No Criminal Opinions, but the Court Chases the Grim Reaper

The court issued no criminal opinions today.  It did, however, grant review of a court of appeals "Order Opinion," State v. Burrell.  When you get to the link, scroll down to the bottom and click on "Opinion - Order Opinion".  

You should know that Mr. Burrell is dead; he died after he was convicted of aggravated forgery but before the court of appeals could rule on his appeal.  (Lest you're wondering, this appears to be Mr. Burrell's one and only felony conviction.)  Upon learning of Mr. Burrell's passing, his appellate attorney moved to undo the whole thing, filing a "motion for abatement ab initio."  If granted, it would nullify the whole thing, including the conviction.  

The court of appeals has taken umbrage with this notion, suggesting that it tramples on "victim's rights."  So, the court denied the abatement motion and dismissed the appeal, effectively leaving the conviction intact.  Now the supreme court has taken up the issue, reaching down into poor Mr. Burrell's very coffin to decide what to do with that conviction.  

Prosecutorial Errors Result in Dismissal of Indictment.

State v. Troy Martin, Minn.Ct.App., 12/24/2012.  This is a challenge to a grand jury indictment of Troy Martin for the homicide of his sister.  The court of appeals concludes that the prosecutor’s errors in presenting the case to the grand jury and the grand jury’s exposure to inadmissible evidence tainted the indictment and undermined the independence of the grand jury.  The court of appeals orders the dismissal of the indictment.

Police found Leisa Martin’s body back in 1998.  The investigation focused on Todd Martin but the investigation went no where until January 2010 when Todd Martin more of less accused Troy Martin of killing Leisa.  The prosecutor convened a grand jury, which indicted both Martins.  According to the court of appeals there were numerous mistakes made along the road to indictment, which resulted in the order to dismiss the indictment.

Waiving a Knife While Demanding Money Suffices for Terroristic Threats

State v. Smith, Minn.Ct.App., 12/24/2012.  Mr. Smith and his buddy, Mr. Hicks, Jr., gave their cousins, D.W. and U.H. a ride back to D.W.’s apartment.  Mr. Smith began to argue with D.W. about money as they walked into D.W.’s apartment.  Inside, they continued to argue.  Mr. Hicks kicked D.W. in the leg, then waived a pocket knife in front of D.W. and demanded money.  D.W. called 911; Mr. Smith knocked the phone out of his hand but D.W. fetched the phone and resumed his 911 call.  Mr. Smith gave up and that point and left.  Among other charges, the state charged Mr. Smith with terroristic threats.

The “threat” in “terroristic threats” must be to commit a future crime of violence which would terrorize a victim.  State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996).  So, Mr. Smith said that his “threat” was to commit an immediate act of violence.  The appellate court disagreed; the statute covers both the act of waiving the knife at D.W. while demanding money as well as his future assault of D.W.  Mr. Smith also argued that his waiving of the knife was only “transitory anger,” which is not proscribed by the terroristic threats statute.  The court summarily dismisses this claim without any real analysis. 

The court did say that admitting evidence that Mr. Smith had a box cutter two days later when police arrested him was a mistake, but it was harmless error.

Friday Sidebar: Robert Crais

Mr. Crais is the author of the Elvis Cole/Joe Pike suspense novels.  Mr. Crais grew up in Louisiana, on the banks of the Mississippi River.  He’s also written scripts for the television shows, Hill Street Blues, Cagney & Lacey and Miama Vice.  His web page is here.  The First Rule was published in 2010, and is the thirteenth in the Cole/Pike series.  His web page lists them in order.

No Published Criminal Opinions, But a Very Bad Day For Dogs

There were no published criminal opinions issued today by the Minnesota Supreme Court.  It was a bad day for dogs, however.

Sawh v. City of Lino Lakes, Minn.S.Ct., 12/19/2012.  Mr. Sawh has a dog, Brody, or, at least he has a dog for a few more days anyway.  Brody first bit a neighbor.  This got Brody tagged as “potentially dangerous,” but it didn’t mean anything beyond the label.  Six months later, Brody again bit someone, twice.  This got Brody tagged as “dangerous” and also made him subject to removal from the city; Mr. Sawh appealed this designation to the city council.  The council held a hearing and put Brody on a pretty short leash – probation.  The very next day Brody violated probation by biting the furniture delivery guy.  That was it for the city which ordered that Brody be put down.

