Court Rejects Various Post Conviction Claims as Knaffla Barred.

State v. Reed, Minn.S.Ct., 12/29/2010.  A jury convicted Mr. Reed of conspiracy and aiding and abetting the murder of a police officer.  The Minnesota Supreme Court upheld his confictions.  State v. Reed, 737 N.W.2d 572 (Minn. 2007).  Mr. Reed then filed a post conviction petition, asserting various claims.  Among them:  the trial court violated his constitutional right of self-representation; the statute of limitations barred his prosecution; and both trial and appellate counsel provided ineffective assistance of counsel.

Officer Sackett responded to a false emergency call, during which he was shot and killed.  Mr. Reed was accused of being the person who directed Constance Trimble-Smith to make the false emergency call, and accused of shooting the officer.  Shortly before trial, Mr. Reed asked the trial court to appoint new counsel.  The trial court denied that request.  Mr. Reed pursued this denial on direct appeal.  The supreme court assumed, without deciding, that Mr. Reed had asked to represent himself; it did so because in its view Mr. Reed had waived this issue by not presenting it on direct appeal.  State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737(1976). 

Mr. Reed also argued that a three year limitations period controlled prosecution for conspiracy and aiding and abetting murder.  He further argued that a valid limitations defense deprives the trial court of subject matter jurisdiction and thus cannot be waived or barred under Knaffla.  The supreme court rejects this claim.  The court says that a limitations statute is a “claim-processing rule” that can be waived.  Because Mr. Reed knew of the limitations defense on direct appeal but did not raise it, he is barred from raising it now.

The court also rejects the ineffectiveness of counsel arguments and rejects a claim that additional affidavits supported a recantation of evidence such that there should have been at least an evidentiary hearing on the claim.

A Defendant Who is Charged Under the Mandatory Sentencing Provision of Chapter 152 Is Not Eligible For Probation.

State v. Adams, Minn.Ct.App., 12/28/2010.  Ms. Adams pled guilty to second degree controlled substance crime, charged under the subsequent offender sentencing provision, Minn.Stat. 152.022, subd. 3(b).  This sentencing provision calls for a mandatory sentence of three years.  The trial court ignored this sentencing provision and placed Ms. Adams on probation, citing eight separate reasons for departing.  The State appealed the sentence and the court of appeals reversed.

Minn.Stat. 152.026 says that someone who is “convicted and sentenced to a mandatory sentence under [the second degree controlled substance statute] is not eligible for probation … under that person has served the full term of imprisonment as provided by law.”  See State v. Turck, 728 N.W.2d 544 (Minn.Ct.App. 2007).  The appellate courts have decided to construe this “convicted and sentenced” language to actually say “has a prior drug conviction and thus could be charged under the mandatory sentencing provision.”  Absent legislative action, someone who is charged under the subsequent offender sentencing provision is unable to avoid the mandatory prison sentence.  Now, whether the trial court can impose only the mandatory sentence, which in this case would be a guidelines departure, remains an open question.

Shockingly, Ms. Adams was not represented on this appeal.  She had private counsel in the trial court who only let the court of appeals know that he was not representing Ms. Adams after the state had filed its brief.

A Defendant's In Court Explanation For Rejecting A Plea Offer Is Not Admissible Under Rule 410.

State v. Brown, Minn.S.Ct., 1/5/2011.  I wrote about the court of appeals opinion here.  The State charged Mr. Brown with attempted second degree murder, and with possession of a pistol without a permit.  The state offered a plea to the attempt, with a recommended sentence of 130 months.  At the pretrial, in the midst of making a record of this offer, Mr. Brown engaged in a spirited colloquy with the trial court, after which he entered a plea of not guilty.  Among other statements, Mr. Brown asserted a defense of self defense and defense of others, and claimed that he had a permit for the pistol.

At trial, Mr. Brown testified, again asserting his claims of self defense and defense of others.  He also testified that he did not have a permit for the gun.  The prosecutor was all over this, asking if it wasn't true that Mr. Brown had previously told the court that he did have a permit.  After the trial court over ruled the objection to the question, Mr. Brown stated that he did recall saying that.  The defense thought that Mr. Brown's statements during the discussion of the plea offer were excluded from evidence under Rule 410, which states in pertinent part:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

The Court of Appeals agreed with the trial court's ruling.  It pointed out that Mr. Brown neither pled guilty nor offered to do so.  In fact, he mostly complained that he should not have been charged with the attempt because his actions were justified, and then he lied about having a gun permit. 

The Supreme Court reversed the court of appeals.  It did so under a plain error analysis, because defense counsel did not specify the specific ground for the objection.  The court acknowledged that from the context of the examination there were any of three possible objections, one of which invoked Rule 410 but the court was unwilling to select that or the other two possible grounds.

