No Published Criminal Opinions Today

March 27, 2013.  No published criminal opinions today.

The court did grant review in one case, an unpublished opinion, State v. Johnson, available here.  The issue there was the trial court's failure to instruct on an element of the offense, the value of the property obtained by Mr. Johnson's use of someone else's credit card.  The Supreme Court stayed review of Mr. Johnson's case pending the outcome of another case, State v. Watson, also having to do with a trial court's failure to instruct on an element of the offense.  Read about that case here, and here. 

Court Finds “Right to Frisk” From “Right to Stop” Where Stop Involved “Large Amounts of Narcotics”.

State v. Lemert, Minn.Ct.App., 3/25/2013.  Officers stopped a truck in which Mr. Lemert was a passenger.  The driver, T.A., was the actual target of the stop.  Officers had what the court consistently describes as “reasonable suspicion” that T.A. was involved in “large-scale drug activity,” and that T.A.’s truck  had been used the “day before”, (which morphed into “the day of” as the opinion went along),  the stop in a controlled buy of methamphetamine.  Unbeknownst to the officers who made the stop, other officers – including the officer who eventually is going to pat search Mr. Lemert - had information that Mr. Lemert had received methamphetamine from T.A.  After the stop, officers removed Mr. Lemert from the truck and then pat searched him; of course, they found drugs.  He moved to suppress those drugs.

At the time of the pat search there was no direct evidence that Mr. Lemert had been involved in the controlled buy from T.A.; officers had no “specific awareness” that Mr. Lemert possessed a weapon; and the officers did not see him make any unusual or “furtive” movements or gestures.  Rather, the officer conducted the pat search  based on officer safety considerations and because the department’s felony stop protocol said to pat search all persons who were removed from a vehicle involved in drug transactions.  The policy plays the odds, apparently in favor of the probability that anyone in the presence of suspected drug people either may possess weapons or behave in unpredictable and erratic behavior.

The trial court denied the suppression motion and the court of appeals affirms, resorting to the notion that “in certain circumstances, the right to frisk follows directly from the right to stop, such as when a stop involves suspected dealing in large amounts of narcotics.”  State v. Payne, 406 N.W.2d 511 (Minn. 1987).  This is not, so says the court, the “automatic companion” rule which would permit a pat down search on the sole basis that a companion of an arrestee is located in the immediate vicinity of the arrest.  State v. Eggersgluess, 483 N.W.2d 94 (Minn.Ct.App. 1992).  No, that concept has been rejected.  No, it takes a lawful stop on suspicion of dealing in “large amounts” of narcotics. 

Here, apparently, it was a quarter ounce of meth.

Payne (and thus this opinion) relied upon the 1987 edition of LaFave’s Fourth Amendment tome.  The text from this 1987 edition does not seem to have made the cut in the most recent edition.  Payne involved a delayed frisk of one of the suspects – Mr. Payne - in a burglary that had just occurred two blocks from the stop.  Here, Mr. Lamert wasn’t initially suspected of anything, at least by the officer who made the stop.  This analysis also doesn’t square with Ybarra v. Illinois, 444 U.S. 85, 94 (1979).  Recall that Mr. Ybarra was sitting in a bar – The Aurora Tap – when it just so happened that the cops were searching the place pursuant to a search warrant.  Mr. Ybarra got frisked just for being there, about which Justice Stewart said:

The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.

So, the court here may have been on surer footing to have relied more, if not primarily, on the “collective knowledge” doctrine, which gets an “oh, by the way” analysis in the opinion.  At least then the collective knowledge of Mr. Lamert’s receipt of drugs from T.A. gets the state closer to a particularized suspicion of criminal activity by Mr. Lamert.

Supreme Court Summaries of April Oral Arguments in Criminal Cases

Links are to previous posts.

Tuesday, April 2, 2013

Supreme Court Courtroom, State Capitol

State of Minnesota, Respondent vs. Christopher Dineaa Bahtuoh, Appellant – Case Nos. A10-1584, A12-1281:  A jury found appellant Christopher Bahtuoh guilty of several offenses, including first-degree drive-by shooting murder committed for the benefit of a gang.  Bahtuoh appealed his conviction, and the supreme court granted his request to stay his appeal in order to pursue postconviction relief.  Bahtuoh filed a petition for postconviction relief, which the district court denied. 

