Suspension of Proceedings During Competency Evaluation Does Not Prevent Grand Jury From Considering & Returning Indictment

State v. Hohenwald, Minn.S.Ct., 7/11/2012.  The state filed a Complaint against Mr. Hohenwald charging him with four counts of second degree murder.  The court ordered a competency determination, which suspends the criminal proceedings.  Notwithstanding the suspension, the state convened a grand jury which indicted Mr. Hohenwald on a bunch of charges, including murder in the first degree.  The grand jury returned the indictment the same day that the Rule 20 examiner submitted his report, but the court did not rule that Mr. Hohenwald was competent until a month later.  The court found Mr. Hohenwald guilty.

There was some sort of spat going on between Larry and Lois Steenerson and Mr. Hohenwald over some farm property.  Mr. Hohenwald stopped by the Steenerson’s residence late one evening to try to work out whatever the dispute was about.  A series of 911 calls later, deputies arrived at the Steenerson’s just as Hohenwald ran from the house, jumped into a waiting car and tried to flee.  The deputies found the Steenerson’s dead inside.  Mr. Hohenwald claimed self defense for Larry and denied killing Lois all together.

Mr. Hohenwald’s attorney moved to dismiss the indictment, saying that the grand jury could not consider an indictment while proceedings were suspended by the competency examination.  The rule says “[i]f the court determines that reason exists to doubt the defendant’s competency, the court must suspend the criminal proceedings.”  Justice Stras, ever the grammarian, concludes that “the criminal proceedings” only covers what’s going on in the” then-existing case in which the court orders the suspension, not in an unspecified or indefinite number of cases.”  That’s the Complaint and not what a grand jury is doing upstairs behind closed doors, even when the indictment gets filed  under the same file number as the Complaint.  An indictment, after all, is “an independent process for bringing new and separate criminal charges against a defendant.”  State v. Dwire, 409 N.W.2d 498 (Minn. 1987).  Never mind that the court had also said that an indictment “effectively amended” the prior complaint.  State v. Pettee, 538 N.W.2d 126 (Minn. 1995). 

Justice Stras also rejects a sufficiency argument, a prosecutorial misconduct argument having to do with witness questioning; and ducked an evidence ruling having to do with a prior consistent statement, an issue that the court thought was inconsequential even if erroneous. 

Separate Counsel, An Evidentiary Hearing, Other Due Process Protections Must be Afforded to a Defendant Who Has Made Credible Threats Against His Public Defender Before Court May Order That Defendant Has Forfeited His Right to Appointed Counsel

State v. Krause, Minn.S.Ct., 7/25/2012.  The state charged Mr. Krause with, well something, but it doesn’t really matter because he’s getting at least a remand if not a new trial for reasons having nothing to do with the merits of the state’s case against him.  All the drama was before the trial:  Mr. Krause threatened his public defender and his public defender’s family.  (He also tried unsuccessfully to get a different public defender assigned to represent him.)  The chief public defender asked the trial court to discharge the public defender office, asserting that Mr. Krause had forfeited his right to a court appointed attorney.  The trial court held a hearing on that request; Mr. Krause was there but he did not have an attorney; indeed, the chief public defender was there arguing against Mr. Krause.  The trial court granted the motion.  Mr. Krause went to trial without an attorney.  The jury convicted him.

The focus here is on the forfeiture of counsel hearing.  Because the alleged misconduct occurred outside the court room, everyone agreed that Mr. Krause was entitled to an evidentiary hearing so that the judge could decide what happened.  No, the question here is just how much process is due?  Justice G. Barry Anderson, writing for a unanimous court, reaches back to the analysis from Matthews v. Eldridge 424 U.S. 319 (1976) to come up with an answer to that question.

It turns out that quite a bit of process is owing.  First, the chief public defender can’t just barge into the judge’s chambers, shouting that some defendant just threatened his staff attorney and his staff attorney’s  family so he’s forfeited his right to a public defender.  That’s a violation of the professional conduct rules that require an attorney to “zealously assert” his client’s interest.  No, no.  The chief public defender must quietly ask to withdraw for “professional considerations.”  Which the trial court is supposed to grant.

