Medical Examiner’s Testimony About an Element of the Offense Is Assumed to be Error but Harmless.

State v. Sontoya, Minn.S.Ct., 9/16/2010.  A jury convicted Mr. Sontoya of first degree murder while committing first degree criminal sexual conduct.  Injuries to the victim were pervasive and included a fourteen inch laceration through the vaginal wall into the pelvic area and the abdominal cavity.  Mr. Sontoya’s defense was that the sex was consensual and the victim’s injuries and death were accidental.

The Ramsey County Medical Examiner testified that the manner of death was “Exsanguination due to multiple traumatic injuries due to a sexual assault.”  [Emphasis added.]  The state followed up this pronouncement by asking if the ME was saying that the victim bled to death from the sexual assault; the doc said, yes.  In closing argument, the state thrice repeated the ME’s assertion about the sexual assault.

Defense counsel didn’t object to the ME’s testimony about an element of the offense, sexual assault, so on appeal, this testimony gets reviewed under plain error.  The appellate court punts the question whether admitting this assertion was error, plain or otherwise, and assumes that it was.  This allowed the appellate court to move right into a lurid elucidation of the injuries to the victim from which it could conclude that any error had no significant effect on the jury’s verdict.

Justices Paul H. Anderson and Page concurred in the result but took the majority to task for ducking the error question, the admission of the ME’s testimony about an element of the offense.  It’s worth quoting at some length from Justice Anderson’s concurrence:

At Sontoya’s trial, the last witness called by the State was the Ramsey County Medical Examiner who examined G.R.’s body at the crime scene and conducted the autopsy. During direct examination, the medical examiner testified that the cause of G.R.’s death was “exsanguinations due to multiple traumatic injuries due to a sexual assault.” The State followed this answer with a question about whether G.R. “bled to death from the sexual assault” and, in his answer, the medical examiner confirmed that she had. The medical examiner then testified that the manner of death was “homicide.” The State continued to question the medical examiner as to whether he could determine G.R.’s time of death due to the “sexual assault.” During this questioning, the medical examiner testified that the contusions on G.R.’s arms were “fingerprint injuries” which occur when someone is grabbed “during the course of an assault.” Finally, the State used the medical examiner’s expert testimony in its closing argument when it made the following assertions:

As I said, we know that G.R. died a horrific death. She bled to death from a sexual assault, as the medical examiner has testified.

The medical examiner testified that G.R. died as a result of bleeding to death from a sexual assault. That, Ladies and Gentlemen, is Murder in the First Degree.

The medical examiner told you that she died from a sexual assault that caused her to bleed to death.

(Emphasis added.)

Justice Anderson reminds the majority that way back in 1982 the court  had said that admission of a physician’s opinion that a rape or a sexual assault had occurred constituted error.  State v. Saldana, 324 N.W.2d 227 (Minn. 1982).  So, deciding the error question wasn’t really all that hard to do.  If they needed a reminder, just five years ago, the court had said that admission of the testimony from a treating physician that a victim’s injuries met the definition of “great bodily harm,” an element of the offense, was improper and inadmissible.  Finally, Justice Anderson summarized the proper scope of a ME’s testimony in a murder case:

A pathologist may appropriately testify to things such as the number and extent of the wounds, the amount of bleeding, whether the wounds were caused by a knife or a blunt instrument, whether a gunshot wound is a contact wound, whether the wounds could or could not have been the result of accident, the cause of death, and so forth, but the pathologist should not be allowed to make an “expert inference” of intent to kill from these matters. That is for the jury to do.

State v. Chambers, 507 N.W.2d 237, 238 (Minn. 1993).  Justices Anderson and Page conclude by saying that this is one of those outlier cases where the error did, indeed, fail to affect Mr. Sontoya’s substantial rights.

No Aiding an Offender Defense Under Facts of This Case; Defendant Not In Custody During First Interrogation.

State v. Flowers, Minn.S.Ct., A09-1359, 9/16/2010.  A jury convicted 16 year old Mr. Flowers of the first degree premeditated murder of Katricia Daniels and her 10 year old son.  Daniels’ cell phone recorded a call to Tiffany Simmons, who told police that she had dropped Mr. Flowers and another guy, Mr. Thompson, off at the Daniels’ residence on the night of the homicides.  Ms. Simmons arranged for police officers to meet with Mr. Flowers, among others; Mr. Flowers agreed to go down to the police station to chat.  Mr. Flowers admitted being at the Daniels’ residence but said that Ms. Daniels was fine when he left.

Officers left Ms. Simmons and Mr. Flowers to stew in separate interview rooms,during which they learned that Ms. Simmons had admitted to her roommate that she knew about the murders.  When the officers went back and asked her about this she admitted picking up Mr. Flowers and his buddy near the Daniels’ residence and that Mr. Flowers’ buddy’s clothes were covered with blood.  That was enough for the police to arrest Mr. Flowers and his buddy.  The cops also interviewed Mr. Flowers a second time: 

During this interview, Flowers stated that he did not kill either Daniels or Shepard, but admitted that Thompson killed Daniels because he wanted her car, or “wanted somethin” and killed Shepard so that there would be no witnesses to his actions. Flowers explained that Thompson first hit Daniels with a golf club, and then stabbed her, and at some point Daniels tried to lock herself in the bathroom. He also explained that Thompson hit Shepard with a TV, knocking him out, and then stabbed him. Flowers said, “I was trying to keep Rob in there, keep Rob in his room. Because Rob was in the room and I (inaudible) stay here because I didn’t want him to see his mom.”

Flowers claimed that he asked Thompson to stop and that he tried to grab Thompson, but Thompson “pushed [him] off.” He also claimed that “I was just (inaudible) to get out of there (inaudible); I didn’t want any part (inaudible).” Flowers admitted that before Shepard was attacked, he took Daniels’s cellular telephone from her bedroom when told to do so by Thompson and later threw the telephone in an alley garbage can. Flowers explained that while standing in the alley after he and Thompson left Daniel’s home, Thompson yelled at him because Flowers “didn’t do anything.”