In a consolidated appeal involving Bahtuoh’s direct and postconviction appeals, the following issues are presented to the supreme court: (1)  whether Bahtuoh is entitled to a new trial because the district court erroneously instructed the jury on accomplice liability; (2) whether Bahtuoh received ineffective assistance of counsel; (3) whether the district court abused its discretion when it denied Bahtuoh’s motion for a mistrial; and (4) whether there was insufficient evidence to prove that Bahtuoh intended to aid the shooter in the commission of a crime.  (Hennepin County)

Wednesday, April 3, 2013

Supreme Court Courtroom, State Capitol

 Nonoral:       Otha Eric Townsend, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A12-1734:  In 1994, a jury found appellant Otha Townsend guilty of first-degree murder, and Townsend was sentenced to life in prison.  Townsend subsequently pleaded guilty to attempted first-degree murder and was sentenced to 72-months in prison, to be served consecutively to his life sentence.   The supreme court affirmed his convictions on direct appeal.  In May 2012, Townsend filed a motion challenging his sentence.  This motion was Townsend’s fourth request for postconviction relief.  The district court denied the motion. 

            On appeal to the supreme court, the following issues are presented:  (1)  whether the district court erroneously treated Townsend’s motion as a petition for postconviction relief; (2) whether Townsend’s claims are time barred under Minn. Stat. § 590.01, subd. 4 (2012); (3) whether Townsend’s claims are procedurally barred by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976); and (4) whether Townsend’s jail credit should apply to his sentence for first-degree murder.  (Ramsey County)

Thursday, April 4, 2013

Supreme Court Courtroom, State Capitol

            Nonoral:       Rusttee Allan Torres, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A12-0570:  Appellant Rusttee Torres was convicted, following a jury trial, of first-degree murder. The supreme court affirmed his conviction on direct appeal.  In March 2011, Torres filed his second petition for postconviction relief, based, in part, on newly discovered evidence.  The district court held an evidentiary hearing and then denied Torres’ petition.

            On appeal to the supreme court, the issue presented is whether the district court abused its discretion when it concluded that Torres had failed to establish that he was entitled to a new trial based on newly discovered evidence.  (Rice County)

Monday, April 8, 2013

Courtroom 300, Minnesota Judicial Center

            State of Minnesota, Appellant/Cross-Respondent vs.George Cornelius Watkins, Respondent/Cross-Appellant – A11-1793:  Respondent George Watkins was convicted of violations of a domestic abuse no-contact order (DANCO).  In order to convict Watkins, the State was required to prove that he “knowingly violated” the DANCO.  The trial court’s final instructions to the jury omitted this element.  In addition to sentencing Watkins to an executed term of 44 months in prison, the trial court imposed a new 5-year DANCO.  The court of appeals reversed Watkins’s conviction.

            On appeal to the supreme court, the following issues are presented: (1) whether the trial court’s plain error failure to properly instruct the jury on the element of intent was prejudicial as a matter of law; and (2) whether the trial court exceeded its statutory authority when it imposed a DANCO as part of an executed sentence.  (Hennepin County)

State of Minnesota, Respondent vs. Juan Humberto Castillo-Alvarez, Appellant – Case Nos. A11-1379, A12-0081:  Gregory Erickson was kidnapped in Iowa and then driven to Minnesota where he was murdered.  In 2004, Iowa charged appellant Juan Castillo-Alvarez with the murder of Erickson.  Following a jury trial, Castillo-Alvarez was convicted of second-degree murder.  In 2009, the Iowa Court of Appeals reversed the conviction based on a violation of Iowa R. Crim. P. 2.33, which establishes a speedy trial rule.

In 2010, Minnesota charged Castillo-Alvarez with the murder of Erickson.  Castillo-Alvarez moved to dismiss the charge, claiming the double jeopardy protections of the Minnesota Constitution and Minn. Stat. § 609.045 (2012) barred prosecution.  He also moved to suppress his out-of-state, unrecorded statement to an FBI agent, claiming the statement was obtained in violation of State v. Scales, 518 N.W.2d 587 (Minn. 1994).  The district court denied both motions.  Following a jury trial, Castillo-Alvarez was convicted of second-degree murder.  The court of appeals affirmed the conviction.