Then, where a hearing is required, the trial court has to appoint either a public defender from a different district, or an attorney otherwise unaffiliated with the district public defender’s office to represent the defendant during a forfeiture of counsel evidentiary hearing.  This seems to say that a part time public defender within the same district won’t do.   At that hearing:

The judge should hear evidence regarding the alleged conduct that may give rise to the finding of forfeiture. The defendant should have the opportunity to offer evidence, and to cross-examine witnesses, both as to the allegations of his misconduct and the totality of the circumstances that may bear on the forfeiture finding, including his mental competency and psychological condition, any other mitigating considerations, and the willingness of appointed counsel to continue the representation.

The standard of proof at this hearing is whether Mr. Krause engaged in “extremely serious misconduct” that warrants forfeiture of his right to counsel.  “Credible threats to harm an attorney or an attorney’s family” may meet this test.  (Actual physical attacks also count.  State v. Lehman, 749 N.W.2d 76 (Minn.Ct.App. 2008). 

Court Finds Reasonable Expectation of Privacy in Contents of Cell Phone Not Disclosed to Others

State v. Barajas, Minn.Ct.App., 7/23/2012.  Moorhead officers went to an apartment building on a report that someone – it turned out to be Mr. Barajas – was living in one of the unrented apartments.  Officers determined that not only was Mr. Barajas unlawfully in this apartment he was unlawfully in the country.  The officers removed Mr. Barajas from the apartment.

An officer then returned inside the apartment; he found a flip phone, remember those?  He opened it and searched the digital photographs stored on the phone.  Low and behold he saw a photo of Mr. Barajas lying on a bed with a large amount of money.  Based on this photo officers searched the apartment and found methamphetamine.  The state charged him with first degree possession of methamphetamine with intent to sell.

Mr. Barajas moved to suppress the photographs – there were actually three of them – that the officer had obtained from the flip phone.  (He did not move to suppress the drugs as the “fruit” of the officer’s unlawful search of the flip phone.)  The trial court granted that motion, concluding that the officer had needed either a warrant or an exception to the warrant requirement to keystroke through the flip phone looking for, well, whatever he was looking for.  The officer had neither a warrant nor an exception.  Now, lest I forget, after the officer found the first photograph he asked Mr. Barajas to sign a consent to search the flip phone.  Mr. Barajas signed the consent.  The state used that consent to get the trial court to reverse his earlier ruling and to admit the photographs.  Eventually the court of appeals concluded that this consent was both involuntary and  tainted by the officer’s initial unlawful intrusion into the innards of the flip phone and did not authorize the keystroking of the phone:

[P]ermitting the police to obtain consent after conducting an unlawful search so as to circumvent the exclusionary rule, even if the police conducted the unlawful search in good faith, would undermine the constitutional limitation on unreasonable searches and the purpose of the exclusionary rule.

But, back to the first photograph.  The court of appeals concludes that the search of the flip phone’s contents was an unreasonable search.  Mr. Barajas had a cognizable expectation of privacy in the photographs because the photos were only stored on the flip phone, he had not sent them to any third party, including his cell phone carrier, and none of the three photos was visible to the public without flipping open the phone and keystroking to find them.  (A call history, on the other hand, may not enjoy this expectation of privacy because this history is exposed to  the cell phone carrier and to the caller’s recipients.)  The court suggested that one think of a cell phone as a variant of a “black box;” think United States v. Ross, 456 U.S. 798 (1982) [Hint:  containers inside a car]:

In sum, we conclude that a person has the same reasonable expectation of privacy in the concealed digital contents of a cellular telephone as a person has in the concealed physical contents of a container.  Accordingly, the police were required to obtain a search warrant before searching for photographs concealed within Barajas’s cellular telephone.

Alas, for Mr. Barajas, the erroneous admission of the photographs was harmless error.

