1/29/2014: No Published Supreme Court Criminal Opinions

1/27/2014: No Published Court of Appeals Criminal Opinions

“First Appellate Review” By Post Conviction Proceedings Is Not “Direct Appeal” Under Post Conviction Limitations Provision

Staunton v. State, Minn.S.Ct., 2/22/2014.  The court’s obsessive, unrelenting assault on the post conviction statute continues.  Although Justice Dietzen writes for a unanimous court, that unanimity is only for the result.  A bare majority concludes that Mr. Staunton’s petition was untimely because it was not filed within two years of “an appellate court’s disposition of petitioner’s direct appeal.”  Minn.Stat. 590.01, subd. 4(a).  To arrive at this result, the majority has to concoct a disingenuous re-interpretation of what a “direct appeal” means in Minnesota.  

Mr. Staunton got convicted, filed an appeal which the court stayed while  he pursued a post conviction petition.  He withdrew that post conviction petition without prejudice and at Mr. Staunton’s request the court dismissed the appeal.  After a while Mr. Staunton filed a second post conviction petition which went away without a decision on the merits.  Still later, Mr. Staunton filed a third post conviction petition which the post conviction court denied after an evidentiary hearing.  On appeal from that denial the court agreed that this appeal was “the first appellate review of his claims” to which the state agreed he was entitled.  The court affirmed Mr. Staunton’s conviction.

The trouble starts when Mr. Staunton filed this fourth post conviction petition.  He said, correctly, that he filed it within two years of the disposition of his appeal of his third post conviction petition.  He went on to say that because the appeal of his third post conviction petition was his “first appellate review of his claims” that the disposition was the equivalent of a disposition of his “direct appeal”.  In other words, it was his direct appeal and so he could file this fourth post conviction petition within two years of the disposition of that appeal.  Which he did.

Minnesota has consistently said that a convicted defendant is entitled to a full appellate review of his claims.  That convicted defendant may do so either by an immediate appeal – the one commenced within ninety days of sentencing - or by post conviction petition – which until 2005 could be filed at just about any time.  This jurisprudence goes all the way back to 1976, in State v. Knaffla, 309 Minn.246, 243 N.W.2d 737 (1976).  There the court said that a first review by post conviction proceeding “is substantially similar in scope to a direct appeal.”  The court said that the only limitation was the additional procedural requirements of the post conviction statute.  (Not only that, but when that “full appellate review” is by post conviction petition, that defendant is entitled to appointment of counsel.  Deegan v. State, 711 N.W.2d 89 (Minn. 2006).) 

This logic is impeccable but it has the capability of upending the court’s determination to shut down post conviction proceedings by use of the limitations provision.  So, Justice Dietzen’s majority says, “Not so fast!”  Mr. Staunton’s “direct appeal” – the one taken within ninety days of the entry of judgment of conviction – was “disposed of” a decade ago when the court dismissed that proceeding at Mr. Staunton’s request (and with no merits review whatsoever).  This fourth petition is thus just way too late.  If that’s not enough, Justice Dietzen points to the language of the post conviction statute which does not contain the phrase “first review by post conviction proceeding.”  Never mind that by the time the legislature enacted the limitations provision to the post conviction statute in 2005 that body had just under thirty years of judicial opinions which consistently treated a “direct appeal” – the one commenced within ninety days – and a first post conviction petition proceeding where no “direct appeal” had been undertaken as the same damn thing:

We also presume the legislature acts with full knowledge of existing statutes and judicial interpretations of those statutes. See Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998) (un-reversed judicial construction is as much a part of statute as if part of original enactment)

Rockford Twp. v. City of Rockford, 608 N.W.2d 903, 908 (Minn. Ct. App. 2000)

In other words, there was absolutely no need for this additional phrase the absence of which the majority laments. 

Justices Page, Anderson and Lillehaug concurred only in the result.  They would have reached the merits of Mr. Staunton’s claims, and would have found them wanting.

