12/30/2015: No Supreme Court Published Criminal Opinions

Failure to Make Findings on Statutory Factors to be Considered in Juvenile Expungement Request Requires Remand of Grant of Expungement

In the Matter of the Welfare of:  J.T.L., Child, Minn.Ct.App., 12/28/2015.  The district court granted an expungement request by J.T.L. of his various criminal sexual conduct adjudications.  There's a statute for that, Minn.Stat. 260B.198, subd. 6(b).  This statute says that the court "shall consider" a laundry list of factors on the way to deciding whether expungement would yield a benefit to the child that outweighs the detriment to the public and public safety:

(b) In making a determination under this subdivision, the court shall consider:

(1) the age, education, experience, and background, including mental and emotional development, of the subject of the record at the time of commission of the offense;

(2) the circumstances and nature and severity of the offense, including any aggravating or mitigating factors in the commission of the offense;

(3) victim and community impact, including age and vulnerability of the victim;

(4) the level of participation of the subject of the record in the planning and carrying out of the offense, including familial or peer influence in the commission of the offense;

(5) the juvenile delinquency and criminal history of the subject of the record;

(6) the programming history of the subject of the record, including child welfare, school and community-based, and probation interventions, and the subject’s willingness to participate meaningfully in programming, probation, or both;

(7) any other aggravating or mitigating circumstance bearing on the culpability or potential for rehabilitation of the subject of the record; and

(8) the benefit that expungement would yield to the subject of the record in pursuing education, employment, housing, or other necessities. 

Well, it's a long list.  The trial judge adopted the proposed order by J.T.L.'s counsel which did not contain any specific findings regarding these factors.  The state appealed, saying that the failure to make such findings poisoned the grant of expungement.

The court of appeals agrees, concluding that "shall consider" really means "shall make findings about" each of the factors.  The court sends the case back to the trial court for a redo.

Warrantless Urine Test Is Not Authorized Under Search Incident to Arrest Exception to Warrant Requirement

State v. Thompson, Minn.Ct.App., 12/28/2015.  The year comes to a close as it began with yet more skirmishing over the constitutionality of DWI/test refusals.  Back in February the state supreme court said in Bernard that a warrantless breath test was constitutional under the search incident to arrest exception to the warrant requirement. In October the court of appeals then said, well, that's fine, but Bernard only applies to warrantless breath tests and we don't think that a warrantless blood draw is permissible under the search incident exception.   State v. Trahan.  The state supreme court quickly accepted review of that case, but then the U.S. Supreme Court accepted cert in State v. Bernard.  Time will tell who laughs last.

This go round the court of appeals once again pokes the state supreme court in the eye, this time over charging Mr. Thompson with refusal to submit to a warrantless urine test.  The court of appeals cuts and pastes from its Trahan opinion to reach the same conclusion about warrantless urine tests: it's not constitutional under the search incident exception to the warrant requirement because of its intrusiveness.  In fact, if anything, a urine test is even more intrusive:

“There are few activities in our society more personal or private than the passing of urine.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413 (quotation omitted). Because a driver must produce a urine sample in front of an officer, a urine test is unquestionably more intrusive than a breath test. See Bernard, 859 N.W.2d at 768 n.6 (explaining that a breath test is less invasive than a blood or urine test). A urine test “intrudes upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413.

The court also concludes, as it did in Trahan, that a warrantless urine test violated Mr. Thompson's substantive due process right to be free from unreasonable searches. 

Unfounded Claims of State Interference With Petitioner's Post Conviction Witnesses Defeat Claims

McKenzie v. State, Minn.S.Ct., 12/23/2015.  Mr. McKenzie, who is serving a life sentence for a murder, filed this post conviction petition which alleged that a witness, Wendell Martin Sr., had recanted his trial testimony.  Martin, Sr. had testified at Mr. McKenzie's trial that McKenzie had confessed to the killing while the two of them shared a jail cell.

Mr. McKenzie produced affidavits from LaMonte Martin and Heidi Mastin, each of which said that Martin, Sr. had told them that he had lied at McKenzie's trial.  In between the pleadings and the evidentiary hearing, Mastin pled guilty to some other offense under an agreement that purported to forbid her from testifying at Mr. McKenzie's post conviction hearing.  As a result, Mastin withdrew her affidavit.  Thereafter, but before the evidentiary hearing, the post conviction court said that the provision of the plea agreement forbidding Mastin from testifying was not enforceable. Even so, Mastin did not re-submit her affidavit.  Instead, she asserted a Fifth Amendment privilege and chose not to testify.  Voiding the provision of Mastin's plea agreement took McKenzie's interference claim off the board because it was based entirely on the provision of Mastin's plea agreement that forbid her from testifying.

Martin, Sr. also asserted a Fifth Amendment privilege.  This occurred after the assistant county attorney had a little chat with him, during which Martin Sr. said that his trial testimony had been the "absolute truth."  The assistant county attorney then informed the court that he would pursue criminal charges against Martin, Sr. if he testified.  

Mr. McKenzie cried foul, saying that the prosecutor had interfered with his witnesses' decision whether to testify.  Chief Justice Gildea only considered the claim for Martin, Sr.  Mr. McKenzie said that this interference took two forms:  the prosecutor's interview with Martin, Sr., after the court had appointed counsel to represent him, and the threat to prosecute him if he testified.  The chief justice rejects both of these claims. On the first one, the trial court had found that Martin, Sr. was not represented by counsel at the time of the interview with the prosecutor and so there was no interference.  As to the second form, Martin, Sr. undercut if not eliminated any claim by having said to the post conviction court that he wasn't worried about the state prosecuting him and that any fear of prosecution was not why he was declining to testify.

Next, Mr. McKenzie said that the post conviction court should have granted his witnesses use immunity because the state had substantially interfered with the decisions of his witnesses to testify.  Now, having just said that there was no substantial interference with the decisions of these witnesses not to testify that should have been the end of it.  Nonetheless, the chief goes on to question whether the use immunity statute even applies in a post conviction proceeding.  Assuming that it does, the court points out that the statute requires that the prosecutor request use immunity, which didn't happen here.  Continuing to plow ahead, the court completes its advisory opinion by saying that if there were to be such power to grant use immunity in a post conviction proceeding where the prosecutor hasn't asked for it it could only be in the face of "egregious prosecutorial misbehavior," which, again, didn't happen.     

Appellate Review of Claim of Biased Juror Waived By Failure to Object

State v. Geleneau, Jr., Minn.Ct.App., 12/21/2015.  The state charged Mr. Geleneau, Jr. with multiple counts of criminal sexual conduct.  In this combined direct appeal and appeal of the denial of a post conviction petition the focus is on jury selection.  Mr. Geleneau, Jr. said that the trial court had erred by not dismissing two prospective jurors for cause sua sponte.  He also said that he trial counsel had been ineffective for not moving to strike these two prospective jurors for cause.

The long and the short of it is that because trial counsel expressly waived his right to challenge the prospective jurors for cause - "That's all the questions I have this afternoon.  I pass [the panel] for cause, Your Honor." - Mr. Geleneau, Jr. could not complain on direct appeal that the trial judge should have done the work for him. Both the rules and prior case law say that counsel has to object, in this case by moving to strike the prospective jurors for cause in order to seek appellate relief.  The absence of an objection is enough, by itself, to reject a biased-juror argument on appeal. The court implies but ultimately ducks saying that a trial court never has an obligation to strike a biased juror sua sponte.

Turing to the ineffective assistance claim the court Mr. Geleneau, Jr. did not argue that trial counsel was obligated to allow a defendant to make decisions about keeping or striking prospective jurors.  That makes the failure to have moved to strike for cause a discretionary call by trial counsel.  The trial court wrote a lengthy rationale supporting trial counsel's decision not to seek to strike the two prospective jurors, which the court of appeals accepts.  Read that yourself and agree or disagree with it.

What's more intriguing is the court's dismissal of an affidavit from an unnamed "experienced criminal defense attorney" who reviewed only a three-page summary of the transcript of voir dire which had been prepared by post conviction counsel:

[The] opinions offered by the experienced criminal defense attorney are incapable of proving that the strategic decisions of trial counsel, who was present in the courtroom and undoubtedly had multiple sources of information about the prospective jurors, were below an objectively reasonable standard of performance.

