Friday Side Bar

British crime writer Phillip Kerr has written s slew of mysteries, set in Germany during and after World War II.  His protagonist sleuth is Bernie Gunther.  You should try to read them in order if you can, but some of them are hard to find in local libraries here.  Here’s a list, in order:

1.March Violets (1989)	2. The Pale Criminal (1990)
3. A German Requiem (1990)	4. The One from the Other (2006)
5. A Quiet Flam (2008)	6. If the Dean Rise Not (2009)
7. Field Gray (2010)	8. Prague Fatale (2011)

Traffic Stop Not Justified by Brief Flashing of High Beams at Oncoming Squad Car

Sarber v. Commissioner of Public Safety, Minn.Ct.App., 8/27/2012.  As a Mille Lacs County deputy sheriff approached within a thousand feet of Mr. Sarber’s car Mr. Sarber flashed his high beams at the deputy, then did it again a second or so later.  The deputy pulled over Mr. Sarber, discovered that he was intoxicated.  Admirably, if not amazingly, the deputy relied entirely on this flashing as the basis for the stop.

There’s a statute for this:

“[W]hen the driver of a vehicle approaches a vehicle within 1,000 feet, such driver shall use a distribution of light, or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver.

Minn.Stat. 169.61.  The court appeals concludes that this statute does not make it illegal to flash your high beams at another driver, at least when it’s done quickly.  The flashee must have been at least temporarily blinded or impaired by the flasher. 

Sentencing Provision, Minn.Stat. 609.2232, Mandating Consecutive Sentencing, Does Not Apply to a Private Correctional Facility

Johnson v State, Minn.Ct.App., 8/27/2012.  The state of Washington sent Mr. Johnson to the Prairie Correctional Facility, out in Appleton, Minnesota, to serve a prison sentence.  We aren’t told what Mr. Johnson did to deserve getting banished from Washington to a prison surrounded by cornfields.  Understandably, he was a bit crabby while there and got into it with another inmate, punched him.  Mr. Johnson eventually settled the resulting criminal charge for a gross misdemeanor.  The trial court ordered that he serve this sentence consecutively to the Washington state felony sentence.

This prison is a private facility that the state rents for the housing of inmates; the department of corrections doesn’t run the place.  Mr. Johnson argued that he was entitled to a concurrent sentence.  The statue in play here says:

If an inmate of a state correctional facility is convicted of violating section 609.221, 609.222, 609.223, 609.2231, or 609.224 [first-, second-, third-, fourth-, or fifth-degree assault], while confined in the facility, the sentence imposed for the assault shall be executed and run consecutively to any unexpired portion of the offender’s earlier sentence. The inmate is not entitled to credit against the sentence imposed for the assault for time served in confinement for the earlier sentence. The inmate shall serve the sentence for the assault in a state correctional facility even if the assault conviction was for a misdemeanor or gross misdemeanor.

The court of appeals agrees with Mr. Johnson, but it may be a short lived victory.  A “state correctional facility” does not include a facility not under the operational control of the department.  Also, Mr. Johnson had not been committed to the custody of the commissioner; he was farmed out from Washington State.  The catch, though, is that this misdemeanor is not subject to the Guidelines so the trial court retains discretion to impose a consecutive sentence.

Friday Sidebar: The Informationist by Taylor Stevens

The protagonist of this thriller, Vanessa Michael Munroe, is Lisbeth Salander (The Girl with the Dragon Tattoo) on steroids.  Stevens has a second novel, The Innocent.

 

Constitutionality of DANCO Statute is Upheld.

State v. Ness, Minn.Ct.App., 8/20/2012.  This is the challenge to the Domestic Abuse No Contact Order statute [DANCO], Minn.Stat. 629.75, subd. 1(b)(c).  Mr. Ness argued that he should be able to collaterally attack a previously issued DANCO as part of his defense of having violated that previously issued DANCO.  He also argued that the statute violated procedural and substantive due process.

The court of appeals holds that, yes, Mr. Ness can collaterally attack the previously issued DANCO; that’s because there is no clear right of appeal from the issuance of those DANCO’s.  However, good luck with that collateral attack because the court also upheld the statute, itself, said it was fine both procedurally and substantively.

10/31/12:  The Minnesota Supreme Court has granted Mr. Ness's petition for further review.

Out of State Convictions “Arising out of” the List of Designated Offenses Does not Trigger Predatory Offender Registration

State v. Patterson, Jr., Minn.Ct.App., 8/20/2012.  Back in the day Mr. Patterson, Jr. racked up a table full of criminal charges while living in Illinois; among them were some sex offenses and some theft related type crimes.  He bargained the sex offenses away and pled guilty to unlawful possession of a motor vehicle.  Time goes by.

Mr. Patterson, Jr., moved to Minnesota.  And racked up some more crimes, none of them sex crimes, however.  Eventually he went to prison, got out on parole in 2008, moved into a halfway house, left the halfway house without permission, got found hiding in the basement of his sister’s place.  Got charged with failure to register under Minnesota’s predatory offender law.

No, there’s not paragraph missing here.  The state thought that Mr. Patterson, Jr. was required to register because some of the original charges back in Illinois included sex offenses.  That meant that that unlawful possession of a motor vehicle conviction “arose out of the same circumstances” as the bargained away sex crimes.  Or so the state thought.

