A Few More Recent Post Conviction Opinions

Dobbins v. State of Minnesota, Minn.S.Ct., 9/16/2010.  A jury convicted Mr. Dobbins of first degree premeditated murder for the death of Quintin Lavender.  The state’s main witness was Myshohn King, who testified that Mr. Dobbins came out of a bedroom with a gun and shot Mr. Lavender.  Mr. Dobbins, on the other hand, testified that while he was in the bedroom it was Mr. King who shot Mr. Lavender and that he had nothing to do with it.  The supreme court affirmed Mr. Dobbins’ conviction.

Mr. Dobbins filed a post conviction petition alleging, among other things, that an affidavit from Darryl Harris says that Mr. King confessed to Mr. Harris that he had accidently shot Mr. Lavender then blamed Mr. Dobbins to get a better deal.  The post conviction court denied the petition without a hearing.

The appellate court remands for an evidentiary hearing on the false testimony claim.  The affidavit does not entitle Mr. Dobbins to a new trial – it does not establish that Mr. King’s testimony was false because this claim is supported only by the affidavit – but it does entitle Mr. Dobbins to an evidentiary hearing.  This is so even though the affidavit contains hearsay statements that may or may not be admissible at an evidentiary hearing.

 

Scherf v. State of Minnesota, Minn.S.Ct., 9/23/2010.  A jury convicted Mr. Scherf of burglary, theft and fifth degree controlled substance crime.  The criminal complaint claimed that Mr. Scherf and one Ryan Hughes jointly committed the burglary and theft.  Part of the state’s proof was evidence that right after the burglary Mr. Hughes showed up at Mr. Scherf’s house and told another person that he had stolen some property and stored it there.  When Mr. Scherf arrived, he and Mr. Hughes talked privately, after which Mr. Hughes and the other person moved most of the stolen stuff elsewhere.  The next day, police stopped a car that Mr. Scherf and Mr. Hughes were in, and found some of the proceeds of the burglary. Hughes skipped out after he pleaded guilty to the burglary and so he was not available to testify at Mr. Scherf’s trial.

Some time after his conviction, Mr. Hughes resurfaced.  He also tendered an affidavit to Mr. Scherf that said that Mr. Scherf had nothing to do with the burglary.  Mr. Hughes said that he did the burglary all by himself.

Mr. Scherf filed a post conviction petition saying that this affidavit was newly discovered evidence that entitled him at least to an evidentiary hearing if not a new trial.  The appellate court says that it’s not newly discovered evidence because Mr. Scherf knew of Mr. Hughes’s existence and because he failed to establish that he didn’t know of the the substance of Mr. Hughes’s testimony at the time of trial. 

 

Laine v. State of Minnesota, Minn.S.Ct., 8/5/2010.  Mr. Laine called 911 to report that his girlfriend had fallen down the stairs and was unresponsive.  Medical expert testimony didn’t support this claim and a jury convicted Mr. Laine of domestic abuse murder.  He filed a post conviction petition in which he alleged that newly discovered evidence entitled him either to an evidentiary hearing or a new trial.  First, he said that one of his ex-wives had other information that would make a difference in the outcome.  The appellate court rejects this vague, unsupported claim; just saying that a witness now has different information than presented at trial doesn’t cut it.

Second, he claimed newly discovered evidence of a break in the chain of custody of the victim’s blood.  This claim is Knaffla-barred.  Third,  Mr. Laine asserted that he had recently been diagnosed with an obsessive-compulsive disorder.  Mr. Laine said that this would explain why he thoroughly cleaned the house before he called 911.  The jury heard something of this during the trial so whatever he now has isn’t likely to produce an acquittal or more favorable outcome.

Finally, he said that he had medical testimony that would offer an alternative explanation for the death that would be inconsistent with domestic assault.  He fails to fill in any details about this medical testimony, so it’s “argumentative.” 

