Second Guilty Plea After Rejection of First Plea Is No Bar to Double Jeopardy Challenge

State v. Jeffries, Minn.S.Ct., 10/19/2011.  This came up from the court of appeals.  Go here. 

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.  The supreme court said, not so fast.  You said you accepted the guilty plea and you said that Mr. Jeffries was guilty.  What’s left?  The majority rejects the claim of the chief justice that a trial judge has the discretion to withdraw acceptance of a guilty plea upon ascertaining additional information about a defendant’s criminal history; nothing in the rules creates such discretion.

This plea was not only accepted, it was “recorded” such that jeopardy attached.  See State v. Martinez-Mendoza.  This means that the second guilty plea must be vacated because the second conviction violates double jeopardy.  That second plea also did not act as a waiver of the double jeopardy claim.

One Spouse May Testify Against Other Spouse on Charge of Disorderly Conduct.

State v. Zais, Minn.S.Ct., 10/26/2011.  The state charged Mr. Zais with disorderly conduct.  When his wife swiped his garage door opener Mr. Zais began to remove some of the panels in the garage door.  The stated wanted to put his wife on the stand to testify to these acts and to the threats he’d made the previous evening to “do whatever he had to to get in” the house.  Mr. Zais asserted marital privilege to prevent his wife from testifying to these threats.  The trial court agreed with Mr. Zais and excluded her testimony. 

The marital privilege statute, Minn.Stat. 595.02, does not apply to “a criminal action or proceeding for a crime committed by one against the other.”  Mr. Zais argued that the applicability of this exception should be determined solely by the elements of the crime; the state, on the other had, said the court should examine the underlying conduct to make that determination.  The appellate court says that you have to do both.  When you do, then the exception kicks in and she can testify.

Defendant Had Sufficient Interest in Vehicle to Prohibit Prosecution For Placing Tracking Device on Vehicle.

State v. Hormann, Minn.Ct.App., 10/19/2011.  The state charged Mr. Hormann with stalking his then-wife, and with placing a tracking device on a car that she mostly drove but actually belonged to him.  The appellate court upheld the stalking conviction but reversed the tracking device conviction.

Along the way, the former wife testified generally about what a horrid marriage it had been and broadly characterized Mr. Hormann as someone who broke every door in the couple’s home, broke the walls, physically abused her, engaged in “a lot of violence,” was “very angry,” was “controlling” of her and of money – you get the picture.  The appellate court concluded that this amounted to inadmissible character evidence.  It was, however, harmless error to have admitted it.

Now to the tracking device.  The statute, Minn.Stat. 626A.35, subd. 1, does not apply “where the consent of the owner of the [vehicle] to which the mobile tracking device is to be attached has been obtained.”  In this case, Mr. Jacobs’ spouse had signed title to the car over to him even though she was the person who drove it the most.  Mr. Jacobs’ failure to have recorded that transfer did not defeat his interest in the car.    He was thus an “owner” under the statute and could not be prosecuted for placing the tracking device on the car.

That Judge’s Spouse Works in the Prosecutor’s Office Does Not Require Removal.

State v. Jacobs, Minn.S.Ct., 9/14/2011.  The state charged Mr. Jacobs with two counts of criminal sexual conduct; he sought to remove the trial judge because his spouse worked in the county attorney’s office that was prosecuting the case.  Cause for removal exists if the judge would be disqualified under the Code of Judicial Conduct.  In pertinent part, the code says this:

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse, a person with whom the judge has an intimate relationship, a member of the judge’s household, or a person within the third degree of relationship to any of them, or the spouse or person in an intimate relationship with such a person is:
(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
Minn. Code cf Judicial Conduct, Rule 2.11(A).

Mr. Jacobs conceded that that judge’s spouse was not acting as a lawyer, that she had no financial interest in the outcome, and that she had no reputational interest at stake in the outcome.  That leaves as the remaining basis on which to remove the judge the reason that his “impartiality might reasonably be questioned.”  The inquiry under Minnesota law is whether “an objective examination of the facts and circumstances would cause a reasonable examiner to question the judge’s impartiality.” State v. Burrell, 743 N.W.2d 596 (Minn. 2008) [emphasis in original].  Neither the fact of the marriage relationship nor the judge’s failure to disclose it to the parties meets this standard. 

Once Trial Court Accepted Guilty Plea & Adjudicated Defendant Guilty, State Had No Authority to Appeal Denial of It’s Motion To Vacate Plea.

State v. Martinez-Mendoza, Minn.S.Ct., 8/31/2011.  The state charged Mr. Martinez-Mendoza with first and second criminal sexual conduct for the sexual abuse of his girlfriend’s daughter.  The parties cut a deal whereby Mr. Martinez-Mendoza under which he would plead guilty to second degree criminal sexual conduct, receive the presumptive sentence, which the plea petition stated was 90 months, and dismiss the other count.  The trial court took the plea, adjudicated Mr. Martinez-Mendoza guilty and set a sentencing date.

At sentencing, it turned out that the presumptive sentence was only 36 months, and stayed at that.  The state moved to vacate the plea; or to reinstate the top CSC I count.  The prosecutor said that he’d relied on a colleague's opinion that the presumptive sentence was ninety months; the defense attorney said he wasn’t sure whether the  the presumptive sentence was 90 or 36 but wrote 90 on the petition to placate the prosecutor. Both counsel agreed that the plea agreement contemplated a 90 month sentence.   The trial court had not looked up the presumptive sentence. 

The trial court said that the lawyers  had been a mistake about the presumptive sentence, but that they had nonetheless made a valid plea agreement that called for dismissal of one count and a guidelines sentence for the plea to the other count.  The trial court imposed the presumptive sentence.  The court of appeals heard the state’s appeal and said that there had been a mutual mistake and reversed.  The supreme court reverses the court of appeals.

There is a preliminary, jurisdictional issue:  what’s the state’s authority to appeal the trial court’s denial of its motion to vacate, etc.?  Rule 28.04, subd. 1 allows the state to appeal from any pretrial order so long as jeopardy has not attached, so is that sufficient?  Does it matter that the trial court had both accepted the plea and adjudicated Mr. Martinez-Mendoza guilty?  Yes, it does.  Jeopardy attached when the trial court accepted the plea and adjudicated him guilty.  That means that the state had no authority to pursue an appeal.

In a footnote, responding to the vigorous dissents, the court says that the mistake about the length of the presumptive sentence was irrelevant to determining the terms of the agreement, which called for the presumptive guidelines sentence.  Finally, the court left open the question whether the state can recharge Mr. Martinez-Mendoza with the top CSC I count.

Principal’s Acquittal Does Not Preclude Conviction of Aiding & Abetting Same Offense.

State v. Caldwell, Minn.S.Ct., 8/31/2011.  A jury convicted Mr. Caldwell of aiding and abetting first degree premeditated murder for the benefit of a gang.  Mr. Caldwell drove the SUV from which a passenger fired at a group of “One-Nine” gang members; one of the shots killed Mr. Cole.  At a separate bench trial the trial court had found the shooter, Mr. Harrison, guilty of unintentional murder in the second degree, drive by murder, acquitting him of first degree premeditated murder.

Mr. Caldwell argued on appeal that the aiding and abetting statute, 609.05, subd. 4. precluded his conviction of aiding and abetting first degree premeditated murder because Mr. Harrison had been acquitted of that same offense.  Here’s what the statute says:

[a] person liable [for the crimes of another] may be charged with and convicted of the crime although the person who directly committed it has not been convicted, or has been convicted of some other degree of the crime or of some other crime based on the same act.

Mr. Caldwell argued that the exclusion of the term “acquittal” from the circumstances under which a defendant may be convicted for the crime of another took that circumstance out of the reach of the statute.  The expression of one thing, he said, in Latin - expressio unius est exclusio alterius – is the exclusion of the other.  This concept, the supreme court says, however, only applies to omissions that are intentional.  The supreme court thus concludes that the legislature surely meant all those “not … convicted” phrases to include an occasional acquittal.

Mr. Caldwell also argued that the state had not proved that the “LL’s” – Mr. Caldwell’s gang - met the definition of a gang.  Specifically, he said that the state hadn’t proven that this gang had as one of its primary activities the commission of the various crimes listed.  The supreme court pointed to testimony of several witnesses who said that this gang did engage in these activities and so rejected this argument.

Mr. Caldwell complained that his trial counsel was ineffective by asking “perfunctory” questions during voir dire.  Mr. Caldwell thought that counsel should have asked more probing questions to establish a cause challenge.  The supreme court reviewed the voir dire record and did not find counsel’s performance wanting.  Even had it done so, the problem was, Mr. Caldwell could not point to any potential juror who should have been removed for cause so he failed to show prejudice, even assuming inadequate performance. 

Impeachment of Defendant by Unspecified Felony is Okay, Overruling Court of Appeals

State v. Hill, Minn.S.Ct., 8/24/2011.  Mr. Hill is serving a life sentence without possibility of parole for the first degree premeditated murder Jeffrey Logan.  The jury also convicted him of two other murder counts and of aggravated robbery.  The facts aren’t terribly important to the three errors that Mr. Hill argued to the supreme court.

