Sunday, August 28, 2011

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.

Friday, August 26, 2011

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.

Wednesday, August 10, 2011

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.

Tuesday, August 2, 2011

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.