse of discretion in imposing it.

Mr. Delk also argued that he got a longer sentence on remand than he originally got.  Follow the math.  On the original sentence for intentional second degree murder, the trial court imposed a sentence that was 12 months above the “middle of the box” number.  On remand, however, the trial court imposed a sentence that was 30 months more than the “middle of the box” number.  Well, no, the rule only prohibits a sentence on remand that is greater in actual length than the original sentence, which was not the case here.

In one last bid to get a lower sentence, Mr. Delk argued that the trial court’s sentence was largely the result of the prosecutor’s displeasure with the original reversal and remand.  The appellate court rejects this claim, in large part because the trial court did state its reasoning for imposing a sentence that was above the “middle of the box” number.

Counsel’s Failure to Submit Written Final Argument in Bench Trial is Ineffective Assistance of Counsel and a Structural Error Requiring a New Trial.

State v. Dalbec, Minn.Ct.App., 5/4/2010.  The state charged Mr. Dalbec with criminal sexual conduct in the third degree, helpless (asleep) victim.  Mr. Dalbec waived a jury trial, at the end of which the parties agreed to submit written final arguments.  Mr. Dalbec’s counsel missed the filling deadline; the clerk’s office called to inquire and to remind him that he was late.  Still nothing.  The trial court found Mr. Dalbec guilty.

The lab found semen in the victim’s vagina, which the lab “linked” to Mr. Dalbec.  The victim testified that she remembered nothing from the time when she fell asleep on a couch at Mr. Dalbec’s place until the next morning when she awoke next to Mr. Dalbec in his bed.  Another witness heard the victim ask Mr. Dalbec if she could sleep in his bedroom, heard him answer that she could, and heard him say that he would sleep on the floor. 

The trial court found that the victim was asleep when Mr. Dalbec had intercourse with her and was thus “helpless.”  The appellate court that that this was a rather dubious finding because for all the record showed, there may have been penetration between the time when the victim entered Mr. Dalbec’s bedroom and eventually fell asleep.  Penetration during that time period would not have satisfied the state’s theory – it’s only theory – that the victim was helpless because she was asleep.  Still, though, the appellate court was not willing to conclude that the state failed to prove the charge by sufficient evidence.

What the appellate court does conclude is that there was no strategic reason for counsel to have failed to submit a written argument.  Although the appellate court tries to confine this holding to the facts of this case, it does not actually do that, so the holding is pretty broad.  In this instance, however, the evidence of the helplessness element was weak, which counsel could have forcefully pointed out.  An argument may also have made the trial court think twice about its alternative theory of liability, that the victim, if not helpless, was unable to withhold consent because of a physical condition.  There was no evidence to support such an alternative theory.  “As the Supreme Court acknowledged, a closing argument “may correct a premature misjudgment and avoid an otherwise erroneous verdict.” Herring v. New York, 422 U.S.”  Counsel was thus ineffective.

This error is a structural error that is not subject to harmless error analysis.  Counsel’s missing in action status for written final argument was during a critical stage of the proceedings.  United States v. Cronic, 466 U.S. 648 (1984).  Mr. Dalbec gets a new trial.

Lawfully Collected Blood Exemplar May Be Tested For Alcohol Concentration Without a Warrant.

Harrison v. Commissioner of Public Safety, Minn.Ct.App., 5/4/2010.  Twice, police arrested Mr. Harrison for DUI; each time he consented to provide a blood exemplar for blood alcohol testing.  Each test produced a result that was over the legal limit; the commissioner revoked his license.  Mr. Harrison challenged the revocation, arguing that the testing of the preserved blood exemplars was done without a warrant.

There’s lots of law out there that says that “exigent circumstances justify the collection of a blood exemplar in the context of alcohol testing for impaired driving.  Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966); State v. Netland, 762 N.W.2d 202 (Minn. 2009).  Mr. Harrison said, okay, you can collect my blood but you still need a warrant to test it.  The appellate court concludes that Mr. Harrison lost any legitimate expectation of privacy in the alcohol concentration derived from analysis of a lawfully obtained blood exemplar.

“Park Zone” Defined, Sort of, For Drug Offenses.

State v. Carufel, Minn.St.Ct., 4/29/2010.  On three different dates an informant went to Mr. Carufel’s residence and purchased cocaine from him.  For each of these purchases, the state charged Mr. Carufel of third degree sale of narcotics and with second degree sale of narcotics.  The state supported the second degree count with the claim that the sale had taken place in a “park zone,” in this case, Gabryck Park.

Now, in case you’re wondering, Mr. Carufel does not live in this park, nor is his house situated within the park’s boundaries.  Rather, the state claimed that Mr. Carufel’s house is within “the area within 300 feet or one city block, whichever distance is greater, of the park boundary.”  Minn.Stat.  152.01, subd. 12a. The question is:  what is a city block?

Well, first it has to be a square block.  If you’re selling drugs in the vicinity of Como Park, breath easier.  On the other hand, if you’re selling drugs across town at Hamline Park, think about moving your operation.

Gabryck Park occupies one square block; Mr. Carufel’s house is on the next street over to the east, which is also a square block.   (If you need a map, go here.)  Unfortunately for him, his house is on the western side of this street.  That’s enough for the appellate court; Mr. Carufel’s house is within the area of a city block of the park boundary.  Curiously,

Justice Page concurs in the result only.  Justice Paul Anderson concurs in the result but with a totally different interpretation, complete with diagrams; it’s a must read.