Stipulation to Prior Convictions–an Element of the Offense–is Waiver of Right to Jury Trial That Requires a Defendant’s Personal Waiver

State v. Kuhlmann, Minn.S.Ct., 12/21/2011.  The Supreme Court upholds the Court of Appeals Opinion, go here, that the trial court’s failure to obtain Mr. Kuhlmann’s personal waiver of a jury determination of an element of the charged offense was not structural error that required automatic reversal; that the error was plain, and the error did not affect Mr. Kuhlmann’s substantial rights.  Three justices – G. Barry Anderson, Page and Gildea – concluded that there had been no error in not obtaining the personal waiver.

Multiple Sentences For Drive By Shooting of Occupied Building and Assault is Upheld

State v. Ferguson, Minn.S.Ct., 1/11/2012.  Okay, Mr. Ferguson is a former client of mine.  Mr. Ferguson provided the gun that one of his brothers used to shoot up a house (over an argument about a dog) in which there were a total of eight people, including kids.  For this, the state charged him with one count of drive-by shooting at an occupied building, and when he wouldn’t plead guilty to this the stated  piled on eight counts of second degree assault.  Mr. Ferguson got convicted on all of those charges.  After successfully appealing his first sentence, go here, the trial court sentenced him on the drive-by shooting and on all eight assault convictions.  Mr. Ferguson appealed that sentence, first to the court of appeals and then to the supreme court.

Minnesota prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident.  Minn.Stat. 609.035.  An exception to this rule is when there are multiple victims.  Even for crimes arising out of a single behavioral incident, multiple sentences for multiple victims is permissible so long as doing so does not unfairly exaggerate the criminality of a defendant’s conduct, and there is only one sentence per victim.

The court of appeals had reasoned that the single count of drive-by shooting covered, if not the waterfront then all of the occupants of the house.  Under that rationale, to permit sentencing on the assault convictions would violate the one sentence per victim rule.  Justice Meyer, in a 4-3 opinion, says that the drive-by count is not a crime against any of the building’s occupants.  (Justice Meyer says this shortly after observing that Mr. Ferguson and his brothers “intentionally” caused eight persons to fear immediate bodily harm.)  If that’s not reason enough, then the majority also concludes that a single sentence for the conduct here was not commensurate with Mr. Ferguson’s culpability, the aforementioned use of a dangerous weapon to intentionally cause eight persons to fear immediate bodily harm.

Justice Paul Anderson dissents, in an opinion joined by Justices Page and Stras.  Justice Anderson observes that shooting into an occupied building is not a victim-less crime; moreover, the majority can’t logically apply the multiple victim exception to multiple sentences when there are, according to the majority, no victims.

Juvenile Expungment is Governed Under Juvenile Dispositional Laws

In the Matter of the Welfare of J.J.P., Minn.Ct.App., 1/23/12.  At age 17, J.J.P. picked up two delinquency convictions, one for breaking into a golf shop snack bar after hours, the other for a garden variety shoplifting.  Five years later, J.J.P. asked for and received an expungement of his judicial-branch records.  So far so good.

J.J.P. became an EMT right after that; he also is a firefighter and in college studying to become a paramedic.  When it was time to perform his clinical coursework, the department of human services disqualified him from completing this coursework because it involved direct contact with persons receiving DHS licensed services.  J.J.P. then requested expungement of all executive branch records; the district court denied the request.

Expungement of delinquency adjudications is covered in the juvenile code, 260B.198, subd. 6.  This statute says that the judiciary is authorized to “expunge [an] adjudication of delinquency at any time that it deems advisable.”  That’s as broad as it is wide, and without any limitations stated within the statute the court of appeals concluded that the judiciary had the authority to expunge executive-branch records as well as judicial records.   And, because this is a grant of statutory authority, there are no separation of powers concerns; the statutory grant carries with it the policy decision that records possessed by the executive branch may be expunged by a court.  In the exercise of this authority, chapter 609 is not to be used to determine whether to grant the requested expungment.  Section 260B.198 is an authorized disposition in a delinquency case, so the court must be guided by the existing standards and guidelines governing dispositions in delinquency cases. 

Applying all that, the court of appeals concludes that the district court got it wrong and should have granted the expungement.  The State’s petition for further review is pending.

