Statutory Reorganization Does Not Preclude First Degree DWI Conviction

State v. Retzlaff, Minn.Ct.App., 11/21/2011, petition for further review GRANTED.  In August 2009, a deputy stopped a car driven by Mr. Retzlaff after observing the car twice cross the center line.  The deputy arrested Mr. Retzlaff for driving while impaired; his breath sample produced an alcohol concentration of 0.19.  The state charged Mr. Retzlaff with first degree driving while impaired because Mr. Retzlaff had a 2000 conviction for criminal vehicular operation. 

Mr. Retzlaff did not dispute that he was operating a car while under the influence of alcohol.  Rather, he zeroed in on the second requirement of a first degree DWI charge, that he “ha[d] previously been convicted of a felony under section 609.21, subdivision 1, clause (2), (3), (4), (5), or (6).”  Minn.Stat. 169A.20, subd. 1(3) (2008).  Let’s get the complete DWI provision out and highlight the pertinent part:

A person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person: (1) commits the violation within ten years of the first of three or more qualified prior impaired driving incidents; (2) has previously been convicted of a felony under this section; or (3) has previously been convicted of a felony under section 609.21, subdivision 1, clause (2), (3), (4), (5), or (6).

Minn. Stat. § 169A.24, subd. 1.  Now, back in the day, at the time of Mr. Retzlaff’s conviction, criminal vehicular operation was codified at 609.21, subd. 2a;  today’s 169A.20’s list of predicate felony offenses does not mention subdivision 2a, because the legislature reshuffled a bunch of the statute numbers.  The court of appeals passes this off as nothing more than a “numeric irregularity,” rather like too many slices of pizza.  To follow what the court concedes is the statute’s plain language leads to what it characterizes as an “absurd result that contradicts the statute’s obvious intent.”  The court upholds the conviction and sentence.

Farmers Can Hunt Deer With the Aid of Spoiled Pumpkins

State v. Hansen, Minn.Ct.App., 11/21/2011.  Mr. Hansen is a farmer.  Among other crops he grows pumpkins, which he sells around Halloween time.  When the goblins retire to await the following year’s festivities he plows the unsold pumpkins – when he gets around to is – back into the soil as “green manure”.  On opening day for hunting deer, Mr. Hansen erected a hunting blind on his farm not far from a pile of pumpkins and other discarded vegetable residue.  The Department of Natural Resources thought that this was hunting deer with the aid of bait, which just happens to be a petty misdemeanor.

The DNR did a “fly-over” of Mr. Hansen’s farm about two weeks before the deer opener; they didn’t see any pumpkins piled up.  The flew another mission two days before opener and lo and behold there were the pumpkins piled up on the field along with corn and other residue.  They decided that this had nothing to do with farming and everything to do with venison.

Well, you got to read this baiting statute:

97B.328 BAITING PROHIBITED.

Subdivision 1.Hunting with aid of bait or feed prohibited.

A person may not hunt deer:

(1) with the aid or use of bait or feed; or

(2) in the vicinity of bait or feed if the person knows or has reason to know that bait or feed is present.

Subd. 2.Removal of bait.

An area is considered baited for ten days after the complete removal of all bait or feed.

Subd. 3.Definition.

For purposes of this section, "bait or feed" includes grains, fruits, vegetables, nuts, hay, or other food that is capable of attracting or enticing deer and that has been placed by a person. Liquid scents, salt, and minerals are not bait or feed. Food that has not been placed by a person and resulting from normal or accepted farming, forest management, wildlife food plantings, orchard management, or other similar land management activities is not bait or feed.

The court of appeals thinks that farmers should be able to hunt deer on their own property so they squirm around to conclude that this statute is ambiguous.  They conclude that the statute can’t distinguish between innocent conduct related to farming – moving all of your spoiled pumpkins into one big pile – and unlawful baiting of deer – moving all of your spoiled pumpkins into once big pile.  Mr. Hansen’s conviction is reversed.

