3/30/2015: No Court of Appeals Published Criminal Opinions

3/25/2015: No Supreme Court Published Criminal Opinions

3/23/2015: No Court of Appeals Published Criminal Opinions

Court Rejects Claims of Newly Discovered Evidence and Ineffective Assistance of Counsel in Bid For New Trial

Nissalke v. State, Minn.S.Ct., 3/18/2015.  Mr. Nissalke filed this post conviction action in which he claimed to have newly discovered evidence of juror misconduct.  The post conviction court rejected the claim without holding an evidentiary hearing.  Mr. Nissalke said that after his trial was complete he discovered a photograph of a deliberating juror talking with a member of the public.  The trial court and the parties, had already known about the conversation; indeed, the trial court conducted a Schwartz hearing on it after the verdict but before Mr. Nissalke filed his notice of appeal.  The trial court concluded that the juror had engaged in misconduct, but that the misconduct was not prejudicial.

Mr. Nissalke’s point about the photograph was that to him it showed that the juror wasn’t talking to just any member of the public; rather, the juror was talking to someone who had been attending the trial.  Justice Page, for the entire court, concluded that even if all this were true it did not add any relevant new evidence germane to the trial court’s finding that the juror misconduct had not resulted in prejudice.

Mr. Nissalke also claimed newly discovered evidence consisting of an interview of another juror during which the juror complained that objections by the lawyers had prevented the juror from “being able to put the pieces together.”  Mr. Nissalke said that the interview proved that the juror had been speculating on certain evidence that she thought was crucial, which is misconduct.  Justice Page rejected this assertion but then threw in Evidence Rule 606(b) which prohibits the admission of any evidence about the “effect of anything” on a “juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”  Apparently what that means is the juror’s interview would not have been admissible at a post conviction hearing so it was okay summarily to deny this claim.

Mr. Nissalke made several other claims, one of which was that his trial counsel failed to properly explain a plea offer.  This claim, however, was already part of the trial court record, including any factual support for it, and so it needed to have been raised on direct appeal.  The failure to have done so bars that claim under the Knaffla rule. 

Failure to State On The Record The Basis For Objection to Admission of Evidence Leads to Failed Plain Error Challenge on Appeal

State v. Campbell, Minn.S.Ct., 3/18/2015.  A jury found Mr. Campbell guilty of first degree premeditated murder for the benefit of a gang, along with several riffs on that top count.  The trial court sentenced Mr. Campbell to life in prison without possibility of release.  Justice Page, writing for the entire court, affirms that conviction and sentence, employing pretzel logic to get there.

A state witness backed up on a key piece of evidence during his testimony.  The state wanted to impeach that witness by playing portions of his recorded interview with the police.  The state offered the recording as substantive evidence, along with a transcript of that recording.  The defense objected.  After a sidebar on the objection, the court said “You may proceed.”  The prosecutor then asked if both the recording and the transcript were being admitted.  The court then announced that the recording was admissible but that the transcript was admissible only as a court exhibit that the jury could use during the playing of the recording to aid its understanding of the recording.  There is no additional record of what got said at the sidebar.

On appeal Mr. Campbell complained about the substantive admission of the recording.  Now, Justice Page, himself, wrote that a prior inconsistent statement not given under oath is not admissible substantively.  State v. Thames, 599 N.W.2d 122 (Minn. 1999).  Now, however, he said that the court couldn’t figure out the basis of Mr. Campbell’s objection.  Despite authoring Thames, the justice couldn’t discern from the context just what the precise objection was. 

Rule of Evidence 103(a) says that to preserve an error in the admission of evidence counsel must make a timely objection that appears of record, and which states the specific ground of objection unless the specific ground was not apparent from the context.  For the life of them, not a single member of the court could discern from the context the basis for the objection:  hearsay.  Despite Thames, the trial court admitted the recording as substantive evidence and so the obvious objection was hearsay.  Justice Page, instead, decides that for all the court knows the objection was only to the admission of the transcript of the recording.  The court reaches this conclusion by latching onto the trial court’s momentary lapse after the sidebar when she said only “You may proceed.”  When asked just how to proceed, the trial court then announced its ruling – that the recording was admitted but that the transcript was only a court exhibit.  The trial court then explained to the jury what the transcript of the recording was for.  Somehow, this meant that counsel’s only objection had been to the admission of the transcript.