Mr. Hill testified in his own defense, setting up a self defense claim to the shooting.  His testimony lead the trial judge to permit the state to impeach him with his Illinois conviction of simple robbery.  The catch was, however, the trial judge would not permit the state to name the conviction; this was to militate the similarity between this conviction and the aggravated robbery count.  Such similarity is one of the factors that a trial court is instructed to consider in exercising its discretion to admit impeachment by prior conviction evidence.  State v. Jones, 271 N.W.2d 534 (Minn. 1978).  The supreme court now adopts this evidentiary sleigh of hand, joining what appears to be a majority of jurisdictions that have considered the question.  The adoption of this rule also overrules a contrary opinion from the court of appeals, State v. Utter, 773 N.W.2d 127 (Minn.Ct.App. 2009).

Rule 609(a) of the rules of evidence require that the trial court determine that the probative value of admitting the prior conviction outweighs its prejudicial effect when the prior conviction does not involve either dishonesty or a false statement.  The trial court can now essentially read that requirement out of the rule by limiting the evidence to conviction of an unspecified crime.  This ruling will likely increase the frequency with which trial courts permit such impeachment; and it would also increase the number of such convictions that are allowed:  unspecified “convictions”. 

Any Error In Excluding Out of Court Statements Was Harmless Beyond a Reasonable Doubt; Court Upholds Aiding & Abetting First Degree Premeditated Murder Conviction.

State v. Hawes, Minn.S.Ct., 8/24/2011.  A jury convicted Ms. Hawes of aiding and abetting the first degree premeditated murder of her brother Edwin Hawes.  The state alleged that Ms. Hawes’ helped her other brother, Andrew, commit the murder.  Ms. Hawes, on the other hand, claimed that Andrew did the murder without her help.

Ms. Hawes and Andrew believed that Edwin had stolen money from the business that the brothers operated.  These suspicions festered for well over a year.  Eventually authorities notified Ms. Hawes that the theft accusations against Edwin were unfounded.  Ms. Hawes continued to track Edwin’s every movement, the explanation for which was the untrue claim that authorities were about to arrest Edwin for theft.  Edwin got wind of this and got a retraining order against Ms. Hawes.

Not too much after that Anoka county deputies came upon Ms. Hawes at a golf course at two or so in the morning, claiming to be visiting a friend who, it turned out, didn’t live near the golf course.  Edwin, however, did live nearby and so the deputies, who knew of the family feud, decided to see how he was doing.  On the way, the deputies came upon Andrew “staggering in the middle of the street.”  Edwin, the deputies learned, wasn’t home.

Where he was, was a fire pit on land that Andrew owned in southern Minnesota.  When those deputies came upon the fire pit, Ms. Hawes was tending the fire.  The investigation into Edwin’s death produced lots of forensic and other evidence which, when presented to the jury, resulted in her conviction  She argued that this evidence was not sufficient to support the conviction but the supreme court rejected his argument.

Ms. Hawes also complained that the trial court had been wrong to prevent her from testifying to out of court statements that Andrew made to her, and that this error violated her constitutional right to present a complete defense.  In her written offer of proof, Ms. Hawes indicated that she would testify that Andrew made the following statements to her between October 29 and October 31, 2008:

(1) Andrew confessed to Hawes the planning and murder of Edwin; (2) Andrew told Hawes that he picked Kristina Dorniden up at her parents’ house around 5:30 p.m. driving a grey Volkswagen Beetle and that Dorniden was to drop him off hear Edwin’s residence in Andover; (3) Andrew told Hawes that he waited in the woods near Edwin’s property for Edwin to arrive and there were weapons that he had previously placed around the property; (4) Andrew stated that Edwin arrived home, Andrew confronted him, and Andrew eventually shot Edwin with a crossbow that he pulled out from under a pile of leaves; (5) after shooting Edwin, Andrew continued to struggle with him, hitting him with a hammer and eventually driving over him with the Passat and covering his body with a pile of leaves; (6) Andrew drove the Passat to the Hawes Lawn Service building in north Minneapolis and called Hawes’ husband, Daniel Romig; (7) Romig helped Andrew clean up; (8) Andrew drove the Passat to a church parking lot in Golden Valley; (9) Andrew and Romig drove to a Rainbow Foods in south Minneapolis in an attempt to create an alibi by being shown on surveillance camera footage; (10) Andrew tricked Hawes into going to Edwin’s residence in the early morning hours of October 30; and (11) Romig helped Andrew dispose of the body and clean up the murder scene.

The supreme court ducks the question all together by deciding that even if this was a mistake it was a harmless one.  It seems that during her trial testimony she was allowed to refer to statements that Andrew made to her; she just couldn’t say the words that comprised those statements.  The jury had to guess the rest.  This, the supreme court, concludes, put the information that had been excluded out there for the jury to consider.

After the conviction, Andrew apparently gave Ms. Hawes’ counsel an affidavit that he would now waive his Fifth Amendment privilege and testify that his sister had nothing to do with Edwin’s murder.  Relying on Whittaker v. State, 753 N.W.2d 668 (Minn. 2008), see here, the supreme court declines to grant a new trial.  Because trial counsel knew of Andrew’s possible testimony she can’t satisfy the newly available evidence requirement that counsel not have known of it.  Not only that, the court said that this evidence was available to Ms. Hawes at the time of her trial despite Andrew’s Fifth Amendment assertion.  The court also declined to address this Catch-22 by modifying the requirement to substitute knowledge for availability.

A Confession to a Friend is a “Confession” under Minn.Stat. 634.03.

State v. Heiges, Minn.S.Ct., 8/17/2011.  I wrote about this case here, when the court of appeals had it.  Although for slightly different reasons, the supreme court affirms the court of appeals.  A jury convicted Ms. Heiges of second degree murder for the death of her newborn daughter.  After delivering the baby, she drowned the baby in the bathtub.  Roughly five months later, Ms. Heiges confided to A.B. (and others, but let’s keep it simple) that she had drowned the child.  A.B. reported this to the police, who commenced an investigation.  Police interviewed Ms. Heiges several times, during which she eventually made similar admissions.

The court of appeals had concluded that Ms. Heiges’ statements to friends before commencement of a police investigation need not be corroborated because such statements are not “confessions” within the meaning of Minn.Stat. 634.03; the court of appeals also concluded that such statements may be used to corroborate a defendant’s later confession to the police.  The supreme court had a slightly different take.  They conclude that such statements to friends before commencement of a police investigation are “confessions” under the statute, citing an opinion in which the court said that “any statement in which a defendant acknowledges guilt of a crime” was a confession.  State v. Vaughn, 361 N.W.2d 54 (Minn. 1985). 

That then presents the question whether this “confession” to friends was sufficiently corroborated by independent evidence of attending facts or circumstances from which a jury could infer trustworthiness of that confession.  The court concludes that it was.  It parses the confession to friends to include seven significant facts.  The court then goes looking for independent evidence to prop up those significant facts, and finds that evidence. 

Juvenile Certification is Not Offense Specific.

State v. Grigsby, Minn.Ct.App., 8/15/2011.  Mr. Grigsby Jr., shot and killed J.S. in part, apparently, because J.S. declined to shake hands with Mr. Grigsby Jr.  A juvenile petition charged Mr. Grigsby Jr. with second degree intentional murder, on which the juvenile court certified him to stand trial in district court.  Mr. Grigsby Jr. sought to remove the trial judge (who had also presided over the certification proceedings). In the district court the state added a charge of second degree felony murder.  The trial court ruled that unless and until Mr. Grigsby Jr. testified that he feared for his life because J.S. and his cohorts were members of a gang, the defense could not offer any gang affiliation evidence, including cross examination of state witnesses.  The jury convicted Mr. Grigsby Jr. of second degree felony murder.  He raised several issues on appeal.

Denial of the notice to remove:  The trial judge had denied the removal request on the rationale that because he had presided at the certification evidentiary hearing the removal notice was ineffective.  The court of appeals adopts this rationale and upholds the trial court’s refusal to grant the removal demand.

Jurisdiction over Offenses Added After Certification:  The court of appeals concluded that certification is not offense specific.  The certification rule, 18.07, says that adult court prosecution is “on the alleged offense(s) specified in the certification order.”  Alas, the rule does not “preclude” the district court from exercising jurisdiction over alleged offenses that were not so specified.

Additional Certification Hearing on Added Charges:  Mr. Grigsby Jr. argued that he was entitled to a separate certification hearing as a matter of due process on the added charges.  The court of appeals rejects this argument.  The original certification order included findings of Mr. Grigsby’s conduct, which supported the second degree felony murder charge added thereafter.  He thus got the process that he was due.

Exclusion of Gang Affiliation Evidence:  The state agreed that evidence of gang membership may be admissible to show witness bias.  That wasn’t the issue, however, back at the trial court.  Rather, it was the trial court’s determination that Mr. Grigsby’s testimony was the only way in which the relevance of gang related evidence to a claim of self defense could be established.  After all, the state of mind necessary to support a self defense claim may be established circumstantially.  See State v. Johnson, 719 N.W.2d 619, 631 (Minn. 2006).  The court of appeals didn’t like this trial court ruling, but after Mr. Grigsby testified he did not seek to recall any witness to ask about gang affiliation so the court gets to avoid the matter all together.

