Supreme Court Accepts Review in State v. Lemert

The supreme court has accepted review of this court of appeals opinion, wherein the court of appeals said that the “right to frisk” can derive from the “right to stop” so long as the quantity of drugs is “large.”  Read about the court of appeals opinion here.

Exclusion of Third Party Perpetrator Evidence Does Not Violate Defendant’s Due Process Right to Present a Complete Defense

State v. Pass, Minn.S.Ct., 6/26/2013.  A jury acquitted Mr. Pass of two counts of second degree murder for the stabbing death of Tina San Roman, but deadlocked on two other counts assault and attempted murder for the stabbing of a second victim, O.A.R.  In the run up to a retrial on these unresolved counts the state (eventually) wanted to be able to tell the jury that O.A.R. had found Mr. Pass in the garage standing over Roman’s body, that Mr. Pass told O.A.R. to  help him because Roman had stopped breathing, and as O.A.R. tried to assist Mr. Pass, Mr. Pass attacked him with a knife.  Mr. Pass wanted to introduce evidence in support of his third party perpetrator defense which he admitted would be inadmissible because it would be unduly prejudicial, confuse the issues, and mislead the jury.  Mr. Pass then said that if the court agreed that his third party perpetrator evidence was inadmissible then the court should dismiss the remaining counts on a due process argument that he was being denied the right to present a complete defense.

The trial court excluded all of the proffered evidence about Roman’s death.  The court also explained that Mr. Pass could not present his third party perpetrator defense without using evidence related to Roman’s death and granted the motion to dismiss.  The court of appeals affirmed the dismissal and now Justice Stras, writing for a six member court, reverses.

The first question is whether the state can even appeal the dismissal without violating Mr. Pass’s double jeopardy rights.  If the dismissal constituted an acquittal on the merits then the state can’t appeal.  This determination turns on whether the dismissal was a resolution in the defendant’s favor of some or all of the factual elements of the offense charged.  State v. Sahr, 812 N.W.2d 83 (Minn. 2012).  Here, however, the trial court granted the dismissal motion on due process grounds, explicitly stating that exclusion of all evidence related to Roman’s injuries and death would not significantly reduce the likelihood of a successful prosecution.  So, the state can appeal.

And concludes that the trial court had excluded the third party perpetrator evidence under Rule 403 of the rules of evidence even though it didn’t really say that. That rule does permit the exclusion of evidence that is unfairly prejudicial, confusing or misleading.  But, that exclusion is “unquestionably constitutional.”  Montana v. Egelhoff, 518 U.S. 37 (1996) (plurality opinion).  The court reverses the decision of the court of appeals and sends the case back to the district court.

Whether Killing Cat was Justified Is Jury Determination and Not Probable Cause Challenge

State v. Gerard, Minn.Ct.App., 6/24/2013.  Mr. Gerard shot his neighbor’s cat.  It seems, or so Mr. Gerard believed, although he never actually saw the cat do this – well, at least not to the chickens; Mr. Gerard did say that he’d seen the cat kill the turkeys - that the cat liked Mr. Gerard’s young turkeys and chickens.  To kill and eat them, that is.  Well, when the deputy arrived first to find the expiring, bloodied  cat in the arms of its loving parents, and, second, to see Mr. Gerard’s chicken coop (full of chickens one supposes although the court doesn’t say), he could find no fault with Mr. Gerard’s actions.  He then put the cat out of its misery and sometime later he wrote an affidavit that said that Mr. Gerard had been justified in killing the cat. 

The state took a dim view of all this, and charged Mr. Gerard with felony unjustifiably killing the cat, (whose name we never learn.  We did learn that the cat was white, and wore a dark collar with a bell on it, although apparently neither a big nor loud enough bell.)  Mr.. Gerard moved to dismiss, saying that there was insufficient probable cause, in support of which he produced the deputy’s affidavit.  The trial court granted the defense motion and the state took an appeal.

And got a reversal.  The court of appeals said that the deputy’s opinion that Mr. Gerard was justified in killing the cat was inadmissible lay opinion.  And, that lay opinion about a point of law – whether Mr. Gerard was justified in shooting the cat – was not helpful to the jury.  Moreover, the state had produced enough evidence at the probable cause hearing that Mr. Gerard could have used a nonlethal means to protect his chickens, from which a jury could conclude that the killing was unjustified. 