No Seizure Occurs By Officer's Illumination of Already Stopped Vehicle by Squad Spotlight

Illi v. Commissioner of Public Safety, Minn.Ct.App., 12/21/2015. At around 1:30 in the morning an officer saw a red Jeep drive into the parking lot of a stip mall, then stop along a curb in that lot behind a delivery truck.  The officer pulled in behind the Jeep and to its left, stopping several feet away.  The officer illuminated the area with his spotlight and then walked over to the Jeep.  The officer neither activated his emergency lights nor used the squad's loudspeaker.  

Ms. Illi was the sole occupant in the Jeep.  When the officer got to the driver's side of the Jeep he noticed signs of her intoxication. One thing led to another and the officer arrested Ms. Illi for suspected drunk driving.  At the police station Ms. Illi refused to provide an adequate breath sample to determine her intoxication level.  The Commissioner revoked her license; she challenged that revocation saying that the officer had illegally seized her under the state constitution by blocking her in and by shining the squad's spotlight on her vehicle.

The district court had found that the officer had not parked his squad car so as to have prevented the Jeep from leaving.  The court of appeals accepts that finding and thus rejects Ms. Illi's first assertion that the officer seized her by the positioning of his squad car.

The court also rejects Ms. Illi's other assertion that the officer seized her by illuminating the Jeep with the squad's spotlight. There's a case from 1989, Crawford v. Commissioner of Pubic Safety, 441 N.W.2d 837 (Minn.Ct.App. 1989), where the officer briefly illuminated an already stopped vehicle.  The court had held that this did not constitute a seizure.  The court here concludes that the permanency of the spotlight's illumination is a distinction without difference:

We have no cause to suppose that a reasonable person would feel significantly more or less free to drive away depending simply on whether or not the officer had turned the spotlight off before approaching. These salient circumstances did not constitute a seizure in Crawford, and so they also do not constitute a seizure here. 

12/16/2015: No Supreme Court Published Criminal Opinions

Evidence Sufficient to Support Assault 4; Batson Challenge Denied

State v. Ivy, Minn.Ct.App., 12/14/2015.  The state charged Ms. Ivy with fourth degree assault of a peace officer.  The peace officer in question, who during his "day job" is a St. Paul officer, was working off duty at Regions Hospital when Ms. Ivy caused a scene. The officer's job title at Regions is that of a "uniformed security officer."  Uniformed security officers get to wear police uniforms with a hospital ID.  Regions also employs "hospital safety and security officers."  They wear cargo pants and pullover shirts. 

Because of Ms. Ivy's boorish and obscene behavior the officer in question asked her to leave.  In the course of escorting Ms. Ivy off the premises she ended up tearing the officer's shirt, and clawing his face with her hands and fingernails which left scratch marks and blood on his face.  It was only then that the officer in question arrested Ms. Ivy; before that he was only going to throw her out.

The jury convicted her of the assault.  She argued on appeal that the evidence had been insufficient to prove that the officer in question was either executing a lawful arrest or executing any other duty imposed by law.  Minn.Stat. 609.2231, subd. 1.  Ms. Ivy said that the officer in question was only enforcing hospital policy - behave yourself - and not executing any other duty imposed by law.  The court said, well that may be, but the officer in question was also protecting the health and safety of the hospital's patients and preventing a breach of the peace.  And surely those are two duties "imposed by law" upon a St. Paul cop.  More importantly, the officer in question had probable cause to have arrested Ms. Ivy for trespass because she had sneaked back into a part of the emergency room where she did not have authorization to be.  And she was causing a scene:  disorderly conduct.  That the officer in question decided initially only to remove Ms. Ivy from the premises rather than arrest her does not mean that he was not exercising a duty imposed by law. 

There's also a Batson issue.  A prospective juror stated that she had two cousins who had been charged with crimes, one with whom she was close. She also stated that an officer had pulled her over one time and she believed that the officer had used her boyfriend's prior gang involvement as a reason to search her car.  Finally, she described a negative hospital experience where her mother was refused service for the ostensible reason that she had no proof of insurance.  Because the prospective juror believed that the explanation for refusing service was racially motivated, she behaved rather badly toward hospital staff.  Both this prospective juror and Ms. Ivey are African American.  The state struck this prospective juror and Ms. Ivy objected.  

The state said that the prospective juror's hospital experience of a loved one whom she believed was not getting appropriate care because of race and her rather naughty response to that service refusal were both race-neutral reasons for excluding her.  The state then doubled down on the experience of the prospective juror's cousins with the legal system and the incident when an officer pulled her over to satisfy the requirement that these reasons not be pretextual.  Both the trial court and the court of appeals accepted these assertions.  Ms. Ivy fails in her Batson challenge.

Mail Properly Addressed and Sent Is Presumed to Have Been Duly Received

State v. Osorio, Minn.Ct.App., 12/14/2015.  Back in March 2007 the state investigated a claim that Mr. Osorio had sexually abused his minor stepdaughter.  No charges were filed at the time.  Mr. Osorio moved to California a move that the local police knew about.  The local police resubmitted the case or charging about nine months later but again no charges were filed.  

Nearly five years later, in September 2012, the local police received a complaint that Mr. Osorio had sexually assaulted another of his minor daughters.  In May 2013, the state finally charged Mr. Osorio with two counts of criminal sexual conduct in the first degree.  He was not arrested until twenty-one months later, Februry 2015 during which the state knew exactly where Mr. Osoria was. Mr. Osorio moved to dismiss on Barker v. Wingo, 407 U.S. 514 (1972) speedy trial grounds.  The trial court dismissed the charges.  

Mr. Osorio wins the first of the four Barker factors, the length of delay. A twenty-one month delay is presumptively prejudicial. The second factor is the reason for the delay.  The state knew where to find Mr. Osorio during the twenty-one month delay; it just didn't bother to got get him. So, this negligence goes against the state. Two down, two to go.

The third factor is whether and when Mr. Osorio asserted his right to a speedy trial.  Here, the court issued a summons and complaint and mailed them to Mr. Osorio's address in California.  There is nothing of record to refute the presumption that Mr. Osorio got the letter.  Also, he did not claim that he did not get the letter.  This factor goes to the state.  The fourth factor is prejudice to Mr. Osorio that is due to the delay.  About the best that he could do was to speculate that some possibly exculpatory audio recordings had been lost or destroyed during the delay, but he could not establish that this loss or destruction was "due to the delay."  What was left was Mr. Osorio's inaction after he presumably got the summons and complaint.  This one also goes to the state.

To break the tie, the court looks to the seriousness of the alleged offense.  That tips the scales in the state's favor.

There Is No Threats Exception To Psychologist-Client Privilege Statute

State v. Expose, Jr., Minn.S.Ct., 12/9/2015.  This comes up from the court of appeals, read here.  During court-ordered anger management counseling, Mr. Expose, Jr. made threats against his child protection worker.  His counselor reported the threats and the state charged him with terroristic threats.  The state wanted to put the counselor on the stand to tell the jury what Mr. Expose, Jr. said. Mr. Expose, Jr. objected for two reasons:  first, prior to trial he said that the counselor was not a licensed psychologist and thus not subject to the statutory mandated reporter requirements.  Second, during trial he said that his statements to the counselor were privileged. The trial court rejected both those arguments.  The court of appeals reversed, saying that the therapist-client privilege prohibited the counselor from testifying about information she learned during the therapy sessions.  The court of appeals also said that there was no "threats exception" to the privilege.

Justice Stras, with Justices Wright and Hudson not participating, affirms the conclusion of the court of appeals that there is no "threats exception" to the privilege, but then says that the privilege does not extend to testimony of third parties, namely the person who the counselor told about Mr. Expose's threats.

But before Justice Stras gets there he detours to talk about whether the privilege objection made during trial had been timely.  The state said that Rule 10.01 required the defense to raise the privilege objection before trial.  Here's what the rule says:

[d]efenses, objections, issues, or requests that can be determined without trial on the merits must be made before trial by a motion to dismiss or to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . .

