Listening to Defendant’s Phone Calls to His Attorney is Okay so long as You Say You Didn’t Really Hear Anything.

State v. Andersen, Minn.S.Ct., 6/30/2010.  A jury convicted Mr. Andersen of first degree premeditated murder of Chad Swedberg.  Mr. Swedberg was apparently shot from some distance while at his maple syruping camp. 

Police searched Andersen’s property pursuant to a search warrant; they found a rifle that may have been the murder weapon.  Mr. Andersen moved to suppress the rifle and other evidence that the officers found.  To prevail, he must show that the affidavit in support of the search warrant contains intentional or reckless misrepresentations of fact that are material to the finding of probable cause to issue the warrant.  State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (discussing and applying the two-prong test developed in Franks v. Delaware, 438 U.S. 154, 171-72 (1978)).  The appellate court first decided what the standard of review was and announced that the intentional/reckless misrepresentations is reviewed under a clearly erroneous standard, while materiality is reviewed de novo.  Applying this newly announced standard, the appellate court concluded that the application established probable cause so it was not necessary to determine the misrepresentations question.

In the run up to trial, various police investigators listened to telephone calls that Mr. Andersen made to his attorney’s cell phone.  The officers insisted that as soon as they realized that the calls were to an attorney they stopped listening.  Mr. Andersen said that the state should be required to prove that none of the state’s evidence derived, directly or indirectly from those phone calls.  Now, an intrusion into the attorney-client relationship does not, by itself, constitute a violation of the Sixth Amendment.  Weatherford v. Bursey, 429 U.S. 545 (1977).   The federal courts have articulated various tests by which to determine whether there has been a Sixth Amendment violation, but the appellate court here adopts none of them.  Rather, it’s satisfied with the trial court’s findings that the cops stopped listening once it was determined that it was an attorney call, that they heard nothing relating to the case, and that no one else overheard anything relating to the case.  Everyone got that? 

Three justices concurred in the result but continued to disagree with the majority’s standard of review of convictions based on circumstantial evidence.  See State v. Stein, 776 N.W.2d 709, 719 (Minn. 2010) to read up on this.  These same three justices would also support instructing the jury on the law of circumstantial evidence.

The State’s Service on a Defendant of a Subpoena Directed at his Spouse is Not Valid Service.

State v. Briard, Minn.Ct.App., 7/13/2010.  The state had charged Ms. Briard’s husband with criminal sexual conduct, alleging that he had sexually abuse one of his daughters.  The state wanted Ms. Briard to testify at her husband’s trial to recount certain alleged admissions that her husband had made.  A sheriff’s investigator went out to the Briard’s hog farm to serve her with a subpoena to testify at the husband’s trial; the investigator served the husband/defendant with the subpoena.  Ms. Briard did not appear for her husband’s trial (which resulted in an acquittal).

So, the state charged Ms. Briard with six counts of felony contempt of court, one count for each day of her husband’s trial.  She moved to dismiss, arguing among other things that there had been insufficient service of the subpoena when the sheriff’s investigator served her husband/defendant.  The appellate court concludes that the husband/defendant was not “a person of suitable age and discretion” to effect service on Ms. Briard.  Here’s the way Ms. Briard put it:

[Ii]t is easy to imagine how a criminal defendant having to give his or her spouse a subpoena compelling her appearance to testify against the defendant, or even informing the spouse that the subpoena had been delivered, would create not only acrimony, but also a situation ripe for violence

Makes sense.

Officer’s Claim Not to Have Heard Suspect Ask for a Lawyer is Not Controlling; Would a Reasonable Officer Have Heard the Request is the Question.

State v. Chavarria-Cruz, Minn.S.Ct., 6/30/2010.  During a custodial interrogation Mr. Chavarria-Cruz invoked his right to counsel, only the interrogating officer claimed that he didn’t hear him do that.  The trial court admitted the interrogation and the court of appeals affirmed.  I wrote about this case here.