Mr. Gerard goes back to face trial.  Shoo, kitty.

Court Declines to Consider Harmlessness of Error in Instructions When The State Did Not Assert Harmless Error

State v. Porte, Minn.Ct.App., 6/24/2013.  A jury convicted Mr. Porte of a number of counts of controlled substances offenses.  Officers stopped a van that Mr. Porte was driving.  The officers found dope in various places inside the van.  Mr. Porte told the jury that he was in the process of buying the van and that none of the drugs in it were his.  As part of the jury charge, the trial court gave the jury a “permissive-inference instruction:

In determining whether or not it has been proven beyond a reasonable doubt that defendant was in knowing possession of cocaine, you should consider all of the evidence presented. The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that defendant was the driver or in physical control of a passenger automobile and cocaine was present in the automobile.

On appeal, the court rejected a claim that the state had failed to present sufficient evidence to support the conviction. 

The “permissive-inference” instruction is a no-no:  State v. Litzau, 650 N.W.2d 177 (Minn. 2002).  The state, curiously, thought otherwise and only argued that the instruction was just fine.  It did not make even the alternative argument, “but, if the instruction was error it was harmless error.”  The court of appeals said, in that case, the state has waived that argument unless it was obvious that the error was harmless.  Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

It was not so obvious.  The court applied a test that the Seventh Circuit Court of Appeals articulated back in 1991 in the case of United States v. Giovannetti, 928 F.2d 225 (7th Cir. 1991).  Essentially, the Seventh Circuit said writing about an issue that no one raised is a lot of work; the judges (or their clerks) have to actually read the trial record.  Such a practice might even be harmful to an appellant who would not have had the chance to weigh in on the harmlessness of the error.  So, the court of appeals said it was just not going to do it.  The upshot of the waiver is that Mr. Porte get a new trial.

Supreme Court: NOT

6/19/2013:  No published supreme court opinions today.

Court Rejects Due Process Claim of Excessive Bail

State v. Thomas, Minn.Ct.App., 6/17/2013.  After police arrested Ms. Thomas on a drug charge, the trial court released her on a conditional release.  When she didn't perform the conditions the trial court modified bail.  Ms. Thomas could either pay $25,000.00 bail for an unconditional release; or she could pay $500.00 and pay for drug testing for a conditional release.  Ms. Thomas appealed the amended release terms, saying that because she could not afford to pay for the drug testing the court had set excessive bail.  She said that her rights under the Fourteenth Amendment -not the Eighth Amendment - to due process and equal protection were violated when the trial court based her release terms on drug testing that she could not afford.

The court of appeals summarily rejects these Fourteenth Amendment challenges, opting to stay, sort of, with an Eighth Amendment excessive bail analysis.  The court observes that what the trial judge did seemed within his discretion in setting terms of release, but that's just chatter.  The court admits that it is only rejecting a Fourteenth Amendment claim - the only claim made to the trial court - and is not ruling on any Eighth Amendment excessive bail claim.  That's because that claim was neither presented to the trial court nor presented to them.

Forensic Analysis of Lawfully Seized Computer Hard Drive is Not Subsequent Warrant-less Search

State v. Johnson, Minn.Ct.App., 6/17/2013.  In a stipulated facts trial, the trial court found Mr. Johnson guilty of five counts of possessing a pornographic work involving minors.  Agents from the BCA obtained a search warrant for Mr. Johnson's residence; the warrant specifically authorized the seizure of computer systems, hard drives, and the data contained on hard drives.  Agents seized a hard drive but did not get around to examining it for several months.  Mr. Johnson moved to suppress the evidence found during the forensic analysis, saying that the analysis was a warrant-less search.  The trial court disagreed, and the court of appeals affirmed the trial court.

The court said that Mr. Johnson did not retain a reasonable expectation of privacy in the contents of the hard drive.  This was because the drive and data on it were seized pursuant to a search warrant authorizing a seizure of that very hard drive.  Further, the search warrant authorized the seizure and search of the data on the hard drive.  The court likened the hard drive to a container that has already been lawfully opened, found to contain contraband and then resealed.  Resealing the container neither revives nor restores the lawfully invaded privacy rights.  Illinois v. Andreas, 463 U.S. 765 (1983).  So, peeking into the box, or subjecting it to a data analysis for that matter, is not a "search."  

