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.

District Court Exceeded Its Authority in Expungement of Executive Records;Failed to Make Findings To Support Expungement of Judicial Records

State v. A.S.E., Minn.Ct.App., 8/19/2013.  Back in 1996, A.S.E. pleaded guilty to felony theft, wrongfully obtaining welfare benefits; and in 1997 a jury found A.S.E. guilty of misdemeanor theft.  In 2012,  thirteen years after discharge from probation, A.S.E. petitioned for expungement of  both convictions.   The district court granted the requests, ordering expungement of both executive and judicial records.  The state appealed.

After that, the supreme court released its opinion in State v. M.D.T., 831 N.W.2d 276 (Minn. 2013), which pretty much put the courts out of the business of expunging executive records.  And while the court still have discretion under its inherent power to expunge judicial records, here the district court made no findings in support of its expungment order.  So, the court of appeals sends the case back for those findings.

Court Declines To Adopt Per Se Rule That a Victim’s Refusal of Medical Care May Never Be a Superseding Cause of Death

State v. Smith, Minn.S.Ct., 8/14/2013.  This comes up from the court of appeals.  Read here.  A jury convicted Mr. Smith of criminal vehicular homicide for causing the death of a 93-year old, Ms. Schouveller, who was a passenger in the car that Mr. Smith crashed into.  Ms. Schouveller developed multiple complications from her injuries, which necessitated the need for intubation.  However, Ms. Schouveller’s living will prohibited that procedure.  She died about a month after the car crash.

Mr. Smith argued that the “do not resuscitate” order was an superseding cause of Ms. Schouveller’s death, that the trial court had incorrectly instructed the jury on causation, and that the state had presented insufficient evidence to prove causation.  Justice Page, writing for a five member court – Wright and Lillehaug not participating – rejects all of these claims.

Mr. Smith did not object to the causation instruction so the review is for plain error.  Mr. Smith said that the instruction had been correct as far as it went, but the jury should also have been told that a finding of a superseding cause defeated the state’s proof of causation.  Justice Page concludes that additional language was unnecessary so  the instruction was proper. 

The court also rejected Mr. Smith’s sufficiency argument.  The court said that Mr. Smith’s conduct did not need to be the immediate cause of death, only the proximate cause.  It is sufficient if a defendant’s act was “the cause of the cause” of death.

On the intervening cause argument, such an intervening event must be the sole cause of the end result.  State v. Olson, 435 N.W.2d 530 (Minn. 1989).  The court would not adopt the state’s argument that a victim’s refusal of medical care may never be a superseding cause of death.  Rather, this is a question of fact for the jury.  For Mr. Smith, the court concludes that there was sufficient evidence for the jury to find that the do not resuscitate order was not a superseding cause of death.

Trial Court Erred in Denying Appellant’s Motion For Judgment of Acquittal, But Retrial Does Not Violate Double Jeopardy

State v. McCormick, Minn.Ct.App., 8/12/2013.  A jury found Mr. McCormick guilty of second degree manslaughter.  I’ll get to the facts in a minute but it has to do with a deer stand.  The trial court then denied Mr. McCormick’s motion for a judgment of acquittal but granted his mistrial based upon prosecutorial misconduct; the prosecutor elicited statements attributed to the deceased, J.B., even though the trial court had excluded all such statements.  The trial court also said that the state could retry him.  Mr. McCormick appealed the denial of his motion for judgment of acquittal and the double jeopardy claim.

Mr. McCormick discovered a deer stand which he believed, incorrectly,  was on his property.  Mr. McCormick confronted J.B., who was on the deer stand at the time, about getting the deer stand off his property.  During this exchange  the deer stand collapsed.  This was midmorning.  That evening, J.B. was taken by ambulance to the hospital where medical providers discovered that J.B. had a dislocated shoulder, multiple broken ribs, and thoracic spinal fractures.  Almost three weeks later J.B. died from complications from those injuries.

