5/28/2014: No Published Supreme Court Criminal Opinions

An Offense, Conviction for Which Requires Registration, Must Be Supported By Probable Cause

State v. Haukos, Minn.Ct.App., 5/27/2014.  The state charged Mr. Haukos with fourth degree criminal sexual conduct (vulnerable adult).  After a lot of wrangling over the state’s failure to make adequate discovery disclosures and other things, the state added a charge of fifth degree criminal sexual conduct.  For each of the counts the trial court made a finding of probable cause. Following a bench trial, the trial court convicted Mr. Haukos of the fifth degree charge but acquitted him of the fourth degree charge.

At sentencing the trial court questioned whether registration under the predatory offender statute was required in the face of the acquittal of the fourth degree charge.  After all, registration is not required for a fifth degree criminal sexual conduct conviction.  The state said that once the Complaint charged a “triggering offense,” by which it meant an offense that upon conviction requires registration, then it was a done deal; any conviction “arising out of the same set of circumstances requires registration. 

At that point the defense challenged probable cause for the fourth degree charge.  The trial court determined that the state’s position of prohibiting any scrutiny of the “triggering offense” went too far.  The court considered the probable cause challenge despite its lateness.  The court decided that there had to be probable cause for the “triggering offense” in order to require registration for a conviction for a different offense.  Because there was probable cause to support the fourth degree charge Mr. Haukos was required to register.  His conviction for the fifth degree charge was for conduct arising out of the same set of circumstances of the fourth degree charge.

The court of appeals agreed that there had to be probable cause for the “triggering offense.”  The court also agreed that there was probable cause for the fourth degree charge.  In doing so, the court winked just a bit at the tardy defense challenge to probable cause; after all Rule 10.01 says to make that challenge before trial or be considered to have waived it implicitly saying that the defense could make the late challenge but could not go beyond the face of the complaint in doing so.  Now, that same rule says that the trial court can grant relief from waiver for good cause.  Both the trial court and the court of appeals considered the probable cause challenge on the merits, which at least implies granting relief from any waiver.  The court’s authority for this middle ground – the rule and State v. Lieberg, 553 N.W.2d 51 (Minn.Ct.App. 1996) – do not support this this middle ground of allowing a late challenge but confining it to the face of the Complaint.

A California “Medical Marijuana Patient Verification Card” Is Not a Defense to Possession of Marijuana in Minnesota

State v. Thiel, Minn.Ct.App., 5/27/2014.  Following a trial on stipulated facts, the trial court found Mr. Thiel guilty of fifth degree possession of a controlled substance.  Among other things, he argued that the trial court was wrong to exclude his defense that because he had a California medical marijuana patient verification card it was okay to drive around Minnesota with pot in his car.  Not just a little bit of marijuana but a lot; his California card permitted him to grow 99 marijuana plants, and to possess 19 pounds of processed marijuana.

The Full Faith and Credit Clause of the U.S. Constitution does not compel a state to substitute the statutes of another state of its own statutes if the state is competent to legislate whatever it is.  Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003).  Moreover, Minnesota long ago said that a defense of medical necessity was not available for someone charged with a controlled substance crime.  State v. Hanson, 468 N.W.2d 77 (Minn.Ct.App. 1991).  So, that California said it was okay for Mr. Thiel to possess marijuana for some medical condition was no defense to a Minnesota drug charge.

A Felony Conviction Deemed To Be A Misdemeanor Under Minn.Stat. 609.13 Doesn’t Count Under Career Offender Statute

State v. Franklin, Minn.Ct.App., 5/27/2014.  This is a sentencing appeal under the “career offender” statute, Minn.Stat. 609.1095.  Mr. Franklin said that one of his prior felony convictions is deemed to be a misdemeanor and thus cannot count toward the “five or more prior felony convictions” required to label him a “career offender.”  He also said that his current offense was not committed as part of a pattern of criminal conduct.

Mr. Franklin pled guilty to a felony drug offense.  He then agreed that he had the requisite five prior felony convictions and that his current offense constituted a “pattern of criminal conduct.”  He then apparently talked to a lawyer – he represented himself in the trial court – and then challenged both of those concessions on appeal.

The state said, wait a minute, didn’t you just admit to both of those things?  Well, yes, but a defendant cannot waive a sentencing issue that resulted in an illegal sentence.  State v. Maurstad, 733 N.W.2d 141 (Minn. 2007), which says that a sentence based on an incorrect criminal history score is an illegal sentence review of which a defendant cannot waive.  A career offender sentence that is based on an incorrect determination that a defendant had the requisite number of prior felony convictions is also an illegal sentence.  Can’t waive it.