Mr. Johnson also complained about the sentence, specifically that the trial court abused its discretion by not considering a downward dispositional departure.  Now, the agreement did not call for a sentencing departure and defense counsel neither moved nor argued for one.  Counsel just pointed out that the judge had the discretion to sentence more leniently than the parties' agreement specified.  The court of appeals says that a trial court is not required to abide by the parties' sentencing agreement, but in this case there were no compelling circumstances to support a sentencing departure.  Because of that, the trial court did not abuse its discretion by imposing the guidelines sentence.

Motion For Post Conviction DNA Testing Fails to Establish Sufficient Chain of Custody to Authorize Testing

Wayne v. State, Minn.S.Ct., 6/12/2013.  Mr. Wayne is serving a life sentence for the murder of Mona Armendariz, which occurred back in 1986.  In February, 2012, Mr. Wayne filed a motion to  have Armendariz’s underwear tested for DNA.  He made this motion under Minn.Stat. 590.01, subd. 1a, which authorizes such testing under delineated  circumstances.  One of the requirements that must be shown is that the evidence sought to be tested  has been subject to a chain of custody sufficient to establish that it hasn’t been messed with.  Mr. Wayne admitted in his pleading that he didn’t even know if the underwear still existed.

This was enough for Justice Page to say that the request was properly denied.  Justice Page went on, however, much to the annoyance of Justice Stras, to say that Mr. Wayne had also not established that such testing was materially relevant to his assertion of actual innocence, which is another requirement for testing.  And, again to Justice Stas’s annoyance, Justice Page also said that if, as the trial court had done, the court treated the 1a motion as a full blown petition it was untimely and did not meet any of the limitations exceptions.

Justice Stras concurred in the result only.  He would have stopped with the first conclusion, lack of proof of an adequate chain of custody.  He then hinted that he thinks that a 1a motion is subject to the two year limitations period.

The new justice, Justice Lillehaug, did not participate in the decision.

Justice Paul Anderson Court Festival

6/11/2013:  Until yesterday I had believed that I had posted this announcement about the multitude of opinions that came out of the Supreme Court on Justice Paul Anderson's last day on the court.  Here's what I wrote (and some may have actually seen if you have a blog feed of some sort).

5/31/2013:

Justice Paul Anderson’s last day on the court was this past Friday.  There were a slew of opinions.  It seemed, though, that the remaining justices were more keen on showing Justice Anderson the door rather than bidding him a fond farewell.  The opinions in which the Justice was not in the majority excoriated him in lengthy footnotes.  Justice Anderson gave as good as he got. Anyway, it may take a few more days to work through the five criminal opinions.

Miller v. Alabama Not Retroactive in Minnesota

Chambers v. State, Minn.S.Ct., 5/31/2013.  Justice Dietzen, in a 5-2 opinion, holds that Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), does not apply retroactively in Minnesota.  Mr. Chambers, whom I’ve represented on and off – including the filing of this post conviction petition – since the day after the crash is serving a life without possibility of release for a homicide committed when he was a juvenile.  Miller held that a mandatory life without possibility of release for a juvenile homicide offender violates the Eighth Amendment. 

Justices Page and Paul Anderson dissented.  Ultimately, SCOTUS will have to answer the question whether Miller is retroactive.

ADDENDUM:  Some of the postings/links got messed up in the flurry of the last Opinions from Justice Paul Anderson.  This one among them.  Here's what I had written the first time I posted about this case:

In a 5-2 Opinion, Justice Dietzen announces that the rule of Miller v. Alabama,  does not apply retroactively in Minnesota.  Miller announced last year that a mandatory sentence for a juvenile who has been convicted of a homicide of life without possibility of release violates the Eighth Amendment. 

A jury convicted Tim Chambers of first degree homicide back in the late ‘90’s.  At sentencing, his trial attorney – me – argued that a mandatory sentence of life with possibility of release violated the Eighth Amendment (and the companion state constitutional provision).  The trial court disagreed, and the Minnesota Supreme Court upheld the life without parole sentence on direct appeal, rejecting my continued argument to the contrary. 

