To Satisfy “Interests of Justice” Exception to Limitations Period, All Claims Must Pass the “Not Frivolous” Test

Wallace v. State, Minn.S.Ct., 9/26/2012.  This is a post conviction appeal from the summary denial of Mr. Wallace’s second petition for post conviction relief.  Mr. Wallace and Mr. Williams fought over R.L., which ended when Mr. Wallace stabbed Mr. Williams to death.  On direct appeal from a conviction of first degree felony murder, the supreme court affirmed the conviction of life without possibility of parole, rejecting Mr. Wallace’s evidence sufficiency claim.  Five years later, Mr. Wallace filed his first post conviction petition, arguing that his trial and appellate counsel had been ineffective, that the felony murder statute was unconstitutional, and that the trial court had denied him due process by sentencing him under this unconstitutional statute.  The post conviction court summarily concluded that all of these claims were procedurally barred under State v. Knaffla, 309. Minn. 246, 242 N.W.2d 737 (1976), and denied the petition; Mr. Wallace started but did not finish an appeal of that ruling.

Last year, Mr. Wallace filed his second petition for post conviction relief, repeating most of the claims that he’d made in the first one, but he threw in a claim that application of the Knaffla rule to preclude review of his federal constitutional claims was, itself, unconstitutional.  The post conviction court said that these claims were time barred under the limitations statute, Minn.Stat. 590.01, Subd. 4, and that and that no exception applied.  On appeal, Mr. Wallace suggested that it was “ in the interest of justice” to consider the merits of his claims.  This exception requires that petitioner establish that the petition is not frivolous, and that it is in the interests of justice.  This gives Justice Stras the opportunity to parse just what “frivolous” means.

At least to Justice Stras, what the court said in Glassler v. State, 787 N.W.2d 575 (Minn. 2010) and in Rickert v. State, 795 N.W.2d 236 (Minn. 2011) wasn’t enough of an explanation.  Glassler said that “frivolous” means that it is “perfectly apparent, without argument, that the petition is without merit.”  Rickert said that it meant that the petitioner could show “a good-faith basis” for the claims made therein, and not that the petitioner would necessarily succeed on the merits.  Justice Stras comes up with this definition:

[A] petition is “frivolous” under Minn. Stat. § 590.01, subd. 4(b)(5) if it is perfectly apparent, without argument, that the claims in the petition lack an objective, good-faith basis in law or fact

Sounds pretty straight forward until you read footnote 3; here’s the real reason for this opinion, because what the court now requires is that each and every claim in the petition pass the “not frivolous” test.  The post conviction court can’t pick and choose; it’s all or nothing:

The applicability of the interests-of-justice exception in Minn. Stat. § 590.01, subd. 4(b)(5), depends upon whether “the petition is not frivolous and is in the interests of justice.” (emphasis added). Under the plain language of subdivision 4(b)(5), therefore, a postconviction court must consider the whole petition in assessing whether a petitioner has satisfied the interests-of-justice exception, not just whether some of the individual claims in the petition are frivolous or fail to satisfy the interests-of-justice requirement. In this case, Wallace’s petition is frivolous because it is perfectly apparent, without argument, that every claim in his petition lacks an objective, good-faith basis in law.

The court thus continues its aggressive, activist dismantling of the post conviction statute.  The conclusion that the court adopts is neither readily apparent nor required from the text of the statute itself; it is this activism that leads to this “take no prisoners” approach.  The statute only says that “the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.”  The statute does not say that “each claim of the petition” must satisfy the statutory test;  Justice Stras has now written that into the statute.  Litigants, pro se or not, will now have to choose carefully which claims to pursue and which to abandon.  This will stifle the development of new legal theories as litigants will leave those “cutting edge” claims on the editing room floor to avoid getting tossed all together.

Trial Court Erred in Granting State’s Batson Challenge Based on Gender.

State v. Seaver, Minn.Ct.App., 9/24/2012.  Ms. Seaver’s former boyfriend foolishly divulged to her that he was holding twenty-five thousand dollars.  Ms. Seaver collected her current boyfriend and two other friends about this treasure and the four set off to steal it.  The plan had a few bugs in it so ultimately the state charged Ms. Seaver with aiding and abetting first degree burglary, second degree assault, and attempted first degree aggravated robbery.  During jury selection Ms. Seaver used four of her five peremptory strikes to remove four male jurors.  The state made a Batson challenge to those strikes.  The trial court granted two of the four challenges but denied the other two:

I do find that there has been a Batson violation. The question in this case is how to address it. I am going to do it in this way, and this is completely arbitrary, in a way: I am going to allow two of the strikes, [B] and [V], and I’m doing it for this reason: I think that [B] being a victim is a more legitimate reason. The reasons given for the others are weak.

I will just note that I always make an estimate as to who the parties are going to strike, and I wrote down that the defense would likely strike [V]. I don’t think I believed that he was going to be struck for the reasons stated, but for different ones, but I anticipated that he would be struck. And the other people I had written down that he would strike were not men. I can understand why the defense might not want a person who is obviously well-educated and would be a leader on the jury and probably could well be the Foreperson. The reasons given I don’t necessarily buy, but I think there are other reasons.