Here’s the state’s transcript of the pertinent portion of the interrogation:

Hanson: You know where I‟m coming from on that, don‟t you? I‟m telling you that, that cooperation and honesty gets you farther than anything else in this. Cooperation, honesty and remorse. I know if something happened like that, you wouldn‟t, what would your mom be like? You know, to come outside and see you lying out in the driveway? You know, take all the other stuff out of it. What would your mom do? You know what I‟m saying? Your brothers know that, your brothers know it was part of their life. But I just don‟t think that these other people, I think that they‟re trying to hang somebody. I think they‟re trying to paint somebody as a cold blooded killer that is not a cold blooded killer.
Chavarria-Cruz: You talking about me?

Hanson: Talking about you buddy.
Chavarria-Cruz: I guess I‟ll go to court then.
Hanson: Pardon?
Chavarria-Cruz: I guess I‟ll go to court.
Hanson: You don‟t want to cooperate with us?
Chavarria-Cruz: That‟s not . . . I‟m, I‟m cooperating here, talking to you has been like you know, I think I need lawyer . . .
Hanson: Don‟t you understand though? Wizard!2 These guys are putting the gun in your hand.
Chavarria-Cruz: Gun in my hand?
Hanson: Yes.
Chavarria-Cruz: Oh.

Chief Justice Magnuson believed that “A review of the tape recording reveals that Chavarria-Cruz actually said something closer to, “I‟m cooperating here, if I could just be like, you know, get me a lawyer.”

Anyway, the appellate court employs an objective test – whether a suspect has articulated his desire to have counsel present sufficiently clearly that a reasonable officer in the circumstances would understand the statement to be a request for an attorney - to conclude, in a de novo review, that the trial court made a mistake in admitting the confession.  Further, as this confession was the primary evidence used to convict, the error was not harmless.

Remand to Ascertain Whether Counsel Conceded Guilt Without Defendant’s Consent; Other Errors Held Harmless.

State v. Prtine, Minn.S.Ct. 6/30/2010.  A jury convicted Mr. Prtine of first degree premeditated murder but convicted him of first degree felony murder.  Mr. Prtine allegedly stabbed Brent Ward some sixty-three times.  Mr. Prtine told both the police and the jury that the two men had argued over the purchase of drugs, that Mr. Ward hit him with his fists after which Mr. Prtine grabbed a knife and went to work on Mr. Ward.

During jury selection, a prospective juror opined, sometimes inconsistently, that she would be inclined to believe the testimony of a police officer because of the officer’s status as an officer.  Here’s more of what she had to say:

Upon further questioning by the court, J.B. indicated that she would not automatically credit a police officer over other witnesses but “would listen to the facts, I think.” After examination by the prosecutor, defense counsel asked J.B. if she would be more inclined to believe those witnesses she recognized on the witness list. J.B. replied, “If it was a police officer.” Upon further examination, J.B. stated, “I think that’s human nature to believe a police officer. You want to believe that police officer.” However, J.B. indicated she would “try and be fair” and “would weigh the facts.” Finally, when defense counsel asked J.B. if the facts were unclear and she had to make a judgment call between an officer and an unknown person which way would she lean, J.B. responded, “[t]oward the police officer.” When defense counsel asked if that was simply by virtue of the witness being a police officer, J.B. replied, “I guess so.”

The trial court denied the defense motion to strike for cause so the defense used a peremptory strike.  This was a mistake, State v. Logan, 535 N.W.2d 320 (Minn. 1995).  The key was that when given the chance to express her sentiments in her own words she always said that she would be more inclined to believe the cop.  Harmless error analysis applies to this error, however, and because the defense exercised a peremptory to excuse this potential juror, the error was harmless.  State v. Barlow, 541 N.W.2d 309 (Minn. 1995).  Chief Justice Gildea, joined by Justice Dietzen, said that denying the challenge for cause was not a mistake at all.  This potential juror uttered the correct mantra, “I could be fair.”

