3/31/2014: No Published Court of Appeals Criminal Opinions

Juvenile Court Did Not Abuse It’s Discretion in Certifying Juvenile to Adult Court

In the Matter of the Welfare of J.H., Minn.S.Ct., 3/19/2014.  This comes up from the court of appeals.  Read about it here.  Justice Dietzen, for a unanimous court, reverses the court of appeals, which, in turn, had reversed the juvenile court.  Contrary to what the court of appeals had said, in certifying a juvenile to adult court the juvenile court is not required to expressly weigh the seriousness of the alleged offense and the child’s prior record of delinquency separate from the other statutory factors.  Further, the juvenile court is not required to specifically delineate how its determination of these two factors impacted its certification decision.

3/26/2014: No Published Supreme Court Criminal Opinions

Prosecution for Assisting Suicide Survives First Amendment Challenge But Advising and Encouraging Suicide Is Protected Speech

State v. Melchert-Dinkel, Minn.S.Ct., 3/19/2014.  It’s against the law in Minnesota for someone intentionally to advise, encourage, or assist another in suicide.  Mr. Melchert-Dinkel posed on line as a depressed and suicidal young female nurse.  He responded to posts on suicide websites to two individuals.  He encouraged each to hang themselves, falsely claimed that he would commit suicide, and attempted to persuade them to let him watch the hangings via webcam.  The state charged Mr. Melchert-Dinkel with aiding suicide under Minn.Stat. 609.214, subd. 1.  The district court, in a stipulated facts trial, found that Mr. Melchert-Dinkel had intentionally advised and encouraged both individuals to take their own lives.  The court concluded that Mr. Melchert-Dinkel’s communications with these two individuals fell outside protections of the First Amendment.

Justice Anderson, writing for only four members of the court – Justices Wright and Lillehaug took no part and Justice Page dissented – held that the state could prosecute Mr. Melchert-Dinkel for assisting another in committing suicide but not for either encouraging or advising another to do so.  In so concluding, the court rejected the state’s arguments that the statute, in its entirety, falls under each of three exceptions to First Amendment protections:  speech integral to criminal conduct, incitement, and fraud.  So, that left the state to convince the court that it could proscribe protected speech.  This requires proof that the state has a compelling government interest and that the statute is narrowly drawn to serve that interest.  The court easily determined that the state had a compelling interest in preserving human life.  On the second requirement, the court concludes that the statute prohibits helping a targeted person to commit suicide.  This prohibition is sufficiently narrowly drawn to satisfy the second requirement.

Not so with the statute’s prohibition against advising and encouraging another to commit suicide.  Such a prohibition includes having a general discussion with specific individuals or groups of individuals who may be contemplating suicide.  Speech in support of suicide is an expression of a viewpoint on a particular subject and is given the highest First Amendment protection.  As such, the state cannot prosecute someone for expression of the view that a particular person or group of persons ought to commit suicide.  The court basically writes these words – advise and encourage – out of the statute.

Justice Page agreed with the elimination of these words.  He believed that a remand to consider whether Mr. Melchert-Dinkel assisted these suicides was improper and unauthorized.

3/24/2014: No Published Court of Appeals Criminal Opinions

Probable Cause To Have Obtained a Search Warrant For a Breath Test Justifies Criminalizing Suspect Drunk Driver’s Refusal to Submit to Chemical Test

State v. Bernard, Jr., Minn.Ct.App., 3/17/2014.  The state charged Mr. Bernard, Jr. with test refusal after he refused to take a breath test to find out if he was driving under the influence of alcohol.  The trial court dismissed the charge.  The court said that the state could criminalize Mr. Bernard’s refusal to submit to a “search” – the breath test – only if it could show that under the traditional “totality of the circumstances” test those circumstances justified a warrantless breath test.  The trial court concluded that the state could not make that showing and so dismissed the charge.

The court of appeals assumed that the officer would not not have been justified to conduct a warrantless “search” – the breath test.  In other words, the court assumed that there were no exigent circumstances that would dispense with the requirement of getting a warrant.  However, the court then comes at the problem from the other side.  The court goes on to say that “indisputably” the officer would have got that warrant had the application been present to the magistrate.  That makes the officer’s request of Mr. Bernard to submit to the test not just an “appropriate” request, but a “lawful” one.  See State v. Wiseman, 816 N.W.2d 689 (Minn.Ct.App., 2012). 