Defendant Who Neither Owned Nor Had Key to Gun Cabinet in His Bedroom Nonetheless Exercised Constructive Possession over the Cabinet & Its Contents

State v. Salyers, III, Minn.Ct.App., 1/21/2014.  Sheriff’s deputies got a warrant to search Mr. Salyers’ place for stolen property.  When they went in, however, they found, instead, a gun cabinet in Mr. Salyers’ bedroom.  The cabinet was locked.  The deputies could not find a key to the cabinet.  No matter, one of the deputies got a crow bar and, something the court told us repeatedly, was able to “easily pry open the cabinet.”  There were guns inside, which, alas, Mr. Salyers was not supposed to have.

Now, the gun cabinet belonged to Mr. Salyers’ girlfriend, who had just moved out.  Although Mr. Salyers conceded that he had exclusive control of the bedroom – no one else lived there at the time – he argued that the state had not proved that he had access to – remember? no key – or exclusive control over –it was the x’s cabinet –the contents of the cabinet.  The court was not impressed.

The court said that because Mr. Salyers lived alone in the house, and because the cabinet was in his bedroom to which no one except him had access (which included its contents) he was thus in exclusive constructive possession of the cabinet and its contents.  The court likened the gun cabinet to a vinyl case it was so flimsy.  And that’s the “key” if you will.  The court cites two or three cases from other states for the proposition that just because the estranged wife/girlfriend  had the only key to the gun safe didn’t mean that a defendant wasn’t exercising  constructive possession.  But, those cases don’t really say that.  In one, State v Crie, from New Hampshire, the wife admitted that both she and defendant owned the weapons inside the cabinet and both exercised control over those weapons.  In the Virginia case, Armstrong v. Com., the court never talked about whether Armstrong had possession of the gun, constructive or otherwise; the actual issue was whether the operability of the weapon was (still) an element of the offense.  And in the Nebraska case, State v. Long, the appellate court took a hands off approach to the possession issue, saying that it was a question of fact for the jury and none of its business.

So, had the guns been in a more substantial gun safe, rather than the equivalent of a suit bag from Macy’s the outcome might well have been different.  Or, at least, that’s the argument.

1/15/2014: No Published Supreme Court Criminal Opinions

Pro Se Defendant Waived Right Against Self Incrimination By Her Unsworn Statements to the Jury

State v. Tayari-Garrett, Minn.Ct.App., 1/13/2014.  The trial court held Ms. Tayari-Garrett in constructive contempt; this entitled  her to a trial by jury.  When this trial occurred, Ms. Tayari-Garret acted as her own attorney.  She did not take the witness stand, be sworn and be subject to cross examination.  Instead, she hit upon the idea of telling the jury in her opening and closing arguments and in her questioning of the the state’s witnesses “facts” for which there was no “evidence “ – sworn testimony subject to cross examination.  In turn, the prosecutor told the jury that the statements of the lawyers were not “evidence” and could not be considered.

Ms. Tayari-Garrett complained that these observations amounted to prosecutorial misconduct: commenting on her Fifth Amendment right against self incrimination.  The court of appeals disagrees with this assertion, concluding that a pro se defendant may effectively waive her Fifth Amendment protection by testifying while not under oath to matters not properly in evidence.

Ms. Tayari-Garrett made various and sundry other arguments on appeal, all of which the appellate court rejected.

Reasonable Inferences From Search Warrant Application Established Probable Cause to Search Defendant’s Residence for Gun & Narcotics

State v. Yarbrough, Minn.S.Ct., 1/8/2014.  Mr. Yarbrough allegedly threatened a woman in a public park for stealing “a large amount” of his drugs.  He brandished a handgun to threaten her.  He then left in a maroon Caprice driven by and registered to Mr. Yarbrough’s roommate.  Police located the Caprice parked in the rear of an apartment building where the roommate lived.  Meantime, a snitch told police that Mr. Yarbrough was a drug dealer and carried a handgun.  Police also learned that Mr. Yarbrough had been arrested with this roommate a few months earlier for possession of narcotics with intent to distribute.  Police presented this information in an application for a search warrant to search the apartment, the Caprice and Mr. Yarbrough for the usual laundry list of stuff, including firearms, ammunition and narcotics.  When the officers executed the search warrant they found a large amount of cash, a handgun that matched the description of the gun that Mr. Yarbrough had allegedly “brandished,” ammunition, and drugs.