Justice Stras rejects this waiver argument.  The rule, he says, applies to such things as challenges to the adequacy of a complaint because that can be determined by looking at the pleadings.  A privilege objection, on the other hand, is dependent upon what the witness is actually saying.  That is, is the counselor testifying to information or opinion acquired "in attending the client in a professional capacity."  Minn.Stat. 595.02, subd. 1(g).  So, Mr. Expose, Jr. didn't waive the privilege objection.

On the merits, Justice Stras, ever the strict constructionist, just can't find any words in the privilege statute that creates a "threats exception."  There are other exceptions in that statute but not for this.  The Justice was not willing to piggy-back the mandated reported statute to infer such an exception.

Employing that same strict constructionist approach the Justice cannot find any words in the privilege statute that excludes testimony from a third person to whom the counselor blabbed. Here, she told another person - her supervisor - of the treats because the counselor believed that she had a duty under the mandated reporter statute to do so.  Apparently the counselor's supervisor was neither a registered nurse, a psychologist, or a licensed social worker, who are the only professionals that the privilege statute covers.  The supervisor was thus a competent witness.

Even so, the court sends Mr. Expose's case back for a new trial because it could not say that the error in allowing the counselor to testify did not substantially influence the jury's verdict.  State v. Sanders, 775 N.W.2d 883 (Minn. 2009).

Trial Court Can Still Order Restitution Even Eight Years After Sentencing

State v. Andersen, Minn.S.Ct., 12/9/2015.  Mr. Andersen is serving a sentence of life without possibility of release from a June 2008 conviction. At the time of sentencing the court had left the question of restitution open for thirty days.  The state filed a restitution request within that thirty days but it took the court some eight years - October 2014 - to get around to granting that request.  After sentencing an attorney different from trial counsel filed a motion for a new trial but did not file a certificate of representation.  Trial counsel did not withdraw. The state served trial counsel with the restitution motion as well as Mr. Andersen.  No one filed a response to the motion for restitution.  Mr. Andersen thought that ordering restitution eight years after sentencing for a man who was never going to get out of prison was a bit harsh.

When the Department of Corrections got word of the restitution order in October 2014 it began to garnish his prison accounts.  Mr. Andersen filed a motion back with the trial court asking the court to take another look at the restitution business, to order DOC to return his money, and to appoint an attorney to represent him.  The trial court said no to the appointment of counsel; said that the state's service on Mr. Andersen's trial attorney was proper service; and said that Mr. Andersen was required to pay up.

Mr. Andersen made two challenges to the trial court's authority to order restitution.  First, he said that the state's service of the motion was not proper.  The trial court said that service on Mr. Andersen's trial attorney was effective to give Mr. Andersen notice.  Justice Diezten comes to the same conclusion; because trial counsel did not withdraw from representation - See Minn.Gen.R.Prac. 703 - the state's service on that attorney was effective even though by the time the state served its motion a different attorney had filed a motion for a new trial.  New trial attorney's failure to have filed a certificate of representation inured to the detriment of Mr. Andersen.  The court ducks the question whether the state's (additional) service of its restitution motion on Mr. Anderson personally was ineffective because he was represented by counsel.

Mr. Andersen's second challenge was, "Really? After eight years?" Justice Dietzen points out that the restitution statute does not set a deadline for the trial court to order restitution. So long as the statutory requirements are met the trial court can order restitution whenever it likes.  As to appointment of counsel, it's true that the court of appeals has said that a defendant has the right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App. 2013.)  Justice Dietzen ducks the question whether Maddox should be the law by concluding that whatever Mr. Andersen's motion to "resolve the restitution issue" was, it was not a restitution hear.  Finally, the court said that a motion to the district to order DOC to give Mr. Andersen back his money was not the correct way to go about challenging an administrative action. 

Substantive Due Process Does Not Require Rebuttable Presumption of Drug Contamination by St. Paul Crime Lab

State v. Hill, Minn.S.Ct., 12/9/2015.  The state charged Mr. Hill with aiding and abetting first degree sale of ten or more grams of methamphetamine.  Mr. Hill sold two bags of meth to a fellow who turned out to be a confidential informant.  The St. Paul crime lab weighed the two bags - the net weight was in excess of the requisite ten grams.  That lab then tested a small piece from each bag after which the remaining, untested contents of each bag were sealed up in a new evidence bag and subsequently sent over to the BCA for further testing. The BCA weighed the contents of each bag - still in excess of the requisite ten grams - and also tested the contents of each bag - still meth.

Mr. Hill objected to the introduction of the results of the BCA testing. He said that the BCA results that confirmed that the bags contained meth were unreliable because the contents of the bags might have been contaminated while they were in the custody of the St. Paul lab, investigation of which had uncovered deficiencies in its quality assurance controls.  Mr. Hill wanted the court to adopt a rebuttable presumption of contamination.  Chief Justice Gildea rejects that invitation for a unanimous six person court, newly installed Justice Hudson not participating.

Mr. Hill said that adoption of this rebuttable presumption was necessary to vindicate his right to substantive due process. Substantive due process protects an individual from "arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.  In re Lineham, 594 N.W.2d 867 (Minn. 1999).  The actions of the St. Paul crime lab must have either "shocked the conscience" or "interfered with rights implicit in the concept of ordered liberty" to violate substantive due process. It's a pretty high bar:  acts done with "deliberate and unjustifiable injurious intent", or the use of false evidence .  Given that both the St. Paul lab and the BCA determined that the stuff in the bags was meth, Mr. Hill couldn't really meet that standard.The St. Paul crime lab may have been inept in and ignorant about testing suspected controlled substances  but its heart was if not in the right place at least not proven to have been in the wrong place.  And, of course, had the court adopted a rebuttable presumption for the testing done by the crime lab it would have overturned hundreds and hundreds of previous convictions.

Mr. Hill's fall back position was that the court should adopt this rebuttable presumption under its supervisory powers to ensure the fair administration of justice.  For just about the same reasons the court also declines to do this as well.

Aiding Offender After the Fact Does Not Require That Offender Be Convicted of a Crime

State v. Townsend, Minn.Ct.App., 12/7/2015.  Mr. Townsend pled guilty to aiding an offender after the fact.  In between the plea and sentencing, the "offender" went to trial on a charge of first degree murder and got acquitted.  Oops. Mr. Townsend thought he should get his plea back, but both the trial court and the court of appeals say no.

It's a bit more complicated than that, of course.  Mr. Townsend had bought a gun off a Mr. Shufford.  Not long after, however, Mr. Shufford asked to borrow the gun back "because he intended to rob someone."  Mr. Townsend loaned him the gun.  Later that same day, Mr. Shufford reported to Mr. Townsend on the outcome of the robbery:  he'd had to "slump the guy."  Mr. Shufford showed Mr. Townsend and two other guys the dead body and the four of them then helped themselves to money from the deceased's wallet.

Mr. Townsend said that he couldn't be guilty of aiding an offender after the fact when the offender wasn't convicted of anything.  His plea, he said, was not accurate and thus invalid.  The statute in play, Minn.Stat. 609.495, subd. 3 says that:

“[w]hoever intentionally aids another person whom the actor knows or has reason to know has committed a criminal act, by destroying or concealing evidence of that crime, . . . [or] receiving the proceeds of that crime . . . is an accomplice after the fact.

The pattern jury instructions for aiding an offender after the fact require that the state prove that Mr. Shufford committed the crime of first degree murder.  Of course, the state utterly failed in that endeavor in Mr. Shufford's trial.  But, never mind about that because Mr. Townsend's plea colloquy in which he admitted the aforesaid facts gave him "reason to know" something that Mr. Shufford's jury did not know:  that Mr. Shufford had, committed first degree murder: 

Townsend admitted the following at the plea hearing: (1) he lent Shufford his gun because Shufford intended to rob someone; (2) Shufford told him that the robbery had gone “sour” and that he had to “slump” the victim; (3) Townsend went with Shufford to the site of the murder and Shufford showed him the dead victim in a car, saying that the victim is “not waking up” because Shufford “slumped him”; and (4) Townsend knew the gun had been used to kill the victim. These admitted facts “support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty

The court of appeals readily admits that this is grossly unfair but somehow it declines to give Mr. Townsend back his guilty plea under either the more forgiving "fair and just" standard or the "manifest injustice" standard for withdrawal of a plea.