Even so, it was plain error to have admitted the testimony.  Mr. Brown never offered to plead guilty, but he did make statements “in connection with” a plea offer, in this case the state’s sentencing recommendation.  The court is willing to say that this fits within the language of the rule, especially when the statements came about during an exchange that the trial court initiated.  This plain error is also prejudicial.  This is because of the importance of Mr. Brown’s credibility on the claim of self defense and defense of others.  Finally, the plain error also seriously affected the fairness, integrity or public reputation of judicial proceedings.  Mr. Brown gets a new trial on the attempted second degree murder.

Gas Headspace Chromatography Test Meets Frye-Mack; Results of Urine Test Are Admissible

State v. Edstrom, Minn.Ct.App., 12/21/2010.  A Carver County Deputy arrested Ms. Edstrom for driving while impaired; she consented to a urine test, which she provided.  She did not first void her bladder before providing the test sample.  The BCA ran the sample through something called a “gas headspace chromatography,” which said that the alcohol concentration from the sample was 0.08.

Ms. Edstrom asked for a Frye-Mack hearing to evaluate gas headspace chromatography.  The state objected but the trial court held one anyway.  Although the court of appeals has issued several opinions that upheld either the admission or exclusion of “first-void urine” tests, neither that court nor the supreme court had evaluated such evidence under Frye-Mack.  Now it has.

So, just what is this contraption?  Here’s how the appellate court describes it:

Gas headspace chromatography involves the isolation of compounds contained in a urine sample and the measurement of the concentration of each compound. The urine sample is placed in a vial and diluted with a liquid solution. Then, the vial is heated until the urine sample equilibrates, meaning that the gas and liquid forms of the compounds in the liquid solution reach a constant ratio. Next, the vapor is transferred to a gas chromatography column. The vapor travels through the column, and as it does so, the compounds in the vapor separate from each other and attach to the column. A detector identifies each of the compounds and measures the quantity of the compounds in the urine sample.

The appellate court concluded that gas headspace chromatography is generally accepted in the scientific community whether testing “first-void” or “later-void” samples.  The court also rejects various defense expert contentions about the test’s reliability.  So, the test passes the Frye-Mack requirements.

Which is what the trial court had actually ruled, notwithstanding which the court then suppressed the evidence.  The trial court said that the test result was but one factor to be considered in determining impairment but is not, itself, evidence of impairment.  The trial court feared, however, that a jury would reach just that conclusion, that the test result meant that Ms. Edstrom was impaired, no matter what evidence she submitted.  The prejudicial effect of admitting the tests result thus outweighed its probative value.

Not so fast.  Relevant evidence, which the test result is, is not excludable unless it poses a risk of unfair prejudice.  Rule 403 says that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…”  That’s not the case here for three reasons:  a defense expert, an instruction to the jury, or defense closing argument.  The test result is in.

DUI Statute Does Not Require a Verbal Refusal; Circumstantial Evidence Can Support a Finding of Refusal.

State v. Ferrier, Minn.Ct.App., 12/21/2010.  An Eagan police sergeant arrested Ms. Ferrier for driving while impaired.  The sergeant administered a preliminary breath test which showed that Ms. Ferrier had an alcohol concentration of .184.  Back at the station, Ms. Ferrier agreed to take a urine test.  Over the next four hours Ms. Ferrier gulped as many as fifteen glasses of water but she still couldn’t pee in the cup.  The sergeant called it a night and charged Ms. Ferrier with test refusal.

So, did Ms. Ferrier “refuse to submit to a chemical test” within the meaning of Minn.Stat. 169A.20, subd. 2?  This turns out to be a question of law and not of urology anxiety.  Ms. Ferrier said that she was “willing but unable” to perform and that under those circumstances only a verbal refusal from her amounted to “refuse to submit to a chemical test.”  The appellate court says, no, there is no such requirement in the statute or in prior opinions.  Circumstantial evidence may suffice.

What’s a “refusal”?  It is, at least, “any indication of actual unwillingness to participate in the testing process, as determined from the driver’s words and actions in light of the totality of the circumstances.”  Ms. Ferrier chose a urine test over a blood test, which the appellate court said “presupposed her ability to provide a sample.”  The officers gave her all that water; they apparently cracked jokes with her in an effort to “lighten the mood so that [Ms. Ferrier] would not be impeded by nervousness.”  The officers warned her on the last trip to the potty that if the cup remained dry it would be scored as a refusal.  Ms. Ferrier never said that she was physically incapable of urinating and she never asked for the needle.