On appeal to the supreme court, the following issues are presented: (1) whether the double jeopardy protections of the Minnesota Constitution and Minn. Stat. § 609.045 bar prosecution; and (2) whether Scalesapplies to out-of-state interrogations.  (Jackson County)    

Wednesday, April 10, 2013

Courtroom 300, Minnesota Judicial Center

            State of Minnesota, Respondent vs. Eddie Cortez Smith, Appellant – Case No. A11-1687:  Appellant Eddie Smith was driving a car at a speed of more than 50 miles per hour in a residential neighborhood when he hit another car in which 93-year-old Edith Schouveller was a passenger.  Smith had an alcohol concentration of .11 shortly after the accident. 

            Schouveller’s spinal cord was fractured during the accident.  She spent 13 days in the hospital and was then transferred to a nursing home and rehabilitation care center.  After two days at the nursing home, she was admitted to the hospital and diagnosed with pneumonia.  Several days later, doctors determined that Schouveller required intubation.  Schouveller, however, had executed a living will with a do-not-resuscitate order specifying that she not be intubated.  Doctors did not intubate Schouveller, and she died later that evening.

            After a jury trial, Smith was convicted, in part, of criminal vehicular homicide.  The court of appeals affirmed Smith’s conviction.

            On appeal to the supreme court, Smith raises the following issues in his brief:  (1)  whether the State failed to prove that Smith caused the death of Schouveller; (2) whether Schouveller’s do-not-resuscitate order was a superseding cause of Schouveller’s death; and (3) whether Smith is entitled to a new trial because the district court failed to instruct the jury on the effect of a finding that something was a superseding cause of Schouveller’s death.  (Ramsey County)

“Consider the Fork, A History of How We Cook and Eat,” Bee Wilson

No Ineffective Assistance of Trial Counsel

Andersen, Jr., v. State, Minn.S.Ct., 3/20/2013.  A jury convicted Mr. Andersen of first degree premeditated murder of Chad Swedberg.  Mr. Swedberg was apparently shot from some distance while at his maple syruping camp.  The supreme court affirmed his conviction, about which you can read here.  Mr. Andersen is now back on post conviction, complaining, among other things, that both his trial and appellate counsel did not provide effective assistance of counsel.  The post conviction court summarily denied the petition and the supreme court, Justice Dietzen writing for a 5-2 majority, affirms the post conviction court.  Here are the seven grounds for relief that Mr. Andersen presented:

(1)there was newly discovered evidence that was both material and exculpatory ; (2) recordings of phone calls he made while in jail were admitted at trial in violation of his constitutional right to counsel; (3) testimony by firearm and palm -print experts and an exhibit displaying several types of Winchester bullets were admitted at trial in violation of his Sixth Amendment right of confrontation ;(4) the State committed misconduct during closing argument; (5) the State withheld certain evidence until after trial; (6) his trial counsel was ineffective; and (7) his appellate counsel was ineffective.

The court rejected the newly discovered evidence claim, saying that it would not have made a difference to the outcome of the trial.  The court then rejected claims 2, 4 and 5 as Knafla barred, throwing in a footnote suggesting that the court may not consider the exceptions to Knafla to exist anymore now that the legislature has codified the holding of Knafla. without including those exceptions. 

Continuing its mischief, it tosses claim 3 by concluding that the forensic evidence was either not “testimonial” or its admission did not constitute reversible error.  One of the items of evidence was an exhibit that the firearms expert used.  He was testifying about bullets that were recovered from the victim, that they were characteristic of some of the bullets that a particular manufacturer uses. The exhibit in dispute was photo display of some of these bullets sent from the marketing department of this manufacturer.  The court said that the exhibit was not prepared for litigation but was an ad, and thus was not “testimonial.”  The other item of evidence was more ethereal.  The fingerprint examiner, who said that a print that he examined belonged to Mr. Andersen, Jr., said that he’d sent images of the print to a second examiner and that if the second examiner disagreed with the first examiner no report may be issued.  The logical inference was that the second examiner agreed with the first examiner’s conclusions.  The court dodges the confrontation question with its standard practice of assuming that the logical inference was “testimonial” but that its admission was harmless beyond a reasonable doubt.