Back to the deer stand.  After the thing collapsed J.B. rode back to his camp on his ATV.  Members of his hunting party said that J.B. was uncharacteristically quite during lunch, his face was flushed; no one, however, saw any signs that he was in pain.  Before lunch, J.B. cleaned his rifle that had  got plugged with mud when the deer stand fell, then test fired it.  After lunch, J.B. went to a different deer stand, although with some difficulty.  Between six and seven that evening, another member of J.B.’s hunting party found J.B. lying in bed still dressed in his hunting gear and boots; he was moaning and groaning, breathing heavily, struggling to breath and in pain.  That’s when the medics were called.

Mr. McCormick made several statements about what had occurred.  The gist of each of his statements was that the deer stand had tipped over as he either climbed or got onto the stand in order to give J.B. what for about the trespass, as well as to give him a business card.  (The cops found the card amidst the collapsed deer stand.)   He also recorded a reenactment of the stand’s collapse, which, again, had the stand tipping over when he tried to give J.B. a business card.  The doctors weighed in on each side about manner and cause of death.  The state’s docs said it was from the injuries from the collapse of the deer stand; the defense doc said, no, it had to be from injuries sustained separately thereafter, between the time that J.B. had gone to the second deer stand and when he was found in bed back at his camp.

Now the lawyers get into it.  What is the correct standard of review?  If the appeal is a challenge to the sufficiency of the evidence to support the jury’s verdict then that verdict enjoys a deferential standard of review.  The reviewing court’s job is to identify all reasonable inferences that can be drawn by the jury from the circumstances proved by the evidence and to determine whether those inferences support any rational hypothesis other than guilt.  State v. Al-Naseer, 788 N.W.2d 469 (Minn. 2010); State v. Anderson, 784 N.W.2d 320 (Minn. 2010).  Here, the court of appeals said that there is no verdict because the trial court’s grant of a mistrial vacated that verdict.  According to the majority, the appeal is from the denial of a motion for judgment of acquittal, review of which presents a question of law, reviewed de novo.  It thus falls to the reviewing court to identify those reasonable inferences that can be drawn from the evidence, and for the reviewing court to determine whether those inferences support any rational hypothesis other than guilt.

In a 2-1 opinion, the court of appeals says that they don’t.  The majority concludes that some inferences that can be drawn are inconsistent with guilt and there is thus a reasonable doubt as to guilt.  The majority also upholds the trial court determination that the state could retry Mr. McCormick.  The dissent would have used the more deferential standard of review and would have upheld the denial of the motion for judgment of acquittal.

Uniform Mandatory Disposition of Detainers Act Not Applicable to Delay in Sentencing.

State v. Brown, Minn.Ct.App., 8/12/2013.  Mr. Brown pled guilty in Ramsey County to criminal sexual conduct in the third degree.  This was back in June 2010; a month later he failed to show up for sentencing.  Four months later, Mr. Brown pled guilty across the river in Hennepin County to simple robbery and got sent to prison.

Ramsey County then filed a detainer that it claimed did not entitle Mr. Brown to request disposition under the uniform Mandatory Disposition of Detainers Act because he had already pled guilty.  From prison Mr. Brown sent a letter to the Ramsey District Court asking that court to execute his sentence on their case and to run it concurrently.  After a while – more than six months – Mr. Brown filed a motion to dismiss the Complaint because he hadn’t been brought in for sentencing within six months.  The trial court denied that motion and imposed a Guidelines sentence.  Mr. Brown appealed the denial of his motion to dismiss.

The uniform act says that an untried indictment or complaint against a prisoner must be “brought to trial” within six months of receipt of the prisoner’s request under the act.  Mr. Brown said that the sentencing hearing was part of the trial and when his sentencing hearing did not occur within the six month window he was entitled to a dismissal of the charges.  The court of appeals disagreed, saying that “trial” only refers to the guilt phase of a criminal case.  So, the uniform act does not provide for the dismissal of a complaint based on a delay in sentencing.

Request to Reduce Length of Sentence Without Merit

Townsend v. State, Minn.S.Ct., 8/7/2013.  In this his fifth petition for post conviction relief Mr. Townsend asked the court to reduce the length of his sentence.  The trial court had sentenced Mr. Townsend to life with possibility of release on a murder one conviction, and then at a subsequent hearing to a consecutive seventy-two months on an attempted murder two conviction.  In this latest court missive, Mr. Townsend asked that the two sentences be ordered to be served concurrently and to switch the jail credits previously given on the seventy-two month sentence to the life sentence.