Justice Page then buttresses this conclusion by pointing out that the defense made no objection when the jury asked during deliberations to hear the recording again.  The decision to replay for the jury media that has already been admitted into evidence is about unduly emphasizing a piece of evidence over all of the other evidence; it is not an opportunity to re-litigate the admission of that piece of evidence. 

It’s been the law at least since 1980 that a transcript of a recording is only for the jury’s assistance in understanding the recording as it is played.  State v. Olkon, 299 N.W.2d 89 (Minn. 1980).  The claim that the unrecorded sidebar was a debate about the admissibility of the transcript of the recording that the state was offering in evidence is disingenuous at best and frankly insulting to the court and counsel at worst. 

The upshot of this distorted logic is that the claimed error in admitting the recording for substantive purposes can only be reviewed for plain error.  Under that exacting standard the challenge fails.

Mr. Campbell also complained about the admission of Spreigl evidence.  The court assumed without deciding that the admission of that evidence was error but then went on to conclude that it was harmless.

3/16/2015: No Court of Appeals Published Criminal Opinions

Post Conviction Petition Alleging Ineffective Assistance of Counsel is Time Barred

Wayne v. State of Minnesota, Minn.S.Ct., 3/11/2015.  This is Mr. Wayne’s sixth petition for post conviction relief.  He is serving a life sentence imposed back in 1987.  In this petition he alleges that he received ineffective assistance of trial counsel.  Specifically, he claimed that he had not been informed of a plea offer purportedly discussed during an in-chambers meeting that occurred during his trial.  He said that the plea negotiation cases from a couple of years back by the U.S. Supreme Court – Missouri v. Frye, 132 S.Ct. 1399 (2012), and Laffler v. Cooper, 132 S.Ct. 1376 (2012) established a new interpretation of Sixth Amendment law regarding ineffective assistance of counsel that apply retroactively to him.  That, he said, provides an exception to the two year limitations provisions under the post conviction statute.  The problem was, at least to Justice Lillehaug, was that Mr. Wayne’s claim was time barred because Mr. Wayne could not satisfy this “new interpretation” exception to the limitations provisions because he could not establish that a formal plea offer actually got made to his lawyers and then not communicated to him.

A Felony Conviction Deemed to be a Misdemeanor Under Minn.Stat. 609.13 Doesn’t Count Under Career Offender Statute

State v. Franklin, Minn.S.Ct., 3/11/2015.  The career offender statute says that an offender who “has five or more prior felony convictions” is at least half way home to be deemed a career offender.  (A “pattern” is the other part.)  Suppose, however, that one of those prior felonies got dropped to a misdemeanor by operation of Minn.Stat. 609.13, subd. 1?  Does that offender still have “five or more prior felonies”?

The court of appeals had said, no, that Mr. Franklin only had four prior felonies.  Read about that here.  Justice Wright, for a unanimous court, agrees.   The justice gets out her dictionaries and grammar books to “examine the meaning of the verb have.”  If one says, “I have five apples.” that’s in the present.  On the other hand, if one says, “I have had five apples.” is in the past.  So, getting back to the task at hand, had the career offender statute said, “has been convicted of” five or more felonies, then Mr. Franklin would have qualified as a career offender.  The statute doesn’t say that and so he’s not a career offender.

No Reasonable Expectation of Privacy Under State Constitution in Garbage Deposited For Collection on the Curb

State v. McMurray, Minn.S.Ct., 3/11/2015.  Mr. McMurray set out his garbage one morning in a container proscribed by the local government for that purpose.  He set the garbage out on the day that the local government designated for pick up at Mr. McMurray’s location.  Unbeknownst to him, the local drug task force intercepted the garbage truck at a prearranged location, took custody of Mr. McMurray’s garbage and examined it.  The task force officers found methamphetamine.  A magistrate then issued a search warrant for Mr. McMurray’s home where more methamphetamine turned up.  The state charged Mr. McMurray with third degree possession of a controlled substance.