Over objection, the medical examiner testified that Mr. Ward’s assailant acted with an intent to kill.  This was another mistake.  State v. Chambers, 507 N.W.2d 237 (Minn. 1993).  More harmless error analysis:  because Prtine’s defense was self defense, this error was harmless.

During deliberations, the jury had a question, “If we agree on a higher charge, do we need to rule on the lesser charges?”  The trial court answered by saying that the jury did not need to consider lesser-included offenses if they found Mr. Prtine guilty of a greater offense.  This was mistake number three.  It was also plain error, but in light of all of the instructions, which everyone said were correct, this plain error did not affect Mr. Prtine’s substantial rights because it turned out that he was not entitled to the instruction on the lesser charge anyway!

Ineffective assistance, conceding intent for the first time during closing argument without Mr. Prtine’s without his consent.  The appellate court could not determine whether Mr. Prtine acquiesced in his counsel’s concession so they remand to the trial court to answer that question.  Chief Justice Gildea rejects this conclusion, joined by Justices Dietzen and Paul Anderson.

An Incomplete Memory Permits Introduction of recorded Recollection under Rule 8.03(5)

State v. Stone, Minn.S.Ct., 6/30/2010.  A jury convicted Mr. Stone of aiding and abetting first degree aggravated robbery.  The Court of Appeals upheld that conviction, which I wrote about here.  A witness, G.J., had difficulty remembering all of the events of the robbery and everything he had previously said to the police about it.  So, the trial court had permitted the introduction of his audio recorded statement to police, based on G.J.’s admitted alcoholism, the state’s failure to refresh his recollection, and G.J.’s testimony that he had an insufficient recollection of the events.

The state argued that the recording was admissible under Minn.R.Evid. 803(5), recorded recollection.  Here’s what that rule says:

[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Right out of the box Mr. Stone’s argument is in some difficulty.  That’s because he did not argue at trial that the audio-recording was a “memorandum or record”.  So, right away, Mr. Stone is down to two sub-arguments:  whether G. J. had sufficient recollection to testify fully and accurately, and whether he either made or adopted the statement when to subject of the statement was fresh in his memory.

Insufficient memory:  G.J. had some recollection, which is good enough to satisfy the rule, at least, which would seem always to be the case, when the missing parts of recollection are of “critical” details, like who it was who committed the crime.

Made or adopted:  This is easy when the witness hand-writes and signs a written statement; it’s been made or adopted.  A witness who testifies that a transcribed statement contains his signature and that he believes that he would not have signed it unless the contents were true has made or adopted the statement.  Walker v. Larson, 284 Minn. 99, 104, 169 N.W.2d 737, 741 (1969).  An audio recording gets a bit trickier, but where, as here, no one disputed that the voice on the recording was that of G.J., then he “made” the audio recording.

Attempted Suicide is Voluntary Absence From Trial

State v. Finnegan, Minn.S.Ct., 6/30/2010.  This is the guy who missed the second day of his trial because he was busy trying to commit suicide.  I’ve written about this previously, here.  Both the trial court and the court of appeals concluded that Mr. Finnegan’s absence from trial was voluntary and a waiver of his right to be present during the trial.  The Minnesota Supreme Court agrees in a badly splintered set of opinions.

An absent defendant has the burden to prove that the absence was involuntary and justified.  State v. Cassidy, 567 N.W.2d 707 (Minn. 1997)Mr. Finnegan suggested that a suicide attempt must always be an involuntary absence; the appellate court rejects this bright line approach and says that the voluntariness of a defendant’s absence is fact specific. 

Mr. Finnegan also argued that the trial court had jumped the gun in moving ahead with the trial at a point when the court had insufficient information on just what was going on.  The appellate court also rejects this argument; the trial court’s determination of voluntariness must be made with some dispatch lest jurors, witnesses and all the rest sit idly by.  Later, however, a defendant can file a post conviction petition to prove that the absence was involuntary, in which case he gets a new trial.  Mr. Finnegan did just that but failed to advance his claim.  Rather, he relied on the presentence investigation report which said that on the second day of trial he was intoxicated on methamphetamine and thus physically unable to come to his trial.  There was no evidence offered at post conviction that he had accidently or otherwise overdosed.