Mr. Flowers complained on appeal that his Fifth Amendment rights were violated by the admission of the first police interview.  The appellate court said that whether someone is in custody is a mixed question of law and fact.  That is, the trial court’s factual determinations are reviewed for clear error but the question whether those facts support the legal conclusion that the person was in custody is reviewed independently.  The legal test is:

whether a reasonable person in the individual’s situation would have understood that he was in custody. State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998). If the police have not yet formally arrested the individual, a court must examine all of the surrounding circumstances and evaluate whether a reasonable person in the individual’s position would believe he was restrained to a degree associated with a formal arrest.

The appellate court has a list of factors that it considers to decide the custody question:  where the interrogation took place;whether the officers told the person that he was a prime suspect, whether officers retrained in person’s freedom, whether the person made an incriminating statement, whether there were multiple officers present, and whether any of the officers used a gun.  State v. Staats, 658 N.W.2d 207, 211 (Minn. 2003).  Mr. Flowers suggested two additional factors: that the interview was recorded, and that he was not allowed to make telephone calls.  The appellate court said that the consider the recording as indicative of being in custody would discourage that recording so it would not add that factor to its list.  On the telephone calls, Mr. Flowers never actually requested to make a phone call so the cops didn’t prevent him from phoning home.  Ultimately, the court says that it’s a “close call” but it tips to a no custody conclusion.

Mr. Flowers wanted the trial court to instruct the jury on aiding an offender after the fact, but the trial court declined to do so.  Mr. Flowers said that the deprived him of the right to present a defense.  The first question, however, is whether aiding an offender after the fact is a defense.  Mr. Flowers said that it was, citing States v. Brown, 33 F.3d 1002 (8th Cir. 1994).  Brown picked up some duffle bags that were stuffed with money taken in a bank robbery; he said he had nothing to do with the robbery but that he had only been hired to pick up the loot.  Mr. Brown, on those facts, convinced the Eighth Circuit, that he could not be an accomplice after the fact if he were guilty of the aided offense; you can’t assist yourself.  Because his defense was inconsistent with that of the state, Mr. Brown was entitled to the instruction.

Not so here, or so said the appellate court.  The state’s theory was that both Mr. Thompson and Mr. Flowers participated in the murders; that each may have aided the other did not create the “defense” of aiding an offender after the fact.  The appellate court leaves to another day/set of facts to decide whether to adopt Brown.

A “Waiver” of Error is Different from Abandonment of Asserting a Known Error For Purposes of Appellate Review

State v. Mohomoud, Minn.Ct.App., 9/14/2010.  An officer stopped Mr. Mohomoud for speeding, which deteriorated into a no license/ felony DUI charge, second degree test refusal. 

Mr. Mohomoud stipulated to his prior impaired driving offenses.  Nonetheless, the state wanted to play for the jury a video recording of the implied consent advisory, which included Mr. Mohomoud’s admission to the aforesaid stipulated prior impaired driving offenses.  Defense counsel did not object to the admission of this video recording despite the aforesaid stipulated prior impaired driving offenses.  So, has defense counsel failed to object to the introduction of this recording – a forfeiture of error; or, has defense counsel intentionally given up his client’s right to keep this evidence out the hearing of the jury – a waiver of error?

Here, defense counsel said that he knew exactly what the prosecutor was talking about when the video recording was offered, including that it included references to the aforesaid stipulated prior impairing driving offenses.  It was not a case, therefore, where defense counsel didn’t know that he could or should object; he knew damn well he could/should object but chose not to do so.  Counsel thus waived his client’s right to have the evidence of his prior impaired driving offenses excluded from the jury’s ears.  Having acceded to the admissibility of this recording, Mr. Mohomoud can’t now complain to the appellate court about it.  The appellate court does note that whether this right can actually be waived and, if so, just how to do it – by counsel or personally by defendant – is not before it; the court is mum, therefore, on these more intriguing questions.

Mr. Mohomoud also complained that the trial court misstated the law of probable cause in its jury instruction on the same, CRIMJIG 29.28.  The court of appeals recently ruled on this instruction in State v. Koppi, 779 N.W.2d 562, 566 (Minn. App. 2010), review granted (May 18, 2010).   The JIG leaves out the part that the officer’s probable cause belief be explainable by reference to objective facts and circumstances.  As in Koppi, however, any error in the instructions here was also harmless.

No Error in Denying Defense Continuance Request in Order to Obtain DNA Testing.

State v. Robert Larson, Minn.S.Ct., 9/2/2010.  The state charged Mr. Larson with first degree murder.  The state alleged that Robert utilized “zip strips” to choke Thomas John Cady to death because Mr. Cady had abused his sister, Jamie Larson, or so everyone believed.  You can read about Jamie’s predicament here.

Shortly before trial commenced officers obtained DNA exemplars from three potential suspects; they did so because there was an unknown male DNA profile on two cigarette butts in Mr. Cady’s vehicle ashtray and on a jacket found at the intersection near the murder scene.  Before DNA testing could be done, however, an officer concluded that the cigarette butts and the jacket belonged to one of these three potential suspects and so the DNA was “almost certainly” that person’s DNA. 

Mr. Larson, being the suspicious type, wanted to put science to the test and get the DNA testing anyway so he asked for a continuance.  The trial court denied the request and the appellate court upholds that denial.  Mr. Larson could not show that the explanation of the provenance of the cigs and jacket was unreasonable so he could not show that the DNA testing would have materially affected the trial.  (Of course, the only way to have shown that would have been to get the DNA testing.  Go figure.)

