When Accepting a Norgaard Guilty Plea Trial Court Need Not Make Express Finding of Strong Probability That A Defendant Would Be Found Guilty

State v. Johnson, Minn.Ct.App., 6/29/2015.  Mr. Johnson pled guilty to felony domestic assault by strangulation.  He said at the plea hearing that he couldn't remember the incident.  He agreed, though, from a read of the police reports, that the state's evidence "would likely persuade" a jury to find him guilty.  On appeal, he said that he should get a new trial because the trial court had not made an express finding of fact that there was a "strong probability" that he would be found guilty.

Here's what the trial judge asked Mr. Johnson:

Would you agree that if the fact finder, whether that was me or a jury, if we were in a trial and the prosecution called witnesses who would testify to what is in those police reports about what happened that night at your residence, that applying the presumption of innocence and 4 burden of proof beyond a reasonable doubt, if all that information came out, that you would be convicted of that Domestic Assault By Strangulation?

A guilty plea is valid if it is accurate, voluntary and intelligent.  State v. Ecker, 524 N.W.2d 712 (Minn. 1994).  Mr. Johnson's challenge to his plea focuses on the accuracy requirement of a valid plea.  Accuracy means that there is an adequate factual basis to support a conclusion that a defendant's conduct falls within the charge to which he desires to plead.  Usually, a defendant establishes that factual basis by answering questions about the alleged offense conduct.  However:

a factual basis [may also] be established by other means: when a defendant enters an Alford/Goulette plea and when a defendant enters a Norgaard plea.” Id. A defendant enters an Alford/Goulette plea if he maintains his innocence but “reasonably believes, and the record establishes, the state has sufficient evidence to obtain a conviction.” Ecker, 524 N.W.2d at 716 (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)); see also State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977). A defendant enters a Norgaard plea if he “claims a loss of memory, through amnesia or intoxication, regarding the circumstances of the offense” but the record establishes that “the defendant is guilty or likely to be convicted of the crime charged.” Ecker, 524 N.W.2d at 716; see also State ex rel. Norgaard v. Tahash, 261 Minn. 106, 112-14, 110 N.W.2d 867, 871-72 (1961).

 The appellate court leaves a trial court's obligations where it finds them:  the trial court must be satisfied, among other things, that the plea is supported by an adequate factual basis.  There is no requirement from either case law or the rules of criminal procedure that the court also make an express finding that "there is a strong probability that the defendant would be found guilty of the charge to which he pleaded guilty."  See State v. Theis, 742 N.W.2d. 643 (Minn. 2007).  

Crime of Clergy Sexual Conduct Does Not Require Proof That Clergy Had Knowledge that Complainant Sought or Received Religious Advice

State v. Wenthe, Minn.S.Ct., 6/24/2015.  A jury convicted Mr. Wenthe of third degree criminal sexual conduct for "sexually penetrating A.F. - a member of the parish where Wenthe served as priest - at a single meeting at which A.F. sought spiritual counsel." Mr. Wenthe has been in and out of the appellate courts several times now, go here, here, and here.  Most recently, the court of appeals had (again) reversed that conviction and the state sought review.  Justice Anderson, for four members of the court - Dietzen and Wright not participating and Page dissenting - now (again) reverses the court of appeals.  Justice Anderson addressed each of the three issues on which the court of appeals had reversed.

At trial the court gave the standard instruction on unanimity.  On appeal Mr. Wenthe argued successfully that it had been plain error for the trial court not to have given an instruction that the jury must unanimously agree on which of several meetings between A.F. and Mr. Wenthe that he violated the statute.  The trial court declined to give that instruction but the court of appeals said that it should have done so, that it was plain error and that it required a new trial. Justice Anderson awards this decision to the trial court without really deciding the question.  Instead, the justice said that if there were error it did not affect Mr. Wenthe's substantial rights.

Second, the defense did ask the trial court to instruct the jury that a clergy member must have subjective knowledge of the purpose of the meeting at which sexual penetration occurs.  The trial court declined the request and gave a knowledge instruction that only went to the element, intent to sexually penetrate.  The court of appeals concluded that this was error because the statute required proof of a "particularized knowledge" that the complainant sought spiritual counsel.