Minn.Stat. 609.13, subd 1(2) says that a felony conviction is deemed to be a misdemeanor if imposition of a prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.  While it’s true that the court has recognized instances in which 609.13 doesn’t apply the court says that this isn’t one of them.  Consider, for instance, the civil rights restoration provision which imposes a prohibition from possessing, etc. firearms for ten years for a person who has been convicted of a “crime of violence.”  609.13 doesn’t apply because the legislature intended to impose this firearms restriction based on the kind of offense, not on the subsequent treatment of the offender.  State v. Moon, 463 N.W.2d 517 (Minn. 1990). 

Just exactly why “crime of violence” is any different from “pattern of criminal conduct” isn’t really addressed.  It seems that the legislature did, indeed, focus on the kind of offense – those that establish a “pattern” – which would make 609.13 inapplicable.  Moving along, the court glosses over this to pronounce that the legislature said an offender needed five prior felony convictions regardless of the behavior that produced any of them.  It is the classification of the conviction that matters.

Because one of Mr. Franklin’s prior convictions is deemed to be a misdemeanor under 609.13 he does not have the required five prior felony convictions.  The court sends the case back to the trial court for resentencing.  Having done so the court does not take up Mr. Franklin’s other claim about “pattern.”

Spreigl Evidence Improperly Admitted to Rebut Claim of Self Defense

State v. Welle, Minn.Ct.App., 5/27/2014.  Mr. Welle punched D.A. in the face outside a bar, some kind of guy thing after the two of them had been chatting up a group of women inside the bar.  D.A. fell back, his head struck the pavement, and he died without regaining consciousness.  The state charged Mr. Welle with unintentional second degree murder (assault injury), and with one count of first degree manslaughter.  Mr. Welle gave notice of his intent to raise a self defense claim.  In turn, the state wanted to admit Spreigl evidence of three prior incidents of assault and two incidents of domestic assault.  The trial court excluded the domestic assaults, but permitted the state to introduce evidence of the other three assaults.

First assault:  Mr. Welle called M.H. to make sure that he knew that his girlfriend was flirting with another man.  M.H. called Mr. Welle a loser.  Mr. Welle punched M.H. in the face.  Mr. Welle claimed that M.H. made the first move so that he had acted in self defense.

Second assault:  Mr. Welle wanted D.L. to change the oil in his car.  When D.L refused, Mr. Welle punched him in the face.  At first Mr. Welle denied punching D.L. but later admitted it.

Third assault:  During an argument between Mr. Welle and A.R. Mr. Welle shoved A.R., retrieved a knife and punched A.R. in the face.  Mr. Welle claimed that A.R. had swung a beer bottle at him and so he had acted in self defense.

The state said generally that it wanted to introduce these Spreigl acts to to rebut Mr. Welle’s claim of self defense.  More specifically, the state said that evidence of these events was admssible to show Mr. Welle’s intent and to show a common scheme or plan.  But Mr. Welle never denied that he intended to punch D.A. so his intent was not in issue.  The “common scheme” was to fabricate claims of self defense.  However, none of the Spreigl incidents disproved the elements of self defense in this instance.  Specifically, it did not disprove whether Mr. Welle acted aggressively toward or provoked D.A., whether he had an honest belief of danger from D.A. or reasonable grounds for that belief, or whether he had a reasonable possibility of retreat.  So, the trial court was wrong to admit this evidence.

And, its admission was unduly prejudicial.  The evidence showed that Mr. Welle had a propensity to act aggressively toward another while claiming that he was not at fault; the evidence thus “directly invited the jury to infer that in this instance, [Mr. Welle] was acting in conformity with that character.”  Oops.  Sounds like character evidence.

Mr. Welle gets a new trial.

Gross Misdemeanor Driving Under Influence is More Serious Crime Than Gross Misdemeanor Second Degree Test Refusal

State v. St. John, Minn.Ct.App., 5/19/2014.  A Morehead officer stopped Ms. St. John’s vehicle because it didn’t have its headlights on.  Suspecting that Ms. St. John was intoxicated the officer asked her to perform several field sobriety tests, which she failed.  Ms. St. John refused to submit to chemical testing.  She eventually pled guilty both to second degree DWI (refusal) and to third degree DWI (under the influence).  Both are gross misdemeanors.  The court accepted the pleas and found Ms. St. John guilty of both offenses.  Everyone agreed that the court could only sentence Ms. St. John on one of the two offenses.  Ms. St. John wanted to be sentenced for the third degree DWI in order, she hoped, to avoid forfeiture of her vehicle.  The trial court said, no, that the third degree DWI was a lesser included offense of the second degree test refusal.  As a result, the court could/would only sentence on the top count, the test refusal.