Justices Paul Anderson and Page dissented.  Here’s part of the introduction to Justice Anderson’s dissent:

I cannot understand, much less appreciate, why the majority is so drawn to the continued imposition of a cruel and unusual punishment. The majority consciously avoids the clear and principled lines of legal analysis available to it to remand this case to the postconviction court. The postconviction court should be allowed to fix the constitutionally defective portion of Chamber’s sentence—its mandatory nature—and to resentence Chambers in accordance with his constitutional rights as articulated by the Supreme Court in Miller.

There is No Remedy For Prison Sending Detainer Request to Incorrect Prosecutor; and Incorrect Prosecutor Has No Obligation Either to Send Detainer Request to Correct Prosecutor or Return It to The Prison

Resendiz v. State, Minn.Ct.App., 6/10/2013.  While Mr. Resendiz was serving an unrelated prison sentence, the Hennepin County Attorney’s Office charged  him with first degree assault.  Mr. Resendiz requested final disposition of the assault charge by completing the requisite form, on which he correctly identified the Hennepin County Attorney as the prosecutor.  The prison, however, sent the request to the Minneapolis City Attorney’s Office, who ignored it.  Eight months later the Hennepin County Attorney learned of the request.

Mr. Resendiz then came to court and pled guilty, receiving a concurrent sentence.  Later, he filed this post conviction petition saying that his trial attorney provided ineffective assistance of counsel by not asserting his rights under the detainer statute.  The post conviction court denied the petition, saying that the prison was negligent at most and that the city attorney’s office hadn’t violated any affirmative duty to forward the request through the tunnel from City Hall up to the County Attorney’s Office in the government center.

The court of appeals concludes that sending the request to the wrong prosecutor was good enough for government work.  This is because the detainer statute provides for no remedy for this cock up.  Rather, the statue provides a remedy in only two instances:  when the prisoner is not brought to trial within six months after the court and the (correct) prosecutor receive the request; and when the prison fails tell the inmate about the new charge and his right to request final disposition.

Now, over at the city attorney’s office, the court says that they can ignore the request on the form asking that if the form had not got to the correct prosecutor would you please designate the proper agency on the form and send it back to the prison.  They can ignore this because there is nothing in the detainer statute that imposes this onerous burden upon them.  They can hang on to one of their forever first class stamps.

So, since no one – Mr. Resendiz, the prison, the county attorney, the city attorney – did anything wrong, counsel could not have been ineffective for not raising the detainer statute.  Way to step up everybody.

Sentence That’s Greater Than Terms of Plea Agreement is not Knowing and Voluntary

Uselman v. State, Minn.Ct.App., 6/10/2013.  Mr. Uselman is a resident at the Moose Lake Treatment Center.  He pled guilty to assaulting one of the program staff.  The plea agreement stated that his sentence would not include a mandatory five year conditional release term.  The boilerplate on the plea petition included this handwritten declaration:  “In this case the period of conditional release is N/A years.”  At sentencing, however, the court, with apparent defense counsel acquiescence, imposed the conditional release term.

Well, this recitation in the plea agreement is incorrect  under the law because this conditional release term can’t be waived.  Mr. Uselman ultimately timely filed a post conviction petition seeking to withdraw his guilty plea.  The court of appeals agrees with his argument that his plea was not knowing and voluntary because the plea agreement rested upon a promise that the state could not fulfill.  Further, the trial court had a duty to inform Mr. Uselman that it intended to impose a sentence greater than the parties’ agreement and permit him to withdraw the plea.

The post conviction court had thought that Mr. Uselman’s knowledge of the conditional release term could be inferred.  The court of appeals couldn’t get past just how that’s possible in the face of an express provision in the plea petition to the contrary.  Moreover, the state admitted that the guilty plea occurred under the terms of that plea agreement.

Mr. Uselman gets to withdraw his guilty plea if that’s what he wants to do.

Supreme Court: No Opinions

6/5/2013:  No published criminal opinions today.

Potential Juror’s Repudiation of “Mental Illness” Defense, Rather than the “M’Naghten” Defense Does Not Express Actual Bias To Support Removal For Cause

State v. Munt, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Munt of four counts of first degree murder and various sundry other crimes, all arising out of the shooting death of his ex-wife Svetlana and the kidnapping of their three children.  Mr. Munt pled not guilty by reason of mental illness.