“Interests of Justice” Is Not Much of a Reason to be Given an Expungement

State v. R.H.B.,, Minn.Ct.App., 12/5/2011, Review Granted, 2/28/12.  R.H.B.’s wife provided day care for a three month old, P.  The wife went shopping, leaving P in R.H.B’’s care.  When P’s mom showed up, she noticed scratches and bruises on P’s face and ears.  It turned out that P had suffered a subdural hematoma when R.H.B. had thrown P into the air but failed to catch him.

The state charged R.H.B. with third degree assault, later amended to first degree assault.  A jury acquitted R.H.B. on both counts.  R.H.B. petitioned for expungement of his record, which the trial court granted over the state’s objections. 

The trial court construed the petition as invoking the court’s statutory authority to expunge all records “if all pending actions or proceedings were resolved in favor of the petitioner.” Minn. Stat. § 609A.02, subd. 3 (2010).”  R.H.B. met that standard so the real question was whether the state could establish by clear and convincing evidence that the public’s interest in having the record available outweighs the petitioner’s interest in having that record sealed.

R.H.B. said that he wanted the expungment because “the interests of justice” required the court to grant it.  The court of appeals didn’t think that was any reason at all, so that there was really nothing for it to weigh.   Or, if it did weigh it then the state’s generic reasons in opposition – unsealed records are useful to cops, child protection said pretty much the same thing – trumps R.H.B’s generic reason.

Well, the supreme court has taken review.  The state had the  burden of establishing reasons that outweigh sealing the record, so the real fight may be whether the boiler plate that the state presented  here suffices, at least in the (empty) face of R.H.B’s boiler plate reasons. 

Expungment of Judicial & Executive Records Upheld

State v. M.D.T.,, Minn.Ct.App. (4/9/2012).  Hats off to District Court Judge Timothy K. Connell, and to the panel of the court of appeals - Klaphake, Presiding Judge; Stoneburner, Judge; and Cleary, Judge - for expunging both judicial and executive records of a conviction, and then upholding that expungment. This quote sort of sums it up:

In our view, if the effects of a minor forgery offense linger for a lifetime, prohibiting meaningful employment, the punishment for that crime is “excessive” and eviscerates that person’s fundamental rights. See James W. Diehm, Federal Expungement: A Concept in Need of a Definition, 66 St. Johns L.R.J. 73, 80 (1992) (noting that expungement is often afforded to “defendants [who] were young at the time of the offense and have since led an exemplary life”). If society has an interest in criminal rehabilitation or even a broader economic interest in encouraging, or at least, not precluding, a person convicted of a minor crime from eventually obtaining employment, those interests are not furthered by the existing law. An individual’s fundamental rights to obtain employment and housing are affected by a criminal record, as is an individual’s right to be free from excessive punishment.

Well, you can sort of see this one making a bee line to the Supreme Court.  Get those petitions in quickly!

7/9/12:  Sure enough, the Supreme Court has granted review.  Order available here.

Concealing a Minor Child From a Person Having the Right to Parenting Time Requires Proof that Defendant Hid the Child to Prevent Locating or Contacting the Child.

State v. Fitman, Minn.Ct.App., 2/23/2012.  Ms. Fitman and M.B. had two kids, got divorced, and were granted joint legal custody; Ms. Fitman got physical custody and M.B. got a visitation schedule that neither of the parents always followed.  They eventually argued about something, which led to more arguments over the visitation schedule.  The state charged Ms. Fitman with concealing minor children from M.B. in violation of Minn.Stat. 609.26, subd. 1(1).  A jury convicted her.

The problem was, the state didn’t prove that she concealed the kids.  Whenever the cops showed up to referee the visitation disputes, they never saw the children (because they were concealed?).  Moreover, the state presented no evidence that Ms. Fitman was intentionally preventing M.B. from either observing the kids or discovering their whereabouts.  Indeed, the only reason that the cops bothered to come out to Ms. Fitman’s place was because assumed that the kids were there, and each time they came out the cops threatened to forcibly remove the kids which they would not have done had they not believed that the kids were there to be forcibly removed. 