It turns out this is true if your crime spree actually took place inside Minnesota.  That’s because the statute, Minn. Stat. 243.166, subd. 1(b(a) says just that: 

(1) the person was charged with . . . a felony violation of or attempt to violate, or aiding, abetting, or conspiracy to commit, any of the following, and convicted of . . . that offense or another offense arising out of the same set of circumstances:
[list of laws prohibiting certain offenses];
(2) the person was charged with . . . a violation of, or attempt to violate, or aiding, abetting, or conspiring to commit [list of laws prohibiting certain offenses], and convicted of . . . that offense or another offense arising out of the same set of circumstances;
(3) the person was sentenced as a patterned sex offender under section 609.3455, subdivision 3a; or
(4) the person was convicted of . . . violating a law of the United States, including the Uniform Code of Military Justice, similar to the offenses described in clause (1), (2), or (3).

The funny thing is, a person with an out of state conviction is required to register only if his or her crime is on the list of offenses enumerated in aforementioned list of offenses.  There’s no “arising out of” catch all for out of state convictions:

the person was convicted of . . . an offense that would be a violation of a law described in paragraph (a) if committed in [Minnesota].” Minn. Stat. § 243.166, subd. 1b(b)(1).

Oops.  It’s probably not too late to get this fixed at the special legislative session said to be scheduled for later this month.

Friday Sidebar: Boyd’s Blues

The Boyd Lee Dunlop Trio - Boyd Dunlop (piano), Sabu Adeyola (bass), and Virgil Day (drums).

 

Anderson on Defender Caseload

From CrimProf Blog, a report on a soon to be published journal article.  Here’s the abstract:

Heidi Reamer Anderson (Florida Coastal School of Law) has posted Qualitative Assessments of Effective Assistance of Counsel (Washburn Law Journal, Vol. 51, No. 3, 2012) on SSRN. Here is the abstract:

In this invited essay, I suggest that public defenders seeking relief from excessive caseloads differentiate themselves from other burdened stakeholders by using a more qualitative, ethics-based approach to assess effective assistance of counsel. Part II of this Article chronicles the current quantitative, numbers-based approach to measuring effective assistance given the U.S. Supreme Court’s current Strickland standard. Part III.A turns to the more qualitative, ethics-based standards for assessing effective assistance as expressed in the ethical rules. Part III.B then illustrates how to use those qualitative standards when seeking caseload relief from courts. First, in Part III.B.1, I show how to view the excessive caseload problem as an unethical conflict of interest that should be addressed at the outset of a proceeding. By viewing an excessive caseload as a conflict of interest, rather than as a competency issue, public defenders can further distinguish their claims for relief from the claims of other overworked constituents. Specifically, in Part III.B.2, I show how public defenders could use existing qualitative ethical standards to highlight the hidden harms of excessive caseloads and to increase the chances of their ethical obligations being honored by judges. Part IV concludes that using qualitative ethical standards is a particularly advisable approach in times of resource constraint when everyone — lawyers, judges and legislators — can be “blinded by numbers.”

On Reversal and Remand Permitting Defendant to Withdraw Some Guilty Pleas, State Could Re-file Initial Charges and Add New Ones

State v. Montermini, Minn.Ct.App., 8/13/2012.  Mr.. Montermini was the driver of a car involved in a two car accident back in January 2006.  One of his passengers, B.F., died as a result of the accident; six others, two of whom were also in Mr. Montermini’s car, were injured.  Mr. Montermini had been drinking heavily both before and during the car ride.  After the accident, Mr. Montermini drove away from the scene of the crash; he came upon an unlit church parking lot where he left his unconscious passengers.  An hour or so later a state trooper stopped Mr. Montermini’s car; roughly ninety minutes after that his alcohol concentration was still 0.15.

B.F. died some days after the accident, after which the state amended the initial complaint to charge Mr. Montermini with two counts of criminal vehicular homicide, three counts of kidnapping, and two counts of criminal vehicular operation resulting in substantial bodily harm.  Mr. Montermini negotiated a plea agreement whereby he pled guilty to criminal vehicular homicide, criminal vehicular operation resulting in substantial bodily harm, and three counts of kidnapping to facilitate flight; he also agreed that the state could seek permissive consecutive sentencing on the kidnapping charges.  In exchange for the plea, the state agreed to dismiss the remaining criminal vehicular homicide and injury charges, agreed not to file additional charges including third degree murder, and agreed not to seek an upward sentencing departure.  The trial court imposed consecutive 48 month sentences on the kidnappings, imposed a stayed 78 month sentence on the criminal vehicular homicide, and imposed a stayed 17 month sentence on the criminal vehicular injury.

Mr. Montermini filed a post conviction petition in which he alleged ineffective assistance of counsel.  The court of appeals agreed that counsel had been ineffective and reversed and remanded to allow him to withdraw his guilty pleas to kidnapping.  On the state’s motion, the trial court on remand vacated Mr. Montermini’s remaining pleas and convictions.  The state then added additional charges, which included murder in the third degree and more counts of criminal vehicular operation causing injury and more counts of kidnapping.  At trial, Mr. Montermini only contested his guilt to third degree murder and the kidnappings.  A jury convicted him of everything except the kidnappings.  The trial court imposed an executed sentence of 174 on the third degree murder, imposed a concurrent 13 month sentence on the criminal vehicular operation resulting I substantial bodily harm, and imposed concurrent 365 day sentences on the other criminal vehicular operation counts.