Recent Post Conviction Opinions Flesh Out Limitations Provisions

In the last few weeks there have been a slew of opinions from the Minnesota Supreme Court that begin to answer some of the questions about just how the 2005 enactment of a limitations period in the post conviction statute will play out.  The general rule establishes a two year limitations period.  That part’s easy; it’s the exceptions that come into play in these recent opinions so let’s put up the exceptions to the general rule of a two year limitations period first:

A petition for post conviction relief may be heard notwithstanding the general time limitation if:

(1) the petitioner establishes that a physical disability or mental disease precluded a timely assertion of the claim;

(2) the petitioner alleges the existence of newly discovered evidence, including scientific evidence, that could not have been ascertained by the exercise of due diligence by the petitioner or petitioner’s attorney within the two-year time period for filing a post conviction petition, and the evidence is not cumulative to evidence presented at trial, is not for impeachment purposes, and establishes by a clear and convincing standard that the petitioner is innocent of the offense or offenses for which the petitioner was convicted;

(3) the petitioner asserts a new interpretation of federal or state constitutional or statutory law by either the United States Supreme Court or a Minnesota appellate court and the petitioner establishes that this interpretation is retroactively applicable to the petitioner’s case;

(4) the petition is brought pursuant to subdivision 3; or

(5) the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.

Here’s what’s been going on:

There is no specific pleading requirement in order to invoke one of the limitations exceptions:

Roby v. State, Minn.S.Ct., 8/19/2010.  Back in 1989 Mr. Roby received a life sentence for a homicide conviction.  In 2005 the legislature enacted two limitations periods for filing post conviction petitions.  The general rule established a two year limitations period, measured from the date the conviction became “final”.  The legislature established a two year grace period, measured from the date the legislation took effect (August 1, 2005), effectively giving guys until July 31, 2007 to file.  The second rule established certain specified exceptions to the general rule.

Mr. Roby filed this petition in March 2009 so he had to meet on of the second rule exceptions to stay in court regardless of the merits of his claims.  Mr. Roby’s petition said that he had newly discovered evidence – possibly one of the second rule exceptions – and that the post conviction court should consider his claim “in the interests of justice” – another of the second rule exceptions.  The state responded that Mr. Roby needed to plead – with precision – the exact statutory exception on which he relied in order to avoid a dismissal of his petition as untimely.

A unanimous court – Justice Stras not sitting - rejects this assertion.  Justice Meyer points to the post conviction statute, itself, which specifically prohibits “argument or citation of authorities” in the body of the petition.  Minn.Stat. 590.02, subd. 1(1).   If that’s not enough, then there is the section that requires the post conviction court to construe the petition liberally.  Minn.Stat. 590.03. 

Striking out with one exception does not preclude consideration of the other exceptions.

Gassler v. State, Minn.S.Ct., 9/2/2010.  Mr. Gassler is also serving a life sentence for the murder of Mr. Yungk.  The accusation was that Mr. Gassler killed Mr. Yungk with a shotgun, which the police ultimately recovered, along with some shotgun ammunition, from Mr. Gassler, by way of his mother.  An FBI expert testified that he compared shotgun pellets recovered from Mr. Yungk’s body with the recovered ammunition; his conclusion was that the pellets and the shotgun ammunition not only had a common manufacturer but a common ammunition box.  Years later, after Mr. Gassler’s conviction, the FBI announced its abandonment of this testing because its results had been shown to be unreliable. 

Mr. Gassler filed his post conviction petition within two years of the FBI’s renunciation of the pellet comparison, saying that this renunciation was newly discovered evidence, an exception to the general two year limitations period.  (The Court says its actually false evidence but includes it within the newly discovered evidence exception.)  Mr. Gassler  also said that the petition should be heard in the interests of justice.  First, the newly discovered evidence claim:

In order for the newly discovered evidence exception to apply: (1) a petitioner must allege the existence of newly discovered evidence (including scientific evidence); (2) the evidence could not have been ascertained by the exercise of due diligence by the petitioner or petitioner’s attorney within the two-year time period for filing a post conviction petition; (3) the evidence is not cumulative to evidence presented at trial; (4) the evidence is not for impeachment purposes; and (5) the evidence must establish by the clear and convincing standard that the petitioner is innocent of the offense for which the petitioner was convicted. Minn. Stat. § 590.01, subd. 4(b)(2).