Assault Can be the Predicate Offense in a Felony Murder Charge:  Yes, it can, according to the supreme court so take it up with them.  State v. Jackson, 346 N.W.2d 634 (Minn. 1984).

No Jury Trial Right to Determine Factual Basis for Award of Restitution.

State v. Maxwell, Minn.Ct.App., 8/15/2011.  Mr. Maxwell procured more than two million dollars in fraudulent mortgage loans.  A jury eventually convicted him of eighteen felony counts of various sorts, after which Mr. Maxwell waived his right to a restitution hearing and agreed to submit that question on written materials.  The trial court ordered him to pay a lot of money.  On appeal, Mr. Maxwell said that he was entitled to a jury trial to determine the underlying facts on which the trial court based the award.

This is, of course, a Blakely argument.  So far, no court has held that a defendant is entitled to a jury trial on the issue of restitution.  The rationale for this conclusion is that restitution statutes have no upper bound and thus there is no upper dollar amount that exceeds any “statutory maximum,” which is what triggers Blakely.  So, Mr. Maxwell loses on this aspect of his restitution argument.

He also complained about certain of the restitution awards, in particular money for the victim’s inability to refinance his home mortgage following Mr. Maxwell’s identify theft.  The appellate court finds a direct casual link between the identity theft and the inability to refinance the mortgage, based upon the documents submitted to the trial court. 

Possession of Handgun Without Permit to Carry Requires Proof of Knowledge of Possession

State v. Ndikum, Minn.Ct.App., 8/15/2011.  Mr. Ndikum, who happens to be an attorney, walked into the Hennepin County Family Justice Center, carrying a briefcase that contained a loaded handgun.  Mr. Ndikum told the sheriff’s deputy that he owned a revolver but that he did not know that it was in the briefcase; the deputy recalled that Mr. Ndikum said that he carried a revolver for protection and the he had forgotten to leave it in his vehicle.

A jury convicted Mr. Ndikum of the gross misdemeanor possessing a pistol without a permit to carry.  Here’s what the statute has to say, Minn.Stat. 624.714, subd. 1a:

[a] person, other than a peace officer . . . who carries, holds, or possesses a pistol . . . on or about the person’s clothes or the person, or otherwise in possession or control in a public place . . . without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor.

Is this a statute imposing strict criminal liability for its violation, or does it require a mens rea?  It’s the later.  Remember the kid who unwittingly brought a pocket knife to school?  In re Welfare of C.R.M., 611 N.W.2d 802 (Minn. 2000).  A conviction requires a mens rea, element because the mere possession of a pocket knife is not the type of public welfare offense that one should reasonably knows is subject to strict liability.  Same thing here.  This panel of the court of appeals says that a handgun “is not so inherently dangerous that [Mr.. Ndikum] should be subject to strict criminal liability for carrying his revolver without a permit.” 

Mr. Ndikum gets a remand because the trial court had refused his request to instruct the jury that the state had to prove that he knew that he was in possession of his revolver.

Supreme Court Upholds Murder I Conviction Against Onslaught of Legal Challenges.

State v. Gatson, Minn.S.Ct., 8/3/2011.  A young African American male – a Mr. Petersen - knocked on Shyloe Linde’s apartment door, asking to speak with her.  Instead, he punched her twice in the stomach.  Ms. Linde was six months pregnant.  She began having contractions immediately after the assault.  Later, at the hospital, doctors performed an emergency cesarean section to deliver the baby, who weighed just two pounds.  Nine days later, doctors recommended the removal of life supports for the baby, and the baby died.

Mr. Gatson, who was the baby’s father, was also the getaway driver for the guy who threw the punches.  A jury convicted him of first degree premeditated murder, second degree murder, and first degree assault.  The trial court imposed a sentence of life without possibility of release.  On appeal, Mr. Gatson raised a number of issues.

Batson Claim:  Prospective juror R.R., an African American male, had a friend who went on trial for shooting someone.  R.R. said that he had not really followed the trial, but then later admitted to having attended at least one day of that trial.  The state struck R.R., saying in response to the Batson challenge that R.R. had not been forthright in his answers about his friend’s plight.  The trial court accepted this reason as race neutral and added the court’s concern that as a result R.R. would identify with Mr. Gatson.  Mr. Gatson said that the trial court could not substitute its own reason for the state’s reason in determining whether the state’s seemingly race neutral explanation was a pretext.  The supreme court rejects this argument, concluding that the trial court was only explaining why it agreed with the state’s explanation.

Sufficiency of Evidence Claim:  Part of this claim was the argument that the state did not prove that the baby was a “human being” because the state did not prove that the baby was able to breath without the support of artificial means.  However, the supreme court says that the focus is on the fact of life rather than the quality of life.  So long as the baby is born alive and has an existence independent of and separate from its mother it is a “human being” for purposes of the homicide statutes.  The state met that burden.

Along the same lines, Mr. Gatson argued that the state failed to prove causation,that the act of removing the baby from life support was a superseding intervening cause that relieved him of criminal liability.  The supreme court applies a foreseeable consequences test, as it had done previously in State v. Olson, 435 N.W.2d 530 (Minn. 1989).  The medical intervention here, including the decision to discontinue that intervention, was a foreseeable consequence of punching Linde in the stomach.

Jury Instructions:  Mr. Gatson argued that the trial court should have instructed the jury on the definition of “human being.”  He had not requested this instruction before deliberations began but he did include it in his motion for a new trial.  In that case, Rule 26.03, subd. 19(4)(f) of the criminal rules comes into play:

Objections to instructions claiming error in fundamental law or controlling principle may be included in a motion for a new trial even if not raised before deliberations.

Plain error analysis, however, is still the proper analysis.  The supreme court rejects this argument.  First, the instructions that the trial court did give on the elements of the offenses were correct.  Second, Mr. Gatson’s theory at trial was that he did not procure Mr. Petersen either to assault her or to kill her baby he was not entitled to an instruction defining human being; his theory was not that the baby was not a “human being.”  Had this been Mr. Gatson’s theory, then the supreme court would have had to decide whether he was entitled to the human being instruction, but that wasn’t the case.

Removal of life supports:  Having already concluded that the state had shown causation, it was easy enough to conclude that Mr. Gatson was not entitled to an instruction regarding removal of life supports.  The supreme court also approved the instruction that the trial court did give on causation, which it recommended in Olson:

Causation. The State must prove beyond a reasonable doubt that the defendant’s acts had a substantial part in bringing about Destiny Gatson’s death. It is not necessary that the defendant’s acts be the sole cause of death so long as the defendant’s acts start a [chain] of events which results in or substantially contributes to the death. And, further, if this chain of causation is found to exist, it is not broken by any treatment or lack of treatment administered to Destiny Gatson by the doctors in this case.

Lesser included offenses:  The supreme court rejects Mr. Gatson’s argument that the trial court should have instructed the jury on attempted murder and first degree assault as lesser included offenses of the first degree murder charge.

Crawford Claim:  The trial court admitted Mr. Petersen’s guilty plea transcript when it concluded that Mr. Gatson had forfeited his confrontation rights by having someone threaten Mr. Petersen.  The supreme court ducks the question whether Mr. Gatson procured Mr. Petersen’s silence and says that even if there were an error it was harmless.  The supreme court also ducks the hearsay issue, saying that if there were error it was harmless.

Prosecutor’s Opening Statement:  The state told the jury that Mr. Peterson would testify to certain things, but midway through the trial Mr. Peterson said he would not testify at all.  There was no evidence that the prosecutor said this about Peterson in bad faith, and the jury heard just about everything that Peterson would have said from other sources.

Failure of Defense Counsel to Submit Written Closing Argument Following Bench Trial Is Not Structural Error

State v. Dalbec, Minn.S.Ct., 7/27/2011.  This is the bench trial where defense counsel did not submit a written closing argument after asking to do so and then being unsuccessfully hounded by the clerk’s office about whether he really meant it.  I wrote about this here.  The court of appeals had concluded that this was both ineffective assistance of counsel and structural error:  automatic reversal and a new trial. 

Justice Page, writing for a unanimous court, disagrees.  Justice Page reviews what is considered “structural error.” In the context of effective assistance of counsel there are three kinds of structural error:

(1) when “the accused is denied counsel at a critical stage of his trial,” (2) when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” and (3) when circumstances show that the probability that a fully competent lawyer “could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”

United States v. Cronic, 466 U.S. 648, 658 (1984).  Mr. Dalbec thought that he could fit through door number two.  However, not submitting a final written argument following a bench trial is no different than waiving closing argument, which the U.S. Supreme Court did not find to be structural error in Bell v. Cone, 535 U.S. 685, 696-97 (2002).  In the Bell case, counsel had waived closing argument in the penalty phase of a capital case.  The Supreme Court said that counsel had not “entirely” failed” in his representation and so structural error analysis did not apply.  The court here comes to the same conclusion in this bench trial.

“Attorney” Means, Well, It Means “Attorney”.

State v. Milliman, Minn.Ct.App., 7/25/2011.  In these difficult economic times, you can’t be too generous about who you let into the well of the courtroom.  Mr. Milliman, who is not licensed at the bar, got himself appointed an “attorney in fact” to collect on a judgment in favor of James Getzkow and his wife.  Mr. Milliman duly served the employer of the judgment debtor with a demand to withhold earnings, which the employer did.  In turn, the state charged Mr. Milliman with the petty misdemeanor of unauthorized practice of law.