So for that reason, I will allow the defense’s strike of [V] and [B], but since I found Batson violations, I will not allow the other two [ of [H] and [M].

The court of appeals goes through the Batson drill, beginning with whether the state proved a prima facie case of gender discrimination.  The defense struck four of the seven men on the panel so this was enough for the court of appeals to find that the state passed this part of the test.

Now, Ms. Seaver had to come up with a gender neutral reason for the strikes.  For H, she said that H had not been very forthcoming in his answers and alleged that he had told another juror that he would lie and just go along with what others said.  For M, Ms. Seaver said that M’s ex-wife had custody of his kids.  This was a concern because Ms. Seaver dropped her kids off with a friend or relative on her way to rob her former boyfriend.  The court of appeals concludes that these reasons were good enough and did not reveal any inherent discriminatory intent.

On to the last step:  what was the real reason for the strikes.  Because they’re guys?  The court of appeals concludes that the state did not prove that Ms. Seaver’s stated gender neutral reasons were pretextual.  Further, the erroneous denial of a defendant’s peremptory strike entitles her to a new trial.

The court also said that the trial court had improperly prevented Ms. Seaver from explaining her motivation behind her conduct.  She had wanted to explain that her conduct was motivated by fear for her children’s safety, who were being cared for by the girlfriend of one of the accomplices.  Lastly, the court instructed the trial court to give an accomplice testimony instruction if either of two accomplices testified at the new trial.

Court of Appeals Limits Application of Knowing Transfer of Communicable Disease Statute.

State v. Rick, Minn.Ct.App., 9/24/2012.  This is a prosecution under something called the “knowing transfer of communicable disease” statute, Minn.Stat. 609.2241, subd. 2.  Raise your hand if you’ve heard of this statute.  Here’s what it says:

It is a crime, which may be prosecuted under section 609.17, 609.185, 609.19, 609.221, 609.222, 609.223, 609.2231, or 609.224, for a person who knowingly harbors an infectious agent to transfer, if the crime involved:
(1) sexual penetration with another person without having first informed the other person that the person has a communicable disease;
(2) transfer of blood, sperm, organs, or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms; or
(3) sharing of nonsterile syringes or needles for the purpose of injecting drugs.

What the court of appeals had to decide was:

whether a person violates Minn. Stat. § 609.2241, the knowing-transfer-of-communicable-disease statute, by engaging in an act of sexual penetration that results in a transfer of sperm, even when the person first informed the other participant that he has a communicable disease.

Mr. Rick’s actions involved “sexual penetration” with his partner, having first informed his partner that he had a communicable disease.  That’s subdivision 1, on which the jury found Mr. Rick not guilty.  However, the jury convicted him under subdivision 2.  Mr. Rick argued that subdivision 2(1) applies to all acts of sexual penetration, including those that result in a transfer of sperm.  The state, on the other hand, argues that subdivision 2(2) “unambiguously applies” to sexual penetration.  Mr. Rick wins:  read the statute.  Mr. Rick’s actions were informed sexual penetration between consenting adults which takes his actions out of subdivision 1.  Subdivision 2 is aimed at medical procedures. 

This is a case of first impression, likely to draw some attention from the supreme court.

Assumed Error in Admitting Defendant’s Scales Interrogation Does Not Entitle Defendant to New Trial.

State v. Davis, Minn.S.Ct., 9/19/2012.  A jury convicted Mr. Davis of aiding and abetting the first degree felony murder of Armando Calix.  This was apparently a drug robbery that ended up with a dead man on the floor of his apartment.  A witness placed Mr. Davis and a Mr. Dorman at the location where Mr. Calix was shot just minutes before the shooting.  Shortly after the shooting another witness met up with Davis and Dorman and eventually went from Minneapolis to St. Paul with Davis.  David told this witness the details of the robbery and shooting of Mr. Calix. 

Meantime, both before and after the shooting, Mr. Davis was chatting up an inmate at the jail, during which Davis made several incriminating statements about the robbery and murder of Mr. Calix.  This got the police suspicious.  Davis got himself arrested for an unrelated assault.  While in jail on that assault charge an officer came to see him about it.  The officer gave Davis a Miranda warning and Davis agreed to talk about the assault.  However, when the officer asked Davis where he was on the night of the Calix shooting it suddenly dawned on Davis that the officer really, or additionally, wanted to talk about the Calix shooting, not the assault.  Davis told the officer that he was at home in St. Paul that night and then pretty much shut down, pleading with the officer just to “send me to jail” on the assault, that he didn’t know anything.  The officer persisted in questioning Davis about the Calix shooting, all the while Davis is saying, take me to jail.  He also said that he wanted a lawyer.