Supreme Court Continues It’s Restrictive Interpretation of the Limitations Provisions of Post Conviction Statute

The Minnesota Supreme Court issued three Opinions today that continue the onslaught on the limitations provisions of the post conviction statute.  In general, there is a two year limitations period –which commences when the conviction becomes final - within which to commence a post conviction petition.  The post conviction statute creates five exceptions to this general rule, but those exceptions must be filed within two years of the date the claim arises.  Minn.Stat. 590.01, subd. 4(c).

The three cases are:  Sanchez v. State; Miller v. State;  and Carlton v. State.   Justice Page dissented in each of the opinions.

Court Has No Discretion to Waive Penalty for Reinstatement of Forfeited Bond

State v. Mulcahy, Minn.Ct.App., 6/11/2012.  This case is about bail bonds.  Mr. Mulcahy skipped bail, which resulted in an order to forfeit the bond that had been posted.  Eventually, Mr. Mulcahy showed up in California and Minnesota hauled him back.  The bonding company, meantime, was facing forfeiture of the bail bond so they were glad to see Mr. Mulcahy.  They asked to reinstate the bond and then to be discharged.  The court granted that request but imposed a ten cent penalty specified in Rule 702(f) of the General Rules of Practice.

The court of appeals holds that the district court has no discretion to waive this ten percent penalty.  They reach this result based on a previous case, State v. Askland, 784 N.W.2d 60 (Minn. 2010).

Judge’s Disqualification Entitles Defendant to New Trial

State v. Pratt, Minn.S.Ct., 5/23/2012.  Mr. Pratt worked as a loan officer with Universal Mortgage, Inc.  On seventeen occasions Mr. Pratt prepared loan documents to present to potential lenders that contained lots of false and/or misleading information.  The result was seventeen counts of theft by swindle.  A jury convicted him of all of those counts, plus two counts of racketeering.

Mr. Pratt went to trial, presided over by a retired state court judge, Steven Lange.  It came to light after the trial had started that the prosecutor’s office – Hennepin County – had retained Judge Lange to be an expert witness in an unrelated federal civil case.  A majority of the court of appeals had concluded that the judge was disqualified from presiding over Mr. Pratt’s trial, but a different majority concluded that the disqualification did not require reversal because Mr. Pratt had not shown prejudice.  The supreme court concluded that the judge was disqualified and that Mr. Pratt was entitled to a new trial.

After first concluding that the state had presented sufficient evidence to support the convictions, Justice Page concluded that because Judge Lange was retained by the prosecutor’s office at the same time that he was presiding over Mr. Pratt’s trial a reasonable examiner would question the judge’s impartiality.  Mr. Pratt argued that he need not show prejudice to be entitled to a new trial; the state said that he did need to show prejudice.  Five of the justices duck the question whether Mr. Pratt must show prejudice to get a new trial, saying that under these facts Mr. Pratt gets a new trial under either test. 

Justices Dietzen and Stras concurred in the result but would adopt the test from Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988).  There, the supreme court adopted a three factor test to determine whether vacate a judgment because of the disqualification of the trial court:

(1) “the risk of injustice to the parties in the particular case,” (2) “the risk that the denial of relief will produce injustice in other cases,” and (3) “the risk of undermining the public’s confidence in the judicial process.”

District Court Lacks Authority to Extend Term of Probation For Failure to Pay Restitution Beyond Two one-Year Terms.

State v. Barrientos, Minn.Ct.App., 7/9/2012.  Ms. Barrientos pleaded guilty to second degree burglary.  The trial court stayed execution of a 23 months sentence and placed her on probation for five years, even though it could have set the probation period at ten years.  Among other conditions of probation, the court ordered her to pay restitution.

As the five year term of probation neared, the state asked that Ms. Barrientos’ probation be extended for an additional five years because she had not paid the ordered restitution.  The court first granted this request, thus extending Ms. Barrientos’ term of probation to the maximum allowable period, ten years.  However, on her request, the court amended that order to extend the probation period for only one year.  The state appealed.