Mr. Sawh appealed this order as well to the city council.  The council again held a hearing, and upheld the destruction order.  Mr. Sawh sought review in the courts by writ of certiorari saying that the city had deprived him of a property interest without due process.  The court of appeals thought that the city should have given Mr. Sawh a hearing on the “potentially dangerous” designation.  Writing for the Court, however, Justice Stras disagreed.  This designation did not interfere in any way with Mr. Sawh’s possession and enjoinment of Brody and so there was no “process” due.  On the other hand, the “dangerous” designation and the probationary sentence imposed upon Brody did interfere with Mr. Sawh’s property interest in his dog and so there was some “process” due.

But not a lot.  The court employs the three factors from Matthews v. Eldridge, 424 U.S. 319 (1976).  The first factor is the private interest that will be affected by the official action.  Mr. Sawh’s property interest is not measured in sentimentality but in dollars:  Brody’s fair market value:

[W]hile animal owners have considerable sentimental attachment to their pets, Minnesota law treats an animal like any other item of tangible personal property. See Corn, 179 Minn. at 492, 229 N.W. at 870. Given that treatment, Sawh’s protected property interest at stake in this case is not nearly as substantial as the property interests that we have recognized in other contexts.

The second factor looks at the risk of an erroneous deprivation of a protected interest.  It turns out that it would be just about impossible for the city to err in deciding whether Brody lives or dies.  That’s because the council needed only to find that the animal control officer had previously declared Brody to be “potentially dangerous” and to have provided Mr. Sawh notice of that declaration.  The council did not have to decide whether that designation was correct.  The risk of erroneously putting Brody down doesn’t have to be faced.  If animal control made the “potentially dangerous” designation and gave Mr. Sawh written notice of it, then the subsequent designation of “dangerous” is an automatic. 

The third factor is the government’s interest, in this case, ensuring the health and safety of its citizens.  Brody hasn’t done too well in the community.  The court upholds the city’s order to put Brody down.

Instructing Jury That It Must Reach a Verdict Is Reversible Error, Entitling Appellant to New Trial

State v. Olsen, Minn.Ct.App., 12/17/2012.  “Get back in your room,” the judge howled, “And don’t come out until you’ve a verdict!”  A jury convicted Mr. Olsen of criminal sexual conduct in the first degree.  After deliberating a while, the jury sent out a note informing everyone that it had reached an “impasse” and asking how they should continue.  That’s when the judge let loose:

Members of the jury, I received your note from . . . your foreperson. “We have reached an impasse, how should we continue.” I have discussed that with counsel as well as Mr. Olsen. How should you continue? You should continue. I don’t believe you have deliberated long enough and I’m going to send you back to continue your deliberations reminding you of the instructions I gave you. And I’ll remind you once again you are the finders of fact. There are twelve of you and you are to make a decision on this. It’s what I have discussed with counsel, and this is being done with their approval as well but it’s ultimately my call. Back to the room. If you go into the noon hour give us a half hour, forty-five minutes to get you something to eat.

(Emphasis in original.) 

A court can neither inform a jury that a case must be decided, nor allow a jury to believe that a deadlock is not an available option.  State v. Jones, 556 N.W.2d 903 (Minn. 1996).  To do so is reversible error.  That’s what the judge did here so Mr. Olsen gets a new trial.

Reliance, Even Just a Bit, on Immigration Consequences to Support Durational Departure Is Abuse of Discretion

State v. Peter, Minn.Ct.App., 12/17/2012.  Mr. Peter is a lawful permanent resident from Liberia.  The state charged Mr. Peter with burglary in the third degree for breaking into the Moorhead Habitat for Humanity.  He pled guilty.  At sentencing, he asked the trial court to sentence him to 360 days in jail instead of the Guidelines sentence of one year and one day.  (You can see where the Court is going when it describes the Guidelines sentence as “366 days’ imprisonment.”)  Mr. Peter asked the court to do this because if given the presumptive sentence the feds would likely deport him.  The court granted the departure motion.

The state appealed, saying that immigration consequences are not sentencing factors and thus can never support a departure.  Meantime, the trial court issued a sentencing memorandum in which the court said that the departure was also justified because of Mr. Peter’s age, family status, lack of a felony record, and his opportunity to find meaningful employment and education with the felony conviction.

