11/27/2013: No Published Supreme Court Criminal Opinions; Review Granted in One Case Which Presents Search Question

State v. McMurray, Minn.Ct.App., 9/16/2013, review granted, 11/27/2013.  Police searched Mr. McMurray's trash, and found some meth.  They bootstrapped that finding into a search warrant for Mr. McMurray's house, where they found more meth.  Mr. McMurray moved to suppress the evidence found inside the house, arguing that the Minnesota Constitution provides more of a reasonable expectation of privacy in one's trash than does the Fourth Amendment.  If so, then the meth found in the trash could not be used to support the search warrant for the house.  Mr. McMurray also raised ineffective assistance of counsel for the way in which trial counsel handled the stipulated facts trial; and he complained about the employment of a stipulated facts trial in this case.

11/25/2013: No Published Court of Appeals Criminal Opinions

Retrial Violated Double Jeopardy, But Error Does Not Warrant New Trial

State v. Chavarria-Cruz, Minn.S.Ct., 11/20/2013.  A jury acquitted Mr. Chavarria-Cruz of first degree premeditated murder for the benefit of a gang, but found him guilty of the lesser-included offense of second degree intentional murder for the benefit of a gang.  The Supreme Court reversed that conviction and sentence because Mr. Chavarria-Cruz’s right to counsel had been violated.  Read about that here.  On remand, a second grand jury indicted Mr. Chavarria-Cruz on first degree felony murder for the benefit of a gang and second degree intentional murder for the benefit of a gang.  Mr. Chavarria-Cruz moved to dismiss the felony murder charge; he said that this charge violated double jeopardy because of his acquittal of the first degree premeditated murder charge.  The trial court denied that motion and a jury convicted him of both counts.  The trial court imposed sentence on the second degree murder verdict and imposed the same sentence as imposed after the first trial.

Justice G. Barry Anderson agreed that double jeopardy precluded prosecuting Mr. Chavarria-Cruz  with first degree felony murder for the benefit of a gang.  The trial court had said that so long as any punishment from convictions in the second trial did not exceed the punishment imposed in the first trial there were no jeopardy concerns.  Justice Anderson said that this was incorrect because double jeopardy is not limited just to punishment.  Rather, it also concerns itself with multiple prosecutions.  Because the trial court’s analysis was incorrect, the supreme court reversed the denial of Mr. Chavarria-Cruz’s pretrial motion to dismiss the first degree felony murder charge.  In doing so, the court also criticized the state for not simply retrying Mr. Chavarria-Cruz on the remaining second degree murder charge.

Mr. Chavarria-Cruz is not, however, entitled to a new trial.  The test to be applied where there’s been a double jeopardy violation is whether there is a reasonable probability that Mr. Chavarria-Cruz would not have been convicted of the non-jeopardy-barred offense (the second degree intentional murder)  absent the present of the jeopardy-barred offense (the first degree felony murder).  Morris v. Mathews, 475 U.S. 237 (1986).

Justice Page agreed that Mr. Chavarria-Cruz was not entitled to a new trial.  However, he thought that the court’s analysis should have included a statutory analysis in addition to a constitutional one.  He concluded that both Minn.Stat 609.04 and 609.035 precluded a subsequent prosecution for the first degree felony murder charge.  He then applied a harmless error analysis to conclude that this error did not entitle Mr. Chavarria-Cruz to a new trial.

Justice Page also believed that the trial court had convicted and adjudicated Mr. Chavarria-Cruz of both counts, but only sentenced him on the second degree murder court.  That’s exactly what the court had previously said it could not do because it  had no discretion to ignore the mandated life without parole sentence under the first degree murder statute.  State v. Chambers, 589 N.W.2d 466 (Minn. 1999).  Justice Page recently dissented from an identical judicial sleight of hand when the court upheld the very same Mr. Chambers’ juvenile mandatory life without parole sentence, a sentence imposed under a clearly unconstitutional sentencing scheme.  See Miller v. Alabama. Read about that here.

No Right to Have Plea Agreement Accepted

State v. Klug, Minn.St.App., 11/18/2013.  The state charged Mr. Klug with two misdemeanors:  domestic assault and violation of a harassment restraining order.  Over the next year the two sides talked every now and then about settlement but eventually time ran out and the jury panel was standing around out in the hallway.  Both sides got serious at that point.  The state offered to dismiss one charge in exchange for a plea to the other.  Mr. Klug accepted that deal but the trial court would have none of it.  The judge told Mr. Klug he could either plead guilty to both misdemeanors or go to trial.  The judge was annoyed – not sure with whom – about the “effect of eleventh-hour negotiations on citizens [standing in the hall] who have cleared their calendars only to find that their service [was] not needed …”  Mr. Klug then entered a guilty plea to one of the charges and an Alford plea to the other.

On appeal, Mr. Klug complained that the trial court had abused its discretion by declining to accept the plea agreement reached on the morning of trial.  He said that he didn’t know of the judge’s policy of not accepting any plea agreement on the day of trial, but that had he known he would have come in the previous day and cut the deal.  Further, he said that he had a right to keep on negotiating right up to and including the day of trial.