Mr. Milliman conjured up a decent enough legal argument.  He said that the statute that authorized executing on a judgment permitted an “attorney” to do those things, and because Mr. Getzkow had appointed him “attorney in fact” he was not practicing law without a license.  The court of appeals is bemused but not convinced.  They concluded that the statute on which Mr. Milliman relied meant for “attorney” to mean “attorney at law” and not “attorney in fact.”

The trial court had sentenced Mr. Milliman to pay a $100.00 fine.  Let some “attorney at law” collect it.

Evidence Supports Drug Possession With Intent to Sell

State v. Hanson, Minn.S.Ct., 7/27/2011.  Among other charges, the state charged Mr. Hanson with possession of ten or more grams of methamphetamine with intent to sell.  The state based this charge on a search of Mr. Hanson’s home in which officers found:

• A plastic bag with 2.4 grams of meth;
• A glass bowl with 1.3 grams of meth;
• Another bag with 8.9 grams of meth;
• Another bag with 23.6 grams of an unidentified substance; and
• about 100 unused plastic baggies.

Officers also found, among other items, a razor blade, a digital scale, a tip from a butane torch, a propane tank, a can of butane fuel and a bunch of glass pipes.  The jury convicted him but the court of appeals reversed, saying that there was a reasonable inference that Mr. Hanson possessed all these things for personal use.

The Supreme Court reverses the court of appeals.  The court particularly noted the plastic baggies, which officers found in the same place as most of the other drug paraphernalia. 

Admission of “Fear Scent” Evidence Harmless

State v. Matthews, Minn.S.Ct., 7/27/2011.  A jury convicted Mr. Matthews of the first degree murder of Blaine Christofferson.  Sully, a police dog, starting at the location of the shooting, found a mask, black clothing, and a gun, all in the general area where police also found Mr. Matthews.  (These items were tested for DNA.  The DNA testing could not exclude Mr. Matthews from being a contributor of the DNA found on these items.)

Sully’s handler said that Sully’s behavior while tracking meant that he was tracking the scent of a person and not the smell of, say, a gun.  Sully’s handler conceded, however, on cross examination, that if a person removes and discards a shirt then keeps going, then that shirt will exude the odor of a person which Sully would smell.  However, Sully’s handler then threw in that humans also emit what he called a “fear scent” and he believed that it was this “fear scent” that Sully was tracking.  The trial court sustained the defense objection to this additional observation but then, over objection, allowed the state, on re-direct, to elicit how people produce this “fear scent” and how dogs track it.

On appeal, Mr. Matthews complained that the trial court had erred in admitting this testimony about this “fear scent.”  The state argued that Mr. Matthews had not adequately objected to this testimony so that plain error analysis applied.  The appellate court ducked this complaint all together by saying that regardless of whether one applied harmless error or plain error Mr. Matthews was not entitled to a new trial on the basis of this claimed error.  In doing so, the appellate court equated the harmless error requirement that there was a “reasonable possibility that the wrongfully admitted evidence significantly affected the verdict” with the plain error requirement that the plain error “affected the substantial rights of the defendant.”  Even so, the court’s analysis was under harmless error” criteria.

The appellate court also rejected an evidence sufficiency argument.

Failure of Defendant to Provide Assistance to His Victim Not a Basis For Departure, Overruling Court of Appeals

Tucker v. State, Minn.S.Ct., 6/29/2011.  I wrote about this case here when the court of appeals had it.  The court of appeals had affirmed the denial of Mr. Tucker’s post conviction petition, agreeing with the trial court that Mr. Tucker’s failure to render aid to his victim constituted particular cruelty.  The supreme court disagrees and reverses.

Recall that Mr. Tucker pled guilty to unintentional second degree murder; as part of the plea he agreed that his failure to have rendered assistance to the victim was “particular cruelty.”  The court of appeals had this to say about not providing assistance in prosecutions for non-intentional criminal acts:

When an offender’s conduct is sufficiently egregious that a reasonable person in the same circumstances would suspect that the conduct very likely caused injury to the victim, it is particularly cruel for the offender to fail to take some meaningful step, even anonymously, toward obtaining at least an investigation so as to be able to give medical aid to the victim if an examination reveals that aid is necessary.

The supreme court begins by saying that it doesn’t matter in this case whether the trial court based the departure on particular cruelty, or on failure to render aid as a separate basis; the trial court abused its discretion in either event by imposing the departure.  The court then reminds everyone of what “particular cruelty” is:

‗[P]articular cruelty‘ involves the gratuitous infliction of pain and cruelty of a kind not usually associated with the commission of the offense in question.

Mr. Tucker’s actions fail this test.  Fleeing the scene and abandoning the victim is typical behavior for defendants convicted of second degree unintentional felony murder. 

Justice Page agreed with the majority’s analysis but he also thought that the departure was based on an uncharged offense and thus an invalid basis for departure.  See Minn.Stat. 609.662, subd. 2:

―[a] person who discharges a firearm and knows or has reason to know that the discharge has caused bodily harm to another person, shall: (1) immediately investigate the extent of the person‘s injuries; and (2) render immediate reasonable assistance to the injured person.

Justice G. Barry Anderson, with Gildea and Dietzen joining, concurred in the result but he also ripped the court of appeals for inventing this “reasonable person” rule.  Justice Anderson points out that both the Guidelines and case law have required departures to be based on what additional facts a defendant admits or what a fact finder determines.  There is no support for a departure based on what a defendant “should have known.” 

It’s The State’s Obligation to Pay For Representation of Indigent Misdemeanant’s Appeal

State v. Randolph, Minn.S.Ct., 7/20/2011.  A jury convicted Mr. Randolph of misdemeanor domestic assault.  Mr. Randolph wanted to appeal that conviction and he asked for a public defendant to represent him on that appeal.  Eventually, the trial court ordered that the state public defender either represent Mr. Randolph on appeal or pay a private attorney to do so; the trial court also ordered the state public defender to pay for the transcript.

In Morris v. State, 765 N.W.2d 78 (Minn. 2009) the supreme court held that indigent persons convicted of misdemeanors are entitled under the state constitution to appointed counsel on first review of their conviction. The Morris court also recognized that a misdemeanant has no statutory right to representation on first appeal by a public defender.  Since Morris, the legislature has not created such a right, so the trial court had no authority to appoint the public defender.

The remaining questions are who pays for the private attorney, and who pays for the transcript?  It’s not the public defender.  It’s not the county. 

So who gets the bill?  The supreme court pontificates that “it is the obligation of the State of Minnesota to satisfy the constitutional right to appellate counsel…”  having forget, apparently, that it is grabbing $75.00 from each licensed attorney to satisfy that same obligation. 

Anyway, if the state won’t pony up – including for the transcript - Mr. Randolph walks.

“Full Term of Imprisonment” Means Two-Thirds of a Defendant’s Executed Sentence.

State v. Leathers, Minn.S.Ct., 7/20/2011.  Mr. Leathers apparently got into it with five different police officers, resulting in charges of and convictions for five counts of first degree assault.  The trial court imposed concurrent sentences of 189 months, but told Mr. Leathers that he would be eligible for supervised release after serving two thirds of that sentence.  The state appealed, arguing that Mr. Leathers was not eligible for supervised release and had to serve every day of the 189 months.

One who is convicted of assaulting a police officer is subject to a minimum sentence.  Minn.Stat. 609.221, subd. 2(b).  That person must be sentenced to at least ten years.  In addition:

A defendant convicted and sentenced as required by this paragraph is not eligible for probation, parole, discharge, work release, or supervised release, until that person has served the full term of imprisonment as provided by law, notwithstanding the provisions of sections 241.26, 242.19, 243.05, 244.04, 609.12, and 609.135. Notwithstanding section 609.135, the court may not stay the imposition or execution of this sentence.

The state, and the court of appeals, concluded that this provision required Mr. Leathers to serve the entire sentence, with no eligibility for supervised release.  The Supreme Court disagrees with this conclusion and says, yes he is eligible for supervised release.

Mr. Leathers argued that the term, “full term of imprisonment” is two-thirds of an executed sentence, citing Minn.Stat. 244.01, subd. 8.  The state said that the assault statute means what it says:  full is full and not two-thirds.  The court of appeals said that the 244.01 subd. 8 definition only applied to chapter 244 (which is what the statute actually says), and that the assault statute means what it says:  full is full and not two-thirds.

The Supreme Court sides with Mr. Leathers.

Just Signing a PD Application, Without Formal Administration of an Oath, Does Not Support Perjury Prosecution

State v. Mertz, Minn.Ct.App., 7/18/2011.  Mr. Mertz applied for a public defender.  He filled out the form, saying that he had only $1,000 in a bank account, then signed his name, witnessed by a deputy sheriff, below this statement:

I SWEAR TO THE TRUTH OF MY ANSWERS I HAVE PROVIDED IN THIS APPLICATION TO THE BEST OF MY ABILITY, WITH FULL KNOWLEDGE OF THE PENALTY OF PERJURY, INCLUDING A POSSIBLE CRIMINAL CHARGE AND PRISON SENTENCE IF I HAVE WILLFULLY PROVIDED FALSE INFORMATION.