Mr. Larson, as did his sister, sought to set up a third party perpetrator defense.  On cross examination of one of three potential third party suspects defense counsel asked when the police had taken a DNA exemplar from him, to suggest, the appellate court surmises, that the police had not been thorough in their investigation.  In response, the state asked this potential suspect if he had voluntarily provided a DNA exemplar.  The appellate court said two things:  first, the defense “opened the door” to questions about obtaining DNA; and second, that the potential suspect volunteered his DNA was potentially exculpatory, something the state is allowed to present to rehab a potential third party perpetrator.  State v. Jones, 753 N.W.2d 677 (Minn. 2008).  Justices Page and Paul Anderson thought that telling the jury that the DNA exemplars were obtained voluntarily had been error, but harmless.

The appellate court did say, as it has previously, that the state can’t tell the jury that a defendant had refused to submit a DNA exemplar.  See Jones.

In a companion argument to Jamie’s complaint about authentication of transcripts of police interviews of witnesses, the appellate court ducks answering the question whether the trial court commits error by declining to order the police to authenticate the transcripts. 

A Murder Victim’s Threats to a Third Person Do Not Authorize Third Party Perpetrator Evidence.

State v. Jamie Larson, Minn.S.Ct., 9/2/2010.  The state charged Ms. Larson with aiding and abetting first degree murder.  Her brother, Robert, utilized “zip stips” to choke Thomas John Cady to death because Mr. Cady had abused Ms. Larson, or so everyone believed.  Ms. Larson drove Mr. Cady’s truck to the eventual murder site, as Mr. Cady lay sleeping off the effects of too many street drugs.  You can read about Robert’s appeal here.

Ms. Larson wanted to introduce third party perpetrator evidence which consisted of the following:

(1)  Mr. Cady had burglarized B.E.’s house and threatened to kill B.E. when B.E. confronted him about it.

(2)  Mr. Cady had found Ms. Larson and J.H. in a compromising position, which prompted Mr. Cady to threaten J.H. and his children too; which, in turn, prompted J.H. to threaten to kill Mr. Cady.

For third party perpetrator evidence to be admissible, there must be evidence that has an inherent tendency to connect a proposed third party perpetrator with the commission of the charged offense.  State v. Atkinson, 774 N.W.2d 584 (Minn. 2009).  A threat by the murder victim, however, lacks that inherent tendency so to connect.  Even more problematic for Ms. Larson, she could offer no evidence whatsoever to put either B.E. or J.H. anywhere near the murder scene.

Ms. Larson also complained that the jury should have known that a key witness for the state was in removal proceedings, was an illegal immigrant, and was not charged with either a drug or fraud offense for stuff police found in his hotel room.  However, there was no evidence that this witness had received any consideration from the government for his testimony so there was no impeachment value to this information.

Ms. Larson tried to introduce transcripts of law enforcement interviews, which her counsel had prepared from the audio recordings that the state had provided.  She wanted either to introduce the transcripts as substantive evidence or to use them to impeach the witness that had been interviewed.  The defense neither showed the transcripts to the officers nor called those officers to authenticate the transcripts.

No one seems to have heard of State v. Graham, 764 N.W.2d 340 (Minn. 2009), which initially puts the burden on the state to prepare transcripts of audio recordings that its agents have generated.  Alternatively, a defense generated transcript should be provided to the state for verification and if they won’t do it, then the court steps in to order appropriate relief.  Here, Ms. Larson made no effort to authenticate the transcript, Rule 901(a), so the trial court correctly declined to admit them as substantive evidence.  Any error in prohibiting the transcript’s use for impeachment was harmless.

Finally, Ms. Larson complained about several of the court’s jury instructions but the appellate court found these complaints either to be not preserved or without merit.

Double Jeopardy Claim Deemed Waived as a Matter of State Law.

State v. Jeffries, Minn.Ct.App., 8/31/10.  The state charged Mr. Jeffries with felony domestic assault, then gave notice of its intent to seek to impose upon him an upward sentencing departure for being a career offender.  Mr. Jeffries then decided to plead guilty under a deal that called for an upward, but stayed sentencing departure.  The trial court not only accepted the plea, it pronounced Mr. Jefferies “convicted of that.”

And then changed his mind.  Mr. Jeffries showed up for sentencing, only to hear the judge say that he was rejecting the plea agreement.  The judge, trying to be magnanimous, said to Mr. Jeffries “I’m giving you your pleas back.  So you’re not guilty.”  Mr. Jefferies then renegotiated a guilty plea, one that sent him to prison for five years. 

Feeling like something was just not right, Mr. Jeffries appealed.  On appeal, Mr. Jeffries argued that by accepting his first guilty plea jeopardy attached so that the second plea was a violation of the prohibition against double jeopardy.  The appellate court wanders around in the desert for a while on whether this could possibly be the law, generally going in the direction that it wasn’t.  Fortunately, there was an easier out:  defense counsel never raised the double jeopardy claim, so it’s waived.

But, hold on.  Didn’t the Minnesota Supreme Court, relying on the U.S. Supreme Court, say that a guilty plea, by itself, does not waive a claim of double jeopardy that can be “judged on its face”?  Yes, it did.  State v. Jenson, 312 N.W.2d 673 (Minn. 1981).  But, then there’s Danforth v. Minnesota, 128 S.Ct. 1029 (2008), which says that answers to some seemingly federal questions are not binding on the states after all.  Looking at state law, double jeopardy is an affirmative defense.  Minn.R.Crim.P. 14.01(d).  Mr. Jeffries said nothing to the trial court about double jeopardy so his second guilty plea waived that claim.

Mr. Jeffries has petitioned for further review.

Driving on Expired Tabs Is Still a Crime, Even Within the Ten Day Grace Period to Affix Them.