Justices Paul Anderson and Meyer dissented, in which Justice Page joined.

Harmless Error Analysis Applies to Failure to Obtain Personal Waiver of Offense Elements.

State v. Fluker, Minn.Ct.App., 4/27/2010.  The state charged Mr. Fluker with failure to register as a predatory offender.  At the start of trial, the state and defense counsel stipulated that Mr. Fluker was required to register and that the period of registration had not expired.  A jury duly convicted him.

The trial court did not obtain Mr. Fluker’s personal waiver of his right to a jury trial on the two stipulated elements of the offense.  Cf., Minn. R. Crim. P. 26.01, subd. 1(2)(a) (2008) (“The defendant, with the approval of the court may waive jury trial on the issue of guilt provided the defendant does so personally in writing or orally on the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.”)

This was error but was it an error subject to harmless error analysis?  Just last year, the Court of Appeals held that when a defendant agrees to a trial on stipulated facts the defendant must personally waive specified rights and that the failure to do so was error that automatically required a new trial.  State v. Antrim, 764 N.W.2d 67 (Minn.Ct.App. 2009).  Other recent opinions under Rule 26.01 have also declined to apply harmless error to failure to obtain personal waivers:  State v. Knoll, 739 N.W.2d 919 (Minn. App. 2007); State v. Ehmke, 752 N.W.2d 117 (Minn.Ct.App. 2008); State v. Halseth, 653 N.W.2d 782 (Minn. App. 2002).

Well, not so fast.  After all, Mr. Fluker isn’t waiving the entire trial, just stipulating to elements of the offense, damaging elements at that.  While a defendant can’t give away the entire farm without a personal waiver, he can give away the tractor and hay baler without that waiver.  Harmless error applies; this error was harmless.

Aggravating Factors: Failure to Obtain Medical Care is an Improper Factor in Intentional Murder, & Child is “Present” When Killer Knows Child Is In The Home and Will Discover the Body

State v. Robideau, Minn.Ct.App., 6/15/2010.  A jury convicted Mr. Robideau of intentional murder by stabbing his girlfriend to death.  The trial court enhanced his sentencing because Mr. Robideau had treated his girlfriend with particular cruelty and because his girlfriend’s son was in the home during the homicide.

The particular cruelty factor was based upon a finding that Mr. Robideau left his girlfriend to lie on the floor and asphyxiate on her own blood,and leaving her to be discovered too late to obtain medical assistance.  Although failure to obtain medical care for the victim may amount to particular cruelty, that cannot be the case when the crime is intentional murder.  Not calling 911 is part of the intentional conduct; it tends to show intent to cause death, an element of the offense.

The presence of a child in the home can be an aggravating factor provided that the state proves that the child saw, heard, or otherwise witnessed the offense.  State v. Vance, 765 N.W.2d 390 (Minn. 2009).  The trial court found that the child slept through the murder, so the child clearly did not “hear” the offense.  The appellate court concludes that the child “otherwise witnessed the offense” because Mr. Robineau knew that the child was home and that he was highly likely to discover his mother’s body soon after the murder, which is exactly what happened. 

The appellate court also rejects a challenge to Mr. Robineau’s police interrogation.  The court also okayed, on a plain error analysis, a police detective’s testimony that two jail snitches, who were cell mates, had not colluded in their testimony.

Murder Convictions Upheld in the Face of Claims of Multiple Legal Errors.

State v. Jenkins, Minn.S.Ct., 5/20/2010.  A jury convicted Mr. Jenkins of two counts of first degree premeditated murder and two counts of first degree felony murder; the trial court sentenced him to consecutive life sentences without possibility of parole on the first degree premeditated murder convictions.