On appeal Mr. Montermini argued that the trial court erred by vacating his remaining pleas and convictions,and by permitting the state to re-file new charges.  He argued that the state waived its ability to seek an order vacating his unchallenged convictions because the state had not made that request during the post conviction proceedings.  He argued that the action exceeded the scope of the remand order.  He argued that the action violated his double jeopardy rights.  Finally, he argued that the action permitted the state to engage in serial prosecution.  The court of appeals ruled against him on all of these claims.  In the course of addressing these claims that Mr. Montermini put forward, the court seemed especially drawn to this language from the initial guilty plea:

[I]f I withdraw the plea, with the court’s approval, or if the plea is withdrawn by court order on appeal or other review:
a. I would then stand trial on the original charges.
b. The prosecution could proceed against me just as if there had been no plea of guilty and no plea agreement.

Essentially, the court’s legal analysis was  all in support of its feeling that Mr. Montermini was trying to have his cake and eat it too.  He wanted to keep his pleas and convictions to the least serious charges but forbid the state from either reinstating or adding more serious charges that had either been bargained away or foregone.

Mr. Montermini also argued that the trial court should have given an instruction on second degree culpable negligence manslaughter as a lesser included offense of both third degree murder and criminal vehicular homicide.  The defense had not requested this instruction during trial.  The court of appeals concluded that the failure sua sponte to give an unrequested lesser included offense instruction was not plain error; moreover, not making the request appeared to be a “go for broke” trial strategy.

Lastly, the court of appeals rejects Mr. Montermini’s argument that the state’s evidence was not sufficient to support the third degree murder conviction. 

No Substantive Due Process Violation in this Instance By Prohibiting Inmate From Visits with Minor Child, Conceived During the Rape of the Child’s (Juvenile) Mother

Mitchell v. Smith, Minn.Ct.App., 7/30/2012.  Mr. Mitchell is in prison for various offenses having to do with criminal sexual conduct, promoting prostitution and failure to register as a predatory offender.  One of his convictions, criminal sexual conduct in the third degree with a fifteen year old when he was twenty-nine, resulted in Mr. Mitchell becoming a dad.  He challenged a Corrections policy that precluded him from visiting with his minor child while incarcerated.

Let’s start with a rundown of his criminal escapades:

Appellant Alphonso Mitchell pleaded guilty in 2003 to third-degree criminal sexual conduct for engaging in sexual relations with a 15-year-old girl when he was 29 years old. Mitchell’s daughter was born on November 11, 2002, as a result of this sexual relationship. The district court sentenced Mitchell to 36 months’ imprisonment, and Mitchell was placed on supervised release in August 2005.
In March 2006, Mitchell was arrested for failing to register as a sex offender. During police questioning, he admitted that he had recently kissed a 16-year-old girl. Because of his sexual contact with a minor and because he neglected to complete sex-offender treatment, a condition of his release, Mitchell’s supervised release was revoked and he was ordered to serve 150 days in custody.

In August 2006, Mitchell again was placed on supervised release. He subsequently pleaded guilty to charges in two separate criminal complaints. A July 2006 complaint alleged that, between December 2005 and March 2006, Mitchell and his codefendant kidnapped two minor females and held them at a St. Paul residence, where the minors were drugged, physically assaulted, sexually assaulted, and forced to engage in prostitution. The complaint also alleged that Mitchell committed arson. Mitchell was charged with soliciting and promoting prostitution of minors, kidnapping, arson, and first-degree criminal sexual conduct. On March 12, 2007, Mitchell pleaded guilty to one count of aiding and abetting solicitation and promotion of prostitution of a minor, a violation of Minn. Stat. §§ 609.05, subd. 1, 609.322, subd. 1(1)-(2) (2006), and one count of first-degree arson, a violation of Minn. Stat. § 609.561, subd. 1 (2006). Based on a separate incident, Mitchell also pleaded guilty to solicitation of a minor to practice prostitution, a violation of Minn. Stat. § 609.322, subd. 1(1). The district court imposed multiple concurrent sentences, the longest of which is 192 months’ imprisonment. Mitchell began serving his sentences in May 2007 at the Minnesota Correctional Facility at St. Cloud (MCF-SCL).

The Department of Corrections restricts visiting privileges for offenders who have a “documented abuse history involving minors.”  The Department initially restricted Mr. Mitchell’s visits with minors to in-person but no physical contact visits.  When Mr. Mitchell appealed this restriction the Department thought better of its first decision and eliminated any visits with minors at all, based on this policy statement:

No minor (under 18) visits will be allowed to an offender . . . who was previously convicted of a sexual offense or one with sexual characteristics involving a minor, and subsequently violated release expectations. These offenders must repeat their participation in Sex Offender Treatment.” Prison officials amended Mitchell’s abuse code to “NV.

Mr. Mitchell sued the Warden, complaining that this policy violated his constitutional right to substantive due process by prohibiting him from exercising his constitutionally protected parental rights.  The court of appeals rejects this contention, saying that the Department’s policy is valid because it reasonably is related to a legitimate penological interest, namely “to protect the safety, health and welfare of minor visitors and to rehabilitate sex offender inmates.” 

Caveat:  I represented Mr. Mitchell on his most recent (March 2007) set of charges.