The court does offer the non-binding opinion that a warrantless breath test cannot be supported as a search incident to arrest; it must also satisfy the exigency requirement. The court ducked the “unconstitutional conditions” argument.

3/12/2014: No Supreme Court Published Criminal Opinions

Risk Level Status, On Which Term of Conditional Release is Determined, Is Not a Fact Required To Be Found By a Jury

State v. Ge Her, Minn.Ct.App., 3/10/2014.  Review Granted, 3/7/2014.  Mr. Her is required to register under the predatory offender laws for convictions of third degree criminal sexual conduct, conspiracy to commit the same, and doing all that for the benefit of a gang.  Upon his release from prison the release assessment committee determined that he was a risk level III offender.  The state subsequently charged Mr. Her will violating the registration requirements.  A jury convicted him of that offense.  Because of his risk level assignment the court tacked on a ten year conditional release term.

Mr. Her argued that the ten year conditional release term was unauthorized because it violated the rules of Apprendi and Blakely because the judge, not a jury found that he was a risk level III offender.  The court of appeals said, no, that this risk level determination was akin to a prior conviction the existence of which a judge can still determine as an exception to Apprendi and Blakely. 

Evidence Sufficient to Support First Degree Murder, Committing Domestic Abuse, Past Pattern

Gulbertson v. State, Minn.S.Ct., 3/5/2014.  A jury convicted Mr. Gulbertson of first degree murder while committing domestic abuse and with a past pattern of abuse.  In this post conviction, first appeal, he complained that the evidence was insufficient to establish a past pattern of domestic abuse, that the jury instructions on past pattern had been incorrect, and that the court had impermissibly admitted evidence of past orders for protection.  Justice Anderson, for a unanimous court, affirms the denial of the post conviction petition, and thus upholds the conviction and sentence.

On the sufficiency argument, Mr. Gulbertson wanted the court to adopt a zero sum approach to “mutual violence” between he and the victim:  bad conduct by one party cancels bad conduct by the other party.  The court isn’t buying into that, falling back on the absence in the statute for such an exception.  Otherwise, the state sufficiently established the “past pattern”. 

The court viewed the instructions “as a whole” and found them to be adequate.  He had complained that the trial court should have restate the definition of “domestic abuse” in its instruction on what a “past pattern of domestic abuse” was.  The trial court had provided such a definition elsewhere in the instructions.

On the admission of the OFP evidence – including the affidavits – to which he made no objection Mr. Gulbertson complained on appeal that he had not had an adequate opportunity to cross examine the victim and that he had not been represented at the OFP proceedings (indeed, he wasn’t there).  Justice Anderson noted that most of the OFP evidence had been admitted through other sources so the OFP evidence was cumulative at worst and did not affect Mr. Gulbertson’s substantial rights.

Court Declines to Adopt “Automatic-Companion Rule” to Justify Pat Search of Passenger

State v. Lemert, Minn.S.Ct., 3/5/2014.  Mr. Lemert was riding shotgun with his supposed buddy, Mr. Anthony, when the cops stopped Mr. Anthony’s truck, intending to arrest him on a drug offense from a couple of days earlier.  An officer pulled Mr. Lemert out of the truck and performed a pat search, which produced drugs.

Mr. Lemert challenged the search.  The trial court denied the suppression motion, concluding that the officers had a reasonable, articulable suspicion that Mr. Lemert was armed and dangerous.  The court of appeals affirmed the trial court’s ruling.  Read about that here.  The court of appeals said that the search was legal because Mr. Lemert was in a truck that had been stopped on suspicion that its driver had recently engaged in “large-scale drug activity.”  This rationale is a riff on what’s called the “automatic-companion rule,” which permits officers to do a pat search of any person who is in the company of someone whom the officers have arrested.

Writing for a unanimous court, Justice Stras slaps down the court of appeals.  He says it’s still a “totality of the circumstances” world.  For that matter, even the state did not jump on board the “automatic companion” rule.

Here, among other things, the cops knew that Mr. Anthony was not a solo drug dealer, knew that he had used this same truck earlier in the day to complete a drug deal, knew that the two had left Anthony’s apartment together, and that Anthony was a felony-level dealer of narcotics.  Lastly, the court has decided that cops know that there is a “substantial nexus” between drug dealing and violence.  State v. Craig, 826 N.W.2d 789 (Minn. 2013).  The “totality of [those] circumstances made the pat search lawful.

3/3/2014: No Published Court of Appeals Criminal Opinions