Neither the parties nor the post conviction court quibbled with whether Mr. Gassler met the first four requirements.  It’s the fifth requirement that is at issue.  Justice Page says that even if you threw out this evidence Mr. Gassler still had failed to establish by clear and convincing evidence that he is innocent.  There was lots of other evidence that jury heard on which it could have based its verdict.  That improperly admitted pellet comparison evidence may have influenced the jury does not establish innocence.  So, Mr. Gassler is not entitled to have his petition heard under this exception.

What about interests of justice?  The post conviction court, the state and the concurring justices Gildea and Dietzen thought that because Mr. Gassler failed the newly discovered evidence exception that was the end of it.  The majority thinks otherwise.  Justice Page points out that each of the exceptions is connected by the word, “or” in its disjunctive sense.  This means that just because Mr. Gassler did not meet one of the exceptions did not preclude him meeting one of the other ones.

So, what’s required to obtain relief under the interests of justice exception?  Well, the case has to be “exceptional,”  apparently determined by a number of possible factors to consider:  (1) does the claim have substantive merit that the petitioner did not deliberately and inexcusably fail to raise on direct appeal; (2) weighing the fault of the petitioner for the error against the fault of the defending party for it, is there some “fundamental unfairness to the defendant that needs to be addressed; and (3)  does the integrity of the judicial proceedings need to be protected.  For Mr. Gassler, the court picks door number 3 and concludes that his petition fails that test.  There’s all that other evidence to support the guilty verdict so that the admission of junk science did not result in a “trial so fundamentally unfair to Gassler as to require us to act to protect the integrity of the judicial process.”  This seems to be the adoption of a “little bit pregnant” test, but that’s what happened. 

Scott v. State, Minn.S.Ct., 9/23/2010.  Mr. Scott is a codefendant of Mr. Gassler.  Same situation regarding admission of the pellet comparison testimony, with the same result:  Mr. Scott could not establish his innocence by clear and convincing evidence.  Turning to the interests of justice exception, same result.  Same two justices concur in the result only.

Doctrine of Transferred Intent Applies to Establish Intent Element of Criminal Sexual Conduct.

State v. Austin, Minn.C.Att., 9/28/2010.  Mr. Austin spent July 29, 2008 drinking a lot, really a lot, of malt liquor, with the occasional toke of marijuana at his uncle’s apartment.   Two sisters, and the three boys of one of the sisters, lived in a nearby apartment in the building.  When one of the sisters left to return to her apartment, Mr. Austin made remarks to her that she construed as a sexual proposition.  She went on to her apartment.

To make a long story short, Mr. Austin didn’t realize that the sister whom he had propositioned no longer lived in the other sister’s apartment.  They say that ignorance is bliss but see for yourself.  Mr. Austin let himself into the unlocked, darkened apartment of the other sister and climbed into bed with one of that sister’s young boys, age seven.  There was some inappropriate sexual touching before Mr. Austin learned of his error.  The state charged him with burglary and criminal sexual conduct in the second degree, victim under 13 years of age, defendant more than 36 months older.

At trial Mr. Austin said none of this ever happened.  He had a story having to do with the virtue of the woman he’d propositioned, but it didn’t really explain how he ended up in bed the the seven year old, which he didn’t deny anyway.  He just said it was a mistake, wrong apartment, wrong sex partner.

The trial court found Mr. Austin guilty.  The Court of Appeals concluded that Mr. Austin’s groping of the seven year old supported the “acting with sexual intent” element of the offense.  Mr. Austin said that he had every intent to touch the sister whom he’d propositioned (and whom he believed still lived in the other sister’s apartment) to satisfy his sexual desire, but he had absolutely no such intent to do so with the seven year old.  That is, he was saying there’s no such thing as transferred intent in sex crimes.  The appellate court says it’s no different from when a defendant intends to assault A but assaults B instead.  See, e.g., State v. Livingston, 420 N.W.2d 223, 229 (Minn. App. 1988).  Conviction affirmed.

State’s Improper Questioning of Witness Who Repeatedly Claimed Privilege Results in New Trial.

