One Unlawful Entry Supports Only One Burglary Charge, Even When There are Multiple Assaults

State v. Beane, Minn.Ct.App., 12/30/2013.  Don’t look a gift horse in the mouth.  F.E. and Mr. Beane returned after a party to F.E.’s apartment, 202.  One surmises that an amorous evening may have been anticipated, but things didn’t turn out that way.  Instead, Mr. Beane assaulted F.E. She fled to a neighbor’s apartment, # 204.  Mr. Beane broke into that neighbor’s apartment and continued the assault on F.E., and threatened to kill one of the other occupants of # 204, J.S.  F.E. fled the neighbor’s apartment and returned to her own place.  Mr. Beane pursued her there as well and renewed the attack one last time (and threatened to kill everyone as well.)

Now, follow this.  The state charged Mr. Beane with two counts of first degree burglary, with the assaults of F.E. and J.S. as the underlying crimes.  That is, the state focused on Mr. Beane’s behavior over in apartment 204.  (There was an additional domestic assault charge of F.E., over in her apartment, 202, but no matter.) 

The state did not charge Mr. Beane with a separate burglary of F.E.’s place, when he pursued F.E. from apartment 204 back to apartment 202 and renewed his assault on her. 

The jury convicted him of both burglaries on the state’s theory of one entrance followed by two assaults supports two burglaries.  Now, for sure, Mr. Beane could be charged with and convicted of first degree burglary and the underlying assaults.  Minn.Stat. 609.035; State v. Holmes, 778 N.W.2d 336 (Minn. 2010).  But, this does not mean that Mr. Beane could be convicted of two burglaries just because he assaulted two people.  Chief Judge Cleary says that the supreme court said just that back in 1986, State v. Hodges, 386 N.W.2d 709 (Minn. 1986):

[T]he burglarious entry of one dwelling should justify only one burglary conviction. Under this approach, the commission of other crimes, such as assault or robbery, against the occupants of a dwelling after entry is made may be additionally punished with convictions and sentences on the basis of one extra conviction and sentence per victim of the other crimes, but only one burglary conviction would be allowed.

Back to the gift horse.  There’s this ominous footnote:

We observe that under Hodges, Beane could have been charged with an additional count of assault for each individual he assaulted in K.B.’s apartment. We also note that the multiple-victim exception may have supported additional assault charges for each of the victims he attacked or threatened while in F.E.’s apartment, and that those assaults were apparently aggravated by the presence of children.  Additionally, Beane’s pursuit of F.E. back into her own apartment could potentially have supported a first –degree -burglary charge because this second entry was undoubtedly made without F.E.’s consent, and because the facts support the conclusion that Beane committed additional crimes against additional victims after this unconsented entry.

Now, on remand, Mr. Beane can’t receive an aggregate sentence more onerous than the original aggregate sentence.  But it’s not all that clear whether the state can go back and pick up all those other potential charges so nicely delineated in that footnote that have never been lodged against Mr. Beane.

Accomplice Liability Jury Instruction Survives Challenge; Murder Conviction Upheld

State v. Bahtuoh, Minn.S.Ct., 12/26/2013.  A jury convicted Mr. Bahtuoh of multiple offenses and the district court sentenced him to life with possibility of release for first degree felony murder while committing a drive-by shooting for the benefit of a gang.  Mr. Bahtuoh drove a Mr. McGee over to a Mr. Parker’s residence.  Mr. Bahtuoh called out for Mr. Parker and as Mr. Parker approached the car Mr. McGee shot him multiple times.  The state’s theory of liability was that Mr. Bahtuoh was both a principal and an accomplice.  The state’s proof, however, only established Mr. Bahtuoh’s accomplice liability.

Justice Stras affirms the conviction and sentence, rejecting a number of legal challenges along the way.  The court concluded that there was sufficient circumstantial evidence to support the conviction, under the two-step rubric the court adopted a few years back in State v. Anderson, 789 N.W.2d 227 (Minn. 2010).  

This gets to the heart of the case, which was the instruction on accomplice liability.  Justice Stras first poses the question incorrectly by asking whether the district court misstated that law.  Well, the district court did; no one really took issue with that.  The real question was how to put a square peg into a round hole.  With some gymnastics worthy of Cirque du Solei the justice finds a way to do just that.

Some five years ago the court announced what the state had to prove: that a defendant knew that his alleged accomplices were going to commit a crime, and that a defendant intended his presence or actions to further the commission of that crime.  State v.Mahkuk, 736 N.W.2d 675 (Minn. 2007).  No one, apparently read that opinion because just last year the court had to repeat the requirements in State v. Milton, 821 N.W.2d 789 (Minn. 2012).

Even so, the district court told Mr. Bahtuoh’s jury that he had to have intentionally aided, advised, etc., the other person – Mr. McGee – to commit the murder.  Further, the district court told the jury that Mr. Bahtuoh had to have voluntarily associated himself with the “criminal venture”, do something to help this criminal venture succeed.  And, the court told the jury that Mr. Bahtuoh’s presence at the crime scene was enough “if it is done intentionally and if it also aids or encourages the commission of the crime to any degree.”  Under this instruction, Mr. Bahtuoh’s intentional presence with Mr. McGee is enough for accomplice liability even if that presence only unwittingly aided or encouraged the commission of the crime.

Justice Stras was able to get out of this conundrum by saying that two wrongs make it right.  This is because the trial court also told the jury – incorrectly - that whether acting alone or intentionally aiding and abetting another Mr. Bahtuoh had to have acted with intent to kill Mr. Parker.  By trying to combine an instruction on both principal and accomplice liability the trial court totally botched both, but that’s apparently okay.  Somewhere in there – when the court looks at the instructions “as a whole” - can be discerned the necessary word fragments which, when rearranged years after the trial, recite the correct law.  Law by cryptogram.

Mr. Bahtuoh also complained that his trial attorney provided ineffective assistance of counsel by telling the jury repeatedly during opening statement that Mr. Bahtuoh would testify, but then he didn’t testify.  It turns out that so long as defense counsel can show that during his opening statement he reasonably expected his client to testify it’s not ineffective then not to put him up on the stand.  And – there’s more – when your client has already sung to both the police and the grand jury, well, where’s there not a reasonable expectation of yet another performance to the petit jury?

Shooting Deer From a Deer Blind Is “Pursuing” Deer For Which A Hunter Needs a License

State v. Schmid, Minn.Ct.App., 12/23/2013.  Every so often the court of appeals pursues the finer nuances of deer hunting.  Last time out it had something to do with pumpkins.  Read here.  This go round it’s about stalking.

A game warden found Mr. Schmid in a deer blind in a deer-hunting area during deer hunting season.  He was dressed in blaze orange clothing.  He was armed with a shotgun loaded with deer slugs.  He was not in possession of a license to hunt deer.  He said that he didn’t need a license because hanging out in a deer blind was not “pursuing” game without a license, which is what the statute prohibits.

Actually, the statute, Minn.Stat. 97B.301, subd. 1 says that you can’t “take deer without a license.”  As lawyers are wont to do, “taking” is a defined term with a laundry list of meanings:  pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, netting, and attempting to do all those things.  Mr. Schmid’s pursuit of the meaning of “pursuing” was to say that it meant, when hunting deer, a foot chase, never mind that most likely very few, if any, humans can run long enough at forty miles an hour through thick and thicker after a deer – never mind about all that, he said hanging out in the deer blind didn’t count. 

On the way to rejecting this interpretation the court of appeals perused what is apparently seven centuries of the development of the “nuanced verb” of pursuing.  Thomas Jefferson said that we should “pursue” happiness.  Athletes “pursue” championships.  A “young romantic” – they don’t say anything about “not so young” romantics - “pursues” a mate.  A police officer “pursues” both her career and a suspect.  A game bird hunter pursues birds by having a dog flush the birds out in the open to be shot at by, one presumes, a stationary marksman.  Turkey hunters, it turns out, have their own “nuanced” pursuit of turkeys.  First you creep up on the flock, then run into the middle yelling and whooping.  The turkeys flee in pursuit of their lives.  The hunter then settles in to await their return so as to shoot them when they do.  And so on.

Mr. Schmid was “pursuing” deer.  Pay the fine.

12/18/2013: No Published Supreme Court Criminal Opinions

12/16/2013: No Court of Appeals Published Criminal Opinions

Petitioner Not Entitled to Post Conviction on Basis of Newly Discovered Evidence

Miles v. State, Minn.S.Ct., 12/11/2013.  Mr. Miles just can’t catch a break.  Back a while ago he filed his third post conviction petition, which he supported with an un-notarized statement from a significant witness, the gist of which could be characterized as new evidence.  The courts threw out the petition because this statement wasn’t a sworn affidavit.  Miles v. State, 800 N.W.2d 778 (Minn. 2011).

So, Mr. Miles went back and got the statement notarized and filed another post conviction petition.  The now notarized statement put the murder for which Mr. Miles had been convicted and on which he is serving time an another fellow.  The post conviction court first determined that this petition was not time barred because it met the limitations exception for newly discovered evidence.  Minn.Stat. 590.01, subd. 4(b)(2).  The post conviction court held an evidentiary hearing, after which it denied the petition.  The court found the testimony of the guy who provided the now notarized statement to be “poppycock,” applying the Rainer v. State, 566 N.W.2d 692 (Minn. 1997), test for granting a new trial on the basis of new evidence. 