The  investigation focused on Mr. Jenkins, whom the police knew had an outstanding bench warrant from another county.  Officers went to Mr. Jenkins’ rooming house; Mr. Jenkins came to the door and once officers figured out that he was Jenkins they arrested him.  According to the officers they allowed Mr. Jenkins to retrieve shoes and a coat from his room, during which an officer who went with Mr. Jenkins saw, among other things, two cell phones.  The officer conveyed that information to other officers who were preparing a search warrant.  After taking Mr. Jenkins out, other officers remained in the room to “freeze” the scene pending the search warrant; those officers happened to see the barrel of a handgun sticking out from under some clothing; this information also got sent along to the search warrant writers.  Jenkins denied returning to the room after greeting the officers and being arrested.

Mr. Jenkins complained that his arrest on the other county bench warrant was unlawful because it was a ruse to arrest him for the two homicides.  The appellate court quickly dismissed this argument, but to be safe it also said that there was probable cause to have arrested Mr. Jenkins on the homicides as well.  The appellate court also summarily rejected a claim that the police did not have authority to seize Mr. Jenkins’ clothes as part of the arrest. 

Mr. Jenkins challenged the search warrant by which police seized the cell phones and the gun.  The trial court had resolved a factual dispute in the state’s favor, that Mr. Jenkins had asked to reenter his room in order to get his shoes and coat.  There was no dispute that a female officer had entered the room to permit Mr. Jenkins’ guest to dress and leave.  That was enough for the appellate court to conclude that the officers were lawfully inside the room, where they then saw the cell phones and gun in plain sight.

Mr. Jenkins sought to introduce evidence that various alternative perpetrators had committed the homicides.  State v. Jones, 678 N.W.2d 1 (Minn. 2004) obligates a defendant to offer some evidence that has an inherent tendency to connect the alternative perp to the commission of the crime.  The appellate court concluded that Mr. Jenkins had not meet this threshold burden.  

Mr. Jenkins made a couple of other arguments, which the appellate court rejected.  You can follow the link at the top here to read about them.

Incarceration For a Supervised Release Violation Cannot Extend Into the Conditional Release Term

State of Minnesota, ex rel Billy Peterson v. Joan Fabian, Commissioner of Corrections, Minn.Ct.App., 6/29/2010.  This is an Opinion about supervised release and conditional release.  I have a headache already, as will you soon enough.

Let’s review.  A criminal sentence consists of a term of imprisonment equal to a minimum term of two thirds of the sentence that the court pronounced, and a maximum term of supervised release, equal to one third of that pronounced sentence.  For certain specified crimes, however, the sentence includes an additional period of conditional release. 

Here’s what happened.  On August 7, 2008, the trial court sentenced Mr. Peterson to a year and a day for his conviction of failure to register as a predatory offender.  Mr. Peterson should have completed service of his sentence on February 3, 2009.  In fact, DOC placed him on supervised release ahead of schedule, on October 6, 2008, but then revoked that supervised release on December 8, 2008.  DOC imposed 250 additional days of incarceration, which extended into the commencement of the term of conditional release.  Mr. Peterson filed a writ of habeas corpus, complaining that DOC could not hold him beyond his expiration date based solely on a supervised release violation.

The appellate court agrees, relying upon the statute, Minn.Stat. 243.166, subd. 5a, which directs that DOC is to place an offender on conditional release after completion of the sentence imposed.  That sentence includes imprisonment and supervised release.  The conditional release term cannot start until after imprisonment and supervised released are completed.  While Mr. Peterson could be sanctioned for violating his supervised release, that sanction cannot “bleed” into the conditional release term.

In reaching this result, the appellate court has to dance around other opinions that distinguish between supervised and conditional release.  State v. Enger, 539 N.W.2d 259 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995), and State v. Koperski, 611 N.W.2d 569 (Minn. App. 2000).  These opinions rather loosely declare that the two release periods must run concurrently.  The appellate court posits that those cases have to do with custody calculations, and not when, exactly, the conditional release term begins.