Selective Prosecution for Catching Walleye Out of Season Not Proven

State v. Fellegy, Minn.Ct.App., 7/11/2012.  Two days before the walleye fishing opener in May 2010 Mr. Fellegy (a) caught a walleye from Lake Mille Lacs, and (b) bragged about in on line.  The DNR happened to be reading Mr. Fellegy’s bragging – as he intended - and referred the matter to the Aitken county attorney.  The Aitkin county attorney charged Mr. Fellegy with catching a walleye out of season.  Mr. Fellegy complained that this was selective enforcement in violation of his right to equal protection under the law.  More specifically, Mr. Fellegy, appearing without counsel, initially maintained that he should be able to catch walleye the same as members of the Ojibwe Indian Tribe:

[The charge must be dismissed] based on the fact that during the same time frame in Minnesota and Wisconsin citizens harvested approximately 65 tons of walleyes from the same lake. In the end, solely based on skin color and ethnic origin this charge discriminates against me and should be dismissed; and if not dismissed, I should be found not guilty based on the protection of such discrimination.

Once retaining counsel, counsel made a bit more nuanced argument that the problem with Mr. Fellegy’s prosecution was that over in Beltrami County Native Americans had also caught fish before the opener on Lake Bemidji and the county attorney there did nothing about it.  The trial court treated these separate, different assertions as two different motions; on the former, Mr. Fellegy had waived it by not submitting the memorandum that had been requested, and he lost the later because his second motion was untimely and even if not, had no merit.

The court of appeals says that the trial court had not abused its discretion by bouncing Mr. Fellegy’s first motion, based entirely on race, because he had not submitted the requested memorandum.  Even on the merits, however, he still cannot prevail.  The court points out that the Ojibwe have treaty rights to take fish from Lake Mille Lacs whereas he does not.  He is not, therefore, “similarly situated” to the Ojibwe when fishing that lake.  That one of the requirements to assert a valid selective prosecution claim.

On the second motion, the appellate court again says that the trial court did not abuse its discretion by concluding that it was untimely.  Even if not, Mr. Fellegy did not establish how the Beltrami county attorney’s decision not to prosecute the fish catch there established a claim of selective prosecution in Aitkin county:

In short, his claim of selective enforcement requires proof of the decisionmaker’s discriminatory intent, and the intent behind one prosecutor’s action does not, without more, demonstrate the intent behind another’s inaction.

An Officer’s Opinion on Driver’s Impairment, Supported by Sufficient Observation, Is Admissible as Lay Person Evidence.

State v. Ards, Minn.Ct.App., 7/16/2012.  A St. Paul police officer stopped Mr. Ards, initially on poor driving but then arrested him on a DUI charge.  At the jail, Mr. Ards consented to a breath test.  The first test result was .131 with a replicate reading of .132.  The control reading was .083 and its replicate reading was .082.  The second breath test result was .119 with a replicate reading of .121.  Low score wins so the official reading was .11.

At the end of the state’s case, Mr. Ards requested a direct verdict of acquittal, arguing that because one of the control readings was outside of the acceptable variation range.  The trial judge denied the motion, saying that the evidence on the various results presented a fact question for the jury to sort out.  The jury convicted Mr. Ards.

On appeal, Mr. Ards presented two challenges, neither of which the trial court ruled upon, so the appellate standard of review is plain error.  First, he argued that allowing the officer to testify about his impairment was expert testimony on the ultimate issue for the jury, and that allowing the officer to testify that the Intoxilyzer test result was reliable was error.  On the testimony about the officer’s personal observations and opinion of intoxication, the appellate court points out that a lay person may testify to her opinion about a person’s intoxication, reaching back two centuries for case law to support that proposition.  McKillop v. Duluth St. Ry. Co., 53 Minn. 532, 537, 55 N.W. 739, 739 (1893).  More recently, only a half century ago, the Minnesota Supreme Court set out the foundation necessary for a lay person to opine about another’s intoxication:

observation of manner of walking and standing, manner of speech, appearance of eyes and face, and odor, if any, upon such person’s breath.

State v. Simonsen, 252 Minn. 315, 328, 89 N.W.2d 910, 918 (1958).  The officer’s opinion on Mr. Ard’s impairment was thus not an “expert” opinion and since Mr. Ards did not challenge the foundation evidence there was no error in admitting her testimony.  The court reached the same conclusion on the other part, the reliability of the Intoxilyzer.

Friday Sidebar: “Istanbul Passage” a Novel by Joseph Kanon

Described as a Casablanca-esque espionage thriller by USA Today, it’s 1945, World War II is over but the Cold War is heating up.  Expatriate American businessman Leon Bauer (no relation to Jack as far as I know), who does small time undercover jobs for the Allied Forces, is given one last assignment.  I can attest that you can’t put Joseph Kanon’s latest work down.  It’s full of suspense, double crosses, romance – every page.

 

Court Limits Falsely Reporting Police Misconduct Statute to Defamatory Statements

State v. Crawley, Minn.S.Ct., 8/8/2012.  This comes up from the court of appeals, read here.  Here’s how that post described what happened:

Ms. Crawley filed a report of police misconduct, asserting that an officer forged her signature on a medical release to obtain her medical records.  When a nurse said that she had seen Ms. Crawley sign the release, the state charged her with falsely reporting police misconduct and falsely reporting a crime.  Falsely reporting misconduct is:

Whoever informs, or causes information to be communicated to, a peace officer, whose responsibilities include investigating or reporting police misconduct, that a peace officer . . . has committed an act of police misconduct, knowing that the information is false, is guilty of a crime . . . .