The Rainer test requires that petitioner prove he is entitled to relief by only a fair preponderance of the evidence.  The state argued that the burden of proof should be “clear and convincing,” borrowing from the limitations provision in Chapter 590.  Chief Justice Gildea sides with the trial court on this one and says that the Rainer standard controls.  Applying that analysis the court upholds the post conviction court’s denial of the petition.

Court Declines to Stay Appeal From Denial of Post Conviction Petition in Order to Permit Pursuit of Second Post Conviction Petition

Frisch v. State, Minn.Ct.App., 12/9/2013.  Mr. Frisch has been trying to appeal his conviction for gross misdemeanor driving while impaired.  He filed an untimely notice of appeal, which the court of appeals promptly threw out.  Mr. Frisch then filed a post conviction petition, saying that the state presented insufficient evidence and that the trial court had erroneously instructed the jury.  The post conviction court promptly threw that out.  Mr. Frisch appealed that dismissal, on time this time.  Right before his appellate brief was due he asked the court of appeals to stay that appeal so that he could go back and file a second post conviction petition in which he wanted to say that his trial attorney had been ineffective in botching both the direct appeal and the first post conviction petition.

Mr. Frisch thought that there was a rule for that, Minn.R.Crim.P. 28.02, subd. 4(4).  That rule says that you can ask the appellate court to stay the appeal so that you can go back to the trial court and commence a post conviction petition.

The court of appeals reads this rule to apply to litigants who are still pursuing a direct appeal.  The court concludes that the rule does not permit a post conviction litigant to stay an appeal of the denial of a post conviction petition in order to go back and commence a second one.

Just why Mr. Frisch’s position is different from that presented in Barnes v. State ,768 N.W.2d 359 (Minn. 2009), isn’t clear since it didn’t come up.  After Barnes lost a post conviction petition, which he handled pro se, he appealed and then hired counsel.  His attorney – okay, it was me -  then asked the supreme court to stay the appeal so that he could return to the post conviction court either to seek reconsideration of the initial petition or to file a second one.  The supreme court granted that stay and let Mr. Barnes go back and slug it out some more in the post conviction court.  Although Barnes only asked for reconsideration the stay had been granted for both purposes.

Untimely Service Upon State Public Defender, in State Sentencing Appeal, of Notice of Appeal Defeats Court’s Jurisdiction to Hear Appeal

State v. McKinney, Minn.Ct.App., 12/9/2013.  Mr. McKinney pleaded guilty to domestic assault by strangulation and got a stayed sentence.  The state appealed the sentence because they thought that Mr. McKinney had a higher criminal history score and should have gone to prison.  Because the state screwed up the procedural steps required for such an appeal, the court of appeals dismissed it.

Specifically, the state failed to serve the notice of appeal on the state public defender.  The court of appeals determined that such service is jurisdictional.  Because the state was three days late in serving the notice on the state public defender, the court of appeals had no jurisdiction to her the appeal.

Obstructing Legal Process Requires Proof of–Well–Obstructing “Process”

State v. Pederson, Minn.Ct.App., 12/9/2013.  The state charged Ms. Pederson with fourth degree assault of a peace officer, and with obstructing legal process.  Here’s what was going on.  The cops were at Ms. Pederson’s place on a report, apparently from a neighbor, of loud yelling.  Ms. Pederson answered the door when the officers knocked on it and stepped out into the hallway.  She tried to shut the door but an officer put his foot in the doorway to prevent it.  Ms. Pederson was apparently intoxicated, upset, and she had a bit of blood on her finger.  She told the cops that she was home alone but the officers could hear “loud rustling” – a dog perhaps? – from inside the apartment so they tried to go inside.  Ms. Pederson tried to block their entry and she got into it with the officers.  One officer managed to get into the apartment; the other one fared not so well.  In the scuffle Ms. Pederson kicked the other officer in the head, behind the ear.

On appeal from her convictions of these two gross misdemeanors Ms. Pederson argued that the state’s evidence was insufficient to support those convictions.  She said that the kick to the officer’s head was just as likely an accident, an alternative rational hypothesis.  The court of appeals wasn’t buying that argument and affirmed that conviction.

On the obstructing charge, Ms. Pederson said that she did not commit conduct prohibited by subdivision (1) of that statute.  That subdivision requires proof that she “obstructs, hinders, or prevents the lawful execution of any legal process, civil or criminal, or apprehension of another on a charge or conviction of a criminal offense.”  Minn.Stat. 609.50, subd. 1(1).  The trial court had found her guilty under this subdivision because of her conduct of continuing “to fight, grab, and physically obstruct [the officers’] entry into her apartment with her body.” 

The court focuses in on “process,” both “legal process” – like serving a subpoena – and the “process” of apprehending someone.  Just being a pain in the ass doesn’t make it “obstruction” under subdivision 1(1).  When Ms. Pederson assaulted the officer, the police weren’t serving process on her or another, there was no legal action pending, and they were not attempting (yet) to arrest her or another.  Ms. Pederson may have made the cops’ job more difficult, but she wasn’t “obstructing” any “process”. 

Omission of Instruction on Element of Offense is Subject to Prejudice Review, Which on These Facts, Entitles Defendant to New Trial

State v. Watkins, Minn.S.Ct., 12/4/2013.  In this role reversal of an Opinion, with the conservatives seemingly ruling in the defendant's favor and the lone moderate ruling against him, all is not what it seems.  In fact, this is a pernicious Opinion in which Justice Dietzen throws a bone to the defense by generously interpreting an element of an offense that no longer exists.  The court says that the "knowingly violates" element of felony violation of a DANCO - an element now removed from the statute - requires proof of subjective knowledge. 

The district court issued a Domestic Abuse No Contact Order (DANCO) in favor of Mr. Watkins’ girlfriend but the clerk 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.

Mr. Watkins served up a defense against the charge by saying that because of the misspelling of his girlfriend’s name and the incorrect date of birth he didn't really know that he could neither call up his girlfriend nor send her a Valentine's Day card.  The trial judge neglected to instruct the jury that it  had to find that Mr. Watkins "knowingly violated" the DANCO.  The jury convicted him just the same.

The court of appeals reversed that conviction and granted Mr. Watkins a new trial.  That court said that the omission of an instruction on an element of the crime was a structural error that entitled Mr. Watkins to a new trial – a structural error that required no further analysis.  Read about that here.  Justice Dietzen, writing for five members of the court, gave Mr. Watkins his new trial but not for the reasons articulated by the court of appeals.  Justice Dietzen said that the omission of a jury instruction on an element of the offense was a mere “trial error” subject to a prejudice review. 

Justice Page dissents, saying that "knowingly violates" is an objective standard.  He attempts to support that assertion by citing to dicta in a footnote in a case that held that violation of an order for protection can't be the underlying crime on which to support a burglary conviction.  State v. Colvin, 645 N.W.2d 449 (Minn. 2002).  In the course of explaining that holding, the Court dropped in this footnote:

This is not to say that the state’s proof of each offense is complete upon showing evidence of the illegal entry because, as the court of appeals noted, as to the OFP violation, the state must also prove that a valid OFP existed, and that defendant knew of it.

 

 

 

Impoundment of Vehicle For Revoked License Registration, Revoked Plates, and No Insurance Lawful Where Driver Does Not Ask to Make Her Own Towing Arrangements

State v. Rohde, Minn.Ct.App., 12/2/2013.  Police stopped Ms. Rohde’s car on suspicion that she was carrying narcotics.  The officers stopped her after observing a signaling violation.  Ms. Rohde stopped on a two way residential street; the car did not impede traffic, violate any parking laws, or block access to any business or residence on the street.  However, the vehicle’s registration and license plates were revoked and the vehicle had no insurance.  The officers were apparently content with issuing her a citation for these infractions, at least, until they searched the car before having it towed.

Officers conducted an inventory search and found narcotics.  Ms. Rohde challenged the legitimacy of the impoundment and the inventory search.  The court of appeals concluded that under state law the car could not remain on the pubic roadway with revoked license plates and no insurance, so the impoundment was lawful.  Because the impoundment was lawful the inventory search exception permitted the officers to search the vehicle according to its standard procedures for doing so.

Ms. Rohde neglected to inquire if she might make her own arrangements to have the car towed.  The police, however, have no duty to remind her of her apparent right to do this.  See State v. Gauster, 752 N.W.2d 496 (Minn. 2008). 

