Trial Court Has Authority to Decide Evidentiary Challenge To Chain of Custody By Pretrial Hearing

State v. Farah, Minn.Ct.App., 9/29/2014.  An undercover cop bought 5.5 grams of cocaine from Mr. Farah.  The cop wrote in his report that the drugs were a “white, powdery substance.”  A few days later the BCA received 4.869 grams of a “rock-like material/powder.”  The BCA tester said that the “rock-like material” contained cocaine.  The undercover cop, when he got the stuff back from the BCA, wrote that he placed the “rock-like material” into an evidence locker.

Powder or rock?  That’s what defense counsel for Mr. Farah wanted to know.  She filed a pretrial motion asking for the chain of evidence records; actually, asking how does 5.5 grams of “white, powdery substance” become 4.869 grams of a “rock-like material”?  That’s one  hell of a gas chromatography/mass spectrometry machine.  The trial court held a hearing on the motion at which the prosecutor characterized the motion as a challenge to probable cause.  The judge, however, said, no, that the hearing was about an evidentiary issue:  the chain of custody foundation for admission of the evidence.  Eventually, the trial court excluded the evidence.

So, can the trial judge make a chain of custody determination before trial?  Turns out the judge can.  Evidence rule 103(a) says that the trial court may make a ruling to admit or exclude evidence “either at or before trial.” 

The remaining question, then, is whether the trial court correctly ordered the exclusion of the drugs.  Just as the trial judge called it, this is an evidentiary issue so it’s a discretionary call.  The officer who bought the drugs described them initially as a “white powdery substance” but after that the description became “rock-like material”.  The state never explained this morphing of the drugs.  On that record, the trial judge did not abuse its discretion by ordering the exclusion of the drugs. 

Post Conviction of False Trial Testimony Sufficient To Require Evidentiary Hearing

Caldwell v. State, Minn.S.Ct., 9/24/2014.  in this his third post conviction petition, Mr. Caldwell alleged that three witnesses at his trial presented false testimony.  The post conviction court summarily denied the petition without a hearing.  Justice Stras, with Chief Justice Gildea and Justice Dietzen dissenting, sends the petition back for that evidentiary hearing.

In support of his claim of false trial testimony Mr. Caldwell presented a transcript of a statement by each witness, and an affidavit from the investigator who conducted the interviews which affirmed that each statement was a true and correct transcription of the recorded interview.  Now, to be entitled to an evidentiary hearing Mr. Caldwell’s petition had to contain more than “argumentative assertions without factual support;” and the petition must recite sufficiently trustworthy allegations that would, if proven, entitled a petitioner to a new trial.  Justice Stras says that Mr. Caldwell met the first requirement because of the sworn affidavit from the investigator that the transcript of the actual interview of the witnesses was true and correct.  At what is essentially a proffer state of the proceedings, the justice seems to ask, what else can a petitioner do?

On the second requirement, the majority and the dissent of Justice Dietzen just disagree about, well damn near everything:

In reversing the post conviction court, the majority dismisses crucial portions of the record, misconstrues the relevant case law, and misapplies the standard of review. Carnell Harrison and William Brooks did not recant their trial testimony or state that they did not testify truthfully at trial. Instead, when asked whether they testified truthfully at trial, Carnell stated he could not remember and Brooks did not answer the question.

Justice Stras gets more votes and so the petition gets sent back for an evidentiary hearing.  Lots of footnote sniping.

Court Rejects Challenge To In-Court Identification and Affirms Exclusion of Expert Witness Testimony on Eye Witnesses Identifications

State v. Mosley, Minn.S.Ct., 9/24/2014.  Following a bench trial, the trial judge convicted Mr. Mosley of three counts of first degree premeditated murder, and then imposed three consecutive life sentences without possibility of release.  On appeal, Mr. Mosley raises two questions about eye witness identifications.

The first question is about an in court identification by one of the state’s witnesses.  This witness saw a black male wearing a sweatshirt with a grey hood and stripes over the shoulders riding a bicycle in front of the house where the homicides occurred.  She witnessed this and some additional actions by this same black male just shortly before the shooting deaths.  Only during her trial testimony, however, did she state that the person she had seen was Mr. Mosley; no one had conducted an identification procedure before trial.  Justice Dietzen, writing for the entire court, rejected Mr. Mosley’s due process challenge to this in court identification because it had not been the product of any state action.  Perry v. New Hampshire, ___ U.S. ___, 132 S.Ct. 716 (2012). 

Mr. Mosley also said on appeal that the in court identification violated Rule 403 of the Rules of Evidence because it lacked reliability and unfairly prejudiced him.  Because Mr. Mosley had not made this precise objection at trial – he made only the due process objection – the court reviewed this claimed error under harmless error analysis.  Because admission of most all evidence is a discretionary call by the trial judge, Justice Dietzen easily enough concludes that there had been no abuse of that discretion and thus there was no error.  Reliability of identification testimony, the Justice says, goes to the weight of the identification evidence and not its reliability.

