No Supreme Court Published Criminal Opinions Today

5/29/2013.  No published criminal opinions today from the supreme court.

No Published Criminal Opinions

5/28/2013.  No published criminal opinions today.

Expungment of Juvenile Records Held by Executive Branch is Limited to the Order of Expungment

In the matter of the Welfare of J.J.P., Minn.S.Ct., 5/22/2013.  This is a companion case to that of M.D.T., the adult expungment opinion.  The focus here is expungment of juvenile records.  J.J.P. petitioned the district court to expunge his executive branch records under the juvenile code’s expungment provision, Minn.Stat. 260B.198, subd. 6.  The district court denied the petition but the court of appeals reversed.  The court of appeals said that this statute created broad authority to expunge all juvenile delinquency records held by executive branch agencies, and that rather than the balancing test contained in chapter 609A the guidelines in the delinquency rules which address the imposition of a disposition in a delinquency case applied.

Justice Dietzen concludes that this juvenile statute authorizes the court only to expunge executive branch records of the order adjudicating the juvenile delinquent.  This statute says:

Except when legal custody is transferred under the provisions of subdivision 1, clause (4), the court may expunge the adjudication of delinquency at any time that it deems advisable.

There are a lot of statutes that pertain to the creation, maintenance, distribution and destruction of juvenile records among the judicial and executive branches of government, and there are a lot of different “records” that go into the pile.  Only one among these many different “records” is the actual order adjudicating a juvenile delinquent.  So, borrowing Justice Stras’s dictionary, Justice Dietzen tells us what the definition of “adjudication” is.  He employs as narrow a definition as can be – the actual order of adjudication.  In doing so, the court authorizes executive branch agencies to keep all of the paperwork in the run up to that actual order.  Things like the juvenile petition, motions, arrest history, on and on, can stay in the file cabinet. 

J.J.P. wanted this expungment so that the Department of Human Services could not disqualify him from direct patient contact, thereby preventing him from becoming a paramedic.  The court says that expungment of the order of delinquency accomplishes this goal because DHS must have that order in order to disqualify.  The concurrence by Justice Paul Anderson in which Justice Page joins  – takes issue with this rosy picture.  And, points out that if the order of adjudication is expunged then all these executive branches have no statutory authority to keep any of the file.  The concurrence also proclaims that the juvenile expungment provision empowers actions to seal records more expansive than just the order, and that limiting expungment to the order of adjudication is an illusory remedy.  Justice Wright concurred in that particular conclusion about the scope of the expungment authority.

The court then turns to the phrase “deems advisable.”  The court rejects both approaches from the lower courts:  Chapter 609A balancing criteria, and juvenile disposition rules.  Instead, the court adopts the different balancing test in exercising a court’s inherent authority to expunge records.

Minnesota Supreme Court Trades Barbs Over the "Answer to the Ultimate Question of Life, the Universe, and Everything."

State v. M.D.T., Minn.S.Ct., 5/22/2013.  You wouldn’t think that an expungment opinion could generate such a fuss and be such a good read.  But you’d be wrong.  Poor Ms. M.D.T. made a one-off mistake:  she forged a pain medication prescription because she didn’t think the prescribed dosage was up to the task.  She got charged and convicted of aggravated forgery.  Years ago.  Stay of Imposition of sentence.  Successful probation.  She rebuilt her life within the limitations of that conviction, but that conviction was nonetheless holding  her back.  

So, she asked the court to expunge her records – all of them, including records that the courts created but happened to be living in various executive branch offices. The first time the court said, no.  She waited a few years, asked again.  This time, the trial court granted that request and the court of appeals affirmed. Read about that here.  That opinion seemed destined for a bad reception in the supreme court.  And, with the exception of Justices Paul Anderson and Page that’s what it got.

Chief Justice Gildea, in a 4-3 opinion, reverses, concluding that the court has no authority to order the expungment of records either created by the executive branch and residing therein, or created by the judicial branch, copies of which reside within an executive branch filing cabinet.  The majority opinion is mean spirited and extraordinarily narrow-minded.  The real fireworks, however, are in the concurrence by Justice Stras, and the dissent from Justices Paul Anderson and Page. 

Justice Stras confirms his true colors as a Scalia “originalist” saying that the state’s judicial power must be understood by looking to the territorial courts in existence at the time of statehood and ratification of a state constitution. The business of those territorial courts was to “decide cases.”  That’s it.   He debunks the entire construct of  “inherent [judicial] authority” as a ruse that means only what a majority of the court happens to think it means.  In doing so, he takes a swipe at the court’s recent use of that “ethereal” doctrine in deciding  Obeta II, (overruling Saldana) and at the court’s taxation of lawyers to fund the public defender system.