State v. Carter, Minn.Ct.App., 8/31/10.  On November 5, 2006, a deputy sheriff stopped Mr. Carter’s car for expired registration.  Now, this was not a case where Mr. Carter had bought the tabs but just hadn’t got around to cleaning all the gunk off his plates so that he could figure that the tabs would adhere to the plates.  No, the tabs were expired.  Mr. Carter complained, nonetheless, that his failure to display current tabs was not a violation of law because the fifth day of the month was within the ten day statutory grace period in Minn.Stat. 168.09, subd. 4.  If that’s true, then the deputy didn’t have probable cause to have stopped him.  Here’s what this statute says:

[A registered vehicle must display the] “insignia issued within ten days of the first day of the month which commences the registration period.”

There’s another statue (there’s always another statue), Minn.Stat. 168.017, subd. 2, which says that passenger cars have to be registered “according to the monthly series system of registration prescribed by this section.”  The trial court concluded that operating a car with expired tabs is a crime, even within the ten day grace period allowed to displaying said tabs.  The appellate court adopts this interpretation of these statutes:

A vehicle must be validly registered to be operated, and registration is only valid for 12 months. The legislature granted vehicle owners ten additional days to place the new registration tabs on their license plates; but the legislature did not provide for an additional ten days for vehicle registration. And we decline to read such a provision into the statute.

Under “Plain Error” Test, Admission of Two Out of Court Statements Did Not Violate Crawford; Court Ducks Challenge to Admissibility of Fingerprint Evidence.

State v. Hull, Minn.S.Ct., 9/9/10.  Lewis Wilczek went missing after a family barbeque.  Six days later, police found his body buried in a gravel pit.  A grand jury indicted Mr. Hull for Mr. Wilczek’s murder, and a jury convicted him.  Mr. Hull did not deny killing Mr. Wilczek; rather, he argued that he had acted with neither premeditation nor intent.

On appeal, Mr. Hull complained that the admission of two out of court statements made by Mr. Wilczek to third parties violated his confrontation rights.  In one such statement, J.B., a friend of Mr. Wilczek’s said that Mr. Wilczek told him that he was meeting Mr. Hull and that if he wasn’t back by a certain time “somethin’ was probably wrong.” 

Mr. Hull did not raise the confrontation claim at trial and so on appeal, “plain error” is the standard of review.  Under that standard the appellate court handily concludes that this statement was of the “casual remark to an acquaintance” kind and not a “formal statement” to a police officer.  It was thus not testimonial.  Moreover, it was not hearsay because it was admitted to explain J.B.’s efforts to find Mr. Wilczek the next day.

The second out of court statement was to a police officer at least.  Mr. Wilczek called the police to report the theft of cash and checks from his business.  Mr. Wilczek offered the name of a suspect but it was not Mr. Hull; the problem was, defense counsel elicited the information on cross examination that Mr. Hull’s name “came up” during the report.  Now, naming Mr. Hull as a possible suspect clearly was to assist the cops in the investigation so that’s “testimonial” evidence.  The question was, though, who started this name calling anyway?

The appellate court rejects the state’s contention that Mr. Hull had “opened the door” to the officer’s statement about Mr. Hull’s name coming up.  The appellate court said, wait a minute:  that the state had started it because there was no other reason to offer evidence of the theft except to dirty up Mr. Hull.  (Chief Justice Gildea and Justice Dietzen concluded that Mr. Hull did “open the door” and thus waived the Confrontation Clause right, relying on a Tenth Circuit opinion, United States v. Lopez-Medina, 596 F.3d 715 (10th Cir. 2010).  Cf., United States v. Cromer, 389 F.3d 662 (6th Cir. 2004).]  In any event, whoever started it, admitting this testimony was not plain error.

In a pretrial hearing, Mr. Hull moved to exclude fingerprint and handwriting evidence.  The trial court held a hearing, limited to whether the procedures that had been followed in this case complied with appropriate standards and controls.  A majority agreed in principal that lengthy use of a method by law enforcement and unquestioning acceptance by courts does not by itself exempt expert testimony from scrutiny under the first prong of the Fry-Mack test, whether the test has been generally accepted as scientifically reliable.  At the same time, the appellate court declined to send the case back to the trial court for a full blown, anything goes, Fry-Mack hearing.  Instead, the appellate court ducks the issue, concluding that if they could figure out that there was error it was harmless. 

Admission of Questions that Inescapably Imply a Non-testifying Witness’s Answers Violate Crawford.

State v. Swaney, Minn.S.Ct., 8/26/10.  Back in May, 2001, Carrie Nelson worked at Blue Mounds State Park at the park entrance where you get your visitor’s pass.  A coworker found her dead body behind the service counter; there were signs of a struggle and there was a rather large sum of cash also missing.  When DNA testing proved inconclusive the case went cold for about five years.  New DNA testing at that point suggested the presence of both Mr. & Mrs. Swaney in the park station.  Investigators also turned up both finger and palm prints of Mr. Swaney from inside the park entrance station.

During this renewed investigation, Mr. Swaney was in prison out in South Dakota.  Although Mrs. Swaney had a solid alibi, Investigators interviewed her just the same, during which they asked her about a watch and a cigarette box from a particular brand of cigarettes that had been found at the park entrance station.  Mr. Swaney asserted marital privilege and so his wife did not testify.  The state offered evidence of the questions that were asked of Mrs. Swaney, some of which implied her answers.  Here’s a good example, which focuses on the cigarette box:

Russell: I asked her if that’s what he liked, referring to the cigarettes [in the photograph].

. . . .

State: What was the next question you asked Mrs. Swaney after your question, That’s what he liked?

Russell: I asked her if she would buy cartons of those types of cigarettes.

See how this works?  Mr. Swaney consistently objected that because many of the questions implied Mrs. Swaney’s answers the questions were hearsay, admitted in violation of Mr. Swaney’s confrontation rights.  The appellate court concludes that some of the questions were exactly that, saying that testimony “that inescapably implies a non-testifying witness’s testimonial hearsay statement” violates the Confrontation Clause.  Alas, though, the admission of the evidence was harmless beyond a reasonable doubt.