Mr. Townsend actually filed his papers under Rule 27.03, subd. 9.  The trial court treated the pleading as a post conviction petition and threw it out as time barred.  Justice Dietzen – Lillehaug not participating – ducks the question whether either the statutory time bar under the post conviction statute or the procedural bar under Knaffla apply to a motion under Rule 27.03 by concluding that Mr. Townsend’s request lacks merit. 

Mr. Townsend argued that the consecutive sentences were a departure under the Guidelines that were not supported by sufficient reasons.  The problem with that argument is that the Guidelines, II.F.2 (1992) said that consecutive sentences were not a departure when the crimes were against different persons.  Mr. Townsend’s other argument had to do with application of jail credits.  Jail credits are calculated from the date of arrest to the date of imposition of sentence.  At the time of the sentence of life, Mr. Townsend actually only had 352 days of jail credit.  However, at his attorney’s request, the trial court had given him five hundred ninety-seven days of jail credit – the calculation from date of arrest to date of sentence of the 72 months - against the seventy-two month consecutive sentence.  Even though Mr. Townsend is correct that jail credits should have been applied to the life sentence, in this instance this would actually have increased the overall length of imprisonment.  By putting all of the jail credits on the seventy-two month sentence the court cut Mr. Townsend just a bit of slack.   

Although Portions of State’s Grand Jury Presentation Were “Problematic” Dismissal of Indictment was Not Required.

State v. Morrow, Minn.S.Ct., 8/7/2013.  A grand jury indicted Mr. Morrow with one count of first degree premeditated murder, two counts of attempted first degree premeditated murder and seven other counts.  A jury convicted him on everything and the court imposed a life sentence without possibility of parole on the top count.  Mr. Morrow raised a number of issues on appeal, including the denial of his motions to dismiss the indictment on various grounds, and to suppress his statement to the police.  Justice G. Barry Anderson – Wright & Lillehaug not participating - affirmed the conviction and sentence.

Mr. Morrow, through counsel, notified the prosecutor that he wanted to testify before the grand jury.  The attorneys then spent some time negotiating whether that would happen; it didn’t and instead, the grand jury heard an officer’s summary of Mr. Morrow’s statement to the cops.  Mr. Morrow complained that what the cop told the grand jurors misrepresented what he’d said to the point of more or less eviscerating his claim of self defense.   Mr. Morrow also complained that the prosecutor failed to present exculpatory evidence and failed properly to respond to questions from the grand jurors.  The court summarily rejects Mr. Morrow’s clam that he had a right to testify before the grand jury; rather, the decision to call a defendant as a witness before the grand jury is a discretionary decision that was not abused in this case.

Mr. Morrow also claimed that his testimony would have been exculpatory but the court was not presented with an offer of proof of what that evidence would have looked like.  On his claim that the officer misrepresented his statement to the grand jury the court concludes that even though there were some inaccuracies in it, it was close enough for government work.  The court does describe portions of the officer’s summary to the grand jury of Mr. Morrow’s statement as “problematic,” but not so much to overcome what the court described as a “heavy burden” that has to be satisfied to dismiss an indictment.

At the beginning of Mr. Morrow’s custodial interrogation he asked the officers if could talk to his Dad if he cooperated with them “one hundred percent.”  The officers told him that if he told them the truth and if they believed him then he would be allowed to make the call to his Dad.  Mr. Morrow argued that this made his statement involuntary because the officers exploited Mr. Morrow’s special relationship with his father.  The test whether a defendant’s statement is voluntary is whether that defendant’s will was overborne at the time of his confession, determined under a “totality of the circumstances” analysis.  State v. Zabawa, 787 N.W.2d 177 (Minn. 2010).  The court affirms the trial court’s conclusion that the statement had been voluntarily made.

The trial court permitted the state to introduce a photograph of the deceased, who was a grown man at the time of his death, as a child.  The court upheld the introduction of this photograph – “spark of life” – concluding that it was not used to invoke undue sympathy or to inflame the jury’s passions.  See State v. Scales, 518 N.W.2d 587 (Minn. 1994). 

8/5/2013: No Published Court of Appeals Criminal Opinions Today