Removing Package From Airport Sorting Conveyor is a Seizure. Dog Sniff of Package Required a Reasonable Articulable Suspicion

State v. Eichers, Minn.Ct.App., 12/2/2013.  Officer Meyer works in something called the Airport Police Narcotics Interdiction Unit out at the airport.  A package coming through the UPS sorting station caught his eye, initially because it was coming from Phoenix, next day air.  He pulled the package off the conveyor belt to get a better look at it.  This only aroused his suspicions even more.  He found that:

1. The package was shipped from Phoenix, AZ. This is a source city and state for narcotics. 2. Your affiant has found narcotics shipped through UPS from Phoenix many times in the past. 3. The package was sent via [A]ir [S]ervice. Drug couriers use the Air Service because the narcotics will be in the system a shorter time. Air service is very expensive and usually done only by companies. 4. The package appears to be sent from person to person, no company’s involved. All of these characteristics are consistent with previous packages that your affiant has found to contain illegal substances.

Officer Meyer then put the package in a room with twenty or so other packages and had his narcotics dog, Brio, sniff around.  Brio alerted only to this particular package.  With this information, the officer obtained a search warrant and then found a bunch of dope:  cocaine and meth.  When UPS delivered the package to Mr. Eichers, police arrested him.

Mr. Eicher moved to suppress evidence of the narcotics.  He made several arguments.  First, he said that the officer had seized the package by removing it from the airport conveyor belt for a brief visual inspection.  The court of appeals rejects this argument, relying in part on an Eighth Circuit opinion, United States v. Terriques, 319 F.3d 1051 (8th Cir. 2003), which held that merely removing a package from an airport conveyor belt for a brief visual inspection was not a “seizure.”  Mr. Eicher next argued that the officer did seize the package when he put the package in the room with all those other packages and had Brio sniff around.  Mr. Eicher wins this argument; this was a seizure that had to be supported by a reasonable articulable suspicion.

Mr. Eicher argued that this dog sniff was a search that required reasonable articulable suspicion.  Again, he wins this argument.  Alas, though, he does not prevail on his claim that the officer lacked this reasonable articulable suspicion for the reasons recited up above. 

Judge Ross concurred in the result, although he didn’t say that explicitly.  He did not believe that the federal constitution required Officer Meyer to have a reasonable articulable suspicion that the package contained contraband in order to put the package in the room with all those other packages in order to perform the dog sniffing test.  And, he didn’t believe that the officer needed a reasonable articulable suspicion to perform the dog sniffing test.  In fact, he didn’t think that whatever the dog did was a search at all, state court opinions to the contrary.  Covering the bases, he opined that even if whatever the dog did was, indeed, a search, then Mr. Eicher had no reasonable expectation of privacy in the package anyway, again, federal court opinions to the contrary.  In a post 9/11 world, Judge Ross thought that as soon as anyone let go of anything that may find its way onto or into an airplane the government can have its way with it.

Judge Hudson dissented.  The judge concluded that the officer did not have a reasonable articulable suspicion for the dog sniff of the package.  Sending a package next day air, and sending it from Phoenix amounted to nothing more than a hunch.

Look for the Supreme Court to take this case if anyone asks.

Staying One Sentence and Executing Another Concurrent Sentence, Where Two Sentences Are Permitted, Is No Abuse of Discretion

Wells v. State, Minn.Ct.App., 12/2/2013.  Mr. Wells believed that D.B. had sexually assaulted his daughter.  One morning, Mr. Wells went looking for D.B. over at E.B.’s place.  E.B. said he didn’t know where D.B. was – which apparently wasn’t true – which Mr. Wells didn’t believe so he took a baseball bat to E.B.

A jury convicted Mr. Wells of first degree burglary, first degree assault and second degree assault.  The top counts – burglary & assault one – called for 48 and 86 months in prison.  The trial court imposed these two sentences, but stayed execution of the 86 month sentence on the first degree assault, a departure.  The trial court justified the departure based on what’s known as the Trog, factors – State v. Trog, 323 N.W.2d 28 (Minn. 1982) - Mr. Wells’ age, lack of criminal record, his cooperation, his respect for the court, and the support of his family.

Mr. Wells argued on appeal that if there was a basis for departure on the assault conviction then that same basis required a departure on the burglary conviction.  That’s because, he said, a dispositional departure is supposed to be based on “the defendant as an individual and [focuses] on whether the presumptive sentence would be best for him and for society.”  State v. Heywood, 338 N.W.2d 243 (Minn. 1983).  The problem with this argument, however, is that the very year after Heywood, the court said that the trial court could impose a stayed sentence for one crime and a concurrent executed sentence for another crime (assuming that two sentences are permitted by statute or under the Guidelines).  State v. Petrin, 354 N.W.2d 578 (Minn.Ct.App. 1984).  The court also concluded that nothing in Trog required an all or nothing approach to a departure, in which case there was no abuse of discretion in this instance in staying one sentence and executing the other concurrent sentence.

11/27/2013: No Published Supreme Court Criminal Opinions; Review Granted in One Case Which Presents Search Question

State v. McMurray, Minn.Ct.App., 9/16/2013, review granted, 11/27/2013.  Police searched Mr. McMurray's trash, and found some meth.  They bootstrapped that finding into a search warrant for Mr. McMurray's house, where they found more meth.  Mr. McMurray moved to suppress the evidence found inside the house, arguing that the Minnesota Constitution provides more of a reasonable expectation of privacy in one's trash than does the Fourth Amendment.  If so, then the meth found in the trash could not be used to support the search warrant for the house.  Mr. McMurray also raised ineffective assistance of counsel for the way in which trial counsel handled the stipulated facts trial; and he complained about the employment of a stipulated facts trial in this case.

11/25/2013: No Published Court of Appeals Criminal Opinions

Retrial Violated Double Jeopardy, But Error Does Not Warrant New Trial

State v. Chavarria-Cruz, Minn.S.Ct., 11/20/2013.  A jury acquitted Mr. Chavarria-Cruz of first degree premeditated murder for the benefit of a gang, but found him guilty of the lesser-included offense of second degree intentional murder for the benefit of a gang.  The Supreme Court reversed that conviction and sentence because Mr. Chavarria-Cruz’s right to counsel had been violated.  Read about that here.  On remand, a second grand jury indicted Mr. Chavarria-Cruz on first degree felony murder for the benefit of a gang and second degree intentional murder for the benefit of a gang.  Mr. Chavarria-Cruz moved to dismiss the felony murder charge; he said that this charge violated double jeopardy because of his acquittal of the first degree premeditated murder charge.  The trial court denied that motion and a jury convicted him of both counts.  The trial court imposed sentence on the second degree murder verdict and imposed the same sentence as imposed after the first trial.

Justice G. Barry Anderson agreed that double jeopardy precluded prosecuting Mr. Chavarria-Cruz  with first degree felony murder for the benefit of a gang.  The trial court had said that so long as any punishment from convictions in the second trial did not exceed the punishment imposed in the first trial there were no jeopardy concerns.  Justice Anderson said that this was incorrect because double jeopardy is not limited just to punishment.  Rather, it also concerns itself with multiple prosecutions.  Because the trial court’s analysis was incorrect, the supreme court reversed the denial of Mr. Chavarria-Cruz’s pretrial motion to dismiss the first degree felony murder charge.  In doing so, the court also criticized the state for not simply retrying Mr. Chavarria-Cruz on the remaining second degree murder charge.

Mr. Chavarria-Cruz is not, however, entitled to a new trial.  The test to be applied where there’s been a double jeopardy violation is whether there is a reasonable probability that Mr. Chavarria-Cruz would not have been convicted of the non-jeopardy-barred offense (the second degree intentional murder)  absent the present of the jeopardy-barred offense (the first degree felony murder).  Morris v. Mathews, 475 U.S. 237 (1986).

Justice Page agreed that Mr. Chavarria-Cruz was not entitled to a new trial.  However, he thought that the court’s analysis should have included a statutory analysis in addition to a constitutional one.  He concluded that both Minn.Stat 609.04 and 609.035 precluded a subsequent prosecution for the first degree felony murder charge.  He then applied a harmless error analysis to conclude that this error did not entitle Mr. Chavarria-Cruz to a new trial.

Justice Page also believed that the trial court had convicted and adjudicated Mr. Chavarria-Cruz of both counts, but only sentenced him on the second degree murder court.  That’s exactly what the court had previously said it could not do because it  had no discretion to ignore the mandated life without parole sentence under the first degree murder statute.  State v. Chambers, 589 N.W.2d 466 (Minn. 1999).  Justice Page recently dissented from an identical judicial sleight of hand when the court upheld the very same Mr. Chambers’ juvenile mandatory life without parole sentence, a sentence imposed under a clearly unconstitutional sentencing scheme.  See Miller v. Alabama. Read about that here.

No Right to Have Plea Agreement Accepted

State v. Klug, Minn.St.App., 11/18/2013.  The state charged Mr. Klug with two misdemeanors:  domestic assault and violation of a harassment restraining order.  Over the next year the two sides talked every now and then about settlement but eventually time ran out and the jury panel was standing around out in the hallway.  Both sides got serious at that point.  The state offered to dismiss one charge in exchange for a plea to the other.  Mr. Klug accepted that deal but the trial court would have none of it.  The judge told Mr. Klug he could either plead guilty to both misdemeanors or go to trial.  The judge was annoyed – not sure with whom – about the “effect of eleventh-hour negotiations on citizens [standing in the hall] who have cleared their calendars only to find that their service [was] not needed …”  Mr. Klug then entered a guilty plea to one of the charges and an Alford plea to the other.