The trial court appointed a public defender to represent Mr. Mertz.

Problems for Mr. Mertz started shortly thereafter when the sheriff found a pirate’s trove of cash - $36,900.00 – buried in Mr. Mertz’s  back yard.  At his next court appearance he amended his PD application acknowledging that he owned the treasure in his back yard but he did not think that he had access to it.  The state, nonetheless, charged Mr. Mertz with perjury.  He moved to dismiss the charge, saying that he was not under oath when he filled out the PD form, and that he had made a timely recantation of his “misstatements.”  The district court dismissed the charge, saying that Mr. Mertz had made a statement under oath, but because he recanted his “misstatements” in the same legal proceeding and because his “misstatements” did not substantially affect the proceedings.  The state appealed.

The appellate court said that all that Mr. Mertz did was “merely sign his name in the presence of a deputy, which was not an oath.  The perjury statute requires that a formal oath be administered by a court-designated individual; otherwise, no perjury charge.  The appellate court does suggest that a group oath administered by the court may suffice to support a perjury charge so look for that in a first appearance court room near you.   Having decided that there was no oath, the appellate court does not reach the recantation defense.

Bruton Claim Bows to Crawford

State v. Usee, Minn.Ct.App., 6/20/2011.  The state charged Mr. Usee and Mr. Ali with three counts of attempted first degree murder among other charges.  The two were tried together.  During the trial, the state introduced Mr. Ali’s out of court statement that he made to a jail informant that Mr. Usee had been one of the shooters.  The trial court instructed the jury that it could consider Mr. Ali’s statement only in deciding whether Mr. Ali was guilty, and not in deciding whether Mr. Usee was guilty. 

Mr. Usee complained on appeal that introduction of Mr. Ali’s statement violated his confrontation rights.  Because there had been no objection at trial, the standard of review is plain error.  Under Bruton v. United States, 391 U.S. 123 (1968) admission of an out of court confession of a non-testifying codefendant that implicates the defendant is a confrontation violation.  Bruton, of course, was long before Crawford, which the court of appeals says limits Bruton to non-testimonial out of court statements, relying on opinions from the First, Sixth, Eighth and Tenth federal circuit courts of appeal for that conclusion. 

The court of appeals concludes that Mr. Ali’s statement to the jail informant was non-testimonial, – not likely to show up at trial -  in the apparent belief that Mr. Ali would never, ever, think that the informant would go screaming to the prosecutor with this get out of jail information.  See State v. Brist, here.This removes any confrontation problem, leaving only the rules of evidence.  Mr. Ali’s statement was a statement against interest and thus admissible against Mr. Usee.

State Constitutional Equal Protection Challenge to Check Statutes Fails

State v. Cox, Minn.S.Ct., 6/15/2011.  Ms. Cox wrote five checks to various businesses in Benson, Minnesota.  All told, the checks were for $515.83.  The bank sent the checks back to the respective businesses, saying there were insufficient funds available to honor them.  The businesses in turn each sent Ms. Cox a letter demanding payment of the dishonored check; they got no response. 

The state then charged Ms. Cox with issuing dishonored checks, Minn.Stat. 609.535, subd. 2(a)(1).  This statute prohibits a person from “issu[ing] a check which, at the time of issuance, the issuer intends shall not be paid.” The statute also says that among the ways that intent may be shown is by proof that at the time of issuance, the issuer had insufficient funds with the bank and the issuer failed to pay the check within five business days after a notice of nonpayment was mailed.  If the value of the checks is more than $500.00 the penalty is a felony.

Seems simple enough until you learn that there’s another statute that applies to Ms. Cox’s check spree.  It’s the theft by check statute, Minn.Stat. 609.52, subd. 2(3).  You can violate that statute by obtaining property or services of a third person by “intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.”  A “false representation” includes issuing a check knowing that you were not entitled to issue it.  The penalty for violating this statute is a gross misdemeanor.

Ms. Cox didn’t think it was quite fair for the state to have chosen the statute with the felony penalty instead of the statute with the gross misdemeanor penalty so she made a state constitutional equal protection argument.  To prevail, she had first to show that “similarly situated persons have been treated differently.” Paquin v. Mack, 788 N.W.2d 899, 906 (Minn. 2010); see also State v. Frazier, 649 N.W.2d 828, 837 (Minn. 2002) (“The [E]qual [P]rotection [C]lause guarantees that similarly situated individuals receive equal treatment.”); State v. Mitchell, 577 N.W.2d 481, 492 (Minn. 1998) (“The Equal Protection Clause requires that the state treat all similarly situated persons alike.”).  The Supreme Court said, with two dissents, she didn’t make that showing.

So, what’s the difference?  The two statutes don’t prohibit the same conduct.  Each requires that you write a check, but they have different mental states.  Moreover, the court didn’t think that Ms. Cox could support a conviction for theft by check because of a lack of proof of intent to defraud any of the merchants at the time she wrote the checks.

Grants of Petitions For Further Review

State v. Smith, Minn.Ct.App., 4/5/2011, Unpublished (A10-0916). Petition For Further Review granted, 6/28/2011.

Here’s the intro from the Court of Appeals:

Appellant Brandon Ryan Smith challenges his convictions of gross-misdemeanor possession of a pistol without a permit in a motor vehicle and misdemeanor transportation of a firearm in a motor vehicle, arguing that the district court erred by admitting the firearm because investigative questioning during the traffic stop expanded the scope of the stop and was not supported by independent reasonable, articulable suspicion. Because the officer’s questioning did not expand the scope of the stop, we affirm appellant’s convictions. Appellant also challenges the sentence for the misdemeanor conviction, arguing that both convictions are based on the same behavioral incident. Because both convictions arise from the same behavioral incident, we vacate the sentence for the illegal-transportation conviction.

The source code saga continues.

In Re: Source Code Evidentiary Hearings in Implied Consent Matters.

In Re: Source Code Evidentiary Hearings in Criminal Matters.

Petitions for accelerated review are granted, 6/28/2011 (A11-560).

A Motorized Wheelchair Is Not a “Vehicle” For DUI Prosecution

State v. Brown, Jr., Minn.Ct.App., 6/13/2011.  Isn’t it wonderful what you learn from the appellate courts.  First they taught us that minnows are not fish.  Now, they’ve taught us that a motorized wheelchair is not a “vehicle” such that its occupant can be prosecuted for drunk wheelchair driving.

Mr. Brown drove his scooter – he’s physically disabled – on the city sidewalks of Grand Rapids.  A local merchant called the cops, suspecting that Mr. Brown was tipsy.  He apparently was:  his breath alcohol reading was 0.17.  He did not need a driver’s license to operate his scooter, he could not get vehicle insurance for it, and he could not register it at the local DPS shop.  Minn.Stat. 169.011, subd. 53 – yes, there really are that many subdivisions – says that anyone in a wheelchair is a “pedestrian:

It is plain that for purposes of traffic regulations contained in Chapter 169, Brown’s scooter is a wheelchair and is not a motor vehicle, and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian.

Enough said.

Erroneous Instruction on Probable Cause Earns a New Trial

State v. Koppi, Minn.S.Ct., 6/8/2011.  An officer stopped Mr. Koppi because Mr. Koppi was speeding and appeared to be accelerating away from the squad car.  As he approached Mr. Koppi’s truck the officer smelled alcohol coming from Mr. Koppi and noticed that his eyes were bloodshot.  The officer asked Mr. Koppi to perform field sobriety tests but he refused.  The state charged Mr. Koppi with test refusal.

At trial, Mr. Koppi complained that the jury instruction that defined probable cause, CRIMJIG 29.28, provided a subjective, rather than an objective definition of probable cause.  The trial court gave the instruction anyway.  The Court of Appeals affirmed concluding that although the instruction erroneously articulated a subjective standard of probable cause the error was harmless.  The Supreme Court now reverses, agreeing that the instruction is not a correct statement of the law of probable cause, but concluding (Chief Justice Gildea and Justice Dietzen dissenting) that the error was not harmless.

Here’s what Justice Stras says is wrong with the instruction:

The instruction contains three flaws. First, it does not require the officer to recite actual observations and circumstances supporting a finding of probable cause. Second, it fails to include the requirement that the jury evaluate the totality of the circumstances from the viewpoint of a reasonable police officer. Third, the instruction erroneously requires that an officer believe a driver “was more likely than not” driving while impaired, a standard that is at odds with case law on probable cause requiring only an “honest and strong suspicion” of criminal activity.

Unlike the Court of Appeals, the Supreme Court concludes that this error is not harmless:

we must evaluate the evidence presented at trial to determine whether the instructional error was harmless beyond a reasonable doubt. Specifically, the question is whether the evidence points so overwhelmingly in favor of probable cause that we can say beyond a reasonable doubt that the instructional error had no significant impact on the verdict.

The instruction, CrimJig 29.28, has been rewritten in response to the court of appeals opinion and now says this about probable cause:

“Probable cause” means that the officer, based upon the officer's observations, information, experience, and training, can testify to the objective facts and circumstances in this particular situation that gave the officer cause to stop the defendant's motor vehicle and the further objective observations that led him to believe that the defendant was driving, operating, or in physical control of a motor vehicle while under the influence of alcohol.