The officer then let Davis stew in the interrogation room for a half hour or longer, all the while Davis asking the officer if he could go home if he told what he knew.  The officer punted the question.  The officer then read Davis the Miranda advisory again and Davis sang.  He admitted being in the apartment where Calix was shot but insisted that he was only “in the wrong place at the wrong time.”  Davis said he thought he was just tagging along with Dorman to get some weed.  He said that all of a sudden he saw Dorman pull out a gun at which point Davis ran and hid in a closet.

Needless to say, Mr. Davis moved to suppress this interrogation.  The trial court denied the motion.  Chief Justice Gildea assumed without deciding: (1) that the officer violated Davis’s right to remain silent by continuing to question him after Davis first said he didn’t want to talk, and (2) that the trial court erred in admitting the statement.  No heavy lifting here.  With these questions out of the way all that’s left is the more amorphous question whether these alleged errors were harmless beyond a reasonable doubt.

And of course, they’re not.  The chief justice broke down the statement into the admissible part and the inadmissible part.  During the admissible part Mr. Davis repeatedly lied to the police – the court’s words not mine.  A jury hearing this part would surely think less of Mr. Davis’s credibility, but because this part was admissible there can’t be any harm.  During the inadmissible part all that Davis did was – wait – put himself in the murder room “in the wrong place at the wrong time.”  How is this not harmful?

Moving on.  Davis complained that the trial court should not have allowed a witness to state that when someone cooperated with the police he puts his life at risk and might end up killed.  There was no objection to this testimony so it’s plain error time.  The state conceded that this was plain error because the trial court did not provide a cautionary instruction to the jury about what to do with it. (Check out State v. Harris, 521 N.W.2d 348 (Minn. 1994) to see what should be said.)   Again, no heavy lifting.  That left only the (again) amorphous question whether this plain error affected Mr. Davis’s substantial rights.  Which it didn’t. 

Mr. Davis made a couple of other complaints on appeal, one which the court rejected having to do with some hearsay statements that the defense wanted admitted, and another having to do with an adverse inference instruction that the trial court gave without Mr. Davis’s consent.  See State v. Gomez, 721 N.W.2d 871 (Minn. 2006).  This instruction advises the jury not to draw any adverse inference from a defendant’s election not to testify.  Again, no objection so it’s plain error time once more.  The court agrees that giving this instruction without Mr. Davis’s consent was plain error, but once again, the error did not affect his substantial rights.

Insufficient Proof to Submit Accomplice Testimony Instruction to Jury

State v. Cox, Minn.S.Ct., 9/19/2012.  A jury convicted Mr. Cox of first degree felony murder, second degree intentional murder, and being a prohibited person in possession of a firearm – all for the shooting death of a cab driver, James Moody.  The trial court entered convictions on all three verdicts, and sentenced Mr. Cox to life imprisonment on the first degree felony murder conviction, and to a concurrent sixty month sentence on the gun count.  The trial court did not sentence Mr. Cox on the second degree intentional murder conviction.

This was a retrial following a reversal on a Crawford error.  Read about that here.  Here’s how I described the facts the first time around:

A jury convicted Mr. Cox of the shooting death of a cab driver.  Mr. Cox, a Mr. McIntyre, and S.T. had been hanging out earlier in the evening at a local bowling alley, after which the three of them went to S.T.’s apartment complex.  Police searched S.T.’s apartment where they found a gun; some of the cartridge casings found at the homicide scene were fired by this gun.  Midway through trial, S.T., who was under subpoena, told the prosecutors that she was afraid to testify for fear of harm to herself or her child.  In response, the state asked to introduce her grand jury testimony as substantive evidence.  Her grand jury testimony incriminates Mr. Cox.

This time around Mr. Cox complained that the trial court should have given an accomplice testimony instruction as to S.T., whose name we now know to be Shemica Thomas.  Ms. Thomas testified about Cox and McIntyre returning to her place after she heard gunshots outside and about seeing the guys with their guns.  Mr. Cox thought that she was an accomplice based on these assertions:

Thomas was with Cox and McIntyre immediately before and after the shooting, frequently called cabs to the 3911 building even though she did not live there, had used the Omaha cell phone to make calls that weekend because her own phone had been shut off, had little to no money, and lied to the police following the shooting.

Justice Paul Anderson, writing for the court, rejects this contention.  He writes that there was no evidence that Ms. Thomas knew that Cox and McIntyre planned even to rob Mr. Moody much less shoot him, no evidence that she was present during the shooting, no evidence that she participated in the shooting, and no evidence that she encouraged the shooting. 

Mr. Cox also complained about an “Allen” charge that the trial court gave to the jury when it announced that it had reached a verdict on two of the three charges and asked what would happen if they were unable to agree on the third charge.    The court rejects this argument, concluding that the trial court had not instructed the jury that it had to reach verdict but had only told them that it was requiring them to continue deliberations only at that point to see if a verdict can be reached.  Justice Anderson concludes that this charge was unlikely to cause the jury to believe that it was required to reach a verdict.

Finally, the court vacated the second degree intentional murder conviction because it is a lesser included offense of the first degree conviction.