Petition to Withdraw Guilty Plea Not Knaffla Barred but Nonetheless Without Merit

Barnslater v. State, Minn.Ct.App., 11/21/2011.  A defendant pleads guilty, but gets a stayed sentence.  Later, he violates probation and the trial court executes that sentence.  That same defendant starts an appeal of the probation revocation decision but then abandons that appeal.  Time goes by (but not too much of it).  Defendant files a post conviction petition that seeks to set aside the guilty plea.  The post conviction court says, not so fast.  You started an appeal once but gave it up.  No redo’s!

That’s pretty much all there is to this case.  The court of appeals corrects the post conviction court’s conclusion that Mr. Barnslater had had his chance to challenge the guilty plea during his abandoned appeal of the probation revocation decision.  Mr. Barnslater specifically stated in his notice of appeal from the probation revocation decision that he was only appealing from that decision.  So, it was not a “direct appeal” from his original conviction and not barred under the Knaffla “use it or lose it” rule.

Even so, Mr. Barnslater was not entitled to withdraw his guilty plea.

In Criminal Vehicular Operation Prosecution, Exclusion of Evidence of Victim’s Alcohol Consumption and Erroneous Instruction on Causation Requires New Trial

State v. Nelson, Minn.Ct.App., 11/21/2011, petition for further review denied, 2/14/2012.  Mr. Nelson’s Chevy Silverado pickup truck struck Christopher Carlson’s Honda all-terrain vehicle, killing Mr. Carlson.  Both men had been drinking – Mr. Nelson’s BAC was .056, and Mr. Carlson’s BAC was .15 - and both were driving rather wildly; the state’s accident reconstruction expert concluded that Mr. Nelson’s speed was 81 m.p.h. one second before impact while the defense expert concluded that the speed was between 61 and 70 m.p.h. at impact.  What happened was, Mr.  Nelson topped a rise in the road and then drove the length of a football field in a ditch.  Amazingly, he came upon Mr. Carlson’s Honda ATV – which went into the ditch a mere fifty feet before impact and was likely traveling without lights - in the same ditch, colliding with the rear of the Honda ATV.  Here’ what happened next:

After the collision, [Mr. Nelson’s] pickup traversed County Road 1 to the ditch on the [opposite] side of the road, vaulted into the air after striking a field approach, and came to rest between 600-700 feet from the impact point of the collision.

The trial court granted the state’s pretrial motion to exclude evidence of Mr. Carlson’s level of intoxication.  Mr. Nelson had argued that this evidence was relevant to the issue of causation.  The definition of “causation” in a criminal vehicular operation case derives from the civil substantial factor definition of causation, and is commonly used in criminal vehicular homicide and operation cases.  State v. Dunagan, 521 N.W.2d 355 (Minn. 1994).  Here’s the definition:

For a party’s negligence to be the proximate cause of an injury, the act must be one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. There must also be a showing that the defendant’s conduct was a substantial factor in bringing about the injury.

Complicating things for Mr. Nelson is the alleged negligence of Mr. Carlson.  On these facts, where Mr. Carlson’s negligence is “interweaved” with that of Mr. Nelson, it was unfair and thus an abuse of discretion to exclude evidence of Mr. Carlson’s alcohol consumption.  This error was not harmless, especially in combination with the instruction error that also occurred.

That error was the trial court’s failure to instruct the jury properly on causation.  The trial court told the jury that an element of the vehicular operation counts was that Mr. Nelson “caused the death of [Mr. Carlson], but declined the defense request to instruct the jury additionally that “A ‘direct cause’ is a cause that had a substantial part in bringing about the accident.” Excluding this additional instruction again misinformed the jury on what law to apply to determine whether Mr. Nelson’s actions were a “substantial factor in bringing about the injury.”  This error was also not harmless.  Mr. Nelson gets a new trial. 