On appeal, Mr. Klug complained that the trial court had abused its discretion by declining to accept the plea agreement reached on the morning of trial.  He said that he didn’t know of the judge’s policy of not accepting any plea agreement on the day of trial, but that had he known he would have come in the previous day and cut the deal.  Further, he said that he had a right to keep on negotiating right up to and including the day of trial.

The court of appeals rejects all of these claims.  The court says that there is no “right” to have a plea agreement accepted, on the day of trial or any other time.  Indeed, Rule 15.04, subd. 3(2) says only that the court may accept a plea agreement when the interest of justice would be served.  The rule goes on to list a bunch of factors that would be appropriate to consider in determining whether to accept a plea; the court fits the perceived inconvenience of the jury pool into the “efficient administration of justice” factor.  Ignorance of the court’s policy of no deals on trial day also didn’t cut it either. 

Mr. Klug also complained that he should have been permitted to withdraw the Alford plea because there was an inadequate factual basis for the plea.  Unwittingly or not, this framing of the issue seems to cut the legs out from under the rationale of Alford, that the sweet deal that accompanies an “I’m innocent!” guilty plea makes the whole thing make sense.  For Mr. Alford, against whom the state had strong evidence, “his interests require[d] entry of a guilty plea” because it avoided a possible death sentence.  On the other hand, Mr. Klug appears to have got nothing for his guilty pleas – the opinion does not say what the sentences were – that was not achievable by trial.  Neither the parties nor the court acknowledges this and, instead, focuses on the adequacy of a factual record to support the plea.  Efficiency, it seems, trumps logical jurisprudence.

11/13/13: No Published Supreme Court Criminal Opinions

11/12/13: No Published Court of Appeals Criminal Opinions

Court Rejects Establishment Clause Challenge to “Clergy Sexual Conduct” Statute

State v. Wenthe, Minn.S.Ct., 11/6/2013.  This is the “clergy sexual conduct” case in which Mr. Wenthe made both a facial and an as applied constitutional challenge to the statute.  The court of appeals had reversed the conviction, read here for a factual summary and that court’s assessment.  They had done so because the state, despite promises not to do so, had introduced a lot of evidence regarding church doctrine.  The court of appeals concluded that all this evidence invited the jury to convict Mr. Wenthe on the basis of his violation of church doctrine rather than violation of the criminal law.  This amounted to an “as applied” violation of the Establishment Clause.

Chief Justice Gildea reverses the court of appeals, rejecting both facial and as applied challenges.  The court returns the case back to the court of appeals to take up various other trial errors that the court of appeals had not addressed. 

Justices Dietzen and Wright took no part.  Justice G. Barry Anderson concurred in the opinion in order to write about the state’s apparent violation of the agreement not to introduce a bunch of evidence – indeed, the parties had agreed to “stay totally away from” – about church doctrine.  Justice Page dissented, reminding everyone that in the previous Opinion on this subject, State v. Bussmann, 741 N.W.2d 79 (Minn. 2007) he had concluded that the statute was unconstitutional on its face and as applied.  And he still thought so.

Special Interrogatory Should Have Been Given to Jury on Aggravating Factor of Possession of Firearm While Committing a 609.11 Subd. 5(a) Offense But Error Was Harmless

State v. Essex, Minn.Ct.App., 11/4/2013.  On his first day as chief judge of the court of appeals Judge Cleary hands down this opinion that examines two evidence sufficiency claims and a Blakely error.  Mr. Essex was drinking at his local bar; after the fifth or so “strong alcoholic” drink, he got “loud and boisterous.”  The bartender thought he’d had enough, gave him his bar tab and told him to hit the road.  Mr. Essex stormed out of the bar, then he banged on the large front window, apparently to get the bartender’s attention.  Which it did, because she testified that she then saw Mr. Essex point at her head as though he had a gun and say “boom, boom” before leaving.

Only to return later after closing.  Being a regular and all, the bartender testified that Mr. Essex knew that she was usually alone at closing time.  Instead, the bar’s owner’s son was helping out.  Mr. Essex now had a holster with a gun partway out of it.  The owner’s son went out to greet Mr. Essex.  When the bartender yelled to the owner’s son that Mr. Essex had a gun, the owner’s son grabbed Mr. Essex’s arms.  The bartender then grabbed the gun and took it inside the bar.

The state charged Mr. Essex with attempted second degree assault and with possessing a firearm in a public place while under the influence of alcohol.  (There were some other charges but the jury acquitted Mr. Essex of them.)  The jury convicted him of these two charges.  The trial court imposed an executed sentence of one year and a day, under the provision of Minn.Stat. 609.11, subd. 5(a).  This statute says that if a defendant possesses, uses or otherwise employs a firearm in committing a bunch of listed offenses (including attempted second degree assault) the presumptive sentence is commitment to prison.

The court makes fairly short work of the two evidence sufficiency claims.  Returning to the bar after hours, strapped with a firearm, along with all her other behavior, established both that Mr. Essex had the intent to commit second degree assault and that he took a “substantial step” toward committing that offense.  The possession of a firearm in a public place while under the influence of alcohol is a bit closer call when you know that Mr. Essex had a concussion.  The court rather glibly rejects the claim that the behaviors that Mr. Essex exhibited – slurred speech, bloodshot and watery eyes, poor balance – could have been caused by the head injury rather than intoxication. 

On the sentencing issue, the court says that the trial court should have submitted a special interrogatory to the jury on the aggravating factor of possession, etc. of a firearm while committing attempted second degree assault.  This error, the court concludes, was harmless error.

Two Year Limitations Provision For Post Conviction Petitions is Not Jurisdictional

Hooper v. State, Minn.S.Ct., 10/30/2013.  This is Mr. Hooper’s third petition for post conviction relief.  He alleged the discovery of new evidence which entitled him to a new trial.  He filed this petition well after expiration of the two year limitations period.  The state argued to the post conviction court that this untimeliness required the court to dismiss the petition.  The post conviction court concluded, however, that one of Mr. Hooper’s claims – an alleged confession to the crime by another person – was not time barred.  The post conviction court heard evidence on parts of the petition and eventually denied it in its entirety.

On appeal, the state did not argue the limitations provision and thus arguably abandoned it.  Brocks v. State, 753 N.W.2d 762 (Minn. 2008).  To Justice Stras, however, this omission by the state raised the question whether the limitations provision of Minn.Stat. 590.01, Subd. 4(a) was jurisdictional or an affirmative defense that the state may waive.  The court decides, as it had when considering the same question about Subd. 4(c), that the limitations provision is not jurisdictional and is therefore subject to waiver.  The remedies in the post conviction statute, rather than purely statutory creations that were unknown at common law, are either codifications of or replacements for preexisting remedies, including common law writs of habeas corpus and coram nobis.  In general, limitations provisions deprive courts of subject matter jurisdiction only when the claim is a purely statutory claim.

The court then addressed the merits of Mr. Hooper’s claims and concluded that the post conviction court had not abused its discretion in its various rulings and denial of relief.  Justice Stras again raises, but does not resolve, an issue that has been lurking since passage of the 2005 amendments to the post conviction statute:  Do the Knaffla exceptions – a defendant presents a novel legal issue, or the interests of justice require the court to consider the claim – survive passage of the 2005 amendments.  Knaffla bars consideration of claims that were raised in the direct appeal, all claims of which a defendant knew or should have known at the time of the direct appeal, and claims that were raised or could have been raised in a previous post conviction petition.  The statutory language passed in 2005 only applies to grounds that could have been raised on direct appeal and makes no mention of the Knaffla exceptions.  At a minimum, Justice Stras concludes that the statute does not apply to claims that were raised or could have been raised only in a previous post conviction petition. 

10/28/2013: No Published Court of Appeals Criminal Opinions

Court Concludes Under Totality of Circumstances that Driver “Consented” to Alcohol Testing

State v. Brooks, Minn.S.Ct., 10/23/2013.  Three times, police stopped Mr. Brooks on suspicion of driving while intoxicated.  In each instance officers read the implied consent advisory to him and provided him with the opportunity to consult with counsel.  In each instance, Mr. Brooks eventually submitted to testing, urine twice and blood once.  In each instance, Mr. Brooks moved to suppress the results of the tests because police had taken the samples without a warrant.  In two of the cases the trial court denied the suppression motion, relying upon the “single factor exigency” rationale of State v. Netland, 762 N.W.2d 202 (Minn. 2009).  In the third case, the trial court denied the suppression motion because it concluded that Mr. Brooks had consented to the test.

While all this was going on the U.S. Supreme Court decided McNeeley, which among other things threw out Chief Justice Gildea’s “single factor exigency” Netland opinion and adopted a “totality of the circumstances” fact specific approach in its stead.  The Chief Justice gets a redo with Mr. Brooks.