Jury Instruction on Aiding and Abetting Must Explain that Defendant Must Know That Accomplice Was Going To Commit a Crime, and That Defendant Intended His Presence or Actions to Further The Commission of that Crime.

State v. Milton, Minn.S.Ct., 9/19/2012.  Back on January 2, 2010, Minneapolis police officers, responding to a 911 call, found Dontae Johnson lying face down in the snow beside a van, dead from multiple gunshot wounds.  Officers found a bunch of cash in Mr. Johnson’s pants and wallet, and they found four 9 mm spent shell casings.  C.W., apparently a friend of Johnson’s, told the police that Johnson had called his “cousin” to sell him some weed, and that when a car pulled up shortly thereafter C.W. assumed that the driver was the “cousin.”  C.W. also said that a a truck also arrived the same time as the “cousin.”  The driver of the truck got out; C.W. said that he was dressed in black, including a black hoodie, black jeans and a black mask.  This fellow also had a gun in his left hand.  The driver of the truck demanded Johnson’s weed and money all the while referring to the truck driver as either his “cousin” or “family;” when Johnson tried to run the driver shot him.

The police obtained Johnson’s cell phone records.  Mr. Johnson made and received calls right before the shooting to T.C, Mr. Milton’s brother.  A different set of officers went looking for Mr. Milton and found him at a duplex in north Minneapolis.  One officer, waiting in back in case anyone came running out the door, saw two shell casings on the platform of a stairway leading to both units,including up to Mr. Milton’s back door.  This officer grabbed those shells, even though she didn’t have a search warrant.  The crime lab determined that these shell casings had been fired from the same gun that had fired to casings found at the crime scene.  Mr. Johnson eventually admitted that he had been present at the shooting but that he had not been the shooter.

A jury convicted Mr. Milton as a principal and as an accomplice of  first degree felony murder and of attempted first degree felony murder.  The trial court sentenced him to concurrent prison terms of life and 220 months.  Mr. Milton argued on appeal, as he had at trial, that the police had unlawfully seized the shell casings off his stairway.  The trial court had concluded that the officer had found the casings “in plain view” at a location where she was authorized to be.  Justice Paul Anderson, writing for a unanimous court, concludes first that the officer was in the common area of the duplex – the stairway that provided access to both levels of the duplex, including the upstairs unit – and that this common area had a diminished expectation of privacy because those areas are not subject to the exclusive control of one tenant and are utilized by tenants generally.  State v. Krech, 403 N.W.2d 634 (Minn. 1987).  Justice Anderson next answers the question, what made it readily apparent that  these shell casings incriminating in nature?  Well, the long and the short of it is:  because they are shell casings “found discarded near a multifamily residence within city limits.”  So, pretty much any shell casings that a metropolitan cop comes across can be seized without a warrant unless the accused can persuade a judge otherwise.  Shell casings “may be useful” as evidence of crime, forget about being readily apparent contraband.  Justice Anderson did provide some solace by inclusion of this footnote:

We note that our conclusion in this case is driven by the fact that Milton resides in a multifamily residence. Additionally, we do not decide whether the upper part of the stairway leading from the platform to Milton’s upper-level residential unit—on which no shell casing was found, and which may not be visible from the shared platform—is curtilage.

The police had also found two other shell casings in Mr. Milton’s truck.  Even though the state had agreed not to introduce these shell casings – the officer who had found them was dead so there was a potential confrontation problem – instead the prosecutor, in an amazing sleight of hand, told the jury in opening statement that because the officer who had searched the truck was dead the jury would not hear what the officer had found, but that they would hear another officer’s repeated confrontation of Mr.  Milton about the casings that had been found in the truck!  Well, there wasn’t any real objection to this so it’s plain error if at all. Justice Anderson concludes that no error occurred, and to cover himself also concludes that if there were error it wasn’t plain.

Finally and most significantly, Mr.. Milton complained about the aiding and abetting instructions, to which defense counsel had made no objection, so, again, it’s plain error if any at all.  Here’s the instruction on first degree felony murder:

The elements of murder in the first degree are as follows: First, the death of Dontae Johnson must be proven.

Second, the defendant or a person whom the defendant intentionally aided caused the death of Dontae Johnson.

Third, the defendant, or a person whom the defendant aided, acted with the intent to kill Dontae Johnson. To find the defendant had an intent to kill, you must find that the defendant acted with the purpose of causing death or believed that the act would have that result. Intent, being a process of the mind, is not always susceptible to proof by direct evidence. It may be inferred from the all the circumstances surrounding the event. It is not necessary that the defendant—that the defendant’s act be premeditated.

Fourth, at the time of the act causing the death of Dontae Johnson, the defendant, or a person whom the defendant aided, was engaged in the act of committing or attempting to commit the crime of aggravated robbery . . . .