Ms. Crawley argued that this statute was “viewpoint discrimination” because it only criminalized false statements that criticize police.  The appellate court points out that making a false statement that attempts to absolve a police officer of misconduct would not be punishable under this statute.  That makes prosecution turn on content, which you can’t do.  R.A.V. v. City of St. Paul, 505 U.S. 377, (1992)

The court of appeals concluded that the statute was unconstitutional.  In a 4-3 Opinion, Justice G. Barry Anderson reverses the court of appeals and construes the statute, Minn.Stat. 609.505, subd. 2 narrowly to criminalize defamation, a category of speech not protected by the First Amendment.  The statute is a content-based regulation of speech because prosecution under it depends entirely on what the person says.  The statute punishes “a substantial amount of protected speech in addition to unprotected speech.  The statute is thus facially unconstitutional.  The majority then saves the statute by limiting it to speech that is defamatory:

Under our narrowing construction, we conclude that the only speech reached by section 609.505, subdivision 2, is defamation.14 Because under our limiting construction we require the State to prove that a person, in order to be convicted under the statute, has informed a peace officer of an act of police misconduct by another officer, the first element of defamation―communication to a third party―is fulfilled. The statute also requires the communicator of the information to know that it is false, fulfilling the second element. Because an act of misconduct is an allegation that affects a peace officer “in his business, trade, profession, office or calling” the requirement for defamation per se is satisfied. See Bahr, 766 N.W.2d at 920 (citation omitted) (internal quotation marks omitted). Finally, requiring the State to prove that the officer receiving the information reasonably understands the information to refer to a specific individual satisfies the fourth element.

Justice Stras, joined by Justices Paul H. Anderson and Meyer, dissented, saying that the statute punishes statements critical of government officials, statements at the “very center” of the First Amendment.

Circumstantial Evidence Sufficient to Support Premeditated First Degree Murder

State v. Hurd, Minn.S.Ct., 8/8/2012.  A jury convicted Mr. Hurd of first degree premeditated murder of his girlfriend, Kathryn Anderson, and first degree murder while committing a kidnapping.  The trial court sentenced him to life without parole on the premeditated murder conviction.  On Appeal Mr. Hurd argued that the evidence had been insufficient to support both of the jury’s verdicts; and that the trial court had been wrong in denying a defense request to instruct the jury that any confinement or removal that was incidental to the murder was insufficient to constitute kidnapping.

Anderson’s body was found in a ditch some forty-seven miles from where she and Mr. Hurd lived.  She had been stabbed 109 times.  Police eventually arrested Mr. Hurd in Tulsa, where he was staying with his mother.  While in jail in Tulsa, he wrote a number of incriminating statements on the walls of his cell.  At trial, defense counsel conceded that Mr. Hurd had intentionally killed Anderson but argued that he had neither kidnapped her no premeditated the killing.  The jury rejected both these arguments.

On appeal, Justice Page, writing for a unanimous court, utilized the Anderson two step to determine whether the circumstantial evidence was sufficient to sustain a guilty verdict.  State v. Anderson, 784 N.W.2d 320 (Minn. 2010).  Here’s how the court swears it works:

First, we “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.’ ” State v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010) (quoting Andersen, 784 N.W.2d at 329). Next, “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.” Id. at 242 (quoting Andersen, 784 N.W.2d at 329); see also State v. Al-Naseer, 788 N.W.2d 469, 473-74 (Minn. 2010). Under this second step, we must “determine whether the circumstances proved are ‘consistent with guilt and inconsistent with any rational hypothesis except that of guilt,’ not simply whether the inferences that point to guilt are reasonable.” State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011) (quoting Andersen, 784 N.W.2d at 330).

Justice Page concluded that there was sufficient evidence to support the convictions.  Here’s what the court relied upon to find premeditation:

The circumstances proved in this case related to planning activity include: (1) Hurd brought the murder weapon, a knife, with him when he drove Anderson to Owatonna; (2) Hurd took Anderson 47 miles away from her apartment against her will; (3) Hurd took Anderson 5 miles from the nearest freeway exit; (4) the nearest lights were over a quarter of a mile away; (5) the area was isolated and secluded; (6) the murder occurred late at night; (7) after beating and stabbing Anderson, Hurd left her in a ditch on the side of the road; (8) Hurd left Anderson on a cold December night wearing only a sweatshirt, boxer shorts, and no shoes; (9) after the murder Hurd bought a jacket and a prepaid phone at Walmart; (10) Hurd then bought a bus ticket to Tulsa using an assumed name; (11) Hurd had previously told his mother that he planned to return home to Tulsa; (12) Hurd lied to A.B. about the last time he saw Anderson in an effort to avoid detection; (13) Hurd lied to Anderson’s father to avoid detection; (14) Hurd lied to a BCA agent to avoid detection; (15) Hurd washed his bloody clothes; (16) Hurd attempted to clean the blood from Anderson’s car before abandoning it at the bus station; and (17) Hurd took money and a PlayStation game console from Anderson’s apartment. The inferences to be drawn from these circumstances relating to planning activity, when viewed as a whole, are consistent with the jury’s finding of premeditation and inconsistent with any rational hypothesis other than guilt.