Mr. Swaney presented evidence that a third party may have committed the murder; he also wanted to introduce evidence of a prior bad act – reverse Spreigl - (a kidnap and robbery) by this alternative perpetrator.  The appellate court upholds the exclusion of this evidence, offered to prove identity, saying that the other crimes were not sufficiently similar enough to the current crime in terms of time, place or modus operandi to have been admitted.  The appellate court said that the other kidnap had been for the purpose of facilitating an escape from prison whereas the kidnap here was to facilitate a robbery.  Although each crime involved the use of a weapon, the weapon in the other crime was used only to threaten the victim whereas here it was used to kill.  Lastly, because the other crime occurred some ninety miles from the state park, either time nor location are sufficiently similar. 

So, take this very parsimonious view of Spreigl evidence with you the next time the state wants to introduce Spreigl evidence.

There were some other legal issues raised, but these were the main ones.

Pants on the Ground

State v. Wiggins, Minn.Ct.App., 9/14/10.  The state charged Mr. Wiggins with possession of a firearm by an ineligible person.  Mr. Wiggins was hanging with two of his homies in the parking lot of the White Castle.  None of the three was actually eating White Castle food, which you would think was a good thing.  Officer Kara Breci, however, thought that this was highly suspicious so she and her partner approached the car.  As they did so, one of the occupants dropped a plastic bag to the floor; when asked what the bag contained, he replied, “some weed.”  That was enough for the officers to order all three out of the car, and to order Mr. Wiggins to raise his hands above his head.  When he did so his pants fell to his knees.

Officer Breci was intending to frisk Mr. Wiggins.  Being either good natured or squeamish, one supposes, Officer Breci decided first to pull Mr. Wiggins’ pants back up; in doing so, she felt something heavy in one of the pockets, which turned out to be a firearm.  Mr. Wiggins complained that the officers lacked reasonable suspicion to have seized the car and its occupants, and that hoisting up his pants was an unconstitutional frisk.  The trial court denied the motion. 

Here’s how the appellate court described the issue:

This case requires us to determine the constitutionality of a novel police procedure which, as far as we can tell, has never been reviewed on appeal by this court or any other. An officer investigating a suspected drug deal directed appellant Frank Wiggins from a car, ordered him to raise his hands high overhead, and then discovered a handgun in his pocket when she hoisted up his sagging pants that had dropped to hang around his knees. Wiggins appeals from his conviction of possession of a firearm by an ineligible person. We must decide whether the unique wardrobe assist was a search subject to constitutional regulation and, if not, whether it was the kind of seizure-related contact otherwise prohibited by the Fourth Amendment.

On appeal, Mr. Wiggins conceded that the officers lawfully approached the parked car and looked inside; and that on seeing the weed they could order the three occupants out to search the car.  The appellate court, at the same time, conceded that the officers seized Mr. Wiggins when they ordered him out of the car, although they did so lawfully.  That left the search and the frisk. 

Mr. Wiggins continued to complain that the officer had no reasonable, articulable suspicion to have “frisked” him, if, indeed, that’s what the officer did when she hoisted up Mr. Wiggins pants.  The trial court had concluded that there was neither a search nor a frisk at all when the officer hoisted up Mr. Wiggins pants and found the gun.  Rather, it was “an accidental finding of a gun as she’s trying to help him get his pants into a decent position.”  The appellate court agrees with this description, saying in a clearly tongue in cheek attitude that “[It] fits,” (apparently unlike Mr. Wiggins’ pants).  The appellate court feels compelled to elaborate just a bit:

… Wiggins was standing in a public parking lot on a busy St. Paul street with his hands high in the air and his pants drooping at his knees. Even assuming that Wiggins intended his pants to sag somewhat, the district court aptly construed the knee-level positioning as “extreme.”

The appellate court winds up with this admonition to anyone who might be thinking of making his or her own “fashion statement” in the name of the law:

Wiggins argues that affirming the district court would encourage officers to trample the privacy of young people who participate in the baggy-pants fashion trend. The concern is unwarranted. Our holding arises from the unique facts here. … [W]e are confident that our opinion will not be misconstrued to suggest that an officer can freely meddle with a person’s clothes to the refrain, “Pants on the ground, pants on the ground” under the guise of providing public assistance.

In the spirit of public assistance, if you’d like to see the lyrics to “Pants on the Ground,” go here.

No Batson Error; Trial Court Need Not Use A Zero Criminal History Score When Sentencing a Felony Consecutively to a Gross Misdemeanor.

State v. Rivers, Minn.Ct.App., 8/17/10.  Mr. Rivers requested and received a continuance on his girlfriend’s order for protection application, apparently so that right after court he could go over to the girlfriend’s apartment and assault her as she was holding their one year old daughter.  The state charged him with two counts of first degree burglary, felony domestic assault, violation of an order for protection, assault in the third degree and gross misdemeanor child endangerment.

Mr. Rivers is Black; the prosecutor struck the one and only minority member of the jury pool, which Mr. Rivers challenged under Batson v. Kentucky, 476 U.S. 79 (1986).  Minnesota has long held that it will reverse the trial court’s determination of a Batson challenge only if that determination is clearly erroneous.  State v. Pendleton, 725 N.W.2d 717 (Minn. 2007).  If memory serves, Minnesota appellate courts have reversed maybe one or two of uncountable Batson errors presented to them.  Suffice it to say that once again the appellate court upholds the trial court’s determination that the prosecutor’s strike did not violate  Batson.

The other issue in the case is a sentencing issue.  The jury convicted Mr. Rivers of everything, including the gross misdemeanor.  Without explanation, the trial court sentenced Mr. Rivers first on the gross misdemeanor, then on the felony first degree burglary.  The trial court sentenced Mr. Rivers to a consecutive sentence on the felony burglary at the criminal history box of two.  Mr. Rivers complained that the trial court should have used a criminal history score of zero, because that’s the rule for sentencing permissive consecutive felony sentences.  The appellate court rejects this argument.

