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.