A Defendant Has State Constitutional Right to Assistance of Counsel at Restitution Hearing

State v. Maddox, III, Minn.Ct.App., 1/28/2013.  The district court ordered Mr. Maddox, III to pay restitution in the total amount of just over six grand.  Mr. Maddox, III challenged the restitution order and appeared for a hearing.  He appeared without an attorney; neither the court nor the prosecutor told him that he had a right to counsel so he didn’t waive that right.

And just what right might this be, anyway?  It turns out that a restitution hearing is a “critical stage” of the state’s prosecution of a criminal defendant to which an accused’s right to counsel applies.  This is because certain legal rights may be lost if not exercised.  Critical stages are:

proceedings between an individual and agents of the State . . . whether formal or informal, in court or out, that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary.” Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191 (2008).

The court of appeals has previously held that payment of court-ordered restitution is a part of a criminal “sentence.”  State v. Hughes, 742 N.W.2d 460 (Minn.Ct.App. 2007).  The question is whether that holding extends to the restitution hearing.  The court of appeals says that under the Minnesota Constitution, a restitution hearing is part of a criminal “sentence.”  A handful of states agree:  Alabama, Colorado, Florida, Iowa, Oregon, Arizona, Kansas, Utah, Washington State,

Defendant's Statement Was the Fruit of Her Unlawful Arrest, but it's Admission was Harmless Error

State v. McDonald-Richards, Minn.S.Ct., 1/23/2013.  Ms. McDonald-Richards drove her boyfriend, Calvin Anderson, and Anderson's friend, Johnny Perry, to Avi's Paw & Jewelry in Richfield.  While she waiting in the car, the two men went inside the store and robbed it, during which Mr. Perry shot a customer and a store clerk.  The customer died.

Police released surveillance photos from the store.  A citizen identified Mr. Anderson, as did his probation officer.  The PO told the police that Mr. Anderson lived with Ms. McDonald-Richards.  One day after the robbery, police officers saw Ms. McDonald-Richards leave his residence, drive to north Minneapolis where she picked up Mr. Anderson.  An army of officers, weapons drawn, then stopped the car, ordered Ms. McDonald-Richards out of the car, cuffed her, placed her in a squad car, and took her to jail.  After spending two hours in a locked holding cell, a police detective interrogated her.  She denied being at Avi's on the evening of the robbery and claimed that her car had been missing that evening until Mr. Anderson showed up with it late that night.  She denied either recognizing or knowing Mr. Perry, and said that Mr. Anderson instructed her to tell anyone who asked that he'd been fishing all day on the day of the robbery.  At the end of the interrogation police released her.

Meantime, officers interrogated Mr. Anderson, who gave up Mr. Perry, who gave up Ms. McDonald-Richards.  Two days later, officers enticed Ms. McDonald-Richards back down to the police station, purportedly so that she could get her car back.  Instead, after a Miranda warning, officers again interrogated  her.  Eventually, she made various admissions about her participation in the events of the robbery and homicide, including that she drove both men to and from the robbery.  For that the state charged her with aiding and abetting first degree murder and attempted first degree murder.  At trial, she claimed that she had not knowingly and intentionally assisted the two men in committing the murder and attempted murder.

Ms. McDonald-Richards moved to suppress both statements as the fruit of her unlawful arrest during the traffic stop.  The trial judge denied that motion and admitted both statements.  On appeal, she only challenged the admission of the first statement.  The state agreed that the arrest had been unlawful but admissible nonetheless because any taint from that unlawful arrest had been sufficiently purged.  Chief Justice Gildea, for six members of the court (Justice Wright not participating), held that intervening events following the unlawful arrest had not undone the taint from it.  The court employed the factors identified in Brown v. Illinois, 422 U.S. 590 (1975) and adopted by the Minnesota Supreme Court in State v. Weeks, 312 Minn. 1, 250 N.W.2d 590 (1977), which include: "whether the police provided a Miranda warning, the time between arrest and confession, “the presence of intervening circumstances,” and “particularly, the purpose and flagrancy of the official misconduct."  

Here's what the trial court thought had purged the effect of the unlawful arrest:

[T]he district court concluded, among other things, that McDonald-Richards’  statement  was admissible because police gave her a  Miranda warning, she was held for “a relatively short” period, the “flagrancy of the violation” was “lessened[] because there was a reason” for police to stop McDonald-Richards’ car, and police treated her well and were not “confrontative.