The court of appeals rejects all of these claims.  The court says that there is no “right” to have a plea agreement accepted, on the day of trial or any other time.  Indeed, Rule 15.04, subd. 3(2) says only that the court may accept a plea agreement when the interest of justice would be served.  The rule goes on to list a bunch of factors that would be appropriate to consider in determining whether to accept a plea; the court fits the perceived inconvenience of the jury pool into the “efficient administration of justice” factor.  Ignorance of the court’s policy of no deals on trial day also didn’t cut it either. 

Mr. Klug also complained that he should have been permitted to withdraw the Alford plea because there was an inadequate factual basis for the plea.  Unwittingly or not, this framing of the issue seems to cut the legs out from under the rationale of Alford, that the sweet deal that accompanies an “I’m innocent!” guilty plea makes the whole thing make sense.  For Mr. Alford, against whom the state had strong evidence, “his interests require[d] entry of a guilty plea” because it avoided a possible death sentence.  On the other hand, Mr. Klug appears to have got nothing for his guilty pleas – the opinion does not say what the sentences were – that was not achievable by trial.  Neither the parties nor the court acknowledges this and, instead, focuses on the adequacy of a factual record to support the plea.  Efficiency, it seems, trumps logical jurisprudence.

11/13/13: No Published Supreme Court Criminal Opinions

11/12/13: No Published Court of Appeals Criminal Opinions

Court Rejects Establishment Clause Challenge to “Clergy Sexual Conduct” Statute

State v. Wenthe, Minn.S.Ct., 11/6/2013.  This is the “clergy sexual conduct” case in which Mr. Wenthe made both a facial and an as applied constitutional challenge to the statute.  The court of appeals had reversed the conviction, read here for a factual summary and that court’s assessment.  They had done so because the state, despite promises not to do so, had introduced a lot of evidence regarding church doctrine.  The court of appeals concluded that all this evidence invited the jury to convict Mr. Wenthe on the basis of his violation of church doctrine rather than violation of the criminal law.  This amounted to an “as applied” violation of the Establishment Clause.

Chief Justice Gildea reverses the court of appeals, rejecting both facial and as applied challenges.  The court returns the case back to the court of appeals to take up various other trial errors that the court of appeals had not addressed. 

Justices Dietzen and Wright took no part.  Justice G. Barry Anderson concurred in the opinion in order to write about the state’s apparent violation of the agreement not to introduce a bunch of evidence – indeed, the parties had agreed to “stay totally away from” – about church doctrine.  Justice Page dissented, reminding everyone that in the previous Opinion on this subject, State v. Bussmann, 741 N.W.2d 79 (Minn. 2007) he had concluded that the statute was unconstitutional on its face and as applied.  And he still thought so.

Special Interrogatory Should Have Been Given to Jury on Aggravating Factor of Possession of Firearm While Committing a 609.11 Subd. 5(a) Offense But Error Was Harmless

State v. Essex, Minn.Ct.App., 11/4/2013.  On his first day as chief judge of the court of appeals Judge Cleary hands down this opinion that examines two evidence sufficiency claims and a Blakely error.  Mr. Essex was drinking at his local bar; after the fifth or so “strong alcoholic” drink, he got “loud and boisterous.”  The bartender thought he’d had enough, gave him his bar tab and told him to hit the road.  Mr. Essex stormed out of the bar, then he banged on the large front window, apparently to get the bartender’s attention.  Which it did, because she testified that she then saw Mr. Essex point at her head as though he had a gun and say “boom, boom” before leaving.

Only to return later after closing.  Being a regular and all, the bartender testified that Mr. Essex knew that she was usually alone at closing time.  Instead, the bar’s owner’s son was helping out.  Mr. Essex now had a holster with a gun partway out of it.  The owner’s son went out to greet Mr. Essex.  When the bartender yelled to the owner’s son that Mr. Essex had a gun, the owner’s son grabbed Mr. Essex’s arms.  The bartender then grabbed the gun and took it inside the bar.

The state charged Mr. Essex with attempted second degree assault and with possessing a firearm in a public place while under the influence of alcohol.  (There were some other charges but the jury acquitted Mr. Essex of them.)  The jury convicted him of these two charges.  The trial court imposed an executed sentence of one year and a day, under the provision of Minn.Stat. 609.11, subd. 5(a).  This statute says that if a defendant possesses, uses or otherwise employs a firearm in committing a bunch of listed offenses (including attempted second degree assault) the presumptive sentence is commitment to prison.

The court makes fairly short work of the two evidence sufficiency claims.  Returning to the bar after hours, strapped with a firearm, along with all her other behavior, established both that Mr. Essex had the intent to commit second degree assault and that he took a “substantial step” toward committing that offense.  The possession of a firearm in a public place while under the influence of alcohol is a bit closer call when you know that Mr. Essex had a concussion.  The court rather glibly rejects the claim that the behaviors that Mr. Essex exhibited – slurred speech, bloodshot and watery eyes, poor balance – could have been caused by the head injury rather than intoxication. 

On the sentencing issue, the court says that the trial court should have submitted a special interrogatory to the jury on the aggravating factor of possession, etc. of a firearm while committing attempted second degree assault.  This error, the court concludes, was harmless error.