Mr. McMurray moved to suppress the narcotics.  He said that the officers’ warrantless search of his garbage violated Article I, Section 10 of the state constitution, and so the search warrant could not survive that unconstitutional trash search.  The state said, and both the trial court and the court of appeals agreed, that this trash talk was just that:  trash.  The United States Supreme Court, and the Minnesota Supreme Court had long ago held that an individual had no reasonable expectation of privacy in trash that was set out in a location that could be examined without trespassing on that person’s premises.    California v. Greenwood, 486 U.S. 35 (1988); State v. Oquist, 327 N.W.2d 587 (Minn. 1982). 

Justice Wright, with Justices Lillehaug and Page dissenting, said that there was no “principled basis” for providing greater protection under the state constitution than under the federal one.  To sort of see just what a “principled basis” might look like Justice Wright listed some factors:

(1) the text of the state Constitution, (2) the history of the state constitutional provision, (3) relevant state case law, (4) the text of any counterpart in the U.S. Constitution, (5) related federal precedent and relevant case law from other states that have addressed identical or substantially similar constitutional language, (6) policy considerations, including unique, distinct, or peculiar issues of state and local concern, and (7) the applicability of the foregoing factors within the context of the modern scheme of state jurisprudence.

Kahn v. Griffin, 701 N.W.2d 815 (Minn. 2005).  She went on to say that the court would extend greater protection under the state constitution only:

(1) when the United States Supreme Court “ ‘has made a sharp or radical departure from its previous decisions’ and we ‘discern no persuasive reason to follow such a departure’ ”; (2) when the Court has “retrenched on a Bill of Rights issue”; or (3) when the Court precedent “ ‘does not adequately protect our citizens’ basic rights and liberties.’ ”

Rew v. Bergstrom, 845 N.W.2d 764 (Minn. 2014).  The court then examined each of these possibilities and rejected them.

Justice Lillehaug – who knew of this libertarian streak? – railed against the government tyranny of trash collection.  The government sets the date for trash pickup.  The government dictates the container into which citizens’ trash must be deposited.  The government requires that the container be placed just so in order to be collected.  And so on.   Garbage, he goes on to suggest, is a low tech smart phone:

At different times, people dispose of drug bottles, birth control devices, sanitary products, printouts of emails, check registers, photos, and whatever they have recently read or eaten. It is the very privacy—the intimacy—of this personal information that makes it of great interest to others, ranging from law enforcement officers to private investigators to neighborhood snoops.

So get a warrant.  Until an individual’s garbage has become so intermingled as to lose its identity and meaning, there remains a reasonable expectation of privacy in the contents of an individual, government mandated, trash barrel.

Now, that’s trash talk.

3/9/2015: No Court of Appeals Published Criminal Opinions

3/4/2015: No Supreme Court Published Criminal Opinions

3/2/2015: No Court of Appeals Published Criminal Opinions

“Taking” a Deer Still Means “Taking” a Deer

State v. Schmid, Minn.S.Ct., 2/25/2015.  It is a misdemeanor offense to “take” deer without a license. 

A person may not take a deer without a license.

Minn.Stat. 97B.22, subdivision 1. 

“Taking” is a statutorily defined term:

"Taking" means pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, or netting wild animals, or placing, setting, drawing, or using a net, trap, or other device to take wild animals. Taking includes attempting to take wild animals, and assisting another person in taking wild animals.

A game warden found Mr. Schmid in a deer blind in a deer-hunting area during deer hunting season.  He was dressed in blaze orange clothing.  He was armed with a shotgun loaded with deer slugs.  He was not in possession of a license to hunt deer.  He said that he didn’t need a license because hanging out in a deer blind was not “pursuing” game without a license, which is one of the activities the statute prohibits.

The Court of Appeals said that what Mr. Schmid was doing when the DNA officer wondered by was “taking a deer without a license.”  Read about that here.  The Supreme Court, in a unanimous opinion by Justice Lillihaug that is too, too clever by half concurs.  “Taking” a deer means, well, taking a deer.  

Just why the court decided to devote countless hours to produce an eighteen page opinion is somewhat obscure.  In reaching the same conclusion the court of appeals took us on a history lesson about the meaning of “take.”  It would seem that Justice Lillihaug didn’t care for that approach, instead taking a more traditional statutory construction approach.  If the statue’s not ambiguous then apply the plain meaning of the statutory text.  The justices concluded that the statute is not ambiguous and that its plain meaning sufficiently takes in hanging out in a deer blind.