Justice Paul Anderson, nearing retirement, pens a compelling, compassionate dissent, in which Justice Page joins.  Here’ the best paragraph:

I begin my analysis by reiterating some of the key facts underlying M.D.T.’s second petition for expungement. I begin this way because if this case is to be properly understood, M.D.T.’s story must be told. Her story is a cautionary tale about how important it is to know and follow the law. It is a tale about how an ordinary citizen who commits an act that is both foolish and criminal endures the consequences that flow from that act. It is also about how the executive exercises its power to prosecute a criminal act. But most importantly, it is a tale about how a citizen searches for redemption and attempts to move on with her life after having paid her debt to society for a criminal act. In many ways, M.D.T.’s story also reflects who we are as a society—our concept of justice, how we punish, our ability to forgive, and even our willingness to forgive. Finally, M.D.T.’s story, ending with the result reached by our court today, illustrates how those of us who inhabit Minnesota’s judiciary differ in our understanding of what constitutes a core function of the judiciary, how the judiciary is empowered to use its authority to perform a core function, and, more broadly, the role the judiciary plays in our scheme of government under the Minnesota Constitution.

Well said, Paul.  Can’t go out any better than that.  Six of the judges who looked at this file, this individual, thought the records should be expunged.  Only five thought otherwise.

Fleeing a Police Officer By Means Other than a Vehicle is Specific Intent Crime

State v. Wilson, Minn.S.Ct., 5/22/2013.  This comes up from the court of appeals.  Read about that here.  A jury had convicted Ms. Wilson of misdemeanor attempting to evade or elude a police officer by some means other than fleeing in a motor vehicle.  She wanted an intoxication instruction because she maintained that this crime was a specific intent offense.  Both the trial court and the court of appeals said, no, that the language, “for the purpose of” did not make the crime a specific intent crime. 

Justice Wright, with Justices Paul Anderson and Page dissenting in part, sides with Ms. Wilson.  The court concludes that the plain language of the statute creates a specific intent crime.  “For the purpose of” means the same thing as “with the intent to.”  (Only lawyers would argue about this.)  “Purpose,” the court says, is synonymous with “intention;” and the phrase “in order to” is synonymous with the phrase “for the purpose of.”  The statue in play here requires proof that Ms. Wilson attempted to evade or elude a peace officer for the purpose of avoiding arrest, etc.  That’s a specific intent requirement. 

The court goes on to address how the trial court is to decide whether a defendant, charged with a specific intent crime, is entitled to a jury instruction on voluntary intoxication.  The court states that the offer of proof from the defendant must be viewed in the light most favorable to that defendant, something it’s apparently not said before this.  The court then reviews Ms. Wilson’s offer of proof.  That she had been drinking at a bar, that she smelled  like she had been consuming alcohol and that she was intoxicated would not have been enough.  However, the remainder of her proof about being very confused, having a different look on her face, etc.,  met the requisite burden.  So, she was entitled to the instruction.

Not having got it, however, was harmless beyond a reasonable doubt.  The court concluded that the state had presented more than enough evidence that Ms. Wilson had formed the requisite specific intent.  Justices Paul Anderson and Page disagreed with this conclusion and would have sent the case back for a new trial:

While the jury may have, could have, or might have reached the same verdict it did, I am unable to form a clear and firm conviction beyond a reasonable doubt that the jury would have reached the same verdict if it was properly informed.

Burglary Statute Requires Proof of Knowing Possession of a Gun.

State v. Garcia-Gutierrez, Minn.Ct.App., 5/20/2013.  Mr. Garcia-Gutierrez, along with several others, apparently broke into a home over in Shakopee one evening, stole a bunch of stuff, including a locked safe.  The safe just happened to have a handgun locked inside it.  Later that same evening the guys were seen outside an apartment in Prior Lake repeatedly smashing a “box” to the ground; one of the guys had a handgun.  The state charged each of them with first degree burglary, possession of a dangerous weapon.  The guys said, no, no; we never knew that there was a gun in the safe until later when we smashed the safe open over in Prior Lake.  The state said, it didn’t matter, you take your safe as you find it, including its contents.  The trial judge threw out the charges, saying that none of the guys had knowledge or control of, or immediate access to, the handgun during the commission of the burglary.  The state appealed.

And lost  The burglary statute says, after talking about entering a building, in pertinent part:

the burglar possesses, when entering or at any time while in the building , any of the following:  a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon

That pretty much says it.  The burglar has to possess the handgun, either when entering, or at any time while in, the building.  The statute requires that the state prove that a defendant knowingly possessed a gun during the course of a burglary.  These particular burglars thought that they were stealing a safe.  Hell, once they got it open and discovered not bearer bonds but only the gun, they probably weren’t too happy about it anyway.

Jury Properly Instructed on Doctrine of Transferred Intent.