And hones in on “consent”.  Writing an Opinion for five members of the court – including Justice Lillehaug – the Chief Justice concludes that Mr. Brooks was not coerced into “consenting” to the tests.  (Justice Wright did not participate.)  The court is not finding “consent” based upon the implied consent statute; rather, it is looking at the “totality of the circumstances” on the ground. These circumstances included:  Police had probable cause to believe that he had been driving under the influence.  They followed the proper procedures under the implied consent law.  Police read Mr. Brooks the advisory “which makes clear that drivers have a choice of whether to submit to testing.”  Police gave Mr. Brooks a telephone and time to use it to chat up his attorney.  All these things support the conclusion that the police did not overcome Mr. Brooks’ capacity for self-determination.

The court does reject Mr. Brooks’ assertion that his “consent” was invalidly coerced because the police advised him that it was a crime to refuse the tests.  The court insists that Mr. Brooks had choices - take the test or not – because the police were required to honor that choice, unlike a search warrant where there really is no choice, or “consenting” to a warrantless search in the face of a boatload of armed and screaming officers.  The cops also had to inform Mr. Brooks that he could refuse the testing and allow him to consult with an attorney before deciding. 

Justice Stras joined in the judgment but disavowed the opinion.  Justice Stras pointed to Prideaux v. State, 310 Minn. 405, 247 N.W.2d 385 (1976), which said “the obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing …”  He also observed that the court had said this even before it was a crime to refuse.   Now, Justice Stras hints that he has a “secret” theory of consent that the majority might have considered but presumably he now doesn’t have to disclose his secret.

The Justice thought all of this angst about “consent” could have been set aside for another day by concluding instead that when the cops stopped Mr. Brooks each time Netland was the law of the state on which the cops were entitled to rely.  Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419 (2011).  The Justice was attempting to coerce the court to adopt the Leon good faith exception to the exclusionary rule; he got no votes for that push. 

10/21/2013: No Published Court of Appeals Criminal Opinions Today

10/16/2013: No Published Criminal Opinions Today

Court of Appeals Leaves Unanswered the Question Whether a Pretrial Waiver of Right to Appeal is Enforceable

State v. Cubas, Minn.Ct.App., 10/15/2013.  Back in 2004 Mr. Cubas pled guilty to third degree sale of a controlled substance.  The plea agreement called for a dispositional departure – no prison – and release pending sentencing.  Mr. Cubas also agreed not to challenge an anticipated custody point on his Guidelines worksheet.  Mr. Cubas did not appear for sentencing and the trial court issued a bench warrant.  It was not until this past April that the authorities arrested him on that bench warrant.

At his sentencing hearing, but before pronouncement of sentence, Mr. Cubas moved to withdraw his guilty plea.  Full Disclosure:  I represented him at this sentencing hearing (but not the appeal).  Mr. Cubas argued that the waiver ran afoul of due process under the rationale of Spann v. State, 704 N.W.2d 486 (Minn. 2005), and that such a waiver was invalid as a matter of public policy.  The remedy, he argued, was to allow Mr. Cubas to withdraw his guilty plea and then either stand trial or negotiate a valid, enforceable plea agreement.  The state agreed that the waiver under the 2004 plea agreement was invalid and unenforceable, but thought that allowing him to withdraw his plea after all these years would result in significant prejudice to the state.  That’s because the drug evidence had been destroyed, and because witnesses’ memories had likely faded in the intervening years.  Because no one argued otherwise, the trial court said that the waiver was unenforceable and that the remedy was to allow withdrawal of the plea.  The court granted the motion “in the interest of justice.”

The state appealed.  And reversed and remanded.   Now, a request to withdraw a guilty plea that is made before sentencing may be granted at the court’s discretion if it is “fair and just to do so.”  Rule 15.05, subd. 2.  The court of appeals couldn’t get over the trial court’s use of the phrase “in the interest of justice” because that language isn’t in the rule.  The rule requires consideration of both the reasons advanced to withdraw the plea and the potential prejudice to the state if the request is granted.  Kim v. State, 434 N.W.2d 263 (Minn. 1989).  Moreover, the court of appeals said – even absolutely no one argued this - that the  “rationale” of Spann does not mandate plea withdrawal “in this case,” although the policy considerations from Spann may be relevant to a Rule 15.02, subd. 2 determination.  (So, whether waivers of appeal rights before trial are enforceable remains an unanswered question.)  But, the trial court has to consider not only the reasons advanced by Mr. Cubas to be allowed to withdraw the plea but also consider potential prejudice to the prosecution.  Because the trial court didn’t do that, the court of appeals reverses and sends the case back to the trial court for that determination.

A “Stipulated Facts” Trial on Stipulated Evidence With Conflicting Versions of Events Morphs Into a Bench Trial On Stipulated Evidence Notwithstanding Different Waiver Requirements; No Ineffective Assistance of Counsel For Pulling This Off.

Dereje v. State, Minn.S.Ct., 10/9/2013.  This comes up – and gets its comeuppance – from the court of appeals.  Read here.  It’s the latest go round in the mess within Rule 26.01 – court trials, trials on stipulated facts, dispositive motions – and the attendant requirements for each (never mind what to call these things).  The court has now come full circle.  After complaining repeatedly – read here, here, and here - about lawyers' inability to keep the myriad non-jury trial alternatives straight – especially the different rights required to be waived for each - it turns out it doesn't really matter after all.

Mr. Dereje thought he was signing up for a stipulated facts trial, so he waived not only his right to a trial by jury but he also waived a bunch of other rights as well:  his right to have prosecution witnesses testify and then confront those witnesses, his right to testify, and his right to compel the testimony of favorable witnesses.  The lawyers gave the judge the Complaint and the police reports (and then apparently went home) but the reports contained not one but two completely opposite accounts of the alleged facts:  the alleged victim said (not too convincingly) that Mr. Dereje had sexually groped her; Mr. Dereje said, no, he didn’t.  The trial court looked at all that and then made findings of fact to support convicting Mr. Dereje.  That sounds closer to a trial (sort of) without a jury, which only requires (at a minimum) a waiver of the right to a jury trial. 

The court of appeals had concluded that you can’t have a stipulated facts trial when the parties don’t agree what those facts are.  Nonetheless, this error was harmless because Mr. Dereje’s waiver of all of his rights – not just to a jury – converted the thing into a “valid bench trial based on stipulated evidence.”  Justice G. Barry Anderson, joined on this issue by Chief Justice Gildea, and Justices Dietzen, Stras and Wright, (Lillehaug still not participating), agreed with this determination.  Justice Anderson thought that this is so because Mr. Dereje waived all of his rights, and the trial court made sufficient findings of fact from the stipulated evidence.

The court of appeals had also concluded that Mr. Dereje had received ineffective assistance of counsel, which the court said was a structural error because counsel had “entirely failed to subject the prosecution’s case to meaningful adversarial testing.”  Justice Anderson (without Justice Wright)  rejects this conclusion.  After all, defense counsel submitted police reports with Mr. Dereje’s account of events.  How much more advocacy do you want?  Instead of either remanding back to the trial court for a Strickland  deficient performance/prejudice analysis (or doing it themselves) the majority just ignores Strickland entirely.

Justice Wright does not; she performs that analysis, as well as the structural error analysis, in her dissent, in which Justice Page joins.  Justice Wright concluded that counsel’s performance was a structural error that entitled Mr. Dereje to a new trial without a showing of prejudice.  She said that counsel had “abdicated” his role as an advocate.    Because the only accuser against his client did not testify and was thus not subject to cross examination –curiously, the justice does not question counsel’s advice to Mr. Dereje to permit this –counsel’s only remaining tool was his mouth:  bring to the trial judge’s attention “important facts bearing on [the alleged victim’s] credibility.  Instead, counsel remained mute.  In short, counsel “uttered not one word of advocacy on behalf of his client.” 

To cover the waterfront, Justice Wright went on to conclude – for the same reasons - that counsel’s performance also met the Strickland standard as well. 

Justice Page also dissented.  Although he joined Justice Wright’s dissent in which she concluded that it was okay to convert a stipulated facts trial into a bench trial on stipulated evidence, he, nonetheless didn’t like it because of the differing waivers associated with these two procedures.  Justice Page concluded that Mr. Dereje’s waivers to one thing – a stipulated facts trial – did not validly carry over to a totally different thing – a court trial on stipulated evidence.  Justice Page thought that Mr. Dereje was entitled to a new trial for this reason.  Justice Page also believed that Mr. Dereje had received ineffective assistance of counsel – both structural and Strickland which also entitled him to a new trial.  Justice Wright joined this dissent.

Life Without Parole for Aggravated Criminal Sexual Conduct Violates Neither Federal or State Constitutional Prohibitions of Disproportionate Sentencing

State v. Juarez, Minn.S.Ct., 10/2/2013.  A grand jury indicted Mr. Juarez for attempted first degree criminal sexual conduct, second degree criminal sexual conduct, kidnapping, and third degree assault.  Following a court trial, the judge found him guilty of all four counts.  The trial court then found that Mr. Juarez had a qualifying prior sex offense conviction and that his his current conviction for second degree criminal sexual conduct included a “heinous element,” whereupon the court imposed a sentence of life with possibility of parole.  On appeal, Mr. Juarez argued that the life without sentence violated both the federal and state constitutions.  He also argued that the the trial court was wrong to find the “heinous element – moving a victim some two hundred feet into a confined and isolated alleyway.