The second question is about admission of expert testimony on eyewitness identification.  In a rather nostalgic trip down memory lane – back to  State v. Helterbridle, 301 N.W.2d 545 (Minn. 1980), the court concludes that the trial court did not abuse its discretion in declining to admit such testimony.  Helterbridle, confidently told everyone – before the onslaught of wrongful convictions started coming to light, most of which were based on faulty witness identifications – that such safe guards as cross examination, jury instructions and arguments of counsel are more than adequate to prevent the improper use of eye witness identifications.  Most incongruous in this conclusion is the double standard utilized for eye witness experts and for “rape myth” experts in rape cases where consent is the defense.  Whereas in rape cases where consent is the defense the court has been satisfied with allowing experts to testify generally to so called “rape myths,” for eye witness identifications, Justice Dietzen says that the expert’s testimony must relate to the particular circumstances of the identification under attack.  What this means is that the defense must be prepared to present a proffer that is specific to the case on trial.

Departure In Assault Conviction Based Upon Victim Injury Okay Where Defendant Has Prior Conviction Involving Injury

State v. Meyers, Minn.C.App., 9/15/2014, petition for further review, GRANTED, 11/26/2014.  Since the adoption of the Guidelines it’s always been the case that a departure from the presumptive sentence cannot be based upon an element of the offense of conviction.  State v. Osborne, 715 N.W.2d 436 (Minn. 2006).  This is not to say that flanking maneuvers to avoid this rule have ceased.  Far from it.  Indeed, there’s one successful flanking maneuver – the subject of this appeal – that’s right in the Guidelines.  Section II.D.2.b(3) says that a valid ground for departure exists when:

“[t]he current conviction is for a [c]riminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a [criminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured.

A jury convicted Mr. Meyers of assault in the first degree from the stabbing of A.C.  This stabbing caused a ten inch knife wound that penetrated her liver and adrenal gland; and she also sustained permanent nerve damage to her thumb from a separate cut.  An element of first degree assault is “substantial bodily injury.”  Mr. Meyers argued that because injury was an element of the offense that injury could not also be used to support a departure notwithstanding the language of the above Guidelines section.

As well as the Supreme Court opinion, State v. Peake, 366 N.W.2d 299 (Minn. 1985).  Mr. Meyers sought to distinguish this case by two more recent ones.  in the first, State v. McIntosh, 641 N.W.2d 3 (Minn. 2002), the supreme court threw out a departure under the “major controlled substance offense” provision which is based, in part, on the quantity of drugs.  The court had cautioned courts about using the quantity of drugs to support a departure.  In the other case, State v. Thompson, 720 N.W.2d 820 (Minn. 2006). the supreme court threw out a departure in a theft by swindle over $35,000.00 conviction where the amount of the swindle had been really over $35,000.00. 

The court here says that the Guidelines provision in play “is not duplicative in its consideration of victim injury.”  (Fact of injury becomes “consideration” of injury, something of a re-wright of the language of the Guidelines.)  That’s because injury is actually is a limitation on the applicability of this aggravating factor provision.  The court can only impose a departure when the current conviction is for a crime that involved injury to a victim, and the defendant has a previous conviction for a crime involving injury to a victim.

9/17/2014: No Supreme Court Criminal Published Opinions

But, worth a quick read:  In re the Guardianship of:  Jeffers J. Tschummy, Ward.  Minn.St.Ct. 9/17/2014, wherein Chief Justice Gildea and Justice Stras hurl vituperative footnotes at one another.

No Abuse of Discretion In Denying Evidentiary Hearing on Post Conviction Petition

Lussier v. State, Minn.S.Ct., 9/10/2014.  Mr. Lussier pled guilty to first degree murder while committing domestic abuse for the stabbing death of his wife.  During the plea hearing, Mr. Lussier admitted that during an argument with his wife he struck her at least once.  He then said that he picked up a knife intending to take his own life but instead unintentionally stabbed his wife during a struggle over the knife.  To shore up the plea, the state introduced the grand jury transcript, something to which Mr. Lussier did not object.  Mr. Lussier then agreed that at a trial witnesses would have testified “much in accordance with the grand jury testimony.  In fact, Mr. Lussier hadn’t seen that transcript.

After a while, Mr. Lussier filed a pro se motion to withdraw his plea, saying that it was manifestly unjust because the plea was not accurate, intelligent or voluntary.  With the assistance of counsel he later added that neither the plea hearing nor the grand jury transcript established a factual basis for finding a “past pattern of domestic abuse” or “ extreme indifference to human life”, both of which are elements of the offense.  The post conviction court denied the petition and the supreme court upheld that denial.  Lussier v. State, 821 N.W.2d 581 (Minn. 2012). 

Mr. Lussier then filed this second post conviction petition.  He restated his claim about the guilty plea, and he added a claim that his post conviction attorney provided ineffective assistance of counsel by failing to request an evidentiary hearing.  This time, the post conviction court denied the petition, saying that the challenge to the plea was procedurally barred and that there were no disputed facts on the effectiveness claim that entitled him to a hearing.