12/2/2015: No Supreme Court Published Criminal Opinions

Injury From Bullet Wound That Could Have But Didn't Cause "Great Bodily Harm" Does Not Support Assault First Degree Conviction

State v. Dye, Minn.Ct.App., 11/30/2015.  Mr. Dye shot E.G. in her lower back.  A CT scan showed that the bullet traveled in a straight line through eight inches of tissue into E.G.'s abdomen.  That was it; the bullet did not hit any organs much less "vital" ones.  After Mr. Dye shot her, he left; E.G. called 911.  When the cops arrived she was still on the phone with the 911 operator.  She was in pain but she managed to tell the officers what Mr. Dye was wearing, that he had left in a black car with his sister's kids, and that he was likely going to his baby mama's place.  The paramedics said that E.G. was able to walk, talk, and breath, and also said that there was no excessive external bleeding at the wound's entrance location.

The state charged Mr. Dye with first and second degree assault, and with unlawful possession of a firearm.  The jury convicted him of all three charges.

Mr. Dye said that there was insufficient evidence to have convicted him of assault in the first degree, which required proof of "great bodily harm."  This is defined as:

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

The state said that when Mr. Dye fired a bullet into E.G.'s torso that, alone, created a "high probability of death."  The court of appeals said, well, no, we've already rejected that theory back in 1992 in State v. Gerald, 486 N.W.2d 799 (Minn.Ct.App. 1992). There the court had said that just because the injury was located close to a major vein or artery and thus could have been more serious was not enough to prove "substantial bodily harm.  Rather, the injury, itself, must in fact be life-threatening.  So, because E.G.'s injury - determined by the bullet trajectory - did not hit any critical body parts that injury was not life threatening.  Nor was the injury encompassed within the catch-all language, "other serious bodily harm."  That requires that the court consider the totality of the victim's injuries.  For E.G. that meant a victim who was talking, walking, breathing, providing pertinent information to the cops, and being discharged a day later after doctors made a small incision to remove the bullet.

Mr. Dye also complained about the admission of E.G.'s 911 call and her initial statements to police even though she did not testify.  He said that this was a violation of his confrontation rights under Crawford.  The court rejects this assertion, concluding that the statements that E.G. made to the 911 operator were made to meet an ongoing emergency:

First, both the 911 call and the initial statements to officers were made within minutes of the shooting, while the shooter was still at large in the area. Second, at the time the statements were made, E.G. was in shock, crying, panicky, and appeared to be in significant pain from her recent gunshot wound. Third, the questions asked and answered were designed to address the ongoing emergency and to ascertain E.G.’s physical condition. Notably, the shooter fled the scene still armed with his sister’s children. Fourth, the statements were made in a frantic and non-tranquil environment. E.G. was scared and extremely concerned that the shooter would return and hurt her children. 

11/25/2015: No Supreme Court Published Criminal Opinions

11/23/2015: No Court of Appeals Published Criminal Opinions

11/16/2015: No Court of Appeals Published Criminal Opinions

11/12/2015: No Supreme Court Published Criminal Opinions

Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates Does Not Violate Single Behavioral Incident Rule

State v. Bakken, Minn.Ct.App., 11/9/2015.  The state charged Mr. Bakken with seven counts of possession of pornographic works involving minors.  Mr. Bakken pled guilty to those seven counts. During the plea hearing, Mr Bakken admitted that he downloaded each of the seven images on separate dates and that each image was of a different minor. Over objection on double jeopardy and single behavioral incident arguments, the trial court sentenced Mr. Bakken on all seven counts.

The state first argued that because Mr. Bakken pled guilty without first objecting on double jeopardy and statutory grounds he waived those issues on appeal.  The appellate court said no, that a guilty plea does not bar raising a double jeopardy claim on appeal so long as that claim could be decided on the existing record.  

Rather than address the constitutional double jeopardy claim, the appellate court declared that the single behavioral incident statute, Minn.Stat. 609.035, provides more protection than the constitution and so confined its analysis to that statute.  A single behavioral incident requires a unity of time and place, and a single criminal objective.  Mr. Bakken satisfied the place - his computer - but not the time, since he admitted that he acquired each of the seven images on different dates.  The appellate court was also unwilling to say that his "personal sexual gratification" satisfied the single criminal objective requirement.  Permitting only one sentence when there are multiple incidents spread over time was too much for the court to sanction.

11/02/2015: No Court of Appeals Published Criminal Opinions

10/28/2015: No Supreme Court Published Criminal Opinions

10/26/2015: No Court of Appeals Published Criminal Opinions

Court Applies Harmless Error Analysis To Witness Intimidation Claim

Colbert v. State, Minn.S.Ct., 10/21/2015.  Mr. Colbert is serving a life sentence without possibility of release for the murder of Robert Mitchell back in 2003.  This is his sixth post conviction petition.  He said that a "state actor" had threatened a defense witness before testifying, that there was newly discovered evidence that the state had altered an exhibit, that there was juror misconduct, and that all these errors combined entitled him to a new trial.  The post conviction court summarily denied the petition.

Justice Dietzen apparently wanted to write about the standard of proof by which to assess whether a witness intimidation claim by a government actor violated a defendant's right to present a complete defense.  The Justice assumed without deciding that the claim was neither time barred under the post conviction petition nor procedurally barred under Knaffla.  The question to be answered is whether the interference was "substantial," which is fact specific. The court applied this "substantial interference" test in State v. Beecroft, 813 N.W.2d 814 (Minn. 2012).  

So, for Mr. Colbert, assuming that there was error was it harmless or structural?  If structural then Mr. Colbert gets a new trial without having to show anything other than the error.  The court decides that harmless error is the correct standard so Mr. Colbert had to prove that a government actor interfered with a defense witness's decision to testify, this interference was "substantial" and that Mr. Colbert was prejudiced by the conduct.  Unfortunately for Mr. Colbert, he could not prove prejudice; it seems that the witness whom he claimed had been "substantially interfered" with readily testified for him, even hamming it up just a bit.  

The court concludes that the juror misconduct claim is procedurally barred under Knaffla because he knew about it at the time of his direct appeal and at the time of his previous post conviction petitions but failed without excuse to raise it. The court continues to dodge the question whether the "interests of justice" exception created by Knaffla survives the codification of Knaffla by the legislature.  

Finally, on the exhibit tampering claim, the court concludes that it has no merit, that the exhibit actually shows what Mr. Colbert said that it did not:

No "inherent Authority" to Summarily Impose Monetary Sanction on Attorney Who Fails to Appear for Scheduled Hearing

In re Crag E. Cascarano, Appellant, State of Minnesota, Plantiff v. Mason, Minn.Ct.App., 10/19/2015.  This isn't a criminal opinion, but a tale about a criminal attorney who had the misfortune to miss a scheduled court appearance before a judge who was apparently having a really bad day.  Not only that, the lawyer, Mr. Cascarano, thought he had the hearing covered by a colleague only the colleague forgot to mark his calendar.  When no one appeared on behalf of Mr. Mason the judge slapped Mr. Cascarano with one hundred ($100.00) dollars in "court costs".

Then things got ugly.  Mr. Cascarano got the chief judge of the district to disqualify the judge who'd imposed the "court costs" from presiding over the criminal trial, and to stay the one hundred bucks.  The chief also said that "court costs" could be imposed to punish an attorney's scheduling error in a criminal case only after compliance with applicable contempt statutes.  Well.  The judge who'd imposed the "court costs" shot back that the chief had exceeded his authority to stay the order imposing the "court costs" and ordered Mr. Cascarano to pay up "immediately."  The judge also said he wasn't "punishing" Mr. Cascarano but was relying on the court's "inherent authority."  Mr. Cascarano then had to run up to the court of appeals and get that court to stay enforcement of the "pay immediately" order.

Whew.  