The State’s Circumstantial Evidence Sufficiently Proved Premeditated Murder

State v. Palmer, Minn.S.Ct., 9/28/2011.  The trial court, sitting without a jury, found Mr. Palmer guilty of premeditated first degree murder, second degree intentional murder, and possession of a firearm by an ineligible person in the shooting death of Ernest Moss.  The court sentenced Mr. Palmer to life without possibility of release on the premeditated murder conviction.

Mr. Palmer’s brother, Da’Leino, fronted some crack cocaine to Mr. Moss, who promised to pay for the drugs within the week.  Da’Leino, meanwhile, owed money to his supplier.  Mr. Moss didn’t pay; Da’Leino got agitated. After a few days  Da’Leino and Mr. Palmer went over to Mr. Moss’s place and waited for him.  When Mr. Moss showed up the three argued.  When Mr. Moss threatened to call the police, Da’Leino pulled out a gun and pointed it at Mr. Moss.  Mr. Palmer then grabbed the gun from Da’Leino and shot Mr. Moss five times, firing two to three shots, pausing a couple of seconds, then firing the remaining shots.

On appeal, Mr. Palmer’s attorney argued that the evidence was not sufficient to support premeditated murder.  The supreme court underwent its Anderson circumstantial evidence routine, described thusly:

First, we must identify the circumstances proved, giving deference “to the jury’s acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State.” Second, we independently examine “the reasonableness of all inferences that might be drawn from the circumstances proved,” including inferences consistent with a hypothesis other than guilt.

State v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010) (quoting State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)).  For the evidence to be sufficient to convict of first-degree premeditated murder, a defendant must have formed the intent to kill, and then must have had “some appreciable time” in order to “consider, plan or prepare for, or determine to commit” the killing. Minn. Stat. § 609.18; State v. Moore, 481 N.W.2d 355, 361 (Minn. 1992).  The court found sufficient proof of premeditation by examining evidence of planning, motive and the “nature of the killing.”  The court then examined whether the circumstances that the state proved supported a reasonable inference other than guilt.  The court rejected Mr. Palmer’s assertion that the shooting was but a “rash impulse” rather than premeditated.  The evidence thus supported the premeditated murder conviction.  Justices Meyer, Page and Paul Anderson dissented from this conclusion.

The court rejected, on plain error analysis, Mr. Palmer’s pro se argument that the evidence more closely fit manslaughter offenses.  The court also rejected a couple other pro se arguments.

Jail Credits Denied, For Now, on Purported (But Not Really a) Consecutive Sentence.

State v. Clarkin, Minn.Ct.App., 10/3/2011, petition for further review, GRANTED, 12/21/12.  This is a jail credits appeal.  Mr. Clarkin did time in prison for a second degree assault conviction.  After his release he failed to comply with various of his parole conditions so in May 2008 a warrant issued for his arrest.  Authorities arrested him on the warrant on July 13, 2008.  Between May and July, Mr. Clarkin also allegedly spray painted graffiti on the outside of the homes of the assault victim and her father.  Mr. Clarkin denied the spray painting allegations; he was not charged but he did return to prison.

When he got out this second time, there were, curiously, eleven more similar graffiti incidents.  Police investigated and found an eye witness and a video of Mr. Clarkin spray painting.  The two groups of spray painting were the basis of a felony harassment/stalking charge, and a charge of violating an OFP.  Authorities arrested him in December, 2009.  Mr. Clarkin pleaded guilty to the harassment/stalking charge which was based on a July 5, 2008 graffiti incident.  He got a thirty-five month sentence, against which he received jail credits only from the December 2009 arrest.  By the time the trial court sentenced him, however, his assault conviction expired.

Mr. Clarkin thought he was entitled to jail credits back to July 13, 2008, arguing that authorities had probable cause to have charged him with the first two alleged graffiti incidents.  See State v. Fritzke, 521 N.W.2d 859 (Minn.Ct.App. 1994).  The trial court eventually held that the authorities did not have probable cause back in July 2008 and so Mr. Clarkin was not entitled to those jail credits.