Applying the Knaffla rule, Justice Stras affirms the denial of the repeated claim about the guilty plea.  On the effectiveness of counsel claim, the court observes that the only facts that had a bearing on whether his plea lacked an adequate factual basis were the facts established by and contained within the record itself, which included the grand jury transcript and the transcript of the plea hearing.  There were no other facts in need of presentation at the post conviction stage that necessitated an evidentiary hearing.  For that reason, Mr. Lussier cannot prevail on is ineffectiveness of counsel claim.

Removing Package From Airport Sorting Conveyor Was Not an Unlawful Seizure. Dog Sniff of Package Was Not a Search

State v. Eichers, Minn.S.Ct., 9/10/2014.  An airport narcotics officer pulled a package off the UPS conveyor belt for reasons that you can read about here.  The officer put the package amongst a pile of other packages and had his drug sniffing dog “seek dope.”  Which the dog did, alerting only to this package.  Eventually, Mr. Eicher’s claimed the package whereupon authorities arrested him and charged him with first degree drugs.

He moved to suppress the drugs.  He said that grabbing the package off the conveyor belt was a seizure and that the dog sniff was a search, neither of which was supported by reasonable, articulable suspicion.  The court of appeals said that pulling the package off the belt and placing it on the floor amongst other packages was a seizure because the officer thereby asserted dominion and control over it.  That court also said that the dog sniff required a reasonable suspicion of criminal activity under the Minnesota Constitution.  Even so, no federal or state constitutional violation occurred because the officer had a reasonable articulable suspicion that ht package might contain contraband. 

Justice Anderson, writing for all but Justice Page who did not participate, upholds the denial of the suppression motion but for different reasons.  The first question that the court looked at was whether there had been a seizure of the package.  Justice Anderson said that the test to determine that question is whether there is a meaningful interference with an individual’s possessory interest in the property.  The Justice looked to an Eighth Circuit opinion, United States v. Va Lerie, 424 F.3d. 694 (8th Cir. 2005), which identified three factors bearing on the question of a “meaningful interference”:

1) the detention of property impacted a person’s freedom of movement; 2) the detention delayed timely delivery of the property; and 3) law enforcement deprived the carrier of custody of the property.

The court adopts this test.  Looking to the facts, the court concludes that there was no meaningful delay in timely delivery; indeed, officers attempted a controlled delivery the same afternoon following its discovery at the airport.  The court found no infringement of any possessory interest that Mr. Eichers enjoyed by grabbing the package off the belt and setting it on the floor.  His interest in the carrier maintaining custody of the package was infringed, but not until after the dog sniff, which established probable cause.  What that boils down to is that there was no cognizable seizure of the package when the officer removed it from the conveyor belt and put it on the floor for the dog to sniff.

That gets us to the dog sniff.  The court concludes that a dog sniff of a mailed package which reveals only contraband, does not compromise any legitimate expectation of privacy under both the Fourth Amendment and Article 1, Section 10 of the state constitution.  The sniff was thus not a search.

9/8/2014: No Court of Appeals Published Criminal Opinions

9/3/2014: No Supreme Court Published Criminal Opinions

Exigent Circumstances Supported Warrantless Blood Alcohol Testing

State v. Stavish, Minn.Ct.App., 9/2/2014.  Law officers and various other first responders went to the site of a one car rollover crash.  There were beer cans in and about the truck that had rolled over.  There was a dead body.  There was Mr. Stavish, who needed medical attention, and who said that he had been driving, that he didn’t know how many people had been in the truck, and that he should not have been doing what he was doing.  Officers sent him off in an ambulance to the hospital, with a trooper in tow with instructions to get a blood draw from him at the hospital.  The trooper accomplished his task but did not get a warrant before doing so.

The state charged Mr. Stavish with vehicular homicide.  Nearly a year later, the U.S. Supreme Court issued Missouri v. McNeely, 133 S. Ct. 1552 (2013).  Mr. Stavish moved to suppress the blood alcohol reading (.20), saying that it had been taken without a warrant in violation of McNeely.  The trial court granted that motion and the state appealed that ruling.

The court of appeals continues in its pursuit of imaginative “exigent circumstances” to justify warrantless blood alcohol testing.  The “virtual search warrant” from Bernard is under assault in the supreme court.  This time around, the court looks at what presumably were the “facts ono the ground” to conclude that there were exigent circumstances other than the metabolization of alcohol in the bloodstream to support a warrantless blood draw.  In fact, there were three:  The trooper was, first off, investigating a more serious crime than “an ordinary DWI charge” in play in McNeely.  Moreover, the medical treatment that Mr. Stavish was at the hospital to get might either affect or invalidate the blood alcohol test.  And, there was the possibility that Mr. Stavish would be medevac'd to another hospital before anybody could put a needle in him and draw blood within the two hour statutory limit.

The state continues to push the adoption of the good faith exception to the warrant requirement, something near and dear to Justice Stras.  See State v. Brooks, 838 N.W.2d 563 (Minn. 2013).  Having come up with a plausible list of “exigent circumstances” the court of appeals found no need to venture down that path.