So, concealment prosecutions are not for garden variety spats between estranged parents over week end visitation with the kids who are cowering under the bed; the state has to be able to prove that a defendant hid the kid of kept the person have a right to parenting time or custody from discovering the kid’s whereabouts.

A Defendant’s Post Arrest, Pre Miranda Silence to Accusation of Criminal Conduct, Not Prompted by the Police, Is Admissible in State’s Case in Chief

State v. Johnson, Minn.Ct.App., 1/30/2012.  Four guys, one of whom was alleged to be Mr. Johnson, robbed B.A..  B.A. reported this to a (sort of) nearby police officer who, with the aid of other officers stopped the guys.  B.A. asked Mr. Johnson, “Why did you beat me?  Why did you take my things?”  Mr. Johnson did not respond to this inquiry.

The trial court joined Mr. Johnson’s trial with that of a codefendant, Mr. Maull.  Mr. Johnson complained on appeal that this was a mistake.  The court appeals upheld the joinder, concluding that four of the factors to be considered – nature of offense charged, potential prejudice to Mr. Johnson, and interests of justice – favored joinder.  The remaining factor - the impact on B.A. –neither favored nor disfavored joinder.

Mr. Johnson also complained that his speedy trial rights were violated.  Mr. Johnson could not really articulate what prejudice to his defense resulted from the delay in commencing his trial and so the appellate court rejected his speed trial claim.

The appellate court also concludes that Mr. Johnson’s post arrest, pre Miranda silence can be introduced in the state’s case, provided that the police did nothing to produce that silence.  The six federal courts of appeals that have ruled on this question have split fifty-fifty.  Unfortunately the 8th circuit sides with admission of this silence and that’s good enough for the court of appeals.

Whether Determination of Alcohol Concentration by First Void Urine Testing Correlates with Alcohol Concentration by Blood Testing is Irrelevant Under Evidence Rule 401

State v. Tanksley, Jr., Minn.S.Ct., 2\8\2012.  The state charged Mr. Tanksley with fourth degree driving while impaired, alcohol concentration of 0.08 or more.  The state based this charge on a first void urine test, the results of which satisfied the statutory requisite grams of alcohol per 67 milliliters of urine.  Mr. Tanksley wanted a Frye-Mack hearing to resolve his claim that first void urine testing does not reliably correlate with a driver’s blood alcohol concentration. 

The court of appeals had already answered this question –admitting the results of alcohol concentration determined by first void urine testing - in State v. Edstrom, 792 N.W.2d 105 (Minn.Ct.App. 2010).  Justice Stras, however, goes completely around Edstrom by pointing out that the statute creates three methods for proving the requisite alcohol concentration:

“alcohol concentration” can be proven by the number of grams of alcohol in 100 milliliters of blood, in 210 liters of breath, or in 67 milliliters of urine. Minn. Stat. § 169A.03, subd. 2.

Even assuming that the correlation between determining alcohol concentration by  first void urine testing and determining alcohol concentration by blood testing were weak, such evidence would have no effect on the determination whether the state proved that Mr. Tanksley’s urine alcohol concentration was at or above 0.08 grams per 67 milliliters of urine.  In other words, the presence or absence of a correlation is irrelevant.  Minn.R.Evid. 401.

Having resolved the case by resort to the rule of relevance, the court avoids deciding whether first void urine testing is a novel scientific technique.

Gross Misdemeanor or Felony Violation of Harassment Restraining Order Requires Proof that Defendant Knowingly violated the Order

State v. Gunderson, Minn.Ct.App., 2/6/2012.  Mr. Gunderson’s mom, who lived on a ten acre spread, got a harassment restraining order against her son; it seems he drank a bit too much and then came around hounding her for money, somewhat offensively one supposes.  Among other restrictions, the HRO forbid Mr. Gunderson from coming around where his mother lived.

Now, Mr. Gunderson owned a shed located on Mom’s parcel where he kept his things.  One day, when mom wasn’t around, a witness saw Mr. Gunderson near the shed and in the detached garage to mom’s house.  The state charged him with gross misdemeanor and felony violations of the HRO.  Mr. Gunderson testified that he believed that the HRO only prevented him from contacting his mother and from entering her residence, but not from being on other parts of the ten acre spread when she wasn’t around. 