The court of appeals saw this conundrum differently.  They could care less about probable cause.  Rather, they honed in on the Guidelines, which says that “Consecutive sentences are presumptive when the conviction is for a crime committed by . . . an offender on supervised release . . . .” Minn. Sent. Guidelines II.F.1 (2010).”  (Now, Mr. Clarkin had pointed out – something that the court of appeals not once mentions – that his assault conviction had expired so that this new sentence could be neither consecutive nor concurrent to that expired one.) The court of appeals said that because Mr. Clarkin was on supervised release when he engaged in the offense conduct (at least of conviction) – the July 8 spray painting – giving him jail credits while he was also serving (again) his assault sentence would be a de facto departure from the Guidelines.  He doesn’t get those jail credits.

The Supreme Court has granted further review.

Denial of a defendant’s motion to dismiss an indictment for first-degree murder for lack of subject matter jurisdiction is immediately appealable as of right.

State v. Ali, Minn.S.Ct. 10/12/2011.  The state charged Mr. Ali with the three shooting deaths at the Seward Market in Minneapolis.  The indictment alleged that Mr. Ali was seventeen years old on the date of the alleged offenses and thus automatically subject to trial in the district court.  Mr. Ali moved to dismiss for lack of subject matter jurisdiction based on his claim that he was only fifteen years old on the date of the alleged offenses.  The trial court denied his motion and the court of appeals concluded that this denial was not an appealable order.

The supreme court reversed the court of appeals.  The court held that the denial order was an appealable order and that the state had the burden of proof to establish Mr.Ali’s age by a preponderance of the evidence.

Rule 28.02, subdivision 2(2) has a laundry list of orders from which a defendant may immediately appeal as of right.  The order denying Mr. Ali’s motion to dismiss the indictment is not on that list.  Nonetheless, borrowing from the civil side, the supreme court says that an order denying a motion to dismiss for lack of jurisdiction is immediately appealable as of right.  Establishing Mr. Ali’s age on the date of the alleged offenses does finally determine a claim – Mr. Ali’s right to be tried in juvenile court – that is separate from his guilt of innocence and is thus appealable as a matter of right.

The court also adopts a preponderance of the evidence standard of proof, rejecting Mr. Ali’s claim that the standard should be beyond a reasonable doubt. 

No Extension of Padilla to Risk of Loss of eligibility to Posses Firearm Following Conviction

Sames v. State, Minn.Ct.App., 10/17/2011.  Mr. Sames pled guilty to misdemeanor domestic assault.  After sentencing, he moved to withdraw his plea, saying that his attorney was ineffective by not advising him that his plea would make him ineligible to possess a firearm.  He made this argument, of course, on the back of Padilla v. Kentucky, 130 S.Ct., 1473 (2010).

After sentencing, withdrawal of a guilty plea is only permitted to correct a “manifest injustice,” which exists if the plea is not accurate, voluntary and intelligent.  State v. Raleigh, 778 N.W.2d 90 (Minn. 2010).  Historically, the courts have said that a plea is still voluntary even when a defendant is unaware of what it characterizes as “collateral consequences.”  The risk of becoming ineligible to possess a firearm is such a “collateral consequence.”  State v. Rodriguez, 590 N.W. 2d 823 (Minn.Ct.App. 1999). 

Now the court of appeals was not unimpressed with the logic of extending Padilla to these facts.  Padilla acknowledged, after all, that the Supreme Court has never relied on this distinction to define the scope of a constitutionally protected right.  Loss of eligibility to posses a firearm is nearly as “intimately related to the criminal process” as is deportation, and is “nearly an automatic result” of a criminal conviction.  Even so, this is a timid panel and abjures going first.  The court can’t find a single case from any other jurisdiction that has agreed with the logical extension of Padilla that Sames urges. 

The Minnesota Supreme Court declined further review. 