This instruction is wrong because it fails to properly explain the element of “intentionally aiding” to the jury.  The instruction does not explain to the jury that Mr. Milton had to have known that his alleged accomplices were going to commit a crime, and that he intended his presence to further the commission of that crime.  This is a new requirement and so the error is neither clear nor obvious.  However:

we take this opportunity to emphasize that an accomplice liability jury instruction must explain to the jury that in order to find a defendant guilty as an accomplice, the jury must find beyond a reasonable doubt that the defendant knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime.

Here’s the instruction on the attempted murder in the first degree:

The elements of attempted murder in the first degree are, first, the defendant or another person with the defendant -- whom the defendant aided attempted to cause the death of [C.W.].

Second, the defendant acted with intent to kill [C.W.]. To find the defendant had an intent to kill, you must find that the defendant or a person whom the defendant aided acted with the purpose of causing death, or believed that the act would have that result.

Intent, being a process of the mind, is not always susceptible to proof beyond—to proof by direct evidence but may be inferred from all circumstances surrounding the event. It is not necessary that the act of the defendants or the act of the person whom he aided be premeditated.

Third, at the time of the attempt to cause the death [of] [C.W.], the defendant or a person whom he aided was engaged in the act of committing or attempting to commit the crime of aggravated robbery.

This instruction is also wrong, because it left out the “intentionally aiding” element of accomplice liability all together.  This is plain error, but id did not affect Mr. Milton’s substantial rights.

Friday Sidebar: Trampled By Turtles

Long week.

Conviction in One State That is Overturned and Dismissed on Speedy Trial Error Does Not Under State Law and Constitution Bar Prosecution and Conviction in Minnesota For Same Crimes.

State v. Castillo-Alvarez, Minn.Ct.App., 9/17/2012.  This was a particularly brutal drug murder/kidnapping, the facts of which are not all that important to the legal issues raised on appeal.  Mr. Castillo-Alvarez ordered a bunch of guys to kidnap and murder G.S.E.  These guys grabbed G.S.E. in Iowa, took him across the border into Minnesota and shot G.S.E. in the head.

Iowa got its first bite at prosecuting Mr. Castillo-Alvarez for the kidnapping and murder.  A jury over there convicted him but the Iowa appellate court threw it out for violation of his speedy trial rights.  Minnesota then hauled him into their courts and a jury convicted Mr. Castillo-Alvarez of the same crimes.

Mr. Castillo-Alvarez first argued that Minn.Stat. 609.045 prevented Minnesota from prosecuting him for crimes that he had already been convicted of across the border.  Here’s what the statute says:

If an act or omission in this state constitutes a crime under both the laws of this state and the laws of another jurisdiction, a conviction or acquittal of the crime in the other jurisdiction shall not bar prosecution for the crime in this state unless the elements of both law and fact are identical.

The court of appeals concludes that when the Iowa appellate court reversed the trial court convictions on speedy trial grounds with directions to dismiss the charges that court “erased the Iowa conviction because of the state’s speedy-trial error, and no conviction existed at the time Minnesota filed its complaint against Castillo-Alvarez.”  Had the Iowa courts reversed the convictions on evidence sufficiency grounds, the court of appeals suggests that it would have applied the statute and undertook the remaining analysis that the statute required – see that “unless the elements” end clause.

Mr. Castillo-Alvarez then made the same argument but under the Minnesota Constitution.  The court of appeals declines to construe the state constitution differently from the federal double jeopardy provision under which there is no federal violation for one state to convict an offender on the same charges that another state has also convicted that offender.  Heath v. Alabama, 474 U.S. 82 (1985). 

After the kidnapping and murder Mr. Castillo-Alvarez left for Mexico; it took a while to get him back but eventually he showed up in Houston where FBI agents interviewed him.  In keeping with FBI practice, the agents did not record that interview.  Cf., State v. Scales, 518 N.W.2d 587 (Minn. 1994).  Mr. Castillo-Alvarez argued that this statement should have been suppressed because it was not recorded.  Relying on its opinion in State v. Sanders, 743 N.W.2d 616 (Minn.Ct.App., 2008), the court continues to say that Scales does not operate beyond the state lines.  Now, it’s true that the supreme court reviewed that court of appeals opinion, but it declined to decide whether Scales applied outside the borders of Minnesota.  State v. Sanders, 775 N.W.2d 883 (Minn. 2009). You can read about that here.  That left the court of appeals decision on this question still intact.

Mr. Castillo-Alvarez made challenges to the introduction of co-conspirator statements and to the consecutive sentencing, but to no avail. 

1/3/13:  Update:  The Supreme Court has accepted review of this case.

Minimum Term of Imprisonment That Exceeds Presumptive Guidelines Range, as Part of Imposing a Mandatory CSC Life Sentence, is a Departure

State v. Rushton, Minn.Ct.App., 9/17/2012.  A grand jury returned an indictment against Mr. Rushton, charging him with two counts of first degree criminal sexual conduct and two counts of second degree criminal sexual conduct.  The grand jury also charged that Mr. Rushton was eligible for a mandatory life sentence because he is a repeat sex offender.  See Minn.Stat. 609.3455, subd. 4(a)(1).  Mr. Rushton agreed to plead guilty to one count of first degree criminal sexual conduct, which authorized the trial court to impose a life sentence.  Which is what the trial court did.  But that’s not the problem.