State v. Morales, Minn.S.Ct., 9/23/2010.  A jury convicted Mr. Morales of the murder of Victor Mesa-Ortiz, who was the chief financial officer of a local brothel.  Mr. Morales and two others went to the brothel intending to rob it; instead, Mr. Mesa-Ortiz was killed.  You can read more about the facts of the case here.  One of the guys who accompanied Mr. Morales, Felipe Vega-Lara, went to trial ahead of Mr. Morales; Mr. Vega-Lara testified at his trial.  A jury convicted him; Mr. Vega-Lara appealed that conviction.

During the pendency of that appeal, the state brought Mr. Morales to trial.  The state called Mr. Vega-Lara to testify against Mr. Morales; Mr. Vega-Lara refused.  The stated gave him statutory use immunity under Minn.Stat. 609.09; Mr. Vega-Lara still refused to testify.  Even though the state knew Mr. Vega-Lara’s stance on testifying against Mr. Morales, they put him on the stand anyway.  Right out of the box, Mr. Vega-Lara “pled the fifth.”  Thereafter, and continuing for an excruciatingly long time, the prosecutor would ask Mr. Vega-Lara a question, he would refuse to answer and the prosecutor followed up with an impeachment question, didn’t you previously testify such and so.  For example:

State:	Did you -- did Angel Morales point the gun at Victor Mesa-Ortiz for the purpose of robbing him?
Vega-Lara:	Refuse to answer.

      

State:	Did you previously testify that he pointed the gun at Victor Mesa-Ortiz --
Vega-Lara:	Refuse to answer.
State:	--    for the purpose of robbing him?
Vega-Lara:	Refuse to answer.
State:	Did Victor Mesa-Ortiz resist when Angel Morales pointed the gun at him and tried to rob him?
Vega-Lara:	Refuse to answer.
State:	At that point did you enter the -- did you previously tell the jury that Victor Mesa-Ortiz started struggling with Angel Morales over the gun?
Vega-Lara:	refuse to answer.

See how this works?  Having back-doored nearly all of Mr. Vega-Lara’s trial testimony in this fashion, the state, still dissatisfied, also moved to introduce a transcript of his trial testimony as substantive evidence.  The trial court denied this request.

After the trial court granted Mr. Vega-Lara use immunity did he still have a valid Fifth Amendment privilege?  If you want to skip to the end, the answer is, no.  Here’s why.  Mr. Vega-Lara said that he did have a valid privilege because he could be charged with perjury if the state determined that a conflict existed between his testimony in the Morales trial and his own trial testimony.  In addition to a Fifth Amendment argument, Mr. Vega-Lara pointed to subdivision 3 of the immunity statute:

When the declarant has made two inconsistent statements under such circumstances that one or the other must be false and not believed by the declarant when made, it shall be sufficient for conviction under this section to charge and the jury to find that, without determining which, one or the other of such statements was false and not believed by the declarant

Not to worry.  The appellate court says that the statute forecloses prosecution of an immunized witness for perjury based upon prior false statements that were not made under immunity.  The court relies upon Fifth and Eighth circuit court of appeals opinions to support this conclusion.  In re Grand Jury Proceedings, 644 F.2d 348, 350 (5th Cir. 1981); accord In re Grand Jury Proceedings, 625 F.2d 767, 770 (8th Cir. 1980). 

If Mr. Vega-Lara didn’t have a valid privilege then what’s the problem with the state calling him to testify?  Generally speaking, the state can’t call a witness knowing ahead of time that the witness will invoke a Fifth Amendment privilege and refuse to testify.  State v. Mitchell, 268 Minn. 513, 130 N.W.2d 128 (1964) and Namet v. United States, 373 U.S. 179 (1963).  A state’s witness who clams up, “pleading the fifth” tends to send a pretty strong signal to the jury that if the witness did testify it would not be a good thing for the defendant.  It turns out, however, that this is the case whether the claim is valid or invalid. 

Now we get to the core issue.  Was the state’s examination of Mr. Vega-Lara reversible error?  Yes, it was.  There were two ways that the appellate court could have gone on this.  It could have concluded that the prosecutor was acting in bad faith, in which case prejudice to the defense is presumed, new trial.  “Under the second theory of error—the unfair-prejudice theory—reversible error results if the State calls a witness in good faith and the State’s “examination is of a type that has prejudiced defendant to the extent that he has been denied a fair trial.”