After his sexual advances toward S.M. were rebuffed inside a bar in Wilmar, Mr. Juarez accosted S.M. outside the bar, dragged her by the arm some two hundred feet across a parking lot and to the back end of a narrow alley between two buildings.  There he assaulted her, attempted to have sex with her, ripped her clothing and grabbed her breasts and genital area.  S.M.’s friends showed up, causing Mr. Juarez to flee.

Justice Dietzen, in a unanimous Opinion, rejected both of Mr. Juarez’s arguments.  The court examined the circumstances of Mr. Juarez’s case in deciding his federal eighth amendment challenge that the sentence was unconstitutionally excessive.  The court concluded that a comparison of the sentence with the gravity of his offense does not support an inference of gross disproportionality.  The court reaches the same conclusion under its analysis of the Minnesota Constitution, which requires a finding that the sentence is either cruel or unusual.  The court concludes that it is neither.

On the second argument – the existence of a “heinous element” -  the court determined that removing S.M. some two hundred feet was not completely incidental to the sexual assault and was thus a proper basis on which to find the heinous element.  The court also rejected the argument that the state was required to reintroduce its evidence in support of the heinous element rather than rely upon its evidence on this factor that came in during the guilt/innocence part of the trial.  The court did emphasize that the trial court had been the fact finder, not a jury; and that the state had filed a memorandum in advance of the sentencing hearing that had put Mr. Juarez on notice of the state’s intent to rely upon trial evidence to prove up the heinous element.

No Abuse of Discretion in Denying Post Conviction Petition Based on Claim of Newly Discovered Evidence.

Torres v. State, Minn.S.Ct., 10/2/2013.  I represented Mr. Torres at the evidentiary hearing on this post conviction petition, although I did not draft the petition and I did not represent him on appeal.

Mr. Torres is serving a life sentence for a first degree felony murder conviction.  The jury did acquit Mr. Torres of first degree premeditated murder.  A co-defendant, Tracy Sailor, cut a deal with the state which obligated him to testify against Mr. Torres.  Mr. Sailor claimed that it was Mr. Torres who actually slit the victim’s throat.  A third co-defendant didn’t see the homicidal act.  At trial, the state introduced Mr. Torres’ Scales statement in which he blamed this third co-defendant.

Mr. Torres and a woman who is identified in the Opinion as “R.T.” hatched a plan whereby R.T. would strike up first a pen pal relationship with Mr. Sailor to be followed by telephone calls between the two.  R.T. pretended to be a student who was writing a research paper, and she also pretended to be romantically interested in Mr. Sailor.  Eventually, both in some of the letters and in recorded phone calls, Mr. Sailor made some admittedly coded admissions that it was, indeed, he who had slit the victim’s throat, and that he had blamed Mr. Torres in order to get his deal.  (Other letters, most notably the first and last ones, maintained that it was Mr. Torres who had actually killed the victim.)  These letters and telephone calls – recordings and transcripts – were introduced at the evidentiary hearing.  Mr. Sailor testified and flipped the roles of R.T. and himself upside down.  Mr. Sailor said that he was just glad for the letters and phone calls and that he was telling R.T. what he thought she wanted to hear – albeit guardedly – just to keep things going.

The post conviction court and Justice Wright (Lillehaug still not participating) concluded that Mr. Sailor’s coded admissions were not reliable in the face of his trial testimony and his repudiation of these coded admissions that he made to R.T. 

No Abuse of Discretion in Excluding Hearsay Declaration Against Interest Offered in Post Conviction Hearing; No Authority under Rules to Appoint Advisory Counsel in Post Conviction Hearing.

Dobbins, Sr., v. State, Minn.S.Ct., 10/2/2013.  In this post conviction appeal the court takes up two questions, one having to do with declarations against interest and the other having to do with appointment of advisory counsel in post conviction proceedings.  Mr. Dobbins is serving a life sentence for a premeditated murder conviction.  The state’s main witness was a Mr. King, who testified that he saw Mr. Dobbins shoot the victim.  Mr. Dobbins, on the other hand, had testified that it was Mr. King who shot the victim.

After his conviction and sentence, Mr. Dobbins filed a post conviction petition alleging that Mr. King had confessed to a Mr. Harris that he had, indeed, shot the victim.  The post conviction court summarily denied the petition, but the supreme court reversed and remanded for an evidentiary hearing.  Read about that here.  At this hearing, however, Mr. King could not be found so Mr. Dobbins was left with the testimony of Mr. Harris.  The state objected to Mr. Harris reciting what Mr. King said to him.  The post conviction court agreed, excluded the hearsay and denied the petition.

Justice Stras, Lillehaug still not taking part, affirmed the post conviction court.  Justice Stras first took up the hearsay question under Rule 804(b)(3) – declaration against interest – and went through the factors that he wrote about in Ferguson v. State to measure the “corroborating circumstances” that the rule requires.  He found Mr. King’s purported statements lacking in this corroboration.

Mr. Dobbins had requested advisory counsel to assist him at the evidentiary hearing.  Justice Stras says that Rule 5.04, subdivision 2 of the criminal rules allows for the appointment of advisory counsel only to a person who has an underlying right to counsel that has been waived.  Here, Mr. Dobbins has no such right to counsel because he had been represented by counsel on his direct appeal.  The court also declined to exercise its supervisory authority to impose such a requirement.

A Defendant’s Death While His Conviction is on Appeal as of Right Requires Vacating that Conviction

State v. Burrell, Minn.S.Ct., 10/2/2013.  This case presents the question: If a defendant dies while he is appealing his conviction does that conviction remain on the books, or does death wipe out the conviction?  In an unpublished Opinion the court of appeals said that the conviction stays on the books with no further opportunity to challenge that conviction.  Four members of the supreme court, lead by Chief Justice Gildea, say, no, Mr. Burrell’s death during the pendency of a direct appeal as of right erases the conviction.  (Justices Wright and Lillehaug took no part.)  Indeed, every federal court of appeals that has considered the question has come to the same conclusion.  Most of the states have also said the same thing.

Not good enough for Justice Dietzen who dissented.  He says that death is a cop out.  If the deceased defendant’s survivors feel all that strongly that the trial court conviction came about through reversible error, then substitute one of them in as the surrogate defendant and press on with the appeal.

The majority does say that a restitution award survives against the estate of the deceased defendant.

9/30/2013: No Published Court of Appeals Criminal Opinions

An unpublished opinion, State v. Final Exit Network, Inc., et.al., Minn.Ct.App., 9/30/2013, is noteworthy.  The Opinion made today's papers, deals with "assisted suicide" prosecutions under 609.215.  Here's the Opinion's headnote:

Minn. Stat. § 609.215’s criminalization of speech that “advises” and “encourages” another in taking the other’s life infringes on protected speech and is facially overbroad.

And the concluding paragraph:

In sum, the provisions in Minn. Stat. § 609.215 criminalizing speech intentionally advising or encouraging another in taking the other’s own life are unconstitutional infringements on protected speech. However, the record contains sufficient evidence to establish a reasonable probability that each respondent violated the undisputedly constitutional prohibition on assisting suicide. Accordingly, the district court did not err
by denying respondents’ motions to dismiss the indictments.

District Court Has the Authority to Extend the Term of Restitution Up to Statutory Maximum For Failure to Pay Restitution

State v. Barrientos, Minn.S.Ct., 9/25/2013.  Ms. Barrientos pleaded guilty to second degree burglary, which carries a statutory maximum sentence of ten years.  The district court stayed execution of sentence and placed Ms. Barrientos on probation for five years.  Among other conditions, the court ordered her to pay some twenty grand in restitution.  As the five year mark approached, Ms. Barrientos had not paid much of the restitution so the state asked the court to extend her probation to the maximum allowed, ten years.  At first, the district court granted that request but then thought better of it, concluding that Minn.Stat. 609.135, subd. 2(g) limited such an extension to two one year extensions.  The state appealed this ruling, but the court of appeals upheld the district court.

The Supreme Court, Justice Wright writing for a five member majority (Justice Lillehaug not participating and Justice Page dissenting), overturns the court of appeals.  Justice Wright said that Minn.Stat. 609.135, grants the district court broad powers over the length and terms of probation.  Indeed, the only limitation on the trial judge under subdivision 1a is that the term of probation cannot exceed the statutory maximum sentence.  Subdivision 1a addresses the case of a defendant who has failed to pay restitution.  Provided that the procedural requirements of the subdivision are met the court may “take appropriate action, including action under subdivision 2, paragraph (g), before the defendant’s term of probation expires.  Under this reading, action under subdivision 2, paragraph (g) is only one of several options, which includes the broad, general powers to set the term of probation.