Chief Judge Cleary rejects the trial court's claim of inherent power to impose "court costs" for accidentally screwing up a court appearance.  Call it what you like, Chief Judge Cleary said that the $100.00 was punitive because it was intended to punish Mr. Cascarano's failure to appear at a hearing.  This behavior did not occur in the trial court's presence so if it is contempt it is constructive contempt.  A charge of constructive contempt may not be punished summarily.  Rather, the state must prosecute constructive contempt at which the alleged contemnor is entitled to a trial by jury and proof beyond a reasonable doubt.  Whether Mr. Cascarano's failure to appear - or have a colleague appear in his stead - was contemptuous or excusable is a jury question.

A Rule 27 Motion That Really Attacks the Underlying Conviction is Not a Request to "Correct Sentence" Under the Rule

Wayne v. State of Minnesota, Minn.S.Ct., 10/14/2015.  Over the years, Mr. Wayne has filed post convictions petitions nearly too innumerable to count.  This is number eight.  Mr. Wayne styled this one, "Motion for Correction of Sentence," hoping to sneak it in under Rule 27.03, subd. 9, which currently does not have a limitations term nailed to it.  Mr. Wayne, however, was too clever by half for both the trial court and for Justice Stras.

What Mr. Wayne was complaining about only tangentially had anything to do with his sentence.  He's serving a life sentence for the stabbing death of Mona Armendariz, back in 1987.  He said that the trial court had erred by failing to instruct the jury on a lesser-included offense and that this error eventually led to a sentence longer than was "authorized by law." Well, both the trial court and Justice Stras called Mr. Wayne out on this. Both said that what he was really complaining about was the manner in which the jury convicted him and not the manner in which the trial judge then sentenced him.  That made his pleading the equivalent of a post conviction petition, and that petition is barred by the two year limitations period unless Mr. Wayne can show an exception to it.

Because Mr. Wayne was hoping to fly underneath the post conviction statute's limitations radar his pleadings here never even mentioned either that statute or any of its exceptions.  Having failed to do so, there was no abuse of discretion by the trial court in summarily denying the request for relief.

Refusal to Submit to Warrantless DWI Blood Draw Unconstitutional

State v. Trahan, Minn.Ct.App. 10/13/2015.  Petition For Further Review GRANTED (11/25/2015).  Just when it looked like all this McNeeley/Bernard/Refusal/DWI litigation was winding down here comes another bender.  This time it’s a refusal to consent to a blood draw.  Mr. Trahan argued that the test refusal statute is unconstitutional as applied to him because it violates his substantive due process by criminalizing his refusal of an unconstitutional search of his blood.

Just a few months ago the supreme court said in State v. Bernard, 859 N.W.2d 762 (Minn. 2015) that a warrantless breath test is constitutional because it is a search incident to a lawful arrest.  Bernard, however, does not apply to refusal to submit to a blood draw.  And, even the state conceded here that a blood draw would not be justified under the search incident exception to the warrant requirement.  Instead, the state said that there were exigent circumstances, another exception to the warrant requirement.  State v. Stavish, ___ N.W.2d. ___ (Minn. 2015).  The court of appeals doesn’t agree, saying that the “totality of circumstances” for Mr. Trahan was nothing more than a garden variety DWI arrest.  In particular, the court declined to expand Stavish by saying that the two hour statutory time frame within which to acquire an exemplar was, itself, an exigency sufficient unto itself to obviate the need for a warrant.

Having found no justification for not obtaining a warrant, the court then looks at the substantive due process claim.  The right to be free from unreasonable searches is a fundamental right and is thus subject to strict scrutiny.  The court recognizes the state’s compelling interest in highway safety but concludes that the state has not shown that the test refusal statute is sufficiently narrowly tailored to serve that interest.  The state, the court said, has other viable options to address drunk driving:  ask the driver to submit to a breath test; prosecute for driving under the influence, which doesn’t require a chemical test; or get a warrant.  Thus, the court concludes:

We conclude that criminalizing the refusal to submit to a warrantless blood test “relates to the state’s ability to prosecute drunk drivers and keep Minnesota roads safe,” Bernard, 859 N.W.2d at 774, but it is not precisely tailored to serve that compelling state interest. It therefore fails strict-scrutiny review.

Judge Ross dissents.  He writes this lengthy libertarian opinion that he dearly hopes will be the springboard from which the Supreme Court will upend the majority’s fuzzy, feel-good reasoning.  Ross says that the majority’s insistence on a warrant for a blood draw makes the fourth amendment a sword instead of a shield.  Not only that.  The majority lets the fourth amendment back out onto the highways after the legislature had put it in the garage.  The refusal statute, it turns out, trumps the fourth amendment.  The statute empowers the drunken driver to “just say no” and there’s nothing the trooper can do about it.  The cost?  A mere sixty or so months in prison.

10/8/2015: No Supreme Court Published Criminal Opinions

10/6/2015: No Court of Appeals Published Criminal Opinions

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

State v. Meyers, Minn.S.Ct., 9/30/2015.  A jury convicted Mr. Meyers of assault in the first degree for the stabbing injuries to the victim.  The trial court imposed an aggravated sentence based on this injury and upon Mr. Meyer's previous conviction in which that victim had been injured. 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.

The court of appeals upheld this sentence departure.  Read about that here.  Chief Justice Gildea, Justice Dietzen not participating, upholds the court of appeals although on more simplified reasoning.  The chief says that because the requirement for the previous conviction in which the victim was injured is not an element of the current offense, there is no violation of the rule that says that a departure can't be based on an element of the offense. State v. Osborne, 715 N.W.2d 436 (Minn. 2006).   Put another way, a departure can be based on an element of the offense so long as the legislature has tacked on another requirement to authorize the departure.  So, while the quantity of drugs alone can't support a departure, State v. McIntosh, 641 N.W.2d 3 (Minn. 2002), the quantity of drugs plus a finding that a defendant's past includes whatever the legislature chooses to use as an enhancer, does support a departure.

A CO 2 BB Gun is a "Firearm" Under Minn.Stat. 609.165

State v. Haywood, Minn.Ct.App., 9/28/2015.  Review granted, 12/15/2015.  The state charged Mr. Haywood under Minn.Stat. 609.135, subd. 1b(a) with possession of a firearm by an ineligible person, the "firearm" being a Walther CP99 Compact .177-caliber BB gun.  This BB gun's propellant is CO2 and is available over on Amazon for seventy bucks plus shipping.  Here's what the statute says:

Any person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, and who ships, transports, possesses, or receives a firearm, commits a felony and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both. 

There is no definition of "firearm."  In large part because of Justice David Stras, when there is no statutory definition of whatever word or phrase happens to be in play the appellate courts have run to their favorite dictionary.  It turns out that every dictionary that this panel of the court of appeals consulted - including Black's Law Dictionary - said that a "firearm" is a "weapon from which a shot is discharged by gunpowder."  Oops.

Alas, the problem for Mr. Hayword is a series of appellate opinions that have said that a "firearm" under various other provisions of Chapter 609 includes a CO2 BB gun.  State v. Seifert, 256 N.W.2d. 87 (Minn. 1977) (Section 609.11 enhanced sentencing provision for use of possession of a firearm includes CO2 BB guns.)  State v. Newman, 538 N.W.2d 476 (Minn.Ct.App. 1995) ("Firearm" in the Drive-by shooting statute, Minn.Stat. 609.66, includes CO2 BB guns).  State v. Fleming, 724 N.W.2d 537 (Minn.Ct.App. 2006) (Minn.Stat. 624.713, subd. 1(b), prohibiting possession of a firearm by a person convicted of a crime of violence encompasses CO2 BB guns).

It seemed that in each of those cases the court lamented the legislature's sloppy drafting by not including a comprehensive definition of "firearm."  The legislature's response was pretty much to leave well enough alone.   They either amended or enacted statutes having to do with "firearms" without providing the court's begged-for definition.  That being the case the courts presume that the legislature is adopting the court's interpretation.

These older Opinions that the court of appeals is relying upon predate the "law by dictionary" fad that the appellate courts are now caught up in.  So,Mr. Haywood may yet get another shot, so to speak, at getting his conviction overturned.