On appeal, the state conceded that the DWI  offense is not a lesser included offense of the test refusal offense.  This meant that the trial court should have (as it originally did) accepted both guilty pleas, and found Ms. St. John guilty of both offenses.  She could still only be sentenced on one of the two offenses because of the “single behavioral incident” rule, 609.035; however, which one, is a question of law.  The supreme court said nearly a decade ago in State v. Kebaso, 713 N.W.2d 317 (Minn. 2006) that section 609.035 contemplated that a defendant would be punished for the most serious of offenses arising out of a single behavioral incident; that’s because sentencing on the top count covers the waterfront.

The question here, though, is which of these two gross misdemeanors is the “most serious” offense.  The court of appeals decided that driving drunk trumps refusing to be tested to see if you are driving drunk.  The court remands back to the trial court to give Ms. St. John what she wanted:  a sentence for third degree DWI.

In conspiracy Prosecution Jury Need Not Be Instructed That It Must Unanimously Agree on Which of Multiple Overt Acts Was Committed; “Severe Aggravated Factors” To Support More Than Double Durational Departure Must Be Found By Jury

State v. Ayala-Leyva, Minn.Ct.App., 5/19/2014.  A jury convicted Mr. Ayala-Leyva of conspiracy to commit first degree controlled substance crime.  The court imposed a 360 month sentence, a more than triple upward departure from the presumptive 86 month guidelines sentence.

The FBI conducted an investigation of a large and well-organized methamphetamine trafficking network but then, turning the tables, dumped the whole thing over to the state for prosecution.  Mr. Ayala-Leyva was alleged to be a part of that network.  Unlike a federally prosecuted drug conspiracy, which requires only an agreement, state conspiracy law also requires one or more “overt acts” in furtherance of the agreement. 

Here, the court’s instructions listed twenty “overt acts” allegedly committed in furtherance of the conspiracy.  However, over defense counsel’s ambivalence, the court did not instruct the jury that it had to agree unanimously on which particular act or acts satisfied the overt act element of the crime.  In response to the trial court’s statement that the parties had agreed that it was not necessary that the jury be so instructed  counsel said “whatever,” that he “did not agree one way or the other with respect to that.”  Counsel did not offer an alternative instruction, and ended by saying that he would leave it to the court’s discretion whether to give such an instruction.

So, the court didn’t give it.  Needless to say, counsel’s remarks were a far cry from an objection.  So, review of the instructions was under plain error.  The court of appeals said that there was no error in not giving the instruction.  The court explained that the twenty overt acts were not elements of the offense, on which there must be unanimity.  Rather, the twenty overt acts were the alleged “facts underlying” that element of the offense.  Each overt act was an alternative means to prove that element of the offense and unanimity wasn’t required.

One of Mr. Ayala-Layva’s witnesses came in from California to testify for him.  When he got to the court house, the prosecutor had him arrested.  Now, the interstate compact on hauling out of state witnesses into your state to testify specifically grants immunity from arrest while in the state.  The prosecutor quickly admitted her mistake and released the defense witness.  After all that, the defense didn’t put this witness on the stand.  While the court found the prosecutor’s actions “troubling” the court concluded that Mr. Ayala-Leyva was not entitled to a new trial as a result of the misconduct.

During closing argument, the prosecutor told the jury that Mr. Ayala-Leyva had “lost” the presumption of innocence, and that the state had presented a “mountain” of evidence against him.  Of course, Mr. Ayala-Leyva only loses the presumption of innocence by the jury’s guilty verdict so that was an incorrect statement.  The court didn’t really say why it was wrong to refer to the state’s evidence as a “mountain of evidence,” but apparently it is.  As with arresting a defense witness, the court of appeals found these remarks “troubling” but, again, not so much that it got Mr. Ayala-Layva a new trial. 