That gets to the effectiveness of counsel.  Appellate counsel gets a complete pass because Mr. Andersen, Jr., never asked appellate counsel to do what he is now complaining about.  Mr. Andersen, Jr., said that trial counsel was ineffective because he wanted to testify but his attorney had neither prepared a direct examination nor provided him with copies of discovery materials with which he could have made a rational decision to testify.  The problem that the majority had with this claim is that Mr. Andersen, Jr., made a waiver of his right to testify during the trial and as far as the majority was concerned he would need now to present more than conclusory allegations to obtain a hearing.  Not only that, Justice Dietzen cannot for the life of him figure out why counsel would need to prepare a direct examination of his client until he decides – usually at the tail end of trial – whether to testify. 

And those discovery documents?  The court makes the remarkable statement that former Rule 9.03, Subd. 4 precluded defense counsel from putting those documents “in defendant’s custody.”  (The current rules more vaguely talk about discovery materials remaining “in the party’s custody.”  Rule 9.03, Subd. 4 (2013).  Here’s what the old rule said:

PURSUANT TO MINN. R. CRIM. P. 9.03, SUBD. 4, DISCOVERY MATERIALS SHALL REMAIN IN THE CUSTODY OF DEFENSE COUNSEL, shall not be placed in defendant’s custody, and shall be used by defense counsel only for the purpose of conducting that attorney’s side of the case.

Justices G. Barry Anderson and Page dissented.  They said that the question whether trial counsel was ineffective regarding Mr. Andersen’s decision to testify required an evidentiary hearing to complete the record.

No Published Court of Appeals Criminal Opinions Today

March 18, 2013.  So far, the court of appeals has issued six published criminal opinions this year. 

Insufficient Proof to Warrant Relief on Post Conviction Claim of False Trial Testimony

McDonough v. State, Minn.S.Ct., 3/13/2013.  For the fifth time this year, the Court reviews a denial of a post conviction petition.  That’s five of eight opinions so far.  Mr. McDonough is serving a life sentence for the first degree murder of Reginald Rodgers and the attempted first degree murder of Steven Crenshaw.  Steven, who had known Mr. McDonough since grade school, testified that it was Mr. McDonough who shot and killed Mr. Rodgers and tried to kill him.

Years go by.  Steven’s cousin, Donald, gives Mr. McDonough an affidavit in which he says that Steven told him that he didn’t see the shooter and that the police coerced him into saying that he did at trial.  The post conviction court heard both Crenshaw’s testimony in support of Mr. McDonough’s fifth post conviction petition alleging Steven’s false testimony.  The problem was, when it was Steven’s turn he stuck to his trial testimony.  At least for a few days.  After the hearing but before the judge ruled, another brother, Eddie Crenshaw, provided an affidavit in which he said that what Donald said Steven said is what Steven said to him.

No matter, the post conviction court denied the fifth petition and what it characterized as an amended (or sixth?) petition, basically concluding that Steven had little or no credibility.  The court also concluded that Donald didn’t have much cred either.  Justice Page, for a unanimous court, agreed, concluding that the post conviction court had not abused its discretion in its rulings. Mr. McDonough could not establish from Eddie’s affidavit that Steven’s trial testimony was false in the face of Steven’s hearing testimony at which he affirmed his trial testimony.

Mr. McDonough raised a constitutional challenge of some sort to the first degree murder while committing a drive by shooting.  Justice Page agreed with the post conviction court that Mr. McDonough was too late in raising this claim.

April Oral Argument Calendar

The April oral argument calendar can be accessed here.

Officers Had Probable Cause to Arrest Defendant for Constructive Possession of Drugs

State v. Dickey, Minn.Ct.App., 3/11/2013.  Officers obtained a warrant to search the residence that Ms. Dickey shared with her boyfriend, J.A. for evidence of methamphetamine.  The search warrant application did not mention Ms. Dickey, and the search warrant did not authorize the search of any vehicles.  J.A. was home during the raid.  He was apparently shooting the breeze with the officers while the search was underway.  Among other things, he told them that he and Ms. Dickey shared the bedroom where the cops had just found drug paraphernalia, drying marijuana, and a marijuana grow operation in the closet; and he just happened to mention that Ms. Dickey was driving a Dodge Dakota and should be along momentarily.