9/23/2015: No Supreme Court Published Criminal Opinions

9/21/2015: No Court of Appeals Published Criminal Opinions

9/16/2015: No Supreme Court Published Criminal Opinions

9/14/2015: No Court of Appeals Published Criminal Opinions

Claims in Second Post Conviction Petition Barred Under Knaffla

Williams v. State, Minn.S.Ct., 9/9/2015.  Mr. Williams is serving  a sentence from a 1997 conviction for first degree premeditated murder.  He filed this, his second post conviction petition, in 2013 claiming that both his trial and appellate counsel were ineffective. The post conviction court denied the petition without a hearing. Justice Stras concludes that Mr. Williams' claims are procedurally barred.

Mr. Williams alleged that his trial counsel had been ineffective for failing to investigate an alternative perpetrator defense; and that his appellate counsel has been ineffective for not raising trail counsel's aforesaid ineffectiveness.  The post conviction court said that Mr. Williams could have raised these claims in his first post conviction petition and thus he could not raise them now under Knaffla. Justice Stras agrees with that conclusion.  Once again, the court declines to address the question whether the Knaffla exceptions survived the enactment of the statutory two year limitations periods with its own exceptions.  Mr. Williams also said that his mental illness prevented him from filing the claims within the two year limitations period.  The post conviction court said that Mr. Williams had been sufficiently competent to file a direct appeal, the first post conviction, and an appeal of that order.  Justice Stras affirms that conclusion.

Minn.Stat. 244.10.5a(b) Permits Aggravated Sentence Based on Any Aggravating Factor Arising From Same Course of Conduct

State v. Fleming, Minn.Ct.App., 9/8/2015.  The state charged Mr. Fleming with possession of a firearm by an ineligible person, and with assault in the second degree.  Someone cut Mr. Fleming with a knife while the two were, one supposes, playing basketball.  In response, Mr. Fleming pulled a gun out of his backpack and fired off six rounds.  There were lots of adults and kids around when this happened.  Mr. Fleming pled guilty to both of these offenses.

The trial court imposed a 90 month sentence on the firearm possession conviction, stayed for eight years.  This represented a dispositional departure - probation - and a durational departure - 90 months instead of 60.  The court also stayed a 36 month sentence on the assault, concurrent with the other stayed sentence.  The court explained that the dispositional departure was because the victim had been the initial aggressor and Mr. Fleming had an imperfect self-defense claim.  The court explained the durational departure was because of the "unique seriousness" of the offense.  The court went on to say:

Going back to the caselaw and taking into account the general nature of the aggravating factors that may be considered, this court finds the danger to the general public— those innocent children, families, and community members in the area of Folwell Park—cannot be overstated. Bullets kill and maim. Bullets do not know their target, and can kill or maim unintended victims. Mr. Fleming’s actions threatened to harm or kill at least six people. And, as is readily apparent, his actions negatively impacted the lives of hundreds[, and] added to the steady drumbeat of negative reports of crime in North Minneapolis. Nothing good came out of Mr. Fleming’s actions. 

This might have been the end of the story except that subsequently Mr. Fleming violated certain conditions of his probation.  The court revoked the previously stayed 90 months sentence on the firearm possession charge, (after which Mr. Fleming demanded execution of the concurrent 36 month sentence.

Mr. Fleming appealed, reaching  back to the initial sentence and saying that the trial court made a mistake by the upward durational departure from 60 to 90 months.  Mr. Fleming agreed that his conduct created a greater than normal danger to the safety of other people, but said that he created this greater danger by committing the assault.  Case law says, Mr. Fleming said, that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.  State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996).

Well, that was true back in the '90's but the legislature changed the law in 2009 when it amended Minn.Stat. 244.10, subd. 5a(b):

Notwithstanding section 609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.

The Court of Appeals says that this is the first judicial opinion applying this 2009 amendment.  The court concludes that the amendment means exactly what it says: it authorizes a departure based on any aggravating factor that arises from the same course of conduct as the felony sentencing offense.  Just to be sure, however, the Court also says that because multiple punishments are permissible for Mr. Fleming's convictions there is no prohibition against basing a departure on conduct underlying another conviction.  State v. Grampre, 766 N.W.2d 347 (Minn.Ct.App. 2009), review denied, (Minn. Aug. 26, 2009).

The court also examined the revocation, itself, and concludes that the trial court properly applied the Austin factors in revoking Mr. Fleming's probation.

9/2/2015: No Supreme Court Published Criminal Opinions

8/31/2015: No Court of Appeals Published Criminal Opinions

Even a Wilful Violation of a Term of Probation Does Not Constitute Criminal Contempt of Court

State v. Jones, Minn.S.Ct., 8/26/2015.  Remember the business up in Crookston where the state was charging probation violators with contempt of court?  Refresh your memory here.  Justice Lillehaug affirms the opinion of the court of appeals that dismissed the contempt of court charge:

Interpreting both the contempt and probation statutes, we hold that a willful violation of a “term” of probation prescribed at sentencing does not itself constitute the crime of violation of a “mandate of a court” under the criminal contempt statute. 

The state brought contempt of court charges under Minn.Stat. 588.20, Subd. 2(4) which prohibits "wilful disobedience to the lawful process or other mandate of a court."  The question for the court to answer was whether a term of probation, itself, was an "other mandate of a court."  A "mandate," the court concludes, is at least a court order commanding compliance with a direction of the court.  Whether a probation "term" itself is a "mandate" is ambiguous.  The court resolves this ambiguity by observing that the probation statutes nowhere provide or even hint that a wilful violation of a term of probation is criminal contempt.

Court Declines to Disapprove Requirement That Spectators Have Photo Identification In Order to Enter Courtroom

State v. Taylor, II, Minn.S.Ct., 8/26/2015.  A jury convicted Mr. Taylor, II of first degree murder and two counts of attempted first degree murder. Mr. Taylor, II drove his crew, alleged members of a gang, around looking for a rival gang member.  In what turned out to be a mistaken belief that the guys had found this rival, two of the guys got out of the car and started shooting.  One teenager died, one was wounded.  Neither was the rival gang member being sought.

Two of the three who were riding around with Mr. Taylor, II reached plea deals with the state and testified against Mr. Taylor at trial.  Three jail informants also testified against him.  Two jail phone calls by Mr. Taylor II were admitted into evidence: one in which he expressed regret for not bailing out and taking off; the other in which he seemingly discussed an alibi defense with his girlfriend.  Mr. Taylor, II also testified in his own defense.  He denied having anything to do with the shootings and he denied any gang affiliation.  In response, the state put up a gang expert who had examined two photographs already admitted into evidence without objection.  In one photo, Mr. Taylor, II appeared to be displaying a symbol associated with the gang that the state said he belonged to.  In the other he was displaying a sign that was disrespectful of the rival gang whose member they had been searching for on the night of the shooting

The jury convicted Mr. Taylor, II of all counts.  On appeal, he presented eight errors:

(1) it excluded from the courtroom members of the public that did not have photographic identification; (2) it excluded evidence supporting an alternative motive of the eyewitnesses; (3) it admitted testimony from a gang expert identifying Taylor as a gang member; (4) it gave jury instructions on aiding and abetting liability that did not include certain elements; (5) it did not sua sponte instruct the jury that appellant’s prior convictions could only be used for impeachment purposes; (6) it violated his right to a speedy trial; (7) it admitted a note protected by attorney-client privilege; and (8) it admitted prison phone call recordings.

The trial court established a set of rules for spectators at trial, one of which was to show photographic identification before being allowed entry into the courtroom.  Mr. Taylor, II did not object to this rule and there was nothing in the record by which to determine whether this identification rule was enforced and, if so, whether anyone who sought to enter the courtroom without a photo ID could not do so.  This was enough for Justice Lillehaug, with only Justice Page dissenting, to say, "No harm, no foul."

