State v. Borg, Minn.S.Ct., 7/31/2013. Back last November the court of appeals said that the state could not appeal a restitution order that the trial court had made separate from the criminal judgment and commitment. Read here. In short order the supreme court accepted review and now reverses the court of appeals. Justice Page concluded that an order that amends the restitution portion of a sentence is still a “sentence imposed,” which is one of the types of district court decisions that the state can appeal under Rule 28.04, subdivision 1. The court announces that restitution is, indeed, a part of a defendant’s sentence. Because subdivision 1(2) of Rule 28.04 authorizes the state to appeal from any sentence imposed, restitution is included. The state may thus appeal from that amended order.
Wednesday, July 31, 2013
Former Wife’s Out of Court Statements Admissible Under Residual Hearsay Exception; No Search Warrant Required Under The Facts of this Case to Obtain Records of Cell Phone Call Logs and Cell Tower Locations
State v. Griffin, Minn.S.Ct., 7/31/2013. A jury convicted Mr. Griffin of a couple counts of first degree murder – drive-by and premeditated. Mr. Griffin murdered his former wife’s significant other in the course of which Mr. Griffin used his girlfriend’s cell phone for various purposes. Without benefit of a search warrant the state got the cell phone records for the girlfriend’s phone in order to determine the time and location of these calls. The state also introduced certain statements that Mr. Griffin’s former wife made to friends of hers shortly before the murder that accused Mr. Griffin of stalking her over her current lover.
Mr. Griffin objected to these two actions. On the former wife’s out of court statements, the trial court had allowed the state to introduce them under the residual exception to the hearsay rule, Rule 807. Chief Justice Gildea upheld the trial court’s admission of these statements, concluding that there had been no abuse of discretion in doing so. The statements were volunteered without suggestive or leading questions, remained consistent both over time and to different people, and were made without motive to lie. See State v. Robinson, 718 N.W.2d. 525 (Minn. 2006).
On the cell phone records – which included only the call logs and cell tower locations, and did not include the content of any of them – the chief justice again upheld the trial court’s determination that the state had not needed a search warrant. The court relied on a similar opinion, State v. Gail, 713 N.W.2d 851 (Minn. 2006). Mr. Griffin was not a subscriber to the phone. He produced no evidence that he had attempted to conceal anything about the cell phone, and he offered to evidence to support his claim that he had an expectation of privacy in the particular phone records.
The cell phone records issue may yet be headed to the U.S. Supreme Court. The Fifth Circuit came to the same conclusion as did Chief Justice Gildea, although there was a dissenting vote. Read about that case here. The First Circuit, however, ruled last May that a warrant was required.
Tuesday, July 30, 2013
Thursday, July 25, 2013
Because Defendant was Not “In Custody” No Error in Admitting His Statement
State v. Sterling, Minn.St.Ct., 7/24/2013. The cops, they swear on a whim, invited Mr. Sterling down to the cop shop man cave to chat about a murder they were investigating; being good public servants they even offered him a ride downtown. Which he accepted. Once there, the police did not handcuff Mr. Sterling and did not lock him inside the interrogation room when they left him alone to stew. Whether Mr. Sterling could have actually left the building permanently remained untested, although he was denied a cigarette break and like the cigarette break Mr. Sterling had to ask the cops for anything else that he may have wanted .
Mr. Sterling arrived at the police station at 3:30 in the morning. Nine and a half hours later the cops arrested Mr. Sterling for the very murder that they were investigating, and only then did they read him the Miranda warning. He did lawyer up at that point.
Mr. Sterling moved to suppress the statements he made before being given a Miranda warning. The trial court denied that motion, concluding that a reasonable person would not have believed during that nine and a half hours that he was in police custody to the degree associated with formal arrest. Justice Page, writing for a six person court, agreed, citing State v. Champion, 533 N.W.2d 40 (Minn. 1995), and State v. Vue, 797 N.W.2d 5 (Minn. 2011). Justice Page recites a laundry list of factors that may combine to indicate that an individual is in custody, but not one of those factors is whether a reasonable person would believe that she was not free to leave.
Everyone took a break of some sort after about seven hours or so. When things got going again it seemed pretty clear – at least to Justice Page – that the cops were zeroing in on Mr. Sterling. He was still not under arrest yet and thus did not get a Miranda warning; another two plus hours awaiting that event. During this period Mr. Sterling made several statements that the state introduced at trial. Justice Page said that it was a “close call” whether Mr. Sterling was “in custody” after the break but decided it didn’t matter, that any error in admitting the statements Mr. Sterling made in this interim was harmless.
Mr. Sterling also challenged the sufficiency of the circumstantial evidence to support the conviction. The court concluded that the state had produced enough evidence to uphold the verdict.
Wednesday, July 24, 2013
Court Rejects Facial Due Process Challenge to DANCO Statute
State v. Ness, Minn.S.Ct., 7/24/2013. This is the DANCO challenge case. Read here. After the district court issued a domestic abuse no contact order that prohibited Mr. Ness from contacting his wife he allegedly violated that order. That resulted in a new criminal charge. Mr. Ness moved to dismiss the charge. He said that the statute, itself, failed to provide adequate notice and opportunity to be heard; and it encouraged arbitrary and discriminatory enforcement. On the first claim, Mr. Ness said that because the statute requires that the hearing on the application for the DANCO must immediately follow – and be separate from – the hearing to establish terms of release there was inadequate notice and opportunity to be heard on the request for the DANCO. On the second claim, he said that the statute established no criteria by which the trial court was to decide whether to issue the DANCO.