With that, an officer decided that Ms. Dickey was in constructive possession of the drugs found in the shared bedroom.  So, he called up another officer and told him to stop the Dakota, which he did, and to arrest Ms. Dickey, which he did.  That officer informed Ms. Dickey that there was a search warrant being executed back at her place and that the drug sniffing dog was on its way to check out the Dakota.  The officer then casually inquired if she had any contraband in the Dakota; she said that she did, that she had some meth in her purse.  The officer seized the vehicle (with the purse still in it), then got a search warrant to peak into the purse.

Ms. Dickey challenged the drugs found in her purse as the result of the warrantless seizure of the Dakota, saying that the officers lacked probable cause to arrest her.  The court of appeals agreed with the district court that the officer had probable cause to conclude that Ms. Dickey was in constructive possession of the drugs back at the house:

A police officer has probable cause to arrest a suspect for constructive possession of a controlled substance when the officer is presented with objective facts that would give rise to an honest and strong suspicion that there is a strong probability that the suspect was exercising or had exercised dominion or control over the controlled substance.

 The court also concluded, as had the district court, that the officers had probable cause to make a warrantless felony arrest of Ms. Dickey, and thus the stop of the Dakota was reasonable.

Supreme Court Grants Review in Criminal Child Support Case

State v. Nelson, Minn.Ct.App., 12/10/2012, review granted, 3/6/2013.  Back in December the court of appeals held that the felony child support statute 609.375, refers exclusively to an obligor’s financial obligation toward a spouse or child.  Read here.  Today, the supreme court agreed to review that decision.

There were no published criminal opinions today from the supreme court.

Juvenile Court Abused Its Discretion in Certifying Juvenile to Adult Court

In the Matter of the Welfare of J.H., Minn.Ct.App., 3//4/2013.  The juvenile court certified J.H. to adult court; he appealed.  The state had charged J.H. with first degree criminal sexual conduct, conspiracy to commit first degree criminal sexual conduct, kidnapping, and committing a crime for the benefit of a gang.  J.H. was in a bedroom as several other males sexually assaulted G.K.  J.H. did not assault G.K. or hold her down during the assault.

There are six statutory factors that the juvenile court must consider in making a certification decision:

(1) the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the Sentencing Guidelines, the use of a firearm, and the impact on any victim;

(2) the culpability of the child in committing the alleged offense, including the level of the child’s participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the Sentencing Guidelines;

(3) the child’s prior record of delinquency;

(4) the child’s programming history, including the child’s past willingness to participate meaningfully in available programming;

(5) the adequacy of the punishment or programming available in the juvenile justice system; and

(6) the dispositional options available for the child.

Factors (1) and (3) must be given greater weight in this determination.  In re Welfare of P.C.T., 823 N.W.2d 676, 684 .(Minn. App. 2012).  The juvenile court concluded that only factor (3) favored EJJ designation and that all of the remaining five factors favored adult certification.  The court of appeals reverses this determination.  The court concluded that the juvenile court had abused its discretion by determining that J.H.’s programming history, the adequacy of the punishment or programming available, and the dispositional options available favor adult certification. 

The court also concluded that the juvenile court had also abused its discretion by giving greater weight to the seriousness of the offense but not to J.H.’s prior record of delinquency.  The court said that the juvenile court accorded the proper weight to the seriousness of the alleged offense (which favored certification), but that it failed to accord the proper weight to J.H.’s prior record of delinquency (which favored EJJ designation). 

By reversing the juvenile court on statutory grounds, the court avoids addressing J.H.’s constitutional challenge to the certification process. 

There was a vigorous dissent.

A Defendant’s Ignorance of the Effect of a Plea on a Future Criminal Charge Does Not Make the Plea Unintelligent.

State v. Crump, Minn.Ct.App., 3/4/2013.  A Minneapolis police officer saw Mr. Crump speeding; the officer had first to chase Mr. Crump then ram his car to get him to stop.  This earned Mr. Crump a charge of fleeing a police officer in a motor vehicle.  Mr. Crump agreed to plead guilty to this offense in forbearance of a potential controlled substance charge, the drugs that he threw out the window during the chase. 

