Remand To Make Findings on Why Trial Court Removed Spectators From Courtroom

State v. Infante, Minn.Ct.App., 4/19/2011.  During Mr. Infante’s jury trial for second degree assault the trial court booted his sister and a young child from the courtroom during the prosecutor’s closing argument.  Apparently, when sister and child came into the courtroom the prosecutor complained that their arrival threw him (or her) off his (or her) game.  The bailiff tossed them out into the hallway.

The judge can’t just toss people out of a public courtroom; there are rules about this:  Waller v. Georgia, 467 U.S. 39 (1984).  Tossing people improperly is a structural error – a defendant’s right to a public trial – that is not subject to harmless error.  State v. Bobo, 770 N.W.2d 129 (Minn. 2009).  To overcome the presumption that the courtroom is open to everyone:

(1) the party seeking closure must “advance an overriding interest that is likely to be prejudiced” if closure is denied, (2) “the closure must be no broader than necessary to protect that interest,” (3) the district court “must consider reasonable alternatives to closing the proceeding,” and (4) the court “must make findings adequate to support the closure.”

Here, there is nothing in the record to satisfy any of these four factors.  Although on appeal the state offered up some possible explanations, they were not supported by anything in the record.  So, the court sends the case back to the trial court for a redo, to see if that court can support the exclusions.

Mr. Infante also complained that the jury should have been instructed that they had to reach a unanimous decision about which of two acts constituted the assault.  The appellate court reviewed this claim under plain error and found none.  A statute that establishes alternative means for satisfying an element, unanimity on the means is not required.  State v. Ihle, 640 N.W.2d 910 (Minn. 2002). See State v. Dalbec, 789 N.W.2d 508 (Minn.Ct.App., 2010).  Mr. Infante’s two actions occurred at the same place and involved the same victim and were thus part of a single behavioral incident.  Each of the actions was a means for accomplishing an element of the offense.

A Minnow is Not a Fish

State v. Barsness, Minn.Ct.App., 4/12/2011.  Mr. Barsness was harvesting minnows, for which he held a valid license, when a DNR officer came along.  Mr. Barsness was operating on a lake that was not infested with the spiny water flea but with equipment that he had also used in an infested lake.  Equipment that is used in “commercial fishing” in an infested lake can’t be used in any other waters.  So, the state charged Mr. Barsness with using equipment in violation of his license.

Problem is, minnow harvesting is not “commercial fishing,” which is defined to be “taking fish, except minnows, for sale.”  Minn.Stat. 97A.015, subd. 9.  Minnows are not fish under the game and fish laws.  The court reversed his conviction.

Officers Lacked Reasonable Suspicion and Did Not Have Valid Consent to Have Seized Narcotics.

State v. Diede, Minn.S.Ct., 3/30/2011.  A deputy sheriff was staking out the residence of Jason Hanson, intending to arrest him for a previous drug charge.  Eventually, Jason and Ms. Diede left the residence in a gray pickup truck; Ms. Diede was driving.  The deputy learned that the plate on the pickup belonged to a red pickup.  When the gray pickup stopped at John Hanson’s residence the deputy believed that he saw Jason toss something back into the truck seat.  The deputy arrested Jason.

By this time Ms. Diede had got out of the truck. The deputy told her to stay put because he needed to talk to her.  She complied, standing around with her hands in her pockets.  The deputy asked her if she’d seen Hanson throw something back into the truck; she said she had not.  He then asked her what she had in her pockets.  She said she had a pack of smokes and a lighter.  She would not permit the deputy to look inside this cigarette package when he asked.  When requested to do so by a second cop, Ms. Diede turned out her pockets and produced a second cigarette package.  She then either immediately flipped open the top of the cigarette package or did so when asked, depending on which cop you asked.  The cops could then see the ends of a plastic baggie protruding from the package, which Ms. Diede quickly shut and started to crush.  The officers pried the package out of her hand.  The contents of the baggie tested positive for methamphetamine and weighed 0.3 grams.

Ms. Diede moved to suppress the methamphetamine.  First, she said that the deputies did not have a reasonable suspicion that she was involved in criminal activity at the time they seized her, which the parties agreed occurred when the deputy told her to stay put after she got out of the car.  The district court had concluded that the deputies had sufficient suspicion, based on these six factors:

(1) “Hanson, a passenger in Defendant’s vehicle, was being taken into custody on [probable cause for previous sales of] controlled substances”;

(2) Detective Jensen, before Hanson got out of the truck, saw Hanson looking at him and “moving [Hanson’s] right hand as if he was reaching in his pocket for something”;

(3) as Hanson got out of the truck, Detective Jensen “observed what he believed to be Hanson tossing something back into the vehicle”;

(4) Diede remained in the vehicle;

(5) Diede “denied that Hanson had thrown anything back into the vehicle”; and

(6) Diede appeared to be “nervous” and “fidgety” as she was questioned.