Now, this statute says that the court is to specify a minimum term of imprisonment that must be served before the offender may be considered for supervised release.  This minimum term of imprisonment is equal to either the mandatory minimum sentence called for in a non-life sentence situation, or the applicable sentencing guidelines.  For Mr. Rushton, that meant that the minimum term of imprisonment was 180 months, based on his criminal history score of 3.  However, the trial court set the minimum term of imprisonment at 300 months mostly because that’s what the lawyers agreed to do.

This, it turns out, is an upward departure, which required the trial court to state what the substantial and compelling reasons were to support it.  The trial court did not state any reasons for the departure other than that the parties had agreed to it.  Under State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), a plea agreement, by itself, is not a valid basis for a departure, up or down.  Nor do Mr. Rushton’s two prior sex offenses operate to justify a departure, because the legislature has already utilized those prior convictions in setting the punishment.  Can’t double dip.  Because the trial court did not articulate a valid basis for the departure, the court of appeals sends the case back for resentencing, with the minimum term of imprisonment left within the presumptive guidelines range.

Defendant Not Entitled to Heat of Passion Manslaughter Instruction

State v. Radke, Minn.S.Ct., 9/13/2012.  Mr. Radke shot and killed Mr. Buesgens, who just happened to be his father in law.  At the time, Mr. Radke’s wife, M.B., had been staying with her dad, but on the day of the shooting the couple were talking about reconciling, at least according to Mr. Radke.  Mr. Radke said that he was afraid of Mr. Buesgens and that M.B. was afraid that her dad would stop her from moving back in with him.  Mr. Radke said that Mr. Buesgens had been threatening him for some time, saying one time that he was going to “pound nails” into Mr. Radke’s head. 

Mr. Radke was over to fetch  M.B. and the kids home when Mr. Buesgens showed up.  M.B. told him to go hide in the woods.  While hiding his gun accidently discharged; he reloaded.  Mr. Buesgens came looking for who was shooting.  Mr. Radke figured it was him or his father in law so he shot  off a warning round.  Mr. Buesgens then “went to draw down” on Mr. Radke so Mr. Radke shot him.

M.B. told a different story, more supportive of her dad.  She said that she had told Mr. Radke that she had filed for divorce and was never come back.  The next thing she knew,as she and her dad were standing outside smoking, there was a gunshot from the woods.  Mr. Buesgens sent his daughter inside.  He came back outside with his gun.  M.B. heard shots and discovered her dad crawling on the ground, bloodied.  There was another shot and Mr. Buesgens went down again.  Mr. Radke came out of the woods and announced that they were leaving for Mexico, but before he could load up his guns and gear the police rolled up.

A jury convicted him of first degree premeditated murder, rejecting his claim of self defense.  Mr. Radke raised a number of issues in this combined appeal of the conviction and denial of post conviction relief.  First he claimed that he received ineffective assistance of counsel because counsel did not introduce evidence of Mr. Buesgen’s reputation for violence, which he and the local law knew about.  This evidence, he said, was crucial to his claim of self defense.

Justice Page, writing for a unanimous court, rejects this argument.  The court does not get to the question of counsel’s performance because they conclude that the state disproved one of the requirements of self defense, that Mr. Buesgens was neither the aggressor nor the provocateur:

To conclude on these facts that Buesgens was the aggressor would require us to first conclude that Buesgens, who was lawfully on his own property when a high-powered rifle was discharged less than 50 feet away, acted unreasonably in defense of himself, his daughter, and his grandchildren who were present at his house. It would also require us to ignore the fact that before Buesgens was shot the first time, Buesgens had done nothing more than retrieve a shotgun and go to the area where the rifle shot came from to try to ascertain what was going on. To the extent that, as Radke claims, Buesgens sought to bring the shotgun around to “draw down” on Radke after Buesgens had been shot the first time, Buesgens presumably was attempting to defend himself from exactly what took place next: being shot a second time. Thus, on the record before us, we can only conclude that Buesgens was not the aggressor, nor did he provoke the circumstances leading up to his being shot.

Mr. Radke also complained that the state had failed to disclose police reports of two instances of prior acts of violence by Mr. Buesgens.  However, Mr. Radke failed to establish that he knew of these incidents and that any fear he had of Mr. Buesgens was based on that knowledge.  That being the case, evidence of the two events was not admissible.  State v. Penkaty, 708 N.W.2d 185 (Minn. 2006).