And lost.  The court of appeals looks at the restitution statute and finds clear support for the trial court’s decision.  Minn.Stat. 609.135, subd. 2(g) authorizes the trial court to extend the term of probation for failure to pay restitution, but only in one year increments. 

Notwithstanding the maximum periods specified for stays of sentences under paragraphs (a) to (f), a court may extend a defendant’s term of probation for up to one year if it finds, at a hearing conducted under subdivision 1a, that: (1) the defendant has not paid court-ordered restitution in accordance with the payment schedule or structure; and (2) the defendant is likely to not pay the restitution the defendant owes before the term of probation expires.

The same statute authorizes the district court to do this one more time, for a total extension of two years.  Period.  Done.  The court of appeals upholds the trial court.

The court of appeals does note that had the trial court initially set the term of probation at the maximum allowed, ten years, the trial court likely had the authority to extend the term of probation another two years for failure to pay restitution.  That question was not before them so this was just a little hint.

Supreme Court Affirms Court of Appeals Ruling That Possession of Handgun Without Permit to Carry Requires Proof of Knowledge of Possession

State v. Ndikum, Minn.S.Ct., 7/11/2012.  This comes up from the court of appeals.  Read here.  Recall that an attorney brought a briefcase with a loaded gun into a courthouse; he explained that he did not know that the gun was in the briefcase.  He got charged anyway with various gun offenses.  He requested, but did not get, an instruction that knowledge is an element of both the felony charge of possession of a dangerous weapon within a courthouse complex; and of the gross misdemeanor charge of possession of a pistol in public.  The court of appeals had reversed this conviction and now the supreme court upholds the court of appeals.

The gross misdemeanor statute, the offense of conviction, states:

A person, other than a peace officer, as defined in section 626.84, subdivision 1, who carries, holds, or possesses a pistol in a motor vehicle, snowmobile, or boat, or on or about the person’s clothes or the person, or otherwise in possession or control in a public place, as defined in section 624.7181, subdivision 1, paragraph (c), without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. A person who is convicted a second or subsequent time is guilty of a felony.

Minn. Stat. § 624.174, subd. 1a. As written, the statute contains no express mens rea or knowledge requirement.  However, legislative intent to impose strict criminal liability must be clear.  In re C.R.M., 611 N.W.2d 802 (Minn. 2000).  (That’s the kid who unwittingly brought a weapon onto school property.)  If the statute is a “public welfare statute” then it may be that the legislature has dispensed with a mens rea requirement.  But, this carry statute is intended “to promote the ability of law-abiding citizens to carry guns in public, not to restrict gun ownership and possession.”  The statute also carves out a number of exceptions to the permit requirement, including, pertinent (sort of) here, carrying a pistol between one’s home and place of business.  For these, and a couple other reasons, Justice Myers, writing for a unanimous court, holds that the state must prove that Mr. Ndikum knew he possessed the pistol.

Locking Courtroom Doors During Jury Instructions is Too “Trivial” to Implicate Defendant’s Right to Public Trial

State v. Brown, Minn.S.Ct., 7/3/12.  A jury convicted Mr. Brown of aiding and abetting the first degree murder for the benefit of a gang of Darius Miller whom the state alleged was a member of a gang that was a rival of the gang to which Mr. Brown belonged.  Justice Page, writing for a five member majority, sanctions locking the courtroom door during jury instructions, and rejects challenges to evidentiary rulings which included the admission of expert gang testimony.  Justices Meyer and Paul H. Anderson dissented.

In part, the state linked Mr. Brown to Miller’s death by testimony that a shell casing found near Miller’s body matched a shell casing recovered from the scene of a firearms offense to which Mr. Brown had pleaded guilty. Mr. Brown served time for that firearms offense in the local jail; twelve hours after Mr. Brown’s release Miller was murdered.  Jail cameras showed Mr. Brown leaving the jail wearing clothes very similar to clothes worn by Miller’s shooting.