The court of appeals thought that the first four factors were sufficient to uphold the search.  Justice Meyer, in a 4-3 decision, also looks at the first four factors since the remaining two didn’t exist at the time the deputies seized Ms. Diede.  Justice Meyer found these factors woefully lacking:

The remaining four facts on which the district court relied do not provide an objective basis for suspecting that Diede was engaged in the criminal activity of possessing a controlled substance. The only basis in the record for suspecting that anyone possessed drugs was Detective Jensen’s assertion that he had probable cause to arrest Hanson for previous drug sales. But the record does not describe the foundation of that probable cause. Nor does it indicate any objectively articulable facts that would have allowed the police to reasonably infer that Hanson was carrying drugs at the time of his arrest on April 22. The record also does not indicate whether Hanson recognized Detective Jensen as a law enforcement officer, which would be necessary to support the officer’s suspicion that Hanson left something in the truck in response to the presence of the police. The record does not indicate that any of the officers saw Diede reach for anything while she was in the truck or that the officers looked into the truck to see if the object they saw Hanson leave there had been removed from the truck.

The court also concluded that because the officers did not have a reasonable suspicion that Ms. Diede was engaged in drug related criminal activity, the request to search the cigarette package exceeded the scope of any temporary investigative seizure.  Next, the majority rejects the claim that Ms. Diede consented to that search:

At the time Diede opened her cigarette package, she had been seized, was subject to a show of police force, had received repeated requests to open the package, and had already refused consent to search the package.

Finally, the court rejects the claim of inevitable discovery of the meth, concluding that the state was relying on improper factors to support that claim.  Refusal to consent cannot establish probable cause to search.  Cf. State v. Jones, 678 N.W.2d 1, 12 n.3 (Minn. 2004).  Her nervousness under police questioning,alone, does not establish probable cause.  State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980), superseded by rule on other grounds, Minn. R. Crim. P. 26.01, subd. 4. 

Justice Dietzen, joined by Chief Justice Gildea and Justice Stras, dissented, concluding that the officers had both reasonable suspicion and a valid consent.

Aggravating Factor, “Presence of Child” Means Seeing, Hearing, Witnessing Some Portion of the Commission of the Offense.

State v. Robideau, Minn.S.Ct., 3/23/2011.  A jury convicted Mr. Robideau of stabbing his girlfriend to death.  The court imposed an aggravated sentence based, in part, on the presence of a child in the house where the stabbing occurred.  The child did not see, hear, or otherwise witness the stabbing.  The court of appeals affirmed the aggravated sentence, reasoning that Mr. Robideau knew it was highly likely that the child would discover the body, which is exactly what happened.  See here.  The supreme court reverses the court of appeals.

Previous opinions have established, generally, that the presence of a child can be an aggravating factor.  State v. Profit, 323 N.W.2d 34 (Minn. 1982).  This factor is now codified at Minn.Stat. 244.10, subd. 5a(13).  Profit said that “presence” meant two things:  the child actually witnessed the offense; and the victim is particularly vulnerable due to the child’s presence in the home.  More recently, the supreme court has said that a child who is only within “sight or sound” of the offense is not “present.”  This is because the child must see, hear or otherwise witness the offense.  State v. Vance, 765 N.W.2d 390 (Minn. 2009).

Here, the state argued that the child’s discovery of the body is “presence” enough.  Mr. Robideau countered that no, the child must be cognizant of the crime as it is being committed.  Justice Dietzen, writing for a unanimous court, sides with Mr. Robideau.  The court vacates the sentence and remands for a sentencing redo.

Restitution Order Reduced From $19K to $156.00

State v. Nelson, Minn.Ct.App., 3/22/2011.  Ms. Nelson worked for a tanning salon.  The owner of the salon discovered that Ms. Nelson and three other salon employees were helping themselves to free, after hours tanning; and the four were also giving free tanning sessions to others.  The owner estimated that the salon had lost $7,700.00 in lost revenue.

The state charged Ms. Nelson with felony theft by swindle, alleged to have occurred during a specified period of time.  However, the state did not file the charge until after the three year limitations period had run.  The trial court dismissed this court (as well as a similar count against the three coworkers).  The state also charged Ms. Nelson with misdemeanor theft for the free tanning sessions that she had (presumably) enjoyed during a period of time separate from the felony time period.  Ms. Nelson pleaded guilty to that misdemeanor, agreeing to pay restitution determined by the trial court.

The salon’s owner presented a bill for $24,412.  Here’s how it broke down:

New computer software:	$690.00
New computer hard drive:	$700.00
Stolen tanning services:	$7,668.00
Employee hours spent reconstructing the thefts:	$2,604.00
“Personal hours”:	$12,750.00

The trial court awarded $19,412.00, subtracting an insurance payout of $5,000.00.  The appellate court orders a refund.

Whether an item meets the statutory requirements to qualify for an award of restitution is a question of law that the appellate court reviews de novo.  A loss claimed must be directly caused by the conduct for which the defendant was convicted.  State v. Latimer, 604 N.W.2d 103 (Minn. App. 1999). 