Now, it just so happened that police had arrested Mr. Crump a week or so before this chase/drugs arrest on suspicion of driving while intoxicated.  The state didn’t charge him with this DWI offense, however, until the day after he pled guilty to the fleeing charge.  This was apparently a felony DWI offense, so Mr. Crump wanted to withdraw his guilty plea to the fleeing in order to prevent a boost to his criminal history score in the event of a conviction on the DWI.  He said that he plea was not intelligently made because his attorney hadn’t told him that his fleeing plea would up his sentence on the DWI.  In fact, Mr. Crump said that he would never had entered the fleeing plea had he known this.

At the hearing on the motion to withdraw the plea defense counsel specifically let the prosecutor go on the question whether there was some charging manipulation going on up in the prosecutor’s office.  Whether this would make a difference remains to be seen. (Mr. Crump also did not make an ineffective assistance claim.) Instead, the court of appeals said that Mr. Crump’s ignorance of the potential consequences on other future criminal charges did not render the plea unintelligent, even though the other charge arose before the plea on the most recent charge.  Such consequences are speculative and, more importantly, are “collateral consequences” that neither the court nor defense counsel should have to warn Mr. Crump about.

Felons Convicted of Crimes of Violence Are Categorically Excluded From Scope of Second Amendment Protection.

State v. Craig, Minn.S.Ct., 2/27/2013.  The is the Second Amendment challenge to ineligible person (felon) in possession of a gun, about which I wrote here.  The court of appeals had rejected Mr. Craig’s Second Amendment challenge under an intermediate level of scrutiny which looks to see if the statute is “substantially related to an important governmental objective.”  The Supreme Court, Justice Dietzen writing for the court, (absent Justice Wright) affirms the court of appeals but on different grounds.  Justice Dietzen said that you get to the level of scrutiny question only when the person has Second Amendment protection.  Because Mr. Craig does not have such protection the level of scrutiny answer awaits another day.

Justice Dietzen reviewed the two U.S. Supreme Court Opinions that matter, District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010).  Heller said  that the Second Amendment guaranteed an individual right to keep and bear arms unconditioned on service in a militia.  McDonald, said that that right is applicable to state and local governments.  To get there, the Court had to say that this right was  “fundamental to [the American] scheme of ordered liberty.”  So it did.  Or, at least, the plurality did.

Having said that, however, the Court then carved out some “presumptively lawful regulatory measures” that are not prohibited under the Second Amendment, like keeping guns away from felons.  Mr. Craig said that all this “presumptively lawful regulatory measures” stuff was pure dicta; Justice Dietzen said he didn’t have to rise to that bait because he and the Court liked the idea anyway.

Federal court that have considered facial challenges have rejected them, concluding that a felon has no Second Amendment right to posses a firearm.  Circuits 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 have reached this conclusion.  These courts said that Heller’s list of presumptively lawful exceptions establishes persons – felons among them – who are categorically outside the scope of the Second Amendment protection.  End of discussion.

Four circuits have considered “as applied” challenges.  Those court have said that a felon must present specific facts that distinguish his or her conviction from the convictions of other felons who are categorically unprotected by the Second Amendment.  Those courts utilized different approaches to determine whether a particular felon has presented such distinguishing facts.  Justice Dietzen throws in with some sort of “the Second Amendment as historically understood” construct, which is as broad as it is wide, which he boils down to felons convicted of a “crime of violence.”  This leaves Mr. Craig out because his disqualifying conviction – Drugs V – is a statutory “crime of violence”.  There is also, says the Court, a “substantial nexus” between drugs and violence.  Also,felons who have been convicted of a crime of violence are also more likely to reoffend and to do so in a way that threatens public safety.  The court’s source for these rather sweeping conclusions is almost exclusively case law.

Having cut Mr. Craig out entirely from those who may claim Second Amendment protections it was unnecessary to decide what level of scrutiny might apply.

Shooting Someone Who is Inside a Car From Inside That Same Car is Not a “Drive By Shooting”.