Exclusion of Third Party Perpetrator Evidence Earns a New Trial; Concurrence Urges a New Look at Eye Witness Testimony

State v. Ferguson, Minn.S.Ct., 10/19/2011.  A jury convicted Mr. Ferguson of first degree premeditated murder of Irene Burks.  Mr. Burks raised eight separate issues on appeal but reversed on only one of them, a claim that the trial court had been wrong to exclude evidence of an alternative perpetrator.

Ms. Burks was standing outside a friend’s house,  “K.C.”, and K.C.’s daughter.  An African American man wearing a black hooded sweatshirt started running toward K.C.’s house; this man fired a gun six or more times in the general direction of K.C. and  Ms. Burks.  Ms. Burks later died at the hospital.  At the scene, K.C. further described the shooter as a black male, about five-nine, thin build, medium to dark complected.” K.C. said the shooter’s nose was “a little wider,” and he had “medium-sized lips.” She said the shooter was wearing a blue or black “hoodie.” Three witnesses saw an individual wearing a dark-colored hooded sweatshirt leaving the scene of the shooting.  K.C. later identified Mr. Ferguson during a six person sequential photographic lineup.

Mr. Ferguson asked the trial court to be allowed to introduce evidence that connected a Christopher Jennings, an acquaintance of Ms. Burks, to the shooting; the trial court denied this request.  Before getting to the factual basis for this claim, here’s a short summary of third party perpetrator evidence law:

All defendants accused of criminal behavior have the constitutional right to present a complete defense. State v. Larson, 787 N.W.2d 592, 597 (Minn. 2010) (citing State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009)). Included within this right is “the right to present evidence showing that an alternative perpetrator committed the crime with which the defendant is charged.” Id. (internal quotation marks omitted). Such evidence is generally not admitted “for the purpose of establishing the alternative perpetrator’s guilt, but to create a reasonable doubt as to the defendant’s guilt.” Id. (internal quotation marks omitted). Courts may limit the defendant’s evidence to ensure that the defendant does not confuse or mislead the jury. State v. Hannon, 703 N.W.2d 498, 506 (Minn. 2005) (citing Taylor v. Illinois, 484 U.S. 400, 411 n.15 (1988).

Alternative perpetrator evidence is admissible only if the defendant makes a “threshold showing that the evidence the defendant seeks to admit has an ‘inherent tendency to connect the alternative perpetrator to the commission of the charged crime.’ ” State v. Nissalke, 801 N.W.2d 82, 99 (Minn. 2011) (quoting State v. Larson, 788 N.W.2d 25, 36-37 (Minn. 2010)). This foundational requirement “ ‘avoid[s] the use of bare suspicion, and safeguard[s] a third person from indiscriminate use of past differences with the deceased.’ ” Id. (quoting State v. Jenkins, 782 N.W.2d 211, 224 (Minn. 2010)).

Once the defendant lays foundation for the evidence by proving its inherent tendency to connect the alleged alternative perpetrator to the commission of the crime, “ ‘it is permissible to introduce evidence of a motive of the third person to commit the crime, threats by the third person, or other miscellaneous facts which would tend to prove the third person committed the act,’ in order to cast a reasonable doubt on the state’s case.” State v. Jones, 678 N.W.2d 1, 16 (Minn. 2004) (quoting State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977)).

(Or not so short; anyway, the facts:)  Here’s what Mr. Ferguson sought to introduce in support of his third party perpetrator defense:  The police had got a tip that the person who had shot Ms. Burks was “C.,” (get it?).  C.J. was listed in her cell phone contacts and C.J. and Ms. Burks had spoken by phone three days before the shooting.  Jennings’ description was similar to that of the shooter provided by witnesses, and Jennings drove a car that matched some of the descriptions of a car seen at the scene of the shooting.  Jennings had been arrested for possession of a firearm without a permit some four months before the shooting and he was not in custody on the date of the shooting.  This evidence – in particular Jennings’ physical appearance and that of the car – suggest that Jennings was present at the scene of the shooting.  This evidence also connected Jennings both to Burks and to the crime.  As a result the exclusion of third party perpetrator evidence was an error, and it was not harmless beyond a reasonable doubt.