Now to sentencing.  In total, the Blakely jury was asked to find three aggravating factors:  putting a number of people at risk, the offense was a “major controlled substance crime,” and the offense was committed as part of a group of three or more offenders who all actively participated in it.  The problem was, however, that on the first two the jury was not asked to find facts to support those factors.  So, the jury found that Mr. Ayala-Leyva’s conduct had placed a number of people at risk.  However, the jury did not make specific findings of facts to support that conclusion.  The court of appeals agreed with Mr. Ayala-Layva that this factor – putting people at risk – was not supported by adequate findings and could not support a departure.  The jury was also asked to determine whether the offense was a “major controlled substance crime.”  The jury was given a list of circumstances that could support a finding of a major controlled substance crime, but the jury was not asked to vote on each of them.  As a result, this factor was also not adequately supported by findings and could not be the basis for a departure.  A departure of some sort survives, however, because the jury also found that Mr. Ayala-Layva’s committed the crime as part of a group of three or more people who all actively participated in the crime.

When it came time to impose sentence, the trial judge imposed the maximum sentence, a departure three times greater than the presumptive sentence.  A departure greater than double the presumptive sentence requires “severe aggravating circumstances.”  The trial court took it upon itself to find those “severe aggravating circumstances.”  Specifically, the court said that this was the biggest state-prosecuted meth case ever; that there was a really, really large amount of meth seized during the investigation; and there had to be a large number of potential users based on that amount.  Of course, the whole point of Blakely is that it is the jury that must make such findings so the greater than double departure goes by the boards.  The court sends the case back for the trial judge either to impose up to a double departure or to impanel another jury to consider “severe aggravating circumstances.”

Premeditated Murder Statute Is Not Unconstitutional, & Instructions on Definition of “Premeditation” Not Error

State v. Moore, Minn.S.Ct., 5/14/2014.  Mr. Moore called 911 to report that his wife, Mauryn, had attacked him with a knife while he slept, that he had grabbed the knife from her and stabbed her.  The medical examiner counted sixty-four sharp force injuries, including one to Mauryn’s neck which was “not survivable.”  The medical examiner also concluded that the injuries to Mr. Moore were not life threatening and may very well have been self inflicted.  A grand jury indicted Mr. Moore on first degree premeditated murder.  A jury convicted him of that offense, as well as of a lesser included (apparently) offense of first degree domestic abuse murder. 

Mr. Moore argued on appeal that the first degree premeditated murder statute is unconstitutional because there is no principled difference between that offense and second degree intentional murder.  Justice Page, writing for a unanimous court, said that because this claim had not been presented to the trial court it would not be considered.  And then, in a footnote, he considered it anyway.  He said that the statutory definition of “premeditation,” Minn.Stat. 609.18 (along with case law) adequately distinguished between the two.  Premeditation requires both forming the intent to kill and then mulling it over for “some appreciable time.”  See State v. Moore, 481 N.W.2d 355 (Minn. 1992).  Indeed, Justice Page (again) implicitly rejects some language from Moore, (derived from State v. Neumann, 262 N.W.2d 426 (Minn. 1978) that strongly suggested that the two – forming the intent to kill and mulling it over – could occur “virtually instantaneously”. 

Mr. Moore also complained about the trial court’s instruction of what premeditation meant.  Here’s what the trial court said:

Premeditation means that the defendant considered, planned, prepared for or determined to commit the act before the defendant committed it. Premeditation, being a process of the mind, is wholly subjective, and hence not always susceptible to proof by direct evidence. It may be inferred from all the circumstances surrounding the event.

It is not necessary that premeditation exist for any specific length of time. A premeditated decision to kill may be reached in a short period of time. However, an unconsidered or rash impulse, even though it includes an intent to kill, is not premeditated.

[Emphasis added.]  Based on a couple of earlier cases that made similar arguments – State v. Goodloe, 718 N.W.2d 413 (Minn. 2006), and State v. Anderson, 789 N.W.2d 227 (Minn. 2010) – Justice Page concluded that the inclusion in this instruction that premeditation “may be reached in a short period of time” was not erroneous.  Alas, just four years ago in the Anderson opinion, Justice Page said that it was time to revise this very instruction to address this problem.

Mr. Moore next argued that the state had not adequately proved premeditation.  Justice Page identified three categories of evidence that are relevant to an inference of premeditation:  planning activity, motive, and the nature of the killing.  State v. Hughes, 749 N.W.2d 307 (Minn. 2008).  Working from this description of the evidence Justice Page determined that each of these categories of evidence supported the jury’s finding of premeditation:

Moore was a jealous and controlling husband. Moore and Mauryn had weekly arguments that sometimes turned physical. Mauryn wanted a divorce. On the night of the killing, the couple fought for over an hour. During that argument, a downstairs neighbor heard a woman yell, “Stop.” Mauryn was cut in vital areas of her body, including a 2-inch deep cut along her throat and numerous stab wounds to her chest and back. Mauryn’s body was found in the couple’s bedroom, but the weapon was procured from the kitchen. Moore continued to stab Mauryn after she was dead or had lost a significant amount of blood. Moore’s injuries were not life threatening and were self-inflicted.