After closing arguments but before jury instructions the trial court ordered that the courtroom door be locked for the duration of jury instructions.  In doing so the trial court gave the spectators present the choice to opt in or out:

For the benefit of those in the back. I am about to begin giving jury instructions. While that is going on the courtroom is going to be locked and people are not going to be allowed to go in and out.
So, if anybody has to leave, now would be the time. You are welcome to s[t]ay. But I just want to make sure that everybody knows that the courtroom is going to be locked. We are all good? Deputy?

Now, locking the court room doors is like a civil commitment: it has to be the least restrictive alternative.  The case law has been clear for nearly thirty years.  Waller v. Georgia, 467 U.S. 39 (1984):

the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

One of the recent instances where the trial court closed the courtroom during the testimony of two witnesses was State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007).  The problem there, however, was that the reason asserted for the closure – intimidation of the two witnesses – had no factual support.  But, at least, somebody put up a reason.  Not so here, where the trial court offered up no reason whatsoever.  While the majority dropped in a footnote expressing its “concern” with this absence of a statement of reasons, the concern wasn’t enough to require anything be done about it.

Justice Page sanctions the locking of the court room doors here by characterizing it as “trivial,” borrowing that term from State v. Lindsey, 632 N.W.2d 652 (Minn. 2001).  What was “trivial” there was throwing two kids out of the court room, who were statutorily barred from being in there anyway.  Just how Justice Page equates perhaps the most important function that the trial court performs in a criminal trial– jury instructions – with tossing two kids isn’t readily apparent.  Under the “trivial” analysis the court looks at different factors, which include:

that the courtroom was never “cleared of all spectators”; that the trial remained open to the general public and the press; that there was no period of the trial in which members of the general public were absent during the trial; and that at no time was the defendant, his family, his friends, or any witness improperly excluded.

The court also upheld the admission of evidence of Mr. Brown’s firearms conviction as a prior bad act.  The court also upheld the admission of gang testimony, but under a plain error analysis.  The court found no plain error in the instruction on aiding and abetting murder.

Justice Meyer, joined by Justice Paul Anderson, dissented on the courtroom closure issue.  She points out that Minnesota does not distinguish between a total closure and a partial closure, (although the “trivial” alternative analysis may be that distinction under a different label).  That being so, a full Waller analysis was required, especially consideration of alternatives to even a partial closure.  Justices Meyer and Anderson also rejected resort to the “trivial” analysis under Lindsey. 

Doubling Potential Punishment by Amended Complaint After a Defendant Waives Counsel Requires a Renewed “Comprehensive Examination” of the Waiver

State v. Rhoads, Minn.S.Ct., 5/23/2012.  The state charged Mr. Rhoads with second degree burglary.  Mr. Rhoads decided to represent himself, after which the state doubled down by adding a first degree burglary count.  This put him at risk of a sentence twice what he had been facing when he made the waiver.  On the day of trial, Mr. Rhoads persisted in representing himself (and also waived a jury trial); the trial court, however, neither arraigned Mr. Rhoads on the amended complaint, nor asked him if he understood what the new maximum punishment would be if he were convicted.  Justice Dietzen, writing for five members of the court, concludes that Mr. Rhoads’ renewal of his waiver of counsel was neither knowing nor intelligent so he gets a new trial.

In reaching this conclusion the court does not require that a pro se defendant renew a valid waiver of counsel every time he steps into the well of the courtroom; rather, so long as nothing has changed since the initial waiver he’s good to go.  The majority carves out an exception here, however, because the filing of the amended charge doubled the maximum possible punishment.  The majority labels this a “substantial change in circumstances” that requires a valid renewal of the waiver of counsel.  Here, Mr. Rhoads did continue to say that he wanted to represent himself, but:

when the State files an amended charge that doubles the maximum possible punishment, a district court should conduct a comprehensive examination of the defendant’s understanding of the increase in the maximum possible punishment. A district court’s failure to conduct such an examination, however, does not require reversal when the particular facts and circumstances of the case demonstrate that the defendant renewed his waiver-of-counsel with an understanding of the increase in the maximum possible punishment.