During jury selection, the prosecutor inquired of a prospective juror about her views on mental illness:

Q: I just want your opinion; what —in general what do you think if somebody comes into court and says, yeah I did it but I am mentally ill and—you know—I am really not responsible for what I did, what’s—what’s your thought on that?

A: My personal opinion about it [is] if you confess then you are aware that you did [it], so basically mental illness or not you are [aware] of what you did so you should be held responsible.

Mr. Munt believed that this answer expressed actual bias against his mental illness defense such that this potential juror should be struck for cause.  Justice Dietzen, writing for four members of the court with Justices Wright, Page and Paul Anderson dissenting on this issue, thought otherwise.  The justice came up with a couple of reasons to support this conclusion.  First, the potential juror, being unversed in the law, could not possibly have been expressing a bias against the M’Naghten standard since she knew nothing about it.  The trial court had not yet explained it.  Whatever she was rejecting it wasn’t that.  Justice Dietzen supports this assertion by hauling out Justice Stras’s dictionary to recite the “ordinary” definition of “mental illness,” and then contrasting that with the M’Naghten definition.

Second, she’d already told the trial judge that she could follow the court’s instructions.  So, when you looked at her entire set of answers, Mr. Munt had not shown actual bias.

Just before closing arguments the trial judge gave the jury some scheduling information.  Essentially his comments rather strongly suggested that there would be a second phase of the case – the mental illness defense – following deliberations on guilt/innocence.  He told them that they would be taking the upcoming Friday off and then returning for the next phase on Monday.  The trial judge also told the alternative jurors as he dismissed them that they did not have to return for the mental illness phase of the trial.  Mr. Munt thought that the judge was signaling the jury what verdict to return on guilt/innocence and thereby displayed bias.  The court rejects this argument, essentially editing the judge’s comments to soften the blow of what he really said.  Justice Dietzen also  pulled out the boilerplate where the judge tells the jury that nothing he’s said or done during the trial was intended to express an opinion on the facts or outcome.

Next, Mr. Munt complained that the trial court had wrongly denied his request to present surrebuttal testimony.  Rather than addressing the issue the court took its usual way out on this by assuming that the denial was wrong, then concluding that it was harmless beyond a reasonable doubt.

Mr. Munt wanted to present testimony from his nine year old daughter but the trial court determined that she was not competent to testify.  The nine year old initially refused to leave her foster home to come to court, saying that  the was afraid of Mr. Munt, men, and specifically the judge (a man).  It took three adults to convince the nine year old to enter the courthouse, and even then she refused to speak with the judge.  The trial judge concluded that since he could not assess the nine year old’s ability to relate events truthfully he had to find her incompetent to testify.

A child under the age of ten is presumed competent to testify unless the judge finds that the child lacks “the capacity to remember or to relate truthfully facts respecting which the child is examined.”  Minn.Stat. 595.02, subd. 1.  While the refusal to appear in court does not, by itself, render a witness incompetent to testify, in this case the nine year old was incapable of relating any facts at trial. 

Mr. Munt complained at various points about the adequacy of his appointed counsel and requested substitute counsel be appointed.  The court said that Mr. Munt had not established the “significant circumstances” that would warrant further inquiry into his complaints or the appointment of substitute counsel.  State v. Worthy, 583 N.W.2d 270 (Minn. 1998).

Justice Wright, joined by Justices Page and Paul Anderson, dissented on the actual bias determination.  The dissent concluded that the majority was being hyper-technical and that everyone in the courtroom knew what was being discussed with this potential juror.  The dissent concluded that actual bias had been demonstrated and they would have reversed and remanded for a new trial on the mental illness defense.

Court of Appeals: No Published Criminal Opinions.

6/3/2013:  No published criminal court of appeals opinions today.

Evidence Sufficient to Support First Degree Murder/Pattern of Past Domestic Abuse

State v. Hayes, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Hayes of first degree murder while committing domestic abuse with a past pattern of domestic abuse, for the death of his girlfriend’s 13 month old son, Robert Azure, Jr.  Mr. Hayes complained about the sufficiency of the state’s evidence; and on appeal he complained that the jury should have been instructed that a past pattern of domestic abuse required proof beyond a reasonable doubt of at least two prior acts of abuse and that the jury needed to agree unanimously on which two specific acts of past abuse were proven. 