State v. Hayes, Minn.S.Ct., 2/27/2013.  Mr. Hayes shot and killed his drug supplier as the two men negotiated a deal in Mr. Hayes’s car.  The state said that this was a drive by shooting, but Justice Stras says not, it’s not.  Here’s what the statute says is a drive by shooting:

(a) Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.

(b) Any person who violates this subdivision by firing at or toward a person, or an occupied building or motor vehicle, 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.

The state said that sub-paragraph (b) created a separate crime – a redundant one since there’s already a second degree assault statute – so that shooting at a person who is inside a car is still a drive by shooting.  Justice Stras rejects this notion and says that sub-division (b) is a sentencing provision and that the “crime” is up there in sub-division (a).  What sealed the deal for Justice Stras was the phrase “guilty of a felony” in sub-division (a) and its absence in sub-division (b); and the phrase “may be sentenced” in (b), absent in (a).

Evidence of Recantation Insufficient to Grant Relief

Ferguson v. State, Minn.S.Ct., 2/17/2013.  A jury convicted Mr. Ferguson of first degree premeditated murder.  The essential facts are these:

On December 7, 2004, three men — Kentrell Green, Johntaye Hudson, and Ferguson — kicked open the door to an apartment  in Minneapolis and opened fire on its occupants, killing Joseph Papasadora and injuring Ernest Houle and Gordon Hill. The apparent reason for the attack was to retaliate against Collin Goodwin,the intended target of the shooting, who had assaulted a friend of the three men earlier that day.  As it turned out, Goodwin was not present at the apartment when the three men attacked the  apartment’s occupants.

After trial, Mr. Ferguson presented some evidence – a memorandum from a defense investigator – that Mr. Green had recanted his testimony against him:

It should be noted that on May 2, 2006, at 1:00 p.m., [Ferguson’s trial counsel] and Michael Grostyan interviewed Kentrell Green, at Stillwater State Prison.  Mr. Green informed us that our client, Jermaine Ferguson, was not present at the scene of the murder that he is serving time for. He indicated that he told the authorities and I believed [sic] he testified also that Jermaine Ferguson was present.  His explanation for doing that was that the police threatened to take the children away from the children’s mother, Judonna Parker, and they also threatened to send Ms. Parker to prison for her potential involvement.

The post conviction court said that this was “insufficient indicia of the trustworthiness of recantation” to require a hearing on the claim, and the supreme court agreed.  Mr. Ferguson then filed another petition, this time with an affidavit from Mr. Green, which stated, in part:

[W]hile in costody [sic] on the case that I’m currently incarcerated for, I was not fully truthful on the facts pertaining to this case. . . . I was told that I would lose my son and do life in prison if I didn’t give the police JERMAINE FERGUSON. I told them that he was not with me but they continued to say that they wanted Ferguson and that they did not care about anybody else. So from the stress and my lack of knowledge in the law, I lied and said that Jermaine Ferguson was with me at the sceen [sic] of the crime, which he never was and I told the police that the first time.

Under protest – reversal and remand – the post conviction court eventually held an evidentiary hearing on this claim.  Wouldn’t you know it, Mr. Green refused to testify.  So, Mr. Ferguson offered his affidavit instead.  The post conviction court would not admit the affidavit, concluding that it was hearsay,  but said that even if it did admit it it still wasn’t trustworthy.

Justice Stras agrees that the affidavit is not admissible under Rule 804(b)(3) because it lacked corroboration, a requirement of the rule:

First, the court must determine if the declarant was unavailable to testify at trial.  Second, the court must determine that the statement must “at the time of its making.  . . so far [tend] to subject the declarant to civil or criminal liability .  .. that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Third, the court must scrutinize the statements to avoid violating the Confrontation Clause.

Justice Stras says that whether “corroborating circumstances” exist is to be determined under a “totality of circumstances” analysis, but he then identifies six factors to consider:

(1)whether other evidence corroborates the facts in the hearsay statement; (2) the extent to which the hearsay statement is consistent with the declarant’s prior testimony and other statements; (3) the relationship between the declarant and other witnesses and parties, including the defendant; (4) whether the declarant has reason to fabricate the statement; (5) the overall credibility and character of the declarant; and (6) the timing of the statement.

He then considers those factors and agrees with the post conviction court’s conclusion.