Justice Anderson says, no, that's not what the statute says so that's not what it requires.  Here's the pertinent portion of the statute, Minn.Stat. 609.344, subd. 1(I):

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists: . . . .

(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and: 

...

(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense . . . .

The justices can't find anything about a knowledge requirement here and under its literalist approach to jurisprudence are not about to insert one. That's a legislative function. Also, because previous case law requires that sexual penetration must be intention, then the statute survives the claim that without an additional knowledge requirement its a strict liability offense.

Finally, at trial Mr. Wenthe had sought to introduce evidence of A.F.'s sexual history. The state parried the request by promising only to introduce evidence of A.F.'s sexual abuse as a child. The state broke that promise, however, when it elicited testimony from A.F. that she was sexually inexperienced. Justice Anderson said that the state should have kept its promise and that the trial court made a mistake by permitting the receipt of the "inexperience" evidence. That mistake, however, did not amount to an abuse of discretion, which is the appellate review standard of evidentiary rulings. And, to cover the bases, if the ruling was an abuse of discretion it was harmless.

Justice Page dissented on all three of the majority's rulings.

Officers Lawfully Seized Cell Phone Under Plain View Exception

State v. Holland, Minn.S.Ct., 6/24/2015.  Mr. Holland called the police from his apartment to report that a woman - who turned out to be his dead girlfriend, Margorie Holland - was unconscious, not breathing, and cold.  Police came over and found Ms. Holland lying on her back at the bottom of a set of stairs inside the apartment. Mr. Holland told one of the first officers to arrive that he had gone out to get Ms. Holland some food from Taco Bell but that she had texted him to go to McDonald's instead.  When he returned, Mr. Holland found Ms. Holland at the bottom of the stairs.The officer asked Mr. Holland about the text messages, she said so that she could determine just how long Ms. Holland had been unresponsive. Mr. Holland's hands shook so bad, however, that he gave the officer the phone.  The officer looked at the messages and actually concluded that the text message exchanges between the Hollands were consistent with Mr. Holland's description of his activities that morning.   The officer gave the phone to a detective who later obtained a search warrant to examine the full content of the phone. Eventually the state charged Mr. Holland with first degree murder and a jury convicted him of those charges.

Mr. Holland moved to suppress evidence of the contents of the phone, arguing that police had seized the phone without a warrant in violation of both federal and state constitutional prohibitions against unreasonable searches and seizures.  The state agreed on appeal that the officers had seized the phone but sought to justify that seizure under the plain view exception to the warrant requirement.

Chief Justice Gildea, for the full court, agrees that plain view permitted the seizure of the phone.  She also agreed with Mr. Holland that police do need probable cause to believe that the item seized - in this case the cell phone - is of an incriminating nature, but in the court's view the cops had it.  The Chief Justice said that when the officers looked at the phone - which arguably amounted to a consent from Mr. Holland for the cops to seize it, an argument that the made but the court ducked - the text messages at issue were openly displayed on the screen.  The detective on scene, however, became suspicious of Mr. Holland's explanation of events because of the position of the body and its discoloration; the detective suspected that Ms. Holland had been dead longer than Mr. Holland's explanation suggested. The detective decided to hang onto the phone in order to request a search warrant of its contents, sort of like "freezing" a scene for the same purpose.  The Chief Justice said that although the text messages alone were not evidence of criminal activity when put in context with the detective's suspicions they became such evidence.

Mr. Holland challenged several other search warrants, some of which he said were based on information obtained from what he said was the unlawful seizure of the cell phone.  The court made short shrift of these challenges once it concluded that the officers had properly seized the phone.  Finally, Mr. Holland challenged search warrants of bank accounts and financial records.  The court concluded that the warrants were supported by probable cause.

A Pattern of Making False Claims of Self Defense Is Admissible as Spreigl Evidence To Rebut Claim of Self Defense

State v. Welle, Minn.S.Ct., 6/24/2015.  A jury found Mr. Welle guilty of unintentional second degree murder, and of first degree manslaughter for the death of Dale Anderson.  Mr. Welle said that he committed the murder outside the Powerhouse Bar in self defense.  He said that he and Mr. Anderson argued, during which Mr. Anderson punched Mr. Welle in the face.  Mr. Welle defended himself by punching Mr. Anderson in the face, which caused Mr. Anderson to fall backwards.  Mr. Welle had no visible injuries. Eventually Mr. Anderson later died.