Justice Page next rejected claims from Mr. Moore that the trial court had improperly admitted evidence of “history of the relationship.”  He then ducked a claim that challenged the admissibility of hearsay statements of Mauryn’s, about Mr. Moore’s controlling and abusive ways that she had made to several of her friends.  The Justice said that even if this was error, it was harmless.

Statistical Data Insufficient To Establish Underrepresentation of Black Persons on Jury Panel

State v. Griffin, Minn.Ct.App., 5/12/2014.  A jury convicted Mr. Griffin of first and third degree criminal sexual conduct.  During jury selection he complained that the panel had not been drawn from a fair cross section of the community; that the trial court had abused its discretion by admitting evidence of his prior felony convictions for impeachment; and that the trial court had botched the jury instructions on third degree criminal sexual conduct by repeatedly misreading a part of those instructions on the meaning of consent.

Mr. Griffin, who is a black male, complained that the presence of only one black person on the thirty person panel underrepresented black persons as compared to the percentage of black persons in the population of Olmsted County.  That lone black male on a thirty person panel worked out to be 3.3% of the panel.  Mr. Griffin presented information from the 2010 census that showed that 4.8% of Olmsted County was black, while the jury data for roughly two or so years showed that same percentage to be between 1.29% and 1.72%.  Both the trial court and the court of appeals rejected this underrepresentation claim.  In large part, the court of appeals rejects the claim because the census data does not differentiate those persons who are eligible for jury service, which requires that a juror be at least 18 years old, a citizen, and able to communicate in English.  The court also concluded that Mr. Griffin had failed to show a “systematic exclusion” of black persons from the jury pool “over a significant period of time.”  This required proof that the underrepresentation was attributable to the juror selection process and not to an alternative reason such as individuals failing to show up for jury service.  At a minimum, the census data would have to be winnowed down to eliminate persons under age eighteen, and “foreign-born” persons who either are not citizens or are not English speaking.

The trial court permitted introduction of Mr. Griffin’s three prior felonies for impeachment.  Two of the three could be named.  The court of appeals determined that there had been no abuse of discretion in admitting this evidence, the more so because of the rather extensive record made on the “Jones factors.” 

The jury instruction error had to do with the definition of consent.  The written instruction correctly said that consent doesn’t mean the existence of a “prior or current social relationship.”  When the trial court read the instructions, however, it substituted “sexual” for “social” a couple of times but in the end the defense didn’t object.  That left any review under harmless error analysis and the court of appeals said the instructions as a whole has been close enough to be correct.

Juvenile Offender Properly Tried in District Court After Attaining Age Twenty-one; & Court Properly Imposed a Harsher Sentence After Successful Challenge to Previous Convictions

State v. Vang, Minn.S.Ct., 5/7/2014.  In 2001, the state filed a juvenile petition against then-14 year old Jerry Vang.  The petition charged him with first and second degree felony drive by murder, and with attempted first degree felony drive by murder.  Even though the court never certified Mr. Yang to adult court these charges somehow got presented to a grand jury, which indicted him.  Mr. Yang plead guilty to those charges, but the supreme court vacated those convictions and sentences because the adult court didn’t have subject matter jurisdiction to impose the adult sentences.  Vang v. State, 788 N.W.2d 111 (Minn. 2010).  In fact, it was the juvenile court that had taken the guilty pleas and imposed the sentences.

By the time the convictions and sentences were vacated, Mr. Yang was past age twenty-one.  There’s a statute that says that once an individual turns twenty-one, the district court and not the juvenile court has original and exclusive jurisdiction even if the offense occurred before that individual turned eighteen.  So that’s where the supreme court sent the case when it vacated the previous convictions and sentences.  The state re-filed the same indictment in the district court.  Mr. Yang plead not guilty, went to trial and was convicted.  Before that, however, he argued that the case should go back to juvenile court because he still had never been certified to adult court.  Writing for six members of the court – Justice Wright not participating – Justice Dietzen latches onto this statute and thus side steps the messy and unseemly business of getting juveniles into adult court simply by waiting out the clock.