The court treated this photo ID requirement as a partial closure of the courtroom even though there was no proof that any closure actually occurred.  In past opinions, the court has disapproved the exclusion of a defendant's brother and cousin from the courtroom, State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007; and disapproved the exclusion of all spectators during the testimony of two minor victims of sexual assault, State v. Fageroos, 531 N.W.2d 199 (Minn. 1995).  In each of those cases the court had determined that the trial court had failed to make adequate findings to support the closure decision.  In two other instances, however, the court approved what it characterized as "partial closures" of the courtroom during a trial.  In State v. Brown, 815 N.W.2d 609 (Minn. 2012), the trial court had locked the doors during closing arguments but without clearing the place of spectators already there. And, in State v. Lindsey, 632 N.W.2d 652 (Minn. 2001), the trial court had excluded underage spectators.  In those cases, the supreme court had concluded that these sorts of partial closures were "too trivial" to amount to a violation of the defendant's Sixth Amendment right to a public trial.

Justice Lillehaug ducks the question whether the rule, itself, is a violation of a defendant's Sixth Amendment right to a public trial. The Justice, instead, reframes the issue to ask whether anyone got excluded from the courtroom by operation of the rule. This put the Justice in the rather awkward, if not unseemly, position of condoning the practice of requiring a photo ID in order to enter a public courtroom. After all if the rule, itself, violates the Sixth Amendment then there's no reason to start counting heads to see who got in and got sent home.  

The Justice's reasoning gets even more fuzzy.  The justice finds no evidence that the photo ID rule had either been enforced or had resulted in anyone's exclusion, yet he, nonetheless, still looks to "partial closure" opinions to decide the reframed question.  The court concludes that although the record says that not one person got excluded the situation was more like Brown and Lindsey than the other cases.  That is, there was a "closure" but it was "trivial." The Justice did chastise the trial courts that they should not require a photo ID as a condition of entry to the courtroom "unless there is good cause and no reasonable alternative ..."  Again, this implicitly condones the practice of carding people in order to get into a public courtroom.

This all got Justice Page to dissent, warning that the court was on a "march" to limit public access to the courts.  Justice Page pointedly observed that since  permitting the the courtroom closure in Brown there have been nine petitions for review that have challenged a trial court's decision to close or lock the courtroom doors despite cautioning the trial court to take such action "carefully and sparingly."  

Mr. Taylor, II wanted to ask his two co-defendants who testified against him whether they had a motive for the shootings that did not involve him.  The trial court denied this request.  Justice Lillehaug assumed without decided that this was an error but concluded that it was harmless.  Mr. Taylor, II also complained about the admission of testimony from the gang expert.  Again, the court assumed that admitting this evidence was error and then concluded that it was harmless.

Next, Mr. Taylor, II complained about the instruction on accomplice liability even though he hadn't objected to it at trial.  He said on appeal that the trial court should have instructed the jury that his presence at the shooting "did aid the commission of the crime."  This language was added to the pattern jury instructions after Mr. Taylor's trial, in apparent response to State v. Mahkuk, which identified two factors for determining whether a defendant's presence "intentionally aids" another in committing a crime:  that the defendant knew that the alleged accomplices were going to commit a crime, and the defendant intended his presence or actions to further the commission of that crime.  Justice Lillehaug says that the court has never required such language and then goes on to make it abundantly clear that the criminal jury trial instructions committee needs to go back to the drawing board and remove this "did aid" language.

The trial court also instructed on "expansive" liability for the crimes of another - other foreseeable crimes - but failed to say that other crimes committed had to be reasonably foreseeable by Mr. Taylor.  Justice Lillehaug said that this omission does not require automatic reversal, especially on a plain error standard of review. The court also rejected Mr. Taylor's assertion that the instructions should have specified the original intended crime.

Justice Lillehaug upholds the trial court's failure to give the jury a limiting instruction following admission of Mr. Taylor's prior convictions for impeachment purposes.  The problem was, Mr. Taylor hadn't request this instruction.  The court rejected Mr. Taylor's pro se claim that he had been denied his right to a speedy trial. His trial had not commenced until over 100 days after the demand so there is a presumption that a violation had occurred. Only one of the delays in starting trial was attributable to the state. On whether Mr. Taylor, II suffered prejudice from the delay the only possibility here was impairment of his defense.  The court rejected Mr. Taylor's argument that he was prejudiced because the delay gave the state the opportunity to secure plea agreements with his co-defendants.

Finally, the court rejects Mr. Taylor's pro se claim that introduction of a note seized from his jail cell which described one of the guys who was in the car with him as a "lying snitch ass" violated attorney-client privilege, accepting the trial court's finding that the note did not communicate anything to defense counsel regarding his case.  The court also upheld the admission of the two jail phone calls, and his "cumulative error" claim.

Felony Fourth Degree Assault of Peace Officer Requires Proof of Both a "Physical Assault" and Intentional Throwing/Transferring of Fluids At or Upon Officer

State v. Struzyk, Minn.S.Ct., 8/26/2015.  Officers had to taze Mr. Struzyk in order to arrest him.  Afterwards, he smeared some of the blood from the Taser onto the uniform of the arresting officer.  For this act of defiance the state charged Mr. Struzyk with felony assault in the fourth degree.

Here's what the fourth degree assault against a peace officer statute says, Minn.Stat. 609.2231, Subd. 1:

Whoever physically assaults a peace officer licensed under section 626.845, subdivision 1, when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. If the assault inflicts demonstrable bodily harm or the person intentionally throws or otherwise transfers bodily fluids or feces at or onto the officer, the person is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.

Justice Wright, for the entire court (although Justice Stras wrote a concurrence), had to answer the question whether the intentional act of transferring the blood was, itself, the "physical assault" that the statute requires.  The Justice hauls out both the dictionary and rules of grammar to answer that question, no.  The court concludes that to be convicted of felony fourth degree assault of a peace office the state must prove both a "physical assault" and the intentional throwing or transferring of bodily fluids or feces at or onto the officer. Justice Wright says that the italicized words, "the assault, "the person," and "the officer" all refer to the beginning phrase "whoever physically assaults".  So, the statute creates the baseline gross misdemeanor offense for physically assaulting a peace officer in the first sentence.  In the second sentence, the statute provides for the enhancement of the baseline gross misdemeanor to a felony by proof of one of two additional requirements: either demonstrable physical harm, or the intentional throwing/transferring fluids/feces at/upon the officer.

Justice Wright concedes that it doesn't take much to find an assault: some pain or discomfort would suffice.  However, she rejected the state's argument that the potential of contracting a disease from contact with fluids or feces was enough.  Rather, that disease from the contact must be proven and it must have caused either pain or discomfort.  

Justice Stras wrote a concurrence.  He agreed that the statute required proof of a "physical assault" in order to make the crime a felony.  However, he agreed with the state that the act of throwing/transferring fluids/feces was such a "physical assault".

Court Reverses Durational Departure Based on "Offender-Related" Factors

State v. Solberg, Minn.Ct.App., 8/24/2015.  Petition For Further Review, granted, 11/17/2015.  In this sentencing challenge soon-to-be- Justice Hudson delivers a somewhat mischievous Opinion. At issue is a durational departure and whether the trial court applied the correct "offense-related" factors rather than "offender-related" factors.

In the middle of trial, Mr. Solberg entered a Norgaard plea to third degree criminal sexual conduct.  The state agreed to recommend the bottom of the presumptive guidelines sentence and agreed that Mr. Solberg could argue for a departure, either dispositional or durational.  He asked for both and the trial court granted a durational departure.

The trial court cited several "offender-related" factors to support the durational departure:  Mr. Solberg's age, his cooperation with law enforcement, and his limited criminal history, (that last one not being a proper factor at all).  This, of course, was a no no.  More problematic for Mr. Solberg, the trial court also specifically rejected the only "offense-related" factor, that the offense conduct was less serious than the "typical" CSC III offense.  

The court of appeals then switched to the Williams alternative analysis: even though the cited reasons were wrong are there sufficient appropriate reasons within the record to support the departure?  Mr. Solberg said that his remorse was a sufficient factor because it was directed not just at his wrong doing but at the seriousness of the offense as well.  This kind of "relation back" sleight of hand can support a durational departure even though it's an "offender-related" factor.  State v. Bauerly, 520 N.W.2d 760 (Minn.Ct.App. 1994).  Soon to be Justice Hudson had two responses to this argument.