Over objection from Mr. Welle the trial court permitted the state to introduce evidence to rebut the self defense claim of three prior incidents, in two of which Mr. Welle made essentially the same claim even though he had no visible injuries:  during an argument some guy hit him and he hit back in self defense.  In the third incident, Mr. Welle made no claim of self defense.

Justice Page, for the full court, said that Mr. Welle's pattern of asserting self-defense after being the aggressor in an altercation is relevant for purposes of disproving the elements of self defense. State v. Robinson, 427 N.W.2d 217 (Minn. 1988).  It's relevant because it tends to make it more or less probable that Mr. Welle had an actual and honest belief of danger of death or great bodily harm, which is one of the elements of self defense.

The Justice also said that only the two prior incidents in which Mr. Welle made this self defense claim should have been admitted. Admission of evidence of the third incident, which did not include a claim from Mr. Welle that he had acted in self defense, was error, but, alas for Mr. Welle, it was harmless error.

6/22/2015: No Court of Appeals Published Criminal Opinions

Where Risk of Self-Incrimination Is "Obvious" Witness May Assert Privilege Vicariously Through Counsel

Martin v. State, Minn.S.Ct., 6/17/2015.  Mr. Martin is serving a life sentence with no possibility of parole.  He committed the crime as a juvenile, was automatically certified to adult court, and was automatically sentenced to life without possibility of release upon conviction. A couple of years ago, after his conviction and sentence were affirmed on direct appeal, Mr. Martin filed a post conviction petition in which he alleged that because of recantations by two state witnesses he was entitled to a new trial.  The post conviction court summarily denied that petition, but the supreme court sent the case back to the post conviction court for an evidentiary hearing on the recantation claim.

In the meantime, Mr. Martin filed a second post conviction petition in which he claimed that the holding of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) should be applied retroactively. The post conviction court held a hearing on both petitions.  The recantation claim didn't go so well.  The state presented evidence that Mr. Martin had procured the two witness recantations by means of coercion and threats to the witnesses and their family members.  

One of the witnesses appeared only through counsel, who asserted his client's Fifth Amendment privilege and moved to quash the subpoena directed to his client.  The post conviction court granted that motion to quash the subpoena.  On appeal, Mr. Martin complained that the witness first needed to be sworn before the privilege could be asserted.  Justice Dietzen, writing for the full court on this issue, said, no, that because risk of self incrimination was obvious - the witness either lied during his trial testimony or in his sworn affidavit - assertion of the privilege did not require the witnesses' presence.

Alternatively, Mr. Martin argued that the post conviction court should have granted this witness judicial immunity.  The immunity statute, however, Minn.Stat. 609.09, subd 1, is only triggered when the state requests that the court grant immunity to a witness. Because the state didn't make that request, the post conviction court had no authority to grant it.  See State v. Pierce, 364 N.W.2d 801 (Minn. 1985).

On the juvenile life without possibility of release, six justices continue to believe that Miller is not retroactive.  Justices Anderson and Lillehaug agree, but acknowledge that other courts have ruled on the question the other way and just wish that the U.S. Supreme Court would resolve it.  Justice Page dissented, for the reason that he dissented in Chambers  and Roman Nose, that Miller  should be applied retroactively.

6/15/2015: No Court of Appeals Published Criminal Opinions

The State Need Not Always Present Evidence of Scientific Testing of Suspected Narcotics to Survive a Sufficiency Challenge

State v. Gruber, Minn.Ct.App., 6/8/2015.  The Washington County Sheriff's Office maintains a locked depository box into which members of the public can dispose of unused drugs.  Deputy Gruber (one supposes former deputy?) got caught on camera pilfering some of these drugs. Among other crimes the state charged him with unlawful possession of "legend drugs." Minn.Stat. 151.01, subd. 17. "Legend drugs" are medications that require a prescription under federal law.  A jury convicted him of this offense, as well as the offense of official misconduct.