In the ensuring criminal prosecution Mr. Yarbrough moved to suppress all this evidence, on the theory that the affidavit failed to establish a sufficient nexus between Mr. Yarbrough’s alleged criminal activity and the apartment.  The trial court granted that motion.  The court of appeals reversed, concluding that it was reasonable to infer that Mr. Yarbrough would keep the handgun at the apartment.  Read about that here.  That established probable cause to search the apartment for the gun.  The court of appeals then said that under the “plain view” doctrine, it was okay to have seized the ammunition and narcotics.

Writing  his first criminal opinion for a unanimous court, Justice Lillehaug affirmed the result reached by the court of appeals.  The court thought that the search warrant application established probable cause to search for the gun, the ammunition and the narcotics, and thus did not resort to “plain view” to uphold the seizure of the ammunition and narcotics. 

The court agrees that a sufficient “nexus” must exist between the evidence sought and the place to be searched, but says that this “nexus” may be inferred from the totality of the circumstances.  Generally speaking, the court says that it is reasonable to infer that “gun evidence” would be kept at a defendant’s residence; the same would be true for bullets.  For drug evidence, the court’s general observation, a real head scratcher, is that it would be reasonable to infer that a drug wholesaler keeps drugs at his residence but that it would not be reasonable to draw that inference for the casual user. 

So, for guns, bullets, and dealers, the default inference is that this stuff is at a defendant’s crib.  The court cautions that the officer still needs to dress up these default inferences with enough information to create a “substantial factual basis” to support them.  For guns,  such information must go beyond saying that a defendant was just out and about with a gun since it’s legal in Minnesota to do just that.  The court concludes, in this instance, that the warrant application established a sufficient nexus – and thus probable cause – to support the search for “gun evidence” and narcotics.  Having reached that conclusion the court does not adopt the court of appeals’ “plain view” analysis.

Treating This Rule 27 Motion to Correct Sentence as a Post Conviction Petition, Court Determines That It’s Time Barred

Orozco v. State, Minn.Ct.App., 1/6/2014.  Mr. Orozco shot and killed J.A. back in 2000.  He agreed to plead guilty to second degree unintentional murder with a seventy month upward sentencing departure.  A decade later Mr. Orozco brought a motion to correct his sentence under Rule 27.03, subd. 9 on the theory that the plea agreement was the only basis for the upward durational departure.  Now, there were a number of problems with this theory – both on the merits and procedurally – but both the trial court and the court of appeals took the easy way out by concluding that his Rule 27 motion was really a post conviction petition that was time barred.

Mr. Orozco pled guilty and the district court sentenced him before State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), which said that a departure must be based on substantial and compelling circumstances which a plea agreement is not.  Misquadace is not retroactive.  So, the merits of Mr. Orozco’s claim turned on whether he made an adequate waiver of his right to be sentenced under the Guidelines.  State v. Givens, 544 N.W.2d 774 (Minn. 1996).  Again, however, no one went there.

Instead, the court decides to split hairs over what is and is not controlled by Rule 27, which so far has not been construed to have a limitations period.  It’s hard to discern what the rule is but it seems to turn on the public’s interest in the finality of a sentence and the public’s interest in a correct sentence, with the public’s interest in the finality of a conviction tossed into the mix.  Here, there was a bit of all three.  Mr. Orozco’s claim at least raised the specter of an “incorrect sentence;” but, if Mr. Orozco could weasel out of the sentence then the state had the right to bail out of the conviction.  State v. Lewis, 656 N.W.2d 535 (Minn. 2003).  Finality of a conviction apparently trumps the correctness of the sentence flowing from that conviction.  Vazquez v. State, 822 N.W.2d 313 (Minn.Ct.App. 2012).  So, Mr. Orozco’s Rule 27 motion is really a post conviction petition,and under that statute it is time barred.

1/2/2014: No Published Criminal Supreme Court Opinions