And the court rejects both arguments. Justice Page says that because this is a facial challenge to the statute and not an “as applied” challenge, Mr. Ness had to show that no set of circumstances exist under which the statute would be valid. Any constitutionally valid application of the statute suffices to defeat a facial challenge. Here, Justice Page concludes that the pretrial release hearing is, itself, adequate notice and opportunity to be heard on the immediately to follow DANCO hearing. The reason for this is that the pretrial release hearing is a constitutionally valid process and thus provides valid notice of what’s next in store. Moreover, counsel will have been appointed during that pretrial release proceeding so in the DANCO hearing there is legal representation. The court also repeatedly stresses that counsel had been appointed to represent Mr. Ness, that the Complaint recited the state’s requested conditions of pretrial release, that at the first appearance the state served Mr. Ness with a notice of evidence and identification procedures, and that at the first appearance the state served him with a trial witness list.
On the second claim, the court says that the DANCO statute contains restrictions enough on the circumstances under which the order can be issued, and thus on its face the statute does not encourage arbitrary and discriminatory enforcement. The order can only be issued against a limited class of individuals, individuals charged with the four offenses specified in the statute. The order can only be issued as a pretrial order or as a postconviction probationary order. the order can only be issued “immediately following” either the pretrial release hearing or probationary sentencing hearing. Just how these logistical requirements act as a check on a court’s arbitrary actions isn’t really explained. Additionally, for a defendant arrested and not released, the court must make a determination of probable cause without unnecessary delay. If the court sets conditions of release at a pretrial hearing it must issue a written order that recites those conditions and a copy of the order must be given to the defendant, among others. These requirements, having nothing to do with the DANCO order, are, nonetheless, a further check on arbitrary judicial action.
Finally, the court observes but neither endorses nor rejects the conclusion of the court of appeals that Mr. Ness could actually challenge the DANCO order collaterally as part of his defense.
Tuesday, July 23, 2013
Sale of Alcohol to Underage Persons is Strict Liability Crime and Does Not Violate Due Process
State v. Rohan, Minn.Ct.App., 7/22/2013. Ms. Rohan served a beer to a patron who was under the age of twenty-one; it said so right on the identification that she showed Ms. Rohan. The cops busted Ms. Rohan for serving alcohol to an underage person. Ms. Rohan moved either to invalidate the statute, Minn.Stat. 340A.503, subd. 2(1) on due process grounds, or to declare that the state had to prove that Ms. Rohan intentionally violated the law. The district court opted for door number two – the state had to prove intentional violation of the law – and the state brought this pretrial appeal.
And won. The statute that prohibits serving alcohol to underage persons is a strict liability crime, at least in Minnesota. It turns out that this prohibition has been on the books for one hundred forty-one years. That was 1872. Before that, a parent of a minor had to run over to the tavern and give the barkeeper written instructions not to serve the kid the next time she shows up wanting a brew and thereafter. In 1877, the state supreme court held that the statute did not require proof of intent. State v. Heck, 23 Minn. 549 (1977). That settles the question here in the twenty-first century. After Heck, the legislature’s many amendments to the statute never included an intent element.
The court also rejects a due process challenge to the absence of an intent requirement.
Chief Judge Johnson dissented.
Wednesday, July 17, 2013
Monday, July 15, 2013
Wednesday, July 10, 2013
Tuesday, July 9, 2013
Friday, July 5, 2013
7/3/13: No New Criminal Opinions Today; Review Granted in Search Warrant Case
Monday, July 1, 2013
To Be “Plain Error” That Error Must Have Been “Plain” at the Time of Trial, Not During Appeal
State v. Kelley, Minn.Ct.App., 7/1/2013. This seems to have been a drug deal that didn’t turn out too well. Eventually, Mr. Kelley and his partner beat down the drug seller, took some of his stuff. A jury convicted Mr. Kelley of first degree aggravated robbery and third degree assault.
The legal fight was over the jury instructions. The judge agreed, over the state’s objections, to instruct the jury on accomplice liability, at least for the robbery. The judge gave the standard jury instruction, which told the jury that the state had to prove that Mr. Kelley intended his presence at the beat down to further the commission of the robbery, but did not tell the jury that the state had to prove that Mr. Kelley knew that his partner planned to commit a robbery. Mr. Kelley did not object to this instruction so he’s in “plain error” land.
Now, at the time of the trial, everyone thought that this was a correct instruction. Very shortly after Mr. Kelley filed his notice of appeal the supreme court came out with State v. Milton, 821 N.W.2d 789 (Minn. 2012.) Milton required what the court had been suggesting: that the state had to prove both that a defendant knew that an accomplice was going to commit a crime and that a defendant intended his presence or actions to further the commission of that crime. Milton thus made the trial court’s instruction an erroneous one, but was it “plain?
No, it was not. The instruction neither violated settled law nor complied with settled law that was reversed during the pendency of the appeal. The instruction is in the middle area where the error was unclear at the time of trial but became clear on appeal because the applicable law had been clarified. The instruction was unclear at the time of trial because even though the Minnesota Supreme Court had strongly suggested that omitting the knowledge part was error – State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007) - the court had not required such an instruction until Milton. The result is that the court will apply a “time-of-error” approach to “plainness,” rather than a “time-of-appeal” approach to “plainness” analysis.
Just to be safe, the court also says that even if its approach to “plainness” is wrong the error did not affect Mr. Kelley’s substantial rights; and it did not affect the fairness and integrity of the judicial proceedings – the other two requirements of plan error analysis.