The court then rejects a claim of ineffective assistance of counsel during the post conviction proceedings because no such right exists.  Coleman v. Thompson, 501 U.S. 722 (1991).  Even under the state constitution, a defendant who has been represented by counsel on direct appeal has no state constitutional right to assistance of counsel – effective or otherwise – in a post conviction proceeding.  Barnes v. State, 768 N.W.2d 359 (Minn. 2009).

Failure to Object on Confrontation Grounds to Relationship/Spreigl Evidence Not Ineffective Assistance of Counsel as any Confrontation Error was Harmless Beyond a Reasonable Doubt

Hawes v. Minnesota, Minn.S.Ct., 2/27/13.  A jury convicted Mr. Andrew Hawes of first degree premeditated murder of his brother, Edwin, and of obstructing an investigation.  The court sentenced him to life without possibility of release.  He claimed that he received ineffective assistance of counsel, and that the trial court was wrong to admit out of court statements from his sister and girlfriend to the police.

Recall that the state also charged Mr. Hawes’s sister, Elizabeth Hawes, with aiding and abetting this crime.  The Supreme Court upheld her conviction and sentence back in 2011.  Read here.  Here’s the gist of what happened:

Ms. Hawes and Andrew believed that Edwin had stolen money from the business that the brothers operated.  These suspicions festered for well over a year.  Eventually authorities notified Ms. Hawes that the theft accusations against Edwin were unfounded.  Ms. Hawes continued to track Edwin’s every movement, the explanation for which was the untrue claim that authorities were about to arrest Edwin for theft.  Edwin got wind of this and got a retraining order against Ms. Hawes.

Not too much after that Anoka county deputies came upon Ms. Hawes at a golf course at two or so in the morning, claiming to be visiting a friend who, it turned out, didn’t live near the golf course.  Edwin, however, did live nearby and so the deputies, who knew of the family feud, decided to see how he was doing.  On the way, the deputies came upon Andrew “staggering in the middle of the street.”  Edwin, the deputies learned, wasn’t home.

Where he was, was a fire pit on land that Andrew owned in southern Minnesota.  When those deputies came upon the fire pit, Ms. Hawes was tending the fire.  The investigation into Edwin’s death produced lots of forensic and other evidence which, when presented to the jury, resulted in her conviction  She argued that this evidence was not sufficient to support the conviction but the supreme court rejected his argument.

During Mr. Hawes’s trial the state introduced evidence of a time when Mr. Hawes rammed Edwin’s Passat, especially the part where Edwin told the investigating officer that it was his brother who rammed him.  Defense counsel objected, mostly on relationship and  Spreigl grounds, but not on either confrontation or hearsay grounds.  The trial court admitted this evidence.  Following a post conviction evidentiary hearing, the post conviction court said that there was no reasonable probability that the outcome of the trial could have been different had defense counsel objected on these additional grounds.  Justice Page, writing for the court (including Justice Wright), agreed.  Mr. Hawes’s argument was evidence of this event was the state’s strongest proof of premeditation.  Both the post conviction court and Justice Page disagreed with this assessment and support that disagreement with a summary of what the post conviction court considered the “planning/premeditation” evidence that the state produced:

The jury heard evidence that [Hawes] prepared deadly weapons to bring with when he went to confront Edwin. A black spray painted bat was recovered from the crime scene. The crossbow and arrows that were later recovered had been spray painted black. Latex gloves with black spray pain t were  found at [Hawes ’] home. These gloves had [Hawes’] DNA on them.

[O]ther weapons were found concealed around the property where Edwin was killed. A number of small maul-type hammers were found on the property. The owner of the property testified that the se hammers were not  his. A similar 3 or 4 pound hammer was found in the trunk of the Passat covered in Edwin’s blood. The jury heard testimony and saw evidence that [Hawes] practiced using the [crossbow] at his place of business.

. . . .

[Hawes] also  bought and distributed disposable cell-phones to be used during the repossession” of the Passat.  The jury was free to infer from this evidence that [Hawes] was engaged in more than a simple attempt to regain possession of the car.

Justice Page thought there was even more than that, but you get the point.

Turning to the Sixth Amendment claim, Justice Page dodged it all together.  The Court assumed that if error there was, it was harmless beyond a reasonable doubt.