Co-conspirator’s Statement Made Unwittingly to Police Informant is not Testimonial under Crawford.

State v. Brist, Minn.Ct.App., 6/6/2011.  The state charged Ms. Brist with six counts of controlled substance crimes from a series of methamphetamine deals.  An informant would meet Ms. Brist and her boyfriend, Mr. Garcia, at a local store.  Ms. Brist sent the informant into the men’s room to do the deal with Mr. Garcia.  The two men then retired to the informant’s car for the actual sale.

The informant recorded his conversations with Mr. Garcia, which the state then played to the jury.  The informant did not testify.  The trial court admitted the recording  as a statement of a co-conspirator made in furtherance of the conspiracy.  Rule 801(d)(2)(E).  Ms. Brist said that admitting the recording violated her Confrontation rights under Crawford.  She said that the  recording was an interrogation by a police informant and was thus “testimonial”.  The appellate court rejects this argument, citing a slew of federal circuit decisions – 2nd, 3rd, 4th, 6th, 7th, 10th & 11th – that have reached the opposite conclusion. 

The trial court imposed an executed sentence and also ordered Ms. Brist to participate in chemical dependency treatment while incarcerated, and to reside in a halfway house while on supervised release.  On appeal the state agreed that the trial court did not have the authority to impose these conditions. 

Other Grants For Further Review

State v. Gary Lynn Underdahl.  This is a sentencing issue, described here:

Minn. Stat. § 609.221, subd. 2(b) (2008), provides that a person who is convicted of assaulting a peace officer ―is not eligible for probation, parole, discharge, work release, or supervised release, until that person has served the full term of imprisonment as provided by law.‖ (Emphasis added.) In granting Leathers‘s motion, the district court noted that section 609.221, subdivision 2(b), does not define ―term of imprisonment,‖ but that Minn. Stat. § 244.01, subd. 8 (2008), defines ―term of imprisonment‖ as a period of time equal to two-thirds of a defendant‘s executed sentence.

Eligibility for supervised release comes up in several criminal statutes; there are several cases raising this issue pending in the supreme court.

State v. Gerald Alan Hanson.  Here’s the introduction from the Court of Appeals:

The district court may not rely on circumstantial evidence to convict a defendant of possessing drugs with the intent to sell unless the state’s evidence of intent excludes beyond a reasonable doubt the possibility that the defendant intended only to use the drugs personally.

State v. Mahdi Hassan Ali.  The issue here is over Ali’s age at the time of the alleged offenses, which impacts the route by which to certify Ali to stand trial as an adult.  The Supreme Court has taken accelerated review of this question.

State v. Thomas Allen Zais.  This is a marital privilege case.  Here’s the introduction from the Court of Appeals:

This appeal is from the district court‟s pretrial order in a prosecution for disorderly conduct, concluding as a matter of law that, absent Thomas Zais‟s consent, his wife, Debra Zais, may not testify against him. Because we conclude that Debra Zais‟s testimony comes within the exception to the marital testimonial privilege in Minn. Stat. § 595.02, subd. 1(a) (2008), which permits spousal testimony in a criminal action or proceeding for a crime committed by one spouse against the other, we reverse and remand.

Recent Grants, Petitions For Further Review

State v. Adrian Lamont Patterson.  Here’s how the post on this case begins:

A jury convicted Mr. Patterson of aiding and abetting drive by shooting and aiding and abetting second degree murder.  The real dust up in this appeal, however, is over who gets to be the lawyer.

State v. Brandon Lee Bible.  The unpublished Opinion from the Court of Appeals is here.  That court summarized the jury waiver issue this way: 

Before appellant’s jury trial, defense counsel informed the district court that appellant was willing to stipulate that he was ―a convicted felon‖ ineligible to possess a firearm, so that the jury would not receive information about his prior qualifying felony convictions. The district court accepted the stipulation and informed counsel that they could tell the jury that appellant had stipulated ―that he was convicted of a prior felony that is a prerequisite for—that he is no longer able to possess firearms or however you want that language.‖ Appellant was present in court when the stipulation was received,
but he was not questioned regarding the stipulation and did not personally waive his right to a jury trial on the element of his ineligibility to possess a firearm.

Here’s the Order on the grant of review:

IT IS HEREBY ORDERED that the petition of the State of Minnesota for further review be, and the same is, granted on the jury-waiver issue and all proceedings are stayed pending final disposition in State v. Kuhlmann, No. A09-915. The petition is denied on all remaining issues.

I wrote about Kulhmann here.

State v. Franklin Clyde Jones.  This is another jury waiver issue; see Bible above and Kuhlmann.

State v. Moses Hillary Digga.  This is also a jury waiver issue; see Bible above and Kuhlmann.

State v. Mitchell Ray Gerold.  Here’s the introduction from the unpublished Opinion of the Court of Appeals:

The state contends that the district court‟s admission of DNA evidence was prohibited under Minn. R. Evid. 412 and was not required to satisfy the defendant‟s constitutional rights. Because respondent on the pretrial record failed to show that the DNA factor was sufficiently probative to overcome its prejudicial effects, we reverse.

The DNA from the victim’s underwear excluded Mr. Gerold.  The trial court admitted this DNA evidence on the basis of this defense argument:

Before trial, respondent moved the court for an order allowing him to admit at trial the DNA evidence obtained from K.J.H.‟s underwear. Although his motion acknowledged that the DNA evidence did not meet the requirements of Minn. R. Evid. 412 for admission of a victim‟s prior sexual conduct, respondent claimed that it was admissible because of his rights of due process, confrontation, and presenting evidence in his defense. He argued that because the charge of first-degree criminal sexual conduct requires the state to prove that he caused injury to K.J.H., the DNA evidence was relevant to show that K.J.H. was likely engaged in sexual contact before the alleged assault and that the previous sexual conduct may explain her injuries.

State v. Donelly Edward Boeder.  This is a challenge to the admissibility of first void urine testing in DWI prosecutions.  Here’s how the Court of Appeals Opinion starts:

Appellant argues that the district court erred by admitting his urine-test result without holding a Frye-Mack hearing to determine whether urine testing is generally accepted within the relevant scientific community and abused its discretion by excluding his proffered expert testimony.

State v. Matt Dixon, Jr.  This is another challenge to the admissibility of first void urine testing in DWI prosecutions.

“I ain’t got nothin’ else to say man.” Is an Equivocal Invocation of the Right to Silence.

State v. Ortega, Minn.S.Ct., 6/1/2011.  A jury convicted Mr. Ortega of aiding and abetting first degree premeditated murder.  On appeal, Mr. Ortega challenged the trial court’s denial of his motion to suppress his statements to the police.

Mr. Ortega and the victim, Mr. Ulrich, lived in the same apartment building.  Mr. Ortega, Mr. Ulrich and others had partied earlier in the evening, during which things were sometimes heated between Mr. Ortega and Mr. Ulrich.  Mr. Ortega demanded that Mr. Ulrich leave, a demand that he emphasized with a baseball bat and a machete; Mr. Ulrich took the hint and retired to a nearby garage. 

Where the argument resumed.  Mr. Ortega, along with his grandfather, started hitting Mr. Ulrich.  (Did I mention that Mr. Ulrich had only one arm?)  The two Ortega’s continued hitting Mr. Ulrich, and one of them also stabbed Mr. Ulrich with a knife.  Mr. Ulrich died from the knife wounds.

Investigators eventually arrested Mr. Ortega.  When two BCA agents came in to talk to Mr. Ortega, the first thing out of his mouth was to ask if he needed a lawyer.  Here’s the answer he got:

[WOLD]: Um, I give you this opportunity right now, Daniel, Danny, if you want to talk to us, that’s great. If you don’t, that is your choice. You mentioned a lawyer right away. I can’t talk to you if you want to speak to a lawyer but I’m going to give you your rights, listen to them, but understand that I’m not going to have an idea and [Agent Mueller]’s not going to have an idea as to what happened in that room from your prospective [sic] last night, what you’re saying happened unless you tell us.

[APPELLANT]: It’s not going to matter what I say though.

[WOLD]: Well, if it’s what you and your dad say, if what you and your dad say is, is close, ah, and it paints a different story then [sic] other people are saying, then it’s more believable isn’t it, two, two people say one thing but I need for you to say that and before you do that, before I ask any questions specifically about this incident, ah, it’s ah, a law, it’s a rule that I have to give you your rights, okay? And I just ask you to be open minded and talk to us and tell us your version of things, okay? Um, number one you have the right to remain silent, anything you say can and will be used against you in the court of law. You have the right to a lawyer and to have that lawyer with you while you are being questioned. If you can’t afford to hire a lawyer, one will be appointed to represent you without any cost to yourself. Do you understand those rights Danny?

[APPELLANT]: Yes sir.

[WOLD]: Okay. And having, and keeping in mind everything that we’ve talked about as I’m, as I was explaining your rights to you, do you want to tell us your side of the story tonight?

[APPELLANT]: Yeah.