Here, most of the restitution awarded was for losses that occurred outside the period of time covered by the misdemeanor conviction.  Gone.  The award also included losses flowing from the conduct of Ms. Nelson’s coworkers, whose theft by swindle charge had also been dismissed on limitations grounds.  Gone.  As to the computer software and hardware, the state failed to show that these items were either broken or damaged.  Gone.  The employee and personal hours totaled over fifteen hundred hours, which the appellate court found to be excessive.  Gone

That leaves the value of the tanning sessions of which Ms. Nelson, herself, partook:  $156.00.  The appellate court finished by reminding trial courts of its duty to consider whether a defendant has the ability to pay restitution.

One Defense Attorney Disqualification Upheld; One Refusal to Disqualify Next Defense Attorney Upheld.

State v. Patterson, Minn.Ct.App., 3/15/2011, petition for review filed, 4/14/2011.  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.

R.A. was the victim of the murder, and T.D., a passenger in R.A.’s car, was the victim of the drive by shooting.  Leroy Paul was driving Patterson around at the time of the drive by.  Paul pleaded guilty to second degree murder, agreeing to testify against Mr. Patterson.

Mr. Patterson first retained Eric Newmark to represent him.  The state said that Mr. Newmark had a conflict of interest due to his previous representation of three of the state’s witnesses and moved to disqualify him; the trial court granted that motion.  Next, Mr. Patterson retained Barry Voss, who, as it happens, had represented Mr. Paul on a separate but related murder.  The state moved to disqualify Mr. Voss.  Mr. Voss said that Mr. Paul had not made any privileged communications about the murder of R.A.  Mr. Paul’s attorney in the R.A. murder said that while he thought that was correct, if Mr. Paul had made privileged communications to Mr. Voss then Paul would not waive attorney-client privilege.  Paul said it was okay by him for Mr. Voss to represent Mr. Patterson so long as Mr. Voss could not cross examine him; that is, so long as Mr. Voss retained independent counsel to cross examine Paul.  The trial court thought that was okay so long as Mr. Patterson waived any effective assistance of counsel claim pertinent to Mr. Voss’s potential conflict of interest.  Mr. Patterson provided that waiver.

On appeal Mr. Patterson complained that the trial court had denied him his counsel of choice by disqualifying Mr. Newmark; and had denied him conflict free counsel by refusing to disqualify Mr. Voss.  In rejecting these claims, the appellate court observed that the trial court is allowed “substantial latitude” in disqualification before trial of an attorney who is facing an actual or serious potential for a conflict of interest.  The trial court may consider these four factors:

1) the prejudice to the defendant which would result from the disqualification of his lawyer; (2) the state’s interest in preserving the finality of a judgment in the face of an ineffective-assistance-of-counsel claim; (3) the court’s interest in preserving the ethical standards of the legal profession; and (4) the public’s interest in having a criminal justice system that is perceived as fair.

The appellate court engaged in a lengthy analysis of Mr. Newmark’s potential conflicts and determined that the conflict existed and that it could not be remedied.  The court then considered the refusal to disqualify Mr. Voss.  The appellate court determined that if Mr. Patterson made a valid waiver of that conflict then that was the end of it.  The court’s analysis is not under the dual representation rule and case law.  Rather, the court applies case law on waiver of the right to counsel in general.  See State v. Richards, 456 N.W.2d 260 (Minn. 1990).  This is a Faretta analysis.  Faretta v. California, 422 U.S. 806 (1975).  The waiver must be knowing, voluntary and intelligent; and the court must also make a defendant aware of the “dangers and disadvantages” of continuing with the representation.  The appellate court concluded that under this standard Mr. Patterson’s waiver was valid. 

Criminal Rule 26.01 Continues to Vex

State v. Burdick, Minn.Ct.App., 3/15/2011.  How to play under Rule 26.01, subd. 4 keeps coming up, with the parties and the courts struggling to adhere to the rules.  Subdivision 4 is supposed to be reserved for appellate review of dispositive pretrial rulings, and is a codification of State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  See here and here or the gory details. 

Police arrested Ms. Burdick for driving while impaired; her blood alcohol level registered 0.19.  Before trial, Ms. Burdick tried to raise a challenge to the blood alcohol test but the trial court said she had raised this too late under the rules.  So, she agreed to submit the case for a decision under Rule 26.01, subd. 4.  This rule sets out the procedure that must be followed in order to preserve pretrial issues for appellate review.  Most importantly, the parties must acknowledge that the pretrial ruling is dispositive of the case or that in the evet that a defendant prevails on appeal a contested trial would not be necessary.  Subd. 4 also limits appellate review to those dispositive pretrial rulings.

Well, the parties didn’t say any of those things.  Even more problematic, what was actually being reviewed on appeal was the denial of a hearing on the suppression issue; an appellate court decision in Ms. Burdick’s favor only results in the resumption of litigation, including a trial.  Not what the rule had in mind.