Justice Wright, however, is actually saying much more than this.  The Court re-wrights paragraph (g) narrowly – very narrowly -  by limiting its application to extensions of the term of probation that exceed the statutory maximum.  The court acknowledges that this creates an Apprendi/Blakley problem but that’s for another day because here, the requested five year extension is within that statutory maximum. (Just what that Apprendi/Blakley trial would look like and just what the state would have to prove is also not addressed.)  Implicitly, however, the court is pretty strongly giving the green light to extensions of the term of probation, well, forever in the right circumstances, provided a deadbeat probationer is given a jury trial before it happens.  The court gives passing lip service to the district court’s ability to refer the restitution to collections or reduce it a judgment.  Otherwise, the court’s opinion leaves the putative probationer with the option either to suffer probation forever or to execute the sentence.  Debtor’s prison.

Justice Page dissented, arguing that subdivision 2(g) places a limit on the district court’s power to extend probation for failure to pay restitution.

9/23/2013: No Published Court of Appeals Criminal Opinions

9/18/2013: No Published Supreme Court Criminal Opinions

“Intent to Defraud” Includes Using Another’s Name to Avoid a More Serious Crime

State v. Stahosky, Minn.Ct.App., 9/16/2013.  The cops pulled Carissa Jean over for speeding.  Ms. Stahosky’s license was cancelled at the time – inimical to public safety – so she could have been charged with a gross misdemeanor, driving after cancellation of her license.  To avoid this outcome, Ms. Stahosky offered up her sister’s name to the officer.  Since her sister apparently had a valid license, the officer only issued a speeding ticket.  Ms. Stahosky went over to the court house and met with a hearing officer.  She signed a continuance for dismissal, signed a payment agreement, and paid the fine.  Carissa Jean did all this in her sister’s name. 

When Ms. Stahosky’s sister found out about all this she ratted Carissa Jean out.  The state did not think Ms. Stahosky’s actions were the least bit cute.  Rather, they charged her with aggravated forgery.  Following a stipulated facts trial, the district court found her guilty.  Carissa Jean appealed.  She said that she did not intend to defraud anyone – an element of aggravated forgery – because she only intended to avoid being charged with the driving after cancellation; and besides she was paying the damn money on the speeding ticket so what’s the big deal?

Here’s the pertinent part of the aggravated forgery statute:

Whoever, with intent to defraud, falsely makes or alters a writing or object of an y of the following kinds so that it purports to have been made by another or by the maker or alterer under an assumed or fictitious name, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of aggravated forgery and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:

(1) a writing or object whereby, when genuine, legal rights, privileges, or obligations are created, terminated, transferred, or evidenced, or any writing normally relied upon as evidence of debt or property rights, other than a check as defined in section 609.631 or a financial transaction card as defined in section 609.821[.]

The court concluded that Ms. Stahosky’s signing of the payment agreement and the continuance for dismissal in her sister’s name defrauded her sister, the police and the state.  Her sister got hit with a speeding ticket on her driving record that she didn’t disserve.  The cops and the state didn’t get to charge her with the correct (and more serious) offense.  Had the state obtained a conviction on the more serious offense – a gross misdemeanor – it could also have hit Ms. Stahosky with a three thousand dollar fine rather than the lousy three hundred (or whatever the total cost of the speeding ticket was).  If that’s not “intent to defraud,” what is?

On Facts of This Case, Failure to Record Interrogation That Occurred in Another State By Non-Minnesota Officers Does Not Require Its Exclusion

State v. Castillo-Alvarez,, Minn.S.Ct., 9/11/2013.  This comes up from the court of appeals.  Read here.  Mr. Castillo-Alvarez ordered some guys to kidnap and murder a lower level drug dealer over an unpaid invoice for merchandise.  The guys grabbed the drug dealer in Iowa but actually killed him in Minnesota.  Mr. Castillo-Alvarez fled to Mexico but eventually that country extradited him back to Iowa to face charges there.  Once back in the country an FBI agent and an Iowa cop interrogated Mr. Castillo-Alvarez; the officers did not record the interrogation.  The Iowa convictions got tossed for violating Mr. Castillo-Alvarez’s speedy trial rights.  The show then came over into Minnesota.

This Opinion by Chief Justice Gildea is like old home week.  No less than three cases of mine – Sanders, Obeta II (yes, Obeta), and Waddell - get mentioned. 

Mr. Castillo-Alvarez argued, as he did in the court of appeals, that Minn.Stat. 609.045 and the double jeopardy clause of the Minnesota Constitution prevented his prosecution in Minnesota for the same crimes that had been prosecuted in Iowa.  The Supreme Court said that “conviction” under the statute meant a final one, and not one that had been tossed.  Mr. Castillo-Alvarez agreed that the federal double jeopardy clause did not bar prosecution in Minnesota; instead, he wanted the court to expand double jeopardy protection under the state’s provision.  The court was unwilling to do that.

The remaining issue and the one most likely to crop up in day to day life, is whether the failure to have recorded Mr. Castillo-Alvarez’s interrogation over in Iowa required its exclusion in Minnesota.  Now, in my law school days, this was known as a “choice of law” question.  The Supreme Court had ducked this question a few years back in State v. Sanders, 775 N.W.2d 883 (Minn. 2009).  The Court now gives a fact specific answer, under an analysis it calls “most significant relationship.”  It goes something like this:

Under this approach, the law of the state with the most significant relationship to the evidence controls, even if it conflicts with the law of the forum, unless applying the law of the state with the most significant relationship would be contrary to a strong public policy in the forum.

A bit squishy.

Under this “test” Iowa had the “most significant relationship.”  At the time of the interrogation, there were no Minnesota charges pending.  No Minnesota officer either initiated or participated in the interrogation.  Only officers from Iowa – one fed, one state – took part.  Since apparently Minnesota doesn’t care whether Iowa records interrogations, there is no strong Minnesota policy that requires application of the Scales rule.

This result is not a blanket invitation for the cops to arrest a suspect on Payne Avenue and then drive like hell to Hudson, Wisconsin for the interrogation.  Similarly, if the crime occurs on Payne Avenue but the Hudson cops arrest the suspect over there, they can’t call up the SPPD cops and offer to interrogate the prisoner at their place so as to avoid recording it.  So, pay attention to the facts and don’t assume that the non-recorded Texas interrogation is admissible under this opinion.

Justices Page and Stras concurred in the result, but would disagreed with the majority’s conclusion on the interrogation issue.  Justice Lillehaug did not participate. 

9/9/2013: No Published Court of Appeals Criminal Opinions

Post Conviction Petition, Filed Under the “Interests of Justice” Exception, is Untimely Under the Objective Standard of Sanchez.

Greer v. State, Minn.S.Ct., 9/4/2013.  Mr. Greer filed two post conviction petitions – one in the Spring and the other in the Summer of 2012.  He claimed that his appellate counsel had provided ineffective assistance of counsel and that he had newly discovered evidence.  Because Mr. Greer’s initial conviction became final before August 1, 2005, his deadline for filing a post conviction petition under the two year limitations provision was July 31, 2007.  Since he missed that by some five years he had to fit into one of the exceptions in the statute to the two year limitations period.

Mr. Greer invoked the “interest of justice” exception, which must be filed within two years of the date the claim arises.  The court has adopted an objective standard – knew or should have known – by which to determine when a claim arises.  Sanchez v. State, 816 N.W.2d 550 (Minn. 2012). 

Mr. Greer did not claim that under this objective standard that his petitions were timely.  Instead, he asked the court to overrule Sanchez, notwithstanding that it’s barely been out long enough to get a volume and page designation in the law books.  Justice Wright, for the full court including Justice Lillehaug – so, it’s the first opinion that he’s joined - declines the invitation.

Proof of Either Unreasonable Force or Cruel Discipline Satisfies Malicious Punishment Statute

State v. Broten, Minn.Ct.App., 9/3/2013.  S.C.C.,age twelve, got a bad grade at school.  Ms. Broten thought the appropriate parental response was to shear S.C.C.’s head and make her go outside wearing a tank top and a diaper.  Between thirty and fifty neighbors didn’t agree with this approach to improving educational achievement and called the cops.  The state prosecuted Ms. Broten for malicious punishment of a child.  She maintained that the statute required proof of bodily harm.  Here’s what the statute says:

A parent … who, by an intentional act or series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances is guilty of malicious punishment of a child. …”  Minn.Stat. 609.377, subdivision 1. 

The offense is a gross misdemeanor if the punishment results in “less than substantial bodily harm.”  Ms. Broten makes numerous interpretation arguments to support the claim that the statute requires bodily harm, but the court of appeals points out that the language of the statute is written in the disjunctive:  unreasonable force or cruel discipline.  Enough said.

The court also concludes that the statute is not void for vagueness as applied to these facts.

Court’s Instructions on Definition of “Dangerous Weapon,” Which Mirrored JIGS but not Statute, Were Not Erroneous

State v. Weyaus, Minn.Ct.App., 9/3/2013.  Mr. Weyaus struck B.S. with what the court described as a “child’s folding stadium chair.”  It apparently had an image of Mickey Mouse on it.  Maybe it was this one, the court doesn’t elucidate further. The state charged Mr. Weyaus with assault with a dangerous weapon, the jury convicted him, and the court sentenced him. 