The court compiled other lists in addition to this one but you get the picture, and can read them on your own.

Because the trial court neither convicted nor sentenced on the first degree murder while committing a kidnapping the court does not address the other two issues that Mr. Hurd raised on appeal.

Test Refusal Statute Does Not Implicate a Fundamental Right Under Substantive Due Process To Refuse to Submit to Testing

State v. Wiseman, Minn.Ct.App., 7/16/2012.  A Lakeville police officer stopped Mr. Wiseman on suspicion of turning without signaling.  The officer soon suspected that Mr. Wiseman may be driving under the influence; the preliminary breath test was over the legal limit.  The officer arrested Mr. Wiseman and once down at the station asked him if he would submit to a chemical test of either his blood or urine in order to ascertain his blood alcohol level.  Mr. Wiseman declined the request, opining that he had some sort of constitutional right to refuse.

Mr. Wiseman’s attorney, Jeffrey S. Sheridan, who certainly knows all that there is to know about the various DUI statutes, moved to dismiss the ensuing test refusal charge, arguing that the statute that criminalizes refusal is unconstitutional “because [Mr. Wiseman] has a constitutional right to refuse to consent passively or nonviolently to a warrantless police search and thereby refuse to submit to a chemical test.”  The trial court denied the motion after which Mr. Wiseman submitted the case on stipulated facts.  The trial court convicted Mr. Wiseman on the refusal.

This presents a substantive due process question, whether the government is acting arbitrarily or  wrongfully regardless of the fairness of the procedures used to implement those actions.  When it’s the legislature that is doing the acting, the court examines that action under whichever level of scrutiny that the law demands, strict or something less.  So, the first question is whether the refusal statute under assault here implicates a “fundamental right” which would trigger strict scrutiny examination.  In re Linehan, 594 N.W.2d 867 (Minn. 1999).  Mr. Wiseman asserted that his “right to refuse” either passively or nonviolently is a corollary to his constitutional right to be free from unreasonable searches. 

The problem is, according to Judge Wright, neither a warrant nor consent is necessary to administer the alcohol content test.  A warrantless chemical test is constitutionally reasonable if the police have probable cause to believe that the person was driving while chemically impaired because of the exigent circumstances created by ‘[t]he rapid, natural dissipation of alcohol in the blood’”.  State v. Shriner, 751 N.W.2d 538 (Minn. 2008), quoting State v. Netland, 762 N.W.2d 202 (Minn. 2009). Fee states have explicitly addressed this issue so tt’s not clear whether Shriner and Netland will come to represent a either a majority or minority view that dissipation of blood alcohol alone is a sufficient exigency to draw blood without a warrant.  (Justices Meyer and Paul Anderson dissented in Shriner and would have required the officer to have probable cause to believe that the delay in obtaining a warrant threatened the destruction of evidence.)  Missouri requires an exigency other than the dissipation of blood-alcohol evidence.  State v. McNeely, 358 S.W.2d 65 (Mo. 2012). 

When examined under a more relaxed rational basis standard, the court concludes that the statute is constitutional. 

Friday Side Bar: J.D. McPherson is Playing at This Year’s Minnesota State Fair

A new, irregular, Friday feature, stolen unashamedly from Paul Krugman.  We begin with music but that won’t always be the case.
J.D. McPherson will play at the Heritage at Sundown stage on August 27 & 28.  Check the schedule here.  Performances are free. 

No Ineffective Assistance of Appellate Counsel

Jackson v. State, Minn.S.Ct., 8/1/2012.  A jury convicted Mr. Jackson of multiple counts of homicide.  The Supreme Court affirmed his conviction.  For the facts and the direct appeal, go here.  Mr. Jackson eventually got around to filing a state post conviction petition, alleging that appellate counsel had provided ineffective assistance of counsel.  The post conviction court denied the petition summarily and Mr. Jackson appealed that denial to the supreme court.

Justice Paul H. Anderson, Jr. affirms the post conviction court for a unanimous court.  Mr. Jackson had asserted in his petition that appellate counsel had not properly raised objections to the introduction of evidence that the state had introduced to prove that he had committed the crimes for the benefit of a gang.

First, Mr. Jackson said that appellate counsel had been ineffective by failing to argue that the trial court had erred by admitting the gang affiliation evidence.  Mr. Jackson conceded that appellate counsel had argued that the admission of this evidence had been unfairly prejudicial.  His point was that appellate counsel should separately have argued that the admission of this evidence was error on its own.  Justice Anderson ducks this issue by concluding that Mr. Jackson could not show that he was prejudiced by this alleged omission by appellate counsel; the Justice said that the court would have affirmed his conviction in any event.

Second, Mr. Jackson said that appellate counsel had been ineffective by failing to argue that the admission of the gang affiliation evidence violated his due process rights.  Appellate counsel had argued, Mr. Jackson again conceded, that the admission of this evidence had been unfairly prejudicial but counsel did not specifically claim a due process violation.  Once again, the court said that Mr. Jackson could not show prejudice by this alleged error so there was no need to decide if there were an error.