State v. Bakdash, Minn.Ct.App., 5/20/2013.  Mr. Bakdash was at The Liberty Bar, doing some dope and drinking a lot. When he left, he got into an argument of sorts with either one or two unidentified males according to Mr. Bakdash’s buddy; or with A.E., according to Mr. Bakdash.  Mr. Bakdash then either drove slowly up onto the sidewalk to “scare” either the unidentified male(s) or A.E.; or, he drove pell mell down the sidewalk, nipping (apparently) A.E., killing B.V.H., and injuring S.B. and K.H.  The state charged Mr. Bakdash with a dozen crimes for the death of B.V.H. and the injuries to S.B. and K.H. 

A jury acquitted Mr. Bakdash of first degree murder and attempted first degree murder, but convicted him of the ten other charges.  He argued on appeal that the trial court ought not to have included instructions on transferred intent on the murder and attempted murder charges.  The first and second degree murder statutes require the state to prove that Mr. Bakdash intended to effect the death of a person or “another.”  The “another,” the court says, incorporates the doctrine of transferred intent.  State v. Sutherlin, 396 N.W.2d 238 (Minn. 1986).  Mr. Bakdash said, no, transferred intent does not apply to crimes against unintended victims when those crimes are either different or are of a more serious nature than crimes committed against the intended victim.  Mr. Bakdash said that he only intended to scare A.E., and did not intend to harm the A.E. or anyone else.  The court of appeals said that when the intended harm is the same or substantially similar to the unintended harm then transferred intent applies.  Mr. Bakdash’s use of the car to drive up onto the sidewalk made the car a dangerous weapon.  The jury could, and did, reject his claim that he only intended to scare the unidentified male(s); and could and did conclude that he intended to cause the death of a person.

Mr. Bakdash also argued that submitting transferred intent instructions to the jury was a constructive amendment of the indictment.  He said that the grand jury never knew of A.E.’s existence but, rather, heard evidence of his attempted murder of two victims, and of his first degree murder of the third, all under a theory of direct intent.  The court rejects this argument, essentially saying that Mr. Bakdash had ample notice that transferred intent was a potential issue and thus his rights were not violated.

Finally, Mr. Bakdash complained that the trial court should have ordered the disclosure of the full grand jury transcript.  Rule 18.04 says that the court may order the disclosure of a grand jury transcript to a defendant, “for good cause”.  It’s difficult to tell from the opinion, but it appears that Mr. Bakdash did get a transcript of witness testimony; it was the rest of the transcript that he didn’t get.  The court said that he had not established a particularized need for the rest of the transcript.

Post Conviction Petition Alleging “Newly Discovered Evidence” Fails to Meet Statutory Requirement to Avoid Limitations.

Clifton v. State of Minnesota, Minn.S.Ct., 5/15/2013.  The Minnesota Post Conviction Review Court, formerly known as “The Minnesota Supreme Court,” issued the ninth opinion of the year from a post conviction proceeding.  Chief Justice Gildea, writing for a unanimous court, breaks no new ground in this pro se petition.  Mr. Clifton claimed “newly discovered evidence,” which really wasn’t.  He filed his petition long after the two year limitations expired so he had to meet the requirements of the “newly discovered evidence” exception to the limitations period.  The court concluded that he had not met those requirements.  Mr. Clifton alleged, supported by affidavits, that one of three witnesses who identified him as the shooter in this premeditated murder conviction had recanted his identification.  The problem was, it was really a recantation of the recantation of the earlier recantation.  The jury knew all about this witness’s shaky memory and his vacillating testimony: It’s him!  It’s not him!  Etc.

Supreme Court Oral Argument Schedule For June

Can be found here.  This calendar includes both criminal and civil cases.  The criminal cases have links to the opinion from the court of appeals.

No Published Court of Appeals Criminal Opinions

5/13/2013:  No published criminal opinions from the court of appeals today.

No Published Criminal Opinions from Supreme Court

5/8/2013.  The Supreme Court issued no published criminal opinions today.  The court did accept review of an unpublished court of appeals opinion,  State v. Little, which asks this question:  After a defendant has made a valid waiver of his right to trial by jury must the trial court reexamine the defendant about that waiver when the state amends the Complaint to add a more serious charge? 

Durational Departure Supported By District Court’s Finding of Particular Cruelty

State v. Turrubiates, Jr.,  Minn.Ct.App., 5/6/2013.  Mr. Turrubiates, Jr. appeals from an upward sentencing departure.  The state alleged that Mr. Turrubiates, Jr. caused the death of T.M., age nineteen months.  There were two counts to the Complaint:

Count 1:  Unintentional murder while committing first degree assault; and
Count 2:  Unintentional murder while committing child endangerment.