The court of appeals reverses the trial court, relying in large part of a 2002 opinion, State v. Mendoza, 638 N.W.2d 480 (Minn.Ct.App., 2002), review denied, (Minn. 2002).  Mendoza relies on the “collateral consequence” dichotomy to conclude that consideration of possible deportation is not a valid consideration in deciding whether to depart from the guidelines.  Whether Mendoza survives Padilla is an open question.  The court of appeals also thought that consideration of immigration consequences gave “alien burglars” a leg up over “citizen burglars.”  The rationale also carried the risk that the same facts before two different judges could result if different sentences based on the judge’s views on immigration, a disparity that the Guidelines seeks to avoid.  Lastly, reliance on immigration consequences focuses on the offender rather than than on his offense.  Offender related factors don’t support durational departures.  State v. Chaklos, 528 N.W.2d 225 (Minn. 1995).

Which gets back to this “366 days” business.  The court of appeals observes that sentencing a felony as a gross misdemeanor is a durational departure, not a dispositional departure.  State v. Bauerly, 520 N.W.2d 760 (Minn.Ct.App., 1994).  Factors like age, lack of record, etc., are offender based and thus not appropriately considered for a durational departure.

Friday Sidebar: Star Trek Into Darkness

No Published Supreme Court Criminal Opinions

12/12/2012:  The Minnesota Supreme did not issue any published criminal opinions today.

Trooper Had Reasonable, Articulable Suspicion to Require Driver to Get Out of Car and Submit to Field Sobriety Tests

State v. Klamar, Minn.Ct.App., 12/10/2012.  At about one in the morning a state trooper saw a car that was stopped on the right shoulder of Interstate 94.  The trooper pulled up behind the parked vehicle at which point he saw the passenger vomiting from the open door.  Ms. Klamar was not the passenger.   Somewhat incredulously, the trooper testified that when he approached the passenger door he smelled not vomit but booze “emanating from the vehicle.”  The trooper, still on the passenger side, asked Mr. Klamar what the problem was; she told him, one hopes politely, that her friend was throwing up.  The trooper claimed that he could see that Ms. Klamar’s eyes were bloodshot and watery.  He asked her if she’d had anything to drink.  “One drink.” she said.  With that, the trooper demanded that Ms. Klamar get out of the car and approach the trooper’s vehicle.

The trooper then had Ms. Klamar perform field sobriety tests, on which she did “poorly.”  He then gave her a preliminary breath test on which she blew a .122.  The trooper arrested her and the state charged her with driving while impaired.  Ms. Klamar moved to dismiss the charge, saying that the trooper didn’t have a reasonable, articulable suspicion of criminal activity to expand the “welfare check” into a sobriety check.  The trial court dismissed the case and the state took an appeal.

The court of appeals agreed with the trial court that the trooper seized Ms. Klamar when he ordered her to get out of her car and come over to the trooper’s squad car.  See State v. Day, 461 N.W.2d 404 (Minn.Ct.App. 1990).  So, was the seizure constitutionally reasonable?  Now, the trial court found that the trooper was not a credible witness, especially when he said he could see Ms. Klamar’s bloodshot, watery eyes from the passenger side of the car, even though he did not shine a flashlight on her.  The court of appeals deferred to that finding but pointed out that the trial court did not specifically discredit the trooper’s testimony that he smelled alcohol “emanating from the vehicle.”  With these additional facts the court of appeals concludes that the trooper could reasonably conclude that driving while impaired was going on:

Klamar was seated in the driver’s seat of a vehicle that was stopped on the shoulder of an interstate at approximately 1:00 a.m., there was one passenger in the vehicle, there was a strong odor of alcohol emanating from the vehicle, the source of the odor was unknown, and Klamar admitted that she had consumed “one drink.”

The Minnesota Supreme Court held way back in 2005 that a generalized odor of alcohol emanating from a vehicle did not create a particularized suspicion of criminal activity – in that case, open bottle - to seize the driver.  State v. Burbach, 706 N.W.2d 484 (Minn. 2005).  Didn’t matter.  Even if it did, there’s always the fall back:  Pennsylvania v. Mimms, 434 U.S. 106 (1977), that says that officer safety supports the removal of the driver from a lawfully stopped car.  Of course, here, to get to Mimms, the court had to plow through Burbach; otherwise, they don’t have a lawful seizure. 