Among the claims that Mr. Gruber made on appeal was that the state failed to submit sufficient evidence that the medications he removed from the lock box were actually "legend drugs".  Mr. Gruber said that this is because the state did not offer any evidence of chemical testing of those drugs.  The court of appeals rejected this assertion, citing to past cases in which the supreme court had said that scientific testing was not always required.  The most recent one was State v. Olhausen, 681 N.W.2d 21 (Minn. 2004).  In that case, the court had upheld a conviction for possession of methamphetamine even though the state only presented testimony from an undercover buyer who said that he knew what methamphetamine packaging looked like and what he'd seen Mr. Olhausen with was such packaging.  From this, and two other cases, the court discerned that:

[F]act finders must consider and weigh the reliability of the state’s chemical-identity evidence in each case; a fact finder can reject as unreliable a proffered method of scientific testing; a fact finder may determine identity of a drug beyond a reasonable doubt based on reliable nonscientific evidence; ...

The court applied these principles and concluded that the state's evidence was sufficient.  Most of the drugs were in prescription bottles or were sealed in the original packaging.  The BCA witness examined the pills inside the containers and then visually matched those pills to pictures of known medications.  Enough said.

Mr. Gruber made some additional complains but the court methodically (and sometimes scornfully) rejects them.  Most had to do with the official misconduct charge.

Sale of Oxycodone in Dosage Units Is Not First Degree Sales Crime

State v. Anderson, Minn.Ct.App., 6/8/2015.  Imagine that there's a twelve word phrase in Chapter 152, the drug statute, that makes the sale of any controlled substance a first degree drug crime. How sweet is that!  No more digging through the schedules to find the drug; just say the magic words and knock off work early.  Here's the portion of the first degree drug statute in play:

A person is guilty of controlled substance crime in the first degree if:

. . . .

(3) on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of 50 grams or more containing amphetamine, phencyclidine, or hallucinogen or, if the controlled substance is packaged in dosage units, equaling 200 or more dosage units.

Minn.Stat. 152.021, subd 1(3).

The state charged Mr. Anderson with first degree sale of  450 pills containing oxycodone.  The state conceded that oxycodone is not amphetamine, phencyclidine or a hallucinogen.  The state insisted, however, that the phrase following "hallucinogen" covers any controlled substance.  The trial court bought this assertion and a jury found Mr. Anderson guilty of first degree sale of pills containing oxycodone.

In the dictionary toting, literalest/originalist judicial world inhabited by Minnesota's appellate courts, even this is too much.  The court sets off on a lengthy exploration of English grammar, in particular , "disjunctive lists" and "gerund phrases" - "equaling 200 or more dosage units" - to arrive at the all too obvious conclusion that the state's argument, if accepted, would result in this gerund phrase swallowing nearly the entirety of Chapter 152 narcotics sales provisions.    

So, at least for a few more months, the drug dealers get a break.  Selling oxycodone is only a third degree sales event.

6/10/2015: No Supreme Court Published Criminal Opinions

Under Plain Error Review, Instruction Error on Intent to Commit Burglary Do Not Require New Trial

State v. Davis, Minn.S.Ct., 6/3/2015.  A jury convicted Mr. Davis of first degree felony murder.  Here's part of the instructions that the trial court gave to the jury:

First, the defendant or an accomplice was committing the crime of burglary. This element is satisfied if there is proof beyond a reasonable doubt that the defendant or an accomplice entered a building without the consent of the person in lawful possession and intended to commit or committed a theft while in the building.

So, what's wrong with this instruction?   First, Mr. Davis said that it does not include the definition of theft, which is the predicate offense for the burglary.  Justice Wright, for the entire court, rejects this assertion.  So long as the court's instructions do not mislead the jury or allow it to speculate over the meaning of the elements of the offense, then it's okay.  

Next, Mr. Davis said that the instructions misstated the law on the intent required to commit the burglary.  Third degree burglary, the predicate felony to the murder, requires proof that a person either "enters a building without consent and with intent to steal," or "enters a building without consent and steals ... while in the building.  See the problem with the court's instruction?  The instruction says that the intent to commit a theft need not have been formed at the time of entry. That's not what the statute requires.