The state said that there were three factors to support the sentencing departure:  T.M.’s “absolute vulnerability, T.M.’s particular vulnerability fur to her age; and Mr. Turrubiates’s particularly cruel treatment of T.M.  Mr. Turrubiates, Jr., entered a guilty plea to Count 2, and he also agreed to let the trial judge decide the departure motion.  Mr. Turrubiates, Jr., testified during the plea hearing that he was home alone with T.M., playing with her by pulling her around on a rug.  When T.M. fell off the rug, causing a rug burn on her head, Mr. Turrubiates, Jr., kicked a dresser which caused a two hundred pound television to fall off that dresser and land on T.M.’s forehead.  Mr. Turrubiates, Jr., could tell that something was seriously wrong with T.M. but did nothing about except to wait for T.M.’s mother to arrive home.  Even then, he lied to her about T.M.’s condition and tried to hide evidence of the child’s injuries.  The medical examiner provided additional evidence, essentially saying that there were more injuries than were accounted for by Mr. Turrubiates’s statements.  The trial court found all three of the factors that the state articulated and imposed an upward durational sentence of two hundred forty months.

Mr. Turrubiates, Jr., did not dispute either that T.M. was particularly vulnerable due to her age, or that she was absolutely vulnerable.  Rather, his argument was that because her age was an element of the predicate felony age could not be the basis for a departure.  The court of appeals agrees that T.M.’s age is an element of the predicate felony; and agrees that a district court may not base a sentencing departure on an element of the offense.  But that’s as far is the court is willing to go.  The court grabs hold of a malicious punishment case of a four month old, State v. Mohamed, 779 N.W.2d 93 (Minn.Ct.App., 2010), where the court had said:

The age element in the statute does not account for the particular vulnerability of [the four month -old victim], an extremely young victim who, because of his early stage of development, is incapable of perceiving danger, fleeing or shielding himself from harm, seeking help, or reporting the abuse. Indeed, [the victim]’s vulnerability is absolute. He is particularly vulnerable among the broad class of child victims who are covered by the statute.

Mr. Turrubiates, Jr., also argued that the trial court could not rely upon particular cruelty to support the departure.  The court of appeals rejects this argument, saying that a district could can consider the conduct underlying the offense of conviction in determining whether to depart.  Part of that underlying conduct included failing to get help and lying to T.M.’s doctors about the cause of her injuries.  While pointing out that the supreme court has yet to hold that failure to render medical aid, by itself, would support a departure, here, there was more than that.

Post Conviction Claims of Counsel’s Conflict of Interest and Ineffective Assistance are Procedurally Barred.

Sontoya v. State, Minn.S.Ct., 5/1/2013.  The Minnesota Post Conviction Review Court, a/k/a/ Minnesota Supreme Court, issued its eighth opinion of the year from a post conviction proceeding.  A bit over sixty percent of the court’s opinions issued this year have been from the post conviction arena.

A jury convicted Mr. Sontoya of first degree murder while committing first degree criminal sexual conduct.  Read more here.  In this post conviction petition, Mr. Sontoya alleged that when he asked his trial attorney if he was representing a cousin of the victim in an unrelated federal narcotics case his attorney lied by saying, no.  Mr. Sontoya said that he only learned of this lie after his direct appeal, that his trial attorney thus had a conflict of interest, and that this conflict caused his attorney to fail to provide effective representation, a claim that he supported with a long laundry list of counsel’s omissions.

Justice G. Barry Anderson, writing an opinion joined only by four other members of the court, ignores the alleged lie and instead concludes that Mr. Sontoya either knew or should have known about his attorney’s representation of the victim’s cousin, and thus knew or should have known of the conflict.  This conclusion allows the court to invoke the rule of Knaffla that claims about which a defendant knew or should have known must be raised on direct appeal. 

Justice Page concurred in the judgment only.  He also ignored the alleged lie and instead recited Mr. Sontoya’s laundry list of counsel’s omissions.  He then points out that all of these omissions occurred during the trial or during the run up to the trial, and so, obviously Mr. Sontyoa knew and should have known about them.  Again, that makes the claim Knaffla barred.  Justice Page thought that should have been the end of it so that it was unnecessary to examine the conflict of interest claim.

Justice Paul Anderson also concurred only in the judgment.  He looked at the alleged lie and its alleged deceptions and concluded that it was a meritless claim:

[T]here is no merit to Sontoya’s claim that an indirect potential conflict based on a loose familial relation with the victim would be sufficient for a finding of ineffective assistance of counsel.

Justice Paul Anderson thought that should have been the end of it.  It not only isn’t necessary to reach the Knaffla question – if the claim is meritless then it’s not necessary to decide any Knaffla question - addressing it appears to impose a burden on defendants to independently investigate and verify claims made by their trial counsel (or would be trial counsel when the claims are made during the sales pitch).  That’s particularly tough in serious cases where the defendant is mostly likely sitting in a jail cell.