The appellate court goes with the later theory, ducking the bad faith determination.  (Chief Justice Gildea would have found neither bad faith nor prejudice to Mr. Morales.)  Where the substance and manner of the state’s examination of the witness who is claiming privilege adds “critical weight to the prosecution’s case in a form not subject to cross-examination” then there is prejudicial error.  Namet.  That’s what the appellate court says happened to Mr. Morales.  (Mr. Vega-Lara wouldn’t answer defense questions, either.)  The state’s questions to Mr. Vega-Lara provided the only detailed account of the crime that fit the state’s theory of the case.  In addition, it’s not fair to let the state call a witness only to impeach him with prior testimony.

The state thought that Mr. Vega-Lara’s previous testimony was admissible as a prior inconsistent statement under Rule 801(d)(a)(A).  The problem with this thought, however, is that the rule required that Mr. Vega-Lara be subject to cross examination.  Mr. Vega-Lara answered only one question on cross examination.  He wasn’t subject to cross examination.

The appellate court also ruled on the admissibility of some statements that Mr. Morales made to an acquaintance both before and after the murder, as guidance to the trial court on any re-trial.  These statements had been admitted under the statement against interest exception to the hearsay rule; the appellate court affirmed those trial court rulings.

Circumstantial Evidence to Support Conviction of Vehicular Homicide, Leaving the Scene, Insufficient.

State v. Al-Naseer, Minn.S.Ct., 9/16/2010.  This is a criminal vehicular homicide case, leaving the scene of the accident.  Mr. Al-Naseer was driving west on Highway 10 in Clay County when his vehicle gradually crossed the fog line (the one on the right shoulder) and hit Kane Thomson, who was changing a flat tire.  Mr. Al-Naseer also rolled over the flat tire that Mr. Thomson had removed, dragging it down the highway.  Mr. Al-Naseer’s vehicle gradually made its way back onto the road and kept going.  The impact caused considerable damage to the right side of Mr. Al-Naseer’s vehicle.

In an earlier appeal (one of many), the supreme court had held that for a defendant to be found guilty of criminal vehicular homicide (leaving the scene) the state had to prove that the defendant knew that he had been involved in an accident with a person or another vehicle.  State v. Al‑Naseer (Al‑Naseer IV), 734 N.W.2d 679, 688-89 (Minn. 2007). 

Mr. Al-Naseer argued on this appeal that the evidence was insufficient to support his leaving the scene conviction, because evidence to prove the mens rea element was circumstantial and consistent with rational hypotheses other than guilt.  A conviction based on circumstantial evidence is subject to “heightened scrutiny.”  State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004):

This heightened scrutiny requires us to consider “whether the reasonable inferences that can be drawn from the circumstances proved support a rational hypothesis other than guilt.” State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002). In other words, the circumstances proved must “be consistent with the hypothesis that the accused is guilty and inconsistent with any other rational hypothesis except that of guilt.” State v. Bias, 419 N.W.2d 480, 484 (1988).

Last year, a plurality of the court seemed to change the rules for reviewing convictions based on circumstantial evidence, saying that you draw inferences only from the “circumstances proved.”  State v. Andersen, 784 N.W.2d 320 (Minn. 2010).  Here, though, the court of appeals had declined all together to apply any circumstantial evidence standard of review.  The court of appeals thought that this standard only applied when every element required for conviction had been proved entirely by circumstantial evidence.  The supreme court here says, no, we never said that and we aren’t saying that now. 

Applying this circumstantial evidence standard of review to the mens rea element, the supreme court finds the state’s proof lacking; it didn’t prove that Mr. Al-Naseer had actual knowledge that here had been an accident that involved either a person or a vehicle.  The circumstances proved, says the majority, supported both an inference that Mr. Al-Naseer knew he had hit Mr. Thomson and an inference that he had fallen asleep behind the wheel at the time of the accident.  Both inferences being reasonable, the state looses.

Chief Justice Gildea, joined by Justice Dietzen, dissented.  Justice Stras took no part in the decision, not having been on the court at the time or argument.