Mr. Ortega started talking.  He made some admissions about hitting Mr. Ulrich, but he denied anything to do with the knifing of Mr. Ulrich.  The agents continued to press Mr. Ortega to admit to the knife; instead Mr. Ortega said “I ain’t got nothin’ else to say man.  That’s it, I’m through.  I told you.”  The agent pressed on:

[WOLD]: Well, I’m confused, why . . .

[APPELLANT]: I’m getting hard headed right now so just please, I’m through. Seriously.

[WOLD]: Okay, well I just want to give you a chance to, to tell us everything, I’m just confused about ah, why you won’t just tell us where . . .

[APPELLANT]: I told you, I didn’t, I the last time I seen that knife, my dad had it.

The agent then observed how he though that Mr. Ortega was tight with his granddad, at which point Mr. Ortega confessed to the stabbing.

The agent thought that Mr. Ortega didn’t want to talk about the stabbing or the knife when he said that he was “through.”  The legal question is whether this is an unambiguous and unequivocal articulation of his desire to remain silent that a reasonable officer would understand.  State v. Day, 619 N.W.2d 745, 749 (Minn. 2000).  The appellate court thought that Mr. Ortega’s statement, “I ain’t got nothing else to say man.” could mean either that he didn’t have any more information, or he didn’t want to share that additional information. 

Mr. Ortega also complained that the trial court admitted the statements even though he began the interview with the question about whether he was supposed to have a lawyer present.  Minnesota law requires an officer to “stop and clarify” an ambiguous request for counsel.  State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988).  (The appellate court cast some doubt on the continuing viability of this “stop and clarify” requirement, but leaves it in place for now.)  The appellate court decides that providing Mr. Ortega with an accurate Miranda warning suffices to satisfy this “stop and clarify” requirement.  Apparently doing so while also telling Mr. Ortega that his side of the story would never be told unless he talked was alright.

Justices Page and Paul H. Anderson dissented on the suppression issue but would have found the error harmless beyond a reasonable doubt.

Because no Federal Offenses are Listed in Section VI of the Guidelines, a State Sentence for an Offense That is on the List Cannot be Permissively Sentenced Consecutively to the Federal Sentence

State v. Hahn, Minn.Ct.App., 5/31/2011.  A jury convicted Mr. Hahn of criminal sexual conduct in the first degree.  The state brought the charges in September 2007, after which the U.S. Attorney’s Office charged him with production of child pornography, photos of his twelve year old rape victim.  Mr. Hahn pleaded guilty to that offense and received a sentence of 210 months in prison.  After that, the state resumed its prosecution.

The jury determined that Mr. Hahn had penetrated his victim more than once.  The state trial judge concluded that this determination authorized either a durational sentencing departure or a state sentence consecutive to the federal one.  The trial court ran the state sentence consecutively to the federal sentence.

Before getting to the sentencing issue there are other issues to look at.  When Mr. Hahn got back from his prosecution over in federal court he demanded a speedy trial.  His trial didn’t start, however, for another 228 days.  In the interim, Mr. Hahn filed some sort of lawsuit against his attorney in federal court and by the time all that had been settled there was another attorney on the state case who needed time to get up to speed.  Ultimately, the appellate court concluded that Mr. Hahn had not been denied a speedy trial.

Mr. Hahn also complained about the introduction of some of the pornographic pictures of the rape victim.  Mr. Hahn had argued that the pictures did not portray sexual contact between the victim and himself and thus were not probative of criminal sexual conduct.  The trial court had admitted the photos to corroborate the victim’s testimony, help the jury weigh her credibility, show Mr. Hahn’s state of mind and his ongoing relationship with the victim.  The appellate court determined that the admission of the photos was not an abuse of discretion.

Now to the sentencing issue.  One way in which sentences are permissively consecutive – and the way that is in play here – is when both offenses are on the list contained in Section VI of the Guidelines.  Criminal sexual conduct in the first degree is on that list; the federal pornography offense is not.  The list is the list and is not subject to modification.  The list is exclusive and does not provide a mechanism for identifying federal offenses that are analogous or equivalent to offenses that are on the list, as is the case in other sections of the Guidelines.  So, permissive consecutive sentencing is not an authorized disposition. 

That makes Mr. Hahn’s state sentence presumptively concurrent.  The only possible basis – multiple acts of penetration – were uncharged conduct because the state only charged one count.  Multiple penetration can’t be the basis for a departure.  Because the trial court articulated no other reasons Mr. Hahn gets a redo on his sentencing.  Judge Schellhas dissented on this aspect of the case and would have upheld the permissive consecutive sentencing.

Court of Appeals Says That All First Degree Burglaries of Occupied Dwelling Are Subject to Six Month Mandatory Minimum Sentence.

State v. Rausch, Minn.Ct.App., 5/23/2011.  After arguing with her ex-boyfriend, outside his home, Ms. Rausch entered his home without consent, assaulted him and then damaged his vehicle.  For this the state charged her with two counts of burglary – her first ever burglary - among other offenses.  Ms. Rausch entered a guilty plea to one count of burglary of an occupied dwelling under a plea agreement that called for a stay of imposition of sentence and an acknowledgment that Ms. Rausch would be asking for a departure from the mandatory minimum sentence of six months incarceration.  The trial court granted the departure and imposed a sixty day sentence – fifteen days in the workhouse and forty five days of alternative service. 

The state appealed, saying that the trial court had no authority to ignore the six month mandatory sentence that is contained in Minn.Stat. 609.582, subd. 1a:

A person convicted of committing burglary of an occupied dwelling, as defined in subdivision 1, clause (a), must be committed to the commissioner of corrections or county workhouse for not less than six months.

Seems pretty clear:  six months minimum for burglary of an occupied dwelling.  But Ms. Rausch argued that another statute, Minn.Stat. 609.583, still gives the trial court the discretion to depart from the presumptive sentence:

Except as provided in section 609.582, subdivision 1a, in determining an appropriate disposition for a first offense of burglary of a dwelling, the court shall presume that a stay of execution with at least a 90-day period of incarceration as a condition of probation shall be imposed unless the defendant’s criminal history score determined according to Sentencing Guidelines indicates a presumptive executed sentence, in which case the presumptive executed sentence shall be imposed unless the court departs from the Sentencing Guidelines pursuant to section 244.10. A stay of imposition of sentence may be granted only if accompanied by a statement on the record of the reasons for it. The presumptive period of incarceration may be waived in whole or in part by the court if the defendant provides restitution or performs community work service.

The appellate court says that 609.582 is more specific than is 609.583, so the former controls.  Actually, what it’s doing is legislating from the bench by changing the phrase “burglary of a dwelling” to “burglary of an occupied dwelling”.  That is, 609.583 applies only to the first burglary of an unoccupied dwelling, while 609.582 applies to all burglaries of an occupied dwelling.

A Plea Agreement, Alone, Does Not Support a Sentencing Departure; Where No Reasons Were Stated, Presumptive Sentence is Only Permissible Sentence on Remand

State v. Haggins, Minn.Ct.App., 5/3/2011.  A jury convicted Mr. Haggins of fourth degree assault for head butting a correctional officer at the Stillwater prison.  Mr. Haggins represented himself during trial, with the presence of stand by counsel.  After conviction, stand by counsel negotiated a six month upward sentencing departure; Mr. Haggins waived his right to a jury determination of any aggravating factors.  Other than the negotiated agreement the trial court made no findings to support the departure.

A plea agreement, standing alone, does not create the substantial and compelling circumstances that are necessary to support a departure.  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  Because the trial court did not even attempt to state reasons, the appellate court cannot flyspeck the record in search of such reasons.  The matter must be remanded, and the trial court can only impose the presumptive sentence.  No redo.  State v. Rannow, 703 N.W.2d 575 (Minn. App. 2005).

Trial Court Had Proper Grounds to Support Upward Durational Departure

State v. Weaver, Minn.Ct.App., 5/3/2011.  Mr. Weaver has twice – once by jury, once by judge – been convicted of unintentional murder - killing his wife in the laundry room of their home - and then setting fire to the house to disguise the homicide.  The parties disputed the cause of death; the state said that the wife died from carbon monoxide inhalation during the fire, but the defense said it could not be determined whether death had been from her head injury or from carbon monoxide.  The judge sided with the state, finding that she had died from inhalation of carbon monoxide.  The judge also found that the wife would have survived the head injury had she received medical assistance and that Mr. Weaver believed that the wife was dead when he lit the fire.  The court denied Mr. Weaver’s request for a downward durational departure, and imposed an upward departure of half again what the Guidelines called for on the basis of particular cruelty.

There were two actions that the trial court said supported a departure based on particular cruelty.  First, Mr. Weaver failed to summon aid that could have saved his wife’s life.  Second, instead of calling for help he set the fire in an effort to destroy evidence, especially his wife’s body.  Mr. Weaver challenged both of these assertions.

Failure to render aid:  This cannot be an aggravating factor in an intentional homicide.  State v. Robideau, 783 N.W.2d 390 (Minn.Ct.App. 2010), rev’d on other grounds, __ N.W.2d __ (Minn. Mar. 23, 2011).  The appellate court ducks the question whether such failure can be a permissible departure reason in an unintentional homicide because it likes other reasons better to support this departure.