Next, Mr. Radke complained that the trial court’s instructions on self defense had shifted the burden of proof to him.  This had not been raised in the trial court so the review here is for plain error.  The court concludes that there was no error.  Here’s the pertinent part of the instruction:

No crime is committed when a person takes the life of another person, even intentionally, if the defendant’s action was taken in resisting or preventing an offense the defendant reasonably believed exposed the defendant to death or great bodily harm. In order for a killing to be justified for this reason four conditions must have [sic] be met. . . . All four conditions must be met. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self defense

Mr. Radke’s claim was the part about all four conditions having to be met shifted the burden of proof to him; the court rejects this claim pointing out that the very next sentence told the jury that the state had the burden to prove that Mr. Radke had not acted in self defense.

Mr. Radke thought that he was entitled to an instruction on heat of passion manslaughter.  The argument goes something like this.  A reasonable jury could have concluded that Mr. Radke’s fear at seeing Mr. Buesgens panning a shotgun toward him clouded his reason and provoked him to shoot.  The court concluded that far from his reason being clouded he had evaluated and thought through each of his actions, especially his thought that it was either him or his father in law.

Mr. Radke made two other claims of error, one having to do with the state’s use of a suppressed statement and some misconduct during closing argument.  The court rejects these claims along with the rest. 

Consecutive Stayed Sentences that are Silent on Whether the Time on Probation is “Stacked” Is Concurrent

Pageau v. State, Minn.Ct.App., 9/10/2012.  The state charged Mr. Pageau with eight crimes, eventually cut a deal with him on three of them:  false imprisonment, criminal vehicle operation and fleeing a police officer.  The trial court imposed stayed sentences across the board.  The trial court also ran the stayed sentence for the criminal vehicle operation consecutively to the stayed sentence for false imprisonment; and ran the stayed sentence for the fleeing a police officer consecutively to the stayed sentence for false imprisonment but concurrently with the criminal vehicle operation.  Do we need a chart?  Perhaps:

Count 2:  False Imprisonment	15 months stayed, placed on probation for a period of three years.
Count 4:  criminal vehicle operation	17 months, stayed, consecutive to count 2, placed on probation for a period of three years.
Count 6:  fleeing police officer	15 months, stayed, consecutive to count 2 but concurrent with count 4, placed on probation for a period of three years.

 

Time goes by.  As the three year probation period is approaching an end probation can’t imagine that the court meant for the term of probation to be only three years; the trial court must have meant consecutive probationary terms of three years each.  Probation sends the judge a memo, complete with boxes to check on which it supposed to be.  The judge checks the box, “2 three year terms of probation” and sends it back.  Mr. Pageau cries foul, then files a post conviction petition saying that the term of probation can only be three years because the judge didn’t say anything different.

In a 2-1 opinion, (Larkin & Wright) Judge Larkin engages in an existential discussion of the difference between a “sentence,” a “probationary sentence,” and “probation,” and the polices for and against “stacked” probationary periods.  The end result is that the pronouncement of stayed consecutive sentences does not automatically result in “stacked probationary periods.”  Rather, the trial court has to say that, and has to say it at sentencing:

In summary, because existing legal authorities do not establish that stacked probationary periods automatically result when a district court pronounces a stayed sentence consecutively to another stayed sentence, and because the use of stacked probationary periods likely yields a result that is inconsistent with the traditionally recognized goal of consecutive sentencing, we hold that a district court’s pronouncement of a stayed sentence consecutively to another stayed sentence does not automatically result in stacked probationary periods. Moreover, because the rules of criminal procedure require precision when pronouncing sentence, we further hold that to impose stacked probationary periods when pronouncing a stayed sentence consecutively to another stayed sentence, a district court must specify that the probationary periods are to be stacked. In the absence of such a statement, the attendant probationary periods run simultaneously.

Now, the majority pretty much demolishes any  policies you could come up with to support consecutive periods of probation, and the authority to impose consecutive terms of probation remains up in the air.  That wasn’t really the question before the court.

Judge Schellhas dissented.  She thought that the trial court had clearly imposed consecutive terms of probation.  So, when Mr. Pageau filed his post conviction petition what he was really asking for was for a reduction in the period of probation.  Because he did so more than two years after the initial pronouncement of sentence his petition was untimely.

Felony DANCO Prosecution Requires Proof of Knowing Violation of Order

State v. Watkins, Minn.Ct.App., 9/10/2012.  The district court issued a Domestic Abuse No Contact Order (DANCO) but misspelled the name of the protected person and listed an incorrect date of birth.  Thereafter, Mr. Watkins telephoned the protected person and sent her a Valentine’s greeting.  The state charged him with felony violations of the DANCO.

The DANCO statute differentiates between misdemeanor, gross misdemeanor and felony offenses.  The misdemeanor violation  just said that the defendant “violates the order,” but both the gross misdemeanor and the felony offenses say that the defendant “knowingly violates” the misdemeanor provision with the requisite prior convictions.  When the trial court instructed the jury on Mr. Watkins’ felony charges it did not charge the jury that Mr. Watkins had to knowingly violate the order.  The court of appeals concludes that this was plain error, relying on its decision from just a short while ago that came to the same conclusion about the  different violations possible of the harassment restraining order.  State v. Gunderson 812 N.W.2d 156 (Minn.Ct.App. 2012).  See here.