First, Ms. Bauerly just barely stole enough money from her employer to elevate the offense to a felony.  So, her remorse reflected on the seriousness of the offense, and the trial court only granted a one day durational departure (felony to gross misdemeanor).  Mr. Solberg's alleged remorse came during a guilty plea in the middle of a trial that was not going very well, and so it seemed just a likely that the only "remorse" that Mr. Solberg had was that he was about to be convicted.  Not only that, the duration of Mr. Solberg's departure was a lot of months.

Second, Judge Hudson said that although case law says that a single aggravating factor may justify an upward departure, she could not find a single case saying that a single factor is enough to justify a downward durational departure.  Just why a specific factor can support a longer sentence but the same factor won't support a shorter sentence isn't explained.  

Court Finds McNeely Exigent Circumstances to Uphold Warrantless Blood Draw

State v. Stavish, Minn.S.Ct., 8/19/2015.  Justice Dietzen, over dissents from Chief Justice Gildea and Justice Page, takes up the question of just what constitutes an "exigency" that gets around the requirement of McNeeley that officers get a warrant before drawing blood to test for intoxication.  The Court of Appeals had determined that such an exigency existed - read about that here - and for slightly different reasons Justice Dietzen agrees.

The relevant circumstances are that law enforcement had reason to believe that Stavish, who allegedly admitted to being the driver, had consumed alcohol, and that alcohol contributed to the accident. Thus, it was important to draw Stavish’s blood within 2 hours of the accident to ensure the reliability and admissibility of the alcohol concentration evidence. See Minn Stat. § 169A.20, subd. 1(5) (defining impairment as an alcohol concentration of 0.08 or greater, as measured within 2 hours of the time of driving). Additionally, Stavish sustained serious injuries that necessitated emergency medical treatment at a hospital and potentially required that he be transported by helicopter to another hospital. Stavish’s medical condition and need for treatment rendered his future availability for a blood draw uncertain. Sergeant Martens did not know how long Stavish was likely to remain at the same hospital or whether further medical care would preclude obtaining a sample even if Stavish stayed at the same hospital

The dissenters didn't think that the state had established such an exigency, with Justice Page the most vociferous about that:

In this case, the court continues its efforts, begun in State v. Bernard, 859 N.W.2d 762 (Minn. 2015), and reiterated in State v. Lindquist, ___ N.W.2d ___ (Minn. Aug. 19, 2015), to protect its erroneous decision in State v. Shriner, 751 N.W.2d 538 (Minn. 2008) (establishing that the evanescent nature of alcohol in the bloodstream is a single-factor exigency), abrogated by Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013) (holding that, contrary to this court’s decisions in Shriner, the dissipation of alcohol in the blood does not create a per se exigency), and Shriner’s progeny. In Bernard, we “fundamentally depart[ed] from longstanding Fourth Amendment principles” to justify a warrantless breath test as a valid search incident to arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a different name.” 859 N.W.2d at 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly). Here, the court doubles down and again “readopts a per se exigency,” id. at 779, this time by refusing to hold the State to its “heavy burden” to rebut the presumption of unreasonableness associated with a warrantless search of the person, Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984), by establishing that “the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” Schmerber v. California, 384 U.S. 757, 770 (1966) (citation omitted). The record upon which the court finds the existence of exigent circumstances is so minimal that the decision here, in effect, nullifies the warrant requirement in every suspected drunk-driving case involving an accident with serious injuries—contradicting basic Fourth Amendment principles and the Supreme Court’s decision in McNeely.

Abandoning Thirty Years of Jurisprudence Court Adopts A "Good Faith Exception" to Exclusionary Rule

State v. Lindquist, Minn.S.Ct., 8/19/2015.  In an unusual judicial alignment, Justice G. Barry Anderson ends Minnesota's long, long resistance to adoption of a "good faith exception" to the Fourth Amendment's exclusionary rule.  Justices Dietzen, Wright and Stras join in the majority opinion while Chief Justice Gildea, Justices Page and Lillehaug dissent, although for different reasons.  Strange bedfellows indeed.  

Just two years ago in State v. Brooks, only Justice Stras wanted to adopt a "good faith" exception.  He got no votes then (although Justice Wright did not participate).  Here's what Justice Stras wrote in Brooks:

I would affirm the decision to admit the blood-alcohol evidence from each of the searches in this case based on the rule from Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419 (2011). Under Davis, “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Id. at ___, 131 S. Ct. at 2423-24. Davis builds upon the good-faith exception to the exclusionary rule first articulated in United States v. Leon, which held that the Fourth Amendment does not require suppression of “evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate,” even if the warrant is later found to be defective. 468 U.S. 897, 913 (1984). 

After only five years on the court, and just barely two years after Brooks, Justice Stras wipes out thirty years of judicial refusal to adopt such an exception.

Ms. Lindquist was convicted of third degree driving while impaired.  The trial court admitted test results of her alcohol concentration that were based on a warrantless blood draw.  While her conviction was on direct appeal the U.S. Supreme Court decided McNeely, which rejected the single factor exigency rationale of State v. Netland, 762 N.W.2d 202 (Minn. 2009). Justice Anderson abandons the court's thirty year refusal to adopt any form of a "good faith exception" to the exclusionary rule.

The court consoles the dissenters by saying that its holding is limited to searches "conducted in objectively reasonable reliance on binding [Minnesota] appellate precedent."  

We note the narrowness of our holding, however. The Davis goodfaith exception represents a small fragment of federal good-faith jurisprudence. The State has not asked us here to consider any other good-faith exception to the exclusionary rule, and nothing in our opinion should be construed as authorizing the application of exceptions we have not explicitly adopted. Further, the good-faith exception adopted here applies only when law enforcement officers act pursuant to binding appellate precedent, not persuasive precedent from other jurisdictions. In addition, the binding precedent must specifically authorize the behavior. Law enforcement cannot “extend the law” to areas in which no precedent exists or the law is unsettled.

The majority seeks to assuage the dissenters by saying that adoption of Leon's good faith exception for evidence seized by officers in reasonable reliance on a facially valid warrant is left to another day.  Also, the court leaves for another day whether a good faith exception should apply to evidence obtained due to police negligence.  Herring v. United States, 555 U.S. 135 (2009).

Chief Justice Gildea said that the court should not adopt the exception under the Minnesota Constitution:

In my view, our court’s repeated refusal to recognize the good-faith exception to the exclusionary rule, together with Minn. Stat. § 626.21 (2014), establish a Minnesota “tradition” that is not consistent with the application of the good-faith exception in this case.

The Chief also agreed with Justice Page that the majority's decision was inconsistent with that history, and she agreed with Justice Lillehaug's view that Minn.Stat. 626.21 is a statutory codification of the exclusionary rule that prevents application of a good faith exception in Minnesota.  Justice Page, who was not assuaged in the least, was more emphatic, predicting that this decision opens the floodgates to the inevitable adoption of the other federally adopted exceptions to the exclusionary rule:

It is apparent that the court is willing to go to any length— including ignoring Minn. Const. art. I, § 8,1 and art. I, § 102—to protect its erroneous decision in State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008) (establishing that the evanescent nature of alcohol in the bloodstream is a single-factor exigency), abrogated by Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1568 (2013) (holding that, contrary to this court’s decision in Shriner, the dissipation of alcohol in the blood does not create a per se exigency), and its progeny. In State v. Bernard, we “fundamentally depart[ed] from longstanding Fourth Amendment principles” to justify a warrantless breath test as a valid search incident to arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a different name.” 859 N.W.2d 762, 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly). Now, adopting the good-faith exception, the court cavalierly ignores Minn. Const. art. I, § 8, and would have us believe, contrary to federal precedent and its own reasoning, that its decision is a “narrow” one. The court acts as though “we live[] in a world without Missouri v. McNeely,” Bernard, 859 N.W.2d at 774 (Page, J., & Stras, J., dissenting jointly), and without Minn. Const. art. I, § 8. “But we do not live in such a world.” Id. McNeely is decided, and the court can avoid Minn. Const. art. I, § 8, only by mischaracterizing the right at issue in this case and taking away the only available remedy for the violation of a constitutional right. The court accomplishes this by equating violations of Minn. Const. art. I, § 10, to causes of action not recognized at the common law—a concept not contemplated by the drafters of Article I, Section 8.