First problem is that the Guidelines don’t care how the trial court sentences gross misdemeanors; they only care about felony sentences so the Guidelines don’t apply.  Second problem, even if somehow the Guidelines did apply, they don’t authorize permissive consecutive sentences for crimes against separate victims;  all of those rules are from case law.  Because the Guidelines don’t apply, then the trial court could not have abused its discretion by failing to follow the Guidelines rule to use a zero history score when sentencing permissively!

Mr. Rivers has filed for discretionary review in the Supreme Court.

No Abuse of Discretion By Removing a Juror, Whose First Language Is Not English, Who Stated After Trial Commenced That She Could Not Understand Everything Being Said.

State v. Berrios, Minn.Ct.App., 8/24/10.  The state charged Mr. Berrios with third degree criminal sexual conduct.  On the second day of the trial, a juror asked if she could be provided with a Spanish interpreter for the remainder of the trial.  She explained that she understood English and was able to understand the witnesses who had testified on the first day of the trial with the exception of “certain unspecified, large words, and certain unspecified sentences. 

The ability to communicate in the English language is one of several qualifications for jury service.  Minn.R.Gen.Pract. 808(b)(4).  (Curiously, a juror with what the rules call “a sensory disability) is entitled to the services of an interpreter during trial and deliberations.)  The criminal rules require that a juror who becomes unable or disqualified to perform her duties be replaced.  Minn.R.Crim.P. 26.02, subd. 9.  The trial court’s determination to remove a juror is a discretionary call so the appellate court upholds that decision.

For the first time on appeal, Mr. Berrios argued that the juror’s removal raised the inference of racial discrimination.  Minn.Stat. 593.32, subd. 1 prohibits the exclusion of a citizen from jury service on account of race, color or national origin, among other attributes.  The appellate court refused to address this argument, saying that Mr. Berrios had forfeited it by not raising it with the district court.

In a Sentencing Appeal the State Can Challenge the Trial Court’s Alleged Interference With Plea Negotiations.

State v. Hannibal, Minn.Ct.App., 7/27/10.  This is a sentencing appeal following protracted plea negotiations in which the state complained that the judge had his thumb on the scales.  Mr. Hannibal twice rejected the state’s offer of a presumptive executed sentence, instead holding out for a stayed sentence.  Eventually, Mr. Hannibal plead guilty straight up; the state asked for an upward departure and Mr. Hannibal asked for a downward dispositional departure.  The trial court granted Mr. Hannibal’s wish for a stayed sentence.

Rule 28.04 authorizes a prosecutor to appeal as of right in felony cases from any sentence imposed or stayed by the district court.  The rules go on to say that the appellate court may review “whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the sentencing court.”  Here, the appellate court concludes that the state’s claim that the trial court impermissibly injected itself into the plea negotiations by promising Mr. Hannibal a stayed sentence in exchange for his guilty plea would, if true, constitute an “inappropriate” sentence reviewable under the rules.

The state argued that the trial court had commented in an off the record discussion with counsel that he believed that Mr. Hannibal was amenable to probation.  This amounted to a promise of probation, said the state.  The appellate court disagrees, looking primarily to the plea petition, which did not indicate any agreement between Mr. Hannibal and the trial court.  During the sentencing hearing, neither Mr. Hannibal nor the trial court referred to any promise of a probation sentence; rather, the trial court heard everyone out and then ruled.  The record did not establish that the trial court “directly and unequivocally promised [Mr. Hannibal] a particular sentence in advance.”  State v. Anyanwu, 681 N.W.2d 411 (Minn. App. 2004).

Police Did Not Obtain Involuntary Confession

State v. Zabawa, Minn.S.Ct., 8/19/10.  Among other charges, a  jury convicted Mr. Zabawa of two counts of first degree premeditated murder, and one count of attempted first degree murder.  The trial court imposed two life terms without possibility of release for the homicides, and a consecutive term of 216 months for the attempt.  Mr. Zabawa argued on appeal that his statements to police were not voluntary so that their admission into evidence deprived him of a fair trial.

Police investigators invited Mr. Zabawa to have a sit down with them; the officers picked him up and brought him to the police station.  Along the way, the officers told him that he was not under arrest, and advised him of his Miranda rights.  The officers also concluded that although by his own admission Mr. Zabawa had drunk four or five beers the previous night that he was not under the influence of alcohol.  The ensuing interrogation took four hours, during which everybody took a total of three smokes and drinks breaks.  Mr. Zabawa gave conflicting accounts of his whereabouts during the pertinent time period and eventually admitted that he had stolen a pickup truck from the neighbor of the homicide victims.  He eventually admitted going into the victim’s residence and shooting the victims, but either in self defense or by accident.

The appellate court reviewed the voluntariness of Mr. Zabawa’s statements under a “totality of the circumstances” analysis.  State v. Williams, 535 N.W.2d 277 (Minn. 1995).  The determination of voluntariness turns of whether a defendant’s will was overborne at the time of the confession, looking at such things as a defendant’s age, maturity, intelligence, education, experience, ability to comprehend, nature of the interview, its length, lack of or adequacy of warnings, meeting a defendant’s physical needs, denying a defendant access to friends.  State v. Ritt, 599 N.W.2d 8802 (Minn. 1999); State v. Pilcher, 472 N.W.2d 327 (Minn. 1991). 

Mr. Zabawa argued that his lack of sleep and intoxication rendered his statements involuntary.  The appellate court says that neither of these factors is necessarily proof of involuntariness, just one of many factors to be examined.  He also argued that the police interview technique of posing as his friend was manipulative and coercive.  The appellate court concludes that this technique did not deprive Mr. Zabawa of his ability to make an independent decision to speak to the officers. 