The chief justice goes through the Brown/Weeks factors and concludes that the trial court was wrong to have admitted the statement.  However, the court does hint ever so softly that perhaps the police could have held Ms. McDonald-Richards as a material witness instead of "arresting" her.  The court also concludes that the error in admitting the statement was harmless beyond a reasonable doubt.

A Segway is Not a “Motor Vehicle”

State v. Greenman, Minn.Ct.App., 1/22/2013.  Segway is “the world’s leading provider of personal electric balancing transportation.”  Mr. Greenman wobbled his Segway along a walking path, then onto a public road on which he twice drifted across the center line before an officer pulled him over.  Mr. Greenman’s alcohol concentration was .19; the state charged him with third degree DWI.  Mr. Greenman said that his Segway was not a “motor vehicle” under Minnesota law and so he could ride his personal electric balancing transportation device drunk if he wanted to.  The district court agreed and threw out the charges.  The court of appeals follows suit, upholding the dismissal.

Recall that the court of appeals has held that a motorized wheelchair is not a “vehicle” for DWI purposes.  State v. Brown.  Mr. Brown, who is physically disabled, operated a wheelchair scooter, which the court of appeals said he used as a substitute for walking.  He was, therefore, a pedestrian.  Same for Mr. Greenman, only for him it was a matter of personal choice.  As far as we know, Mr. Greenman could walk just fine.  The traffic code excludes “an electric personal assistive mobility device” from the definition of “motor vehicle”.  A Segway is one of those devices and is excluded from the DWI laws.  Roll on. 

1/16/2013: No Published Criminal Opinions Today

1/14/2013: No Published Criminal Opinions from Court of Appeals

Read the Title, says it all.

No Supreme Court Criminal Opinions Today

“It’s an easy job,” said Fox.

No Published Court of Appeals Criminal Opinions

1/7/13:  The court of appeals issued no published opinions today.

No Published Court of Appeals Criminal Opinions, But Important Unpublished Opinion on Granting a Defendant Use Immunity During Probation Revocation Hearing Based on Allegation of New Crime

State v. Watts, Minn.Ct.App. (12/31/2012, Unpublished).  Well, that’s a mouth full up there in the title bar.  This is a recurring play for prosecutors and the courts, especially in domestic abuse cases.  A defendant is placed on probation with the condition that he remain law abiding.  He doesn’t.  He goes back to his baby mama’s crib despite the domestic abuse no contact order; everything’s fine for a few hours, days, then the 911 call and the new criminal charge.  The state moves to revoke the probation, based solely on the new charge.  Defendant moves to postpone the hearing pending resolution of the new charge, arguing, in part, that he can’t testify at the revocation hearing without waiving his Fifth Amendment rights.

Here, Mr. Watts violated probation in between sentencing and reporting to the workhouse.  Mr. Watts objected to the revocation hearing and requested a continuance; he did not request use immunity.  The state objected to the continuance and the court denied the defense motion, revoked Mr. Watts’ probation and sent him to prison.  On appeal, Mr. Watts made a due process argument, not a Fifth Amendment argument, that the district court abused its discretion by not offering him limited use immunity.  The criminal rule, 27.04, subd. 2(4)(c), only says that the court may postpone the revocation hearing when the violation report alleges a new crime, so the grant or denial of a postponement request is a discretionary ruling unlikely ever to be reversed on appeal.  The appellate courts have never held that the district court must unilaterally offer use immunity to a defendant so that he may testify at the revocation hearing.  See State v. Hamilton, 646 N.W.2d 915 (Minn.Ct.App., 2002), abrogated in part on other grounds, State v. Modtland, 695 N.W.2d 602 (Minn. 2005). 

Left undecided here is what should happened when a defendant does request use immunity.  Judge Cleary, concurring, says that if the district court chooses to go ahead with the revocation hearing, “best practice” should be to confer use immunity whether a defendant requests it or not.  Without that grant, Judge Cleary believes that the hearing should be postponed, although he acknowledges that the current rule does not require that.  Judge Cleary suggests that it’s time to change to rule to require that postponement, again when the revocation allegation is solely the commission of a new crime.