Having got Ms. Klamar lawfully out of the car it’s easy enough to justify requiring her to submit to the field sobriety tests, not as an extension of the initial stop, but because the trooper (again, for the first time?) smelled alcohol “emanating from Klkamar,” and because her eyes were bloodshot and watery.  Trial court reversed.

Felony Nonsupport Statute Refers to Monetary Obligations Only

State v. Nelson, Minn.Ct.App., 12/10/2010.  Mr. Nelson was ordered to pay support for his two kids.  He was supposed to pay $315.00 each month but he had managed only one payment of about forty bucks.  So, the state charged him with felony failure to provide care and support.  He said he should get credit for the companionship, supervision and emotional care that he provided for his kids, but both the trial court and the court of appeals said, no.

Here’s what the statute says:

Whoever is legally obligated to provide care and support to a spouse or child, whether or not the child’s custody has been granted to another, and knowingly omits and fails to do so is guilty of a misdemeanor, and upon conviction may be sentenced to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both.

The court concludes that “care and support” is only about the money.  Hug your kids all you want but it cuts no slack when you’re in the dock.  Not only that, since it’s only the money that counts, waiting up all hours for your daughter to get home from a date is totally inadmissible evidence.

Earth at Night

New images from a NASA-NOVA satellite reveal the earth at night as never seen before.  Click the photo for more spectacular photos, including an interactive map.

No Published Criminal Opinions But Two Grants of Further Review

State v. Rick, Minn.S.Ct., 12/5/2012.  The Supreme Court granted further review of this case today.  I wrote about it here.  It has something to do with the  “knowing transfer of communicable disease” statute.

State v. Castillo-Alvarez, Minn.S.Ct., 12/5/2012.  The Court also granted further review of this case.  I wrote about it here.  Here’s the gist of the problem:

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.

Court Reverses E.J.J. Certification by De Facto De Novo Review

In the Matter of the Welfare of P.C.T., Minn.Ct.App., 12/3/2012.  As P.C.T. was standing next to his cousin, someone killed  him.  P.C.T. perhaps knew who did the deed – the Opinion is coy about that – and he may have put together  a posse to go after the killer.  In any event he and his posse allegedly went on a drive-by shooting spree, which accomplished nothing except to get himself charged with six counts of aiding and abetting attempted second degree murder for the benefit of a gang.  

At the time, P.C.T. was on juvenile probation.  He’d been going to school, working the program although not consistently.  He’d never been in a residential treatment program.  The state wanted to certify P.C.T. as an adult but the juvenile court decided to keep P.C.T. under juvenile jurisdiction E.J.J. status.  Neither the state nor the court of appeals liked that decision.  The state appealed and the court of appeals reversed the juvenile court in a snarky, rather hostile opinion.

Retaining a juvenile in juvenile court must serve public safety.  The legislature says that the juvenile court has to consider six factors:

(1) the seriousness of the alleged offense; (2) the culpability of the child in committing the alleged offense; (3) the child’s prior record of delinquency; (4) the child’s programming history; (5) the adequacy of punishment or programming available in the juvenile system; and (6) the dispositional options available for the child.

Some factors – (1) and (3) - are more equal than others.  The juvenile court found that these two factors – as well as the third one -  weighed in favor of certification, while the remaining factors weighed in favor of retaining jurisdiction.  The court of appeals went off on the fourth factor, disagreeing with the juvenile court:

Having failed to achieve a reliable and consistently positive outcome in any of the programming respondent has tried so far, we are not inclined to agree with the district court that the public safety will be served by placing respondent in yet another juvenile delinquency program.

And this:

It is telling that respondent has hardly darkened the doorstep of a school or participated in online schooling in more than a year, except for his schooling at the juvenile detention center while being held for these charges.

The court of appeals also disagreed that the fifth factor supported retaining jurisdiction:

While [the probation officer who did the certification study] conceded that sending respondent to the adult correctional system would ensure public safety, her testimony did not offer an equivalently promising assessment of the public safety benefits of residential placement in the juvenile system.   Bach’s conclusion that EJJ provides a better public safety outcome is speculative at best, especially since respondent has never been placed in residential treatment.

The court of appeals substituted its view of the case for that of the juvenile court judge.  Instead of reviewing for abuse of discretion the court engaged in a de novo review:

By making public safety the predominant concern, the statute assures the public that an offender as dangerous as the respondent will not be shooting up another neighborhood anytime soon. He should be certified to stand trial as an adult.