Mr. Zabawa also complained that the investigators lied to him about the strength of their case against him and that a witness was able to identify him as the intruder.  Again, the appellate court said that such deceit was one of many factors to be considered.  Moreover, the appellate court read the record less severely than did Mr. Zabawa, concluding that the police made predictions about what evidence, including an identification, would be available at trial rather than flat out making up evidence.  Lastly, Mr. Zabawa complained that investigators overbore his will by suggesting that he had a colorable defense to the shootings.  The officers suggested that if Mr. Zabawa needed to enter the residence for either help or to survive he could assert this as a defense.  The appellate court says, however, that police descriptions about the law that do not involve actual or implied promises do not render a confession involuntary.  Again, the court’s view of the facts differed from that of Mr. Zabawa.

Delayed Performance of Building Contract is No Crime.

 State v. Holmes, Minn.Ct.App., 8/17/10.  Mr. Holmes restores barns.  The state charged him with theft by non-payment for improvements under Minn. Stat. 514.02.  I kid you not.  The gist of the charge was that he received payment for improvement of real estate but failed to use the proceeds for those improvements.

It turns out that the crime here is to receive payments for improvement of real estate and then fail to pay others for labor, skills, material, or machinery contributed for the improvement.  It’s apparently okay to take the money and just run.

Mr. Holmes agreed to restore I.B.’s barn; she gave him money.  Delays occurred and the work didn’t get started as expected.  Winter set in and Mr. Holmes couldn’t do the job while the ground was frozen.  He promised I.B. to start work as soon as the ground thawed.  Mr. Holmes never obtained any labor, skill, material, or machinery from anyone for I.B.’s barn project.

Valid & Complete Settlement Agreement Between Victim and Criminal Defendant of Economic Loss Precludes Restitution.

State v. Arends, Minn.Ct.App., 8/10/10.  Ms. Arends used her employer’s credit card for her own personal use.  When she got caught two things happened.  The state charged her with theft by swindle; and she and her employer sued each other, she for wrongful termination, the employer for embezzlement.  Ms. Arends and her employer negotiated a settlement under which the two agreed that she didn’t have to pay back a single dime to her employer, and her employer didn’t have to pay a single dime for the alleged wrongful termination.  The state thought this was way too easy and wanted Ms. Arends to have to pay restitution as part of the criminal sentence.

The appellate court spends three fourths of the opinion debating whether it should consider this certified question.  After all that ink they decided to answer the question.  It seems pretty obvious.  The terms of the settlement agreement established the employer’s uncompensated loss at zero.  Absent proof that the agreement was fraudulent, incomplete or otherwise invalid then the state is precluded from seeking restitution. 

Relationship Evidence Is Not Limited to the Relationship Between Defendant and Victim

State v. Valentine, Minn.Ct.App., 8/24/10.  One of Mr. Valentine’s girlfriends, J.K., was magnanimously giving him a ride to his new girlfriend’s place when the two got to arguing.  Independent witnesses said that Mr. Valentine pulled J.K.’s hair, pulled her out of the car then hit her in the face and neck.  J.K. ultimately recanted her accusations that Mr. Valentine had assaulted her. 

The trial court allowed the state to introduce evidence under both Minn.Stat. 634.20 and Spreigl that Mr. Valentine had twice assaulted his new girlfriend.  Mr. Valentine complained that the statute only permitted evidence against the victim’s family or household members, and not against every one of his other girlfriends and family members whom he’s assaulted over the years.  The appellate court reads the statute expansively to include all these other girlfriends and to reject Mr. Valentine’s parsimonious interpretation. So, if you assaulted Jane back in the day, you most likely assaulted Jenna this time around.  Propensity evidence, actually.

Mr. Valentine raised some additional evidence rulings, some of which the appellate court accepted but none of which entitled him to a new trial.  One of those issues that is gaining traction, is the admissibility of expert testimony on “counter-intuitive” behaviors of an alleged battered woman.  Here, an officer testified that it was “fairly common” for domestic abuse victims to recant the allegations of abuse.  The appellate court concluded that the trial court did not abuse its discretion in admitting this testimony.  State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997).

Admission of Relationship Evidence Is Not Limited to Prosecutions of “Domestic Abuse” Offenses Described Under 518B.01.2

State v. Barnslater, Minn.Ct.App., 8/17/10.  Mr. Barnslater had the misfortune of getting himself charged with felony pattern of harassing conduct against his girlfriend.  The state also charged him with violating an order for protection.  The trial court permitted the state to introduce relationship evidence under Minn.Stat. 634.20, which consisted of some of Mr. Barnslater’s past misbehavior towards his girlfriend which were not introduced as part of the pattern.

Mr. Barnslater complained that 624.20 cannot be utilized when the state has only charged either the pattern offense or violation of an order for protection.  Now, to make sense of this argument you have to keep flipping back and forth between two statutes:  634.20 and 518B.01, subd. 2.  Here’s the opening sentence of the 634.20 statute:

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  [Emphasis added.]

The statute goes on to say that “domestic abuse” is defined by Minn.Stat. 518B.01, subdivision 2, and is restricted to physical harm, bodily injury or assault; infliction of fear of imminent physical harm, bodily injury or assault; terroristic threats; criminal sexual conduct; or interference with an emergency call.  Mr. Barnslater pointed out that under the 518B.01 restrictions his girlfriend was not a “victim of domestic abuse,” because neither the pattern nor the protection offenses is on the list of “domestic abuse” offenses; the state could not, therefore utilize 634.20.

The appellate court upends the statute and says that admission of relationship evidence under the statute does not depend upon the particular offense charged in the case in which the evidence is offered.  Seemingly, the appellate court is saying that if the current victim was at some point a “victim of domestic abuse” the statute comes into play.  It’s the accused’s underlying conduct that determines the existence of “domestic abuse and not whether the current offense is listed in the definition of “domestic abuse.”