Juvenile’s Four Interrogations Found to be Voluntarily Made.

State v. Thompson, Minn.S.Ct., 9/16/2010.  A jury convicted Mr. Thompson of two counts of first degree murder and sentenced to two consecutive life sentences without possibility of release.  He complained on appeal about the introduction of certain statements that he made to the police, and to the introduction of computer generated images of the crime scene.  Mr. Thompson was seventeen at the time of the murders.

Police asked Mr. Thompson to come with them to the police station to be interviewed.  He agreed and at the station he made the first of four statements.  The police did not give Mr. Thompson a Miranda warning before this interrogation.  The officers were not in uniform, were driving an unmarked car, used neither weapons nor force.  The officers placed Mr. Thompson in an unlocked room, told him that he was not under arrest and told him that he was free to go at any time.  The appellate court concluded that these factors established that “a reasonable person in [Mr. Thompson’s] position would not have believed that he or she was in custody to a degree associated with arrest.”  State v. Staats, 658 N.W.2d 207, 211 (Minn. 2003).

Mr. Thompson made admissions during this first interrogation so three hours after this first statement the police arrested him.  Because he was a juvenile the officers also allowed him to telephone his mom, who said that she was on the way to the station.  Officers then gave Mr. Thompson a Miranda, warning, after which they asked Mr. Thompson if he would speak with them without his mom.  He commenced talking to the officers, saying that he was present at the time of the murders but that it had been Mr. Flowers who had done the actual killing.  Employing a “totality of the circumstances” analysis, the appellate court concludes that Mr. Thompson voluntarily waived his Miranda rights and voluntarily made the second statement.

Next, the officers let Mr. Thompson talk with his mom and brother, during which Mr. Thompson basically repeated what he’d just said to the cops.  The police recorded this conversation, whether surreptiously the court’s not saying.  The appellate court punts this claimed error, saying that since Mr. Thompson didn’t say anything new its admission was harmless.  Justice Page, with Justice Paul Anderson concurring, would have reached this issue and conclude that it was error to have admitted this conversation.

Finally, some five hours after being detained, without having been fed, the officers took a fourth statement.  This time, mom and brother were present.  Mr. Thompson admitting being present at the murders but he denied any culpability.  The appellate court concluded that this was also a voluntary statement.

The state presented some computer generated images of the crime scene, offered, they said, to help the jury understand the actual crime scenes.  The appellate court said that this was okay.

Prosecutor’s Brief Argument that Victim’s Testimony Need Not Be Corroborated in Order For Jury to Convict is Not Plain Error

State v. Cao, Minn.S.Ct., 9/16/2010.  Krystle Tuma had a little gathering at her place, at which M.G. attended.  M.G.’d been drinking before she arrived and drank quite a bit more once she was there.  She became sick and Ms. Tuma put M.G. to bed upstairs.  An hour and a half later Mr. Cao showed up but then disappeared for a bit, only to be found in bed with M.G., who appeared to be asleep.  M.G. testified that she awoke to find Mr. Cao having sex with her; Mr. Cao said the sex was consensual.  A jury convicted Mr. Cao of third degree criminal sexual conduct.

Mr. Cao complained that the prosecutor’s statement during closing argument that the jury could convict him based on M.G.’s uncorroborated testimony was prejudicial error.  He said that the prosecutor’s statement improperly instructed the jury on the law, a duty exclusively that of the court under Rule 26.03.  The state countered that the rule does not ban prosecutors (or defense attorneys come to that) from making accurate statements of law “congruent with the jury instructions.”  The appellate court punts the question by concluding that the prosecutor’s remark was not “tantamount to a jury instruction.”  By that the appellate court meant that the statement was only a “springboard for a discussion on the strength of the corroborative evidence in the case.” 

The appellate court does warn litigants that in a different case it might hold that telling a jury that a victim’s testimony need not be corroborated is error.  This is because the rule of corroboration is an evidentiary rule and not a burden of persuasion standard.  An argument from a prosecutor that overly emphasizes the rule that a victim’s testimony does not need to be corroborated could end up shifting the burden of proof.