Like torching the wife’s body.  Almost twenty-five years ago the court of appeals upheld a sentencing departure based on a defendant’s torching of his victim, even though he believed that the victim was dead.  State v. Direcks, 412 N.W.2d 765 (Minn.Ct.App., 1987).  Mr. Weaver objected to this reasoning, arguing that torching the body was either part of the arson or uncharged conduct (Concealment, Minn.Stat. 609.502.)  Arson, however, is an exception to the cumulative punishment prohibition of 609.035 and so the arson can be both the underlying offense of the felony murder and a basis for departure.  State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008). 

The appellate court also thought that because the wife suffered multiple injuries, inflicted by two different methods – assault and fire – the departure was proper.  Finally, the appellate court upholds the trial court’s denial of his departure motion.  He had asked the trial court for a presumptive sentence equal to what that sentence had been before a legislative change back in 1989, which Mr. Weaver argued had been made for political reasons rather than empirical research.  The appellate court declines to hold that disagreement with a particular guideline is a proper basis for a departure.

Animal Rights Protests Were Protected Speech

State v. Peter, Minn.Ct.App., 5/3/2011.  Back on March 4, 2010, as was their wont, Mr. Peter and Mr. Lawson were conducting an animal rights protest outside Ribnick Fur; the men were chanting, carrying signs or banners and trying to talk to people (“Do you know they clubbed fifteen baby minks to make that fur coat you’re ogling?).  The men neither entered the store nor stopped any customers from entering the store.  They were yelling loudly.  They were heard to inform the owner of the fur store that they knew where he lived and that they knew his vehicle license plate number.  Some observers across the street claimed that the men were harassing customers so the officers arrested the pair for disorderly conduct.  A jury – all wearing fake rabbit - convicted them nonetheless.

The appellate court reverses for want of sufficient evidence.  Chanting about killing baby seals and the like is protected speech so long as it does not rise to the level of “fighting words.”  Back in the day, protesters who called police officers “mother fucking pigs” were thought to have crossed that line.  State, City of Minneapolis v. Lynch, 392 N.W.2d 700, 703-04 (Minn. App. 1986).  On the other hand, when a fourteen year old girl told two officers, who were sitting in a squad car thirty feet from her, “fuck you pigs,” she was protected from prosecution.  In re Welfare of S.L.J., 263 N.W.2d 412, 419-20 (Minn. 1978). 

Then there are matters of “public concern.”  Like gay bashing at funerals of servicemen killed in either Iraq or Afghanistan.  Snyder v. Phelps, 131 S.Ct. 1207 (2011).  As odious as it apparently was, the protest was protected speech.  Public protest cases, like this one, inevitably involve both speech and expressive conduct as well, like moving around, waving signs and the like.  Holding signs, chanting, commenting about killing baby seals – none of that is “fighting words.”  Doing all this, without benefit of a bullhorn,  on a downtown Minneapolis street in the afternoon was also protected.  For all that, the state’s evidence was insufficient to support a conviction of disorderly conduct.

No Miranda Warning Required For Non-Custodial Interrogation

State v. Vue, Minn.S.Ct., 4/27/2011.  A jury found Mr. Vue guilty of crime committed for the benefit of a gang (first degree murder while committing drive-by shooting).  Officers focused on Mr. Vue as a possible suspect; they learned that he was in Sacramento, California so they hopped a plane to go see him.  Officers met with Mr. Vue at the local police station; the officers told him that he was not under arrest and was free to leave.  When the officers began to ask questions about the homicide Mr. Vue ended the interview.  A local officer then gave him a ride home.

Two days later, the Minnesota officers again met with Mr. Vue at the local police station.  Eight minutes into the meeting Mr. Vue confessed to the homicide.  At the end of that interview local officers again gave Mr. Vue a ride home.  Mr. Vue then disappeared and it was three years later before police arrested him on the murder.

Mr. Vue moved to suppress the statements he made during the second interview, saying that this second interview had been a custodial interrogation for which a Miranda warning was required but not given.  Mr. Vue did not claim that his statement had been involuntary.

Now for the rest of the story on this second interview.  Before this interview a bunch of cops – eight of them to be exact – stormed into Mr. Vue’s Sacramento home to execute a search warrant.  The officers found only Mr. Vue home.  The officers handcuffed Mr. Vue in the kitchen, telling him that “this is not going away.”  The officers then took the cuffs off Mr. Vue and let him walk around in the yard.  Mr. Vue agreed to be interviewed and rode in the front seat of the squad car to the police station.  The officers left him unattended in the lobby for a while during which Mr. Vue could have left.  During the interview he was told that he was not under arrest and that he would not be arrested that day.  He was not arrested then; indeed, the officers took him home afterwards.

The appellate court concluded that Mr. Vue was not in custody during this second interview and thus no Miranda warning was required.

Mr. Vue also complained of prosecutorial misconduct in closing argument.  The prosecutor said that the jury would have to believe the impossible by believing that Mr. Vue might have admitted to something that he didn’t do.  The appellate court concluded that this was close to misconduct but let it go because the prosecutor immediately linked that assertion with a discussion of the confession that made it a true confession.

Failure of Lower Sioux to Have Requisite Liability Insurance Limits Deprive Lower Sioux Officer of Authority to Demand Breath Testing.

State v. Hester, Minn.S.Ct., 4/27/2011.  A Lower Sioux police officer arrested Mr. Hester on suspicion of driving under the influence.  The officer took Mr. Hester to jail where he asked him to submit to further testing.  Mr. Hester refused.  The state charged Mr. Hester with test refusal and a jury convicted him of that offense.

Mr. Hester filed a motion for a new trial.  He argued that he had not committed a crime when he refused the officer’s request for further testing because the officer did not have the authority under state law to require him to submit to testing.  Mr. Hester said that there were two reasons why the officer lacked this authority.  He said:

that the Lower Sioux police officer who arrested him did not qualify as a “peace officer” because Lower Sioux police officers are not specifically listed in the definition of “peace officer” in Minn. Stat. § 169A.03, subd. 18. He also argues that the Lower Sioux police officer who arrested him did not have the authority to request that he submit to a chemical test because the Lower Sioux did not satisfy the liability insurance requirements of section 626.91, subdivision 2.

First claim:  There are two statutes in play.  Minn.Stat. 169A.03, Subd 18 says that a “peace officer” includes a police officer of any county.  The other statute, Minn.Stat. 626.91, says that the Lower Sioux has the powers of a law enforcement agency if the requirements in subdivision 2(a) of that statute are met.  In that case, Lower Sioux officers have the same authority as officers appointed by the county sheriff.  So, a Lower Sioux officer is a “peace officer”.

Second claim:  Subdivision 2(a)(2) of 626.91 requires that the Lower Sioux file a bond or certificate of insurance for liability coverage in specified amounts.  The Lower Sioux had liability insurance at the time of Mr. Hester’s arrest, but the limits did not coincide with the required amounts.  The state argued that “close enough for government work” should be the test but the appellate court rejects this test.  Rather, the controlling distinction is between failure to comply with a technical provision of a statute versus failure to comply with the substance of that statute.  The Lower Sioux didn’t have the correct amount of insurance coverage, which is not a technical violation.  As a consequence the officer had no authority to require Mr. Hester to submit to testing.

Assault as The Intentional Infliction of Bodily Harm Is A Specific Intent Crime For Which Voluntary Intoxication is a Defense.

State v. Fleck, Minn.Ct.App., 4/26/2011.  Mr. Fleck went on a bender, drinking for “seven days straight.”  When his girlfriend, K.W., came home, Mr. Fleck stabbed her.  He then made several phone calls and then sat down to await the arrival of the police.  Mr. Fleck told the police that he had taken forty Serquel pills; shortly thereafter he passed out.  Officers took him to the hospital where his blood alcohol level registered .315.

The state charged him with second degree assault.  There are two ways that you can commit this crime:  act with intent to cause fear in another of immediate bodily harm or death; and intentionally inflict or attempt to inflict bodily harm upon another.  Minn.Stat. 609.222, subd 1.  Mr. Fleck relied on the defense of voluntary intoxication.  The state objected, saying that the later assault is a general intent crime for which voluntary intoxication is not a defense.  The trial court agreed, but instructed the jury, nonetheless, that voluntary intoxication was a defense to an act with intent etc. 

But, was Mr. Fleck entitled to an intoxication instruction on the form of assault defined as the intentional infliction of bodily harm upon another?  The answer depends on whether this form of assault is a specific intent crime.  It turns out that the answer is, yes.  Intent to harm makes this form of assault a specific intent crime.  In fact, the Minnesota Supreme Court had already said this was so, back in 1998.  State v. Edrozo, 578 N.W.2d 719 (Minn. 1998). 

Mr. Fleck had requested a voluntary intoxication instruction that would be applicable to both forms of assault.  When the trial court said it would not give that instruction for both forms of assault, Mr. Fleck made no further objections to the court’s instructions.  As a result, the state said that Mr. Fleck had failed to preserve the objection and thus the error had to be considered under a plain error analysis.  The appellate court rejects this contention.  Mr. Fleck asked for an instruction and didn’t get it.  He preserved the issue for review on appeal.

The jury had acquitted Mr. Fleck on the assault based on an act with intent to cause fear, etc.  The error in not extending the voluntary instruction to the other form of assault was prejudicial error.  Mr. Fleck gets a new trial.