Mr. Yang challenged the sufficiency of the evidence to support the convictions.  Mr. Yang apparently shot at two guys –killing one and injuring the other – while he was, himself, either in or having just got out of a car.  He fired seven shots in a narrow alley, striking a garage twice and, of course, killing and wounding the two victims.  Mr. Yang’s actions put two different mental states in play:  intent to kill and reckless discharge of a firearm at or toward a car or building.  Mr. Yang argued that if he had the intent to kill then he had not recklessly discharged the weapon with which he tried to carry out the deaths.  The court concludes that these are distinct mental states that are not mutually exclusive.  The state has to prove both, but in this case they did.

The trial court instructed the jury that it had to find that Mr. Yang recklessly discharged a firearm at or toward “ a person.”  The statute requires that the discharge be at or toward a motor vehicle or building.  Minn.Stat. 609.66, Subd. 1e.  The court assumes without deciding that this instruction was an error, but concludes that the error did not create a reasonable likelihood that it had a significant effect on the verdict. 

Mr. Yang tried to extend both Miller v. Alabama and Florida v. Graham, to adult sentences of life with the possibility of release, where the adult was a juvenile at the time of the offense.  The court isn’t going there, even though Mr. Yang’s consecutive sentences create a near life without parole sentence, something the court barely mentions.  Mr. Yang must serve a minimum of thirty years before becoming eligible for parole consideration on the life sentence.  If and when he is granted parole, he must then serve a ninety (90) month sentence on the attempted murder conviction.

Mr. Yang argued that the trial court could not impose a sentence that was greater than the original sentence.  The court says that in this instance it can because the first sentence was the result of guilty pleas and this one was the result of jury verdicts.  The court based this result on “public policy” and not constitutional grounds.  This prompted a concurrence from Justice Stras, who does not believe that there is any such thing as “public policy” which can guide judicial decision making.  Justice Stras would have reached the constitutional due process issue – vindictiveness – and then rejected it for Mr. Yang.

Last, Mr. Yang complained that he got bad advice from one of his attorneys, the advice being to reject a plea offer - the terms of which were not stated in the opinion - and go to trial on a claim of self defense.  Cf.,, Lafler v. Cooper, 132 S.Ct. 1376 (2012).  The trial court did instruct the jury on that claim.  Just before the shooting, which took place in a narrow alley, the deceased had threatened Mr. Yang (and had beaten him in a previous fight).  There was no opportunity for Mr. Yang to retreat.  The court went on to describe the evidence presented in support of the self defense claim:

Appellant presented evidence at trial that David intended to seriously harm or kill him. Appellant testified that David and Kou had come to his house on July 6, that David had “rushed” him without provocation, and that David and Kou beat him while he was on the ground and then David grabbed a shovel and tried to seriously injure him. Appellant stated that the fight made him “afraid” that David intended to seriously harm or kill him, and his fear continued until the day of the shooting. A couple of days later, David had driven by his house and “flicked” him off, and then two days before the shooting, David came by the house looking for appellant. On the day of the shooting, appellant stopped in the alley in order to smooth things over with David and Kou. But David “got angry.” When appellant got out of the car David stepped toward him and yelled at him in a threatening manner. Appellant testified that he experienced fear because David was only five or six feet away, was bigger than him, and he remembered being beaten to the ground by David in the previous fight. There was also evidence that appellant did not have an opportunity to retreat because the alley was narrow, there was a fence and two cars directly behind him, and the driver had also gotten out of the car and appellant did not have the keys to the car. When asked if he felt that he had any alternative to shooting the gun to save himself, appellant replied “no.”

Without really much of an explanation, the court says, somewhat disturbingly, that whether the advice to reject the plea offer and go to trial was “objectively unreasonable” was a “close call.”  The benefit of the doubt went to the lawyers.  Whether this would have been so had the trial court not instructed on self defense is an unanswered question.

5/5/2014: No Published Court of Appeals Criminal Opinions

OFP For Fifty Years For Benefit of Adult Survives Multiple Challenges

In the Matter of:  Vanessa Yolanda Rew, and o/b/o T.C.B. and D.S.B., Minn.S.Ct., 4/30/2014.  Although not a criminal case, this opinion, on review from the court of appeals,  can impact criminal prosecutions simply from the outcome.  The central question presented here was whether a court can issue a fifty (50) year order for protection for the benefit of an adult and her two minor children.  There’s a statute for that, Minn.Stat. 518B.01, subd. 6a.  Justice Stras rejects a number of statutory and constitutional challenges to that fifty year OFP.  As to extending an OFP that long for the benefit of minor children, the court caps its run at age eighteen, when a parent’s authority to act on behalf of a minor child expires.