Unfortunately for Mr. Davis, there was no objection to this erroneous instruction.  Under plain error - and the court only assumes that the error was plain - he has to establish that the error affected his substantial rights.  Mr. Davis can't satisfy that requirement for two reasons:  first, one of is defenses was that he wasn't there so if the jury accepted that claim that it doesn't matter what the instructions are.  His second defense was that he had permission to take the items that were removed but only temporarily.  (He claimed that all this was some sort of furniture rental scam.)  Justice Wright said something about this defense not implicating the intent element of burglary "because there is no evidence that Davis entered the apartment without an intent to steal, subsequently formed an intent to steal while in the apartment, but ultimately chose not to steal anything while in the apartment."  

The trial court told the jury that it "need consider ... the lesser offenses that are now being submitted." This is an error; juries can't be told in what order to consider charges.  See State v. Prtine, 784 N.W.2d 303, 316 (Minn. 2010).  Again, however, Mr. Davis didn't object to this instruction and, again, under plain error he can't establish that the error here was plain.

The court also excluded some alternative-perpetrator evidence that the defense wanted to jury to know about, which mostly involved persons other than the deceased.  The court found no abuse of discretion in excluding this evidence.

Finally, the court rejects complaints that the trial court improperly carried on with parts of the trial in Mr. Davis's absence, even though he'd asked not be be present.

Where Concealment of Body is Part of Single Behavioral Incident and Committed in Particularly Serious Way Then Guidelines Authorize Upward Departure

State v. Hicks, Minn.S.Ct., 6/3/2015.  Judy Rush went missing in August, 2007.  Initial investigation suggested that if the large amount of blood found in her apartment were Judy's then she was dead. Three years later, Ms. Rush's remains were discovered in a shallow grave in a park in Brooklyn Park.  The state charged Mr. Hicks with second degree intentional and unintentional murder.  The court - Mr. Hicks waived both his right to a jury trial and to counsel - convicted him of second degree unintentional murder.

The court then granted the state's motion for an upward durational departure.  The court determined that the disposal and concealment of the body constituted particular cruelty "under the facts."  The court of appeals affirmed.  That court reasoned that concealment of the body is particularly cruel and thus supports a departure.  That court also rejected Mr. Hicks' argument that the concealment was a separate, uncharged offense that could not be used to justify an upward departure.

Justice Dietzen, writing for five members of the court - Justices Wright and Page dissented - admitted that the court's past pronouncements on whether concealment of a victim's body would support a departure have not been free from confusion.  In its most recent iteration on the subject, State v. Leja, 684 N.W.2d 442 (Minn. 2004), the court could not muster a majority opinion.  Justice Paul Anderson's plurality opinion garnered only three votes for rejecting a departure based only on the concealment of the body.  Chief Justice Blatz got three votes for authorizing a departure on that basis. Justice Russell Anderson concurred in the result but for the reason that the concealment was a separate offense that could not be used to authorize the departure. 

Justice Dietzen gets five votes to authorize a departure on the single factor of concealment of a homicide victim's body.  Concealment of the body makes the offender's conduct:

more serious than the typical second-degree unintentional murder because family and friends of a victim suffer additional trauma by not knowing whether their relative or friend is dead or alive, and concealment is contrary to the proper, respectful treatment due to the remains of a deceased person.

Justice Dietzen insists that this is not about particular cruelty; it's about a-typicality. (But, then again, a homicide followed by concealment of the body make up a pretty small subset of all homicides, so it's fair to anticipate that the state is going to assert in just about every homicide followed by concealment of the body that the offense qualifies for a departure.  Moreover, the precise "a-typicality" is the "cruelty" to the survivors, which is always going to be present, at least in the court's mind.)

There's more.  Those harmed by the offender's conduct no longer must be present during the commission of the crime.

The court does place some restrictions on the availability of a departure based on concealment of the body.  The court concluded that Mr. Hicks's concealment of the body was part of a "single behavioral incident" so if that's not the case then a departure may not be authorized.   Where the concealment is part of a single behavioral incident then all of those facts must show that the offender committed the offense that is being sentenced in a "particularly serious way" to support a departure.

Justice Wright, joined by Justice Page, dissented.    

6/1/2015: No Court of Appeals Published Criminal Opinions