The court also concludes that the error affected Mr. Watkins’ substantial rights and that a new trial was required “to ensure the fairness and integrity of the judicial proceedings.

The name misspelling and incorrect date of birth, however, are deemed to be clerical errors and do not support Mr. Watkins’ claim that the evidence against him was insufficient.

He gets a new trial.

Do Not Resuscitate Order is Not a Sufficient Superseding Event to Relieve Vehicular Homicide Defendant of Culpability.

State v. Smith, Minn.Ct.App., 9/4/2012.  A jury convicted Mr. Smith of criminal vehicular homicide and criminal vehicular operation.  Mr. Smith, driving drunk, collided with another car in which a ninety-three year old was a passenger.  As a result of her injuries she came down with pneumonia, which required intubation to breathe.  However, her no not resuscitate order prevented doctors from ordering the intubation procedure and she died. 

Mr. Smith argued that the no not resuscitate order was a superseding event rendered the evidence of the collision insufficient to prove that he caused the death of the passenger.  The court of appeals rejects this argument and affirms the conviction.  Evidence supported the conclusion that Mr. Smith caused the death because he caused the collision which was a substantial factor in the death.  He also argued that the do not resuscitate order acted as an intervening, superseding cause, that it was an “intervention of an efficient independent force in which [Smith] did not participate or which he could not reasonably have foreseen.  An intervening cause must satisfy these four conditions:

1) Its harmful effects must have occurred after the original negligence; 2) it must not have been brought about by the original negligence; 3) it must have actively worked to bring about a result which would not otherwise have followed from the original negligence; and 4) it must not have been reasonably foreseeable by the original wrongdoer.

The court of appeals concludes that Mr. Smith cannot satisfy the last condition, that it is foreseeable that this ninety-three year old would prefer death over a medical intervention that might still leave her with a poor quality of life.

Dissemination of Child Pornography Requires Proof that Defendant Knew that He Was Disseminating Child Pornography

State v. McCauley, Minn.Ct.App., 9/4/2012.  A jury convicted Mr. McCauley of two counts of dissemination of child pornography, and twenty-two counts of possession of child pornography.  The computer police were surfing LimeWire, looking for users on that site who may be sharing contraband files, like porn.  Eventually, the computer police linked the computer that was sharing porn to Mr. McCauley’s wife, out in Plymouth.  Officers executed a search warrant on the McCauley’s computer.  They also questioned Mr. McCauley, who admitted that he enjoyed downloading adult pornography from LimeWire but sometimes he inadvertently got juvenile pornography instead.  He said that he immediately deleted those files.  A forensic examination of the hard drive found evidence of two juvenile pornography files that had been on the drive but since removed or deleted, and evidence of other contraband files as well. 

The main issue that Mr. McCauley raised on appeal was whether the dissemination and actual possession of child pornography are strict liability offenses.  The statute, Minn.Stat.617.247, in pertinent part says:

Subd. 3. Dissemination prohibited. (a) A person who disseminates pornographic work to an adult or a minor, knowing or with reason to know its content and character, is guilty of a felony . . . .
. . . .
Subd. 4. Possession prohibited. (a) A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system . . . containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony . . . .

 

On the possession counts, the court of appeals rejects Mr. McCauley’s argument that these are strick liability offenses.  Rather, the statute, itself, requires that the possessor know or have reason to know the content and character of the item possessed.  On the dissemination counts, however, it’s a  different story.  The state has to prove, in addition to the knowledge requirement, that Mr. McCauley knew that he was disseminating child pornography.  Alas, however, because he did not object to this omission from the jury instructions, under plain error review he gets no relief.  He does, however, get two possession convictions vacated because they are lesser included offenses of the dissemination offenses.

Judge Residing Out of District is “de facto” Judge, Authorized to Preside Over Trial.

State v. Irby, Minn.Ct.App., 9/4/2012.  A jury convicted Mr. Irby of second degree assault, first degree burglary and prohibited possession of a firearm.  The trial court permitted the state to impeach Mr. Irby with two prior felony convictions.  During the jury charge, the trial court locked the courtroom doors, first giving those already in attendance the chance to scurry out.  Last, it turned out that during the trial the judge was not actually living in the judicial district, something for which the judicial standards board suspended her.

The state constitution requires that a judge of a district be a resident of that district at the time of selection and during her continuance in office.  The constitution also says that the office “shall become vacant” the minute the judge ceases to be an inhabitant of the district.  Seems straight forward enough, but the court of appeals cuts the judge some slack by concluding that she was a de facto judge.  That is, she was functioning as a judge even though her authority to do so was “procedurally defective.  This seems a likely candidate for review by the supreme court.

As to the impeachment issue, the court of appeals concludes that the trial court did not abuse her discretion is ruling that the impeachment could occur. 

As to locking the court room doors during the jury charge, the supreme court recently addressed this practice and found it okay.  State v. Brown, 815 N.W.2d 609 (Minn. 2012).  See here.