Third, Mr. Jackson said that appellate counsel had failed to preserve any federal constitutional claims, with the result that he could not pursue a federal habeas claim.  The court says that there is no duty of appellate counsel to raise federal constitutional issues to a state appellate court “simply to preserve those issues for federal habeas review.”  Rather, appellate counsel has the discretion to argue “only the most meritorious claims.”  Nunn v. State, 753 N.W.2d 657 (Minn. 2008).  Justice Anderson backtracks from that (at least embarrassing) assertion – how hard is it to throw in, “and it violates due process, or something in the constitution” – by also saying that, again, Mr. Jackson doesn’t point to a specific constitutional claim that appellate counsel unreasonably failed to raise and then demonstrate just how that failure prejudiced him.  More troubling is that the court’s ambivalent reliance on Nunn – did appellate counsel’s failure to raise a claim of prosecutorial misconduct create a reasonable probability that the outcome of his direct appeal would have been different – suggests that the court doesn’t seem concerned about what the federal court would have done with Mr. Jackson’s federal issues had they been preserved for federal habeas review.

Unless There’s Foot Dragging, Award of Jail Credits Is Determined From Date on Which State Has Probable Cause and Sufficient Evidence to Potentially Convict a Defendant.

State v. Clarkinhttp://www.lawlibrary.state.mn.us/archive/supct/1208/OPA101286-0801.pdf, Minn.S.Ct., 8/1/2012.  This is the jail credits case from the court of appeals.  Read here.    Justice Paul Anderson affirms the court of appeals, but does so on different grounds.  The court also upends what was thought to be well settled precedent that says jail credits accrue from the date on which the state had probable cause to have charged out the offense.

In April 2008, Mr. Clarkin gets released from prison after serving a sentence for second degree assault against his former girlfriend.  One of his parole terms was to stay the hell away from girlfriend.  On July 8, 2008, girlfriend discovered that someone had spray painted her house, garage and a motorcycle parked in the driveway ;she believed that Mr. Clarkin was the artist.  On July 11, 2008, girlfriend’s daughter saw Mr. Clarkin in the backyard of girlfriend’s home.  On July 12, 2008, girlfriend’s Dad discovered that someone had spray painted his house, in a style nearly identical to the style of the July 8 spray painting; Dad also believed that Mr. Clarkin was the artist.

On July 13, 2008, police arrested Mr. Clarkin, but not for the spray painting.  Rather, they arrested him for violation of some other term of his parole having nothing to do with painting.  The police found two spray paint cans at the arrest location.  The police did ask him about the spray painting incidents, but Mr. Clarkin denied being the artist responsible for them.  Mr. Clarkin remained in custody through February 19, 2009.

During which the spray painting stopped.  It resumed, however, in April, and continued through November 6, 2009 at the homes of girlfriend, girlfriend’s dad, girlfriend’s brother, and girlfriend’s place of employment.  The police concluded that the spray painting in all of these places was nearly identical with each other and with the spray paintings from back in 2008.  Finally, in November, 2009, the state charged Mr. Clarkin with some of the spray paintings as harassment/stalking charges.  Eventually, the state charged him with all of the spray painting events as well as several OFP violations.  Mr. Clarkin entered a guilty plea to a single count as part of a deal under which he would receive a 35 month executed sentence.  At sentencing Mr. Clarkin said that he was entitled to the 231 days of jail credit from July 13, 2008 until February 19, 2009, because the state had probable cause to charge him then.  The state countered that these days were served for a parole violation, and that the state did not have probable cause to arrest him on the spray painting incidents until his arrest in December 2009.

The court of appeals had said that the sentence was presumptively consecutive so no jail credits regardless of the probable cause issue.  Justice Paul Anderson concludes that because a concurrent sentence would be longer than a consecutive one, a concurrent sentence is the presumptive sentence.  As a result, Mr. Clarkin is not, on this basis, ineligible for the jail credits that he was seeking.

He is, however, ineligible for those credits.  The court rejects adoption of a probable cause test to determine the award of jail credits.  The court is afraid that this will result in premature charging when the state lacks sufficient evidence to obtain a conviction.  Rather, the test is when did the investigation produce a sufficient amount of evidence to charge (probable cause)  and potentially convict a defendant?  Here’s the rule:

We conclude that an award of jail credit is appropriate for time spent in custody after the date when (1) the State has completed its investigation in a manner that does not suggest manipulation by the State, and (2) the State has probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged.

Justices Meyer and G. Barry Anderson would have adopted the probable cause standard but concluded that Mr. Clarkin was not entitled to the jail credits under that standard either.

Juvenile Certification is Not Offense Specific

State v. Grigsby, Minn.S.Ct., 8/1/2012.  This comes up from the Court of Appeals, read here.  Here’s the pertinent part of the introduction from the previous post:

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 jury acquitted Mr. Grigsby of second degree intentional murder, the only offense on which the juvenile court certified him to adult court, but convicted him on the added charge.  He argued that the district court could not sentence him on the added charge, that the certification was offense specific.  Justice Meyer, writing for the entire court, rejects this argument.

The juvenile jurisdiction statute, Minn.Stat. 260B.101, subd. 1 says ““[w]hen a child is alleged to have committed, after becoming 14 years of age, an offense that would be a felony if committed by an adult, the juvenile court may enter an order certifying the proceeding for action under the laws and court procedures controlling adult criminal violations.”  The certification statute, Minn.Stat. 260B.125, says, “When the juvenile court enters an order certifying an alleged violation, the prosecuting authority shall proceed with the case as if the jurisdiction of the juvenile court had never attached.”  Justice Meyer concludes that “the proceeding” includes non-certified offenses that arise out of the same behavioral incident as the offense specified in the certification order.  In doing so, the Court dispenses with the language of the rule, Minn.R.Juv.Delinq.P. 18.07, which requires that the certification order state “that adult court prosecution is to occur on the alleged offense(s) specified in the certification order.”