Two questions  here.  Did the court properly instruct the jury on the definition of “dangerous weapon?  Is this really an assault with a dangerous weapon?  Let’s start with the first question, for which we need a chart:

Minn.Stat. 609.02, subdivision 6

CRIMJIG 13.06

“Dangerous weapon” means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm

A “dangerous weapon” is anything designed as a weapon and capable of producing death or great bodily harm, or any combustible or flammable liquid or anything else that, in the manner it is used or intended to be used, is known to be capable of producing death or great bodily harm or any fire that is used to produce death or great bodily harm.

The italics is where the fight is.  Mr. Weyaus said that the jury instruction permitted the jury to convict him it he used the chair merely in a manner that could have resulted in great bodily harm, which, he says, is not what the statute says.  The court of appeals goes back to a 1985 opinion, State v. Graham, 366 N.W.2d 335 (Minn.Ct.App. 1985), where it said that the statutory “likely to produce” language may dilute the state’s burden of proof.  The court said that the solution was to borrow the definition of “deadly weapon” from the Model Penal Code, which had this “known to be capable of producing death or serious bodily injury” language.  The jury instructions committee jumped all over that and rewrote the JIGS accordingly.  The rest is pretty much history.  The court does dredge up an old case of mine, State v. Gebremarian, 590 N.W.2d 781 (Minn. 1999), where the trial court had given the jury three totally different instructions on the definition of dangerous weapons.  The first two were completely wrong under either the statute or the JIGS; the third one tracked the JIGS, but the actual holding of the case was that because the judge had so thoroughly confused the jury Mr. Gebremarian should get a new trial.  For Mr. Weyaus, the court of appeals believes that the supreme court had correctly endorsed the JIGS language, so its use in his trial was okay.

The second question dives into the murky waters of just what a “dangerous weapon” is.  Think professional boxer punching you with his fists.  Best anyone can say is that it’s a fact specific determination, and it’s determined by whichever side can command a majority.  Here, Mr. Weyaus can’t get any votes, so that Mickey Mouse chair is a “dangerous weapon.”

Concealment of Murder Victim Sufficient to Support Departure Based on Particular Cruelty.

State v. Hicks, Minn.Ct.App., 9/3/2013.  The district court convicted Mr. Hicks of second degree unintentional felony murder.  It seems that J.R. went missing back in 2007.  Police undertook an investigation but were unable to make an arrest.  Human remains, which DNA determined were J.R.’s, were found in 2011, after which police charged Mr. Hicks.  He decided to represent himself.  The state’s case was mostly circumstantial, but it did include the testimony of two jail snitches, who claimed that Mr. Hicks had admitted killing J.R.  The court convicted Mr. Hicks of second degree felony murder.  The court also found that by hiding the body Mr. Hicks had committed the crime in a particularly cruel way, so the court imposed a sentence twice what the Guidelines called for.

Mr. Hicks complained on appeal that the district court had violated the Minnesota Code of Judicial Conduct by making a finding – that Mr. Hicks had left a certain voice mail message – for which there were no facts in evidence.  The state offered no evidence, expert or otherwise, about the identity of the voice on the message.  The court, of course, had heard Mr. Hicks’ voice throughout the twelve day trial and during pretrial hearings as well.  That was all the court needed to conclude that it was Mr. Hicks’ voice on the message recording.  His ability thus to recognize Mr. Hicks’ voice came about in his “general judicial capacity” and did not, therefore, violate the Judicial Code.  Mr. Hicks also complained that this finding deprived him on an impartial fact finder, but the court of appeals rejects this argument, and thereby gives defendants everywhere another reason not to represent themselves.

Without objection, and sometimes at  his request, the court closed the courtroom.  One closure occurred during what amounted to a bench conference held in the closed courtroom instead of at said bench or back in chambers.  Another occurred during trial so that Mr. Hicks could review a redacted transcript of his Scales interrogation.  The third closure occurred so that the matter of a waiver of attorney client privilege could be discussed.  The court of appeals said that all of these closures involved discussions of “routine administrative matters traditionally addressed during closed conferences in chambers” and did not violate Mr. Hicks’ right to a public trial.

Finally, Mr. Hicks challenged the durational departure that the court based on concealment of the body.  There is case law saying that such concealment, combined with other factors,  is considered particularly cruel.  State v. Shiue, 326 N.W.2d 648 (Minn. 1982).  In State v. Leja, 684 N.W.2d 442 (Minn.. 2004), the Supreme Court reversed a departure based only on concealment, but the defendant there had not been the actual killer.  And, the holding in Leja did not get four votes.  Maybe Mr. Hicks can see if four members agree or disagree this time.

Batson Challenge Denied, and No Abuse of Discretion by Trial Court’s Admission of Evidence of Defendant’s Threat of a Witness

State v. Diggins, Minn.S.Ct., 8/28/2013.  A jury convicted Mr. Diggins of two counts of premeditated first degree murder and various other related offenses.  On appeal, he complained about the denial of his Batson challenge to the state’s peremptory removal of an African-American prospective juror, Juror 16; and about the admission of evidence that he had assaulted and threatened a witness two days before trial.

Juror 16 was the second African-American prospective juror examined; the state had not challenged Juror 4, who was also African-American and who already sat on the jury.  When Mr. Diggins objected to the state’s peremptory removal of Juror 16, the trial court said that Mr. Diggins had not made a prima facie showing that the state’s challenge was racially motivated.  This could have ended the whole thing but the trial court plowed ahead and asked the state to articulate its reasons for the challenge.  The state said that its concerns were about inconsistencies between the juror’s answers on the questionnaire and responses in court, and about the juror’s “intellectual capacity” to serve as a juror.  The trial court said that this was a race-neutral explanation.

Writing for a six person court, Justice Lillehaug not participating, Justice Dietzen agreed that the state had articulated a race-neutral explanation for the challenge. 

On the evidence issue, Justice Dietzen reminds everyone that evidence of a defendant’s threat against a witness is relevant to show consciousness of guilt.  State v. Harris, 521 N.W.2d 348 (Minn. 1994).  However, such evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  Or, if it tends to show that a defendant was predisposed to commit the crime charged.  So, the trial court has to play Goldilocks and admit just the right amount of such evidence and then instruct the jury about its function.  Here, the court concludes that the trial court’s handling of this evidence was just right.

Trial Court Has No Discretion Under The Sentencing Provision For Offenders With Serious and Persistent Mental Illness to Ignore a Statutory Mandatory Prison Sentence For a Subsequent Firearm Conviction

State v. Mayl, Minn.Ct.App., 8/26/2013.  For the second time, Mr. Mayl found himself facing a sentencing judge on a conviction of firearm possession by an ineligible person.  Subdivision 8(b) of Minn. Stat. 609.11 says that the court must – do not pass go, do not collect two hundred dollars – execute the mandatory minimum sentence of five years imprisonment if the offender has a prior conviction in which the offender used or possessed a firearm.

Another statute, however, Minn.Stat. 609.1055, says that when a judge intends to send an offender with a serious and persistent mental illness to prison that judge may, instead, place the offender on probation.  Mr. Mayl, no one disputed, has such a serious and persistent mental illness.  Following his arrest he  had put together a treatment plan with lots of community support to keep him working that plan.  All of his community supporters – including his probation officer – also said that prison would be detrimental to Mr. Mayl’s treatment and overall well-being.

Mr. Mayl made numerous arguments to support his assertion that Minn.Stat. 609.1055 authorized the trial court to grant probation notwithstanding the separate prohibition contained over at 609.11, subdivision 8(b).  609.1055, for one thing, is a more specific statute than is 609.11.  It’s a more recently enacted statute.  Neither the trial court nor the court of appeals bought into these arguments.  Each concluded that 609.1055 was nothing more than a statutorily enacted mitigating factor.  Treated that way, then 609.1055 merely creates a basis for a departure from a presumptive prison sentence that the Guidelines would otherwise require.  But, of course, that also means that a sentencing judge may ignore a mandatory sentencing statute, like 609.11, Subdivision 8(b), only when that statute permits it.   It does not, so Mr. Mayl goes to prison.

Supreme Court Upholds Limited Application of Knowing Transfer of Communicable Disease Statute

State v. Rick, Minn.S.Ct., 8/21/2013.  This comes up from the court of appeals.  Read here.  The case is about the interpretation of Minnesota’s “knowing transfer of communicable disease” statute, Minn.Stat. 609.2241, subd. 2.  This statute defines two different acts that are criminal when committed by a person with a communicable disease.  Under subdivision 2(1) “sexual penetration” with another without first disclosing the presence of the disease is a crime.  Under subdivision 2(2) the “transfer of blood, sperm organs or tissue” is a crime. 

Mr. Rick engaged in consensual penetration with another person after disclosing that he had a communicable disease.  The state charged him with violating both subdivisions but the jury acquitted him of violating subdivision 2(1), sexual penetration.  The court of appeals reversed his conviction under subdivision 2(2), concluding that “transfer” in subdivision 2(2) applied only to medical procedures.  Chief Justice Gildea, writing for a five member court – Stras and Lillehaug not participating – upholds the opinion of the court of appeals.  The court concludes that subdivision 2(2) addresses transactions in which sperm is donated or sold for a medical reason, and does not include sexual penetration.