Justice Paul Anderson wrote a concurring opinion in which he addressed several of the other issues that Mr. Ferguson had raised on appeal.  One was the exclusion of expert testimony on the eye witness identification.  Justice Anderson pointed out that the police had not followed the “double blind” photo lineup protocol in the administration of the photo identification, and that the identification was a significant part of the state’s case.  The Justice lauds the recent New Jersey opinion, State v. Henderson, 2011 WL 3715028 (N.J. 8/24/2011), as destined “to become an important benchmark on the limitations of eyewitness identification”.  There’s plenty of good language here to support a request for introduction of such expert testimony.

Fleeing a Police Officer Can Serve as Predicate Offense under Second Degree Burglary Statute

Anderson v. State, Minn.Ct.App., 10/24/2011.  Employees at a Cub Foods believed that they saw a bunch of kids shoplifting and then jumping into a gold van driven by Ms. Anderson.  The local constabulary gave chase; Ms. Anderson eventually drove the van into a fortuitously open garage.  Everybody jumped out of the van, and closed the garage door.   The homeowner, who was upstairs changing her daughter’s diaper, upon hearing all this commotion in her house, came downstairs to find six strangers in the living room.

The state charged Ms. Anderson with second degree burglary, with fleeing a police officer in a motor vehicle as the predicate crime.  The district court found her guilty on stipulated facts; Ms. Anderson maintained that the fleeing didn’t count for purposes of the burglary statute.  She argued that the predicate crime had to be one against a person or property; and that the fleeing offense, like trespass, was complete upon her unauthorized entry into the garage.  The court of appeals rejects out of hand the first argument and then turned to the second one.  They reject that one as well.

Trespass, the court says, requires an unauthorized entry and is thus subsumed within the burglary statute that has the same requirement.  Here, Ms. Anderson was intent on eluding the police, something she thought she could accomplish by driving the van completely into the garage and then shutting the garage door.  Unlike football, where the touchdown occurs when the player breaks the plane of the end zone, fleeing requires that the player’s entire body be in the end zone.  Ms. Anderson did not complete the fleeing offense until she was able to close the garage door and thus the offense continued after the front of the van broke the plane of the garage and until the tail pipe did the same.

Car Owner Escapes Forfeiture For Now

Patino v. One 2007 Chevrolet, VIN  #1GNFC16017J255427, Texas License Plate # 578VYH, Minn.Ct.App., 10/31/2011, petition for further review granted.

In March of 2010, police stopped Ms. Patino’s significant other, Mr. Rosas, for erratic driving, only to discover that he did not have a license.  Mr. Rosas had a 2006 conviction for DWI.  In April 2010, police again stopped Mr. Rosas for suspected impaired driving; he had Ms. Patino’s ten year old daughter with him.  Mr. Rosas eventually pled guilty to third degree DWI (child endangerment).

The police served Ms. Patino, the owner of the 2007 Chevy, with notice of intent to seize and forfeit the car; she filed for a judicial determination.  After hearing, the district court said that even though Mr. Rosas was not convicted of an offense that would trigger forfeiture – second degree DWI, the state could nonetheless seize the car.

The forfeiture statute, Minn.Stat. 169A.63, says that the state can seize a car that was used in the commission of a designated offense, which translates to first or second degree DWI.  The forfeiture statute is confusing to say the least.  There’s a provision in the subsection on judicial determinations that says that if the person charged with the designated offense appears at the criminal hearing and is not convicted of the designated offense “the court shall order the property returned to the person legally entitled to it.”  Two other provisions in the forfeiture statute, however, have given the appellate court room to squirm out of forfeiture by permitting the court to look into whether the person in fact committed the designated offense even though not convicted of it.  Mastakoski v. 2003 Dodge Durango, 738 N.W.2d 411, 414-15 (Minn. App. 2007), review denied (Minn. Nov. 21, 2007).