Mr. Grigsby also argued that if the plain language of the juvenile rules won’t do then his due process rights have been violated.  He fails here, also:

treatment as a juvenile is not an inherent right but one granted by the state legislature, therefore the legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved.

Further, due process does not require the state to notify Mr. Grigsby of all of the lesser included offenses that he might face in adult court arising out of the same behavioral incident.  So:

In sum, Minn. Stat. § 260B.125 unambiguously permits the certification of a “proceeding,” and that “proceeding” includes non-enumerated offenses arising out of the same behavioral incident as the offense enumerated in the certification order. When the State does not rely on less serious offenses as a ground supporting a motion to certify the proceeding to adult court, and when notice of less serious crimes will not help the child mount a defense to the State’s motion, due process does not require the State to notify the child of all the less serious offenses he might face. Following a valid certification order, a child no longer has a recognized liberty interest in a juvenile adjudication for offenses arising out of the behavioral incident that was certified to adult court, and therefore due process does not require a district court to provide the child another hearing on the certification issue.

Supreme Court Limits Admissibility of Battered Woman Syndrome

State v. Hanks, Minn.S.Ct., 8/1/2012.  Ms. Hanks killed Matthew Albert, whom Justice Meyer, writing for a unanimous court, described as her “romantic partner.”  She shot him in the head.  Here’s why the court thought Albert deserved his “romantic partner” sobriquet:

Albert was not involved in the lives of his children. Albert preferred that Hanks stay at home with the children rather than work outside the home. Albert controlled the family finances and did not give Hanks money. Albert got angry when Hanks went out socially and “wanted [Hanks] socially isolated.” Albert disabled Hanks’s vehicle so she could not drive it. Albert made threats to kill L.G., Hanks, his children, and himself. One of Hanks’s children stated that “Dad hit mom!”

Do you see the romance here?  Here’s how Ms. Hanks recalled the shooting:

Hanks testified that on the day of the shooting, she and Albert were up fighting until four or five in the morning. She was exhausted and felt like her head was “exploding.” When she returned to the house to get her child’s boots, Albert was lying in bed handling the gun, saying that he wanted to be in a safe or better place. Hanks said she did not remember holding the gun or pulling the trigger, but admitted to shooting Albert. She testified that she did not plan or intend to shoot Albert.

Ms. Hanks retained an expert who was prepared to tell the jury that she was a battered woman.  This expert defined battering as “a pattern of physical and psychological coercion that may create ongoing fear of safety among victims.”  Ms. Hanks argued to the trial judge that the expert’s testimony was admissible because it was relevant to the issue of premeditation –did I mention that this was a murder 1 charge – that it would help explain to the jury why Ms. Hanks behaved as she did, including her contradictory statements to the police.  The state cried foul.  The trial court excluded the expert’s testimony, and Justice Meyer said that this exclusion was not an abuse of discretion.

The court narrowly construes past cases on the admissibility of battered woman syndrome to approve the exclusion of this evidence.  Justice Meyer first reads Hennum to limit such defense testimony to a claim of self defense.  State v. Hennum, 441 N.W.2d 793 (Minn. 1989).  She then reads Grecinger to apply only to the state’s efforts to clean up the credibility of a battered woman in the prosecution of her batterer. State v. Grecinger, 569 N.W.2d 189 (Minn. 1997).   These two opinions are actually much more expansive:

Expert testimony on the syndrome is admissible “for the specific purpose of bolstering the defendant's position and lending credibility to her version of the facts.”  State v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989).  It is also admissible to help the jury understand the behavior of a woman suffering from the syndrome, including staying in a relationship, not reporting abuse and changing accounts of the abuser’s actions; that conduct “might otherwise be interpreted as a lack of credibility.”  State v. Grecinger, 569 N.W.2d 189, 195 (Minn. 1997). 

Appellant’s Brief.  Such information is also helpful in understanding “counterintuitive behaviors commonly associated with” battered woman syndrome.  State v. Obeta, 796 N.W.2d 282, 291 (Minn. 2011).

Hanks testified that on the day of the shooting, she and Albert were up fighting until four or five in the morning. She was exhausted and felt like her head was “exploding.” When she returned to the house to get her child’s boots, Albert was lying in bed handling the gun, saying that he wanted to be in a safe or better place. Hanks said she did not remember holding the gun or pulling the trigger, but admitted to shooting Albert. She testified that she did not plan or intend to shoot Albert.  Her expert would have offered these insights into this behavior:

[B]attered or controlled women may give contradictory versions about what happened, which is the case here.  The defendant originally denied shooting the victim and later admitted to it. The expert in this case will testify that battered/controlled women, after years of abuse, can suddenly “explode” and act out without thinking or planning-thus negating premeditation, which is a possible explanation of what occurred here.  (It is also possible that the testimony of the expert combined with the testimony of lay witnesses, may establish a factual basis for manslaughter).
In essence, expert testimony is necessary to provide an honest and true version of the characteristics and traits of battered women syndrome victims.

The court affirms Ms. Hanks’ sentence of life without possibility of release.