So, two ways to get it right:  formal renewal of the waiver, under the analysis from State v. Worthy, 583 N.W.2d 270 (Minn. 1998); or discern an implied waiver from the facts and circumstances.  The Worthy analysis requires  the trial court to conduct a “comprehensive examination” of a defendant’s “comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver.”   None of that happened for Mr. Rhoads, and there was nothing in the record from which the majority could pull out an implied waiver of counsel.

Justice Stras, joined by Justice Page, dissents.  Justice Stras says that the initial waiver of counsel is effective right through sentencing regardless of what either the state or the court do following the waiver.  Having taken over the wheel, Justice Stras would strap Mr. Rhoads in for the duration; the keys are in his pocket so his only recourse is to park the car, throw the keys back up onto the bench, and ask for his lawyer back.  The problem is, he’s only going to get that result  under the rather exacting standard of State v. Clark, 722 N.W.2d 460 (Minn. 2006).  That standard requires that the relinquishment request be timely, reasonable, and in the face of “extraordinary circumstances.”   In Clark, the request came on the third day of trial; not going to happen.

Failure to Object to Mistrial, Having the Opportunity to do so, is Highly Indicative of Consent to that Mistrial

State v. Hunter, Minn.Ct.App. 7/2/2012.  Mr. Hunter struck a woman in a crosswalk with his vehicle and then left.  The woman died a week later, resulting in charges of leaving the scene of an accident involving death and driving on a suspended license.  The jury heard the case, talked about it  – sequestered - for three days, then seemingly, at least to the trial judge, threw up its hands, deadlocked. 

During its deliberations, the jury asked a lot of questions.  Here’s the first day’s batch:

(1) What is the general process of notification for the state of Minnesota when your license is suspended? (2) What is the general process of notification for the state of Minnesota when your license is reinstated? (3) Did the speeding ticket received indicate besides speeding that the police officer knew his license was suspended? (4) Can we receive the stenographer notes of witness testimony from the trial? (5) Can we see statements shown to witnesses to refresh their memory if not entered as exhibits?

On the second day of deliberations, the jury said that it was deadlocked.  Without giving an “Allen” charge, the trial court encouraged them to keep at it.  His pep rally resulted in this missive from the jury:

Does (prudent men and women, page 1, paragraph 5) apply to us as jurors, the witnesses, or both?

On the third day of deliberations, the jury told the judge that they really had other plans:

Can any consideration be given for someone who needs to leave for a bus trip next Monday through Thursday?

and

We would like to dismiss today at 4:00 p.m. for an anniversary mass today for a death in the family.

The was the last straw.  The trial court threw up his hands and declared a mistrial.  The trial court later explained that he’d done that because two of the three charges – the fleeing charges – were basically the same thing and the third charge was nothing but a stupid misdemeanor; if the jury couldn’t reach a verdict after three days then it just wasn’t going to happen.  Defense counsel didn’t affirmatively object although whether his mouth was agape the opinion doesn’t say.

Before the retrial, counsel moved to dismiss on double jeopardy grounds.  Now, if a defendant consents to a mistrial then he’s waived any jeopardy argument.  State v. White, 369 N.W.2d 301 (Minn.Ct.App., 1985).  On the other hand, if he does object then jeopardy bars a second trial unless a “manifest necessity” required that the first trial be terminated.  State v. Fuller, 374 N.W.2d 722 (Minn. 1985).  Not objecting is not the same thing as consenting, but it’s a factor to consider, and a pretty strong one at that.  Where, as here, defense counsel had ample opportunity to object – both during in chambers discussions and in the court room – and doesn’t, then, well, counsel consented.  Whether Mr. Hunter, himself, had to object – well, the court doesn’t take up that question because no one brought it up in the trial court. 

The court of appeals, for good measure, also concluded that there was a “manifest necessity” to declare the mistrial.