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).