The number of prior acts of abuse were between four and twenty, depending on who was counting.  Mr. Hayes wanted to distinguish prior acts of abuse against his adult romantic partner from acts against the kids.  Justice G. Barry Anderson, writing for the majority, declines to adopt such a distinction and concludes that the state’s evidence of a past pattern of domestic abuse sufficed to support the conviction.

Turing to the jury instructions, reviewed for plain error, the court said that it had already rejected the claim that there must be at least two separate incidents of domestic abuse when it decided State v. Hokanson, 821 N.W.2d 340 (Minn. 2012).  On his unanimity assertion, again, the court answered that question in State v. Crowsbreast, 629 N.W.2d 433 (Minn. 2001).

Justice Stras concurred in the result, but did a short riff on his sufficiency standard of review concerns.  See State v. Silvernail. 

Justice Paul Anderson dissented, joined by Justice Page.  He thought that the testimony of the medical examiner came close to, if not actually invading the province of the jury to decide the facts.  He also expressed his fears that juries are too easily flummoxed by expert testimony, in this case, the state medical examiner, all the more so when the prosecutor’s closing argument gets a bit carried away. 

Closing Courtroom Doors During Closing Arguments is (Again) “Too Trivial” to Implicate Right to Public Trial.

State v. Silvernail, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Silvernail of first degree premeditated murder.  He argued on appeal that the state failed to prove that he murdered the victim, Lori Roberts.  He also argued that the trial court committed reversible error by locking the courtroom doors before the state began its closing argument.

Justice Page concluded that the state’s evidence was sufficient to uphold the conviction.  There were no witnesses to the murder so that made the state’s case circumstantial.  However, the police did discover blood from the victim on Mr. Silvernail’s clothes, and two jail house snitches claimed that Mr. Silvernail confessed to them, both of which are direct evidence of his commission of the crime.  The court ducked the legal question of what standard of review applied when the state’s proof was both direct and circumstantial by saying that even under the more favorable circumstantial evidence standard the state’s proof was enough. 

Justice Stras, concurring and joined by Justice Dietzen, calls out the majority for not doing the heavy lifting on the sufficiency of evidence standard.  He opines that the circumstantial evidence standard never should apply to the court’s review of an element of a criminal offense that the state has proven by direct evidence.  Ever the grammarian, Justice Stras would parse the proof into the appropriate offense element.  Elements proven by direct evidence are reviewed under “the traditional standard” an elements proven by circumstantial evidence are reviewed under the Ortega two step.  State v. Ortega, 813 N.W.2d 86 (Minn. 2012). 

On the courtroom closure question, the court said that this closure was “too trivial” to violate Mr. Silvernail’s right to a public trial.  See State v Lindsey, 632 N.W.2d 652 (Minn. 2001); State v. Brown, 815 N.W.2d 609 (Minn. 2012). 

Justice Paul Anderson dissented on closing the courtroom doors.  On his own way out the door, Justice Anderson would have remanded the case back for a new trial.  The U.S. Supreme Court declared in Waller v. Georgia, 467 U.S. 39 (1984) what has to be established in order to shut the courtroom doors: an overriding interest (to the party seeking closure) likely to be prejudiced; closure must be no broader that necessary to protect that overriding interest asserted; the court must consider reasonable alternatives; and the court must make adequate findings to support the closure.  The Justice says not one of these factors was met here.  Justice Anderson also drops in a footnote that lists the spate of denied petitions for review which raised an issue about courtroom closure. 

Murder Conviction Upheld Over Fourth Amendment And Evidentiary Ruling Challenges.

State v. Zornes, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Zornes of two counts of first degree premeditated murder.  There was an arson conviction in there somewhere as well.  Once Mr. Zornes became a suspect and the police knew where he was, they arrested him out in the woods at his campsite.  In a pat down search of Mr. Zornes, the police found a folding knife.  Strewn about the campsite, they found a hammer, a screwdriver, a utility knife and a scissors.  At the police station, Mr. Zornes invoked his right to remain silent.  In the course of “processing” Mr. Zornes – looking for injuries, taking photos and the like – the officers told him that they were going to use a sexual assault kit to take DNA samples from him.  Mr. Zornes grumbled about this, remarking “this wasn’t anything sexual” or “it wasn’t sexual related.”  Several hours later, the cops got a search warrant for the DNA collection.