Having disposed of the legal issue, the appellate court moves on to uphold the admission of the relationship evidence.  Lastly, the appellate court reiterates that the trial court should instruct the jury about the proper use of relationship evidence both at the time it is admitted and during final instructions.  The trial court’s failure to give these instructions was plain error, but, alas, it did not affect Mr. Barnslater’s substantial rights, mostly because the state limited evidence of relationship to the fact of Mr. Barnslater’s previous convictions.  (Why does 624.20 get to trump Rule 609?)

Does a Sleeping Child “Otherwise Witness the Offense” So As to Support Sentence Departure? Supreme Court Grants Review.

State v. Robideau, Minn.S.Ct., 8/24/10.  A jury convicted Mr. Robideau of intentional murder by stabbing his girlfriend to death.  At the time, his girlfriend’s son was asleep in the home.  The court of appeals upheld a sentence departure on the basis of the child’ presence in the home, which I wrote about here.

The Supreme Court has granted review on the child presence issue.

Single Behavioral Incident & Multiple Victims, Oh My.

State v. Ferguson, Minn.Ct.App., 8/3/10.  A jury convicted Mr. Ferguson of one count of drive by shooting into an occupied building, and eight counts of second degree assault, one count for each of the building’s occupants.  Essentially, one of Mr. Ferguson’s brothers, employing a gun that Mr. Ferguson supplied, shot off multiple rounds into an occupied building, apparently in a dispute between one of the brothers and one of the building’s occupants over a puppy.

The parties agreed that all of these offenses were committed as part of a single behavioral incident, and that the drive by shooting was a more serious offense than second degree assault.  Multiple sentences may be imposed if the single behavioral incident is composed of crimes committed against multiple victims, provided that the sentences do not unfairly exaggerate the criminality of the defendant’s conduct.  Mr. Ferguson argued that multiple sentences could be imposed for crimes against multiple victims but only for the most serious offense against each victim.  All of the occupants of the building were victims of the drive by shooting; and each was a victim of the assault offenses.  The state, however, only charged one count of drive by shooting, which becomes the most serious offense. The appellate court remands (again) with instructions to sentence Mr. Ferguson only on the drive by shooting.

Both sides have petitioned for review to the supreme court.

Austin’s Findings Not Required Before Imposing Agreed Upon Sentence, Triggered By Defendant’s Failure to Appear at Sentencing Hearing.

State v. Batchelor, Minn.Ct.App., 8/10/10.  Police found Mr. Batchelor in possession of a handgun which he was prohibited from possessing.  While in jail waiting around to go to court on that charge he assaulted an inmate, which lead to an assault charge getting tacked on.  He pled guilty to one count of felony firearm possession by an ineligible person, and to one count of first degree assault.  As part of the plea, the state agreed that Mr. Batchelor would be released from jail, and Mr. Batchelor agreed that if he returned for sentencing he would get the standard sixty month sentence on the gun possession, concurrent with an identical sentence on a to be amended count of attempted assault.

On the other hand, if he didn’t appear, then the sentence would be 161 months.  Needless to say, Mr. Batchelor did a runner.  Sort of; police found him two days later.  Mr. Batchelor said he got the dates mixed up.

Here’s how the appellate court framed the issue on appeal:

Appellant asks this court to articulate a new rule that procedural due process requires the district court to specifically find that a defendant’s failure to appear at a scheduled sentencing hearing was intentional or inexcusable before imposing an agreed-on sentence instead of a reduced sentence that was expressly conditioned upon appearance at the scheduled sentencing hearing. Appellant suggests that the findings required by State v. Austin, 295 N.W.2d 246 (Minn. 1980), would be appropriate…

The appellate court is unwilling to overlay Austin’s probation revocation requirements to these facts.  Mr. Batchelor made a risky conditional guilty plea and then screwed up without any apparent justification.  The court does note that an incapacitated defendant who misses a sentencing hearing may be entitled to enforcement of the original agreement.  “I forgot,” however, doesn’t cut it, especially when there was only a week between the plea/release and the sentencing hearing.

The appellate court also rejected Mr. Batchelor’s argument that he should have been allowed to withdraw his guilty plea.

Vulnerability Due to Child’s Age Can Support Departure in Sentence For Malicious Punishment of Child.

State v. Mohamed, Minn.Ct.App., 2/23/10.  Mr. Mohamed brought his injured four month old son to the emergency room, with three conflicting accounts of the cause of the child’s injuries, which consisted of a brain injury, an altered mental state, bleeding from the brain,etc.  The state charged him with first degree assault, but he negotiated a guilty plea to malicious punishment of a child resulting in great bodily harm.  At sentencing, Mr. Mohamed stipulated to the existence of three aggravating factors:  particular vulnerability because of age; position of authority; zone of privacy.  The trial court imposed an agreed upon upward durational departure on the basis of these factors.

On appeal, Mr. Mohamed argued that none of these factors was a legally permissible basis for a sentence departure.  The appellate court focuses on the first factor because the state concedes that the other two do not authorize a departure.  Only a person in a position of trust can commit the offense and to reliance on that factor impermissibly relies upon an element of the offense.  Mr. Mohamed and his son shared a home and so zone of privacy is also an improper basis for departure. 

The appellate court then rejects the arguments regarding the child’s age.  Infancy impairs the victim’s ability to seek help, fight back or escape harm.  Infancy is also an element of the offense but whereas an older child may be able to seek help, etc., a four year old’s vulnerability is “absolute.”  Under these facts it was not an abuse of discretion to rely upon the victim’s age to support the departure.  The appellate court also rejects Mr. Mohamed’s argument that is based on the statute’s distinction between a child who is under or over age four, again concluding that this distinction emphasizes the legislature’s belief that a child under four is more vulnerable.

Because the appellate court could not determine what sentence the trial court would impose if left to only the one valid departure factor, the appellate court remanded the case, where the trial court imposed the exact same sentence.