On both offenses, in addition to instructing the jury that there had to be an existing restraining order forbidding Mr. Gunderson from harassing his mother, the trial court also instructed the jury that Mr. Gunderson had to know of the order and to have violated it.  This instruction would have been okay had the offense been a misdemeanor but not for either a gross misdemeanor or felony.  This is because the statutory requirements are different:

(a) A person who violates a restraining order issued under this section is subject to the penalties provided in paragraphs (b) to (d).

(b) Except as otherwise provided in paragraphs (c) and (d), when a temporary restraining order or a restraining order is granted under this section and the respondent knows of the order, violation of the order is a misdemeanor.

(c) A person is guilty of a gross misdemeanor who knowingly violates the order within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency.

(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:

(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions . . . .

Minn.Stat. 609.748, subd. 6 [emphasis in original].  The trial court’s instructions were thus error, and were also plain, affecting Mr. Gunderson’s substantial rights.  (The instructions were error even though they complied with the model jury instructions, CRIMJIG 13.62–.63 (2006).)

Mr. Gunderson only disputed whether he knew that the restraining order prohibited him from coming on the property; he maintained that he thought the order only prohibited him from coming inside his mom’s residence and from having contact with her.  The appellate court concluded that a properly instructed jury, accepting this explanation, could have acquitted him.  He gets a new trial.

Mr. Gunderson represented himself at trial.  His request for appointment of a public defender to act as advisory counsel was denied, on the basis of Minn.Stat. 611.17(b)(4), which prohibits such appointments.  Relying on State v. Clark, 722 N.W.2d 460, 466 (Minn. 2006), the court of appeals says that the district court has the authority to appoint a public defender as advisory counsel, so denial of such a request has to be based on something else. 

A Stipulated Facts Trial Has to be Based on, Well, on Stipulated Facts, Mostly

State v. Dereje, Minn.Ct.App., 4/2/12.  I keep having to write about stipulated facts trials.  See here, and here, and here.  In this iteration of this conundrum, the parties tried to “stipulate” to facts on which the parties didn’t entirely agree.

The state charged Mr. Dereje with fifth degree criminal sexual conduct.  Mr. Dereje denied committing the offense.  For a while, Mr. Dereje was not competent to stand trial, but eventually he was restored to competency.

Mr. Dereje then agreed to submit the Complaint and the police reports, which contained both the victim’s account of the sexual assault and Mr. Dereje’s denial of it, to the court for a stipulated facts trial under Rule 26.01, subd. 3.  In doing so, Mr. Dereje agreed in writing to waive his right to a jury trial, to testify, to compel witnesses to testify, and to confront the prosecutor’s witnesses.  The trial court duly found Mr. Dereje guilty.

What Mr. Dereje did not do, however, was agree to submit a “body of evidence” to the trial court for it to sort out, including resolving disputed facts.  This was error of some sort, but subject to plain error analysis.  It was, the appellate court said, like the receipt of evidence that should properly have been excluded.  It was plain error, but it did not affect Mr. Dereje’s substantial rights.  Although Mr. Dereje didn’t agree to submit this “body of evidence” he could have done so, which would result in turning the whole mess into a court trial instead of a stipulated facts trial.

But, we’re not done.  The court goes on to hold that Mr. Dereje’s trial counsel was ineffective.  How so? 

Here, there was a complete failure of meaningful adversarial testing:  trial counsel made no attempt to draw the court’s attention to the disputed factual evidence in a case that hinged on credibility.

Counsel believed, in apparent good faith, that he was engineering a stipulated facts trial when it turned out he was doing (a bad job) of conducting a court trial.  For this unwitting mistake, the appellate court deems counsel’s performance ineffective.  And,  the resulting error was a “structural,” one that requires reversal of the conviction.  Cf, State v. Dalbec, 800 N.W.2d 624 (Minn. 2011.)  (Failure of defense counsel to give written closing argument in court trial not structural error.)

Then there’s this rather ominous footnote 2:

While we do not base our decision on appellant’s assertion that the resolution of this case was nothing more than a poorly handled guilty plea, we reiterate that a stipulated evidence trial in which a disposition and sentence is suggested before the matter is submitted, as in this case, has the appearance of a negotiated plea rather than a proper trial.

Shades of Missouri v. Frye, ___ U.S. ___ (2012)