Mr. Zornes moved to suppress the evidence obtained from him during the campsite arrest and search; to suppress the results of the DNA testing at the police station; and to suppress the “this wasn’t anything sexual” statement.  Mr. Zornes argued that the stuff seized at the campsite was not sufficiently connected to the crime scene and were thus not relevant.  The trial court allowed the introduction of these things, concluding that what to make of them was the jury’s job not his.  The supreme court agreed, saying that admission of these items had not been an abuse of discretion.

The trial court threw out the DNA testing, saying there was no reason not to have first got the warrant that they got three or so hours afterwards.  No one took issue with that on appeal.  But, the trial judge admitted the statement, saying that Mr. Zornes had made the statement before the cops physically touched him to get the DNA exemplar so the statement had not been the result of the unlawful search to acquire the DNA exemplar.  Justice Paul Anderson, writing for the Court, said that the court didn’t have to decide any of this because any error in admitting the statement was harmless beyond a reasonable doubt. 

During jury selection, the trial court asked two persons, both on a combined witness list, to leave the court room, although one of them was allowed to watch from an observation room.  Mr. Zornes complained about this on appeal, saying that the trial court had deprived him of his right to a public trial.  because jury selection is part of the trial process, a trial judge has substntial discretion whether to exclude a potential witness from the court room.  As to the fellow in the observation room, the state agreed to remove him from the witness list so at that point he became “the general public.”  Under the factors identified in State v. Lindsey, 632 N.W.2d. 652 (Minn. 2001), the court concluded that this second individual, excluded from the court room to observation room, was too trivial an exclusion to implicate Mr. Zorne’s Sixth Amendment right to a public trial.

Finally, the court upheld the trial court’s ruling on impeachment of Mr. Zornes by use of prior convictions, under the Jones factors.

Because Defendant Alleged Sufficient Facts to Warrant Evidentiary Hearing, the Post Conviction court Abused its Discretion When it Denied the Petition Without a Hearing

State v. Nicks, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Nicks of the first degree murder of Johanna Hollis, and of the attempted first degree murder of her daughter, A.R.  The state’s case turned in large part on certain cell phone records that indicated that Mr. Nicks was in the vicinity of the shooting, and supported the claim made by two witnesses that Mr. Nicks had made threats to Hollis on the night of the murder.  These records show that he placed two calls to Hollis’s cell phone, but Mr. Nicks insisted that these calls went to voicemail, that he did not speak with Hollis that night, and that there were no threatening calls between Hollis and him.  Trial counsel sought the Hollis cell phone records but it does not appear that counsel got them.

Appellate counsel had a forensic expert examine Hollis’s cell phone.  This examination, Nicks alleged in his post conviction petition, revealed that Hollis could not have received the alleged threatening phone calls from Nick’s phone.  The post conviction court denied Nick’s petition without a hearing upon receipt of this information.  Mr. Nicks appeals directly from the trial and from the denial of post conviction relief, primarily asserting that trial counsel provided ineffective assistance as a result of not getting the cell phone records and conducting a forensic exam of Hollis’s phone.

Justice Paul Anderson concludes that Mr. Nicks is entitled to an evidentiary hearing on his ineffectiveness claim.  Obtaining Hollis’s cell phone records, rather than being a course of action that counsel considered and rejected, was a central part of his theory of the case and his strategy at trial.  It was hardly a “strategy” that remains unreviewable under Strickland.  When counsel fails to conduct a thorough investigation of facts that are so directly related to the theory of the case, that conduct falls below an objective standard of professional conduct that defendant’s are entitled to under the constitution.  Regardless whether counsel’s performance actually fell below this standard is not the question when deciding whether to grant an evidentiary hearing; rather, the question is whether the allegations conclusively fail to show such a fall.   

Chief Justice Gildea and Justice Dietzen dissented.

The permanent links to Friday’s opinions are not up yet; check back in a day or two.